Permaneer Corp.

PERMANEER CORPORATION Permaneer Corporation and United Paperworkers In- ternational Union , AFL-CIO. Case 36-CA-2464 October 29, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On April 5, 1974, Administrative Law Judge Hen- ry S. Sahm issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and General Counsel filed a reply to Respondent's exceptions. 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 only to the extent consistent herewith. The complaint alleged that Respondent promul- gated and enforced an unduly broad rule restricting employees from union activities and union solicita- tion on their own time,' and that it enforced the rule in a disparate and discriminatory manner against union adherents. It also alleged that Respondent dis- charged employee Morelli for the professed reason that he had violated the aforesaid rule whereas, in fact, Respondent discharged him because of his union and concerted activities. The Administrative Law Judge found that the rule was not unlawful. We agree. But he also found that it was disparately ap- plied to Morelli in violation of Section 8(a)(3) of the Act. With this latter finding, we disagree. Respondent is engaged in the manufacture of par- ticleboard at a plant in Brownsville, Oregon. The plant consists of two mills under one roof. Each mill has its own production superintendent and its own production employees. Production crews for the two mills have separate restroom facilities, timeclocks, and lunchrooms. Because of the continuous nature of the plant's operations, employees are given staggered 20-minute lunchbreaks and two 10-minute rest peri- ods resulting in only a few people not working at any given time. The two mills have a common telephone system, but utilize a separate horn or siren system to relay code. signals to employees and supervisors re- garding fire calls, telephone calls, and production tieups. 1 The rule reads: "Lunch breaks are to be taken in the designated area for the respective departments." 367 Martin Morelli was hired by Respondent in March 1970 and worked as the press or console operator on the relief-shift production crew until he was termi- nated on July 17, 1973. According to his former su- pervisors, Morelli was a good workman but hard to supervise because he liked doing things his own way. In the spring of 1972, Morelli was active in orga- nizing the employees of the Brownsville plant in be- half of a local of the Lumber and Sawmill Workers Union, AFL-CIO. That union filed a representation petition with the Board and a consent election was held in September 1972. The union lost the election. In March 1973, Morelli became active in behalf of another labor union, United Paperworkers Interna- tional Union, AFL-CIO, which was seeking to repre- sent Respondent's employees. This effort resulted in a second consent-election agreement and an election in October 1973, which the Paperworkers won. In late June or early. July 1973, Morelli, who worked in mill #2, admitted being orally repri- manded by his foreman, Fred McNeil, for being out of his production area during his break period in vio- lation of shop rule 5. The incident which led to Morelli's discharge oc- curred on the evening of July 16, 1973. According to Morelli's account, about 7:15 p.m., during his 20- minute lunchbreak (Morelli worked the swing shift on that day), he was in Foreman McNeil's office ex- amining a production report when the telephone rang and a female voice asked for McNeil. Morelli answered that McNeil was out and suggested that the caller call back in a few minutes while Morelli went to find McNeil. Morelli then left his place in mill #2 and went to mill #1 looking for McNeil. While in mill #1, he spoke to employee Thornton who was working. When he spied McNeil, he ran up to Mc- Neil and told him about the telephone call and the call back. McNeil's account of the incident is that he saw Morelli talking to employee Thornton in the sander area where Morelli had no business being and that when Morelli saw him Morelli ran up to him and said he had been looking all over the plant for Mc- Neil and wanted to know if McNeil had received a telephone call. McNeil questioned Morelli about the telephone call. Morelli was unable to give the name of, or the message from, the caller. Morelli was also not able to give any satisfactory explanation for not sounding the maintenance horn, an accepted signal, in order to call McNeil back to his office. Doubting that there had been any telephone call for him, Mc- Neil spoke to employee Paul Beaudin, who was sub- stituting for Morelli during the latter's break period and would receive all incoming calls; and asked him if there were any telephone calls while McNeil was 214 NLRB No. 47 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out of his office. Beaudin answered that there had been only two incoming calls, but he had been un- able to make a connection with either one. Asked by McNeil if Morelli could have received a call in the foreman's office, Beaudin answered that Morelli had been nowhere near that office. McNeil subsequently told Morelli that he did not believe his telephone sto- ry and that Morelli had again been out of his area talking with people who were supposed to be work- ing and that McNeil would not put up with such conduct any longer. McNeil, who was leaving that evening on a short vacation, telephoned Production Manager Karl Sor- man at his home and told him about the Morelli inci- dent. Sorman suggested terminating Morelli in view of the fact that McNeil also told him that he had given Morelli a final warning on another matter a week or so earlier. However, McNeil said that per- haps they ought to check Morelli's personnel file first and make a determination later. Sorman approved the idea. The next day Sorman examined Morelli's file, which showed a number of reprimands, spoke to Beaudin who told him no telephone call had been received for McNeil the previous day and that Mor- elli had not been in McNeil's office, discussed the situation with the plant manager, and decided to ter- minate Morelli. Since Morelli's shift on July 17 was scheduled to start at 11 p.m., Sorman appeared at the plant shortly before the start of the shift to tell Mor- elli he was fired.2 During the termination interview, according to Sorman, Morelli was not able to give him a satisfactory explanation of the alleged tele- phone call for McNeil the previous day. The Administrative Law Judge credited Morelli's account of what happened on July 16; namely, that during his break period Morelli had received a tele- phone call for McNeil and he had gone to mill # 1 only to find McNeil and tell him so. In making this credibility determination, the Administrative Law Judge simply ignored without explanation' the testi- mony of employees Beaudin and Thornton which, in 2 In the printed form used for recording the termination, Sorman gave the following explanation of the termination Termination for failure to comply with company rules Was in the Sander area without permission-on last shift Was warned for the same thing in the past These rules were reviewed in a crew meeting 4 weeks ago 3 Although the Administrative Law Judge set forth a summary of the testimony of employees Beaudin and Thornton, his failure to discuss the reasons for rejecting their stories while crediting that of Morelli is unaccept- able, in view of the additional undenied testimony of both individuals which bore directly on Morelli's credibility. Both Beaudin and Thornton were disinterested, neutral witnesses, whereas Morelli was the subject of the 8(a)(3) allegation with a major interest in the outcome of the proceeding Such a situation requires careful consideration by an Administrative Law Judge and some statement of why he rejected the internally corroborative testimony of the two disinterested witnesses in favor of the uncorroborated testimony of the alleged discriminatee our opinion, completely undermines the validity of the Administrative Law Judge's credibility determi- nation. Thus, Beaudin testified that Morelli could not have received a telephone call for McNeil during the relevant time ; that he had so informed McNeil and Sorman; that, on July 19, Morelli called him and asked him to say if asked that on the evening of July 16 there might have been three calls, one of which he missed,4 and that Beaudin refused. Employee Thornton testified that he worked in mill # 1, and that on the evening of July 16 Morelli came to him and asked him "how things were going" and whether he had signed a union card. During the conversation, Morelli also asked whether Thornton had seen any "white hats" (foremen). When Thorn- ton reported that he had seen McNeil, Morelli left. Further, Thornton testified that Morelli had said nothing to him about a telephone call for McNeil. Finally, Thornton testified that on the evening of July 17, Morelli asked him to say, if he was ques- tioned as to why Morelli was in Thornton's area, that the reason was an outside telephone call for McNeil. About a week later, Morelli asked him again to give the same answer if questioned. This testimony of wit- nesses Beaudin and Thornton is in every essential point uncontradicted. In Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951), the Board set forth the standard of review of an Administrative Law Judge's findings of fact. The Board stated: In all cases, save only where there are no excep- tions to the Trial Examiner's [now Administra- tive Law Judge] proposed report and recom- mended order, the Act commits to the Board itself, not to the Board's Trial Examiners, the power and responsibility of determining the facts, as revealed by the preponderance of the evidence. Accordingly, in all cases which come before us for decision we base our findings as to the facts upon a de novo review of the entire re- cord, and do not deem ourselves bound by the Trial Examiner's findings. Nevertheless, as the demeanor of witnesses is a factor of conse- quence in resolving issues of credibility, and as the Trial Examiner, but not the Board, has had the advantage of observing the witnesses while they testified, it is our policy to attach great weight to a Trial Examiner's credibility findings insofar as they are based on demeanor. Hence we do not overrule a Trial Examiner' s resolu- tions as to credibility except where the clear pre- The importance of this is that Beaudin had already told McNeil and Sorman that during the break period only two calls had been received, but that no satisfactory connections had been made in the case of either call If there had been a third call, this might have confirmed Morelli's story PERMANEER CORPORATION 369 ponderance of all the relevant evidence convinc- es us that the Trial Examiner's resolution was incorrect. An Administrative Law Judge cannot simply ig- nore relevant evidence bearing on credibility and ex- pect the Board to rubber stamp his resolutions by uttering the magic work "demeanor." 