Fasco Industries, Inc.

FASCO INDUSTRIES, INC. Fasco Industries, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 11-CA-5494 October 17, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 18, 1974, Administrative Law Judge Sid- ney J. Barban issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. The Administrative Law Judge found that Mrs. Grace W. Daniel took sick leave during the summer months because she was, in fact, ill, and he credited her testimony to this effect. The Administrative Law Judge further found that Mrs. Daniel's prominence in union activities was responsible for Respondent's refusal to rehire her during the period before and after August 6. We concur in the findings of the Administrative Law Judge, based upon his credibility findings, that Respondent refused to rehire Mrs. Daniel and dis- charged her because of her well-known union activi- ties. The evidence is clear that Mrs. Daniel made sev- eral attempts to return to work during the summer months, but Respondent refused to rehire her. Mrs. Daniel's testimony was not only credited by the Ad- ministrative Law Judge, but was also corroborated by the written notes of her doctors. We conclude, in agreement with the Administrative Law Judge, that the reasons given by Respondent for the discharge of Mrs. Daniel were pretextual, and that Respondent violated Section 8(a)(3) and (1) of the Act in refusing to rehire her. Our dissenting colleague contends that the Gener- al Counsel did not establish that Respondent's rea- 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 93 sons were pretextual and he would, in disagreement with the Administrative Law Judge, dismiss the 8(a)(3) allegation of the complaint. He states that his determination does not rest on any evaluation of the credibility of the witnesses, but rather upon his eval- uation of the facts in this proceeding. We find that the facts fully support the Administrative Law Judge's findings. On June 14, the discriminatee, Mrs. Grace W. Daniel, went to see Dr. Drake to whom she com- plained of pains in her lower back. Dr. Drake gave her office treatments for her symptoms and a note for her employer stating that "Mrs. Grace Daniel has back trouble and is unable to work." Mrs. Daniel continued to be in pain and returned to Dr. Drake on June 16, 22, and 28. On June 28, Mrs. Daniel still complained that her back was hurting. Dr. Drake made an appointment for her to see Dr. Siewers, an orthopedic surgeon, on August 27, with a note to her employer relative to the appointment and her condi- tion. On June 29, Mrs. Daniel took the note to Respondent's personnel manager, Ryneska, and stat- ed to him that she did not know if she would be able to work full time or not, but she was willing to try. Ryneska responded that he could not permit her to return to work until she received a doctor's certificate that she was able to return to work. On July 28, Mrs. Daniel visited Dr. Drake and stated to him that she felt well enough to return to work. Dr. Drake gave her a note for Respondent stating: "Mrs., Grace Daniel may return to work on July 30, 1973." On August 6, Mrs. Daniel took the note to Ryneska's office and was told that there were no job openings, and that Mrs. Daniel should "just sit tight until he got one." Mrs. Daniel again asked for work on August 9 and 10, was told there were no vacancies, and was told to see the company doctor, Dr. Bundy, who examined her on August 20, and referred her to Dr. Siewers. On August 27, Mrs. Daniel was examined by Dr. Siewers, who gave a note to her as follows: "Patient may return to regular work as of this date," which was addressed to Dr. Drake with a copy to Respon- dent. On August 28, Mrs. Daniel took the note to Respondent's personnel office, and she was informed that the note would be shown to Mrs. Daniel's super- visors that.she was available for work. Mrs. Daniel again contacted the Respondent for work on Septem- ber 12 and 21 but to no avail. The Respondent asserted that its reason for refus- ing to rehire Mrs. Daniel was because she had taken advantage of the sick leave policy in order to take the summer off by pretending she was sick and to prove 214 NLRB No. 16 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to other employees that the Respondent's policies could be broken. We concur with the Administrative Law Judge's conclusion that Respondent's reasons for refusing to rehire Mrs. Daniel, and thereby terminating her em- ployment, were pretexts and that the real reason for Respondent's action was her union activities. Mrs. Daniel was actively seeking medical treatment from physicians throughout the summer months and Re- spondent knew of her efforts to obtain medical care during this period. Based upon his credibility find- ings, we agree with the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to re- hire Mrs. Daniel. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Fasco Industries, Inc., Fay- etteville, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting: I respectfully dissent from my colleagues' affir- mance of the Administrative Law Judge's finding that Grace Daniel was terminated in violation of Sec- tion 8(a)(3) of the Act. In my opinion, the. record fails to support this finding. Mrs. Daniel left work on or about June- 7, 1973, asserting that she was ill. School let out in Fayette- ville on June 7, 1973, and Respondent had encoun- tered a number of instances in which female employ- ees sought to be permitted to take the summer off so that they might care for their children and ' then re- turn to work in the fall. Respondent had uniformly denied such requests, and was, understandably, alert to situations in which employees might attempt to circuitously gain such a summer leave by feigning illness. Mrs. Daniel went to a physician, Dr. Drake, com- plaining of lower back pain. The doctor could find no objective evidence of a physical disorder and pre- scribed a brief period of bed rest and mild medica- tion. A. week later on June 14, Dr. Drake cleared Mrs. Daniel for return 'to work on the following Monday. Mrs. Daniel did not return. • On June 28, Mrs. Daniel again saw Dr. Drake -who, in a note to the Company, indicated that he could find no cause for Mrs. Daniel's back pain and was referring her to the orthopedic clinic. He gave no opinion as to her ability to return to work except "she still doesn't feel like working." On June 29, Mrs. Daniel went to Respondent's personnel office and gave Dr. Drake's note to Respondent's personnel manager, Ryneska. The tes- timony is in conflict as to whether she requested a return to work on a part-time basis at that time. She testified that she did. Respondent's personnel officer testified that she did. In any event, she did not return to work and, had she requested part-time work, would have been refused such work, as she claimed