The Murray Ohio Manufacturing Co.

THE MURRAY OHIO MANUFACTURING CO. 481 The Murray Ohio Manufacturing Company and International Association of Machinists and Aeros- pace Workers, AFL-CIO. Cases 26-CA-4407 and 26-CA-4438 November 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 7, 1973, Administrative Law Judge Robert Cohn issued the attached Decision in this proceed- ing. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. 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. The Administrative Law Judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging two employees in order to discourage activities on behalf of the International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter the Union). He also found that Respondent violated Section 8(a)(1) by the tearing up and disposing of an employee's authoriza- tion card. For the reasons set forth below, we shall dismiss the complaint in its entirety. 1. With regard to the 8(a)(3) allegations, Respon- dent contends that the two employees were dis- charged for cause, that is, for the falsification of inspection reports necessary to the maintenance of Respondent's quality control system. Respondent is engaged in the manufacture and sale of bicycles, lawnmowers, and related items to major retail outlets such as Sears Roebuck and J.C. Penney. It employs approximately 2,200 production and maintenance employees who have been the object of organizational efforts by various unions for the past 16 years. The most recent such effort culminated in a Board-conducted election held in December 1971, which the Union lost by 200 votes. Immediately thereafter the Union mounted a new campaign to solicit fresh authorization cards. The alleged discriminatees, Mannie Leighton and James Skelley, were both long-time employees2 who worked in, the audit inspection department wherein it was their duty to make the final assembly-line check for production defects prior to shipment. It is the job of the audit inspector to make spot checks of the bicycles or other types of velocipedes coming off the production line after they have been manufactured, painted, partially assembled, and packed in cartons ready for storage or shipment to the customer. The audit inspector opens the sealed carton, removes the bicycle, disassembles it completely, replaces it in the carton, tapes the carton, and places it back on the line. It is the inspector's function to see that the product's specifications were complied with during manufacturing and to report any defects. His written report is filed daily with his department supervisor. Leighton and Skelley were discharged on May 5, 1972, assertedly for filing false inspection reports. The events which' prompted the decision to discharge Leighton and Skelley began on April 13. That day was known as "Free Spirit Day" at the plant, so named in honor of a bicycle Respondent had been selected to manufacture for Sears Roebuck. On that day, officials from Sears were present at the plant for a tour and an inspection of the manufactur- ing process. While taking Sears' representatives through a tour of the plant, Respondent became aware of the fact that Skelley and Leighton were absent from their job stations for more-frequent and prolonged periods of time than the other inspectors, All personnel were cognizant of the importance of the day and, as Cal Poston , assistant vice president in charge of manufacturing, testified: The supervision had been previously warned to have these people on the ball, this was Free Spirit Day. We wanted to show a great activity and put on a great show and I felt that the whole system had fallen apart. I couldn't see any audit inspectors. I was deeply concerned. Poston therefore decided to investigate the entire audit department in order` to determine if it was functioning efficiently, with particular attention to the two employees in question. He also determined that the investigation would be conducted secretly by Quality Control Manager Bill Rudd, and himself. On Friday, April 14, and Monday, April 17, Poston and Rudd continuously observed all of the audit inspectors' work stations and found that, Leighton's and Skelley's audit stations were active only 45 i The Respondent has excepted to certain credibility findings made by Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully the Administrative Law Judge. It is the Board's established policy not to examined the record and find no basis for reversing his findings. overrule an Administrative Law Judge's resolutions with respect to 2 Leighton was hired in 1956 and Skelley had 15 years' continuous credibility unless the clear preponderance of all of the relevant evidence service. convinces us that the resolutions are incorrect. Standard Dry Wall Products, 207 NLRB No. 68 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percent to 50 percent of the time, whereas the other audit stations were active approximately 85 to 90 percent of the time.3 On April 18 it was decided to keep these two stations under 100 percent observa- tion. This revealed that the men reported more bicycle setups than they were observed making: Skelley reported having done 11 setups when he was observed performing only 5; Leighton reported 12 setups but had actually performed only 6. Poston and Rudd decided to doublecheck their results and so resumed work sampling on April 19 and 20. This sampling confirmed their earlier findings. At this point, Poston reported his and Rudd's activities, and the results obtained, to the vice president in charge of personnel, Cromer Smother- man, who suggested another check. This was done by Poston and Rudd on April 21. The later sampling revealed 7 setups performed by Skelley against 11 reported and 7 setups performed by Leighton against 12 reported. When Smotherman learned of these discrepancies, he asked Poston if there were yet another way to check so that he could be "damn sure" of the charges. Poston replied that he and Rudd could do a warehouse check of the completed inspections.4 Accordingly, Poston directed the warehouse general foreman to set aside the taped cartons from Skelley's and Leighton's production lines and, on April 25, Poston again checked their inspection reports against the collected taped cartons. He found five false reports for Skelley and three for Leighton. By April 27, Smotherman was satisfied with the investigation and decided to confront Skelley and Leighton with the evidence. Before doing so, howev- er, he advised Vice President Flesher of the investiga- tion and secured Flesher' s agreement with his own recommendations to suspend the two men pending further investigation. On May 2, Smotherman, Poston, Rudd, Chief Inspector George Taylor, General Foreman of Inspection Joe Stanford, and Personnel Director Buck Knott met in Smotherman's office. Smother- man informed them of the investigation and the decision to suspend Skelley and Leighton. He instructed them to advise Skelley's and Leighton's supervisors of all that had happened. Smotherman also directed Taylor and Stanford to confront the 3 It was customary and, indeed, required that the audit inspector be away from the audit station from time to time to check parts and insure that bikes coming into the production line did not include any parts previously found defective . In addition, it was necessary that the audit inspector, at every changeover in production , run up the line and check to see that those employees further up the line had the right parts for the pieces which they were to assemble or had assembled . Absence was also necessary when the inspector had to take a defective part or defective cycle to the repair station. 