5 There are two adversary witnesses to the July 16 incident, Morelli and McNeil. There are also two neutral witnesses who gave important testimony bearing on this inci- dent, Beaudin and Thornton. Neither of these neu- tral witnesses was impeached. The testimony they gave is virtually uncontradicted. Beaudin's testimony is that no telephone call was received for McNeil; Thornton's that Morelli said nothing to him about a telephone call for McNeil. Moreover, both testified, and Morelli admitted, that Morelli asked them to lie about their accounts of what happened so as to save his job. Both refused Morelli's request. The testimo- ny of these two witnesses, in our opinion, establishes overwhelmingly that the Administrative Law Judge's crediting of Morelli's account of what happened on July 16 was incorrect, that Morelli did not receive a telephone call for McNeil, and that Respondent cor- rectly believed that the telephone story was a fabrica- tion created to excuse Morelli's presence in an area where he had no right to be.6 On the basis of the clear preponderance of all the relevant evidence,' we therefore overrule the Administrative Law Judge and find that Morelli was in violation of a lawful compa- ny rule when McNeil found him in mill # 1 speaking to employee Thornton. The Administrative Law Judge found, in the alter- native, that, even if it is assumed, arguendo, that Morelli had violated the rule, the real reason for his discharge was not the rule violation but his union activities. We cannot agree. In the first place, there is insufficient evidence of strong union animus on the part of Respondent! In little more than a year, Re- 5Interboro Contractors, Inc, 157 NLRB 1295, 1301, in 14 (1966) 6 Member Penello finds Lizdale Knitting Mills, Inc, 211 NLRB-(1974), distinguishable in that there the Administrative Law Judge's credibility res- olutions were based in part on the demeanor of the witnesses but were adequately supported by objective evidence , whereas here demeanor is the sole ground for crediting Morelli and all other evidence is to the contrary ' Local 918, international Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and Helpers of America (Tale-Lord Manufacturing Company, Inc 206 NLRB 382 (1973) Cf Tom Johnson, Inc, 154 NLRB 1352 (1965). 8 Our dissenting colleague emphasizes the testimony of former Foreman Roger Pump as demonstrating a strong union animus on the part of the Respondent Pump testified that, at a management meeting in 1972, during a prior union campaign, someone remarked that the Union would fall flat on its face if Morelli were not around Pump also stated that, although similar violations by other employees were overlooked, he had written an official warning for Morelli , dated July 14, 1972, for being in the wrong lunch area only after a superior had instructed him to get rid of Morelli This evidence, which might be construed as showing union animus, con- cerned statements made approximately I year before Morelli 's discharge spondent was confronted with two separate union or- ganizational campaigns. In both instances, it agreed to consent elections. In neither campaign was it charged with having committed unfair labor practic- es to thwart the organizational efforts of its employ- ees. The Administrative Law Judge himself found that Respondent never forbade employees from en- gaging in union activities during their nonworking time in such designated areas as restrooms, lunch- rooms, and the foremen's offices. In fact, he also found that Morelli used the lunchroom to campaign on behalf of the Union during his nonworking time, and this fact was known by management. This is hardly the conduct of an employer intent on defeat- ing a union organizational campaign by unlawful means. In the second place, Morelli on July 16 was in vio- lation of a lawful rule restricting him to the lunch- room of mill #2 on his lunchbreaks when he was found by McNeil talking to Thornton in mill #1. The rule was contained in a handbook distributed to employees in June, and its importance had been stressed to employees. Morelli admitted that he was aware of the rule. In fact, he testified that he had been orally reprimanded by Foreman McNeil only a few weeks before his discharge for violating the rule by being out of his production area during his break period. The rule was important and had a threefold purpose: to have employees congregated in one area so that they could be quickly called upon to fight fires, an ever present danger in a plant with highly combustible material; to have employees immedi- ately available in case of a production breakdown since the plant operated on a continuous basis; and to prevent accidents to employees who might other- wise wander about the plant. In the third place, the Administrative Law Judge's inference that the rule was disparately enforced against Morelli is not supported, in our opinion, by the clear preponderance of the evidence. Before ter- minating Morelli, Production Manager Sorman re- viewed Morelli's personnel file which contained writ- ten reports of eight reprimands given to Morelli be- tween June 1972 and July 1973. The reprimands covered such offenses as disturbing other employees on the job, failure to comply with company rules by taking a lunchbreak in a nondesignated area, late- ness, late reporting of expected absence because of and before the 1972 election Morelli was not discharged pursuant to these alleged statements, but instead continued to work for another year During that period, several other incidents occurred involving Morelli, some of them during the 1973 organizing campaign , for which he received written or oral reprimands but no discharge in March 1973, he was suspended for I week for insubordination because he swore at a foreman, but he was not discharged It is evident that the 1972 statements were too remote in time to constitute probative evidence of union animus at the time of the 1973 dis- charge 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sickness, insubordination, and, finally, on July 8, 1973, approximately a week before discharge "taking reading material out of lunch room into work area." This latter reprimand by Foreman McNeil contained the phrase "Final Warning." This "Official Warn- ing" was signed by Morelli. There is no evidence that any employee with a comparable record of rule in- fractions and reprimands received less lenient treat- ment from Respondent than did Morelli.9 We therefore find that the General Counsel has not met his burden of proving that Respondent dis- charged Morelli for a discriminatory reason. Accord- ingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: I consider my colleagues' reversal of the Adminis- trative Law Judge's credibility resolutions to be total- ly unwarranted. Their justification for this rather ex- treme action is the Administrative Law Judge's al- leged failure to discuss the testimony of employees Beaudin and Thornton which seemingly is in conflict with the credited testimony of employee Morelli, the alleged discriminatee. With this as their basis, my colleagues then go on to substitute their own evalua- tion of the record evidence, accepting, as credited, testimony which the Administrative Law Judge ex- pressly discredited and discrediting testimony which he expressly credited, all without any further expla- nation or justification other than the assertion of the Board's right to make its own credibility resolutions. My objections are many, but first and foremost among them is that my colleagues have relied on an erroneous predicate in reaching their conclusions. Contrary to my colleagues' statement, the Adminis- trative Law Judge did not "simply ignore" the testi- 9 The Administrative Law Judge also stated the timing and precipitous nature of Morelli's discharge by Sor- man, the next day after the telephone call incident, which was Sorman's day off, nevertheless, felt the matter so urgent that he came to the plant from his home at II o'clock at night, is a cogent circumstance from which it is not too unreasonable to draw an inference of proscribed motivation and a conclusion of discrimination We must respectfully disagree with the Administrative Law Judge's evalu- ation of this incident We think it proves nothing July 17, the day after the telephone call incident, was not Sorman 's day off, he actually worked on that day His normal working hours did not extend to I I p.m However, Foreman McNeil had left for a vacation at the end of the shift on July 16, and Morelli started to work at II p in on July 17 If Sorman was to dis- charge Morelli, he had to appear at that time There is therefore no signifi- cance in this incident mony of Beaudin and Thornton. On the contrary, the Administrative Law Judge specifically discussed their testimony and although he did not expressly discredit them, he did fully credit the testimony of Morelli whose testimony conflicts with that of Beau- din and Thornton. Such a situation is not uncommon in cases that come before us and it would indeed be unfortunate if we were to proceed on the basis that an Administrative Law Judge's failure to expressly resolve each and every bit of conflicting testimony could result in the overturning of those credibility resolutions he has made. Of course I recognize that an Administrative Law Judge's credibility resolutions are not to be held inviolate, but when testimony is specifically discussed, I believe it must be deemed to have been considered and rejected in the face of con- flicting credited testimony. Even if I were to accept my colleagues' premise that the Administrative Law Judge failed to consider Beaudin's and Thornton's testimony, which I do not, I would still consider their approach unjustifiable. In this case we are not dealing with a simple "one on one" credibility resolution, but rather with the credi- bility of numerous witnesses whose credibility is not necessarily affected by a resolution of the conflicts between the testimony of Morelli on the one hand and Beaudin and Thornton on the other. Thus, while I accept the proposition that the Board has the power to make credibility resolutions, there must be, in the absence of demeanor, a clear basis in the record for crediting one witness over another, an uncommon situation where, as here, the testimony of numerous individuals is involved. In such circumstances, when the charge is made that certain testimony has been ignored or overlooked, it would seem to me that the better course of action would be to remand the mat- ter to the Administrative Law Judge for specific find- ings rather than for us to open up all the credibility resolutions made and offer a wholly independent evaluation of all the record testimony. It would serve no purpose here to engage in an extended discussion of the record evidence bearing upon Morelli's discharge, but I would be remiss in my duty if I did not at least indicate that there is considerable record testimony in support of the Ad- ministrative Law Judge's conclusion that Morelli was discharged because of his union activities. Respondent's contention is that after numerous warnings for plant rule infractions, Morelli was dis- charged on July 16 for being in violation of rule 5 which required that employees take their lunch breaks in designated areas in their departments. Al- though the Administrative Law Judge found that rule 5 was lawful on its face, and I agree, he conclud- ed that the rule was used as a pretext to mask the PERMANEER CORPORATION unlawful motive for discharging Morelli and that even if Morelli had in fact violated rule 5, the dispari- ty in its enforcement evidence a