Westmoreland Kitchen, Inc.

WESTMORELAND KITCHEN, INC. 153 Westmoreland Kitchen , Inc. and Victoria Bobnar Errett. Case 6-CA-67 10 February 21, 1974 employees that Cunningham would close the plant if they persisted in asserting themselves through their grievance committee." See N.L R.B. v. Gissel Packing Co, Inc., 395 U.S. 575, 618-620 (1969). DECISION AND ORDER BY CHAIRMAN MII LER AND MEMBIzRS FANNING AND PI:NELI0 On October 30, 1973, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions as modified herein. We disagree with the Administrative Law Judge's finding that Respondent's President Cunningham did not violate the Act at the March 26 noon meeting with employees when, in response to employee Ruffner's complaint about Respondent's incentive plan, Cunningham retorted that "if he did not like the incentive plan, he could find a job elsewhere." In our view, Cunningham's statement constituted an implied threat of discharge and violated Section 8(a)(1).2 Robert D. Loggins, Ronnv M. Loggins and Randy Parker d/h/a Loggins Meat Co., 199 NLRB 291, at section 111 B 2 of the ALJD. We further find, contrary to the Administrative Law Judge, that Cunningham violated Section 8(a)(1) at meetings on March 28 with both the grievance committee and the employees when he said "if you want to run the plant, I'll just pack up and leave, you can have everything. T don't have to take this." The Administrative Law Judge does not specify the rationale on which he relies, but in our view none of his reasoning concerning other events on that date can be applicable. We find that these statements unlawfully imparted a veiled threat to the i The Respondent excepted to the Administrative Law Judge's finding that Respondent violated See 8(a)(1) of the Act by promising a benefit to its employees in the form of a steak and beer party to deter them from exercising their right to engage in protected activity . Since we have decided to affirm the Administrative Law Judge's findings that Respondent interfered with and restrained the employees in the exercise of their rights guaranteed in Sec 7 of the Act in violation of Sec 8 (a)(i) by threats, surveillance, and the impression of surveillance of their protected activities, we find it unnecessary tc pass on the Respondent 's offer of a beer and steak party inasmuch as such a finding would he cumulative and would not affect the remedy which we have provided herein. 2 Chairman Miller would affirm the Administrative Law Judge's finding that this remark did not constitute an unlawful threat of reprisal . The record ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Westmoreland Kitchen, Inc.. Hempfield Township, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against, employees in regard to hire or tenure of employment, or any term or condition of employ- ment, because of their committee or union or protected concerted activities. (b) Threatening employees with discharge and other reprisals because of their committee or union or protected concerted activities. (c) Threatening employees with plant closure and other reprisals because of their committee or union or protected concerted activities. (d) Engaging in surveillance of employees' commit- tee or union or protected concerted activities. (e) Creating the impression of surveillance of employees' committee or union or protected concert- ed activities. (f) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may he affected by lawful agreements in accordance with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Victoria Bobnar Errett immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to her seniority, or other rights previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her in the manner set forth in shows that Cunningham made this statement as part of a discussion about the incentive plan with Ruffner at the employee grievance meeting. In the course of this discussion, Ruffner expressed the belief that higher wages should he substituted for the incentive plan Cunningham insisted that he would not change the incentive plan Inasmuch as Cunningham c statement was made in the context of a discussion of Respondent's wage structure, the Chairman would not find that this remark implied a threat of discharge Chairman Miller would not characterize these comments as threats by Respondent to close its facility In his view, these statements represented a permissible expression of Cunningham's frustration in give-and-take negotiations on employee demands Mike Velrc, Sr, Mike Velvc, Jr.. Ross Velvs, Rose Scarelli and Zoera Halgis, Copartner, d/b/a R c& M Electric Supply Co. 200 N LRB No 59 209 NLRB No. 34 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the section of the Administrative Law Judge's Decision entitled The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at Respondent's plant at Hempfield Township. Westmoreland County, Pennsylvania, copies of the attached notice marked "Appendix.'"' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to .1 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, it has been found that we violated the National Labor Relations Act and we have been ordered to post this notice and to keep our word about what we say in this notice. WE WILL offer to Victoria Bobnar Errett immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position, without preju- dice to her seniority or other rights previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her. WE WILL NOT discharge or otherwise discrimi- nate against employees in regard to hire or tenure of employment, or any term or condition of employment, because of their committee or union or protected concerted activities. WF WILL NOt engage in surveillance of our employees' committee or union or protected concerted activities. WE WILL NOT create the impression of surveil- lance of our employees' committee or union or protected concerted activities. WE WILL NOT threaten employees with dis- charge or other reprisals because of their commit- tee or union or protected concerted activities. WE WILL Nor threaten employees with closure of our plant or other reprisals because of their committee or union or protected concerted activities. _ WF WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that such rights may be affected by a lawful agreement in accordance with Section 8(a)(3) of the Act. WESTMORELAND KITCHEN, INC. (Employer) 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 he 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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION STACEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on August 21 and 23, 1973, at Pittsburgh, Pennsyl- vania. The charge was filed on May 8, 1973 . The complaint in WESTMORELAND KITCHEN, INC. this matter was issued on June 22, 1973. The issues concern (1) whether Respondent discriminatorily discharged Victo- ria Bobnar Errett in violation of Section 8(a)(3) and (1) of the Act, and (2) whether Respondent engaged in acts of interference, restraint, and coercion (interrogation, promis- es of benefits, threats, and creation of impression of surveillance) in violation of Section 8(a)(1) of the Act. All parties were afforded full opportunity to participate in the proceeding . Briefs have been filed by the General Counsel and Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT 1. TILE BUSINESS Or THE hMPLOYER The facts herein are based upon the pleadings and admissions therein. Westmoreland Kitchen, Inc., the Respondent, a Pennsyl- vania corporation with its principal place of business in Hempfield Township, Westmoreland County, Pennsylvani- a, is engaged in the manufacture and nonretail sale of cabinets. Within the 12-month period immediately preced- ing the issuance of this complaint, the Respondent purchased and received goods and materials valued in excess of $50,000 directly from outside the Commonwealth of Pennsylvania for use at its facilities within the Commonwealth of Pennsylvania. During this same period, Respondent shipped goods valued in excess of $50,000 from its Pennsylvania facilities directly to points outside the Commonwealth of Pennsylvania. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVLDI The Grievance Committee (Westmoreland Kitchen. Inc.) is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues, Supervisory Status The General Counsel alleged and contends and this proceeding reveals that at all times material herein, the following named persons occupied the positions set opposite their respective names and were agents of Respondent . acting on its behalf , and were supervisors within the meaning of Section 2(11) of the Act. Charles P. Cunningham President Bruce A. Reinshagen Foreman Harry Crosby General Foreman i The facts are established by the pleadings. 2 The Rupp Forge Coinpani, 201 NLRB 347, GAC Properties, Inc, 205 NLRB No 155 3 The facts are based upon a composite of the credited aspects of the 155 The Respondent admits the supervisory status of the above-named individuals but denies the agency status of the said individuals. As supervisors, such persons were agents for the type of conduct engaged in or contended to have been engaged in this proceeding. Accordingly, it is found that the General Counsel has established the above referred to allegations? B. The Facts3 As of the time of the trial in this matter, it may be said that Westmoreland Kitchen, Inc., was a relatively new employing enterprise. Thus, Westmoreland Kitchen, Inc., had commenced production operations in the fall of 1972. Thereafter, it had encountered some problems with respect to its financial ability to meet all of its obligations with respect to salaries and to some equipment. Victoria Bobnar Errett, the alleged discriminatee, was initially employed by the Respondent in November 1972 and worked thereafter for the Respondent until she was discharged on April 3, 1973. During her tenure of employment the following may be noted. Errett received an oral reprimand and a written reprimand in connection with two occasions of lateness in the November-December 1972 period. The written reprimand was issued on December 7, 1972. Errett was a good employee, was considered a good employee, and in addition to her duties as a sander was made an expediter a period of time before her discharge. Errett had been or was being considered for promotion to a supervisory position. 1. Events of March 24 and 25 On Friday, March 24, 1973, foreman Harry Crosby spoke to employee Rudy Roscoe about the formation of a grievance committee. What occurred is revealed by the following credited excerpts from Crosby's testimony. A. Well, I heard that the men were dissatisfied, that they were going to walk out, and I was sitting eating with Roscoe at dinner time, and I suggested to the walkouters that it was no good for the company nor employees. Why didn't they try to get a committee and go in the office and talk to Mr. Cunningham. Later, on March 24, 1973,-Errett spoke with her foreman, Harry Crosby, about the formation of a grievance committee. What occurred is revealed by the following credited excerpts from Errett's testimony. THE WITNESS: He spoke to me, Saturday, concerning a grievance committee to handle employ- ees' dissatisfaction with the working conditions and I told him that I was interested in starting the committee and-and he also-I told him that I would draw up a petition and he told me that Rudy Roscoe was also interested in being on the committee. And I told him that I would draw the petition and bring it to work on Monday and have the employees sign it. testimony of Errett. Miller, Reinshagen. Casagrande. DePalma, Cope, Cunningham. Crosby, Roscoe, Paskan, and Birt , the exhibits, stipulations. pleadings, and statements of counsel narrowing the issues in this proceeding 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later that day, Errett spoke to employee Rudy Roscoe about the petition that she was going to draw up. Errett told Roscoe that she would draw up the petition and bring it to work on Monday. Roscoe agreed to help get employees to sign the petition on Monday. Thereafter, on March 25, 1973, Errett prepared a petition designed to have employees signify by their signatures that they were designating Errett and Roscoe as their representatives for taking grievances to management. 2. Events of March 26, 1973 On the morning of March 26, 1973, Errett and Roscoe secured employee signatures to the petition that Errett had prepared for the establishment of a grievance committee.4 Apparently, around the same time, Errett spoke to foreman Crosby about the grievance petition. Foreman Crosby told Errett in effect that she should not get caught getting signatures on the petition during working hours Conclusion as to Threat Considering all of the foregoing, I conclude and find that the Respondent, by foreman Crosby, on March 26, 1973, threatened Errett with reprisals if she engaged in getting signatures for the petition (for a grievance committee) during working hours. The facts reveal that the Respon- dent did not have a written rule concerning solicitation and was not concerned about employees' talking to each other. Thus, President Cunningham. on April 2, 1973, observed Errett talking to employees during her working hours, ascertained that Errett was not talking about the commit- tee and took no action thereto. Further, Crosby's remarks were ambiguous. The remarks did not reveal whether he was referring to the Company's working hours or to the employee's working hours. Under such circumstances, Errett's right to engage in organizational activities on her own time was interfered with. Accordingly, it is concluded and found that Respondent has violated Section 8(a)(1) of the Act by such conduct .6 On the morning of March 26, 1973, Errett and Roscoe told foreman Crosby in effect that they had organized a grievance committee and wanted him to arrange a meeting between them (Errett and Roscoe) and President Cunning- ham. Foreman Crosby went to see President Cunningham and related the foregoing information. President Cunning- ham showed annoyance and asked foreman Crosby if he was the "instigator". Foreman Crosby told President Cunningham that all he was trying to do was hold the peace, that if he (Cunningham) did not want a meeting. he could tell them (Errett and Roscoe) "no," that he (Crosby) didn't care. President Cunningham thereupon did not say anything. merely looked at foreman Crosby, turned around, and walked into his office. Later that morning, Errett and Roscoe were called into President Cunningham's office. President Cunningham 4 1 here is some dispute as to whether some of the employees who signed the petition were working or were on nonwoik time when they signed the petition It is unnece-sary to make a precise determination as to this dispute since a determination either way would not affect the decision herein s Considering the logical consistency of the facts and the direct and cross-examination of witnesses Crosby Crrett, and Miller I credit C roshy's version of the facts to this point Erreti's and Miller's testimony was to the commenced the discussion by asking Errett and Roscoe to tell him what was going on in the plant. Roscoe did most of the talking for himself and Errett. In effect, Roscoe and Errett told President Cunningham that the employees wished to have a grievance committee with which to have some representation in the administration, to get better working conditions, and to handle employee grievances. Errett and Roscoe told President Cunningham that the committee idea was a new idea and that Errett and Roscoe were the committee. President Cunningham agreed to recognize the committee and suggested that the committee get members from each department. President Cunning- ham and Errett and Roscoe agreed in effect that Errett and Roscoe would be called in together for the handling of grievances. Errett and Roscoe asked in effect if the committee could have a meeting at lunchtime. President Cunningham was agreeable to this and wanted to know if he could attend the lunch meeting. Roscoe told President Cunningham in effect that it