4 Each production line has its own conveyor to the warehouse and the prospective dischargees and "get their side of the story." On the afternoon of May 2, Leighton and Skelley were called individually into Taylor's office and told for the first time of the investigation and its revelations, and that they were being suspended pending further disciplinary action because they had been turning in false setup reports. Both denied any wrongdoing and claimed that they were the objects of a frameup.5 Taylor reported their denials to Poston on May 3. Despite these denials, Poston, on May 3, concluded that, in order, to maintain reliable quality control reporting, "the right thing to do" was to discharge the two men subject to the approval of the company vice president and president. Such approval was obtained on May 5. The personnel director thereu- pon advised Skelley and Leighton that they were being discharged for falsifying inspection reports .6 Leighton again protested his innocence and claimed the Company was discharging him for union activi- ties. Leighton had been active in the Union's 1971 organizing campaign and, after the election, again engaged in union activity, including attendance at union meetings, card solicitation, and oral proselytiz- ing. There is, however, no allegation or evidence that Respondent at anytime unlawfully interfered with or threatened Leighton concerning this activity. About 2 months prior to Leighton's discharge, Foreman Stanford approached Leighton and inquired what the Company could do to improve working conditions and morale. Leighton's suggestion of a change in the method of job bidding was countered by a charge that he (Leighton) was constantly griping and an invitation to discuss the matter in Stanford's office. Leighton admitted to Stanford that his (Leighton's) wife's dismissal was the principle motivation for his union activity, to which Stanford replied "we've got a good thing going here if some of you don't mess it up." The next month, in March or April, Leighton had a heated exchange with Supervisor Warren Davis about the respective rights of employee union sympathizers and management representatives to campaign among the employees. Davis expressed the opinion that the Union had no business trying to influence the employees, to which Leighton respond- ed that if it was wrong for him to solicit it was audit station is at the end of a production line. When the audit inspector completes a setup, he retapes the carton . This taping distinguishes inspected cartons from uninspected cartons. 5 It would have been impossible for them to disprove the charges at that point because the cartons by which their productivity was measured had since been shipped from the plant. 6 In view of his age, Skelley was given the option of accepting voluntary retirement in lieu of discharge. He declined the offer. THE MURRAY OHIO MANUFACTURING CO. similarly wrong for Respondent to-call the employees together and make antiunion speeches. Davis did not, however, admonish or threaten Leighton regard- ing his activities. The evidence regarding Skelley's prounion activi- ties is scanty, showing -only that he signed a fresh authorization card after the election but engagedin no other activities. He did, however, inform his foreman, Marston, about 10-days before his dis- charge that he was "still working for the Union." There is neither evidence nor allegation of any colorably coercive activities directed toward Leigh- ton or Skelley. - The -Administrative Law Judge expressed doubt that Skelley and Leighton committed the acts ascribed to them and characterized their denials of wrongdoing as honest and forthright. However, for the purpose of, deciding the ultimate issue of discrimination, he assumed that the information gathered by Poston and Rudd was accurate and that -the conduct attributed to Skelley, and Leighton actually occurred. Nevertheless; he concluded that, although there may have been cause for discharging them, the Respondent was at least partially motivat- ed in taking such action against them because of their union activities. In his view, Respondent would not have meted out the- extreme punishment of discharge "had it not been for the activism of Leighton (and to a lesser extent of Skelley). on behalf of the Union...." We disagree. The Administrative Law Judge's conclusion that the discharges were unlawfully motivated is predicat- ed for the most part upon conjecture and suspicion based on Respondent's history of opposition to union organizational attempts at its plant, and its knowledge that Leighton was one of the leaders in the Union's organizational efforts. These facts, however, -do not establish that Respondent dis- charged Leighton and Skelley because of their activities on behalf of the Union. Nor does the fact that Respondent has in the past been found to have committed unfair labor practices 7 establish that it did so here. While these facts may indeed raise suspicions, there simply is no direct evidence in this record linking Leighton's and Skelley's union activi- ties to Respondent's decision to discharge them. That decision grew directly out of the events of Free Spirit Day. Leighton's and Skelley's excessive absences from their audit stations that day led to a general investigation of the audit department. That investiga- tion, in turn, revealed that the two men were regularly absent from their stations a great deal more frequently than the other audit inspectors. It also led -483 Respondent to believe that they were reporting more inspections than they actually completed. - There is no evidence that the investigation, which resulted in the discharges, was contrived-to establish a . pretext for the discharges. Nor is there evidence that Leighton's and Skelley's union activities entered into Respondent's decision to dismiss them. Notwith- - standing the absence of such evidence, the General 'Counsel contends that the discussions which Leigh- ton and Skelley had with their supervisors about the Union constitute- evidence of animus and give rise to an inference of unlawful motive unrebutted by the Respondent's decision. We do not' agree. These discussions were unaccompanied by threats or other expressions of hostility toward these employees and did not hint at future reprisals if they continued their support of the Union. Furthermore, these conversa- tions were not only remote from but wholly unrelat- ed to the events which resulted in the subsequent discharges. Hence, in the face of Respondent's reasons for the discharges, such conversations do not provide the necessary evidentiary link which would support a finding that the discharges were unlawfully motivated. Moreover, there is no evidence that Respondent treated Leighton and Skelley in a disparate manner when it determined to fire them for what it believed was dishonest conduct. In this regard, the record shows that Respondent has consistently discharged without benefit of warning all employees it believed to have engaged in dishonest conduct. Thus, while Respondent's treatment of Leighton and Skelley, two senior employees, might be consid- ered severe, it was not discriminatory, since the record shows it to have been no more severe than the discipline normally meted out by this Employer to other employees deemed to have engaged in dishon- est practices. - Accordingly, we are constrained to conclude that the General Counsel has not met his burden of establishing by the necessary preponder- ance of the evidence that the discharges of Leighton and Skelley were unlawfully motivated and violated `Section 8(a)(3) and (1) of the Act. 2. As previously noted, the Administrative Law Judge also found that Respondent violated Section 8(a)(1) of the Act by -the ,following conduct of Supervisor Sayre. According to,the credited testimo- ny of employee Fisher, Sayre took a blank union authorization card protruding from Fisher's pocket, told Fisher he "ought to fill it out for no work," then tore up the card and threw away the pieces. The Administrative Law Judge concluded that Sayre's conduct interfered with, restrained, and coerced employees in the exercise of their Section 7 ,rights 7 See cases cited at fn. 5 of the Administrative Law Judge's Decision. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and recommended that Respondent be ordered to cease and desist from such conduct. We do not agree. This insignificant and isolated instance, standing alone, does not warrant a finding of an 8(a)(1) violation. There is no evidence that Sayre was observed destroying the card by other employees or that Fisher told his fellow workers about this incident. Fisher testified that he and Sayre were on friendly terms and had in the past joked about the Union. Moreover, Fisher was unable to recall for which union the authorization card was intended, it having been slipped into his pocket by a fellow employee a few minutes earlier. In these circum- stances, we do not deem the evidence sufficient to establish the basis for an 8(a)(1) finding or to make necessary a remedial order.8 Accordingly, we shall dismiss the complaint in its entirety.9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. s American Federation of Musicians, Local 76, AFL-CIO, 202 NLRB 620. s We agree with the Administrative Law Judge's findings that Respon- dent did not violate Sec . 8(aX3) and ( t) of the Act by its dismissal of employee Dodd. DECISION duly served on the other parties. No objections having been filed, and the proposed corrections being in accord with my recollection of the testimony, the motion is granted. Upon the pleadings, stipulations of counsel, the eviden- ce, including my observation of the demeanor of the witnesses,2 and the entire record in the case, I make the following: FINDINGS AND CONCLUSIONS 1. COMMERCE Respondent is a corporation engaged in the manufacture and sale of bicycles, lawnmowers, and related items, with its principal manufacturing facility located in Lawrence- burg, Tennessee. It has sales and executive offices located in Nashville, Tennessee. During an annual period Respondent, in the course and conduct of its business operations, receives at its Law- renceburg location goods and materials valued in excess of $50,000 directly from points located outside the State of Tennessee. During the same period, Respondent sells and ships from its Lawrenceburg, Tennessee, plant goods and materials valued in excess of $50,000 directly to points located outside the State of Tennessee. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge : This consoli- dated proceeding, tried before me at Lawrenceburg, Tennessee, on January 10, 11, 12, 16, and 17, 1973, with all parties present, involves a complaint issued ' pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), alleging that the Murray Ohio Manufacturing Company (herein the Company or Respon- dent) interfered with, restrained, and coerced its employees in the exercise of rights guaranteed under Section 7 of the Act by engaging in certain conduct described more fully herein, including the discharge of three employees in order to discourage membership in and activities on behalf of International Association of Machinists and Aerospace .Workers, AFL-CIO (herein the Union), in violation of Section 8(a)(3) and ( 1) of the Act. The Respondent, while admitting the jurisdictional allegations of the complaint, denied the commission of any unfair labor practices. Following the trial, oral argument was waived, but helpful posthearing briefs were submitted on March 16, 1973, by counsel for the Respondent and by counsel for the General Counsel, which have been duly considered. Attached to the brief of counsel for the General Counsel is a motion to correct transcript of proceedings, which was 1 Dated September 11, 1972, based upon original charges filed July 7, 1972 (in Case 26-CA-4407), and July 31, 1972 (in Case 26-CA-4438). All dates hereinafter refer to the calendar year 1972 unless otherwise indicated. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Labor Relations History For about the past 16 years, the approximate 2,200 production and maintenance employees of Respondent have been the object of organizational efforts by various labor organizations. Respondent's assistant vice president in charge of manufacturing, Cal Poston, described the situation as "one big continuous campaign" in which there had been "six elections and one big war." 3 Respondent makes no bones about its position vis-a-vis the organiza- tional efforts of its employees, as Poston testified: We, at Murray Ohio, don't believe that we need a third party to run that business. We intend to run this business fair and honest and be fair to our employees, and for a period of 16 years the employees have said they liked it. They have voted out numerous unions. Its no secret that we battled the union. We feel that we have more to offer by managing our Company right than we do with a third party with interference of strikes and lockouts, and all this work interruption. Now, I'm speaking as my position at Murray Ohio as the manager. I'm not speaking for the coal miners 2 Cf. Bishop and Malco, d/b/a Walker's 159 NLRB 1159, 1161. 3 This was an apparent reference to a strike in 1965. THE MURRAY OHIO MANUFACTURING CO. union, I'm not speaking for the garment union, I'm not speaking for the coal industry. I'm speaking strictly for Murray Ohio in my position as management at Murray Ohio, and we do feel that we are capable of running this company for the better benefit of the employees. Now if these and other companies need a union, that's their business. I'm not messing with them. This is my stand at Murray Ohio in my position as management .4 At the commencement of the hearing, counsel for the General Counsel requested that judicial notice be taken of the Board and court cases involving this Respondent which are quoted in the margin.5 This has been done, and while I am aware that the burden remains upon the General Counsel to prove the violations alleged in this case by a preponderance of the substantial evidence in the record herein, the law does not require that the "Board ignore this `rather unsavory labor relations history.' "6 While the Respondent, in its brief, points to the fact that there have not been any reported cases involving the Respondent "in the past 8 years, since 1965," the fact remains that the Respondent's attitude has not changed perceptibly, as indicated by the above-quoted' testimony of Cal Poston. The record reflects that the last major organizational effort at the Respondent's plant was made by the Charging Union in 1971, culminating in an NLRB-conducted election in December of that year, which the Union lost by approximately 200 votes. However, the Union did not leave the scene following this defeat but, as indicated infra, within several months thereafter reignited the campaign. B, The Alleged Discriminatory Discharges of Mannie B. Leighton and James A. Skelley The , above-named workers, both longtime employees with the Company and performing the job of audit inspector during the last period thereof, were discharged on May 5 assertedly for filing false and fictitious reports of inspection. The General Counsel claims that the discharges were really prompted by Respondent's desire to rid itself of two adherents of the Union. We come now to a consideration of the evidence respecting this issue. Leighton commenced working for the Company on July 25, 1956, as a floor inspector, and worked in that position for approximately 9 years. He was then offered, and accepted, a position as foreman in the inspection depart- ment in which he worked for a period of approximately 7 months. However, at his request, he returned to the position of a rank-and-file employee as an inspector in the bike trim department. In 1968, following a period of medical leave, he became an audit inspector on the velo 4 See also on this point, testimony of Vice President Flesher as quoted in Murray Ohio Manufacturing Company, 148 NLRB 1541, 1543. 5 Murray Ohio Manufacturing Co., Lawrenceburg, Tennessee Division, 122 NLRB 1306, enfd. 279 F.2d 686 (C.A. 6, 1960); Murray Ohio Manufacturing Company, 128 NLRB 184; Murray Ohio Manufacturing Company, 134 NLRB 141, enfd. 326 F.2d 509, 516-517 (CA. 6, 1964); The Murray Ohio Manufacturing Company, 134 NLRB 175, enforcement denied 326 F.2d 509 (C.A. 6, 1964); The Murray Ohio Manufacturing Company, 148 NLRB 1541, enfd. 358 F.2d 948 (C.A 6, 1966); Murray Ohio Manufacturing Company, 151 NLRB 1430 (backpay); Murray Ohio Manufacturing Company, 155 NLRB 239; Murray Ohio Manufacturing Company, 156 NLRB 840, enfd 358 F.2d 948 (C.A. 6, 1966). 485 (velocipede or bicycle) line where he worked until terminated as aforesaid.? The job of audit inspector was the last function performed on the production line prior to the product being shipped to the warehouse. Briefly stated, it was the job of the audit inspector to make spot checks of the bicycles or other type of velocipedes coming off the production line after they had been manufactured, painted, partially assembled, and packed in cartons ready for storage or shipment to the customers. The audit inspector would open the sealed carton, 'remove the bicycle, disassemble and assemble it completely, replace it in the carton, tape the carton, and place it back on the line. It was the inspector's function to see that the specifications of the product were complied with during manufacturing, and to report any defects. Written reports of his activities were filed daily by the audit inspector with the supervision of the inspection department. In addition to the requirements of his job at the audit station as described above, the audit inspector was also required to be away from the audit station from time to time. Thus, as Leighton testified without contradiction: A. Well, every time they have a changeover, in running models, I have to go to the bag room and check the inner carton for the next job. The employees in there lay the parts out on the table and I "bring my specifications and go around the table and check each part to see if they have the right ones laid out on the table to pack in these inner cartons to put in the bicycle container. Q. How far away from your station where you set up the bicycles is that bag room? A. Well, its 80 to 100 feet. Q. Now are there any other reasons for why you would not be in that location when you are setting up a bicycle? A. Well, every time that we have a changeover, at every changeover I always run up the line and check to see that they had the right parts on what they had assembled that was coming down the line. And another reason, when I find a bad one, I take it to the repair station, which was up the line, and if I find something wrong with a bicycle, I always run up the line to check other bicycles to see that they have the same thing that the one I had-to see whether anything was wrong. Leighton first became active in the union campaign in August, 1971, when he signed a union card and attended his first union meeting.8 It appears that his interest in the Union was in large part prompted by the fact that Leighton's wife was apparently treated unfairly-at least in Leighton's eyes-while an employee of the Company. 