discriminatory appli- cation of the rule to Morelli. Of particular signifi- cance in evaluating the Administrative Law Judge's findings is the testimony of Roger Pump who was formerly Morelli's foreman. Pump's testimony is credited by the Administrative Law Judge and ap- parently accepted by my colleagues. In relating to events which occurred about the time of the first union campaign, Pump testified that he was instruct- ed by his superiors that he was to give particular at- tention to the enforcement of the plant rules where Morelli and Pruitt (another union activist) were con- cerned and that Foreman Peterson told him that if it were not for Morelli, there would be no union activi- ty at the Brownsville plant and, therefore, an effort should be made to rid the plant of him. In connec- tion with the application of rule 5, Pump testified that it was violated almost every day, but that the only written warning Pump ever issued for such an infraction was to Morelli and that was because he (Pump) had been instructed by Production Manager Sorman to get rid of Morelli. Pump further testified that both Production Manager Sorman and Plant Manager Calbaum gave orders to the supervisors that they wanted Morelli out of there and that, as a result, Pump felt obligated to write Morelli up for being tardy even though other employees who were habitually late did not receive similar treatment. Also interestingly enough, Foreman McNeil, whose testi- mony is accepted by my colleagues, even admitted that in the 2-1/2 years he had been a foreman, he never reprimanded any employee for violating rule 5, except Morelli. Then, we have the testimony of em- ployee Dean Pruitt, which appears to have been credited by the Administrative Law Judge, wherein Pruitt states that 2 or 3 days after Morelli's discharge, Foreman McNeil told him: "You'd better watch out, you're going to end up just like your buddy, because you'll be next on the list." The Administrative Law Judge concluded that the generally consistent testimony of the General Counsel's witnesses was reliable and consistent with certain undisputed and demonstrable facts. In my judgment, the record evidence provides ample sup- port for his findings and conclusions. Accordingly, I would adopt the Administrative Law Judge's Deci- sion in its totality. DECISION HENRY S. SAHM, Administrative Law Judge. This pro- ceeding was heard at Portland, Oregon, on December 18, 19, and 20, 1973,' pursuant to a charge filed by United 371 Paperworkers International Union, AFL-CIO, on July 19. A complaint which issued on October 31, as amended on November 28, presents questions whether Respondent, Permaneer Corporation, herein called the Company, dis- charged Martin Morelli in violation of Section 8(a)(3) of the National Labor Relations Act because of his activity on behalf of the Charging Party, herein called the Union, or because he was an unsatisfactory employee. It is also alleged that Respondent Company discriminatorily and disparately enforced an overly broad rule restricting union activities and solicitation by its employees on their own time in violation of Section 8(a)(1). Upon consideration of the entire record, including ob- servation of the testimonial demeanor of the witnesses, and after due consideration of the briefs filed on February 5, 1974, by the General Counsel and by the Company, there are hereby made the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Delaware corporation, engaged in Brownsville, Oregon, in the manufacture of particle board, employs approximately 150 employees and does a gross annual volume of business in excess of $500,000, and annu- ally ships outside the State products valued in excess of $50,000 and purchases supplies originating outside Oregon valued in excess of $50,000. It is found that Respondent is an employer engaged in an activity affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Union, United Paperworkers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED VIOLATION OF SECTION 8(A)(3) A. The Discharge of Morelli 2 Martin Morelli, the alleged discriminatee, was hired by Respondent on March 27, 1970, and terminated on July 17, 1973. For the last 2 years of his employment, Morelli was one of two press operators in charge of one of the two production lines in each of the two mills which comprise Respondent's Brownsville operation. During the period of time pertinent herein, he operated mill #2 production line. His duties also entailed operating and controlling the per- formance of various other machines which were a part of the production line and utilized in the manufacturing of particle board. Particle board is produced from wood chips and resin which is compressed by the application of pres- sure generated by a machine. This operation was per- formed by the press operator seated in a raised console from where he oversaw the production of the particle board. These various duties of Morelli, for which he was All dates herein refer to the year 1973 unless otherwise indicated 2It was stipulated and also found herein that Pump, Lehto, Lemons, Davis , Sorman , and McNeil, at all pertinent times , were supervisors within the meaning of Sec 2(11) of the Act 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responsible, were governed and regulated by various mech- anisms under his control located in a raised console from which he was able to view the production line in order to direct and to observe whether it was functioning properly. In April 1972, some of Respondent's production and maintenance employees became interested in organizing a union at its Brownsville plant. Morelli, who was in the forefront of these union organizational activities, polled the employees to ascertain whether they were for or against having a union represent them. When he determined a suf- ficient number of employees favored a union, he and Dean Pruitt, a coworker, contacted officials of Local 2791 of the Lumber and Sawmill Workers Union, AFL-CIO,3 with respect to the possibility of organizing a union at Respondent's plant. They were given union membership application cards which authorized the union to act as bar- gaining agent. Commencing in May 1972, Morelli solicited his fellow employees to sign these cards for the eventual purpose of having said union represent the production and maintenance employees in collective-bargaining negotia- tions with the Respondent Company. Morelli obtained sig- natures in the plant lunchrooms on his 20-minute lunch period and his two coffeebreaks of 10 minutes each. He also solicited employees before and after work and at their homes. Union meetings were held at his home and at the city hall of Brownsville, a community of 1,034 inhabitants 4 Morelli continued his union efforts up until the election. Pursuant to the said union filing a petition on August 4, 1972, the National Labor Relations Board conducted an election on September 7, 1972. The union lost the election. On June 2, 1972, the Company issued an "official warn- ing" to Morelli for disturbing other employees who were working and instructed him to refrain from walking around the plant during his nonworking time, and to re- main during his breaks in the lunchroom. On July 14, 1972, he was cited for "taking his lunch in a non-designated area." On August 25, 1972, he was charged with being tar- dy for work on three occasions within a period of 12 days. On October 20, 1972, he was warned for "missing time withoutjust cause." The written warning stated that "he or anyone else knows when they are going to be sick, or other reason to miss before the time comes." Morelli was given another warning on November 6, 1972, for calling in sick after his shift started and instructed that in the future he must notify the Company before the starting time of his shift. At the end of January 1973, about 3 months after the first union election, supra, Morelli went to Dillard, Oregon, to speak to George Moore, manager of the Company's en- gineering department, who outranked Calbaum, the num- ber one man at the Brownsville plant. Morelli's testimony on cross-examination reads as follows: business, and this is just like politics, I said. I feel like I'm being discriminated against. I've been harassed. I said I'd like it to cease. . . . He said if you do your job, you won't have any problems. I said, well, what's going to guarantee me that the company can't do to me what they've been doing to me. He says, well, I don't know that they're doing anything to you. . . . I proceeded, then, to show him a letter of a person that I'd brought down that stated pointblank the company had been discriminating against me. He said he couldn't disprove the letter, that it could have merit, but he's not working up there and Gerry Calbaum was in charge up there. Well, I'll tell you, I didn't accomplish much, because I went around and around with George [Moore] for two-and-a-half hours, I think, my wife waiting for me in the car. I know when I walked out of there I hadn't accomplished anything, because I talked to him about discrimination charges that I was going to file with the NLRB if they couldn't stop this, and he says, well, you don't have a case, we haven't fired you, or anything. And I said no, but maybe I can get something bring- ing this up to the federal government. He said, well, I'll talk to Gerry [Calbaum] about it when he comes down here, and like I'm telling you now, he says, dust do your job and you won't have any trouble. And I says, well, that doesn't give me any assurance they're not going to keep on doing what they've been doing. I said my blood pressure's starting to go up and I'm becoming a physical wreck. And that was about the conversation. We'd keep on repeating it over and over and over again. That's all we did. It didn't help me one bit. . . . The same thing, just do my job and they can't do anything to me, and I'd say, well, they can, anybody can be fired, and I said this all stems from union activity. Then he turned around and said, well, why do you want a union in there, and I says, Mr. Moore, because of better benefits and the wages are higher at White City, and that's because, he said, of an area difference, and I said I don't know. I said I'm not a statistician on wages in different areas. It was dust generally. Then this conversation came down to why I wanted a union at Permaneer, and I dust told him I thought the Union had to be there for the men's bene- fit, that's all there was to it. When Respondent's counsel said to Morelli that it was he who initiated this conversation about the Union with Moore, Morelli responded: So, I came down and laid my cards on the table [to Moore]. I'm a press operator at Permaneer, and I said you know I give you 101 percent out there. I said I believe in my union activities out here being my own s This union is not the Charging Party Union in this proceeding U S Department of Commerce , 1970 Census of Population, P.C (1)-A-39 No, he asked. He came forward and asked why I wanted a union, because I told him they were pushing on me down at work because of my union activities. This was after the [first] election was held, and they started their campaign to get on my back. Then when Ernie [Lehto] left, it went on and on and on.5 Lehto, a foreman, was employed by Respondent until early January 1973 PERMANEER