would be a good idea if he (Cunningham) attended. The General Counsel and Respondent dispute whether President Cunningham made reference to "union" in this discussion and whether he stated in effect that the Respondent could not afford to be unionized. The testimony to this issue is limited. It is clear from the overall facts that President Cunningham did make reference to the problem of having a union at other meetings. It is also clear from the total testimony of witnesses that President Cunningham's reference to the problem of unions and the fact that the Respondent could not afford to operate under a union was in the context of an explanation that the Respondent could not afford to operate under conditions wherein the Union would cause certain designated employ- ees to have to be utilized in a certain manner. Errett testified in a brief and conclusionary fashion to the effect that President Cunningham, on the morning of March 26, 1973, "mentioned" to her and Roscoe "about a union" and "that the plant couldn't afford to go unionized." Cunning- ham and Roscoe were not specifically questioned on this point. Roscoe's testimony as a whole was presented in a generalized manner. Cunningham's testimony does not reveal a specific dental that the subject of unions was discussed in this incident. If his overall testimony were presented as his version of the facts, it may be said that such presentation was in too loose a manner to reveal a denial that the subject of unions was discussed at this time. The complete testimony of all witnesses, as indicated, reveals that the substance of the statements by Cunning- ham about unions and that the Respondent could not operate with a union included an explanation of the reasons therefor. Considering all of the facts, I credit Errett's testimony to the effect that President Cunningham mentioned the fact of unionism and the fact that Respondent could not afford to operate under a union. I find from the totality of her testimony and the logical composite effect that Crosby warned Errett about getting caught with the petition and about not getting signatures on working time I discredit such testimony to the extent that it differs from the facts found " Cf 4nierttan •tfanq/atluring Compant, inc. 196 NLRB 248. Caterpillar Tractor Co. 113 NLRB 553. Miller Discount Dept Stores. 198 NLRB No. 40 WESTMORELAND KITCHEN, INC consistency of all the facts and testimony of other witnesses that President Cunningham explained in effect that Respondent could not operate under a union if the Union required certain employees to be used in certain ways. Contended Threat The General Counsel contends that the Respondent, by President Cunningham, on March 26, 1973, threatened employees with reprisals by statements to the effect that the Respondent could not afford a union. Considering all of the facts relating, to this issue, I am persuaded and conclude that the facts do not support the General Counsel's contentions. President Cunningham's remarks to the effect that Respondent could not afford to be unionized accompanied by an explanation that this would be caused by the Union's requirement of utilization of employees in a certain way do not constitute a threat of reprisal but are merely an argument as to problems. Accordingly, it will be recommended that such allegation of conduct as being violative of Section 8(a)(1) of the Act be dismissed. The Noon Meeting The Respondent's employees were assembled for a meeting in the lunchroom at noon on March 26, 1973. Before President Cunningham arrived, Roscoe told the employees of the purpose of the meeting, that Cunningham was to be there, and that they should bring up any grievances or anything that they wished to.7 President Cunningham arrived and told the employees in effect that he liked the idea of a committee, that he did not like the idea of calling it a "grievance" committee, that he suggested that it be called a "labor relations committee." Cunningham told the employees in effect that the plant was too small to he unionized, that the plant could not operate with a union requiring certain employees to be utilized in certain ways. President Cunningham asked the employees to speak up if they had any grievances Only one employee spoke up. This employee, Ed Ruffner, expressed dissatisfaction with the Respondent's incentive plan. President Cunningham became annoyed and told Ruffner in effect that if he did not like the incentive plan, he could find a job elsewhere. A short time later President Cunningham left the meeting to allow the employees to discuss matters themselves. About 15 minutes later President Cunningham returned and dismissed the meet- ing. Contended Interrogation The General Counsel contends that President Cunning- ham's request to the employees at the noon meeting to express their grievances constituted unlawful interrogation in violation of Section 8(a)(1) of the Act. I ain persuaded and conclude that Cunningham's request for employee expression of grievances, in the context of all the facts, did not constitute unlawful interrogation in violation of 157 Section 8(a)(1) of the Act. Thus, Cunningham had been invited to the noon meeting, and employees were aware that discussions of grievances was a purpose of the meeting. In such context, it is clear that such conduct by Cunningham did not interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Contended Threats The General Counsel contends in effect that President Cunningham's remarks about not being able to afford a union constituted a threat of reprisal. For the same reasons indicated previously, I conclude and find that the facts reveal that such remarks were made in the context of an explanation of problems concerning job assignments. Accordingly, I conclude and find that such conduct is not violative of Section 8(a)(1) of the Act. The General Counsel contends that President Cunning- ham's remarks to Ruffner that if he did not like the incentive plan, he could find ajob elsewhere, constituted a threat of reprisal in violation of Section 8(a)(1) of the Act. Considering all of the facts, I do not find such remarks to constitute a threat of reprisal. Accordingly, I conclude and find that such conduct is not violative of Section 8(a)(1) of the Act. 3. Events of March 26 and 27 After the March 26, 1973, noon meeting, some of the employees during the time period of March 26 and 27, 1973, discussed their dissatisfaction with working condi- tions and with the way the noon meeting had gone, and discussed the idea of a walkout. Either on March 26 or on March 27, 1973, Errett spoke to her friend, foreman Crosby, and in effect asked Crosby for his opinion of the idea of a walkout. Crosby expressed his opinion of a walkout to Errett. Crosby told Errett in effect that it was his opinion that if the employees walked out, probably all would he fired, that if they were going to have a walkout, they had better have enough people to walkout so as to slow production to the point that President Cunningham would have to negotiate with the employees, that if only a few walked out, President Cunningham could fire the ones who walked out without really hurting the Company. Crosby also told Errett that she was moving too fast, that she had been recognized and that she should now negotiate. Conclusion as to Threat Considering all of the foregoing, I conclude and find that the Respondent, by foreman Crosby, on March 26 or 27, 1973, threatened employees with reprisals if they engaged in a walkout. I have considered the facts that foreman Crosby was a friend of Errett's and that Errett initiated the request for his opinion. Some factual situations may reveal that remarks from a friend are completely speculative and that thus a threat does not occur even though the remarks might otherwise appear threatening. A threat from a friend, however, may he and often time is more coercive than from a ' 1 he facts were presented loosely Considering such facts and the logical consistency of all of the facts, I find the facts as set out 