Fuqua Homes, Inc.

FUQUA HOMES (OHIO), INC. 399 Fuqua Homes (Ohio), Inc. and United Steelworkers of America, AFL-CIO. Cases 9-CA-7739 and 9-1.C-9948 1' June 12, 1974 DECISION AND ORDER AND ORDER REMANDING IN PART requiring that the representation case be remanded for the purpose of further hearing to take evidence improperly excluded and for him to make rulings and findings thereon. A remand is also necessary for the purpose of having the Administrative Law Judge rule on Respondent's objections to the election. The matters summarized here are treated in detail below. BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 12, 1973, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, all parties filed excep- tions 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 attached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions' only to the extent consistent herewith. The complaint alleges that the Respondent violated Section 8(a)(1), (3), and (4) of the Act; the consoli- dated representation case involves certain challenges to ballots cast in a May 25, 1973, election and the Respondent-Employer's objections to that election. The Administrative Law Judge found certain of the alleged violations, dismissed some, and failed to consider others. He did pass on the challenges-rec- ommending some be upheld, others overruled-but he did not pass on the Company's objections to the election. For the most part, the parties in effect except to all of his findings that are adverse to their respective positions, with the Respondent also vigorously excepting to certain evidentiary rulings made by him at the hearing. With respect to the unfair labor practice aspect of this proceeding we agree with the Administrative Law Judge's findings that the Respondent violated the Act through certain conduct and disagree with his conclusions in other respects that it did not; hence, we also make additional findings of viola- tions. As for the representation issues, we conclude that certain rulings made by the Administrative Law Judge at the hearing did constitute prejudicial error 1 The Respondent excepts to the Administrative Law Judge 's failure to enforce a subpena against the Union seeking the production of various documents and records allegedly bearing on the Respondent's claim that supervisory personnel improperly participated in the Union's organizing drive and in its acquiring a showing of interest to support the petition filed in the instant representation case. Respondent was given the opportunity to file, and did file, a special appeal with the Board requesting that it reverse the Administrative Law Judge 's ruling granting a motion to quash the subpena . The Respondent's request was denied by the Board on September 26, 1973. The Respondent has advanced no The Facts The Union, after being approached by employee Danny Allbritain, began organizing the Respon- dent's employees in January 1973 2 and, on February 1, filed the petition in the instant representation case seeking a unit of production and maintenance employees. On February 28 a hearing in that case was held and certain persons employed by the Respondent appeared as witnesses. At that time, the hearing was continued to March 8. On the morning of March 7, Ronald Wehr and James Archer told their foreman, Greg Stapleton, that they would not be in the next day as they were going to attend the representation case hearing as witnesses for the Union. Stapleton raised no objec- tion. However, shortly after noon, Production Man- ager Andrew Garrett told the two that as the hearing did not start until 10 a.m. they would have to work from 7 a.m. until 9 a.m., which were regular working hours.3 They remonstrated that they had to be off those hours in order to talk to the Union's lawyer with respect to their testifying at the hearing. Garrett's response was to the effect that their absence for the 2 hours would be unexcused. Later in the day Stapleton called Archer, Wehr, and Carl Parsons into his office and asked them to report in from 7 to 9 the next morning. But they again said they could not as they had to talk to the Union's lawyer. Stapleton's reply was: "If you can't work, you can't." 4 Also on March 7, Allbritain and Fred Kress told their supervisor, Jerry Clark, that they would be out all of the next day because of the hearing. Clark made no comment, but later Garrett told them he would like them to come in between 7 and 9 the next morning. Allbritain said they would be off the whole day to which Garrett replied: "We've got to cut this stuff out, its interfering with our work . . . . It was cutting down production." Archer, Wehr, Parsons,Allbrit- ain, and Kress were absent all of March 8, talked to persuasive reasons why we should reverse our previous ruling and it is hereby affirmed. 2 All dates occurred in 1973. 3 It would take only about 15 minutes to travel from the Respondent's plant to the place where the hearing was to be held. 4 Parsons testified, and his testimony is not discredited, that Stapleton said, "All right." 5 The General Counsel contends that this statement by Garrett violated the Act. Though the statement is some evidence of Respondent's opposition to persons attending the hearing, we find nothing unlawful in such a (Continued) 211 NLRB No. 46 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union counsel that morning, attended the heating, and, except for Parsons,6 were called as witnesses. The Alleged 8(a)(1) and (4) Violations On March 9 the five returned to work at their regular starting time. Early in the day, Foreman Stapleton told Archer that there was "no s.o.b. that was going to cause him to lose his job and that [Archer] would be going before [Stapleton] was and that Archer would be back in Woodville mounting tires again." Later, as credibly testified by Wehr, Stapleton told him with respect to those who had attended the hearing that now he, Stapleton, and the Company "was going to watch everything that we did and the first little mistake they were going to write us up for it, and after three reprimands we would be fired." Also that day, Stapleton told Parsons and Archer that "This was it . . . he'd be watching for us and the first mistake we'd be out the door," and when Archer, Wehr, Parsons, Allbritain, and Kress went to get their checks at the plant office later in the day, they were met by Garrett, Stapleton, and two other supervisors and given written repri- mands for-the forms stated-being absent the previous day between 7 and 9 a.m. At that point, they were told: "Two more of these and you are out." We clearly do not have here a situation-as the Administrative Law Judge appears to have viewed it-where the Respondent simply adopted and announced on March 9 a new policy concerning reprimands and also happened to reprimand certain persons for absenting themselves from work between 7 and 9 a.m. the previous day. Thus, Stapleton's comment to Wehr was that management was going to watch closely those who attended the hearing, not those who had been out for the 2 hours. And his threat of close observation on the job and picking up the "first little mistake" can hardly be explained as an appropriate response to remedy or to prevent absence from the job or for that matter any other conduct that Wehr or others of the five had been warned against at the time. Also, if management had been solely concerned on March 9 with simply statement where, as here, it involved no threats or promises . ascribed by the Act 6 Insofar as the applicability of Sec 8(a)(4) is concerned Parsons' appearing to testify places him in the same pos-tion as he would have been had he in fact testified. See N L R B v Scrivener, d/b/a AA Electric Co, 405 US 117 (1972), N L R B v Dal-Tex Optical Company, Incorporated, 310 F.2d 58, 60-61 (C A. 5, 1962) 1 That "discrimination" under Sec 8(a)(4) embraces "all forms of discrimination" including threats of discharge, see John Hancock Mutual Life Insurance Company v NLRB, 191 F 2d 483 (C A D C, 1951) 8 There are unresolved issues, discussed below, concerning Archer's and Kress' status as supervisors or employees For purposes limited to consideration of this issue only, we assume they are supervisors Neverthe- less, we find that the threats of discharge directed to them for giving reprimanding these individuals for the 2-hour ab- sences it could have done so without adopting an entirely new reprimand policy and without stressing, while handing out the reprimands, the three-repri- mands-and-you're-out theme. Here, as in the case of Stapleton's comments, there appears an emphasis not on simply remedying a situation but rather on putting those who attended the hearing in fear of their jobs. Stapleton's com- ments reflect an inappropriate reaction to the alleged dereliction; management's reaction generally reveals an exaggerated overreaction to that dereliction. In sum, then, we believe it is apparent that Respon- dent's conduct on March 9 was not intended to remedy what it considered employee misconduct but rather was intended in whole or in part as retaliation against Archer, Wehr, Allbritain, Parsons, and Kress because of their appearing as union witnesses at the representation hearing the previous day. Conse- quently, as such retaliatory action would clearly tend to restrain and coerce the five with respect to participating in the various proceedings established by the Act to protect and give meaning to employees' secured rights, we find that the following conduct of Respondent violated Section 8(a)(1) and (4) of the Act: 7 (1) Stapleton's threat to employee Wehr and his similar threat to Archers and Parsons,9 concerning on-the-job surveillance and possible discharge, as such threats were made in response to the individuals appearing as union witnesses at the representation hearing; (2) Stapleton's comment to Archer on March 9 to the effect that he, Archer, would be going before Stapleton, as such comment was, we find contrary to the Administrative Law Judge, a clear threat of discharge occasioned-and no other explanation was even proffered-by Archer's appearing as a union witness; (3) Garrett's telling Allbritain, on handing him his written reprimand, that "Two more of these and you're out," as that statement was a threat of discharge made as a result of Allbritain's having appeared as a union witness; and (4) Respondent's giving Archer, Wehr, Allbritain, testimony at the Board hearing are unlawful under Sec 8(a)(I) as such discrimination against supervisory personnel infringes on the right of rank- and-file employees to "a congressionally provided, effective administrative process " N L R B v Southland Paint Company, Inc, 394 F 2d 717, 720-721 (C A 5, 1968); and cases cited in In. 14 below Consequently, our findings here insofar as they relate to Archer and Kress are limited to Sec 8(a)(1) 9 Initially, the Respondent contended Parsons was a supervisor However, the Administrative Law Judge found him to be an employee and the Respondent filed no specific exception to that finding We do not deem that Respondent's general exception to all the Administrative Law Judge's "adverse findings of fact and conclusions of law" properly raised the issue of Parsons' supervisory status See Board's Rules and Regulations, Series 8, as amended, Sec 102.46(b) FUQUA HOMES (OHIO), LvC. 401 Kress, and Parsons written reprimands ostensibly for being absent from 7 to 9 on the morning of March 8 but in fact given, we find, as part of its retaliatory campaign against the five for having appeared as union witnesses.10 We also find contrary to the Administrative Law Judge that Respondent further violated Section 8(a)(1) through Stapleton's questioning Parsons on or around March 9 concerning what he would have said if he had been called to testify at the March 8 hearing. Such questioning was an unwarranted intrusion by Stapleton into Parsons' union-related activities and his right freely to participate in Board proceedings and, in the coercive atmosphere created by Respondent's conduct against Parsons and others for appearing as union witnesses on behalf of the Union, constituted, we find, interference, restraint, and coercion under Section 8(a)(1) of the Act. The Alleged Unlawful Discharges Archer was discharged on April 12 and Wehr on May 11 because, Respondent contends, of their each having accumulated three written reprimands. The Administrative Law Judge found Archer's discharge to be unlawful on the ground that two of his three reprimands were