Blue Star Knitting, Inc.

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blue Star Knitting, Inc. and United Textile Workers of America, Local No. 667, AFL-CIO. Case 30- CA-2652 FINDINGS AND CONCLUSIONS I. BUSINESS OF RESPONDENT; LABOR ORGANIZATION INVOLVED January 28, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PEN$LLO On October 9, 1974, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed a memorandum in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Blue Star Knitting, Inc., Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I In the absence of exceptions, Member Jenkins adopts, pro forma, the Administrative Law Judge's findings that Respondent did not violate Sec. 8(a)(,) of the Act by the remarks of its officials concerning the union buttons certain employees were wearing. DECISION SAMUEL M. SINGER, Administrative Law Judge: This case was heard before me in Milwaukee, Wisconsin, on various dates between July 16 and 26 , pursuant to a charge filed March 11 resulting in complaint issued May 20, 1974. The complaint alleges that Respondent violated Section 8(aXl) and (3) of the Act. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and otherwise present evidence. Briefs were received from General Counsel and Respond- ent. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: Respondent, a Wisconsin corporation, manufactures knit goods at its plant in Milwaukee , Wisconsin, the facility here involved, at and from which it annually sells and delivers to purchasers in other States products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of the Act. Charging Party (Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Whether Respondent restrained, coerced, or inter- fered with its employees, in violation of Section 8(aXl) of the Act, through threats, interrogations , and requests to give union buttons to supervisors. 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily issuing warning and 3-day layoff notices to employees Dixon and Griffin. 3. Whether Respondent violated Section 8(aX3) and (1) of the Act by discriminatorily discharging and refusing to reinstate employee Duncan. 4. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discriminatory actions resulting in the constructive discharge of Dixon. B. Background 1. Respondent's operations Respondent's basic operations consist of cutting, sewing, and packaging infants wear. The Company employs 100 or 110 employees, of whom the great bulk (about 70) are sewers and the remainder packers, cutters, and shippers. Its chief executives are John Fried (president), Donald Howell (production and personnel manager), and Harold Winston (plant manager). Patricia Kraemer is supervisor of the sewing department and Ruth Merrill of the packing and folding department. 2. The organizational campaign Dissatisfied with working conditions, Mary Duncan, a sewing department employee, contacted Milwaukee's AFL-CIO office in October 19731 and asked it to send a representative to her home. On November 19, Union Representative Boehm visited Duncan and discussed with her organization of the plant, including the procedure for obtaining signed authorization cards and petitioning for an election. Duncan thereafter signed up employees-witness- ing as many as 61 signed cards. She turned the cards over to Boehm. Boehm held periodic meetings with employees in a building and hotel near the plant-four between December I All dates refer to October 1973-May 1974 unless otherwise indicated. 216 NLRB No. 8 BLUE STAR KNITTING, INC. 313 13 and the February 27 Board election presently described. An employee organizing committee held five additional meetings during this period-three in Duncan's home. Boehm first visited the plant in the week beginning December 17 to pick up signed cards from Duncan on the sidewalk in front of the plant. On January 3, the Union filed a petition for an election among Respondent's production and maintenance employ- ees. By a Stipulation for Certification Upon Consent Election, approved by the Regional Director on January 28, the Board election was scheduled for February 27. Beginning with February 18, the Union mailed its literature to the homes of employees . On or about the same date it distributed union buttons and bumper stickers. Respondent admittedly opposed the organizational drive and so informed its employees in letters and literature read them by Company President Fried and distributed by supervisors.2 As it told its employees in one letter, "We are against this union or any other union that might try to speak for you because we don't need outsiders to make a lot of promises . . . ." The basic theme of the literature was that Respondent has "always attempted to treat [the employees ] fairly," stressing absence of any layoffs in the past 20 years; that it is not in the employees' interest to join the Union-citing out-of-pocket costs (dues, assessments, and fines), loss of earnings, and unemployment benefits in strikes; that it is the Company's legal right to resist and reject union bargaining demands; that the employees would be deprived of access to management in the event the Union came in ; and that they would be handicapped in processing grievances through the Union rather than directly through management. After adverting to the "possibility" that the Union may call a "disruptive strike over matters which may be unimportant to [the employees] but vital to them [the Union ] as a matter of principle," Respondent's February 15 letter states: ... All of you should know that the same Union which is trying to win your vote right now took the employees of Diana Manufacturing Company in Green Bay out on a two-week strike in November of 1973 which deprived the employees of a paycheck for two weeks. If the Union decides to strike over one of its demands, just think of the consequences to you ... . 4. The Company will have the right to discharge you permanently and give your job to someone else. 5. The Company will not be obligated to give you your job back when the strike ends. 2 The first company letter was dated January 23 and the last February 27 (date of the election). 3 Based on the credited testimony of Duncan, an essentially credible witness. Kraemer admitted having a conversation with Duncan on January 28, although she also appeared uncertain as to when it took place. She denied telling Duncan anything about a union being "a waste of time" and "moving the plant South"-insisting that she only asked if Duncan "knew where the (Union ) meetings were being held" because her daughter, a member of the unit, "wanted to know." Kraemer impressed me as having a poor recollection. Thus, she could not recall whether Duncan in the same Respondent in its literature also stressed the employees' ability to express their free choice in the upcoming secret election, urged them to vote "no," and acknowledged that it "would be required to bargain" with the Union if it won a majority. During the campaign Company President Fried met with his supervisors and managers to discuss the progress of the drive and its possible outcome. According to Fried, "we tried to get an indication" how the employees would vote by "guessing." According to Supervisor Merrill, "[t]hey just went down the list of names," marking which employees were for or against the Union. Fried conducted meetings with employees in all departments after each company letter distribution, inviting questions and visits to his office if they had any "problems." The Union won the election on February 27 by a 56 to 31 vote, with 5 votes challenged, and was certified as collective-bargaining representative on March 7. The parties thereafter held four bargaining sessions between May 20 and June 26, but as of the time of the hearing here have reached no agreement. C. Interference, Restraint, and Coercion The complaint alleges that Respondent restrained, coerced, and interfered with its employees in their organizational rights through management and supervisory employees. Respondent denies the allegations and, in some instances, contends that the claimed conduct , even if established, does not constitute a violation. 