6 N.LR B v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139 (C.A. 1). See also N.L.R B v. Murray Ohio Mfg Co., 358 F 2d 948, 950 (C.A. 6. 1966) where the court approved the Board's taking "into account the long history of the Company's hostility toward the labor union... . 7 Skelley. an older employee than Leighton, had a similar lengthy period of employment with the Company, working continuously for approximately 15 years prior to his discharge. His last 6 years of employment were as an audit inspector. Unlike Leighton , Skelley was never, during his employment history, elevated to the position of foreman. s He testified that thereafter he attended probably 15 union meetings which were held once or twice a month. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, as Leighton testified, shortly prior to the election in December, 1971, Plant Manager Flesher came by his audit station and inquired about the Union and "what the problem was." Leighton advised that it had to do with the way the Company treated his wife and it was his opinion that employees needed the Union for job security.9 The day after the election, Flesher came to Leighton's audit station and bragged that the Company had "laid it on them," to which Leighton responded that "there would be another day." Flesher opined that Leighton was not-the kind of person to be for the Union, but the latter again reminded Flesher that the reason was related to the way the Company treated his wife. It appears that the union campaign resumed about a month following the election, and Leighton once again became active in it. Thus he signed a union card, attended union meetings which were held about once a month, and solicited approximately five or six other employees .to sign union cards.10 Although Skelley had signed a union card in the 1971 campaign, there is no evidence that he actively participated in the 1972 campaign. However, he testified that about 10 days prior to his termination he had the following conversation with his foreman, Murray Marston, at Skelley's work station: They said they were going to try to do something about-for the Inspection Department as it seems things were not going very good in the department. And I told him, Murray, you're going to get me into a lot of trouble, I'm afraid. He said, Oh, no, no, I'm not going to do that. I just want to try to help out. So I went ahead and told him that I hadn't been loyal to the Union as I should be, but that I was still working for it. Q. (By Mr. Agee) All right. Go ahead. A. (Continuing) And that I didn't believe that he was going to help much. George Taylor wasn't very interested in this department, I told him, or anyone in it, I didn't believe. Q. Mr. Marston have anything to say? A. Oh, yes. At the time I told him I was still working for the Union deal and he said, Well, I didn't know that, and that's when he walked away, as best of my recollection.11 During the latter part of February, Leighton had a conversation with the general foreman of the inspection department, Joe Stanford. According to Leighton' s testi- mony, Stanford approached his audit station and inquired what the Company could do to improve working condi- tions and make the people more satisfied. Leighton 9 Flesher did not testify at the hearing, Respondent's counsel explaining that he was in the hospital at that time. 10 Leighton possessed a "volunteer organizer" card which he had secured during the 1971 campaign (see G. C. Exh. 6). 11 Testimony of Skelley. Marston was not called as a witness, although the record shows that he was still employed by Respondent at the time of the hearing. 12 Leighton interpreted this remark to refer to the organizational activity of some of the employees . Under all circumstances , I agree with him. Cf. Angwell Curtain Company, Inc. v. N. L. R. B., 192 F.2d 899 (C.A. 7), where it was found that a management representative 's reference to "this thing" meant "union activities." 13 1 credit Leighton's version of the conversation. In addition to demeanor considerations, I consider it unlikely that Stanford would have suggested that they could change the method of bidding jobs, to which. Stanford responded that Leighton "griped about everything the Company did," and suggested they go to Stanford's office to discuss the matter in private. After entering the office, Stanford locked the door and advised Leighton that he thought that Leighton's wife was the problem. Leighton conceded that the dismissal of his wife was a principal factor in persuading him that the employees needed a union in order that they might have better job security. Stanford responded that "we've got a good thing going here if some of you don't mess it up." 12 Stanford testified, in substance, that on February 29 Leighton came into his office complaining about the leveling device and paint on an exerciser. Stanford explained that the Company had taken those matters into consideration and had, nevertheless, decided to produce. the item rather than send people home. At that point Stanford told Leighton to take a seat for a moment and proceeded to ball him out for "bitching and whining"- that "it looked like we weren't doing anything right." Leighton acknowledged that he had been rather critical and attributed it to the manner in which his wife had been treated. Stanford conceded that he had locked the door during the interview "probably [because] somebody started to come in." He denied that the Union had been mentioned during the conversation, or that he had referred "to a bunch of guys trying to mess up a good thing." 13 Another incident occurred in the plant in March or April which bears upon the Company's knowledge of Leighton's preeminence in the resumption of the Union's campaign. One day at the water fountain near employee Kenneth Butler's audit station, the latter stated to Leighton (whose audit station was relatively close by) that he was going to the office to "make some brownie points." Leighton responded that Butler had lost all of his points during the last union campaign when Leighton signed him up, and that he (Leighton) had the credentials to sign him up again, simultaneously pulling out his union organizer's card. About this time, Supervisor Warren Davis walked up and opined that Leighton had no business trying to influence other employees in that manner. Whereupon, Leighton responded that if it was wrong for him to attempt to influence employees into the Union, it was similarly wrong for Respondent's officials to assemble employees in the warehouse and attempt to influence them against the Union (as apparently had been done prior to the last election). At that point the meeting broke up, apparently because it was "getting too hot." 14 All parties acknowledge that the events which com- bolted the door had he not desired to communicate with Leighton concerning matters more significant than Leighton's criticism of the Company's production policy. 14 The foregoing findings are based upon the credited testimony of Leighton, which was corroborated in its essential respects by that of Butler and Gerald Ezell. Davis acknowledged that the conversation occurred but placed it on December 7, 1971. According to Davis, Leighton said that he felt that the Union should have equal time to talk to the employees like [Vice President] Flesher, and Davis responded that they thought it was a good thing that Flesher talk to the employees and tell them the advantages they had at Murray Ohio . Davis' testimony is not credited for two reasons: (1) his denial that he took Leighton's statement to mean that Leighton was for the Union is patently incredible: and (2) he attempted to place the conversation in December, 1971 rather than later which would be more THE MURRAY OHIO MANUFACTURING CO. menced the process leading, to-the discharge of Leighton and Skelley started on April 13, which was "Free Spirit Day" 15 at Respondent's plant. On that day, officials from Sears Roebuck Company were present at the plant for a tour and inspection thereof to view the manufacture of the Free Spirit bicycle. It is likewise conceded by all parties that much time and effort had been spent by the officials and employees of Respondent in preparation for this day, and all personnel were cognizant of the importance thereof. Assistant Vice President -Poston conducted the tour through