she was, because Respondent has a totally consistent policy of not hiring part-time employees. The character of the June 28 note from Dr. Drake raised Respondent's suspicions concerning Mrs. Daniel's alleged illness. During July, Respondent be- came still more suspicious when it received reports that Mrs. Daniel was seen up and around including driving to the plant to bring lunch to her husband with some frequency. On, July 6,, Respondent sent Mrs. Daniel a letter setting forth its consistently applied sick leave policy of removing employees from the active roll after 30 days of sick leave. On July 28, Mrs. Daniel again visited Dr. Drake and told him that she felt well enough to return to work, whereupon Dr. Drake gave her a note clearing her for work. She had not yet had her appointment with the orthopedic specialist although, she had ad- vised Respondent, at an earlier time, that she had such an appointment scheduled for August 27. Re- spondent was thus caught in the dilemma between a suspicion that Mrs. Daniel had taken a substantial portion of the summer on leave without genuine ill- ness and a fear that the orthopedic specialist might conceivably find that she did have a genuine back ailment, in which case putting her back to work would have risked aggravation of the condition and a resultant workman's compensation claim. In an at- tempt to find its way between the horns of. this dilem- ma, Respondent sent Mrs. Daniel to. the company doctor. for a further physical examination.. Her, ap- pointment with the company doctor took place on August 20 and the company doctor did not render a definitive judgment but rather indicated that Mrs. Daniel "still needed to see the orthopedic doctor." On August 27, Mrs. Daniel did see the orthopedic specialist. who wrote to the Company stating that Mrs. Daniel "has had difficulty with her back but when she started taking `pills for water' on July 7, her symptoms disappeared. She has been asymptomatic since and has no difficulty now and wants to return to work." The balance of the letter indicated-no ob- servable physical disabilities and stated that "she could return to her job at Fasco." The "pills for wa- FASCO INDUSTRIES, INC. 95 ter" mentioned in the letter had been prescribed as a remedy for a condition not related to her alleged back pain. Respondent was less than frank with Mrs. Daniel and.at no time directly told her that she could not be rehired because Respondent felt confirmed in its judgment that she had abused Respondent's sick leave policies. Instead it was somewhat evasive about her request for reemployment following the receipt of the orthopedic specialist's letter, but it consistently declined to reemploy her. The unrefuted testimony, however, is that Respondent has a deliberate policy of reticence about giving accusatory reasons to em- ployees in connection with their terminations, even in cases of employee theft. Whether or not such a policy is well advised from a personnel relations standpoint is not here in issue. The existence of the policy is, as above stated, unrefuted in the record. When charged with having refused to rehire Mrs. Daniel for reasons prohibited by this Act, Respon- dent revealed to the Board its true reason-i.e., the abuse of its sick leave policy which Respondent be- lieved Mrs. Daniel to have engaged in. At the hearing herein, Respondent's agents responsible for failing to rehire Mrs. Daniel so testified. They also testified that because Mrs. Daniel and her husband were both known active union adherents, of which fact they freely conceded they had knowledge, they had han- dled her situation with special care. The Administra- tive Law Judge's reference to this testimony is, I think, somewhat misleading and unfair. He seems to suggest that the testimony on this subject constituted an admission that Respondent's knowledge of her union activity was what motivated her discharge. The testimony, considered in its entire context, cannot be so construed by any fair-minded reader of the rec- ord. The simple fact. is that all of the record evidence fully substantiates Respondent's version of its reason for failing to rehire Mrs. Daniel. Even if one accepts all of the credibility resolutions of the Administrative Law Judge, some of which seem questionable, the record nevertheless plainly shows that, while Mrs. Daniel may have had some back pain at the time of her initial absence from work, all of the medical evi- dence and the factual evidence confirms the report of the orthopedic specialist that from and after July 7 even the subjective symptoms of back pain had dis- appeared. There never having been any evidence of other than,purely subjective symptoms, there is no reason to doubt, and every reason to accept, Respondent's reasons for having had a deep-seated suspicion that Mrs. Daniel was indeed attempting to circumvent Respondent's policy against "summer leaves" for females. On the other hand, there is no showing that its failure to rehire her under these circumstances con- stituted disparate treatment. The Administrative Law Judge did not find Respondent's examples of other terminations for abuse of sick leave to be directly parallel to the instant situation, but, on the other hand, the record is barren of any evidence that Re- spondent had rehired other employees with a record similar to that of Mrs. Daniel's here. In this state of the record, there is no evidentiary support for finding Respondent's asserted, and substantiated, reasons to be pretextual. I would therefore find the General Counsel did not establish that Respondent's reasons were pretextual and I would, in disagreement with the Administra- tive Law Judge and my colleagues, dismiss the 8(a)(3) allegations of this complaint. My determina- tion does not rest on any evaluation of the credibility of the witnesses, but rather upon an evaluation of the proven facts which are of record in this proceeding. DECISION STATEMENT OF THE CASE . SIDNEY J. BARBAN, Administrative Law Judge : This mat- ter was heard at Fayetteville , North Carolina, on January 15 and 16, 1974, upon a complaint issued on November 30, 1973,' (based on a charge filed on September 27),'which complaint, as amended at the hearing, alleges that Fasco Industries , Inc.,2 Respondent herein , violated Section 8(a)(1) and (3) of the Act by refusing and failing to rehire Grace W . Daniel on and about August 6, and thereafter, and by other acts and conduct. Respondent's answer de- nies the unfair labor practices alleged , but admits allega- tions of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respon- dent, in the course of its manufacturing operations annual- ly sells and ships products valued in excess of $50,000 in interstate commerce ), and to support a finding that Charg- ing Party, International Association of Machinists and Aerospace Workers, AFL-CIO (herein the Union) is a la- bor organization within the meaning of the Act. Upon the entire record in this case ,3 from observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. SUMMARY OF FACTS AND ISSUES The Union began an organizing drive among Respondent's approximately 450 production and mainte- nance employees in August 1972. Grace W . Daniel (herein Mrs. Daniel) and her husband, Albert N. Daniel (Mr. Dan- 1 All dates hereinafter are in 1973 , unless otherwise noted. 