undeserved; Wehr's discharge he found lawful because all three of his reprimands were, he concluded, warranted. We agree with the Respondent that the distinctions the Administrative Law Judge draws between the two are wholly unrealistic . However, contrary to the Respondent's position, we find both of the discharges were unlawful as having been motivated, at least in substantial part, by Archer's and Wehr's appearing as witnesses for the Union at the March 8 representa- tion hearing. The first of the three written reprimands accumu- lated by the two were those handed out on March 9 assertedly because of the 7 to 9 a.m. absences occurring the previous day. We have found these reprimands unlawful. Consequently, as Archer's and iu The Administrative Law Judge found Archer's reprimand to be unlawful as it was motivated, he held, by Archer's union activities In adopting that result, we do not adopt his reasons for so finding In reaching his result , the Administrative Law Judge held that Archer had beer xcused for the hours of 7 to 9 on March 8 This conclusion must rest on Stapleton's comment at the meeting he called on March 7 of Archer, Wehr, and Parsons at which, in answer to their statement they could nct work from 7 to 9 a m the next day, he replied, "if you can't, you can't", or as Parsons testified, he simply stated, "All right " But if Archer had permission, then it would seem necessarily to follow that so did Wehr and Parsons But that was not the Administrative Law Judge's finding, and we are not prepared to conclude that Stapleton's language was a clear grant of permission Yet at least it was a rather noncommittal response which certainly seemed to suggest no strong, firm opposition to the three being absent all of the next day, and represented a relaxed position quite inconsistent with, and in contrast to, Stapleton's conduct on March 9 when, in handing out the reprimands, he threatened various persons with discharge. This change in Stapleton's attitude does, in our view, reflect adversely upon the good faith of his Wehr's discharges were at least in part caused by these unlawful reprimands, the discharges were, we find, themselves unlawful. However, a finding of illegality here need not be left to rest solely on that ground, for it is, we believe, evident that Respon- dent's conduct with respect to the reprimands subsequently given Archer" and Wehr reflects a primary concern not with their conduct but rather with building a case against them to justify their eventual discharge, assertedly under the three-repri- mand rule. Archer's third reprimand and Wehr's second involved a common incident on April 10 in which they were alleged to have engaged in "horseplay" while fetching some cardboard for installation on a mobile home they were working on. Foreman Weber, Stapleton's successor, testified he helped the two cut the cardboard and roll it up and then observed them as they carried it some distance through the plant to their work station. He further stated that during their trip back they engaged for the whole distance in horseplay, culminating in one of them standing on an end of the cardboard with the other jerking it out from under him and causing him to fall. Throughout the whole incident, Weber, who according to his own testimony was only 2 or 3 feet from the two, said nothing to them except to ask if the fallen one was hurt, and when it was done left them. Sometime later he went to his office, wrote up the two for engaging in "horseplay," and then called them into the office and handed them the written reprimands. Neither Archer nor Wehr, according to Weber, offered any defense to the reprimands. As for their own testimo- ny, the two denied they had engaged in any horseplay, but did testify that while carrying the cardboard Archer fell when he stumbled over an open tool chest on the floor. The Administrative Law Judge did not resolve the conflict in testimony. Rather, he held in effect that whether or not Archer and Wehr engaged in horseplay Weber believed they did, and thus Weber was acting in good faith and not for unlawful reasons March 9 conduct and thus provides additional support for our conclusion that the reprimands were not given for the reason stated ii Archer's second written reprimand was for failing to call in on March 28 that he was going to be absent that day Archer testified that he had his sister call in for him and that she told him she had Weber, Archer's supervisor, claimed he never received a call on that day The Administrative Law Judge concluded that Archer's sister had indeed called in and that in consequence Archer's second repnmand, like his first, was unwarranted We agree with the Respondent that there is no evidence to support the Administrative Law Judge' s conclusion that the sister called in All we have is Archer's testimony that she said she did and that is clearly hearsay as to the ultimate fact The sister did not testify Consequently, we do not find that the call was made However, we reach no conclusion as to whether or not Archer's second reprimand was justified for Weber assertedly predicated issuance of the reprimand on the ground no call was made directly to him. Nevertheless , he conceded that the written rule did not require telephoning one's foreman but rather just calling in, and the accepted practice appears to have involved just that and no more 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he reprimanded them . We find this result unwarranted. Weber himself testified that throughout the period of the above incident he was only a few feet from Archer and Wehr. Consequently, he must have known what was going on unless it is supposed that he was not paying attention, a supposition quite at variance with his testimony . In these circumstances, we see no basis for concluding, as did the Adminis- trative Law Judge, that whatever the facts covering Archer's and Wehr's conduct Weber in truth thought they were engaged in horseplay and acted according- ly. Rather we conclude that, as he himself insisted, he knew what was going on. Indeed , he testified that the two were in fact "horsing" around. We are also skeptical of this claim, for as described, Weber observed the two closely during the incident and they knew he was watching them. Yet he contends that, under these circumstances, and despite their assert- edly having been previously criticized for horseplay on the job, they nevertheless openly engaged in such proscribed conduct. We find the inherent probabili- ties of the situation far more in keeping with Archer's and Wehr's denials of misconduct than with Wehr's claim of horseplay under his watchful eye. Furthermore, even accepting Weber's testimony that Archer and Wehr were engaged in horseplay -or accepting the Administrative Law Judge's conclusion that Weber really believed they were-we find little to support the Respondent 's position, for in such circumstances Weber's conduct appears patent- ly suspect. Thus, reduced to essentials his testimony is that he observed misconduct bordering on the unsafe, that he did nothing and said nothing at the time to stop it or to criticize its perpetrators, and that he thereafter silently walked away only to hand out the reprimands several hours later . Such behavior does not strike us as the conduct of a foreman particularly concerned about the alleged improper conduct of his subordinates. On the contrary, Weber's actions are more consistent with the conclu- sion that he was not unduly concerned with the horseplay-or that it in fact did not occur-but rather that he was mainly concerned with letting a situation develop or with creating one that would provide a plausible justification for giving Archer and Wehr reprimands. Accordingly, we find no basis for concluding, as did the Administrative Law Judge, that Weber was acting in good faith in reprimanding the two. Quite the contrary, we find that the alleged horseplay, whether or not it in fact occurred, was in either case a pretextual basis for giving Archer and Wehr a reprimand reflecting Stapleton's threat to employees that Respondent was going to watch closely those who attended the hearing and on their first little mistake give them written reprimands. The situation with respect to Wehr's third repri- mand involved some screws that somehow had fallen onto the floor. According to Weber's testimony, the screws had to be picked up before a mobile home could be moved along the production line; the screws presented some hazards to employees walking in the area; he asked Wehr four times to pick up the screws ; Wehr failed to do so ; and, 2 hours after his last request to Wehr, employee Kerns, without being requested to do so, picked up the screws. Shortly thereafter, Weber presented Wehr with a written reprimand for insubordination, suspended him, and 3 days later discharged him. Wehr, on the other hand, testified that Weber asked him to pick up the screws, that he said he would as soon as he finished nailing up some siding, and that some 5 minutes later when he was free Kerns had already done it. As for Kerns, he testified he picked up the screws 5 to 15 minutes after they spilled and that Weber later thanked him for doing so, adding , "That's all I needed." The Administrative Law Judge made no clear credibility findings concerning the foregoing versions of the incident where they are in conflict, but would seem to have accepted primarily that of Weber. At least, he concluded the reprimand was given for insubordination. However, Weber's conduct, as he himself describes it, again places in doubt the good faith of his own actions. Again, as in the horseplay incident, we are faced with a situation involving a somewhat hazardous condition and alleged miscon- duct by Wehr which , it is claimed, warranted giving Wehr a written reprimand, but which, nevertheless, was not deemed sufficiently serious to evoke any response from Weber, according to his own testimo- ny, to correct it for over a period of 2 hours. Once more Weber's behavior does not strike us as the conduct of a foreman particularly concerned about the allegedly hazardous conditions or the alleged misconduct of a subordinate . Instead it appears to be that of a foreman mainly intent on being presented with a situation that would provide him with a plausible ground for issuing a written reprimand. Such a conclusion is wholly consistent with Kerns' uncontradicted testimony that after he picked up the screws Weber thanked him, adding the comment, "That's all I needed." However, from our close review of the record, we believe that Weber's testimony is almost inherently incredible, especially in view of its conflict with Kerns' description of events which in all essentials accords with that of Wehr. Consequently, we are disposed to conclude that the alleged insubordina- tion did not occur. But it is unnecessary to go that far, for whatever testimony is accepted it is clear, and we so find, that the insubordination offered to justify FUQUA HOMES (OHIO), INC. 403 the reprimand was, in our view, a pretext designed to enable Respondent to discharge Wehr. There remains one final, troublesome aspect to Respondent's defense to Archer's and Wehr's dis- charges. It is claimed that Archer and Wehr were discharged "pursuant to the Company's established policy" requiring discharge on receiving three repri- mands. However, neither Archer nor Wehr was discharged on receipt of their third reprimand: they were suspended, and their discharges did not follow until several days later. At that time, the reasons given them for their final separations were not ascribed to the number of written reprimands they had accumulated. Thus, with respect to Archer, Weber testified that, after giving Archer his third reprimand and suspending him, he thought the matter over and discharged Archer several days later when he came to get his paycheck. Archer's testimo- ny, which, on this point, is not inconsistent with Weber's and is uncontradicted, was that when he came in for his check he was met by Weber and Garrett 12 who discharged him saying "that they could not have anybody fooling around with horse- play." 13 As for Wehr's exit interview, he was simply told that Respondent no longer needed him. Thus, in neither case was the person told what is now claimed to be the real reason for his discharge. This inconsistency, though perhaps not of major dimen- sions, is, nevertheless, under the circumstances, further evidence that Respondent was not dealing candidly with Archer and Wehr. Accordingly, we find additional support for our conclusion reached above that the reasons advanced by Respondent in explanation of Archer and Wehr's discharges were pretextual. In sum we find that Archer and Wehr were not discharged for accumulating three written repri- mands nor for having engaged in any misconduct. On the contrary, we believe the record fully shows, and we so find, that they were discharged because of their prounion activities and especially because of their testifying as union witnesses at the March 8 representation hearing. Consequently, we further find that the discharge of Wehr, a conceded employee, violated Section 8(a)(1), (3), and (4) of the Act. Archer's situation, however, presents a problem. The Respondent, as we have mentioned, contends 12 Garrett did not testify. 