the plant and showed the Sears officials the machinery and processes which reflected the Respondent's ability to produce the bicycles. Poston-testified that during the course of the tour, which took place in the morning of the 13th, he noticed on two occasions that the audit stations of Leighton and Skelly were vacant, and this embarrassed him. After lunch, on his way to the ware- house, Poston again noticed that there was "no activity" at the audit stations of the two men. At the close of the day, Poston spoke with Bill Rudd, Respondent's quality control manager, evincing great concern about the absence of these people from their audit stations because, as Poston testified: The supervision had been previously warned to have these people on the ball. This was,Free Spirit Day. We wanted to show a great activity -and put on a great show, and I felt the whole system had fallen apart. I couldn't see any supervision and I couldn't see any audit inspectors. I was deeply concerned. Poston determined that an- immediate investigation should be made of all audit stations (5 on the first shift, and 2-1/2 on the second shift) by himself and Rudd the following day. It is deemed significant that Poston determined that the investigation should be conducted solely and in secret by, himself and Rudd because,. as he explained, "at this stage of the game I was real concerned over the inspection supervision. I wasn't sure that they were even functioning as they should function, much less the audit inspectors. I didn't want any more faces in the picture than were absolutely necessary. The more people you get involved in anything-it can leak out and things do leak out. So, I wanted this investigation to be entirely pure so I confined it to myself and Bill Rudd." The following day, April 14, Poston and Rudd per- formed work sampling16 on all audit stations and found that' Leighton's and Skelley's audit stations were active about 45 to 50 percent of the time whereas the other audit stations were active approximately 85 to 90 percent of the time.17 It was determined to repeat the procedure the following Monday, April 17, with substantially the same results. On April 18 it was determined to keep these two stations under 100 percent observation, meaning that the two stations were constantly watched the entire 8 hours of approximate to Leighton's -discharge. However, it is more certain that the incident took place at the later date since Davis testified that the conversation occurred while Ezell worked under Foreman Wimbs Since Ezell only worked-under Wimbs for "4 to 6 weeks prior to Leighton's discharge," it is apparent that the conversation did not take place in December. - 15 So named in honor of the Free Spirit bicycle which Respondent was manufacturing for one of its principal customers, Sears Roebuck Company, 487 the day shift. The purpose of this was presumably to make a more complete investigation of the actual activity going at the audit-stations, as well as being able to -check the number of setups, of.bicycles being performed by the audit inspectors against the reports which they turned in at the end of the day. Poston testified that during this period, he noticed "the absence of supervision" as well as the fact that Skelley did not on some occasions complete his setups, i.e., would not completely assemble the bike on the stand. Poston further testified that on April 18 Skelley reported he had set up I1 bicycles whereas he was actually observed setting up 5, and that Leighton reported that he performed 12 setups whereas he actually did 6. " On April 19 and 20, Poston and Rudd resumed the work sampling procedure and came up with- substantially the same results as had been obtained on April 14 and 17. It was at this point that Poston, for the first time, involved anyone else in the .investigation. He gave a full report of his and Rudd's activity to the Vice , President in charge of Personnel, Cromer Smotherman. The latter was also "deeply concerned," approved those procedures which Poston had instigated, and suggested that another 100 percent sampling be conducted. This was done by Poston and Rudd on April 21, and a result of that check, according to Poston's testimony, was that Skelley reported 11 setups and actually did 7 while Leighton reported 12 and actually set up 7. This was reported by Poston to Smotherman on April 24. Smotherman stated that he wanted to be "damn sure" of what was going on and asked Poston whether or not there was any other way of checking. Poston, replied that they could perform a "warehouse check." That is to say, each production line has its own conveyor to the warehouse and, as previously described, the audit station is at the end of a production line. Furthermore, when the audit inspector completes a "setup," he retapes the carton. This distinguishes it from the regular, uninspected cartons which are merely glued together. Accordingly, on April 25 Poston directed the general foreman of the warehouse to set aside all taped cartons on the production lines upon which Leighton and Slcelley were audit inspectors. Poston testified ,that on April 25 he checked the audit reports of Leighton- and Skelley against the cartons which had been set aside on their production lines and found five false reports for Skelley and three false reports for Leighton; The other audit stations checked showed that there was consistency between the reports and taped cartons set aside in the warehouse. These results were reported by Poston to Smotherman on April 27, and the latter stated that he was satisfied with the investigation and felt that it was time to confront the individuals with the facts. However, prior to doing so, he wished to-and did-advise Vice President Flesher of the investigation and secure his agreement with Smotherman's to be introduced at the Olympic games in Munich, Germany. 16 Poston defined work sampling as "a procedure that you use to find out if there is activity going on at a given point. It could be used to measure work It could be used to measure the flow, it could be used to measure anything its just a sampling procedure and is very indicative of what is taking place " 11 Poston defined "active" as meaning that physical activity was present at the station 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendation that the two men be suspended pending further investigation. On May 2, a meeting was held among Smotherman, Poston, Rudd, Chief Inspector George Taylor, general foreman of the inspection department, Joe Stanford, and Buck Knott, the personnel director, in Smotherman's office. At that meeting, Smotherman ad- vised Taylor, Stanford, and Knott for the first time of what had been going on, and instructed them that the decision had been made to suspend Leighton and Skelley, and to also advise their immediate supervisors (Marston was Skelley's foreman ; Wimbs was Leighton's) of what had taken place. Smotherman directed that Taylor and Stan- ford confront Leighton and Skelley concerning the facts of the investigation and to "get their side of the story;" that Taylor and Stanford were "free to reveal anything except the names of the individuals who did the investiga- tion...." On the afternoon of May 2, at the close of the workday, Leighton and Skelley were called individually into Taylor's office and told of the investigation and that they were being suspended pending further disciplinary action because they had been turning in false or fictitious setup reports. Both men vehemently denied any wrongdoing and considered that they had been the object of a frameup. When Leighton reached home after work that day he telephoned his immediate Foreman Hugh Wimbs, as follows: A. Upon reaching home, I was kind of upset, and I picked up the telephone and called my foreman, Hugh Wimbs, and I asked him, I said, Hugh, did you know that they had me in George's office? And he said, Some of them in the parking lot said that you were in George's office, and I said, Do you know what they wanted? He said, No. And I said, They accused me of turning in more set-ups, more reports than I was making set-ups. He said, They did? And I said, Yes. Well, he says, I didn't know anything about it. It's news to me. I thought you were doing a good job. And I said, Goodbye, and hung up. Q. Why did you call Hugh Wimbs? A. Because I didn't really believe that he knew anything about it because nobody had ever breathed to me that I had not been doing my job. They hadn't even hinted at it.18 The following day, May 3, Smotherman received a report from Taylor and Stanford (in the presence of Knott and Poston) as to the reaction of Leighton and Skelley. Taylor advised that both had firmly denied that they had done anything wrong. However Poston advised that if he was going to be responsible for the quality of the product