2 Respondent's name corrected in accordance with answer and several exhibits submitted by Respondent. 3 None of the parties made oral argument or filed briefs in this matter. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iel), were prominent as leaders in this drive. In three charges filed with the Board in 1972, Respon- dent was alleged, inter alia, to have given written repri- mands to Mr. and Mrs. Daniel because of their activities on behalf of the Union. These charges were settled, in early 1973, without admission by Respondent that it had com- mitted unfair labor practices, by an informal agreement to cease and desist, to remove the reprimands from the em- ployees' files, and to post notices to that effect. In January 1973, Mrs. Daniel's supervisor, Jack L. Mc- Fayden, who had given her the previous written repri- mands, also gave her another written reprimand for alleg- edly "[h]indering individual from doing their work by con- stantly talking and agitating other than work problems." McFayden refused to tell Mrs. Daniel the identity of her accuser, or precisely what she was alleged to have done, and Mrs. Daniel refused to sign the written reprimand. On March 19, McFayden, in the course of downrating Mrs. Daniel on a semi-annual evaluation, according to the latter responded to her protest by stating that he had to "write it the way he saw it ... since I was working for the Union, he thought I was . . . against the company." Mrs. Daniel further testified that McFayden said she would only receive a 5-cent wage increase because she was working for the Union. This testimony is denied by McFayden. As be- tween the two, I credit Mrs. Daniel. Both of these last two matters noted occurred more than 6 months prior to the filing of the charge in this matter and are not alleged in this case as violations of the Act. About June 7, Mrs. Daniel became ill at work and was excused to go home. She received a full release from her doctor to come back to work on August 6 and 27, but Respondent has refused to let her return to work, although it has had openings which she was qualified to fill. Respon- dent asserts that this refusal was based on its conviction that Mrs. Daniel was abusing its sick leave policy. Respondent states that it has had a continuing problem with females desiring to take the summer off to be home with their children during school vacation, and has a firm policy against it. It was testified that Respondent's man- agement became convinced from the tenor of the doctors' reports, their observation of Mrs. Daniel, and the fact that her illness coincided with the school vacation period that she was not really ill during this period. Thus, notwith- standing Respondent's normal policy to rehire employees who have been out more than 30 days on sick leave upon recovery, and when an opening occurs, it was decided that Mrs. Daniel should not be rehired. General Counsel contends that the refusal to rehire Mrs. Daniel was caused by her union activities. It is also alleged that Respondent's personnel manager, Joseph F. Ryneska, violated the Act by interrogating Mr. Daniel with respect to his union activities, by advising him that he had been transferred to a job which restricted his movements around the plant because of his union activities, and by refusing to talk to Mr. Daniel because the latter had turned him in to the Union. 11. THE REFUSAL TO REHIRE MRS. DANIEL A. Respondent's Sick Leave Policy Respondent has insurance coverage which pays employ- ees who are on sick leave a substantial sum for each week they are ill after the first week. As set forth in a letter to Mrs. Daniel dated July 6, Respondent's sick leave policy further provides that (1) any employee absent for 30 days because of a health related matter "is terminated and placed on our `inactive pay- roll' "; (2) Respondent will thereafter continue to pay cer- tain insurance premiums for such covered employee for a certain period depending on length of service; and (3) the employee "will be placed back on the `Active Payroll' when [his] attending physician declares that [he is] able to perform a regular, full-time job and a vacancy exists in the position [he] held at the time of termination." This policy is apparently not made known to the em- ployees generally and was not known to Mrs. Daniel until about the end of her first 30 days on sick leave. The record also shows, and I find, that in the past Respondent has reinstated employees on sick leave for more than 30 days in jobs other than those held by such employees at the time of termination. B. Events Leading to the Refusal To Rehire Mrs. Daniel When Mrs. Daniel became ill at work in early June 1973, she received a pass from her supervisor, McFayden, to go home. She returned after 2 or 3 days and told McFayden that she would try to work but did not know if she could make it. McFayden told her to let him know. After a cou- ple of hours, Mrs. Daniel requested and received another pass to go home. This was on June 7. A week later, on June 14, Mrs. Daniel visited a doctor, Dr. David E. Drake, to whom she complained of pains in her lower back, follow- ing an initial respiratory infection accompanied by cough- ing. (In explanation of the week's delay before visiting the doctor, it was stated that he was then on vacation.) Dr. Drake states that he was unable to find any physical cause for her back pain. He gave Mrs. Daniel office treatment for her symptoms and some medication, and advised that if she did not feel relief within 2 days, she should return for additional treatment. Dr. Drake, who appeared as a wit- ness for Respondent, testified that his experience indicated that the patient should recover from these symptoms in a short time. He therefore gave Mrs. Daniel a note for her employer dated June 14, stating that "Mrs. Grace Daniel has back trouble & is unable to work. She may return Monday." Mrs. Daniel took the note to Respondent's per- sonnel office.' Mrs: Daniel continued to be in pain, however, and re- 4 There is some dispute as to whether another undated note from Dr. Drake, stating simply that "Mrs. Grace Daniel was seen today because of illness," preceded the June 14 note. Dr. Drake says it did. Respondent's personnel manager says he received it prior to the June 14 note. Mrs. Dan- iel, however, says she took it to Respondent after the June 14 note. I am