CORPORATION In March 1973, Morelli contacted officials of the United Paperworkers International Union, the Charging Party herein, and indicated that he and other production and maintenance employees of Respondent Company were in- terested in having the Union represent them. Morelli was shown a collective-bargaining agreement that the said Union had executed with another company and he was also given union literature to distribute to employees which explained said Union's health and welfare benefits as well as other information. Morelli was issued two written "official warnings" for "insubordination" both of which bear the same date of March 5, and was suspended from work for a week. (G.C. Exh. 12(a) and (b).) Morelli testified that General Counsel's Exhibit 12(b) was not given to him until a week after it was dated, at which time the Company suspended him. Morelli's version appears to be correct as it will be noted that General Counsel's Exhibit 12(a) is signed by him, but not Exhibit 12(b) which states "Refused to sign." Nine or 10 organizational meetings were held at Morelli's home between June and the election on October 25, of which 7 meetings were held prior to his termination on July 17. Morelli testified that in the "middle" of June he observed Cy Davis, a company foreman, drive slowly by his home when a union meeting was being held and that Davis "looked at whose cars was there. . " Morelli testified that on July 15, at approximately 7 p.m., in the lunchroom of mill #2, while on a rest break, he and Frank Springman, an employee, were soliciting Marv Can- nell, a coworker, to sign a union authorization card when Fred McNeil, his immediate supervisor, "stuck his nose in the lunchroom and was watching what we were doing. He then proceeded to walk into the lunchroom and asked [Cannell] a question . . about some maintenance problem .. . looking down at the table where the card was being signed. He [McNeil] then got his answer from [Cannell] and left the lunchroom." On July 8, McNeil issued a written "final warning" to Morelli charging him with "taking reading material out of lunchroom into work area." McNeil testified he saw Mor- elli in a sitting position in the production line console with his head bent over and assumed he was reading something although he was unable to see what, if anything, Morelli was holding in his hands. Morelli stated that he never read while on duty (except company written orders to him) and specifically denied he was reading a book on July 8 during working time. Morelli's version that he had a paperback book in his hip pocket and that McNeil grabbed it and removed it from his pants hip pocket while Morelli was walking down the aisle of the plant the same day is cred- ited. On July 16, at approximately 7:15 p.m., while Morelli was on his 20-minute lunchbreak, and examining his pro- duction report in Foreman McNeil's office, the phone rang. His testimony on cross-examination follows ". . . a female voice asked for Fred McNeil. I said McNeil was not present there. I said if the party would call back in a few minutes I would try to locate him. I hung up." Morelli then 373 walked out of the foreman's office and into the sander area of the plant. He spoke for about a minute to employee Thornton who was working at the time. He testified that when he finished his conversation with Thornton: I proceeded to leave Thornton and walk up the main aisle. I got approximately to the sander . . . machine . . 20 to 25 yards [from where he spoke to Thornton]. Fred McNeil was walking along the aisleway. . . . I ran up to him and I told him that I had a phone call for him. . . . He said O.K. I told him that a party was going to call back for him. He dust kind of looked at me blank. I relayed the message and left. I went back to my lunch area.. . . On cross-examination, Morelli testified that when Mc- Neil told him he did not believe him, "I dust shrugged my shoulders. About anywhere from five or six minutes later ... he proceeded to come into the lunchroom. He told me that he'd like to talk to me outside privately. . . . Mr. Mc- Neil told me he didn't believe that I had a phone call and he told me that if he caught me out of my area again, breaking a shop rule, that he would fire me." That same night, he and Dean Pruitt, another employee, after their shift ended at 11 p.m., waited for the crew of the sanding department to get off work in order to solicit them to join the Union. As they were talking to these employees, continues Morelli's testimony, "I looked up and there was foreman McNeil driving by. Mr. McNeil started to go out of the parking lot and head down the road. He then stopped and backed up, came back and drove by very slowly and was looking at what we were doing. We were signing cards with the members . . . [with the employees coming off the shift]. I say they're members now because there's a union.6 He proceeded then to make a loop around the building " Morelli continued that McNeil proceeded to drive around the mill a second time at which point he parked his car. Accompanied by Robert Monroe, relief shift production foreman of mill #1, McNeil walked over to where Morelli was soliciting employees and told the group: ". let's break it up here, you guys, and get on home. .. " As Morelli was reporting for work the next night at II p.m. on July 17, Karl Sorman, a supervisor, whose day off was July 17, nevertheless, came from his home to the plant that evening, and handed Morelli, whose shift started at I I p.m., a written termination notice, dated July 17, signed by Sorman which stated: Termination for failure to comply with Company Rules Was in the sander area without permission. On last shift was warned for the same thing in the past. Morelli testified that at the time Sorman handed him the 6 The Charging Party Union (which was opposed by Local 2791, Lumber & Sawmill Workers ) won the second election on October 25 , and was certi- fied by the Board on November 21, 1973, as the collective -bargaining repre- sentative of Respondent 's production and maintenance employees See fn 3, above 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above notice that he told him he was being discharged "for being in the sander area, and that I had repeatedly broken shop rules... ." When Sorman enumerated the reasons for his discharge, Morelli disputed their veracity, testifying that "[he] told him that this was just because of [his] union activities." Furthermore, Morelli told Sorman, he was in the sander area because he had a telephone message for his foreman, McNeil. General Counsel's Exhibit 11, which states that Morelli was "taking reading material out of lunchroom into work area," is undenied except that Morelli claimed that the en- tire time he was in the work area the book remained in his hip pocket. Exhibit 12(a) dated March 5, 1973, reads: "In- subordination." There is a notation on General Counsel's Exhibit 12(b) which states Morelli refused to sign it. Gener- al Counsel's Exhibit 13 charges Morelli with calling in sick after his shift started, and his foreman "discuss[ing with him his] missing work and excessive absenteeism." General Counsel's Exhibit 14, which Morelli signed, states he: "was warned verbally about missing time without just cause. Comments were that he or anyone else knows when they are going to be sick or other reason to miss before the time comes." General Counsel Exhibit 15, which states Morelli was tardy three times in 12 days, he did not sign. General Counsel Exhibit 16, dated July 14, 1972, bears Morelli's signature and states that he failed to comply with company rules, namely, that he took his lunchbreak in a nondesig- nated area. General Counsel's Exhibit 17, dated June 2, 1972, which Morelli did not sign, was a "verbal" warning for, inter alia, "disturbing other employees on the job." On cross-examination, Morelli testified that when Sor- man handed him his termination paper he said to Sorman, "I think this is a bunch of b.s. You're discriminating against me all the way. I said it's just definitely union right here, you know that, and he said, no, it's not, we've been fair with you all the way. ..." Morelli continued that he told Sorman that he did not believe he could be fired for being out of his work area during a lunchbreak because he went into the plant's working area for approximately 3 minutes, in order to find his foreman, McNeil, in order to deliver a telephone message to him. Morelli also accused Sorman of having fired him without making any effort to ascertain the circumstances under which he left his desig- nated area.7 See section II, E, infra. Dean Pruitt who has been employed by Respondent Company since March 30, 1970, works on the same shift as Morelli. Pruitt testified as follows: "During the latter part of May, while in the office of foreman Monroe, they were discussing the 1972 union election when Monroe asked him when the organizational drive of the Paperworkers Union would commence, to which Pruitt replied, 'Some- where between the 14th and 17th of July, 1973."' 8 Pruitt Morelli testified that it is permissible under certain circumstances and while on one's break to speak with other employees He gave as an example that in his position as press operator a situation might apse where it would be feasible for him to inquire of the saw operator, who is an integral part of the production line, whether his operation was functioning properly, partic- ularly if there was a problem which required correction Spnngman, an employee, testified that employees can talk to one another while they are working if it occurs in the area where they are assigned to work 8 Present also during this conversation were Foremen McClain and Wine- gar of mill #1 continued that, 2 or 3 days after Morelli was discharged, Fred McNeil, who had been Morelli' s immediate supervi- sor, said to Pruitt: "You'd better watch out, you're going to end up just like your buddy, because you'll be next on the list." Pruitt also testified that in the latter part of May the Company distributed to the employees at a crew meeting a booklet entitled "Employment and Labor policy-Pre- pared for employees of Permaneer Corporation." At that time, Foreman Monroe explained to his crew the contents of the booklet, including rule 5,9 which provides: "Lunch breaks are to be taken in the designated area for the re- spective departments." 