1. The evidence a. Employee Duncan testified that around January 28, her supervisor (Kraemer) went to her machine and asked what she thought of the Union. When she answered that a union "would be nice," Kraemer said that "a union wasn't anything but a waste of money." Duncan countered that if a union came in the employees "wouldn't be pushed around" and start at $1.60 an hour. Kraemer said that Company President Fried told her that if a union got in he "would move the plant South." 3 b. On December 14, Supervisor Kraemer told Eubanks (who worked in her department) that she knew Eubanks had not worked overtime on the previous day (December 13) because she went to "the meeting." When Eubanks asked, "what meeting," Kraemer replied, "don't be a dummy" and walked away. The Union held its first meeting on December 13. c. On or around February 22, Kraemer brought Eubanks to the office to see Production Manager Howell about an absence. Howell opened the conversation by alluding to the union button she was wearing and saying conversation had also said that she already had talked to her daughter about going to the meeting, although in her prehearing affidavit Kraemer swore that Duncan had said that. There is also inconsistency between her testimony and prehearing affidavit. Whereas in her affidavit she asserted that she could not remember "if anything else was said," at the hearing she recalled Duncan also asking her about taking time off to take tests at a hospital-a matter the subject of extensive litigation here (infra, sec. E). According to Kraemer , she "assumed" that Duncan was involved in the Union. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that neither he nor Kraemer expected this of "an oldtimer," adding that they had expected her "to talk the Union down and not up." Howell asked whether she preferred bringing her problems "to some outsider" rather than to him or Kraemer. Eubanks replied that "wearing the [Union] pin didn't mean [she] was for or against the Union." Howell or Kraemer then reminded her that the Company had been "lenient" to her by permitting her to take time off to take care of "quite a bit of sickness" among her nine children. Kraemer also said that if the plant shut down, she "would be out of work . . . completely ... [a]nd would [she] want that." d. Prior to the February 27 election, Supervisor Kraemer told Eubanks on several occasions-"each time" she passed out Respondent's antiunion letters (supra, sec. B., 2)-to "make sure that you vote no. You don't want the plant shut down." Kraemer also said that "lots of other companies are sending their work to Mexico, and . . . if Blue Star had to do this, well, the Company would be shut down." e. Two or three days before the election, Kraemer asked her fellow supervisor, Merrill (a "good friend" of Eubanks), in Eubanks' presence, whether she (Merrill) had "talked to this dummy [Eubanks] about the Union." Merrill said, "No. Her mind is made up, so there's no use." f. Also prior to the election, Kraemer and Production Manager Howell repeatedly talked to Eubanks about the "silly button" she was wearing. One day, when she began wearing the larger of the two union buttons distributed to employees, Howell smilingly remarked, "thing are getting bigger . . . . Keep going." 4 g. Shortly before the February 27 election, Company President Fried conversed with three employees concern- ing the union buttons they were wearing.5 To Wyona Dixon he said that his "children [were] collecting all kinds of buttons and . . . would [she] give him a button"; Dixon replied, "I didn't give anyone a button." Turning to Campbell nearby, Fried "jokingly" asked her for one, commenting that he felt "discriminated against." On another occasion he said to Jackie Griffin that he "liked" the button, that it "looked nice with what [she] was wearing," and that "could [she] get him one." According to Griffin, when she failed to respond, Fried "just smiled and walked away" and she, too, smiled. Dixon admitted that after her conversation with Fried she and others continued 4 The findings in above pars b-f. are based on the credited testimony of Eubanks, a rather simple and unsophisticated employee who, although at times confused, strove to give an account of the events as she best recalled them While Kraemer and Howell denied the great bulk of remarks attributed to them, both admitted that they had expressed "surprise" at seeing Eubanks wear a union button ; that Eubanks had assured them that "the button doesn't mean anything"; and that there was a discussion of past company leniency toward employees. Kraemer admitted that on one occasion, after refemng to attendance problems in the plant, she told Eubanks, "we haven't said much of anything when the girls have been off, and didn't she [Eubanks I realize that if a Union came in, that we possibly couldn't be as lenient then, as we are now." And although denying on direct examination that she had ever told any one "at any time during the Union campaign about the Company sending work down to Mexico," Kraemer admitted on cross-examination telling an unidentified employee after a company meeting with employees (supra, sec B., 2) that the Company "has always gone out of their way to see that the girls always had work . . not like some other companies that send their work to Mexico to have it done [there l." S As already noted (sec. B., 2), on February 18 the Union distributed to wear their buttons up to the election.6 h. Also just prior to the election, Supervisor Merrill asked two employees for union buttons. To Griffin she said that she "liked [her] button, and could [she] get her a couple," explaining that she "had some grandchildren .. . [and] wanted to give them some" ; Griffin did not reply and walked away. To Campbell, who was also wearing a button, Merrill said that she had grandchildren and "told" her to bring "some" buttons for them; Campbell answered that she "didn't have any and to ask" other girls, including Dixon. Merrill further asked Campbell "how did [she] feel about the Union," adding she knew Campbell "was passing out literature." T 2. Conclusions a. Respondent interfered with, restrained, and coerced its employees in the exercise of their self-organizational rights, in violation of Section 8(a)(1) of the Act, by and through Supervisor Kraemer, by the following conduct: (1) Kraemer's January 28 questioning of Duncan as to what she thought of the Union and her statement to Duncan that Company President Fried had said he "would move the plant South" if a union came in; (2) her December 14 statement to Eubanks that she knew she had attended a union meeting on the previous evening, thereby conveying the impression that her union activity was under surveil- lance; (3) Kraemer's February 22 statement to Eubanks in Production Manager Howell's office, after an allusion to the union button she was wearing and a reminder of past company lenience in allowing her leave, that if the plant shut down, she "would be out of work ... completely"; and (4) her repeated statements to Eubanks prior to the election to "vote no" so as to avoid a plant shutdown, and her allusion to other companies sending out work to Mexico-implying that, in case of a union victory, Respondent could do likewise. b. Respondent also violated Section 8(a)(1) of the Act by Supervisor Merrill's inquiry to employee Campbell prior to the election, how she felt about the Union and her accompanying statement that she knew Campbell had been passing out literature. Absent any explanation, that statement could reasonably lead Campbell to believe that her union activities were under surveillance. buttons to members. Buttons were openly displayed by employees for several days prior