inclined to credit Mrs. Daniel with respect to this, inasmuch as both she and the doctor assert that June 14 was her first visit to the doctor with respect to the illness with which we are here concerned. FASCO INDUSTRIES, INC. turned to Dr. Drake for further treatment on June 16, on June 22, and again on June 28. The testimony of Mr. Dan- iel, which I credit, was that his wife was in great pain dur- ing this period and could not sleep, keeping them both up; that the pain diminished in the early part of July enabling Mrs. Daniel to sleep, but that she continued to have prob- lems with her back for some time thereafter. When she visited Dr. Drake on June 22, Mrs. Daniel complained that the pain had traveled up her back. After some further tests, Dr. Drake advised Mrs. Daniel that he would recommend that she see an orthopedic surgeon. Ac- cording to Dr. Drake, when he saw Mrs . Daniel again on June 28 her back was still hurting, and he "did not know anything more to do and suggested that we get her an ap- pointment with an orthopedic surgeon ." An appointment was made for Mrs. Daniel that day from Dr. Drake's office with Dr. Siewers for August 27. On this occasion, Dr. Drake gave Mrs. Daniel a note stating : "Mrs. Grace Dan- iel still has back pain-we have found no cause for it & are referring her to the orthopedic clinic-She still doesn't feel like working." 5 On the following day, June 29, Mrs. Daniel took the note to Respondent's personnel office , where she had a conver- sation with Personnel Manager Ryneska (apparently the only meeting Mrs. Daniel had with Ryneska during this period). Mrs. Daniel's testimony , which is credited, is that she gave Dr. Drake's note to Ryneska; told him that she had an appointment with the orthopedic surgeon on Au- gust 27, and did not think she would be under the doctor's care until then ; and further said that she did not know if she would be able to work 9 hours , full-time, or not, but if Ryneska would let her she was willing to try. Ryneska re- sponded that he could not permit her to return to work until she received a doctor's release because she might fur- ther hurt her back . He advised Mrs. Daniel of Respondent's 30-day.sick leave policy, and told her that she would be rehired without prejudice, upon bringing in a release from her doctor, when there was "an opening there in [her] area." This testimony was not essentially denied by Ryneska, who recalled little about the conversation except that they each talked of their back problems. Ryneska did generally deny that he made any promise to rehire Mrs. Daniel, on the basis that he never makes such promises . To the extent that this was intended as a contradiction of Mrs. Daniel's testimony , I credit her.6 On July 6, as previously noted, Ryneska sent Mrs. Dan- iel a letter setting forth Respondent 's sick leave policy. On July 28, Mrs. Daniel against visited Dr . Drake. She then complained of swelling in her ankles and feet. She also stated that her back pains had subsided until just the day before her visit, and said that she felt well enough to 5 Mrs. Daniel had asked the doctor for the note to take to Respondent. At the time she told him that she "did not think she could sit and work 9 hours a night, the way my back was hurting." 6 In crediting Mrs. Daniel I have considered the testimony of JoAnn Tyson, Ryneska's secretary, to the effect that, prior to going into Ryneska's office, Mrs. Daniel said to Tyson that she still did not feel able to work and wanted to wait to see the orthopedic surgeon . I was not impressed with Tyson as a witness . She was further not present during the conversation between Mrs . Daniel and Ryneska. 97 return to work . Dr. Drake gave Mrs. Daniel some medica- tion for her edema, and a note for Respondent stating: "Mrs. Grace Daniel may return to work on 7/30/73." Respondent's plant was on vacation from July 20 to Au- gust 6. Mrs. Daniel took the doctor's release to the plant on August 6, and gave it to Tyson, who said that she would talk to Ryneska about it as soon as she could and suggest- ed that Mrs . Daniel call back later in the day. When Mrs. Daniel did so; Tyson said that she had spoken with Rynes- ka, that he said he did not have any openings, that Mrs. Daniel should "just sit tight until he got one." On August 9, Mrs. Daniel again visited the plant and talked with Tyson, stating that she had heard of a certain employee who was transferring from the second to the day shift, and that she could fill that vacancy. Tyson said that she did not believe that the employee would transfer, but would keep Mrs. Daniel in mind . The next day, Mrs. Daniel called and spoke with Ryneska. She repeated to him what she had told Tyson the previous day, and asked concerning the possibilities of taking over the job of the employee she had heard was transferring to the day-shift. Ryneska told her that he would hire her back if she would agree to see the company doctor, Dr. Bundy, and pass his physical exami- nation. Ryneska states that about August 10 he instructed Tyson to tell Mrs. Daniel to go to see Dr. Bundy, and that Tyson made an appointment with Bundy for Mrs. Daniel. As has previously been noted , Ryneska made a general denial that he ever promised Mrs. Daniel work . I again credit Mrs. Daniel. It, is difficult to see the purpose of sending Mrs. Daniel to the company doctor in the circumstances if it were not to determine if she was qualified to return to work . I am satisfied, in accordance with Mrs. Daniel's tes- timony, that she was told that she would be put to work if she passed Bundy's examination . On August 17, Tyson told Mrs. Daniel that her appointment with Dr . Bundy was on August 20. Mrs. Daniel kept the appointment . Dr. Bundy's nurse thereafter called Tyson, and, in the latter's words, said that "Dr. Bundy had seen [Mrs. Daniel], that there wasn't anything that he could do. That she still needed to see the orthopedic doctor , which was Siewers." Ryneska could not remember receiving this report and Tyson could not remember telling him. In the circumstances of this case, and on the entire record, I am sure that she must have reported this message to Ryneska. According to Ryneska, Tyson was his normal channel of communication on these matters. During this period Tyson seems to have been es- pecially alert to report information relating to Mrs. Daniel to Ryneska. On August 27, Mrs. Daniel saw Dr. Siewers. He gave her a note, dated that day, reading as follows: "Pt . may return to regular work as of this date-letter follows." The latter referred to, addressed to Dr. Drake, with a copy to Re- spondent, states, in pertinent part , that Dr. Siewers had examined Mrs. Daniel , that "[s]he. has had difficulty with ,her back . . . so bad that she had to stop work on June 7 although there had been no injury. . . . She had difficulty for a month with her back but when she started taking `pills for water' on July 7, her symptoms disappeared. She has been asymptomatic since and has no difficulty now and wants to return to.work." The letter describes Mrs. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daniel's condition as found by Dr. Siewers, and concludes that as far as he is concerned, Mrs. Daniel could return to her job. On August 28, Mrs. Daniel took Dr. Siewers' note to Respondent's personnel office and gave it to Tyson, who left Mrs. Daniel for awhile. When she returned, Tyson told Mrs. Daniel that Ryneska had instructed Tyson to retain the note to show Mrs. Daniel's supervisors that she was available for work. On September 12, Mrs. Daniel went to the plant again and spoke with Tyson. Mrs. Daniel stated that she had heard of another employee transferring to the day shift, which would leave a vacancy she could fill. Tyson said that she did not think the employee was going to make the transfer. On September 21, Mrs. Daniel called Ryneska on the telephone and told him that she had heard that this employee was transferring to the day shift. Ryneska admit- ted that the employee had, but said he had no openings in Department 35, stating, in reply to Mrs. Daniel's query, that she would have to return to Department 35. Later that day, Mrs. Daniel called Ryneska again, and told him that she had been thinking of what he had said, and she was puzzled-as to why she had to be rehired in Department 35. Ryneska stated that when an employee was rehired in these circumstances, "you're usually reassigned to the general department that you were in." Mrs. Daniel then advised Ryneska that when she came out sick she was not in De- partment 35, she was in Department 46. Ryneska then said he had no openings in Department 35, 39, or 46. The parties stipulated that "since and including August 6, [Respondent] has hired and rehired employees into the various departments numbered as 35, 39, 44, and the two areas of department 46. That these employees, hired as new employees, [or] rehired as old employees, [were] hired into jobs that Mrs. Daniel had the training and skill to perform, and that these individuals . . : possessed no more skill or training than Mrs. Daniel in the jobs they went into, and in certain cases, the employee hired since August 6 possessed less skill and training than Mrs. Daniel. And . . . that some of the employees rehired were rehired in various de- partments, and not just the departments [in which] they had jobs before they went out on [leave]." C. Respondent 's Reasons for Refusing To Rehire Mrs. Daniel Both Plant Manager Fischer and Personnel Manager Ryneska testified that management decided not to rehire Mrs. Daniel because it was concluded from the events set forth above that she had not, in fact, been ill, but had taken advantage of Respondent's sick leave policy to take the summer off. This was not communicated to Mrs. Daniel at any point, however. At the outset, there seems to be some dispute as to which of the two men made the decision. Fischer asserted that, after reports from Ryneska and his staff, and others, and discussion with Ryneska, he (Fisch- er) made the decision that Mrs. Daniel was not to be re- hired. However, the thrust of Ryneska's testimony was that the decision was almost entirely his, although he did rec- ommend it to Fischer, who he says merely concurred. Upon the record as a whole, and Fischer's testimony in particular, I find that the decision was made between the two of them, after exchange of ideas and information as to the situation. In essence, Fischer asserts that the two men became sus- picious that Mrs. Daniel was attempting to circumvent Respondent's rule against granting females summer leave to be home with their children when they determined that she became ill on the day school let out and received a doctor's release to return about the time school started up again. Fischer notes that the first message from Dr. Drake, dated June 14, stated that Mrs. Daniel "may come to work on Monday." When she did not come in, he states that "we began wondering what was happening." Fischer further says he began to receive reports that employees had seen Mrs. Daniel on the Respondent's parking lot, "here or there," and that she was not confined to her bed. Fischer was unable to fix the approximate time of these reports, or identify the sources of his information other than Ryneska and his staff. I am, indeed, convinced that the sources of these asserted reports were Ryneska and Tyson. Tyson states that she saw Mrs. Daniel from her office window five or six times in June, and also thereafter, eating lunch with her husband in the parking lot, and immedi- ately called this to Ryneska's attention. Ryneska says he saw this "many times" during this period, and more regu- larly in August. He says he saw Mrs. Daniel picking up her husband after work also: Mrs. Daniel states that she visited the plant during June and July only to bring notes'from the doctor, and brought lunch for her husband only once dur- ing that period. She admits bringing lunch and picking up her husband in August. This is substantially corroborated by Mr. Daniel. I credit Mrs. Daniel. I believe that Ryneska and Tyson are transferring later occurrences to earlier months. I also noted that Tyson's lunch schedule casts doubt on her statements that she observed Mrs. Daniel eating lunch with Mr. Daniel as frequently as she asserted. After the first note from the doctor, Fischer states that "we, of course, watched [her]." Fischer indicates that he and Ryneska felt that they were supported in their suspi- cions of Mrs. Daniel by Dr. Drake's note of June 28, in which he advised that he was referring her to the orthoped- ic clinic, but also said that she "still doesn't feel like work- ing." (Ryneska testified that he made up his mind not to rehire Mrs. Daniel by the end of June, on the basis of Dr. Drake's notes of June 14 and 28.) According to Fischer, when Mrs. Daniel brought in this note, he and Ryneska discussed this, and Fischer states they "were in a quandry as to what was going on," because they felt that with prop- er care a back problem should "pretty well shape ... up in a week at the most." He asserts that they felt, because of the dates involved, she was "just getting herself a summer vacation." (Mrs. Daniel's sick leave began about the time school closed; apparently her appointment with Dr. Siew- ers coincided pretty well with the reopening of school.) However, Fischer indicates no awareness that Mrs. Dan- iel had told Ryneska on June 29 that she would like to try to return to work.? But Fischer states that, when Ryneska, t Though counsel, at the hearing, sought to indicate that Ryneska and Fischer refused to reinstate Mrs. Daniel on June 29 because she was alleged- ly seeking only part-time