10 Monroe explained, inter aha, to the members of his mill # 1 crew, according to Pruitt, that their "break area is the lunchroom of the foreman's office, or you could stay at your job post." 11 Frank Springman has been employed by Respondent since March 1972 as a saw operator in mill #2. He testified that rule 5 frequently was not honored by the employees as he has seen employees not assigned to mill #2 taking their breaks in the mill #1 lunchroom "almost every day" and vice versa. At such times, Springman stated that when this occurred Lemons and Nastasi, both foremen, were present and he never observed either of them enforcing the desig- nated area rule. Springman did testify, however, that at a crew meeting in 1972 Foreman Lemons told his crew mem- bers that they were to use the lunchroom in the mill in which they worked. John Tucker, who is presently employed by the Compa- ny, testified that he and other employees take their breaks in both lunchrooms and that he has never been repri- manded for doing so. Tucker testified that he was instruct- ed at a crew meeting in 1972 by his foreman, Gordon Lem- ons, to take his breaks in his designated area which he explained was in the "break rooms" or "foreman's office" of "your own mill." Tucker continued that he eats his lunch in the plant at the saw which he operates. He also stated that employees are free to talk to other employees who are working "as long as we're in our own areas, our own mill." Roger Pump worked for Respondent for 3-1/2 years, and was a foreman for 2-1/2 years during his employment. He left the Company on November 6, 1972, 2 months after the first election. Pump's testimony corroborated that of Morelli with respect to the salient issues of this proceeding; to wit, after union activity began in 1972, at a time when he was a foreman, Pump was instructed by his superiors to strictly enforce all the plant rules with respect to the em- ployees' conduct while at work, particularly Morelli and Pruitt, who were the employee leaders of the union move- ment. Foreman Peterson, continued Pump, made the state- ment that if it were not for Morelli there would be no union activity at the Brownsville plant and therefore an effort should be made to rid the plant of him. An attorney of the Timber Operators Council, a trade 9 G C Exh 9, p 24 10 Generally, employees of mills #I and #2 were to remain during their breaks in the lunchrooms of their respective mills 11 The employees do not eat in the foreman's office but are permitted to go there on their breaks as their production records were posted there for them to examine Also, it appears they were permitted to eat their lunches at the press console PERMANEER CORPORATION 375 association to which Respondent Company belongs, ad- dressed its officials and foremen on three different occa- sions during the course of the union campaign then being conducted by the Lumber and Sawmill Workers Union, with respect to what the law provides regarding what they could and could not do. The first of these three meetings was held sometime prior to July 14, 1972, and the last one about a month before the first election of September 7, 1972. The matters that were considered at these three meet- ings, testified Pump, concerned the manner in which the Company would "combat" the Union's organization cam- paign. Leading the discussion was Gerry Calbaum, plant manager, and also the superintendents of mills # I and #2, Sorman and Don Josh. Pump's testimony continues as fol- lows. "We discussed the means we were going to use to combat literature being passed out, what legal rights we had, what we could do and what we couldn't do." "The lawyer of the Timber Operators Council told us what was legal and illegal and Gerry Calbaum also supplemented the lawyer's instructions." Pump continued: "Well, Martin Morelli's name was brought up, Dean Pruitt's name was brought up as being two members that were actively sup- porting the union, and one remark specifically made by Ken Peterson, who was swing shift foreman in Mill No. 2, stated the fact that if Martin Morelli wasn't there, the union would fall flat on its face. Also that if any of these people would violate any of the rules, that we had decided, you know, what we could do, what was legal that we could do to combat the union, and we were to write these people up a written warning . . . such as eating in a nondesignat- ed break area." Pump stated that the "official warning" to Morelli, dated July 14, 1972 (G.C. Exh. 16), which charged him with vio- lating "company rules" by lunching in a nondesignated break area, was issued to him after the meetings when the Timber Operators Council attorney had addressed the foremen and officials. Pump testified that the "rule was disobeyed almost every day I was there," specifying an employee by the name of Kevin Durheim. "There were dust so many people, it's hard [to recall their names], that's a year and a half ago. But every day it was done." Pump stated he observed employees in the wrong lunch area dur- ing their lunchbreaks but that the only written warning he ever issued was to Morelli because I was told by Karl Sor- man to get rid of him, "in a couple of different instances," one of which was "one of those three meetings that we had, and I'm almost sure it was the first one," and the supervi- sors who gave him these orders were Calbaum and Sorman both of whom "stated they wanted Marty Morelli out of there." Reference was then had to General Counsel's Exhibit 17, dated June 2, 1972, a warning which Sorman wrote regard- ing Morelli in Pump's presence, for disturbing working em- ployees and not being in his assigned designated area dur- ing his breaks. Although this warning is in Morelli's per- sonnel file and is alleged as one of the reasons for Respondent discharging him, Pump testified that Morelli was not present when Sorman wrote it nor did he show it to Morelli (as evidenced by it not being "received" by Morelli who did not sign it) and that Sorman said to Pump that the written warning "didn't have to be presented to [Morelli]." 12 While Sorman was writing up this warning (G.C. Exh. 17), in Pump's presence, the latter testified that Sorman said: "He'd better have his bills paid, because he's leaving. . . . He's on his way out. . . . I want this warning written and I says, for what reason are you going to write it? And he says for insubordination." Pump concluded his direct testimony by stating that Sor- man ordered him to write up and sign General Counsel's Exhibit 15, a "verbal warning" which states that Morelli was tardy three times, but Pump stated he disregarded the order "because I felt it was an unfair treatment. There were several other people out at the mill at that time that were habitually late, or constantly out of their break area, or in violation of other company policies, and yet no action was taken against them." On cross-examination, it was elicited from Pump that two other employees who were active in the Union were still working for Respondent when he left the Company's employ in November 1972, but he did not know whether the other men were employed by Respondent at the pre- sent time.l3 B. The Company's Explanation for Morelli's Discharge The Company denies that Morelli was discharged be- cause of his union activities. It states that he was dis- charged for the valid reason that he left his production area in the plant without permission and talked to an employee and then fabricated a story to his supervisor regarding the reason for his being outside his designated mill area. See General Counsel's Exhibit 10. Respondent points to a ver- bal warning on June 2, 1973, by Sorman to Morelli about similar conduct. This first warning coupled with other ver- bal and written warnings in his personnel file, a 1-week suspension for insubordination during March 1973, in con- junction with his "fabricated" reason for being in the san- der area on July 16, argues Respondent, made discharge "a logical choice of action for Sorman." The production man- ager, Sorman, gave the following reasons for deciding to terminate Morelli on July 17, 1973:14 Morelli has a past history of plant rule violations in his file and his file shows numerous verbal and written warnings which he has either signed or has acknowl- edged at the time they were given out. More than a year ago, Morelli received a written warning for dis- turbing other employees on working hours while he was on break and for being out of his break area. The record shows that this subject has been discussed both 12 The plant's policy is that when an employee was given a written warn- ing it had to be shown to him before it was placed in his personnel file, in order for him to sign it which established that he had read it 13 The Board and courts have held that testimony with respect to other employees who engaged in union activities and were not discharged is im- material and irrelevant to the issue of whether the alleged discriminatee was discharged in violation of Sec 8 (a)(3) Mission Clay Products Corporation, 206 NLRB 280 (1973), Nachman Corp v N L R B, 337 F 2d 421, 424, (C A 7, 1964), and cases there cited , N L R B v Puerto Rico Telephone Co, 357 F 2d 919, 920 (C A I, 1966), N L R B v W C Nabors, Co, 196 F 2d 272, 276 (C A 5, 1952), cert denied 344 U S 865 (1952), N L R B v Shedd- Brown Mfg Co, 213 F 2d 163, 174-175 (C A 7, 1954) 14 See ALJ Exh I, pp 2 and 3 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in crew meetings and with Morelli personally. Morelli acknowledged the final written warning McNeil had issued him July 8, 1973 for infraction of another com- pany rule, and he was advised at that time that if he goofed up once more he was-he could be out and would be discharged. Prior to the final written warn- ing, Morelli had an official written warning for insub- ordination for which he took a one week's suspension from work. Last year [1972] Morelli got about five written warnings for such things as unexcused absenc- es and also taking his lunch break in the wrong lunch room. When McNeil told me about finding Morelli at the sander on the 16th, I also determined that on three occasions, specifically July 12, July 15 and again earli- er on July 16, another employee and another foreman had seen Morelli in unauthorized areas of the plant. These facts, coupled with the final warning given July 8, and the one week's suspension in March, along with the history of similar problems in 1972, I determined that his continued infractions wouldn't be tolerated any longer. I proceeded to make out a termination slip with the reasons for discharge and informed my gener- al manager of my pending actions. On cross-examination, Sorman testified that the reasons for firing Morelli were "out of his working area, disturbing another employee at work, and the events around the phone call... . Gordon Lemons, a foreman, testified in answer to a question by company counsel, that while Morelli was un- der his supervision, "Normally, he's quite good, efficient at his job, and belligerent . . . . Well, he doesn't like to be given orders. He likes to do things his own way and not have the foreman tell him how to do things" but, stated Lemons, he "didn't allow it" and kept him "in line." When asked if he knew about Morelli's union activities, he an- swered: "Of course." Sorman, production manager, described Morelli's union activities as follows: "Morelli has been an outspoken advo- cate of the Union for some time, and I don't think there is anyone in the plant from the general manager to the clean- up man who hasn't heard it from him personally, one way or the other." 