13 Of course, if that were the real reason then presumably Wehr also should have been discharged at that time as he was, according to Weber, guilty of the same horseplay. 14 N. L. R.B. v. Southland Paint Company, Inc., 394 F.2d 717, 720-721 (C.A. 5, 1968), finding an 8(a)(1) violation for demoting a supervisor to rank-and-file status for supplying a Board agent with affidavits used in opposition to the Company's position at a Board hearing. See also King Radio Corporation v. N.L.R.B., 398 F.2d 14 (C.A. 10, 1968), finding an 8(a)(l) violation in the discharge of a supervisor for testifying at a Board that Archer, being a group leader, is a supervisor. If that is so, then his discharge, insofar as it was based solely on his union activities would not, of course, be unlawful. The Administrative Law Judge, however, found Archer to be an employee and, in concluding his discharge was unlawful, rested his result in part upon that finding. But as explained below, the Administrative Law Judge erroneously excluded certain testimony which the Respondent sought to introduce in support of its claim that Archer was a supervisor. We cannot on the record now before us, therefore, affirm the employee finding with respect to Archer. However, it is well established that employee rights under the Act include "the right to have the privileges secured by the Act vindicated through the administrative procedures of the Board." Conse- quently, discrimination against supervisors for testi- fying before the Board, or otherwise cooperating in Board proceedings, "directly infringes the right of rank-and-file employees to a congressionally provid- ed, effective administrative process" and thus vio- lates Section 8(a)(1) of the Act.14 Therefore, as a substantial factor causing Respondent to discharge Archer was, as we have found, his participating as a union witness at the March 8 representation hearing, we find that, whether Archer is ultimately deter- mined to be an employee or supervisor, his discharge in either case violated Section 8(a)(1) of the Act and that a full and proper remedy requires that he be ordered reinstated to his former position of employ- ment.15 As a result of this finding, therefore, it is unnecessary for us to defer final determination of the unfair labor practice allegations respecting Archer until after further hearing on his alleged supervisory status, is ordered below, in connection with the representation portion of this proceeding. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2) and is engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. By threatening James Archer with discharge and by giving him a written reprimand for participat- ing in a Board hearing, Respondent has engaged in hearing and in the discharge of another for indicating a willingness to testify in such hearing ; N.L.R.B. v. Electro Motive Mfg. Co., Inc., 389 F.2d 61 (C.A. 4, 1968), affirming a Board 8(aXl) finding based on the discharge of a supervisor for giving a signed statement to a Board agent that he, the supervisor, had unlawfully threatened certain employees; and Oil City Brass Works v. N.L.R.B., 357 F.2d 466 (C.A. 5, 1966), finding an 8(a)(1) violation in the refusal to recall a supervisor from layoff for having testified adversely to the company at a Board hearing. 15 N.L.R.B. v. Electra Motive Mfg. Co., supra. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By threatening employees with discharge and by giving them written reprimands for engaging in union activities and for participating in a Board hearing, Respondent has engaged in conduct viola- tive of Section 8(a)(1) and (4) of the Act. 5. By coercively interrogating employee Carl Parsons concerning what testimony he would have given if called to testify at a Board hearing, Respondent has violated Section 8(a)(1) of the Act. 6. By discharging employee Ronald Wehr for engaging in union activities and for testifying at a Board hearing, Respondent has violated Section 8(a)(1), (3), and (4) of the Act. 7. By discharging James Archer for testifying at a Board hearing, Respondent has violated Section 8(a)(1) of the Act. 8. The above-described unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY We adopt basically the remedy as set forth in the Administrative Law Judge's Decision with, however, the following additions and modification. We shall order that Ronald Wehr, as well as James Archer, be reinstated and made whole in the manner and to the extent set forth for Archer in that section of his Decision entitled "The Remedy." In view of the Respondent's multiple violations of the Act, including unlawful discharges, we find in agreement with the General Counsel, but contrary to the Administrative Law Judge, that a broad order is fully warranted and we shall so provide. The Representation Proceeding As described above, the election was held on May 25, 1973. The Union received 20 votes, 16 were against it, and 10 ballots were challenged. The Employer filed timely objections to conduct affecting the results of the election and on June 27, 1973, the Regional Director issued his order directing that a hearing be held on the issues raised by the challenges and objections and consolidating the representation case with the unfair labor practice case. The Regional Director's order specified, inter alia, that the Administrative Law Judge in his Decision make recommendations as to the disposition of the issues raised by the challenged ballots and the Employer's objections. As we have already mentioned, the Administrative Law Judge ruled on all the challenges but in his Decision failed to give any consideration whatsoever to the Employer's objections. The challenged ballots: There were 10 challenged ballots. Eight of these were the ballots of group leaders James Archer, Stanley Greathouse, Carl Parsons, Robert Rossiter, Mitchell Perkins, Fred Kress, Dave Matthews, and James Reed which were challenged by the Board agent on the ground that their supervisory status was in issue atthe time of the election. The ballots of Ronald Wehr and Robert Flowers were challenged, respectively, by the Em- ployer and the Union on the basis that they were no longer employees on the date of the election. The Administrative Law Judge concluded that Matthews, Rossiter, Perkins, Kress, and Greathouse were supervisors and thus ineligible. The Union excepted to these conclusions with respect to Perkins and Kress, but no exceptions were filed with respect to the others. Accordingly, in the absence of exceptions thereto, we adopt the Administrative Law Judge's recommendations to sustain the challenges to the ballots of Matthews, Rossiter, and Greathouse. The Administrative Law Judge also recommended that the challenge to Wehr's ballot be sustained as he had been lawfully discharged prior to the election. However, in view of our finding above that Wehr's discharge was unlawful, we find that Wehr was an employee and thus an eligible voter on the date of the election. Accordingly, we hereby overrule the challenge to his ballot. The Administrative Law Judge, for various rea- sons, concluded that the challenges to the ballots of Archer, Parsons, Reed, and Flowers were without merit. The Employer excepts to this conclusion with respect to Archer; there are no exceptions to the others. Accordingly, in the absence of such excep- tions, we adopt the Administrative Law Judge's recommendations that the challenges to the ballots of Reed, Parsons, and Flowers be overruled. There are thus at this stage of the proceeding three challenged ballots still in dispute-those of Archer, Kress, and Perkins-and four overruled challenged ballots-those of Wehr, Parsons, Reed, and Flowers. Irrespective of their designation, the ballots of the last-named four employees cannot, if counted, resolve or render moot the issues raised by the yet disputed challenges or by the Employer's objections. Consequently, a remand limited to opening and counting those ballots would serve no useful purpose at this time. As to the remaining disputed challenges, Archer, Perkins, and Kress are all group leaders which, as the current record shows, entails their having some responsibilities for seeing that the work of their groups, composed of two to possible as many as nine employees, is done properly and on time. It can be said that in general the Employer maintains that these group leaders exercise responsible direction and also have certain other supervisory powers. The FUQUA HOMES (OHIO), INC. 405 Union contends that the work of these group leaders is essentially routine and does not involve the exercise of any supervisory authority. As noted previously the Administrative Law Judge found Archer to be an employee and Perkins and Kress to be supervisors. With respect to Archer and Perkins, the Employer, in support of its position that they were supervisors, sought to place in evidence testimony by employees in Archer's and Perkins' groups for the purpose generally of showing what the group leaders did on the job, what they said to employees in their groups concerning the quality of their work, and basically what was the relationship between the group leader and employees in the group. The Administrative Law Judge, however, took the position that a group leader's supervisory status could not be established through the testimony of an employee under him but only through that of a superior. Consequently, upon the Union's objections, he barred rank-and-file employees from testifying with respect to the on-the- job activities of Archer and Perkins. In doing so, we find he acted erroneously and committed clear, prejudicial error both with respect to their not being allowed to testify as to such matters and in not admitting their testimony to that effect into the record. The employees were competent to testify to what they knew about the duties of Archer and Perkins; and there can be no doubt that such evidence is germane with respect to the supervisory status of an individual. Accordingly, the ruling of the Administrative Law Judge barring such testimony and its admission as record evidence is hereby reversed. The supervisory issue concerning Kress does not involve the foregoing evidentiary ruling as the Employer did not seek to introduce testimony concerning Kress' supervisory status through rank- and-file employees. Consequently, the issues raised by the Union's exceptions to the Administrative Law Judge's finding that Kress is a supervisor can be decided on the record before us (except as the evidence in the remand hearing might indirectly bear on his status). Nevertheless, as we shall remand the representation case for, inter alia, further hearing, we shall permit the parties to introduce any other evidence they may have to present concerning Kress' status, and we shall defer passing on his status at this time. The Employer's objections: The Employer filed 14 numbered objections. The Administrative Law Judge as stated, did not pass on any of them. The General Counsel and Employer except to his failure to do so 16 See, e.g., Turner's Express, Incorporated 189 NLRB 106, enforcement denied 456 F.2d 289 (C.A. 4, 1972). 17 The rulings upheld certain objections made by the Union. The and their exceptions in this regard are plainly meritorious. The Employer also excepts to certain rulings of the Administrative Law Judge at the hearing which it claims effectively and improperly prevented it from developing its case in support of its objections. The rulings complained about did preclude the introduc- tion of testimony concerning the extent and type of activity by alleged supervisors during the critical period in support of the Union's organizing activities. Such testimony was patently relevant16 and admissi- ble and the Administrative Law Judge' s rulings excluding the testimony was, we find, prejudicial error.17 In view of all the foregoing, it is necessary that the representation case be remanded for further hearing before the Administrative Law Judge and for issuance by him of a supplemental decision covering the challenged ballot issues outlined above, and the issues raised by all of the Employer's objections. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Fuqua Homes (Ohio), Inc., Caldwell, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist: (a) Giving employees written reprimands and threatening them with discharge because they engage in union or other protected concerted activity. (b) Giving employees or supervisors written repri- mands and threatening them with discharge because they appear at a Board-conducted hearing for purposes of testifying or because they testify at such hearing. (c) Coercively interrogating employees concerning how they would testify at a Board hearing. (d) Discouraging membership in or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging employees for engaging in protected union and other concerted activities. (e) Discriminating against employees by discharg- ing them for having testified at a Board-conducted hearing. (f) Interfering, restraining, and coercing employees with respect to their rights protected under the Act by discharging supervisors for having testified at a Board-conducted hearing. (g) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their Administrative Law Judge did not explain on what basis he upheld the objections and the Union offered no basis for objecting. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights of self-organization, to form, join, or assist the United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from engaging in all such activities. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: (a) Offer Ronald Wehr and James Archer immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to their seniority or other rights or privileges enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, with interest at the rate of 6 percent, as provided in the sections of the Board's and Adminis- trative Law Judge's Decisions entitled "The Reme- dy.„ (b) Preserve and, upon reasonable request, make available to the Board or its agents, for examination and copying, all payroll records, personnel records and reports, and all other records necessary to analyze the amount, if any, of backpay due under the terms of this Order. (c) Post at its premises at Caldwell, Ohio, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter,in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the record in this consolidated proceeding insofar as it relates to Case 9-RC-9948 be, and it hereby is, reopened, and that a further hearing be held before Administrative Law Judge James V. Constantine for the purpose of receiving additional evidence relevant to the supervi- sory status of James Archer and Mitchell Perkins and to Respondent-Employer's objections. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Director for Region 9 for the purpose of arranging such. further hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTHER ORDERED that, upon the conclusion of the supplemental hearing, the Administrative Law Judge shall prepare for Case 9-RC-9948 and serve on the parties a supplemental decision therein containing findings of fact, conclusions of law, and recommendations concerning the supervisory status of Archer and Perkins and the merits of Respondent- E_mployer's objections, and that following the service of such supplemental decision upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applica- ble. 18 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT give our employees written reprimands or threaten them with discharge because they engage in union or other protected concerted activities. WE WILL NOT interrogate employees concern- ing how they would testify at a Board hearing. WE WILL NOT discourage membership in or activities on behalf of the United Steelworkers of America, AFL-CIO, or any other labor organiza- tion, by discharging employees for engaging in protected union and other concerted activities. WE WILL NOT give employees or supervisors written reprimands or threaten them with dis- charge or discharge them because they appear at hearings held by the National Labor Relations Board for purposes of testifying, or because they do testify, at such hearing. WE WILL NOT interfere with, restrain, or coerce employees with respect to their rights protected under the Act by giving supervisors written reprimands or by threatening them with discharge or by discharging them because they testify at Board hearings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form, join, or assist the United Steelworkers of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representa- FUQUA HOMES (OHIO), INC. 407 tives of their own choosing , to engage in concert- ed activities for the purpose of collective bargain- ing or other mutual aid or protection , or to refrain from engaging in all such activities. WE WILL offer James Archer and Ronald Wehr immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent ones , without prejudice to their seniority and other rights and privileges enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of their discharges, with interest at the rate of 6 percent per annum. All our employees are free to become , remain, or refuse to become or remain members of said United Steelworkers of America, AFL-CIO, or any other labor organization. FUQUA HOMES (OHIO), 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 be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202 , Telephone 513-684-3686. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is a consolidated case consisting of an unfair labor practice case and a representation case brought under the National Labor Relations Act, 29 U.S.C. 150, et seq. In the unfair labor practice proceeding, Case 9-CA-7739, a charge was filed on April 30, and an amended charge on May 21, 1973, against Fuqua Homes (Ohio), Inc., herein called the Respondent or the Employer, by United Steelworkers of America, AFL-CIO, herein called the Union. Upon such charge and amended charge the General Counsel of the National Labor Relations Board, by the Acting Regional Director of Region 9 (Cincinnati, Ohio), issued a com- plaint on June 27, 1973, alleging in substance that Respondent committed unfair labor practices violating Section 8(a)(1), (3), and (4) and affecting commerce as defined in Section 2(6) and (7) of the National Labor Relations Act, herein called the Act . Respondent has answered admitting some facts but denying that it committed any unfair labor practices. In the representation case, 9-RC-9948, the Union filed with the Board a petition to be certified as the bargaining representative of the Employer's employees in a specified unit. At the election held on May 25 , 1973, the ballots of 10 voters were challenged. In addition, the Employer filed timely objections to the conduct of the election and to conduct affecting the results of the election . On June 27, 1973, the Acting Regional Director directed a hearing on the issues raised by said challenges and objections before an Administrative Law Judge and a decision thereon by said Administrative Law Judge. On said June 27, said Acting Regional Director further ordered that the hearing on the above unfair labor practice case be consolidated with the hearing on said challenges and objections; and he also ordered that after said Administrative Law Judge has issued his decision that the representation case be transferred to and conducted before the Board. Pursuant to due notice this consolidated case came on to be heard, and was tried before me, at Cambridge, Ohio, on August 28, 29, and 30, 1973. All parties were represented at and participated in the trial and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and present oral argument. Briefs have been received from all parties. In the unfair labor practice case the issues are: 1. Whether Respondent threatened employees with discharge for engaging in union activity. 2. Whether Respondent gave written reprimands to, and also discharged, James Archer and Ronald L. Wehr for giving testimony in a Board proceeding. 3. Whether James Archer is an employee or a supervi- sor; and, if an employee, whether he was discharged lawfully or for his union sympathies , membership, and activities. 4. Whether Ronald Wehr is an employee or a supervi- sor; and, if an employee, whether he was discharged lawfully or for his union sympathies , membership, and activities. In the representation case the issues are: 1. Whether the challenges to the 10 voters, or any of them, are meritorious. 2. Whether the objections , or any of them, should be sustained. Upon the entire record in this case, and from my observation of the demeanor of the witnesses , I make the following: FINDINGS OF FACT I. AS TO JURISDICTION Respondent, an Ohio corporation, is engaged at Cald- well, Ohio, in manufacturing mobile homes. During the year preceding the issuance of the complaint herein, a representative period, it purchased goods and products valued in excess of $50,000 directly from points outside the State. I find that Respondent is an employer within the meaning of Section 2(2) and is engaged in commerce as defined in Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material has been , a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence 1. The discharge of Ronald L. Wehr Ronald Wehr was hired by Respondent about September 10, 1972, as a metalsmith in its metal department. His supervisor at that time was Greg Stapleton. Later one Weber replaced Stapleton as his supervisor. In late January 1973, he aided the Union, "as an organizer for" it, by passing out stickers, bumper stickers, pocket-savers, pencils, and badges, and by wearing stickers, badges, and pocket-savers on his clothes. At the time the Union was conducting an organizing drive at Respondent's plant. About January 22, 1973, in the evening, he attended a union organizational meeting held in Caldwell, at which he signed a union card. He also invited a couple of employees at the plant to this meeting. In addition, he attended all subsequent meetings, about five or six in all. On February 22, 1973, he reported that he would be off the next day to Greg Stapleton, his foreman, telling the latter it became necessary as he was to attend an NLRB "labor relations hearing for the Union" on February 23. As Stapleton said nothing in response, Wehr did go to that hearing. Wehr also attended another NLRB hearing about March 8, this being a continuation of that on February 23. On March 7 he also reported off for the next day to Stapleton, but the latter said nothing. It was stipulated that these were representation hearings held in Case 9-RC-9948. In the afternoon of March 7, Production Manager Andrew Garrett told Wehr that Wehr would have to work from 7 a.m. to 9 a.m. the next day. But Wehr replied that, as he had to "meet with my lawyer that morning before the hearing" he would not be able to work at all on March 8. Garrett insisted that if Wehr failed to work from 7 to 9 a.m. "it would be an unexcused absence." Wehr did not work at all on March 8, but, instead, went to the hearing that day and testified as a witness for the Union. It was held at 10 a.m. in Caldwell, about three-fourths of a mile from the plant. About March 9, 1973, when Wehr went to get his check that evening he found that his was missing. Upon asking Foreman Stapleton for its whereabouts the latter replied that Wehr would have to go to Stapleton's office to receive it. So Wehr went to that office. Thereupon Stapleton handed Wehr a written reprimand "for an unexcused absence" on March 8 from 7 to 9 a.m., and requested Wehr to sign it. Wehr then signed it. (See G. C. Exh. 2.) Stapleton also told Wehr on this occasion that "the company and [Stapleton] were out to get everyone of us that went to the hearing . . . . They was going to watch everything we did, and the first little mistake they were going to write us up for it, and after three reprimands we would be fired." Prior I In his affidavit to the General Counsel of the Board Wehr asserted that Weber did not instruct him to pick up the screws, but Wehr on the stand to this Wehr had never received a