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD person who is not a friend. Opinions which include threats of reprisals are violative of the Act and are not protected within the purview of Section 8(c) of the Act. The remarks by foreman Crosby to Errett were remarks by a person in a position to know what the Company's policy was and exceeded mere speculation.8 Considering all of the forego- ing, it is clear that the Respondent violated Section 8(a)(1) of the Act by foreman Crosby's threats as to what would occur if there were a walkout by the employees. Errett called a meeting of employees at her home on the night of March 27, 1973. At this meeting a list of negotiating-type demands concerning working conditions was drawn up, and copies of the list were made. 4. Events of March 28, 1973 On the morning of March 28, 1973, Errett took copies of the list of negotiating demands to work. At the plant, Errett showed the list to Rudy Roscoe .9 Roscoe read the list of demands. Roscoe then told Errett that he no longer wanted to be on the committee. Roscoe, at some point of time later, went to President Cunningham and told Cunning- ham in effect that he was no longer on the committee and had nothing to do with the committee. Sometime after showing the list of demands to Roscoe, Errett showed the list to foreman Crosby. Foreman Crosby read the demands, told Errett that the committee was going about the matter too fast, and told Errett that she should not get caught with the demands or hand them to President Cunningham because President Cunningham would fire her on the spot. to Conclusion as to Threat Considering the foregoing, I conclude and find that the Respondent, by foreman Crosby, on March 28, 1973, threatened employees with reprisal if they engaged in union protected concerted activity. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. Either shortly before or after showing the list of demands to foreman Crosby, Errett designated employees Jackie Miller and Ed Ruffner to serve on the "committee" in place of Roscoe. After showing the list of demands to foreman Crosby, Errett left copies of the list on a table in the lunchroom. Errett did not take the list of demands to President Cunningham. A short time later, President Cunningham was in the lunchroom, saw the list of demands, and remarked that he guessed that the list was meant for him. I' President Cunningham took a copy of the list of demands and went to Errett at her work station.12 Errett credibly testified to the effect that Cunningham's tone of voice when he addressed her was hostile.13 What occurred B The company employee complement was only around 36 employees. 9 Roscoe had not been present when the list of demands had been drawn up. 10 I found Errett and Miller in their testimony on this point to appear completely frank and objective. Crosby's testimony was similar in effect, although less complete and different in that he testified that he referred to "trouble" and not to firing. I credit Errett's and Miller's testimony over that of Crosby where it is in conflict. 11 This would appear to be a reasonable observation under the is revealed by the following credited excerpts from her testimony. A. He came to me, at approximately 8:30 that morning, with a-he pulling a copy of the demands out of his pocket and saying to me, what is this all about. And I said that I would not discuss the list of demands with him unless he met with the rest of the committee. And he said, then, we'd better call this meeting, and leaving the department with me, he says, "This is my whole life. You kids don't know what you're doing." I said, "Yes, this is our life, too." And then we called Jackie Miller and Ed Ruffner and we had the meeting in Mr. Cunningham's office. Contended Interrogation The General Counsel contends that Respondent, by Cunningham, on March 28, 1973, unlawfully interrogated Errett about the demands. Considering the facts, including the fact that Errett and Roscoe had identified themselves to Cunningham as the two persons designated to act as a committee, the fact that Roscoe had told Cunningham that he was no longer involved with the committee, the wording on the list of demands indicating that the demands were directed to management and that negotiations had to be by noon on March 28, 1973, I am persuaded and conclude that the remarks to Errett by Cunningham were merely a normal response and not unlawful interrogation. Accord- ingly, it will be recommended that allegations of conduct violative of Section 8(a)(1) in such regard be dismissed. The Cunningham-Committee Meeting Sometime shortly after 8:30 a.m., the grievance commit- tee (Errett, Miller, and Ruffner) met with President Cunningham in his office. The committee and Cunning- ham discussed all of the demands. Cunningham and the committee essentially reached agreement on all of the demands except those of wages and incentive pay. The meeting commenced with President Cunningham telling the committee in effect that he agreed with the idea of a committee but preferred another name for the committee than that of "grievance committee," that he desired the committee to have a broader function than grievances. As regards the question of wages, Cunningham indicated that some of the wage requests were out of question, that they should pass the item and return later to the question. During the discussions the question of raises, union wages, and operation of the plant under a union came up. Cunningham told the committee that the Respondent could not afford union wages and offered to show the company books in support of his claim. Cunningham also circumstances. 12 Since Roscoe, the only other committee member originally designated and identified to President Cunningham, had told Cunningham that he no longer had anything to do with the committee, this appears to be a logical act. 1:1 It should be noted that the demand set forth in part that the "following points be negotiated with the grievance committee before noon, March 28, 1973." WESTMORELAND KITCHEN, INC. 159 argued that a union would require certain employees to be designated for certain work and thus cut down on job diversification . Cunningham and committeeman Ruffner engaged in an argument over the idea of raises and the skill ability of the employees to do different work. Cunningham left the room, in apparent anger, but returned shortly. During the discussion Cunningham also indicated that the Respondent would not abandon its incentive pay plan. Also in the discussion Cunningham related that he had a meeting that afternoon with potential investors, that such potential investors would not be interested in investing in the Company if they knew that there were labor problems. During the discussion Cunningham also told the com- mittee that he had been working on a wage program which he had expected to complete within the next 2 weeks. Also during the discussion Cunningham told the committee in effect that if they wanted to run the -plant, he would just pack up and leave, that they could have everything, that he didn't have to take it. At the end of the meeting Cunningham said in effect that ..now that this is over, we can put this to sleep." Errett told President Cunningham in effect that he knew that they couldn't put this to sleep since they hadn't come down to "put it to sleep," that they had come down to have something done about the problem. President Cunningham remarked that he had heard of a planned walkout. Errett told President Cunningham that there would not be a walkout if something was done about the problems, that she could not guarantee what the employees would do. Cunningham asked if this were a threat. Errett replied that it was not, that she was trying to warn him as to the way the employees felt. President Cunningham told the com- mittee that, since this was over, they would have a meeting for all of the employees at lunchtime. Contended Threat of Repnsal The General Counsel contends in effect that Respon- dent. by Cunningham, on March 28, 1973, threatened employees with reprisals by