there would have to be reliable reporting. Smotherman stated that he had come to the conclusion that "the right thing to do" was to discharge Leighton and Skelley subject to 18 Wimbs was not called as a witness at the hearing, and it appeared that he may have not been telling Leighton the entire truth respecting his knowledge of the circumstances since Stanford testified that on the morning of May 2 he and Taylor had a meeting with all of the first shift supervision including Wimbs and advised them of what had occurred in the investigation and what decision had been reached with respect to Leighton and Skelley. Marston, Skelley's foreman, was in the hospital on May 2 and was advised personally about noon that day by Taylor of the events. securing Flesher's agreement. This was done on May 4, and the two men were called in on May 5 and advised by Personnel Director Knott of the decision.19 Following the discharge, Leighton requested and re- ceived the opportunity of discussing his discharge with high management officials including Vice President Flesh- er and President Bill Hannon. In these meetings, Leighton protested his innocence and claimed the Company really discharged him for his union activities. When he threat- ened to take the case before the NLRB, Flesher stated that Leighton could not prove how many setups he was making. Leighton conceded that, but claimed that he could prove that he was doing a good job, which Flesher did not deny.20 Analysis and Concluding Findings as to Leighton and Skelley The legal principles governing the disposition of a Section 8(a)(3) allegation were well stated by my colleague, Administrative Law Judge Samuel M. Singer, in a recent case: 21 The question whether Respondent discriminatorily discharged [the employee] presents, of course, a question of fact. The Board and courts have repeatedly observed that motive for an employer's action in cases of this type is usually determinable only by circumstan- tial evidence since direct evidence of a purpose to discriminate is rarely obtainable. Corrie Corp. of Charleston v. N. L. R. B., 375 F.2d 149, 152-153 (C.A. 4) and cases cited. "It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct eviden- ce." N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). Moreover, "the rule is well established that although ample valid grounds may exist for the discharge of an employee, that discharge will violate Section 8(a)(3) if it was in fact motivated, even partially, by the employee's union activity. Thus, where there are legitimate reasons for the discharge of an employee, the question is whether those were in fact the only grounds for the dismissal, or whether they were `put forth as a mere pretext to justify an impermissible discharge.' " N. L. R. B. v. Pembeck Oil Corp., 404 F.2d 105, 109-110 (C.A. 2). See also, N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7). The "Board could well determine on the whole record that `but for' their union activities . . . employees would not have been discharged." Self-Reliance Ukrainian American Cooper- ative Assn., Inc. v. N.L.R.B., 461 F.2d 33 (C.A. 7, 1972); see also Sweeney & Company, 437 F.2d 1127, 1133 (C.A. 5). Applying the foregoing principles to the facts in the case at bar, I am convinced, and therefore find, that the 19 In view of his age, Skelley was given the option of accepting voluntary retirement in the amount of $34 per month in lieu of discharge . However, Skelley declined the offer. 20 Testimony of Leighton. Flesher was not called as a witness, counsel for Respondent explaining that he was in the hospital at the time of the hearing. 21 Mid-City Wholesale Meat Company, 202 NLRB 627: see also N.L. R. B. v. Murray Ohio Manufacturing Company, 358 F.2d 948, 950 (C.A. 6. 1966). THE MURRAY OHIO MANUFACTURING CO. 489 discharges of Skelley and Leighton by the Respondent on May 5 were motivated, at least in substantial part, in order to discourage membership in the Union, in violation of Section 8(a)(3) of the Act. It should be noted that no single factor contained in the discussion, infra, is, in my view, of sufficient significance to weigh the scales in favor of the General Counsel; however, the totality of the evidence in the record considered as a whole, against the backdrop of the Respondent's history of violations of the Act, convinc- es me that "but for" the union activities of the two men involved, they would have not have been discharged on May 5.22 We begin with the fact that both men were longtime employees with the Company, and Respondent did not offer any evidence-or even intimate-that they were other than exemplary employees.23 Indeed, as the record shows, Leighton served a stint as foreman for the Respondent. Neither had ever been disciplined or even cautioned concerning any improper work performance. Nevertheless, after Poston noticed on several occasions, that they were not at their audit stations during Free Spirit Day, he embarked upon an extensive, secret investigation of the whole department. I agree with counsel for the General Counsel that this conduct warrants at least a suspicion as to the Respondent's intentions. In the first place, Poston must have been aware that the duties of an audit inspector necessarily require that he be absent from his duty station from time to time in connection with his other job functions. Secondly, it seems somewhat strange that out of a plant employing over 2,000 people, Poston testified that he remembered only these two were absent from their duty stations during the tour. Finally, there is no evidence that there had been any complaint by either Respondent's officials or salesmen or customers that there was anything irregular or unusual occurring in the inspection department which was of such significance as to warrant such a full scale investigation. Had Poston been legitimately concerned about the reasons for their absences from their duty stations on this occasion, it would seem more reasonable and prudent that he at least inquire of either lower level supervision or of the two men themselves prior to commencing such an investigation. Moreover, the manner in which the investigation was carried on raises suspicion. That is to say, having reached the decision to investigate, it would seem reasonable that Poston would have at least trusted the head of the inspection department to become involved even if he sincerely wished to also observe lower-level supervision without their knowledge. It will be recalled that after the two men had been observed for 4 days on both a work sampling and 100 percent basis, the results were, for the first time, revealed to a third party, the vice president in charge of personnel, Cromer Smotherman. The latter suggested further investi- gation along the same lines, which was accomplished with similar results. It would seem that, at that point, some decision might have been reached as to the appropriate sanction to be imposed; yet Smotherman wanted to be "damn sure" before any action was taken. Accordingly, Poston then conducted the warehouse check and reported the results to Smotherman who then made the decision to suspend the men without either having heard their side of the story, or, indeed, even discussing the matter with lower supervision in the department, much less receiving their recommendations. Such conduct has been held to consti- tute evidence of discriminatory intent 24' Smotherman testified that he reached the decision to discharge the two men on May 3 after having received reports of the interviews which occurred on the afternoon of May 2. This, even though the reports indicated that both men vigorously denied having engaged in any wrongful conduct. Neither man was shown the records which formed the basis of the decision to discharge them nor were they told who conducted the investigation. Under such circumstances, it is apparent, as Vice President Flesher recognized, neither of the two men could prove that they actually performed the setups which the Compa- ny claimed were fictitious. It is evident that in this analysis I have assumed, without deciding, that the information gathered by Poston and Rudd during the investigation was accurate and truthful. This has given me considerable pause because, as noted, both Leighton and Skelley vigorously denied any wrongdo- ing and both impressed me on the stand as honest witnesses; moreover, neither had any real motive to issue fictitious reports. That is to say, both were hourly paid, and their takehome pay was not in any way conditioned upon the number of setups they performed. Nor were there any standards or quota imposed by the Company respecting the number of setups the audit inspectors were required to perform in any given time period. Finally, as previously indicated, there had not been at any time in the past any warning or discipline imposed or even threatened against the men for not performing their work properly. Under these circumstances, it is very difficult for the writer to believe that the men engaged in the wrongful conduct asserted; however, for the purpose of deciding the ultimate issue of discrimination, I will assume that the conduct ascribed to them occurred because, as indicated, I find that 22 It should be further noted, in this connection, that had Skelley's case been presented alone, a different result may well have been reached in view of the relative lack of union activities on his part. However, the fact is that it does not stand alone; it was considered by the Respondent and litigated by the parties as tied to that of Leighton and is therefore so treated by the writer. 