to the February 27 election. a The above findings are based on the composite testimony of Dixon, Campbell, Griffin, and Fried- to the extent credited. Although on direct examination Dixon testified that she had two separate conversations with Fried (allegedly on February 26 and then the "following day" when she "was wearing a larger button"), on cross-examination she conceded that she had only one. I credit Fried's testimony that he had only one conversation with Dixon r The foregoing findings are based on the credited testimony of Campbell and Griffin. Merrill conceded asking Campbell for buttons for her two grandchildren , but denied making a like request of Griffin. She also denied-but only in general terms-asking "anyone what they thought about the Union," without specifically alluding to the statements attributed to her by Campbell- including the statement that she knew Campbell had been passing out literature. As between Merrill on the one hand and Campbell and Griffin on the other, I prefer to credit the latter. However, I credit Merrill's testimony that in requesting Campbell for the buttons she did not "order" her to get them. Campbell herself admitted that Merrill only "said it like it was an order." BLUE STAR KNITTING, INC. 315 c. Respondent further violated Section 8(a)(1) of the Act by telling its employees in its February 15 letter that, in the event they engaged in a strike, the Company "will have the right to discharge you permanently," "give your job to someone else," and "will not be obligated to give you your job back when the strike ends." Contrary to Respondent's contention (br. pp. 20-23), statements of such nature tend to coerce employees in the exercise of their rights to organize, even though couched only in language of probability. See N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F.2d 272, 276 (C.A. 5).8 The minatory message is well understood even in mild form, particularly where, in the same campaign , one of the supervisors (heading the department with the great bulk of employees) makes repeated threats of outright reprisal. Applicable here is the following language of the Sixth Circuit in Dayton Food Fair Stores, Inc. v. N.L.R.B., 399 F.2d 153, 154-155 ( 1968), where the Company distributed a similar leaflet stating that in the event of an economic strike, "every employee who leaves his or her job can be fired at once and permanently replaced": While it is clear that an employer may permanently replace economic strikers, he may not fire a striking employee unless a permanent replacement has been employed. [Citing cases.] Following an economic strike, employees are entitled to return to their jobs unless "legitimate and substantial business justifications" dictate otherwise. N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 34 . . . . The clear import of the company's letter is that if employees participated in a strike their jobs would be automatically terminated. d. Respondent did not violate Section 8(a)(l) of the Act by the remarks of its officials (Fried, Kraemer, and Merrill) concerning the union buttons they were wearing . It is clear that these remarks were made either in banter as when Fried "jokingly" asked Campbell for a button because he felt "discriminated against" (sec. C , 1, g); or constituted friendly requests for buttons as playthings-as when Merrill asked Griffin and Campbell to bring buttons for her grandchildren . These requests were neither intended to be, nor were taken by employees to be, coercive and threatening. I so find. I conclude that Respondent violated Section 8(a)(1) of the Act through unlawful questioning of employees concerning their union sympathies, threatening them with reprisals if the plant were unionized , and conveying to employees the impression of surveillance of union activi- ties. D. The 3-Day Disciplinary Layoff of Dixon and Griffin 1. The evidence Wyona Dixon and Jackie9 Griffin worked in the packing department under Supervisor Merrill-Dixon as a bagger and Griffin as a folder and part-time bagger. On December 18, Dixon and Griffin were working together on the bagging machine. At lunchtime (11:30-12) they "figured out" that their piece-rate earnings for that morning (about 5 hours) were only $8 for each and decided to talk to their superiors about it. Merrill, to whom they first talked about changing their rates, said she could not do anything about it and referred the women to Production Manager Howell. The two then went to Howell's office. Griffin and Dixon told Howell that they were dissatisfied with their piece rates because it was already noon and "all we had made was $8 apiece." Howell answered that he had a luncheon engagement and would talk to them later. Dixon said it was "very important" that he discuss the matter, but Howell replied that he "didn't have time." Griffin and Dixon then went to see their supervisor (Merrill). Dixon told her she was "upset" because Howell refused to discuss the piece rate and low earnings and was going home. Griffin said she was "sick" and was leaving. Both punched out and left. Company President Fried testified credibly that later that day (December 18) he met with Howell and Plant Manager Winston to discuss the unauthorized walkout of the two employees. "Consistent" with company policy it was decided to give them a 3-day disciplinary layoff. Because it was "Christmas time," the layoff was to be "split" (i.e., not a 3-day consecutive layoff) so as to enable each to receive the customary holiday pay. 10 When Griffin and Dixon reported to work the next morning (7 a.m., December 19), their timecards "were gone." Merrill told them to report to Howell's office, which they did. Howell there told them that he was going to give them a "little vacation" because they had on the previous day "walked off without permission." Both said that they had told Merrill that they were leaving-Dixon because she was "upset" and Griffin because she was "sick," but Merrill, who was present, denied this. Howell said they were "still gonna get" a 3-day layoff and "written warning." Each was then handed a "written notice" to the effect that she was being suspended 3 days (December 19, 20, and 27) for "leaving the Company premises without authorization"; that the "purpose of the suspension is to discourage further occurrence of such action"; and that the Company "hope[d] that any problems which arise in the future can be resolved through [their] supervisor or if necessary the production manager." When Griffin and Dixon returned to work on Friday, December 21, Howell made a timestudy of the operation s See also N.L.R B v. Gissel Packing Co., Inc, 395 U.S. 575,619 (1969); N.L. R.B. v. Stanton Enterprises, Inc., d/b/a Holiday Inn of Charleston, 351 F.2d 261, 264 (C.A. 4, 1965). 9 At the hearing it was stipulated that "Jackie" be substituted for "Jacqueline" in the complaint. 10 According to Howell , in order to be eligible for the holiday pay, an, employee must have worked the day preceding the holiday (in this case Friday, December 21, since the plant was to be shut for 2 days-Monday and Tuesday December 24-25) and the day after the holiday (December 26). As presently shown, Griffin and Dixon were laid off December 19-20, worked on December 21, and were again off on December 27). 