work, neither Fischer nor Ryneska testified to that FASCO INDUSTRIES, INC. 99 on August 6, told him that Mrs. Daniel wanted to come back to work before seeing Dr. Siewers, the two of them were then concerned that Mrs. Daniel was trying to put them "in a bind." They considered that though she had been released by Dr. Drake, she was to see another doctor; and if permitted to return to work, she might thereafter claim that she injured her back and involve Respondent in a workman's compensation matter.8 It was apparently for this reason, though never ade- quately explained on the record, that Ryneska instructed Mrs. Daniel to see the Respondent's doctor, Bundy, to see if she were fit to return to work. Bundy, as Respondent was advised, deferred to Dr. Siewers. But when Dr. Siewers released Mrs. Daniel to return to work, on August 27, Fischer and Ryneska then refused to rehire her because she had allegedly abused Respondent's sick leave policy. Mrs. Daniel, however, as has been noted, was not advised of this. Fischer testified that this conformed with Respondent's normal policy. Both Fischer and Ryneska also stated that four or five other employees had similarly been terminated for abuse of Respondent's sick leave policy, and that Mrs. Daniel was treated no differently from the others. However, the very brief descriptions of the other situations seems to bear little or no resemblence to Mrs. Daniel's experiences: one em- ployee was described as "just absent too often"; another apparently took off during the summer to farm; another had "family problems," was on sick leave and "couldn't be a regular employee"; another was a supervisor who was taken back after being out more than 30 days as a new employee. Both Fischer and Ryneska denied that Mrs. Daniel's union activity had an effect upon their decision not to take her back, and both assert that she was treated like any other employee. Nevertheless, Fischer's testimony makes abundantly clear that Mrs. Daniel's prominence in the union drive played a large part in the formulation of their suspicions about her conduct and in their decision not to take her back. Fischer initially emphasized, in explaining how he came to receive reports about Mrs. Daniel, that in Respondent's "small plant everybody was aware of Mrs. Daniel's posi- tion and Mr. Daniel's position in regarding the union orga- nization campaign. . . . And when you become a celebrity ... people tend to watch and see what you're doing." Thereafter, in the course of denying that Respondent took action against Mrs. Daniel because of her union activ- ity, Fischer said, " .. . that was her right. To feel the way she did. The only thing we were aware of, if she was there, then we had to watch, because she at one time reported to Mr. Ryneska that she was aware of all the rules of our company and knew what she could do and what she couldn't do. And this somewhat alerted us to the fact that, effect . In fact, neither seemed to recall that she had offered to come back on that date . Both testified that Respondent had a policy against part-time em8ployment. It is noted that this explanation now made for refusing to permit Mrs. Daniel to resume work on and after August 6 is inconsistent with the nota- tion made on Mrs. Daniel's claim form by Respondent on August 30 that "She could have returned 7-30-73. We do not have opening for her now." (Resp . Exh. I.) well, when she does something, well, you know, we had better wonder why she's doing it. And of course as this situation started to unfold in the June of the year, we were somewhat puzzled as to what actually was going on. With Mrs. Daniel." Later, Fischer asserted that, upon suspecting that Mrs. Daniel was attempting to make a compensation case, "we became strongly suspicious then that maybe it was some- thing else, but we didn't know exactly what it was. She had taken the summer off, and maybe she was just trying to prove a point to everybody else that these policies can be broken if you know the right angles." 9 Finally, in summary, Fischer testified on cross-examina- tion: Q. (Mr. Leseman) You also seemed to be right ap- prehensive, . . . that you felt that she was trying to prove a point, because of her so-called special status she could get a summer off and violate one of these rules. A. Yes, sir. - Q. And that special status is her union activities, is it not? A. Yes, sir. Right. Ryneska, when asked whether he considered Mrs. Dan- iel "to have a special status because of her union activity," replied, "Well, I wouldn't call it a special status, but she was different from anybody else, in that she wore the badge and she . . . got the signature, certification, whatev- er you call it. This would stand her out in a plant where we have very, very few members." D. Conclusions as to the Refusal To Rehire Mrs. Daniel It is Respondent's position that Mrs. Daniel was not ill in the summer of 1973, but took a vacation on sick leave, and that this was the reason Respondent refused to rehire her. However, on the basis of the record as a whole, includ- ing careful consideration of the testimony of Dr. Drake, I am convinced that Mrs. Daniel took sick leave on this oc- casion because she was, in fact, ill. I was impressed with Mr. Daniel's description of his wife's pain in June and her discomfort thereafter. Her repeated trips to doctors seeking relief during this period are confirmatory of this. As has been found, when her back pains began to diminish in the latter part of June, she offered to come back to work to see if she could endure a full shift, though she did not have a doctor's release. (At the time she had an appointment with an orthopedic specialist 2 months hence made by Dr. Drake.) Personnel Manager Ryneska, however, refused to let Mrs. Daniel return, on the basis that she might further injure her back. Thereafter, at the beginning of August, when Mrs. Daniel again sought to return to work, this time 9 At this point in the record Fischer also said that he and Ryneska were in agreement that this situation could be handled by refusing to rehire the employee involved "for a month or so and then bring them back ." It was not explained why this procedure was not followed in Mrs . Daniel's case. Fischer stating only that he had informed the Board agent investigating the charge in this matter that he would not say that he would never take Mrs. Daniel back. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a release from Dr. Drake, she was again refused be- cause, according to Plant Manager Fischer, he and Rynes- ka were still concerned that she might further injure her back. Finally, when Mrs. Daniel obtained a release from Dr. Siewers, the orthopedic specialist, Respondent still re- fused to take her back because, Fischer and Ryneska as- sert, they thought she had, in a word, been faking it all summer. Mrs. Daniel was not told of this reason for the refusal to return her to work, but was told that there were no openings for her, an explanation manifestly less than candid. Respondent's position, on the whole record, does not seem to hold up under logical analysis. Respondent says it was convinced that Mrs. Daniel was just trying to take a summer vacation and did not have a back problem. But on the two occasions during the summer when she sought to come back to work, she was refused assertedly because she might further injure her back. Further, on August 20, Re- spondent sent Mrs. Daniel to Respondent's doctor, Dr. Bundy, to see if she was fit to return to work. Dr. Bundy deferred to Dr. Siewers, the specialist. But when Dr. Siew- ers, on August 27, stated that Mrs. Daniel was fit to return to work, Respondent still refused to take her back, though there were openings which she was qualified to fill. And, as has been noted, though Respondent refused Mrs. Daniel's request to return to work in early August, Respondent cut off her sick leave pay as of. that time because she "could have returned" to work. The reason for this ambivalence toward Mrs. Daniel clearly lies in Fischer's assertions that he and Ryneska were suspicious of Mrs. Daniel because of her prominent union activities, and therefore ascribed an ulterior motive to everything she did or said during this period.10 Clearly, it was Mrs. Daniel's prominence in union activities which was the primary factor in Respondent's treatment of her during this period, including the refusal to take her back to work on August 6, when she had a release from Dr. Drake, and thereafter. For these reasons, and on the record as a whole, I find that Respondent, by refusing to rehire Mrs. Grace W. Daniel on August 6 and thereafter, discriminated in regard to the hire or tenure of employment of an em- ployee to discourage membership in and activities on be- half of the Union in violation of Section 8(a)(1) and (3) of the Act. 111. ALLEGED ACTS OF INTERFERENCE, RESTRAINT, AND COERCION A. The September 10 Incident On September 10, Mr. Daniel went to Ryneska's office to request that he be permitted to join an apprentice school program that Respondent was sponsoring for tool-and-die makers. The program required substantial on-the-job train- ing and attendance at a technical school in Fayetteville two 10 Thus, when Dr. Drake advised in his note of June 28 that Mrs. Daniel "still has pain," that since he could not find the cause he was referring her to an orthopedic specialist, and added "She still doesn't feel like working." Respondent asserts that it interpreted this to mean that she "didn't want to work." I find this something less than obvious. It is even less tenable when one recalls that at the same time Mrs. Daniel was asking io be permitted to return to see if she was sufficiently recovered to work a full shift. evening a week. Ryneska queried Daniel concerning his schooling, advised that he would have to spend many hours at night attending classes notwithstanding conflicts with other activities, and generally sought to ascertain Daniel's sincerity in applying for the program. Ryneska told Daniel that he would be glad to have Daniel join the program. (It appears that Respondent is anxious to get as many good applicants for the program as possible.) At the time, Daniel was wearing his union badge, as he has con- tinued to do since. Toward the end of this conversation, Ryneska asked Daniel how and why he had gotten mixed up with the Union. Daniel replied that he had become in- volved because he had been asked by people in the plant as to how to get an organizing campaign started. Daniel states that Ryneska then told him that "small companies like Fasco didn't need a union . . . that I was pushing the union, that I was against the company. He also stated that that was the reason that I was taken out of [Department] 53, and put down in packing, in [Department] 46", and that "they couldn't let me run around in the company because somebody was starting to believe me. That's why I was put down in 46.... ' On cross-examination Daniel asserted that Ryneska had also told him during this conversation that he had a good future with the Respondent. Daniel indicated that he un- derstood Ryneska,.to mean, however, that his continued union activities would affect Daniel's future with Respon- dent. Ryneska denied this implication but does state he told Daniel that Respondent could do more for him than the Union could. While this may form some basis for Daniel's conclusion that Ryneska was indicating that his union activities would harm him, I find it difficult to make such a finding on the basis of the evidence in the record as a whole. I also note that this is not alleged in the com- plaint. Ryneska's testimony as to this meeting is substantially consistent with the statements of Daniel set forth above except that he asserts that there was not any discussion of Daniel's transfer from Department 53 to Department 46. Ryneska agreed that Daniel's job in the original depart- ment permitted him to move about the plant in the perfor- mance of his duties, but states that the job in Department 46 also permitted Daniel to go to four or five locations. Ryneska stated that he had nothing to do with Daniel's transfer but receive the records, and that Daniel's original job had been abolished. The question here, however, is not whether Daniel's job was abolished, or even whether Respondent had reason to transfer him, but whether Ryneska told Daniel that he had been transferred because he was pushing the Union. I am convinced that some discussion of Daniel's transfer oc- curred during this conversation for I do not believe that Daniel made the incident up out of the whole cloth as Ryneska's testimony indicates. I therefore credit Daniel's testimony concerning this matter. With respect to this conversation, General Counsel alleg- es first that Respondent improperly interrogated Mr. Dan- iel about his union activities. Granted that the question should not have been asked, and that this was not the time or place for such interrogation, I cannot see how these questions of an acknowledged leader of the union move- FASCO INDUSTRIES, INC. ment, over a year after the union drive started, could have any realistic tendency to interfere with the employees' union activities . Notwithstanding that Daniel may have felt some obligation to give Ryneska the information re- quested, inasmuch as Ryneska had just granted him a fa- vor, and he was in a "locus of management authority," his testimony and manner did not indicate any attitude of sub- mission or restraint . Nor did the questions indicate an in- tent to pry into the names of union adherents or their pri- vate union activities which might be used in opposing the Union. Even though I find, as discussed immediately