15 John Beaudin testified on behalf of Respondent that around 7 p.m. on July 16 he relieved Morelli on the console for the latter's 20-minute lunchbreak. About 10 minutes later, he saw Morelli emerge from the lunchroom, walk over to where Beaudin was working, and ask him where McNeil was, to which Beaudin replied that McNeil was in the saw area. Later Beaudin saw McNeil and Morelli walk- ing toward the foreman's office. Shortly thereafter, McNeil inquired if there were any telephone calls for him, to which Beaudin replied there were two, but he did not know from whom as there was something wrong with the phone as he was unable to receive incoming calls on the phone located in the production line console. is This casts doubt upon the veracity of McNeil, his immediate supervi- sor, who testified that it was not until May or June 1973 that he learned of Morelli's union activities, when it is considered Morelli was active in orga- nizing employees since April or May 1972 Beaudin testified he received two telephone calls from Morelli 3 days after his discharge and that Morelli asked him if he would tell the company officials, if they should inquire, that on the night of July 16, there could have been three phone calls, "one of which I might have missed, and if I did, it would probably help him win his case." Beaudin refused, telling Morelli that he had already told McNeil there were two phone calls. Larry Thornton, an employee who was a witness for the Company testified that Morelli telephoned him at home on the evening of July 17 and asked him "if I was questioned about what he was doing over in the sanding area [it] was because there was an outside phone call for Fred McNeil ... . He said something about if I don't do it he could lose his house and his car, you know, wreck his family." McNeil, who was Morelli's immediate supervisor, testi- fied he received information at about 7 p.m. on July 16 that Morelli was outside his working area. When McNeil inves- tigated, he saw Morelli speaking to Thornton. McNeil tes- tified that as he approached them, and as soon as Morelli saw him, "he came running up to me and said he'd been looking all over the plant for me and wanted to know if I'd received a telephone call. I asked him what telephone call, and he stated that he-first, I asked him if he had sounded the maintenance horn to call me back to the area and he said I couldn't hear the horn over there . . . . I started questioning him about the phone call to see who had called, and he said in fact he had lost the call, that he was unable to talk to the party on the incoming call.16 I asked him if he realized he was out of his production area.n I asked him to return to his mill 2 lunch room." It is uncon- tradicted that, during the time this phone call incident transpired, Morelli was on his 20-minute lunchbreak.18 Mc- Neil did not speak to Thornton, who was present. Instead, McNeil walked to where Beaudin was on the console oper- ating the production line while Morelli was on his break When McNeil was asked why he did this, he answered: "Well, the fact that he couldn't tell me who was calling in, it was very apparent that he didn't really have any phone call to report to me." Although McNeil acknowledged that the quality of Morelli's work was good, he testified he "found him to be a rather difficult employee to supervise. . . . He chose not to abide by the . . . rules, the plant rules and procedures .. I found him violating quite a few of those consistent- ly.. . . He failed to wear his hard hat, took reading mate- rial on the job with him, left his work area without permis- sion." He concluded this phase of his testimony by stating that, in the 2-1/2 years he has been a foreman, he never reprimanded any employee for violating the rule against not being in his designated area except Morelli. Later he changed his testimony, stating that he had also orally repri- manded Thornton, and then at another point in his testi- 16 See Beaudin's testimony, above, concerning his inability to receive in- coming phone calls at the same time on July 16 " McNeil admitted on cross-examination that employees are authorized to take phone calls and do so "frequently" when he is not present 18 Robert Monroe, relief shift production foreman, in testifying on direct examination as to the meaning of rule 19, p 26 of G C Exh 9, which provides "Telephone calls will be received for emergencies only," stated that an employee who answers a plant phone should locate the foreman by sight or by going to the console and having them buzz for him PERMANEER CORPORATION mony he stated with respect to other employees he had orally reprimanded, that it was "very few" he had disci- plined for being outside their designated areas during work or breaktime. When asked to name other employees who had violated this rule, he was unable to do so. McNeil also denied Morelli's testimony that at the end of the shift on July 16, outside the plant, he (McNeil) had told a group of employees not to congregate there and to go on home . McNeil also denied testimony of Pruitt, an active union proponent , that after Morelli was discharged he told Pruitt that he would be the next to be fired. In January 1973, testified McNeil, he received a tele- phone call from Morelli who asked if he could see him as he wanted some "advice." McNeil replied that "it was odd that he would ask me for advice in lieu of the fact that he'd beat a path to the front office to try to make trouble for me." McNeil told Morelli he would speak to him if he "secured permission." McNeil continued that Morelli told him "he felt that his job was insecure and that people were after him, and . . . he said his wife was about to have a baby, she was nervous and upset about it, and he couldn't do any good work because he was nervous and upset and he wanted to know what I thought about him obtaining an appointment with George Moore [who was the superior of the plant manager] . I told him I was a firm believer in the chain of command and I thought he should talk to his foreman, and if he could get satisfaction from him, fine and dandy ; if he couldn't, talk to his superintendent, who's Carl Sorman, and if he couldn't get satisfaction from him, to seek an appointment with Mr. Calbaum [plant manager], and if he couldn't secure satisfaction from him, then to try to obtain an appointment with Mr . Moore." McNeil testified on cross-examination that shortly after Ernest Lehto, a foreman, left Respondent's employ in Jan- uary 1973 Morelli spoke to him (McNeil ) and asked him if he had ever been ordered by his superiors to fire him. Mc- Neil denied this whereupon Morelli told him that Lehto had so informed him. McNeil also denied to Morelli that he had told Bud Miller , a former employee of Respondent, that Morelli was being transferred from mill # 1 to mill #2 because "management wanted to get Morelli out of there." Karl Sorman, production manager, testified that at about 8 p.m. on July 16 McNeil telephoned him at his home and informed him that "he had found Morelli dis- turbing another employee at work on the sander line" and wanted to know what action should be taken . Sorman testi- fied that he asked McNeil what Morelli was doing in the sander area and McNeil replied that Morelli, when he was accused of being out of his designated area, gave as an excuse that he "had supposedly received a phone call" for McNeil and that he was looking for him in order to deliver "the message .... McNeil also informed me," continued Sorman, "that he had written Morelli a final warning a week or so prior to this incident on another matter. I said I think I would terminate him. McNeil said , well, maybe we should check his personnel file and make a determination later, and I said OK, I would do that the next day at work . , .. The next morning [July 17] I pulled Morelli's file, [I] looked it over, discussed the situation with my superior, Gerry Calbaum , made the determination to release Morelli from work." 377 At 11 p.m. on July 17, the time at which Morelli's relief shift (I1 p.m. to 7 a.m.) was scheduled to report for work, Sorman came to the plant Just as Morelli was punching the timeclock to check in and told him he wanted to talk to him. Sorman's testimony continues: "I asked him what he'd been doing in the sander area and he told me he was delivering a message on a telephone call. I asked him about the message and he said the phone lines were out of order, and that the phone call was for Fred McNeil, but he didn't have any message to deliver. He'd lost the party on the line. I asked him, well, what did he have to tell the foreman, and he couldn't really answer. I asked him why he hadn't sig- naled for the foreman from the console. And he didn't have a real answer for that." 19 Sorman's testimony contin- ues: "I had discussed earlier in the day [July 17] with John Beaudin the validity of the phone call. John Beaudin told me there had never been any phone calls at that time and that Morelli was not in the foreman's office at that time." Sorman then told Morelli that he "felt this infraction was reason to terminate him, and that's what I did." Sorman concluded his version of what occurred when he fired Mor- elli by stating Morelli told him after he was so notified that "he felt he had been discriminated against in being termi- nated and I more or less just listened and said I'm sorry." 20 C. Resolutions of Credibility 21 This is a case where the General Counsel's witnesses are contradicted on many of the salient issues by the witnesses for Respondent. Nevertheless, after observing the witnesses and analyzing the record as a whole and the inferences to be drawn therefrom, and reconciling, where possible, the conflicting evidence, I conclude that the generally consis- tent testimony of the General Counsel's witnesses is relia- ble. It is not only consistent with certain undisputed and demonstrable facts in this case, but also their testimony logically conformed with the uncontradicted chronological sequence of events and attendant circumstances in this proceeding. Moreover, the impression of the trier of these facts is that their testimony was forthright and true. The impression that they were testifying truthfully became a conviction when their versions were found, in the main, to be consistent with the attendant circumstances in this case and not substantially shaken by able counsel for the Re- spondent who vigorously, searchingly, and thoroughly cross-examined them. This conclusion is based on observa- tion of the General Counsel's witnesses with respect to the accuracy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them. Judge Learned Hand describes it as "[Find- ings] based on that part of the evidence which the printed words do not preserve." With respect to the resolutions of credibility made herein, it is not meant to imply that the 19 It is undisputed that Beaudin was in the console at the time in question, relieving Morelli for his lunchbreak 20 See parts of Sorman's testimony, supra, which reveal that Sorman stat- ed he had other reasons for terminating Morelli However, when he fired Morelli , the only reason Sorman gave him was that he was in the sander department, out of his designated area 1 N L R B v Walton Manufacturing Company, 369 U S 404, 408 (1962). R J Lison Co v NLRB, 379 F 2d 814, 817 (C A 9, 1967) 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trier of these facts accepts as credible everything that was testified to by all the General Counsel's witnesses. It suffic- es to say, in the words of Judge Learned Hand, that "it is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." 