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which led to their piece-rate complaint and suspension. Howell concluded that the established rate for the operation was "satisfactory" and so advised the employ- ees." 2. Conclusions It is well settled that the National Labor Relations Act protects the right of employees to engage in concerted activities, including the right to leave their work concerted- ly, where such activities have a reasonable relationship to the employees' legitimate interest in their working condi- tions. See, e.g., N.LR.B. v. Washington Aluminum Compa- ny, Inc., 370 U.S. 9 (1962); N. L R. B. v. Guernsey-Muskin- gum Electric Cooperative, Inc., 285 F.2d 8(C.A. 6 1960). The guarantees of the Act are in no way diminished by the circumstance that the employees acted on their own rather than through a union. (Ibid) Moreover, "When it is once made to appear from the primary facts that the employer has violated the express provisions of the Act, we may not inquire into his motives." N.LR.B. v. Industrial Cotton Mills, 208 F.2d 87, 91 (C.A. 4), quoting from N.LR.B. v. Hudson Motor Car Company, 128 F.2d 528, 533 (C.A. 6). It is undisputed that Griffin and Dixon were protesting piece rates-a clearly protected concerted activity. Upon Production Manager Howell's refusal to talk to them about their grievance the two employees decided to walk out and walked out-one of the two (Dixon) telling their supervisor (Merrill) that she was "upset" because of Howell's refusal to talk to them. The next morning they were reprimanded and given a 3-day disciplinary layoff for "leaving the Company premises without authorization" and told that "any problems which arise in the future" should be resolved through discussion with management . It is clear that Respondent's action constituted interference with, restraint, and coercion with the right of employees to protest a grievance through a concerted walkout. There is no merit in Respondent's contention (br. p. 32) that the walkout was unprotected because it was "in violation of [a ] Company work rule" against leaving without permission. Such rule cannot be applied to abrogate the statutory right to quit work in support of a grievance. N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962). Nor is it determinative that the walkout occurred after the employees were "assured that [the] grievance would be reviewed" later in the day (Resp. br. p. 33). The "wisdom or unwisdom of the men, their 11 The findings in this sec . concerning the events of December 18 and 19 are based primarily on the mutually corroborative and credited testimony of Dixon and Griffin-especially the latter, who impressed me as essentially sincere. Howell conceded that the basic complaint of the employees-as they expressed it in his office at lunchtime on December 19-was that they ..were not making enough money." I do not credit Merrill 's testimony that Griffin and Dixon had not informed her that they were leaving the plant after Howell refused to talk to them. As will hereafter be shown (fn. 28), Merrill was not an entirely trustworthy witness. According to Merrill, she was out to lunch and her "assistant" Cyra was in charge at the time the two employees claimed to have informed her of their intention to leave, but Respondent did not call Cyra nor produce time records to corroborate Merrill's claim. On the other hand, I do not credit Dixon's testimony that when she notified Merrill of her leaving, the latter said "okay." As will hereafter be shown, Dixon had a penchant to exaggerate and color her testimony in order to advance her personal interest . Griffin testified that, when she notified Merrill that she was leaving, Merrill "didn't say anything" justification or lack of it" for resorting to strike action is immaterial to the determination of their rights under the Act.12 N.LR.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344. See also N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 16. Even if the employees "might well have exercised better judgment" in selecting the time and means for pressing their grievances "we are unable to conclude that ill judgment or lack of consideration add up to illegality." N.LR.B. v. Solo Cup Company, 237 F.2d 521, 526 (C.A. 8, 1956). "Under the Act, the manner in which an employee carries on his protected activities is not subject-save for limited exceptions not relevant here-to the whim, wish, or authority of his employer." Farah Manufacturing Company, Inc., 202 NLRB 666 (1973). For all of the foregoing reasons, I conclude that the December 18 walkout of Griffin and Dixon was protected concerted activity ; and that by reprimanding and giving them a 3-day disciplinary layoff for participating therein Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7, thereby violating Section 8(aX I) of the Act. 13 E. Discharge of Duncan 1. The evidence a. Hired in February 1973, Duncan worked as a sewer under the immediate supervision of Kraemer . Production Manager Howell described her as a "very good worker." Starting at $1.60 an hour, by January 1974 she averaged over $4 on piece work . She had been considered for promotion to the position of floorlady. As already noted (sec. B, 2), Duncan was the initiator and leader of the union drive. It was she who contacted the Union and planned the organizational drive with Union Representative Boehm. She signed up the great bulk of employees and attended all union meetings-some held in her own home-and was a member of the Union's organizing committee. As also noted (sec. C, 1, par. a), Duncan was the target of interrogation by Kraemer on January 28 when she asked Duncan what she thought of the Union and quoted Company President Fried as saying that he "would go South" if a union got in. Although company officials and supervisors were vague, and at times evasive, on whether they knew of Duncan's union attitude and activities, I am fully persuaded that they to her. 12 In Washington Aluminum, supra, the Supreme Court held the walkout in protest of extreme cold in the plant protected, although at the very time of the walkout the employer was in the process of repairing the defective furnace to bring in adequate heat. 13 1 reject General Counsel's contention that Respondent 's action also constituted discrimination to discourage union membership in violation of Section 8(ax3) of the Act. To begin with, the walkout was neither sponsored by the Union nor taken in furtherance of any union objective . In any event, there is no substantial credible evidence that Respondent was aware of Dixon's and Griffin's union activities on December 19, the date of their 3- day suspension. While both wore union buttons during the drive , these were not distributed to them until after February 18 (supra, fn. 5). It was not until after receiving notice of the January 3 election petition that Respondent began to "poll" its supervisors as to who they believed were union adherents. I credit the denials of Howell and Merrill that they were aware of the union sympathies of Dixon and Griffin on December 18 and 19. BLUE STAR KNITTING, INC. 317 did and so find. Company President Fried and Production Manager Howell admitted that Duncan was one of the employees discussed and identified as a Unionist in company preelection meetings (supra, sec. B, 2). Fried testified that he was told a month before the February 27 election that she was a union supporter; and admitted seeing a union leaflet on February 26 or 27 listing her as a member of the union organization committee. Howell testified, "I think I knew that [Duncan ] supported the Union about one or two weeks before the election." Although claiming she told her superiors in company meetings that Duncan was "a question mark" as far as the Union was concerned, Kraemer (Duncan's supervisor) admitted questioning Duncan on January 28 as to "where the [union ] meetings were being held" (supra fn. 3). Merrill (another supervisor) testified that, in mid-January compa- ny meetings, Duncan was branded as "one of them [union adherents ]." She also admitted learning in January that Duncan had asked one employee (Gloria Gomez) to sign a union card. b. According to Company President Fried, Duncan was terminated on March 1 because she "didn't come back from her leave when she was supposed to. She didn't communicate with us ." It is not claimed that she was otherwise "an absentee problem" in a plant where, according to Production Manager Howell, excessive absenteeism was "one of [the] biggest problems." The salient facts leading to Duncan's termination follow: On