23 "The discharge of qualified workers who are also active unionists is a circumstance of suspicion which may give rise to a justified inference of violative discrimination"; in such a case "the issue must . be determined by the degree of significance to be given to [the employers ] explanation of the reason for the discharge " Rocky Mountain Natural Gas Company v. N.L R B, 326 F.2d 949, 952 (C.A. 10, 1964), quoted in Betts Baking Co, Inc v. N.L.R B., 380 F.2d 199 (C.A. 10, 1967) 24 Cf. Rockingham Sleepwear, Inc., 188 NLRB 698, United States Rubber Company v. N L.R B., 384 F.2d 660 (C.A. 5, 1967), Marsh Supermarkets, Inc, 140 NLRB 899, 913; Kingsford Motor Car Company, 135 NLRB 711, 722 I note that although both Poston and Smotherman expressed great concern over the possible role of lower supervision in the alleged irregular activities going on in the department, neither Marston nor wrmbs were even contacted about the matter until after the decision was made to suspend Leighton and Skelley. Smotherman testified that Poston reported that the foreman were performing their jobs but that they "had too big an area to cover," and "were not able to spend a whole lot of time at any particular portion of the area involved " Subsequent to the discharges, the Respondent hired another foreman. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discrimination under the Act occurred even though cause for the discharge may have existed.25 Respondent, nevertheless, defends its action on the ground that it has consistently discharged employees in cases of dishonesty or theft, and submitted some of its records in support of such contentions. Without detailing all of the cases shown, I note that none of them are similar to the cases at bar . That is to say, none of the cases involved employees of such long standing tenure as Leighton and Skelley , and substantially all of them dealt with situations where the particular employee involved had something to gain by engaging in the conduct for which he was discharged. Thus, the cases dealt with either outright theft or involved an employee who worked on incentive basis so that he stood to gain by filing fictitious reports of the work performed. Moreover, the record reflects that the Respondent maintained a system of written warnings and suspensions, i.e., lesser discipline, which are from time to time imposed upon employees for engaging in conduct not dissimilar from that assertedly engaged in by Leighton and Skelley. Thus, in Murray Ohio Manufacturing Company, 155 NLRB 239, there was an alleged case of discrimination respecting an employee Gray . As reported by the Trial Examiner, it was Gray's job as an inspector on the bicycle line to check bicycle wheels to determine whether or not they were "true." Although Gray was described by Foreman Stanford as not "a very good" employee, and one who required "fairly close supervision" he was nevertheless given only a 3-day disciplinary suspension when Stanford observed him "stamping tickets denoting inspections for bicycles which had not yet reached him on the line." 26 Thus it appears that employee Gray, in the prior case, was given a 3-day suspension for engaging in conduct which is substantially similar to that engaged in by the two men here involved, i.e., issuing fictitious reports for work supposedly performed but not actually done. In sum, without denigrating the importance of the job or the seriousness of the offense, I remain convinced after a consideration of all of the evidence that had it not been for the activism of Leighton (and to a lesser extent of Skelley) on behalf of the Union, Respondent would not have meted out to them on May 5 the most extreme form of disciplinary action within its power. As Smotherman testified, each individual case is "evaluated on its merits," and it strains credulity to believe that Respondent would have rid itself of these two worthy employees had not another factor been involved. In these circumstances, the following language of the Court of Appeals for the Ninth Circuit in Shattuck Denn Mining Corporation [Iron King Branch] v. N.L.R.B., 362 F.2d 466, 470 (1966), is appropriate: If he [the Trial Examiner ] finds that the stated motive 25 The "mere existence of a valid ground for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964). 26 Id. at 249. 27 Testimony of Dodd. Roberson admitted talking to Dodd about 2 weeks before the election , at the latter's work place . He told Dodd about the for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. In view of all of the foregoing, I find and conclude that the discharges of Leighton and Skelley by the Respondent on May 5 were in violation of Section 8(a)(3) and ( 1) of thee Act, and I will recommend an appropriate remedy. C. The Alleged Discriminatory Discharge of Archie Dodd Dodd commenced working for the Company in Septem- ber, 1966. On the last day of his employment, April 24, he was working as a welder's helper on the second shift. Dodd testified that he participated in the union cam- paign in 1971 , attending union meetings and signing up several of his fellow workers . He also testified as to an incident during that campaign wherein he and several of his coworkers were observed by their foreman reading a piece of union literature which had been distributed at the plant gate. A few days before the election, Dodd's foreman, Lambert Roberson, interrogated Dodd as to his feelings concerning the Union. The latter attempted to convey to Roberson the information that he was not for the Union27 The record is silent as to any union activities engaged in by Dodd following the election in December, 1971. The events leading up Dodd's termination commenced on the evening of April 24 when he received a flash burn on his eyes while at work. He attempted to treat his eyes at home for the next day or two, without success.28 On the third day following his injury he consulted a general practitioner, Dr. Ghosh, in Waynesboro, Tennessee. According to the testimony of Dodd, Ghosh told him that he had "burnt eyes," and patched his right eye. However, Dodd's eyes continued to bother him, and about a week later he contacted Ghosh who in turn referred him to an eye specialist, a Doctor Hardiman, in Florence, Alabama. The latter examined Dodd on May 2 and reported that "physical examination , using a microscope and stain technique, revealed no evidence of a flash burn , no disease of the cornea." 29 Hardiman gave Dodd some drops to soothe his eyes and released him. Sometime during the month of May, Dodd became embroiled in a fight in a beer hall in Bear Creek, Tennessee, and sustained a blow on his forehead with a club or a stick . The record reflects that a report of this incident reached the Respondent 's plant. On May 30, Dodd, having secured a release to return to benefits that employees received by working at Murray Ohio to which Dodd responded, "You don't have to worry about me, I'm not for the Union." 28 He sent word to the Company of his absence and the reason therefor through a fellow employee. There is no contention by the Respondent that a reason for the termination was Dodd's failure to originally report to the Company that he would not be at work because of an injury. 29 Resp. Exh. 1. THE MURRAY OHIO MANUFACTURING CO. 491 work from Doctor Ghosh, appeared at the dispensary of the Respondent's plant 30 In addition to the return-to-work slip, Dodd also advised the nurse that he had seen Doctor Hardiman and showed her a receipt for $10 from Hardiman evidencing an office visit on May 2. The nurse told Dodd that because of the unusual length of the disability (her experience with employees who suffered flash burns was that the injury was relatively minor and did not require the employee to be away from work for more than 2 or 3 days), she would have to discuss the matter with her superior, Safety Director Doug Cone. Cone also felt that "it just isn't possible for a man to be out 30 days with a flash burn," and therefore recommended to Personnel Director Buck Knott that Dodd not be cleared to return to work until an investigation of the case could be made. Knott agreed, and Cone thereupon advised Dodd that he could not be cleared to return to work pending such investigation. On May 31, Dodd returned to the office of Doctor Hardiman who again examined his eyes. Again, Hardiman reported that he "could find no physical abnormality that would explain this discomfort . . . I find no evidence of a flash burn on his examination." 