22 With respect to McNeil's credibility, it is interesting to note that his testimony may have been colored by his feel- ings toward Morelli. In January 1973, he stated, Morelli asked him for "advice," as he felt his job was "insecure." McNeil stated that this request surprised him in view of the fact that Morelli had "beat a path to the front office to try to make trouble for me." See also footnote 15, supra. More- over, McNeil's complaints, which had nothing to do with the quality of Morelli's work, which he described as satis- factory, involved trivial incidents, such as the phone call, failing to wear his hard hat, and taking "reading material on the job." D. Discussion and Concluding Findings The Company maintains that Morelli was discharged for cause. The General Counsel, however, contends that the Company's assigned reasons for discharging Morelli were pretextual and that it discharged him because of his union activity and in order to rid itself of the union leader in the plant. The issue, therefore, is one of fact: What was the actual motive for the discharge? 23 Was there considerably more than a temporal coincidental connection between Morelli's union activities and his summary and precipitate discharge thereafter? 24 Because the issue is one of subjec- tive intent, direct evidence is rarely obtainable and conse- quently the trier of the facts "may rely on circumstantial as well as direct evidence . .." 25 Moreover, a discharge is unlawful under Section 8(a)(3) of the Act even if the employee's union sympathies or activities, which are pro- tected, are only partially responsible for the employer's ac- tion; a business reason cannot be used as a pretext for a discriminatory discharge. The test is whether the reason ascribed for the termination of the employee or the pro- tected union activities is the moving cause behind the dis- charge. In other words, would Morelli have been dis- charged but for his protected union activities? 26 The law is well settled that an employee does not forfeit his statutory rights when in good faith he seeks to bring a union into the employer's plant, even if his conduct may fairly be regard- ed as irritating,27 aggressive,28 or insubordinate.29 That pro- 22 N L R B v Universal Camera Corporation, 179 F 2d 749, 754 (C A 2, 1950), reversed on other grounds 340 U S 474 ( 1951), See I C Sutton Han- dle Factory v NLRB, 255 F 2d 697, 698 (C A 8, 1958) Cf NLRB v Homedale Tractor & Equipment Co, 211 F.2d 309, 316 (C A. 9, 1954), Dyer v McDougal, 201 F 2d 265, 269 (C A. I) 23 Santa Fe Drilling Co v N L R B, 416 F 2d 725, 729 (C A 9, 1969) N L R B v Miller Redwood Co, 407 F 2d 1366, 1369 (C A 9, 1969), Shat- tuck Denn Mining Corp v N L R B, 362 F 2d 466, 470 (C A 9, 1966) 24 N L R B v Condensor Corporation of America, 128 F 2d 67, 75 (C A 3, 1942) 25 Santa Fe Drilling Co v N L R B, supra at 729 , Shattuck Denn Mining Corp v N L. R B, supra at 470, N L R B v Intl Union of Operating Engi- neers [Sub Grade Engineering Co b 216 F 2d 161, 164 (C A 8, 1954) 26 N L R B v Ayer Lar Sanitarium, 436 F 2d 45, 50 (C A 9, 1970) tection is lost only where such conduct becomes malicious or unreasonably disruptive of order and discipline.30 Such is not the case here. Here Morelli, a competent employee, was suddenly re- moved from one of the more important jobs held by a rank-and-file employee. His duties and responsibilities as press operator on one of the two production lines in the Company's Brownsville operation entailed in addition the operation of other machines which controlled the produc- tion of the particle board manufactured by the plant. It is undisputed that Morelli was an able and satisfactory work- er31 When McNeil, his immediate supervisor, was asked what he thought of Morelli's "work," he answered: "As far as his ability to make good board, he had the ability to make good particle board," which is the principal product that the plant manufactures. Gordon Lemons, a supervisor, testified on redirect ex- amination by Respondent's counsel in answer to a question as to the quality of Morelli's work that "Normally, he's quite good, efficient at his job, and belligerent," in that "he likes to do things his own way and not have the foremen tell him how to do things"; although, stated Lemons, this did not occur while Morelli was under his supervision. On cross-examination, when asked if he knew about Morelli's union activities, he answered: "Of course." Morelli was admittedly a capable, qualified, and compe- tent press operator, whose competency was recognized by his employment for over 3 years. Apparently, Respondent became disenchanted with him and fired him only when he became a leading union activist. "Such action on the part of an employer is not natural." Under these circumstances, it is difficult to justify Respondent's discharge of Morelli, especially for such trivial reasons.32 Moreover, the record here warrants the finding that Respondent discharged Morelli because of his union activities and because he spearheaded the Union's activities at the plant. It was he who contacted the two unions, the one in 1972 and the other, the Charging Party Union, in the 1973 organiza- 27 See John Klann Moving and Trucking Company v N L R B, 411 F 2d 261 (C A 6, 1969), cert denied 396 U S 833 (1969), N L R B v Interboro Contractors, Inc. 388 F.2d 495 (C A. 2, 1967) 28 Compare N L R B v Symons Manufacturing Company, 328 F 2d 835, 836 (C A 7, 1964), N L R B v Charles H Poindexter (Northside Electric Co) ' 353 F 2d 524, 526 (C A. 4, 1965), cert denied 385 U.S 857 (1966) 29 Cf Falcon Plastics v N L R B, 397 F 2d 965, 966 (C A 9, 1968), N L R B v Thor Power Tool Company, 351 F 2d 584, 586 (C A 7, 1965), N L R B v Leece-Neville Company, 396 F 2d 773, 774 (C A 5, 1968), Socony Mobil Oil Company, Inc, v N L R B, 357 F 2d 662, 663 (C A 2, 1966) 30 See Hagopian & Sons, Inc v N L R B, 395 F 2d 947, 952-953 (C.A. 6, 1968), Falcon Plastics, supra at 967 31 Moore, who was the superior of Calbaum, the manager of the Browns- ville plant, did not reply when Morelli told him that "you know I give you 101 percent out there [in the plant] " Under certain circumstances , silence may be as probative a basis for inference as words or deeds Crane Co v James McHugh Sons, Inc, 108 F 2d 55, 59 (C.A 10), United Electrical, Radio & Machine Workers [ Marathon Electric Mfg Corp ] v N L R B, 223 F 2d 338, 343 (C.A D C, 1955), Wittlin v Giacalone, 171 F 2d, 147, 148 (C A D C) Another cogent reason for crediting those parts of Morelli's testimony upon which findings of fact herein are based , and which have special significance with respect to the issues herein , is the failure of Re- spondent to produce Moore, a material witness, which warrants drawing an adverse inference. Interstate Circuit v U S, 306 U S 208, 225, 226, Concord Sufphes & Equipment Corp, 110 NLRB 1873, 1879 (1954) E Anthony & Sons v NLRB , 163 F 2d 22, 26-27 (C A D C, 1947) PERMANEER CORPORATION tional campaign, and aided the union officials in their in- plant efforts to obtain his fellow employees' signatures on union authorization cards. It is undisputed that this was known by management when the overt nature of Morelli's organizing activities are considered. Furthermore, it is not too unreasonable to infer that Morelli's union activities would not ordinarily go unnoticed or escape the attention of management when it is recalled this small plant is locat- ed in a village of approximately 1,000 mhabitants.33 Final- ly, Moore, who was the number one man in the company hierarchy in the region where the Brownsville operation was located, knew of Morelli's union activities. Despite the denials of Respondent's witnesses, Roger Pump's testimony is credited that when he was a foreman he was instructed by his superiors to enforce strictly all plant rules against Morelli. Pump stated that rule 5, the designated area provision, was repeatedly violated by other employees, but the only one cited by him was Morelli "be- cause I was told to get nd of him by Karl Sorman Pump added that Calbaum, the plant manager, also gave him the same order. Pump also quoted Peterson, a fore- man, as stating at a foreman's meeting that if Morelli were not working at the plant, the union's organizational efforts would fail. These cumulatively probative incidents demon- strate the Company's antagonism toward Morelli's leading role in union activities at the plant. The Company's opposi- tion to Morelli's "concerted activity for the purpose of . . mutual aid or protection .. ." is the essence of Section 7 which guarantees employees the right to engage in such protected activities. Accordingly, if Respondent discharged Morelli for such activities, prima facie, this was an unfair labor practice. Once the General Counsel has established a prima facie case of unfair labor practices, the burden of going forward with evidence sufficient to rebut the General Counsel's prima facie case and to prove its affirmative de- fense that Morelli's discharge was for dust cause falls upon the Respondent.34 An employer, when it denies the dis- charge of an employee and avers that he was discharged because of disregarding plant rules, is pleading an affirma- tive defense, the legal incidence of which is that the burden of going forward with evidence to prove the contention shifts to the employer.35 Respondent has not adduced suffi- cient evidence to rebut the General Counsel's evidence that Morelli's discharge was discriminatorily motivated for the reasons hereinafter explicated. When Respondent pleaded an affirmative defense that Morelli was terminated upon being found in an area of the plant in violation of the Company's designated area rule, the burden of proving this shifted to it. It is found that the evidence adduced by it to prove this affirmative defense 33 Brezner Tanning Co, 50 NLRB 894 (1943 ) Cf N L R B v Jos Antell, Inc, 358 F 2d 880 (C A 1, 1966), which held that the smallness of a plant alone does not make a prima facie case, but is a factor which counts in the balance when all the other circumstances (such as union animus , reason- ableness of the assigned grounds for discharge viewed in the light of past practice, etc) are examined 34Lassing, et al d/b/a Consumers Gasoline Stations, 126 NLRB 1041, 1042, fn 6 ( 1960), Brady Aviation Corporation v N.L R B , 224 F 2d 23 (C A 5, 1955) 35 Cf NL RB v Fleetwood Trailer Co , 389 U S 375 378 (1967) N L R B v Great Dane Trailers, 388 U S 26, 34 (1967) 379 was not only lacking, but, on the contrary, the record re- veals that Morelli was attempting to deliver a telephone message to McNeil, which was not a violation of this rule, as evidenced by McNeil's admission that employees are authorized to take phone calls when he is not present. A fortiori, in view of the fact that Morelli at the time was on his lunchbreak. Robert Monroe, manager of one of the two plants, testified to the same effect. Moreover, McNeil ad- mitted on cross-examination that employees are authorized to take phone calls and do so "frequently" when he is not present. Respondent's denials of any proscribed motivation for Morelli's discharge are not credited inasmuch as the record clearly reveals that the main impetus for its decision to terminate him was his union activities. The Company's knowledge of his union activities and that the motive for his discharge was this activity is shown by substantial evi- dence in the record. "It need not be the only reason, but it is sufficient if it is a substantial or motivating reason, de- spite the fact that other reasons may exist...... 