reprimand while working for Respondent. On the other hand he had been compli- mented by his superiors for "doing real good work." About April 10, 1973, Wehr, while carrying heavy cardboard about 12 feet long with James Archer, bumped into a scaffold and tripped over a toolbox which lay in his path. About quitting time that dayForeman Bobby Weber handed Wehr another written reprimand for horseplay causing this bumping and falling. Wehr protested that it was not horseplay because he hurt his back in this incident and had to consult a doctor therefor. On May 8, 1973, Foreman Weber "started riding us as soon as we got to work . . . . He rode us all that morning." Shortly after luncheon that day the leg of the table on which Wehr had placed his tools fell off, so that the table fell and some screws and his tools fell to the floor. Although he picked up the tools he "paid no attention to" the screws "because there's always screws and nails and everything laying on the floor. So I just went right back to work." Soon Weber "came around" and directed Wehr "to pick up those screws." As Wehr "was right in the middle of nailing a piece of siding [and] standing up on the table," he replied that he would comply with this order as soon as he completed nailing the siding. About 3 or 4 minutes later Wehr observed Kerns and Martin sweeping the floor, so that said screws had thus been removed by the time Wehr finished his task. Wehr testified that "they [always] sweep the floor before they move every coach," and that a coach was moved past his work station very soon after his screws were swept up.' Soon Foreman Weber asked Wehr to come to Weber's office. Upon arriving there Wehr was presented with a written reprimand by Weber "for not following instruc- tions . . . disobeying orders . . . [for not] picking those screws up." Thereupon Weber suspended Wehr "until further notice and to come back Friday to pick up" Wehr's paycheck. On Friday, May 11, when Wehr went to the plant for his check, production manager Garrett and Foreman Weber informed him that they no longer needed him at Fuqua Homes. In a few minutes he was handed his final paychecks. 2. The discharge of James Archer James Archer started working for Respondent on February 7, 1972, as a metalsmith in its metal department, under Foreman Curt McDaniels. Later he was transferred to final finish under the same foreman. Sometime later Greg Stapleton, and after that Bob Weber, became his foreman, in the same department. From final finish he was promoted to group leader while Stapleton was his foreman, and was so informed by Stapleton and Production Manager Bob Amidon. They informed him that, as group leader, his duties involved "to make sure everything was done, and it was to have a good looking coach when it come out, and to see the people were busy, and to help out when I was needed." As such group leader he also received a wage increase of 10 cents an hour. Both before and after he became a group leader Archer testified, as recited in this paragraph, that Weber did tell him to pick up said screws from the floor. FUQUA HOMES (OHIO), INC. 409 punched a timeclock and was paid by the hour. In addition, as such leader he devoted about 95 percent of his work day to "physical work activities" and 5 percent to "checking on materials and stuff like that." When an employee was absent Archer, as group leader, "filled in for him." When engaged in "physical work" as group leader Archer daily used staple guns, hammers, nails sets, saws, and drills, just as other employees used these same tools. But as group leader Archer lacked authority to hire or fire, or to recommend the same, or to transfer or recommend the transfer of an employee from one department to another, or to discipline or recommend the discipline of an employee. Further, both Archer and the employees knew "what to do on a particular product" from a "production card" attached to the front of it, but he had no part in preparing said card. About January 22, 1973, Archer attended a union meeting, and went to an additional four or five of them. In addition, he solicited employees to come to said meetings and gave out union pocket protectors, bumper stickers, pencils, pins, and stickers to employees. About March 7, 1973, Archer informed Production Manager Andrew Garrett that he had to be off the next day "because we had a hearing with the Union and the Labor Relations Board." Later that day Garrett instructed Archer to work from 7 to 9 a.m. on March 8 because "they needed [Archer] to work." Archer replied that he "had to go talk with the union lawyer" in the morning of March 8. Still later on March 7 Attorney Miles, in the presence of other officials of Respondent, interrogated Archer as to his duties as a group leader . Then just before quitting time on March 7 Foreman Greg Stapleton asked Archer, Wehr, and Parsons to work the next day but they replied they were unable to do so "because we had to meet with our lawyer the next day." Stapleton then said, "If you can't work, you can't." On March 8 Archer testified on behalf of the Union in the Board hearing. Previously that morning about 7:30 a.m. he met with Union Attorney Jaffey and Union Organizers Weaver and Worthington. About 7:30 a.m. on March 9 Foreman Greg Stapleton told Archer that "there was no s.o.b. that was going to cause him to lose his job and that [Archer ] would be going before [Stapleton] was, and that [Archer] would be back in Woodsville mounting tires again." At quitting time the same day, i.e., 3:30 p.m., Archer was told to go to his foreman's office to receive his paycheck. When he arrived there he was handed a written reprimand by Foreman Stapleton in the presence of two other foremen and Production Manager Garrett. Prior thereto Archer had never received a reprimand. On March 19, 1973, Archer was ill. So he told his sister to call in for him that he would be out that day on account of sickness. She, as well as his mother, had sometimes so called in for him in the past. However, Foreman Bob Weber gave Archer a reprimand because Archer had not called in and that "it would be an unexcused absence." But Archer replied that he had called in and would not sign the reprimand. Nevertheless he signed it "so [he] could get out of there." This was Archer's second reprimand. At quitting time on April 10, 1973, Archer received still another reprimand, this time "for horseplay during working hours. Danger to other employees." (See Resp. Exh. 2.) Circumstances surrounding this incident are recited above in the testimony of Ronald Wehr, and need not be repeated here as Archer's version substantially corresponds to that of Wehr. Archer denies he engaged in any horseplay. In addition Foreman Weber informed Archer that Archer was suspended until further notice and that if Archer was not called by Friday to come in to pick up his paychecks. But at or about 6:30 p.m. on Thursday Weber asked Archer to come to the plant. When he arrived there Archer was confronted by Weber and Production Manager Andrew Garrett, both of whom said "they couldn't have anybody fooling around with horseplay and that they didn't want to hold [Archer] back from something else better." On this occasion Archer was discharged by Foreman Weber. On cross-examination Archer admitted that he knew that engaging in horseplay could result in his being terminated and that "failure to call in was a violation of company rules." He also testified that the NLRB hearing started at 10 a.m. on March 8, and that he could drive to said hearing in "10-15 minutes." 3. Alleged other violations of Section 8(a)(1) of the Act In addition to the pertinent testimony of Archer and Wehr, set forth above, evidence as recited below was introduced by the General Counsel on this issue. Danny Allbritain was hired by Respondent in March or April 1972, as a plumber under Supervisor Melvin Thomas. He left Respondent's employ in April 1973. On March 9, 1973, the day after he testified in a Board representation proceeding, Allbritain and employee Fred Kress inquired at the office why they did not receive their paychecks. Foremen Jerry Clark and Greg Stapleton and Production Manager Andrew Garrett, to whom said question was directed, had them sign a reprimand and then handed them their paychecks and admonished them "two more of these [reprimands] and you're out." At the same time Allbritain was handed a written reprimand for "not reporting to work from 7:00 a.m. until 9:00 a.m. March 8, 1973." (See G.C. Exh. 4.) In the forenoon of March 7, 1973, Allbritain and Fred Kress informed their supervisor, Jerry Clark, that they would not work the next day. Nothing was said by Clark at the time. At or about 3:30 p.m. on said March 7, Clark and Production Manager Andrew Garrett told Allbritain and Kress, "We'd like for you to come tomorrow . . . from 7 a.m. to 9 a.m." When Allbritain replied that he had "reported off for the whole day" of March 8, Garrett remarked, "We've got to cut this stuff out, it's interfering with our work . . . . It was cutting down production." Allbritain also attended the previous Board hearing in the same case and took the day off for that purpose, but he did not testify then. Yet he was not reprimanded for not working that day. Further, Allbritain explained that an employee who intended not to work on any day was "supposed to call in that morning before, I believe it was 7:00 o'clock. They had it on the wall." He also stated that the hearing for March 8 was scheduled to open at 10 a.m., and that he 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could reach it in 3 or 4 minutes from the plant "if you don't go home and clean up." Finally, he admitted that he told Garrett on March 7 that he was going to take off the entire day on March 8 and "didn't care what Mr. Garrett said at all." Carl Parsons was hired by Respondent in the first week of August 1972, to build inwalls under Supervisor Melvin Thomas. An adequate summary of his testimony follows. Later he was transferred to the job of a carpet layer. On March 7, 1973, Parsons reported to Greg Stapleton that Parsons would be off on the next day. Stapleton replied "All right." Later Stapleton told Parsons that Parsons would have to work from 7 a.m. to 9 a.m. on March 8 and that he "could go from there to court." Parsons protested that he "had to be up there early in the morning . . . to meet with the attorney." And Parsons did meet with Attorney Jaffey the morning of the NLRB hearing. Although Parsons attended the hearing at the Union's request he did not testify at it. On March 9, Stapleton asked Parsons if he had been called as a witness what Parsons would have testified on the stand. Parsons replied, "I would just tell the truth." Later that day Stapleton told Parsons, Archer, and Jim Lawrence, "This was it . . . [I'd] be watching for [you] and that the first mistake, [you] was out the door." Still later that day, when Parsons went to pick up his paycheck, Stapleton served him with a written reprimand for being absent from 7 to 9 a.m. on March 8. It is worded like General Counsel's Exhibit 4. Then Stapleton added that Parsons would be fired "after three" reprimands. B. Respondent's Defense From January 1972 until late August 1973, Robert E. Weber worked for Respondent. A conspectus of his testimony follows. For some time he served as a group leader. As such group leader he "had two other men under" him and "was a leader for the men" who were under him. Additionally he "had the right to correct .. . and also had the authority to write reprimands"; he assigned work; he "transferred employees from one job to another" ; "had the duty of releasing any employee who could not do his job." In March 1973, Weber was promoted to foreman. In this capacity group leaders Jim Archer and Stanley Greathouse reported to him. Sometime in late March 1973, Weber "told [Jim Archer] what the responsibilities of the group leader were." These included the authority to write a reprimand on "anyone not contributing their load." Continuing, Weber testified that he issued more than one reprimand to Archer and Wehr and that he discharged both Archer and Wehr. On April 5, 1973, Weber gave Archer a written reprimand for "not calling to report absence on 3-26-73 to supervisor." (See Resp. Exh. 4.) Nor did anyone else call in on Archer's behalf on March 26. On April 10, 1973, Weber issued a reprimand to Wehr for "horseplay during working hours. Danger to other employees." (See Resp. Exh. 5.) It is based on the