January 30, Duncan asked Production Manager Howell for "sick leave," explaining that she had to go to the hospital for a checkup. When Howell asked how long she would be gone, Duncan said she "didn't know," but assured him that she would return "as soon as possible." Howell later handed Duncan the following slip or memorandum dated January 30, entitled "Sick Leave" (G.C. Exh. 13): The above employee [Duncan] is granted a leave of absence due to illness. Her last day will [sic] Friday Febr. 1 and will likely be out at least until February 11. If any further extension needed please advise by phone. We would appreciate knowing at least 2-3 days before your return to work. A doctor release must be accompanied when you return. Duncan's last workday before going on leave was Friday, February 1; her leave started Monday, February 4. Duncan entered the hospital on February 4. Testifying with the aid of medical (including hospital) reports, her physician, Dr. Kaufman, averred that Duncan was given various tests on stomach and bowel, gallbladder, and kidneys; that "a few biopsies" were taken; that on February 11, she had a D & C (dilatation and curettage); and that he released her from the hospital on February 13, with instructions to take medications for inflammation of the stomach, esophagus, and duodenum and also for 1+ Winston fixed the date of his visit as February 10 and denied discussing the subject of Duncan's return to work. It is unnecessary to resolve this conflict (See infra, fn. 15). hypertension, and not to return to work until he saw her again in 2 or 3 weeks. Duncan testified credibly that on February 12, Plant Manager Winston visited her at the hospital, where he told her that he was glad she was recuperating and that she looked well enough to return to work, where she was needed. Duncan said that she "really didn't know when [she] would be returning back to work." 14 Prior to • her release from the hospital on the next day (February 13), Duncan received a phone call from the office girl to remind her that her health insurance payment was due. The following Monday (February 18), Duncan telephoned Dr. Kaufman and was given an appointment to see him for a checkup on March 5. There is a conflict in testimony as to the number and dates of contact between Duncan and company officials between the time Duncan was discharged from the hospital (February 13) and the date she admittedly visited the plant on February 26. Supervisor Kraemer testified that she telephoned Duncan on February 13; that in response to her inquiry as to when she was coming back to work, Duncan said she did not know; and that when she asked Duncan to get a doctor's statement as to when she might return, Duncan said she would do that. According to Production Manager Howell on Friday of the same week (February 15) he, too, telephoned Duncan and in response to his inquiry as to when she would be returning, Duncan said she "still hadn't seen her doctor" and promised to obtain a statement from him on the same day or Monday. Kraemer also testified-as also did Winston-that they separately saw Duncan in the plant on February 21 and that, in response to their inquiry whether she had her doctor's note, Duncan replied that she was seeing her doctor that afternoon to get one. Duncan denied having these contacts with company officials, including the February 21 plant visit, asserting that her only contact around this period was a telephone call on Friday, February 22 in which she talked successively to Kraemer, Merrill, and Winston and a second call on the same day to Howell. According to Duncan, the three participants in the first call "kidded" her and inquired about her health; she told Kraemer in that conversation, as well as Howell in the subsequent one, that she did not know when she would return to work, but had an appointment to see her doctor and would return when released.15 It is undisputed that Duncan went to the plant on Tuesday, February 26, to pick up her paycheck. Howell, who spotted her, told her to come to the office, and there asked if she had a doctor's note. Duncan replied that she could not get one until March 5 when she will see her physician. Howell said "we've got to have it. We've got to know when you're coming back." The next day when Duncan went to the plant to vote in the Board election, Howell again asked for her doctor's statement, adding that this was his "final warning" and if she did not submit one by Friday (March 1) she would be considered "as a quit"; Duncan said she "would do the best [she] can to get some kind of a statement in there by Friday." In late afternoon, 15 In view of the basis of the decision herein (i.e., that the discharge of Duncan was pretextuous) it is unnecessary to resolve the conflicting evidence summarized in this paragraph. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howell wrote up and mailed a warning slip to Duncan, stating that her "leave of absence for sickness was only granted until Febr. 11" and repeating the admonition to her that, unless a note was produced by March 1, she "will be considered terminated." Duncan received the warning notice on February 28.16 In the meantime, on February 27, following Howell's verbal warning to Duncan, the latter went to the office of Dr. Schwartz, the female specialist who performed the D & C and told the office girl that she needed "some kind of statement" for her employer. Unable to get one because the doctor was out, she telephoned her personal physician, Dr. Kaufman, and asked him for the statement-explain- ing that she had promised to submit one to Respondent. Dr. Kaufman responded that he could not give her a statement until he saw her in his office , i.e., her appoint- ment date, March 5.17 On March 1 , Howell mailed Duncan a termination notice. 18 The notice reviewed Respondent's alleged prior requests to Duncan to secure a doctor's statement to support a leave extension-concluding with the statement that "In accordance with the employee manual . . . a failure to return [to work] or obtain an extension from a leave is considered as a quit." 19 On March 5, Duncan saw her physician (Dr. Kaufman) as scheduled and obtained a release certifying that she could return to work on March 11. On March 8, she obtained a more detailed statement describing the condi- tions treated and reiterating that she could return to work on March 11. On the same date (March 8), Duncan presented both papers to Company President Fried, who refused to accept them as "too late." Fried then (also on March 8) telephoned Dr. Kaufman and asked in a "rather belligerent" tone why he "didn't notify the Company that [Duncan] had been sick and would be off work this long." Dr. Kaufman replied that "If they [the Company] were that interested in the patient . . . they could have called earlier." 2. Conclusions The question whether Respondent discriminatorily terminated Duncan because of her union activities (as urged by General Counsel) or because she failed to furnish it with a medical report supporting her need for extended leave (as Respondent contends) presents only a question of fact. The Board and courts have repeatedly observed that motive for an employer's action in cases of this type is usually determinable only by circumstantial evidence since direct evidence of a purpose to discriminate is rarely obtainable. Corrie Corporation of Charleston v. N.L.R.B., 16 The findings in the above paragraph are based on the testimony of Duncan and Howell-to the extent credited. 17 Based on Duncan's credited testimony, in part, corroborated by Dr. Kaufman. 18 Although dated February 28, Howell testified that he wrote it up close to 4 p.m. on March 1, asserting that the February 28 date was a mistake. Duncan testified that on the same date (March t , presumably before the notice was mailed) she telephoned Howell to tell him that she could not supply him with the doctor's statement until she saw her physician on March 5 ; Howell denied receiving such call. It is unnecessary to resolve this credibility conflict (see supra, fn. 15). 