3' The same day, Cone called Hardiman who orally reported that he could find no evidence of a flash burn when he examined Dodd on May 2, and that there was not anything wrong with his eyes that could be job-connected.32 On June 1, Cone reported the results of his investigation to Personnel Director Knott, and they agreed that the case should be discussed with Vice President Cromer Smother- man. On June 2, Cone, Knott, and Smotherman met and agreed that Dodd should be discharged for such an unusually long absence from the plant without sufficient excuse. Smotherman, in accordance with a company rule that the impending discharge of any employee must have the approval of the plant manager, secured Flesher's acquiescence. On June 5, Dodd was called into the plant and interviewed by Personnel Director Knott who advised of the decision to discharge him "for an unusually long absence of 30 days." Dodd protested that he had a release from Doctor Ghosh coveting this period of time and could not understand why the Company would not accept it. However, Knott advised that under the particular circum- stances of his case this could not be done.33 Analysis and Concluding Findings as to the Discharge of Archie Dodd Although suspicions are aroused when an employer such as Respondent discharges an employee whose employment record is not otherwise marred, merely because he has remained away from the plant with an illness which does 30 It is customary procedure for an employee who has been away from work due to illness to report to the dispensary prior to commencing work. 31 Resp Exh. 1. 32 Cone, as safety director, also had the responsibility of investigating workmen's compensation cases since Respondent is self insured. There was, however, no evidence that Dodd ever made a claim for workmen's compensation as a result of this injury, and Respondent does not claim that the discharge resulted from any false or irregular claims by Dodd. 33 Cone explained that the Respondent did not have confidence in Doctor Ghosh because he was very difficult to communicate with, and not ordinarily cause such a rsult, I am not persuaded that the General Counsel ha- otistained his burden of proof that the causative factor related to Dodd's union activities. In the first place, such activities were minimal and remote. They occurred some 6 months prior to the discharge and, moreover, the remarks made by Dodd to supervision were ambiguous insofar as they reflected his actual sympathies. Under these circumstances, the fact that "Respondent's foremen had instructions to learn what employees were for the Union in each department and report this to their superintendent, who in turn, reported it to Personnel," 34 sounds somewhat hollow. It must be recalled that, after all, the Union received some 900 votes in the December election, and it is therefore reasonable to suppose that any subsequent discharge had an approximate 40-percent chance of falling upon an employee who cast his vote for the Union at that time. The record is bare as to any word or action engaged in by Dodd following the election indicating a prounion bias, which lower supervision could report to management. Secondly, there is no evidence that any nonunion employee stayed away from work as long as Dodd, and was not discharged. It seems evident from the record that Dodd may well have returned earlier to work had it not been for his unfortuate experience in the beer hall, and that the result of such incident may well have contributed to his eye trouble. This incident was known to Respondent and was probably a factor in reaching the conclusion that Dodd's absence was not solely related to a flash burn. Although, as stated, the circumstances are suspicious and the refusal to reinstate to employment an employee with a satisfactory work record under such circumstances as here existed, "is not the ideal example of employer-employee relationship," 35 nevertheless, the undersigned is not per- suaded that on a preponderance of the evidence Dodd was denied employment for a cause other than that assigned by the Respondent, namely, that his length of absence for an asserted flash burn was unduely lengthy. D. Alleged Interference, Restraint, and Coercion 1. By Jasper Sayre Employee Raymond Fisher testified that around the first part of June he received a union card from another employee and placed it in his bottom, left hand pocket. A short while later, Foreman Jasper Sayre came by his work station, noted the card sticking out of Fisher's pocket, took it out of his pocket, and asked Fisher what it was. Fisher responded that it was' a union card, to which Sayre replied that Fisher "ought to fill it out for no work." Sayre then walked off, still holding the card until he came to a garbage lacked promptness in getting employees back to work after minor illnesses and minor accidents. In addition, Ghosh apparently performed "over treatment" of illnesses, which inflated Respondent's insurance costs Moreover, both Smotherman and Cone testified that it was company policy that where an employee has consulted a specialist in addition to a general practitioner, the Company relied more heavily on the diagnosis of the specialist All of the foregoing testimony was uncontradicted and unim- peached. 34 General Counsel brief at p 15 35 See Augusta Chemical Company, 83 NLRB 54, 74 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can about 30 feet down the aisle. At that point, he tore up the card and threw the pieces in the garbage can.36 Sayre, who had known Fisher for some 10 years, admitted having had conversations with the latter about the Union, but not since December 1971. He denied having taken a card from Fisher's pocket. However, Fisher impressed me as a honest and truthful witness, and I do not believe that he fabricated the incident. Accordingly, I find that it occurred substantially as he testified and that such conduct constituted interference, restraint and coer- cion of employee rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1). 2. By William Bradley The complaint alleges that Bradley "created the impres- sion of surveillance of an employee's union activities by telling an employee that Bradley had heard that the employee had gotten cards signed for the Union." The issue arose during a conversation between employee J. T. Rich and Bradley, a personnel manager, in which Rich was seeking employment by the Respondent for Rich's son. During the conversation, the subject of the Union arose and Rich testified that during that conversation he told Bradley that "I had gotten cards signed." Although Rich appeared quite confident that Bradley knew the employees who "got cards signed," he could not recall that Bradley made such a statement. Rather, he appeared to base his feeling on the rather nebulous supposition that "news like that gets around over a plant." Bradley denied making the statement. Under all circumstances, and considering the vague and ambiguous testimony of Rich, I find and conclude that the General Counsel did not prove this allegation of the complaint by a preponderance of credible evidence. Accordingly, I shall recommend that the complaint, to that extent, be dismissed. W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's inter- state operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Mannie B. Leighton and James A. Skelley in order to discourage union membership among its employees, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By engaging in the conduct described above respect- ing its supervisor Jasper Sayre, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not commit an unfair labor practice by discharging its employee Archie Dodd, or by engaging in the conduct ascribed to its supervisor, William Bradley. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against his employees, Mannie B. Leighton and James A. Skelley, I will recommend that the Respondent be ordered to offer them immediate reinstatement to their former or substan- tially equivalent position, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices committed by the Respon- dent were of a character which go to the very heart of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act.37 [Recommended Order omitted from publication.] +6 Testimony of Fisher. 37 N. L. R. B. v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941).