same incident which resulted in the issuance of a reprimand (see Resp. Exh. 2) by Weber to Archer. These two reprimands are based on the fact that Weber observed Archer and Wehr "laughing, carrying on ... one stepped on the other end of the paper and the other one jerked it and the other one fell, and in the process of coming up the line .. . someone could have gotten hurt. . . . Archer was standing on the paper and Wehr pulled the paper out from under him." Further, Weber insisted that he had in the past "warned or reprimanded" both Archer and Wehr "about horseplay ... quite frequently." Following "this particular reprimand" Archer was first suspended and on the following Thursday was terminated. But Weber did not call Archer to the plant on that Thursday. On May 9, 1973, Weber issued another reprimand to Wehr for "Refusal to follow orders. Suspended until further notice." (See Resp. Exh. 6.) It was prompted as a consequence of Wehr's "spilling of screws off the scaffold" and failing to pick them up after Weber four times told him to do so. About 2 hours later Kerns removed the screws from the floor. As a result of this refusal Wehr was dismissed by Weber the following Friday. On cross-examination Weber stated he observed Archer distributing union literature and wearing union insignia on his safety helmet. Also, Archer gave him pencils carrying the legend "Vote United Steelworkers." Additionally, on cross-examination Weber admitted that as a group leader he "basically followed a production order in doing what was to be done" and that he was a "working group leader" doing physical work 60 percent of the time. The other 40 percent of the time he helped the two men working under him by "working together with them ... under me." He also stated that Respondent does not put out any written material describing the duties of a group leader; and that after Archer was discharged no one replaced him as a group leader. Respondent's cabinet shop foreman, Thomas Moore, testified in substance as follows. Group leader David Matthews was informed by Moore that the duties of Matthews as such group leader included "responsibility for the production that came out of the shop, and the quality that came out of the shop, and as he could write a person up, give them a reprimand, if he thought it necessary." Moore not only introduces new employees in his depart- ment to the group leader, but also explains to them to refer their problems to such group leader. Such leader then introduces the new employees to the other employees. As a group leader Moore once issued a reprimand after consulting his foreman. Continuing, Moore affirmed that his group leader, Matthews, (a) "decides whose job it is to do, and then to discuss it with me, and then that's who works overtime," (b) "has the responsibility to keep the quality up" and (c) requires the employee who makes "mistakes or shoddy work" "to fix it or straighten it up, or whatever it might be." Also, before becoming a foreman Moore served as a group leader. Then Matthews succeeded him as such group leader, performing the same duties Moore had as such leader. As such leader, Moore "was to take care of the shop, the production that come out of it, and the quality, and that I was responsible for what went on back there, and that if anyone need wrote up that I could do that." As group leader, Moore and other such leaders attended meetings of foremen with management, but group leader Dave Matthews did not attend such meetings. However, FUQUA HOMES (OHIO), iNC. group leaders James Archer, Robert Rossiter, Mitchell Perkins, Fred Kress, and Carl Parsons did attend such meetings . Finally, Moore averred that Matthews as group leader could not excuse an employee from work during the day after said employee started the day unless Matthews first "reported it to" Moore and obtained Moore's sanction. Jerry Clark, another witness for Respondent, testified in substance as follows. Clark is the foreman in the framing department. Three group leaders, Robert Rossiter, Fred Kress, and Mitchell Perkins, "reported to" him. When said group leaders "had a problem with an employee not doing exactly what they wanted [the employee] to do" they talked to Clark about it. Clark instructed them "to talk with the employee. If it didn't help, write them up . . . for not doing their work." Before being promoted to foreman, Clark worked as a group leader under Foreman Melvin Thomas. Clark stated that Kress as group leader was over 6 employees, Rossiter over 10 employees, and Perkins over 7 employees. In addition, Rossiter "issued oral warnings" to employees which Clark personally heard. Further, Clark stated it was his practice to introduce a newly appointed group leader to the employees and informed them that such leader "will be telling you what to do and how to do it. And he's like if I was telling you." Thereafter the group leader "more or less has a full say over what [an employee] does in his department." At one time Clark served as a group leader. As such he recommended that an employee be discharged. As such leader Clark also recommended the hiring of employees but only after Foreman Thomas asked for his opinion of them. Clark also attended meetings of foreman with management . Further, Clark testified that as a foreman he observed James Archer, Fred Kress, Mitchell Perkins, and Carl Parsons "distribute or display union literature to employees at Fuqua Ohio." Finally, Clark stated that group leaders "worked along the side of the group they worked with ... . They assign to the men under them what they want them to do"; that group leaders punch a timeclock and are paid on an hourly basis; that foremen, but not group leaders, are provided with the company parking spaces; that foremen enjoy a different health and accident insurance program than that provided for group leaders; that the group leaders are granted the same insurance program extended to hourly paid employees; that an employee may not take off during working hours or fail to report to work without the approval of the foreman; that group leaders and employees, but not foremen, "share in the same way" in a bonus plan. Another witness for Respondent, Larry Thomas, testified that, as an employee in its finishing department, he was introduced by his foreman, Greg Stapleton, to his group leader, James Archer. Thereafter Archer, as group leader, directed Thomas what jobs to perform. Later Thomas himself became a group leader, but no one challenged his vote when he voted in the election in Case 9-RC-9948. Thomas also testified that in May 1973, he heard Robert Weber ask Ronald Wehr to "pick up . . . or clean up" some screws on the floor. Replying that he didn't drop the screws on the floor, Wehr not only did not comply with 411 Weber's request but also stated that he would not pick up the screws. Group leader Robert Lee Rossiter also gave testimony on behalf of Respondent. A summary thereof follows. When he was made a group leader he was told by Foreman Thomas and Production Manager Amidon that his duties as such leader were "to see that the work was done, and ... to see that the quality and the quantity was put out." They also told him he could give oral or written warnings, "or could recommend a written warning," or "could recommend a firing of an employee . . . and the hiring of an employee." He also could recommend a raise in pay for employees and did do so at least three times. He also recommended a discharge. Then Thomas introduced Rossiter to the employees as their group leader , informing them that they would be working for Rossiter, that Rossiter would be over them, and that if they needed anything to see Rossiter about it . As a group leader Rossiter , together with other group leaders and foremen, attended meetings with Production Manager Amidon. In some of these meetings, at which no employees were present , Amidon told the group leaders that they were responsible for the quality of the work and performance of any changes in work orders. As noted above Rossiter did testify that he was vested with certain powers which he there described. He also testified that he reprimanded employees by obtaining a written, signed reprimand from Foreman Thomas and handing it to an employee; and often gave oral warnings to employees and then reported such incidents to Foreman Thomas. Respondent's final witness, Robert Amidon, its pro- duction manager from December 1971 to January 1973, gave testimony in substance as follows. He "set up the complete organization as far as the chain of command out in the plant. Also the disciplinary system." Describing such chain of command, he declared that it was "similar to the Army . . . first line were the group leaders, second line the foreman, third line myself." With the foreman, Amidon selected the group leader for a group of employees "based on the person's ability to direct other people." Among others he recalled promoting to group leaders Mitchell Perkins, James Archer, and Thomas Moore. Amidon also stated new employees were given a handbook. (See G.C. Exh. 7.) When a group leader was appointed Amidon outlined such leader's duties to him. Such duties included "making sure that the group did the work that was required; that all people were kept busy; that the quality of the work that was produced was first rate. They were also responsible for recommending anybody for raises; anybody for termina- tion or writing any written reprimands, either through writing them themselves or asking a foreman to do so." He also reminded the group leaders, including Archer, Kress, Rossiter, Moore, and Perkins, at group meetings, of their responsibilities as such leaders . At least one of those meetings was called by group leader Rossiter . On this occasion Rossiter complained that the foremen were usurping his authority by dealing directly with employees. All meetings were attended by Amidon, foremen, and group leaders, but not by rank-and-file employees. Those 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attending such meetings discussed production problems , IV. THE RESPRESENTATION CASE quality problems, and quantity problems. At all such meetings Amidon told the group leaders that they were the foremen's right hand. According to Amidon a group leader's responsibility, "as far as discipline went, was equal to that of the foremen with the exception of the fact that the Group Leader could not terminate an employee. He could recommend him being terminated ...." They had the authority to disci- pline an employee by writing a warning notice or recommending such a notice to the foreman . Also "the group leaders could recommend an employee for a raise .... Further, Amidon asserted that he once treated the group leaders to a lunch and once to a dinner . But he also once took to a lunch a group which included rank -and-file employees. Finally, he stated that if he observed a problem arising in the plant he generally would not talk to the employee involved about it but, rather, took it up with the group leader or the foreman. On cross-examination Amidon admitted that no space is provided in the handbook in evidence as General Coun- sel's Exhibit 7 to insert the name of the employee's group leader, whereas said handbook does have a space preceded by the legend "Your immediate Supervisor is Foreman ." (See p. 4, G.C. Exh. 7.) In fact he stated that an employee's group leader's name was never inserted in said handbook by Respondent. He also did not deny that Respondent had no written statement of a group leader's duties or responsibilities. C. General Counsel's Rebuttal Evidence James Archer was recalled by the General Counsel as a witness in rebuttal. His testimony in this capacity may be succinctly stated as follows. Initially, he insisted that no "management official" told him he had the authority to hire or discharge, or discipline employees , or to recom- mend a discharge . But when as a group leader he was once asked about Hupp, an applicant for employment who had used his name as a reference, Archer recommended said Hupp. Also Archer testified that Foreman Stapleton, Archer's foreman, was over two other group leaders, and that Archer was a group leader over five employees. However, when a layoff became necessary, and Foreman Stapleton asked him what Archer thought about a certain employee, Archer replied "it would be all right." Said employee was then let go. Continuing, Archer claimed he could not "send an employee home for disciplinary