Cummngham's remarks about not being able to operate with a union. Considering the facts set out above, the fact that Cunningham's remarks concerning wages and not being able to operate with a union were accompanied by an explanation and an offer to reveal the Company's books to the employees, I conclude and find that a threat of reprisal was not made. According- ly, it will be recommended that the allegation of conduct violative of Section 8(a)(1) in such regard be dismissed. The General Counsel also contends that President Cunningham's remarks, to the effect that if there were labor problems at the plant, interested investors would not invest, was violative of Section 8(a)(1) of the Act. Considering the facts, I am persuaded and conclude that such remarks constitute an expression of opinion that did not contain threats. Whether or not investors invested in the plant was a matter not within the control of Respondent. Accordingly, I conclude and find that Respondent, by Cunningham, did not violate Section 8(a)(1) of the Act by his remarks that investors would not invest if there were labor problems. Noon Meeting President Cunningham held a meeting for all employees at noon on March 28 , 1973. At this meeting, Cunningham discussed the "list of demands" and indicated his position as to the demands. In practical effect President Cunning- ham repeated the expressed positions that he had given to the committee earlier. Included in Cunningham's remarks were ( 1) his remarks concerning not being able to operate with a union because the Union would designate where employees would work, (2) his remarks to the effect that investors would not be interested in investing in the Company if there were labor problems, and (3) his remarks to the effect that if the committee wanted to run the plant, he would "pack up and leave." Alleged Violative Conduct The General Counsel contends that Respondent, by President Cunningham, made threats of reprisals by the above-referred to remarks . For the same reasons set forth concerning the same remarks made to the committee earlier on March 28. 1973, I conclude and find that such remarks did not constitute Respondent's conduct violative of Section 8(a)(I) of the Act. Afternoon Meeting President Cunningham called another meeting of his employees at 3 p.m. What occurred at this meeting is revealed by the following credited excerpts from Miller's testimony. A. Mr. Cunningham said that production had been slowed down and that the employees were talking among themselves and grumbling and nobody was getting anything done, and he said that we were holding a time bomb in our hands and he hoped that we were adult enough to handle it and not act like children and let the whole company blow up because of this, and that he was going to have a steak and beer party for the employees, and that if anyone said it was a bribe he was going to punch them in the mouth. Promise of Benefit The General Counsel contends that the promise of a steak and beer party constituted a promise of benefit to deter employee support of the committee. The Respondent contends in effect that the promise of a "steak and beer" party was insignificant and was to help ease tensions and get better morale. Considering all of the facts, I conclude and find that Respondent's promise of a "steak and beer" party was a promise of benefit given in such a manner as to deter employees from the exercise of their right to engage in collective activity. While such a benefit normally would not be deemed to have a significant effect, such a benefit under the circumstances herein would clearly have a significant effect . Thus, the overall facts reveal that the Respondent did not like and had so revealed to the employees, the idea of a committee strongly asserting its rights or position. Under the circumstances, the promise of 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a steak and beer party revealed to employees that what they could obtain depended upon the good graces of the Respondent. It is also clear that this "steak and beer" party was related to the current question of the committee and the grievance. Accordingly, it is concluded and found that Respondent's promise of a steak and beer party, timed with the employee grievance and committee activity, constituted conduct violative of Section 8(a)(1) of the Act. observed by Errett doing such watching. President Cun- ningham also spoke to several of the employees to whom Errett had talked. There is no evidence that his discussions with such employees adverted to his concern that she was talking on company time about the committee. Surveillance and Creation of Impression of Surveillance Foreman's Meeting Later, after the afternoon meeting with employees, President Cunningham held a meeting with his foremen. What occurred is revealed by the following credited excerpts from Reinshagen's testimony. A. He went over with the foremen the grievances that the committee had presented to him, and he pointed out the ones that he had agreed with and the ones that, you know, he felt the plant could not go along with, and he said that he had talked to a lawyer to find just what he could and could not do concerning the committee. He said that he had talked-there were investors at the time interested in putting money in the plant for expansion, and he said they had backed out because of the labor problems. 5. Events of March 30, 1973 On Friday, March 30, 1973, foreman Crosby spoke to Errett and told her to watch what she was doing. What occurred is revealed by the following credited excerpt from Errett's testimony. 14 A. Yes. He sort of warned me or spoke to me about I should watch what I was doing, because Mr. Cunningham was asking ' questions about my work, about what I was doing in various parts of the plant. 6. Events of April 2, 1973 Errett's job as an expediter necessitated that she travel throughout most of the plant in order to get parts to complete her assigned tasks. During April 2, 1973, Errett traveled throughout the plant getting the parts referred to above in connection with her work. During such traveling, Errett spoke to employees concerning the committee and grievances . Some of the employees to whom Errett spoke were not employees that she would have had to talk to in connection with her work as an expediter. President Cunningham was concerned that Errett might be talking to employees about the committee during her working hours. President Cunningham , who had been watching Errett at work during the last several days, watched Errett as she moved about the plant and was to 1 do not credit Cunningham 's testimony to the effect that he told foreman Crosby to direct Errett to stay in the sanding departments. The overall facts reveal that President Cunningham watched Errett as she went around the plant on April 2, 1973, that President Cunningham questioned employees whom he saw Errett talking to as to what she had been talking about, and that President Cunningham did not reprimand Errett at such times . If the instructions testified to had been given, a reprimand would have been warranted. I do not credit foreman Crosby's testimony to the effect that he was told by Cunningham to get Errett back in her own The General Counsel's complaint alleges in effect that Respondent, by President Cunningham, created among its employees the impression that their activities on behalf of the committee were kept under surveillance. The General Counsel's brief contends also that the facts as litigated reveal that Respondent actually engaged in surveillance of Errett's protected activities. Considering all of the facts, I am persuaded that a preponderance of the evidence requires findings as contended by the General Counsel. Thus, it is noted that the Respondent's operation is that which can be described as a small plant operation. Respondent has only 30 to 36 employees. Thus, the facts reveal that both management and employees know essentially what is transpiring. President Cunningham credibly testified to the effect that he suspected that Errett