19 The employee manual, first distributed to employees on January 11, 375 F.2d 149, 152-153 (C.A. 4, 1967), and cases cited. "It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct evidence." N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965). Moreover, "the rule is well established that although ample valid grounds may exist for the discharge of an employee, that discharge will violate Section 8 (aX3) if it was in fact motivated, even partially, by the employee's union activity [citing cases ]. Thus, where there are legitimate reasons for the discharge of an employee, the question is whether those were in fact the only grounds for the dismissal , or whether they were 'put forth as a mere pretext to justify an impermissible discharge.' " N.LR.B. v. Pembeck Oil Corporation, 404 F.2d 105, 109-110 (C.A. 2, 1968). See also N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964). Based on the entire record, but particularly in view of the considerations set forth below, I find that the credited evidence and reasonable inferences to be drawn therefrom establish that the March 1 discharge of Duncan was motivated in substantial and controlling part by Respond- ent's opposition to her known or suspected union member- ship and sympathies. a. Respondent admittedly opposed organization of its plant, stressing in its literature to employees the futility of union representation and the detriments they could suffer-financial and otherwise-in the event of unioniza- tion. In addition to legitimate expressions of opinion, it unlawfully threatened employees with discharge in the event they exercised their statutory right to strike-a traditional economic weapon to strengthen legitimate bargaining objectives .20 And a supervisor of the bulk of its employees (Kraemer of the sewing department) repeatedly warned that unionization would result in a shutdown of the plant and loss of jobs. Such displays of union hostility "are proper and highly significant factors for Board evaluation in determining motive." N.LR.B. v. Dan River Mills, 274 F. 2d 381, 384 (C.A. 5, 1960). b. Duncan was the driving force behind the union movement. She conceived and initiated it, signed up the great bulk of employees, and was the link between employees and Union Representative Boehm. While the active role of an employee in a union drive , as well as an employer's opposition to the drive, is not in itself sufficient to establish a discriminatory discharge or refusal to hire, "[s]till, where the [action ] in question involves the 'key' employee in an organizational drive, it may supply shape and substance to otherwise equivocal circumstances." N. L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 169 (C.A. 1, 1962). describes two types of leaves : (a) "excused absences" of less than 10 working days approved by a supervisor ; and (b) other "leaves of absence" for over 10 days for illness or other reasons which must similarly be approved-in case of illness the request to be accompanied by a physician's statement verifying the need for leave and the approximate time off needed. According to the manual , violations justifying "immediate discharge" include: "Failure to return to work within one day after the expiration of a scheduled . . . leave of absence unless a Justifiable excuse is communicated to the company by the end of the day on which [the employee is ] scheduled to return." 20 See, e.g., N.LR.B. v. Erie Resistor Corp., 373 U.S. 221, 233-234, 235 ( 1963); Allis-Chalmers Mfg. Co. v. N LR. B., 388 U.S. 175, 181 (1967). BLUE STAR KNITTING, INC. c. There is ample indication of Respondent's awareness of Duncan's union sympathies and role prior to its decision to terminate Duncan . Managerial officials admitted that they "thought" or believed her to be a union proponent in January. She was questioned by her supervisor (Kraemer) on January 28 as to her union attitude and warned in the same incident that Company President Fried "could go South" if the Union got in. Fried himself admitted seeing a leaflet on February 26 or 27 identifying her as an employee union organizer . There was "considerably more than a coincidental connection" (N.LR.B. v. Condenser Corpora- tion of America, 128 F.2d 67, 75 (C.A. 3)) between Fried's discovery and first-hand knowledge of Duncan's union role and Respondent's threat to discharge her on or about the same day (February 27) and effectuation of the threat 2 or 3 days later (March 1). d. Duncan was an admittedly satisfactory employee. She had been considered for promotion to a floorlady position. Prior to the incident here involved her attendance record was likewise satisfactory-a factor not to be overlooked in a plant where excessive absenteeism was "one of [the ] biggest problems." There is no evidence that she was ever reprimanded previously-for any reason. e. Finally, the inadequacy of Respondent's explana- tions for the discharge fortifies the inference warranted from the above-stated circumstances that the discharge was discriminatorily motivated. Respondent contends (br. pp. 35-36, 47) that, although Production Manager Howell on January 30 wrote up for Duncan a "Sick Leave" slip, she was given only an "excused absence " authorization for less than 10 working days; that this is evident from its leave classifications, as stated in its manual (supra, fn.19) under which a "request for an illness leave must be accompanied by a physician's statement verifying the need for a leave and the approximate time off required"; 21 that "what started out . . . as an `excused absence' . . . turned out, after the fact [i.e., Duncan's hospital tests] , to be an `illness leave' . . . for which Duncan was required to furnish" the usual physician statement; and that, having failed to comply with its repeated requests for such statement between February 13 and 27, it was Respondent's prerogative to discharge her in accordance with its established rules. To begin with, Respondent itself concedes (br. pp. 36- 37), and the documentary evidence establishes , that it has not with regularity required nor obtained from sick leave applicants a physician's statement citing the need and estimated period required for the leave in advance of taking sick leave (see e.g., G.C. Exhs . 14(e), 14(g), 14(j), and 14(o); and tr. p. 313). Nor has it consistently insisted on a doctor's statement to extend sick leave from employees already on leave. Be that as it may, it is plain that Duncan literally followed and complied with the instructions Production Manager Howell had given her when he granted her the 21 According to Respondent, although the manual was not distributed to employees until January 11, 1974, these classifications were in effect long before. 22 Indeed, Howell recognized that she was on sick leave (not merely "excused absence") as late as February 27 when he wrote in his warning notice to Duncan: "Your leave of absence for sickness was only granted until Febr. I I." 23 Respondent's observation (br. p. 47) that while `claiming to be too 319 leave on January 30. Howell's memorandum to Duncan is entitled "Sick Leave" and expressly grants her "a leave of absence due to illness." 