here- inafter, that Ryneska in the same conversation did indicate to Daniel that the Respondent had taken certain personnel action against him because of his union activities , I do not believe that the questions asked of Daniel, in the total cir- cumstances, should be considered violative of the Act. It will, therefore, be recommended that this allegation of the complaint be dismissed. However, by advising Daniel that Respondent had transferred him from one job, in which he had free move- ment about the plant , to another, in which his movements were more restricted, because of his advocacy of the Union, Respondent did violate Section 8(a)(1) of the Act. As such it was a clear illustration of the power of the Re- spondent to alter Daniel's working conditions to his detri- ment, while, at the same time, Ryneska was telling him that Respondent could do more for him than the Union-a strong coercive threat tending necessarily to inhibit further activities on behalf of the Union. C. The January Incident Mr. Daniel referred to an occasion in early January 1974, in Ryneska's office, during which Ryneska told Dan- iel that he did not want to talk to Daniel because Daniel "had turned him in to the union." No other details were given. Ryneska denied making the remark and insisted that he had talked to Daniel in his office on only one occasion, during the previous September. Ryneska stated that he had encountered Daniel in the hallway to his office on an occa- sion in early January 1974, at which time he told Daniel that he was too busy to talk to him. Ryneska stated that at the time he had the allegations in this case and a subpena in his possession-indeed, he originally stated that he "had it in my hand"-when he talked with Daniel, and testified that "where a man alleged that I questioned him about the union , and all that [a clear reference to the matters dis- cussed above], I'd be a fool to then just continue talking about the union." He also said, "I was in no way, shape, or form going to mention the word `union.' " Ryneska there- after agreed that these papers, which he originally said were in his hand , were actually on his desk as he was speaking to Daniel. Ryneska also testified that, a few days thereafter, Daniel again spoke to him in the hall, asking when the technical school would reopen. Ryneska stated that he would find out and let Daniel know. He apparently did so. Daniel did not testify concerning this latter incident. Ryneska's testimony indicates strongly that the allega- tions of the complaint , and especially his previous interro- gation of Daniel, were much on his mind when he spoke to 101 Daniel on the first occasion . I am inclined to believe, in accordance with Daniel's testimony, that reference was made to these allegations on this occasion (perhaps to illus- trate why Ryneska was so busy). As such these remarks would have a tendency to inhibit free and unimpeded ac- cess to the Board's processes in violation of the Act. How- ever, succeeding events make it clear that neither of the men understood that Ryneska would thereafter refuse to talk to Daniel or assist him because of the filing of this case with the Board . In a few days thereafter , Daniel again made legitimate inquiry of Ryneska, who freely replied and assisted him. In the circumstances , this single, probably exasperated comment by Ryneska does not require a remedial order, and it will be recommended that this alle- gation of the complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by refusing to rehire Grace W. Daniel on and after August 6, 1973, because of her union activi- ties, engaged in unfair labor practices in violation of Sec- tion 8(a)(1) and (3) of the Act, and by coercively advising Albert N. Daniel that adverse personnel action had been taken against him because of his union activities engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4..The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Except as set forth hereinabove Respondent did not engage in unfair labor practices as alleged in the com- plaint. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It will be recommended that Respondent offer Grace W. Daniel immediate and full reinstatement to her former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to her seniority and other rights, privileges, or working conditions, and make her whole for any loss of earnings suffered by reason of the discrimina- tion against her, by paying to her a sum of money equal to the amount she would have earned from August 6, 1973, to the date of Respondent's offer to rehire her, less her net earnings during that period , in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 11 Respondent, Fasco Industries, Inc., Fayetteville, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to rehire, discharging, or otherwise discrim- inating against employees in order to discourage employees from joining a union or engaging in union activities. (b) In any manner threatening reprisal or adverse action against employees because of their union membership or activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Offer Grace W. Daniel immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent job, and make her whole for any loss of earnings or benefits she may have suffered by rea- son of the discrimination against her, in accordance with the provisions of the section entitled "The Remedy" above. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, payroll and other records to facilitate the effectuation of the Order herein. (c) Post at its operation at Fayetteville, North Carolina, copies of the attached notice marked "Appendix." 12 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 11, 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 thereafter, in conspicuous places, including all places where notices to employees are cus- " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102 .48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any material. (d) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed with respect to any alleged violations of the Act not found hereinabove in this Decision. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge , refuse to rehire , or otherwise discriminate against employees to discourage mem- bership in or activities on behalf of International As- sociation of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with reprisals or adverse action because they join or assist a union, or engage in union activities protected by the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the National La- bor Relations Act. WE WILL offer to Grace W. Daniel immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights or privileges, or working conditions , and WE WILL make her whole for any loss of pay or benefits suffered as a result of the discrimination against her. FASCO INDUSTRIES, INC.