was talking about the committee during working hours. I am persuaded and conclude and find that the employees knew that Errett was talking about the committee and grievances during working hours, and that employees knew that President Cunningham was watching her to see if she were talking about the committee and grievances. I note further that Respondent has no expressed written rule prohibiting union activity on company time. Despite this, Respondent's rule such as its rules relating to "horseplay and wasting time and violation of starting time" reveal in a general way that Respondent expected working time to be for work. One must, however, consider Cunningham's actual conduct on April 2, 1973, relating to watching Errett at work, to checking with employees as to what Errett had been talking about, and his failure to reprimand Errett on such occasions when he ascertained that she had not been discussing essentials of work. Thus, when President Cunningham saw Errett speak to employee Overly and found out from Overly that Errett had not been talking to Overly about essentials of work, President Cunningham did not follow up and reprimand Errett.15 The incident relating to Errett's conversation with Overly and President Cunningham's failure to reprimand Errett strongly reveals that President Cunningham's motivation for surveillance of Errett was because of a discriminatory attitude toward Errett. According to Cunningham's credited testimony, it is clear that Errett had no need to speak to Overly within the purview of her job. On the occasion Errett was talking to department, and that he told Errett that she was to stay in her own deparrrneni, that she was not to expedite. Considering the logical consistency of all the facts , I credit Errett's testimony as indicated, and discredit Cunningham's and Crosby's testimony contradictory of each other, and inconsistent with that of Errett's. 16 1 do not credit Cunningham's testimony to the effect that he "reprimanded" Overly. I am not persuaded that he would have reprimanded Overly and not have also reprimanded Errett at the same time. WESTMORELAND KITCHEN, INC. Overly while he was using a saw in his work function. President Cunningham's failure to reprimand Errett on such occasion reveals that his interest in watching Errett was not motivated by production or safety reasons but merely because he suspected that she was engaged in talking about the committee or grievances. In sum, I conclude and find that Respondent's surveil- lance of Errett, by Cunningham, on April 2, 1973, was discriminatorily motivated, had an inhibitory influence on Errett's and others' engagement in union or protected activities, and was accomplished in a manner that created the impression among its employees that their union or protected activities were under surveillance without legiti- mate cause. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found.i6 During the day of April 2, 1973, there occurred other events that are intertwined with President Cunningham's surveillance of Errett. Thus, during the morning of April 2, 1973, Cunningham greeted Errett in passing and received no reply. When Cunningham asked Errett to tell him what was the matter, Errett replied that she was upset. Around this time President Cunningham told foreman Reinshagen that if this attitude of Errett's persisted, he would have to fire her. During the morning, while Errett was operating a new sanding machine, Cunnmgham came to the machine and had a conversation with her as is revealed by the following credited excerpts from Errett's testimony. A. Yes. He and Mr. McMann came into my department while I was running the sanding machine and Mr. Cunningham asked me what my understand- ing of my job was, and I told him that I was-that it was-I was head of the Sanding Department and I was supposed to complete one job before he-before it was sent to the Finishing Department, which was Mr. Cunningham's plan he was putting into effect. When Errett reported to work on the morning of April 2 (Monday), she found that there were approximately 160 small sample boards to be sanded. After finishing ordered work, Errett went to plant engineer DePalma and asked him to show her how to use a new sanding machine. DePalma came to her department, showed Errett how to put the belts on the machine and left. Although there is some testimonial dispute, the overall facts reveal that this new sanding machine had not been used previously by Errett. It is also noted that the belts used on this machine are sandpaper belts. During the morning of April 2. 1973, Errett used the new sanding machine. During Errett's operation of the new 16 Cf American Manufacturing Company, Inc 196 NLRB 248, Caterpil- lar Tractor Co, 113 \LRB 553, Miller's Discount Dept Stores, 198 NLRB No. 40 it Cunningham', and DePalma's testimony as to the events occurring on April 2 1973, corroborated Frrett's testimony generally but differed in some essential degree Considering then testimony and the logical consistency of all of the facts. f discredit their testimony to the extent that it differ, from the facts found Cunningham testified to the effect that he unqualifiedly told Errett to cca'e using the machine Considering the fact that Cunningham thereafter observed Errett using the machine and did not reprimand her on such occasion, I discredit his testimony to such effect DePalma's testimony on direct and cross-examination was contradictory of itself DePalna's testimony on direct examination was similar to that of 161 sanding machine, three sandpaper belts broke. Errett then went to see plant engineer DePalma and asked him to come and look at the machine. Errett told DePalma that she was concerned with the way it was working, that the belts were breaking and throwing the boards against the wall, that she didn't think it was safe. Plant engineer DePalma told Errett that he would check it in a minute. When Errett returned to the sanding machine and was standing and looking at the machine, President Cunning- ham came to where she was. Cunningham asked Errett in effect why she wasn't working. Errett related to President Cunningham the problem and the fact that she believed the machine unsafe. President Cunningham unplugged the machine and told Errett that if she thought the machine was dangerous, she shouldn't operate the machine, that she should go into the next room and work. President Cunningham left and shortly thereafter plant engineer DePalma came to the sanding machine, plugged it in, used it, and told Errett in effect that there was nothing wrong with the machine, that if she did not want to run it, he would do the work for her later.17 After plant engineer DePalma told Errett that there was nothing wrong with the sanding machine, Errett used the machine until lunchtime, approximately half an hour. During such operations, one more belt was broken. After lunchtime Errett continued using the sanding machine. During the afternoon President Cunningham continued to watch Errett while she was working.18 There were several other belts broken during this time of operation. In addition to the foregoing, it is noted that neither President Cunningham nor plant engineer DePalma thereafter spoke to Errett about her operation of the machine until 4 p.m. At such time plant engineer DePalma told Errett not to use the machine any longer, that a machine repairman had been called and was coming to look at it the next day. The parties litigated (1) whether Errett, on April 2, 1973, intentionally damaged the sandpaper belts and (2) whether Respondent, on April 2, 1973, believed that Errett had intentionally damaged the belts. To an extent, all of the testimony of the witnesses to these issues appears to be affected by rationalization by the witnesses. I am persuaded that the evidence preponderates for a finding that Errett did not intentionally damage the sandpaper belts. Thus, I am not persuaded that Errett would have approached both plant engineer DePalma and President Cunningham before noon about the breaking of the belts if