22 Because of the uncertainty of the nature of the illness, it notes that she would be out "at least until February 11"; it directs her to contact Respondent if "any further extension [is] needed" (nothing is said about producing a doctor's statement justifying an extension); it requests her to notify Respondent "at least 2-3 days" before returning to work; and it instructs her to bring a "doctor release" on her return. Plant Manager Winston admittedly knew that Duncan was still in the hospital on February 10, when, according to Winston (supra, fn. 14), he visited her there. (Duncan fixed the date as February 12.) If Respondent's witnesses are to be credited, Duncan informed at least three company officials (Kraemer, Howell, and Winston) on at least three occasions between February 13 and 21 that she was still incapacitated and under her physician's care. She admittedly saw Howell in the plant on February 26 and 27.23 By that time she had an appointment to see her doctor on March 5 and so informed Howell. Because of the latter's insistence on a physician's statement Duncan contacted her doctor, but was unable to get a note until her March 5 physical examination. When she attempted to present the statement to Company President Fried on March 8-within "2-3 days" before her expected return (March 11) and within the time specified in the January 30 "Sick Leave" memorandum-Fried refused to accept it, Respondent already having fired her on March 1. Fried did not rescind the termination notice even after taking pains to personally check the situation with Duncan's physician (Dr. Kaufman). For all of the foregoing reasons, I am persuaded that the reason advanced by Respondent for Duncan's discharge is pretextuous. No reason appears and no motive is suggested why Duncan would have refused to comply with Respond- ent's requests to produce a medical certificate to corrobo- rate inability to return to work had she been able to do so. The fact that Respondent in the past had been "lenient" with other employees in foregoing this "requirement" and that Duncan literally complied with the only instruction given her in the sick leave slip-that she submit a "doctor release" when she "returns" to work-taken together with all other factors alluded to (Respondent's opposition to the Union, its threats to close the plant if the Union came in, Duncan's dominant role in bringing in and establishing the Union, Respondent's awareness of her Union sympathies, and Duncan's past satisfactory performance and attend- ance) justify the inference that Respondent would not have terminated her "but for [her] role as prime mover for the union at the Company." Cf. N.LR.B. v. Ri-Dell Tool Mfg. Company, Inc., 486 F.2d 1406 (C.A. 7, 1973). See also Self- Reliance Ukranian American Cooperative Association, Inc. d/b/a Certified Foods v. N.LR.B., 461 F.2d 33, 38 (C.A. 7, 1972); and also Sweeney & Company Inc. v. N.L.R.B., 437 sick to work" Duncan was well enough "to make appearances at the plant" seems to equate a convalescent's ability to make brief social visits (in one case she showed up to vote in the Board election) with ability to operate a sewing machine full time day after day. Duncan's doctor's description of her impairments, the procedures Duncan underwent , and the medication and treatment she was under after leaving the hospital bespeak an individual under close medical treatment for substantial medical problems preclusive of her usual active factory work. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F.2d 1127, 1133 (C.A. 5 1971). Accordingly the discharge was violative of Section 8(aX3) and (1) of the Act. F. Alleged "Constructive" Discharge of Dixon 1. Introduction General Counsel contends (br. p. 16) that, after her December 19 layoff (supra, sec. D), Dixon was "singled out" for reprimands, warning notices, and other harass- ment because of her union and protected activities, thereby forcing her to quit on May 14. As will be recalled, the December 19 layoff of Dixon and another employee (Griffin) has been found to be unlawful because it was prompted by the two employees' protected concerted activity in protesting a grievance and not because of their union membership or activity (supra, sec. D,2). Respondent on December 19 was not aware of Dixon's (and Griffin's) union sympathies (supra, fn. 13). For reasons to be stated, I find and conclude that the credited evidence and the reasonable inferences to be drawn therefrom do not support the complaint allegation that Dixon was "constructively discharged" unlawfully. I find that she walked off and quit her job voluntarily on May 14. 2. The evidence a. As already noted, Dixon was a bagger in the packing department, working since hired (on September 24) under the direct supervision of Merrill. She signed a union card on November 20, attended several union meetings, and wore a union button before the February 27 election.24 That Respondent was aware, or at least suspected, that Dixon was a union sympathizer is evidenced by Company President Fried's request to Dixon to give him a button for his children (supra sec. C, 1, par. g) and by Supervisor Merrill's admission that she "thought" Dixon was one of the two prounion employees (the other being Campbell) in her department in mid-January. b. General Counsel relies on evidence-some general and some specific-to support his position that Dixon had been badgered into quitting her job. In essence, he attempts to show (primarily through the testimony of Dixon) that Dixon was "forced to work on a new bagging machine which was not functional" (G.C. br. p. 16); that Dixon had been "reprimanded on a continuous basis" about her "attitude or her complaining about her piece rate" (G.C. br. p. 17); and that she had been harassed about latenesses 24 General Counsel through a series of leading and suggestive questions sought to elicit testimony from Dixon that she was an activist and signed up many employees. Her testimony on this point, as on others in this proceeding, is exaggerated and unworthy of belief. When first asked how many employees she had asked to sign cards, she answered, "I'm not sure, but I think four or five." Asked when she signed them up she answered, "Well, the 20th [of November ]." Then, in response to leading questions she claimed that she had solicited employees in December , January, and in February up to the election . She could not, however, name a single employee whom she allegedly asked to sign; and even as to the number of and absences, although excusable and not Dixon's fault (G.C. br. pp. 17-19). Dixon in typical hyperbolic manner (supra, fn. 24) testified that all of Respondent's officials who have had contact with her-Fried, Howell, Merrill, and Gombert (sales manager)-had "talked or yelled" at her "just about every day." (1) As to the bagging machine, to which Dixon was assigned when first installed in mid-January, Company President Fried admitted that Respondent had been having considerable "trouble," but he indicated that the "prob- lem" was no more unusual than "you have with any new machine." Fried and a mechanic spent "a good deal of time" making it functional. It is clear, however, as Dixon admitted, that she was put on "day rate," or a flat hourly wage, whenever the machine was nonoperational. Fried testified credibly that, in response to a Dixon complaint about the machine in January, he tried to instill in her a positive attitude-telling her to give the new machine "a fair trial" and assuring her that Respondent "didn't expect her to lose anything [financially] because of it." 25 (2) As to alleged harassment about attendance and "attitude," Dixon testified that, when she returned to work on March 22 after a 4-day absence due to illness (March 18-21), Production Manager Howell told her that he "didn't like [her] attitude" because she failed to "call in" "like you were supposed to." Dixon reminded Howell that she had called in and was assured that it would be unnecessary to call in every day, as long as she brought a doctor's statement when she returned to work, which she did. Howell could not recall the specific incident, but indicated that he "probably" did talk to her once about calling in absences and about excessive absenteeism. I credit Dixon's version of this incident. (3) Dixon cited a later (April 18) incident when Sales Manager Gombert allegedly told her that he was "sick and tired of [her] being absent, and lateness, and going home early." According to Dixon, Gombert also said that he was "sick and tired of [Dixon's ] messing up the customers' merchandise . . . getting