36 Furthermore, Respondent's attempts to establish lawful grounds for discharging Morelli are patently pretextual in that the reasons of complaint assigned by Respondent's witnesses for his termination are remarkable for their trivi- ality, lacking in their specificity and doubtful in their verity when subjected to the searching glare of inquiry. McNeil claimed, inter aka, that Morelli was a "difficult" employee to supervise, repeatedly violated company rules, failed to wear his hard hat, and "took reading material on the job with him." These generalized, broad, petty, specious offen- ses which were not only not proved, but also so lacking in specificity that it was difficult to impugn, are not credited for the reasons delineated above and below. Respondent's multiple and shifting reasons for explaining the Company's decision to fire Morelli are often indicative of discrimina- tory intent. For example, McNeil, in addition to claiming Morelli was out of his designated area during his lunch- break, also accused him of lying about having received a phone call for him, but he did not indicate his reasons for making this serious charge. The giving of contradictory reasons may be considered in determining the real motive and inconsistent explanations are a circumstance not only indicating the motivation, but also warranting the conclu- sion that McNeil is not to be credited, and it is so found. It is believed that some, if not all, of these alleged reasons for terminating Morelli were afterthoughts raised for the first time at the heanng.37 Furthermore, the timing and precipitous nature of Morelli's discharge by Sorman, the next day after the phone call incident, which was Sorman's day off, but who, nevertheless, felt the matter so urgent that he came to the plant from his home at I1 o'clock at night, is a cogent circumstance from which it is not too unreasonable to draw an inference of proscribed motivation and a conclu- sion of discrimination within the meaning of Section 8(a)(3) of the Act. "Coincidence in union activity and dis- 76 N L R B v Whitin Machine Works, 204 F 2d 883 (C A 1, 1953), enfg 100 NLRB 279 (1952) 17 Dant & Russell, Ltd, 92 NLRB 307, 320 (1950). lntertown Corp, 90 NLRB 1145, 1188 (1950), Condensor Corp v NLRB, 128 F 2d 67 (C A 3, 1942), N L R B v Somerset Shoe Company, I I I F 2d 681 (C A 1, 1940) 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge renders an employer vulnerable...." 38 Finally, the arguments made in its brief and testimony adduced by the Company at the trial do not persuasively advance its claim of legitimate motivation, and the failure of the Company's explanations to withstand scrutiny only serves to buttress the inference of interdicted motivation culmi- nating in a finding of discrimination. For, when a reason given for a discharge is false, the inference may be drawn that there is another reason.39 Such unconvincing testimo- ny leads to the conclusion that Respondent's dissatisfac- tion with Morelli was more fictitious than real and played no part in the decision to discharge him. It is significant that the complaints urged against him had to do with a period in time concurrent with Morelli's known organizing activities occurring in Respondent's plant looking toward organizing its employees by two unions, one in 1972 and the other in 1973. Any doubt as to the validity of the find- ing that Morelli's discharge was discriminatorily motivated is dispelled by Sorman on his direct examination admitting that, upon learning about the telephone incident from Mc- Neil around 8 p.m. on July 16, he told McNeil: "I think I would ternunate [Morelli]." The cogent importance of this judgment is the probative fact that Sorman's decision was made before he had given Morelli an opportunity to ex- plain his version of the telephone incident. In fact, it was McNeil who cautioned Sorman to first check Morelli's per- sonnel file and "make a determination later . .." More- over, it is found, based upon the findings herein and credi- bility resolutions, that there was a telephone call for Mc- Neil and that the reason for Morelli being outside his designated area during his lunchbreak was due to his at- tempt to find and so inform McNeil. On the basis of the foregoing and the entire record, as well as the suggestive indicia inhering in the circumstances surrounding Morelli's termination and the weaknesses of the alleged justifications therefor, that he was discharged for violating company rules, it is found that his union ac- tivities were the real reason, and, therefore, discrimination in regard to his hire and tenure of employment, thereby discouraging membership in the Union in violation of Sec- tion 8(a)(3) and (1) of the Act.4° E. The Alleged Violation of Section 8(a)(1) Since May or June 1973, Respondent has posted and enforced against Morelli the following rule at its Browns- ville plant: Lunch breaks are to be taken in the designated area for the respective departments. The General Counsel alleges that this rule is unduly broad, and, therefore, unlawful in that it restricts employ- ees from union activities and union solicitation when they 38 N L R B v Council Mfg Corp, 334 F 2d 161, 164 (C A 8, 1964), Signal Oil & Gas Co v NLRB , 390 F 2d 338, 342 (C A 9, 1968) 39 N L R B v Homedale Tractor & Equipment Co, 211 F 2d 309, 314 (C A 9, 1954), Shattuck Denn Mining Corp, supra, 470 4" Cf N L R B v Tennessee Packers Inc, Frosty Morn Div, 390 F 2d 782, 784 (C A 6, 1968) are on their own time. Moreover, argues the General Counsel's representative, the Respondent Company en- forced the above-quoted plant rule in a disparate and dis- criminatory manner against employees known by it to be active in the Charging Party Union. He points out that the two most active union adherents, Morelli and Pruitt, were the only employees cited for violating this rule, although violations of it by other employees were prevalent. The Respondent contends that there were three reasons for promulgating this rule: fire safety, maintaining produc- tion without breakdowns or unnecessary work stoppages, and requiring employees to stay in a designated area is necessary for their safety, as otherwise nonworking em- ployees on their break who wander around the plant might incur injuries from fast-moving forklift trucks that operate in aisleways and between the two plants. The Company also stresses that it is necessary to know where employees are during their breaks in the event of an emergency as they are summoned from the two lunchrooms in order to fight fires and eliminate problems that arise on the produc- tion line. Furthermore, declares Respondent, another rea- son for requiring employees to remain in their designated areas of the plant is to prevent them for safety and produc- tion reasons from talking with or disturbing working em- ployees. In the situation at bar, the General Counsel has cited no decisional law nor has any been found that supports his contention that the rule here at issue, forbidding lunch- breaks anywhere other than in the designated area is "un- duly broad in that it restricts employees from union activi- ties and solicitation when they are on their own time." There is a failure of proof that such was the situation in this case, as there is an absence of evidence that the rule was adopted for a discriminatory purpose. On the contrary, the testimony reveals that Respondent never forbade em- ployees from engaging in union activities during their non- working time, while they were in their designated areas of the plant. Such areas included restrooms, lunchrooms, and the foremen's offices. In fact, it is uncontradicted that Morelli used the lunchroom to campaign on behalf of the Union during his nonworking time which was known by company management. It has been found, supra, that Morelli was not in viola- tion of rule 5 inasmuch as he had received a telephone call for McNeil and was outside his designated area at the time because he was delivering the message to McNeil. McNeil himself admitted that it is permissible for an employee to leave his designated area when he receives a telephone message and attempts to deliver it to the foreman. See foot- note 17, supra, and also footnote 18. Even if the evidence compelled a finding that Morelli violated rule 5, which it is found he did not, nevertheless, it would not have followed that his alleged violation of rule 5 was the main reason for his termination. To the contrary, substantial evidence warrants the finding that there was disparity in the application of rule 5 to Morelli as com- pared with other employees, who also violated the same rule, but who, perhaps, were more tractable and not en- gaged in espousing their union views in the aggressive man- ner employed by Morelli." Therefore, when Respondent PERMANEER CORPORATION cited Morelli for being outside his designated area under such circumstances, this was a discriminatory application of the rule. Although rule 5 was otherwise lawful, Respondent's disparate and discriminatory application of it for the purpose of impeding or discouraging Morelli's right to engage in union activities violated Section 8(a)(1) and his subsequent discharge also violated Section 8(a)(3) of the Act.42 The excellent brief of the Respondent discussing the al- leged 8(a)(l) and 8(a)(3) violations, and the authorities cit- ed therein, have been fully considered. However, the Ad- ministrative Law Judge finds no occasion for lengthening this decision by citing, distinguishing, or discussing them as it is believed that the controlling reasons for this decision have been sufficiently discussed. Moreover, most of Respondent's contentions are based on an interpretation of the facts which are not shared by the trier of these facts. Upon the foregoing findings and conclusions, there are hereby made the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Paperworkers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 41 Cf N L R B v Smith Victory Corporation, 190 F 2d 56 57 (C A 2, 1951) 42 Montgomery Ward & Co, 202 NLRB 978 (1973) 381 3. By interfering with, restraining, and coercing the em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, as specified, supra, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(I) of the Act. 4. By discriminating with regard to the hire and tenure of employment of Martin Morelli, Respondent discour- aged membership in the aforementioned Union and com- mitted unfair labor practices within the meaning of Section 8(a)(3) of the Act. Having found that Respondent was at least partially mo- tivated in its discriminatory treatment of Martin Morelli by his activities on behalf of the Union,43 and thereby engaged in unfair labor practices, the following action is recom- mended. THE REMEDY It is recommended that the Respondent cease and desist from violating Section 8(a)(1) and (3) of the Act and that it offer immediate and unconditional reinstatement to Mar- tin Morelli to his former position without prejudice to his seniority or other rights, privileges, or working conditions, dismissing if necessary anyone hired in such job on or after July 17, 1973, and make Martin Morelli whole for any loss of earnings he suffered, less his net earnings, with backpay to be computed in accordance with the formulas provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.] 43 N L R B v Symons Manufacturing Co, 328 F 2d 835, 837 (C A 7, 1964)