she had been intentionally breaking the belts. Further, I am not persuaded that Errett would have Errett's as to what he said to her about the fact that he would run the machine if she did not want to use it or felt it unsafe I am convinced that the remarks related to Errett concerned her opinion on whether the machine was safe or not Similarly, I do not credit Cunningham's or DePalma's testimony relating to instructions from Cunningham to DePalma to Errett not to use the machine Considering the contradictions between Cunning- ham and DePalma's testimony and Cope's testimony , and the logical consistency of the facts, I discredit Cunningham and DePalma's testimony inconsistent with the facts found is During the afternoon Frrett went to the restroom, was stopped by employee Overly, and, as previously indicated, was observed by Cunning- ham while talking to ()verly 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intentionally broken the belts when there was the accom- panying possibility of injury to herself. I have considered in connection with the foregoing findings all of the evidence including Cope's testimony and the belts in evidence. Cope's testimony may be said to be to the effect that Errett appeared to be intentionally causing the ends of the board (to be sanded) to jab or punch into the belts. The belts, in evidence, reveal themselves to have been broken in the same identical way. I am persuaded that such belts reveal both (1) that they could have been broken by a deliberate jab or punch and (2) that they could have been unintentionally broken by the uneven application of pressure upon the board when pressing the same against the belt for sanding. Thus, although Cope truthfully believed that what he saw was an intentional act by Errett designed to break the belt, what Cope saw was a board having uneven pressure applied to the same. Cope credibly testified to the effect that he first told President Cunningham of his observation in May 1973. Cunningham testified to the effect that Cope told him of such observation on April 2, 1973. DePalma and Cunning- ham testified to the effect that he examined the belts on April 2, 1973, and that DePalma expressed an opinion that Errett had "abused" the belts. Considering the fact that neither DePalma nor President Cunningham reprimanded Errett on April 2, 1973, that Respondent was awaiting a visit by the representative of the sanding machine company to check the machine, and that President Cunningham discharged Errett on April 3, 1973, before the representative of the sanding machine company had checked the machine, I do not believe nor credit Cunningham's and DePalma's testimony to the effect as set out. And considering the foregoing, I discredit Cunningham's testimony to the effect that Cope expressed his observation to him, on April 2, 1973, to the effect that Errett was intentionally misusing the sander. In sum, I conclude and find (1) that Errett did not intentionally cause the sandpaper belts to break on April 2, 1973, and (2) that Respondent did not believe that Errett had intentionally caused the sandpaper belts to break on April 2, 1973. President Cunningham had a meeting with the grievance committee at 4:30 p.m. on April 2, 1973. What occurred is revealed by the following credited excerpts from Errett's testimony. A. Yes. At the end of the day, at 4:30, we had a grievance committee meeting in the lunchroom, and the meeting was pertaining to the wage and seniority scale Mr. Cunningham was drawing up. It was a verbal meeting, to let the committee know that he was working on it, and what he had come up with so far. Q. Did Mr. Cunningham ask the committee what they thought about the plan? A. Yes. He directed his question to me and I answered, "Well, I guess it's all right. I guess it's okay." It is further noted that Errett came to the 4:30 p.m. 19 Posted company rules required that employees, who were absent, report their absence between 8:30 and 9:00 a.m., that if they did not do so. they would be penalized as being tardy. grievance committee meeting with her fingers bandaged. Errett told President Cunningham in effect that she had hurt her fingers using the sanding machine. President Cunningham had personnel manager Birt remove the bandages and examine Errett's fingers. Errett's fingers appeared red but were not cut. 7. Events of April 3, 1973 Errett did not report to work on April 3, 1973. Around 9:45 a.m. Errett's mother made a telephone call to Respondent's office to advise that Errett would be absent.19 Errett's mother spoke to Personnel Manager Birt. What occurred thereafter is revealed by the following credited excerpts from Birt's testimony. Q. And did you relate to Mr. Cunningham the telephone call? A. Yes. Q. And what did you say to Mr. Cunningham? A. I said that Victoria's mother was on the phone first. And he said, "Well, is Viki there?" And I asked her mother, and she said, "Yes, but she is in bed." And I said, "Well, could you ask her to come to the phone?" And she did, she come to the phone, and while she was coming to the phone I conversed with Mr. Cunning- ham. Q. A. What did you say to him? He asked me what offense this was and what was on Viki's record, and I told him that it was not her second offense, that she had the written warning already, THE WITNESS: She said-I meant that she had received her second offense, written, which I had already given her written, and he said, "Well, now, yesterday she broke four or five plant rules which would be her third offense, and now she is reporting in late, past the hours that are necessary, and you will discharge her," which I did. Q. Did you discharge her? A. Yes. Q. What did she say? A. She asked me why, and I told her, I gave her the rundown just like I have just given now, the reasons that she had received her oral warning, and had received her written warning, and that yesterday she had broken several company rules, and she said, "Which ones?" Mr. Cunningham gave me a copy of the plant rules with a mark beside each one that she had broken, I read them off to her on the phone at that time, and I told her at this point that she was calling in too late according to the rules and regulations, and that I would have to discharge her. I find Birt's and Cunningham's testimony as to this incident more complete and believable than Errett's and credit the facts as indicated and discredit Errett's testimony that the telephone call was made at 8:45 a.m. WESTMORELAND KITCHEN, INC. 163 The facts are clear that among the reasons advanced to Errett as cause for her discharge was (1) abusing company )roperty, (2) wasting company materials, and (3) not )beying orders. I do not credit the testimony to establish :hat other reasons, excepting for the question of calling in ,ate, were told to Errett. The following excerpts from Respondent's plant rules are relevant to the issues in this case. Westmoreland Kitchens, Inc. Plant Rules Violation of any rule in Group 2 below will result in the following: First Offence-Oral Warning Second Offence-Written Warning Third Offence-2 Days off without pay Fourth Offence-Discharge Group 2 Violation of Break Time Violation of Starting or Lunch Break Time Failure to Follow Orders Leaving Work station or department Horse Play or wasting time Changing job procedure or plant procedure without approval Failure to follow accepted safety procedure Refusing of overtime without doctor's excuse-Not to exceed 56 hours per week Absence from work Failure to follow drawings Waste of company material Abusing Company tool or equipment Personal phone calls (Emergency only allowed) Using Abusive or Profane language directed at another person Spitting on floor or in waste cans It is also proper to note that Errett had received an oral reprimand and a written reprimand in late 1972 for violations of rules in the group 2 of rules set out. The General Counsel adduced into evidence a copy of the plant rules which had checkmarks thereon previously made by President Cunningham as to the rules which he considered that Errett had