reasons," and that he could transfer an employee from one department to another only when he "had instructions to." However, Archer conceded he had been specifically authorized to direct employees in his final finish department "to do particular jobs within that department ... as [he] saw the need arising." He also "filled in" for an absent employee by doing such employee's work. But he lacked authority to promote employees or grant wage increases, or to recom- mend the same, or to give an employee permission to take time off or to leave work early. A. Respondent's Evidence In presenting evidence in the unfair labor practice case Respondent also adduced evidence in support of its position in the representation case . As this latter evidence is related above as part of Respondent's defense in the unfair labor practice case, it need not be repeated at this point. B. The Union's Evidence Danny Allbritain worked under group leader Robert Rossiter. In about October 1972, Rossiter told him that when Allbritain first started to work Rossiter tried to get him fired because he "wasn't doing too good," but that Rossiter later told him, in connection with an impending layoff, "I think we're going to keep you." Then in about February 1973, Rossiter "just kept yelling, `get to work"' at Allbritain. When the latter suggested that Rossiter fire him if his work was unsatisfactory, Rossiter replied, "I can't.,, It was stipulated at this stage of the proceeding that Robert Flowers, whose vote was challenged by the Union, notified the employer prior to May 25, 1973, that he was terminating his employment on May 25, that he punched out at 4:30 p.m. on said May 25, and that after said May 25 his employment at Fuqua Homes ceased. J. D. Kerns served as a group leader in the metal department for about 2 or 3 months beginning about February 1, 1972. When Kerns was appointed a group leader Plant Manager Amidon told him that "three new guys [were ] coming in Monday," that Kerns should "take one ... and the other one would be working with Stanley." But at no time was Kerns given any other instructions concerning his duties as a group leader. When an employee in his group was absent the foreman or production manager provided a substitute for such vacant job, but otherwise Kerns had no authority (a) over any employee, or (b) to hire or fire or to recommend the same, or (c) to "adjust ... or handle" an employee's problem "with respect to the work." In fact Kerns devoted 95 to 100 percent of his working time performing physical work on the job. According to Kerns, employees in his group knew what work was to be done by reading a "hard card" on a particular mobile unit, and they could interchange or "swap" jobs in the group by merely asking him for permission to do so because "it didn't make any difference as to who did what .9' Kerns also witnessed an incident involving Ronald Wehr and some screws. Although Kerns "heard the table fall and the screws went on the floor" he "didn't think nothing about it." With two others Kerns, about 5 to 15 minutes later, raised the fallen scaffold and also he personally picked up between 100 and 150 screws which he placed in a little box on the table. Not long after this Foreman Bob Weber thanked Kerns for picking up the screws. Kerns did ,not know where Wehr was during this time. On cross-examination Kerns readily conceded that no one from management informed him that he had been FUQUA HOMES (OHIO), INC. 413 appointed a group leader . Nor did Kerns attend any = m_eetings condu, ted by management for the group leaders. Another witness for the Union upon this branch of the consolidated case is James Reed. A conspectus of his testimony follows. When asked on direct examination if he is a group leader Reed replied, "I asked James Purvis .. . about two or three weeks ago ... and he says, `I suppose you are. You're making the top wage."' Reed first learned that he might be a group leader when his vote was challenged at the election of May 25, 1973. But up to that time no one from the Company had informed him that he was a group leader. After Reed's vote was challenged Reed inquired of 'Production Manager Andrew Garrett as to whether Reed was a group,leader, but Garrett "didn't give me a straight answer." At the trial, however, it was stipulated that Reed is not.a group 'leader and that his vote, may be counted. Mitchell Perkins, who started to work for Respondent in January 1972, was made a group leader in mid-1972, when his foreman, Melvin Thomas, invited him to become one. Eight or nine worked in his group with him. But at that time Thomas did not discuss with him what was required of Perkins as such group leader, nor did Thomas explain in what way the "job requirements [of Perkins] might change" in the role of group leader. Perkins also asserted that 100 percent of his working time is devoted to performing physical work with the employees in his group. Nor does he tell such employees what work to do; they ascertain what to do from "production sheets . . . on the end of each coach." New employees were introduced by the foreman to Perkins as their group leader, but they would be trained by the other employees in the group. Finally, if any employee requested Perkins for permission to leave work early he would refer them to the foreman "because I didn't have the right to send them home." On cross-examination Perkins agreed that at meetings of group leaders conducted by management such leaders were instructed that it was their responsibility (a) to get the work out in their departments, and (b) to see that such work was of the proper quality. Also his foreman told employees "to perform work for [Perkins ] just as if [the foreman] was back there." And when the foreman isn't around "some- times" the employees "come to [Perkins] with their problems." Fred Kress became a group leader in Respondent's plant when his general foreman offered him the job. (This and the remainder of Kress' duties as group leader is taken from p. 97 - 137 of Resp. Exh. 8.) The only instructions he received as group leader was that he was "responsible for my men, to see that my work was completed and [1] took orders from my general foreman." But he did not possess any authority to hire, fire, recommend promotions, or to reprimand, or to adjust grievances. He is paid by the hour as a group leader and works "right along with hourly paid employees," devoting 100 percent of his time to "doing production work." His only power over employees is to "tell them what to do and see that it's done." However, he did attend company meetings for group leaders, and it's his job to keep everybody busy in his group. Another witness upon this aspect of the consolidated case is Carl Parsons, who was named a group leader in October 1972, by Production Manager Amidon . However, Amidon gave him no instructions as to the duties or responsibilities attendant upon said position other than to say that Parsons should keep busy the "two guys working with me" and to tell them what work to do. Parsons spends his entire working time in doing physical work. Neverthe- less as group leader he attended meetings limited to such leaders and foreman and from which rank-and-file employees were excluded. V. CONCLUDING FINDINGS IN THE COMPLAINT CASE In arriving at the ensuing findings I have followed the rule of law that the burden of proof is on the General Counsel to establish the allegations of the complaint by a preponderance of the evidence, and that no burden rests upon Respondent to disprove such allegations. A. As to the Reprimands Issued to 'Ronald L. Fehr It is my opinion that the three reprimands issued to Wehr were not motivated by antiunion considerations and, therefore, do not contravene the Act. I find that the first such reprimand, given to him for not reporting to work from 7 to 9 a.m. on March 8, 1973, was proper because he was not excused for this period . It is true that he wanted to be excused for the entire day of March 8 to attend an NLRB hearing, and that he could not be lawfully disciplined for going to it . But said hearing, which started at 10 a.m., was held only 3/4 of a mile from the plant, so that he could easily have arrived there by 10 a.m. if he worked until 9 a.m. as directed by his supervisors. Wehr insisted he could not have worked from 7 to 9 a.m. because he had to consult with his attorney in connection with the hearing which started at 10 a.m. But an employer need not- grant time off to an employee to facilitate his seeing a lawyer during the working time of such employee. It is up to the employee to make arrangements to be interviewed by an attorney during nonworking time. Nor do I find that the reprimand given to Wehr on April 10, 1973, for horseplay was inspired by union animus. Initially, I do not make a finding as to whether Wehr's conduct on this occasion actually did or did not amount to horseplay. My function rather is to ascertain whether such reprimand was a reprisal for Wehr's union activities regardless of whether such conduct did or did not constitute horseplay. I find that Foreman Weber sincerely believed that Wehr had engaged in horseplay and that the reprimand given to Wehr was not a pretext to dissemble union animus. Finally, I find that the last reprimand issued to Wehr by Foreman Weber was for insubordination and was not a pretext to disguise alleged retaliation against Wehr's union activities. In this connection I rule that I may not inquire into the severity of discipline or reproof administered by an employer to an employee for dereliction of duties. N.L.R.B. v. United Parcel Service, 317 F.2d 912, 914 (C.A. 1). I can only pass upon the question of whether such reproof or discipline is a pretext to punish an employee for his union activity or sympathy. I find no pretext here. And I further find that Weber was justified in treating Wehr's 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal to pick up the screws pursuant to Weber's order as an act of insubordination. B. As to the Discharge of Ronald L. Wehr Upon an appraisal of the entire record I am of the opinion, and find, that Wehr was lawfully discharged and that the reason assigned therefor was not a pretext to cover up antiunion motives allegedly behind said termination. While I find that Respondent was opposed to unions, that Wehr engaged in extensive union activity , and that Respondent was aware of said activity, I also find that these factors , without more, are insufficient to taint the discharge as a discriminatory one. Rather, I find that Wehr was discharged for cause, having received three lawful reprimands, and particularly that the last reprimand, i.e., the one for being insubordinate, warranted his being dismissed for refusing to obey a lawful command of Weber. On this issue I find that the usual indicia of a pretext are absent. Thus, for example, there is no past misconduct which had been previously condoned or overlooked; and also Wehr was immediately terminated following his refusal to obey Foreman Weber's order to pick up the screws. As found elsewhere herein I find that Wehr was an employee, and that he was not a supervisor, at the time he was terminated. C. As to the Reprimands Issued to James Archer Although I have found, in discussing Wehr's reprimands, that an employer need not grant an employee leave during working time to enable him to be interviewed by a lawyer in connection with a Board hearing . I find that on the facts relating to Archer's reprimand of March 9, 1973, said principle is inapplicable. It is undenied, and I find, that Archer was informed on March 7 by Production Manager Garrett to report to work from 7 to 9 a.m. on March 8, the day on which he was scheduled to appear at a Board hearing as a witness . But I further find, crediting Archer, that when Archer later on March 7 told his foreman, Greg Stapleton, that he could not work at all on March 8, Stapleton authorized Archer to stay out the entire day. To the extent that Respondent 's evidence is inconsistent with Archer's on this issue I do not credit Respondent's evidence. Since Stapleton sanctioned Archer's not working from 7 to 9 a.m. on March 8, I find that Respondent's reprimanding Archer in writing for not working during this short period contravenes Section 8(a)(1) and (4) of the Act. Further, I find that the written reprimand given to Archer for his absence from work on March 19, 1973, infringes upon Section 8(a)(1) and (3) of the Act. This is because I find, crediting Archer's