violated. Cunningham testified with respect to the rules which he considered Errett to have broken. The relevant question is what violation of rules, if any, motivated Cunningham in his decision to discharge Errett. Considering Cunning- ham's testimony, I am persuaded that it was to the effect that he (at the time of testifying) considered that Errett had broken certain specified rules. Cunningham's testimony and the exhibit relating to plant rules reflect that at some time prior to the trial he had checked the following rules that Errett had violated. Group 2 Violation of Starting of Lunch Break Time Failure to Follow Orders Leaving Work station or department Changing job procedure or plant procedure without approval Failure to follow accepted safety procedure Waste of company material I note further that the General Counsel adduced evidence relating to what President Cunningham told foreman Reinshagen about rules and Reinshagen's conten- tion that Respondent had not followed the rules in discharging Errett. It suffices to say that if the Respondent lawfully discharged Errett, such conversation would be consistent thereto. It also suffices to say that if the Respondent discriminatorily discharged Errett, such con- versation would be consistent thereto. I find no value in resolving the issues in this case from such testimony. Further, Reinshagen's testimony as to the events, excepting to the extent set forth in the facts, is unreliable. Reinsha- gen, as a witness, impressed me as a witness, who wanted to testify truthfully but who was not one who could set forth the facts objectively. I am persuaded that his testimony was largely conclusionary and merely his opinion of what was said. Conclusion as to Errett's Discriminatory Discharge Considering all of the foregoing, I am persuaded and conclude and find that the Respondent discriminatorily discharged Errett on April 3, 1973, because of her union and protected concerted activities. Errett was clearly the leader and outstanding advocate of the grievance committee. The facts are also clear that despite the fact that President Cunningham was willing to accept the idea of a grievance committee, President Cunningham desired only a weak committee that would not disagree with his own course of action. Respondent's animus was demonstrated by President Cunningham's annoyance directed toward foreman Crosby when the idea of the grievance committee was first mentioned. Respon- dent's animus was also demonstrated when President Cunningham revealed to employee Ruffner and the others that those who didn't like the incentive plan could leave, and when President Cunningham indicated that he could pack up and leave if they wanted to run things. Further, Respondent's animus toward Errett is revealed by Presi- dent Cunningham's surveillance of Errett at work. Considering all of the foregoing and the asserted reasons for the discharge of Errett, I am persuaded that the asserted reasons, at the time, later, and at the trial, are pretextuous and rationalized reasons used to disguise the real reason, discriminatory motivation against Errett because of her union and protected concerted activity. President Cunningham's testimony in major effect revealed that he was asserting reasons that he thought he could have used and not the reasons that actually motivated the discharge of Errett. The checking by President Cunning- ham, prior to the trial, of an asserted reason, to wit, violation of starting or lunch break time, is revealing that the asserted reasons were pretextuous. Thus, at the trial, President Cunningham testified to the effect that he was in error in checking such as a reason . The checking by President Cunningham, at a time prior to the trial, of asserted reasons to the effect that Errett had violated rules 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relating to (1) changing job procedure or plant procedure without approval and (2) failure to follow accepted procedure is revealing of the use of pretextuous reasons. There is no evidence that Errett violated such rules, that Errett was told of such alleged violations. and the overall facts clearly reveal that such were not the basis for Errett's discharge. Further, it is revealing that pretextuous reasons were used when one notes that at a time when President Cunningham allegedly was checking reasons for Errett's discharge, he omitted the reason of "abusing company tools or equipment" when this was what Errett was told at the time of her discharge and when such was asserted as being a reason at the trial in this matter. As to the asserted reason that Errett violated a rule against leaving her work station or department, the overall facts reveal that this reason is a pretextuous reason. Thus, the overall facts reveal that Errett was an expediter, that her job required her to be in different parts of the plant, that Respondent knew that her job required her to be in different parts of the plants, and that Errett was not told that she should not continue her duties as an expediter. As to the asserted reason that Errett violated a rule regarding "abusing of company tools or equipment," I am persuaded that such reason is also pretextuous and a rationalized reason to disguise the discriminatory reason. Thus, the facts reveal that Errett did not intentionally break the sandpaper belts, that Respondent did not know what caused the belts to break at the time of Errett's discharge but was awaiting having the sanding machine checked by a representative from the sanding machine company. Further, in connection with all the foregoing, it is noted that the Respondent did not reprimand or warn Errett about such alleged infractions, that Respondent skipped a normal step in its disciplinary procedure, to wit, the giving of a 2 day suspension, and simply discharged Errett on April 3, 1973, after learning that she had had an oral and written reprimand in the past. From all of this, I am persuaded that President Cunningham was not aware on April 2, 1973, that Errett had had an oral and a written reprimand and was close to vulnerability for discharge. When President Cunningham so learned on April 3, 1973, 1 am persuaded that President Cunningham, because of discriminatory motivation against Errett, decided to use the reasons asserted as a pretext to discharge Errett20 In sum, I conclude and find that the preponderance of the facts reveals that Respondent discrinunatorily discharged Errett on April 3, 1973, because of her union or protected concerted activities21 Such conduct is violative of Section 8(a)(3) and (1) of the Act. IV. UHF EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, 20 Even weic I to believe that President Cunningham suspected that Errett had intentionally damaged the sandpaper belts. 1 would be persuaded that the dominant motivation was to get rid of Errett for discriminatory reasons Respondent's surveillance of Errett's work because he believed she was talking about committee work throughout the plant coupled with the above, occurring in connection with the Respondent's operations described to 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent discharged Victoria Bobnar Errett in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent offer her reinstatement to her job, and make her whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company. 90 NLRB 289: Isis Plumbing & Heating Co., 138 NLRB 716, except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Westmoreland Kitchen, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Grievance Committee (Westmoreland Kitchen, Inc.), is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Victoria Bobnar Errett, Respondent has discouraged membership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By the foregoing and by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] pretextuously asserted reason that she violated a rule against leaving work station or department so reveals !1 As the facts in this case reveal , the grievance committee was a labor organization within the meaning of the Act.