testimony and not crediting Respondent's evidence inconsistent therewith, that Archer had his sister call Respondent to report that he would be out that day on account of illness. Such call was pursuant to Respondent's rules and practice and, conse- quently, Archer's absence was excused in accordance with such rules and practice. As found elsewhere herein Respondent entertained union animus, Archer engaged in union activity, and Respondent was aware of his said activity. Also, I find that said reprimand was given to Archer for engaging in said activity and that the reason assigned by Respondent, i.e., failing to be excused for not coming in to work on March 19 is a pretext to mask the true reason. However, I find that the written reprimand issued to Archer on April 10, 1973, for horseplay during working hours does not violate the Act. On this issue the facts and reasons for finding no transgression of the Act have been stated in discussing Wehr's being reprimanded for the same incident, and are incorporated here by reference. They disclose that Foreman Weber was warranted in concluding that Archer and Wehr were engaging in horseplay; that I would not decide whether in fact their conduct actually amounted to horseplay; and that the reprimand issued to Archer and Wehr on this occasion was not utilized for antiunion purposes. D. As to the Discharge of James Archer Initially, I find that as a group leader Archer was an employee and not a supervisor within the meaning of Section 2(11) of the Act. This finding is derived from the entire record and the following subsidiary findings which I hereby find as facts. In arriving at such subsidiary findings, recited in the next paragraph , I have credited Archer and have not credited Respondent's evidence not consonant therewith. When Foreman Stapleton and Production Manager Amidon appointed Archer as a group leader they informed him that his duties as such required him "to make sure everything was done . . . to have a good looking coach when it came out, and to see the people were busy, and to help out when I was needed." However, both before and after he became a group leader Archer punched a timeclock and was paid by the hour, although as group leader his wage was increased 10 cents an hour. Addition- ally, as group leader he spent 95 percent of his work time in "physical work activities," and filled in for absent employees. But as a group leader he had no power to hire, fire, transfer an employee to another department, to discipline an employee, or to recommend the foregoing. Finally, both Archer and the employees in his group obtained their assignments from a production card attached to the front of a "product," but he did not participate in completing said card. Since Archer was an employee, I find that his discharge violated Section 8(a)(1), (3), and (4) of the Act, and that the reason assigned for terminating him, i .e., receiving three written reprimands, is a pretext to cloak the actual reason. Said finding is derived from crediting evidence consonant therewith and not crediting evidence inconsistent there- with . Itisderived from the entire record and the following subsidiary findings which I hereby find as facts. 1. Respondent displayed union animus . Of course this alone is insufficient to establish a finding that Respondent violated the Act, for Section 8(c) of said Act guarantees an employer freedom to be "unalterably opposed" to unions and to express such a sentiment to his employees . N.L.R.B. v. Consolidated Diesel Electric Co.,469 F.2d 1016,(C.A. 4, 1972); N.L.R.B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4, 1962). Nevertheless, an employer's dislike of unions communicated to his employees is a factor which may be FUQUA HOMES (OHIO), INC. evaluated, together with other evidence, in ascertaining the true cause of an employee's discharge. Maphis Chapman Corporation v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4, 1966). 2. Archer was active on behalf of the Union and Respondent had knowledge thereof. Such knowledge arises because it is reasonable to infer-and I do so-that in a small plant, such as Respondent's, an employer is aware of who are the chief union protagonists in his plant. "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organiza- tional effort." N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965). In such instances it is significant that employers rarely divulge discriminatory tactics in discharging union adher- ents ; but "such purpose may be shown by circumstantial evidence." Corrie Corporation of Charleston v. N.L.R.B., 375 F. 2d 149, 152 (C.A. 4, 1967). "Nowadays it is usually a case of more subtlety.. .." N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5, 1967). Hence it is not unusual for an employer to stress an employee's doubtful deficiencies to justify a termination prompted by antiunion motives. I find that the above comments of the courts extend to Archer's discharge. 3. Archer was precipitately discharged during the height of the union campaign. While I recognize that abruptness of a discharge, without more, does not establish that such termination was not for cause (cf. Miller Electric Manufacturing Co. v. N.L.R.B., 265 F.2d 225, 226-227 (C.A. 7, 1959)), nevertheless I find that in Archer's case the suddenness of the decision to dismiss him as an employee, when appraised together with the other facts found herein, points to the conclusion, and I find, that his conduct would not have resulted in his discharge if he had not been an active proponent of the Union at Respondent's plant. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied, 355 U.S. 829. 4. Assuming valid grounds existed to discharge Archer, it does not follow that he was lawfully discharged. For the mere existence of valid reasons to discharge an employer is no defense to a charge that such termination was predicated in part upon, a desire to discourage union activity if such charge is supported by the evidence. N.L.R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d 948, 950 (C.A. 6, 1966); N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964); Santa Rita Mining Co. v. N.L.R.B., (C.A. 10) 474 F.2.d 1345 I find that Archer's alleged misfeasance "was seized upon by Respondent to serve a discriminatory purpose." N.LR.B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6, 1964). 5. Finally, in order to find Archer's discharge to be discriminatory it is not necessary that his union activity was the sole element responsible for his being terminated. It is enough to determine that his discharge was prohibited by the Act if his union activity was a motivating or substantial ground for his discharge notwithstanding that a valid ground may have arisen for applying disciplinary measures. N.L.R.B. v. Lexington Chair Co. 361 F.2d 283, 295 (C.A. 4, 1966); N.L.R.B. v. Murray-Ohio Manufacturing 415 Company, 358 F.2d 948, 950 (C.A. 6, 1966). And I expressly find that Archer's union activity played a substantial or motivating-but not necessarily the only-part leading to his discharge. E. As to Alleged Threats To Discharge Employees for Union Activity About March 9, 1973, Foreman Stapleton told Wehr that Respondent would be watching the work of those who attended a Board hearing the day before so that they could be discharged after making three mistakes. I credit Wehr on this aspect of the case. But I find that this is not an unlawful threat proscribed by the Act, as I find that it amounts to no more than adoption of a new policy and the giving of notice of such a policy by management. On the same day Stapleton told Archer that no one was going to cause Stapleton to lose his job and that Archer would be going before Stapleton. Archer is credited on this phase of the case. Nevertheless I find this statement to be too indefinite to constitute a threat to discharge Archer or any. other employee for engaging in union activity. Hence I find that it does not transgress Section 8(a)(1) of the Act. On the same day Production Manager Garrett gave employee Danny Allbritain a written reprimand and told Allbritain, "two more of these and you're out." I credit Allbritain that he was so warned by Garrett. But since Respondent had a right to reprimand employees for derelictions of duty on failure to perform work properly, I find that admonishing an employee that he risked discharge for improper action does not constitute an unlawful threat. Hence I find that Garrett's statement does not violate the Act. About March 7, 1973, Production Manager Garrett told Danny Allbritain that "we've got to cut this stuff [attending a Board hearing] out, it's interfering with our work [and] . . . cutting down production." Not withstand- ing that I credit Allbritain, I perceive no threat to discharge anyone in this remark. At most it demonstrates displeasure with employees who attend Board hearings, but does not contain a threat of reprisal for such attendance. About March 8, 1973, Carl Parsons was present at a Board hearing at the Union's request but did not testify while there. The next day Foreman Stapleton asked him what would have been the nature of Parsons' testimony if he had testified at such hearing. I find no unlawful interrogation of Parsons in Stapleton's questioning of him. About March 9, 1973, Foreman Stapleton told employ- ees Parsons, Archer, and Lawrence that "This was it .. . [I'd] be watching for [you] and that the first mistake, [you] was out the door." I credit Parsons that this statement was uttered. Since this did not reflect Respondent's policy of discharging after three reprimands, it patently is a threat to discharge for any mistake. Such threat, moreover, was prompted by antiunion considerations, as it was made contemporaneously with the Union' s organizing campaign. Accordingly, I find that it contravenes Section 8(a)(1) of the Act. Still later that day Stapleton told Archer that Archer would be fired after receiving three reprimands. I find this is but disclosing a new company policy and, therefore, does not constitute a threat condemned by the Act. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities set forth in section V, above, found to constitute unfair labor practices , occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act. As Respondent has been found to have unlawfully discharged James Archer, it will be recommended that it be ordered to offer him immediate and full reinstatement to his former position or, if such is not available, one which is substantially equivalent thereto, without prejudice to his seniority and other rights and privileges. It will also be recommended that Archer be made whole for any loss of earnings resulting from his discharge. In making Archer whole Respondent shall pay to him a sum of money equal to that which he would have earned as wages from the date he was terminated to the date of his reinstatement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner provided in F. W. Woolworth Co., 90 NLRB 289, with interest thereon at 6 percent per annum calculated according to the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make avail- able to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay, if any, may be due. Finally, it will be recommended that Respondent post appropriate notices, the form of which is related in the Appendix, infra . [Omitted from publication.] As the record does not reveal that Respondent has exhibited a general hostility to the Act, I conclude and find that a broad remedial order against it is not warranted. Upon the basis of the foregoing findings of fact , and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By reprimanding in writing James Archer for being absent to attend a Board hearing Respondent has engaged in an unfair labor practice within the meaning of Section 8(aX4) and (1) of the Act. 4. By discriminatorily threatening to discharge employ- ees who made one mistake, at a time when its policy was to discharge after three mistakes, Respondent committed an unfair labor practice forbidden by Section 8(a)(1) of the Act. 5. By discriminating in regard to the tenure of employment of James Archer, thereby discouraging mem- bership in the Union, a labor organization, Respondent has engaged in an unfair labor practice condemned by Section 8(a)(3) and (1) of the Act. 6. The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 7. Respondent has not committed any other unfair labor practices alleged in the complaint. [Recommended Order omitted from publication.]