the wrong merchandise," but Dixon denied she was at fault. Gombert handed her a written reprimand, stating that she had been absent "over 21% of the work days since January 1"; that she had come in late and left early; that the quality of her work had been below standard; and that if "this problem continues," it will be cause for dismissal. Gombert testified that he issued this warning (also signed by Packing Department Supervi- sor Merrill) because Dixon had on many prior occasions placed garments in the wrong bag-failing to match ticket and bag; that he had attempted to correct her through constructive criticism; that Dixon consistently denied fault; that, on top of past absenteeism, she was again off work on the preceding day; and that he finally decided to give her a written warning "basically" for absenteeism and union meetings attended she was hesitant and vague. I have already noted my reservations concerning Dixon's reliability as a witness (supra, fns. 6 and 11). I do not believe her self-serving testimony that she had signed up other employees, or even asked others to sign cards-not a single one identified. Si I do not credit Dixon's testimony that Fried in this January conversation told her "you just don't want to work, that's [i.e., the machine problem 1 all in your mind ." As between Dixon and Fried , I prefer to rely (and usually rely) on the testimony of Fried-on the basis of both quality of content as well as comparative demeanor. BLUE STAR KNITTING, INC. 321 poor quality of work. Gombert impressed me as an essentially honest witness whose account of the interview had an authentic ring of truth. I credit his testimony.26 (4) Dixon testified that on Monday, May 6, she "got [her] hand burned on the bagging machine" and got permission from her supervisor (Merrill) to go home. She took off the next 2 days and returned to work on May 9. On May 14, she was called into Howell's office, where, according to Dixon, Howell said he was "sick and tired" of her absences and "attitude" and that if she was continuing to "have this problem of being absent" he thought she ought to "quit." Howell handed her the following "written warning" (G.C. Exh. 20-b): You were absent on 4 different occasions in April, 4 days in March and 7 days in February which makes an average absence of 1-1/4 days per week. Because of the many difference [sic] occasion and prolonged occu- rences over three months, we must warn you that further excessive absenteeism may result in discharge. In any event, further occurence must be accompanied by doctors excuse. Dixon responded that she had brought doctor's statements to cover her absences. Howell testified that prior to giving Dixon the warning he discussed her absentee problem, including Gombert's previous April 18 warning and her absence on the preceding day (May 13); 27 and stated that he wanted Dixon "to try to correct this attendance problem." When Dixon said "it's not my fault" and "can't help it," Howell said that he "realize[d] it may not be [her] fault . . . we still have got to run a business. We've got other people that depend upon-we had a jam up at the bagging machine. There's unhappy girls that have to go fill in for you." According to Howell, Dixon then asked, "what do you want me to do, quit?" Howell replied "no." Dixon testified that after leaving Howell's office- I went upstairs by my work station, bagging machine. I started to work. And, I just got upset. And, I just felt that I had had it. I couldn't take any more of that. And, I went downstairs to Mr . Don Howell's office on the second floor, and I opened the door, and I said, I told Mr. Howell that I had had it, and I was quitting. And, I punched my card and left. Howell testified that he was "amazed" when Dixon "stuck her head in the door" to say she had "quit." se Dixon's attendance record (Reap. Exh. 8) supports Gombert's testimony as to her absences and tardiness, but it is clear from other credited evidence that most, if not all, of Dixon's absences were due to illness supported by a physician's statement. Dixon had three absences in April prior to the April 18 incident (one on April 17, as Gombert testified), four in March (also two latenesses), seven in February (also three lateneases), and two in January (also five latenesses). Dixon testified that she had to take days off in February because of a car accident, had called in to notify Merrill and Howell, and turned in a doctor's statement when she returned. 27 Although stating that she "didn't think" she was absent on May 13, Dixon also testified, "I don't remember whether I was there that day." ss In resolving credibility 'in favor of Howell and other company witnesses here or elsewhere, I need not (and do not) rely on the supporting I credit Howell's account of the May 14 interview to the extent it conflicts with that of Dixon.28 3. Conclusions An employer "constructively" discharges an employee in violation of the Act where, for discriminatory reasons, he makes the employee's conditions of work so intolerable or undesirable that he is thereby forced to quit his job. See Ritchie Manufacturing Co., 147 NLRB 1257, 1268-69 (1964); The Cross Co., 143 NLRB 1005, 1007 (1963); Leggett's Department Store of Princeton, West Virginia, Inc., 137 NLRB 403, 416 (1962). In each case, "the pivotal factor is motive." N.L.R.B. v. Lipman Brothers, Inc., 355 F. 2d 15, 20 (C.A. 1, 1966). To begin with, the record does not establish a union-connected motive for Respondent's ridding itself of Dixon. Unlike Duncan-the initiator and guiding spirit of the Union drive-Dixon's union activities were indistinguishable from many others in the plant who like Dixon signed cards, wore buttons, and attended meetings. I am not persuaded by General Counsel's argument (br. p. 16) that she "was singled out" for discriminatory and harsh treatment because of her "union and protected activities." Moreover, many of the complaints against Dixon were not without foundation. The quality of her work, as Company Official Gombert credibly testified, was not always up to par. And her attendance (absences and tardiness)-a major bone of contention-was less than desirable from Respondent's point of view. To be sure, as Dixon claimed and Production Manager Howell himself recognized (in his May 14 interview with Dixon), the absences were not willful-perhaps all due to illness and "excused" (i.e., after advance notification). However, as Howell testified, absenteeism, for whatever reason, creates severe problems in scheduling and production, particularly in Dixon's packing department where the entire operation is dependent on a few people. The record shows that Respondent has taken corrective measures to meet absen- teeism-a common phenomenon in the plant. The employ- ee manual' makes excessive absences and latenesses (three or more a month) a dischargeable offense if repeated twice; no distinction is made between "excused" and unexcused absences. An office girl prepares periodic reports of offenders for review by management. And documentary evidence shows that habitual absentees had been issued warning notices, long before advent of the Union. It was precisely this type of notice that preceded Dixon's decision to "quit." testimony of Supervisor Merrill. Merrill impressed mess an individual who as a loyal member of the managerial hierarchy felt impelled to go far to conform her testimony to what she regarded as the best interest of her Employer. Record data offered by General Counsel at the hearing (tr. pp. 506-508), ruling on admission of which was reserved at the hearing, is hereby received in evidence (see Crown Corrugated Container, Inc., 123 NLRB 318, 319-320 (1959); Winston Rose and Mary Louise Rose, a partnership d/b/a Ideal Donut Shop, 148 NLRB 236, fn. 1 (1964)) but not relied upon on the issue of Mernll's credibility. In the two or three instances where I have resolved conflicting testimony on minor aspects of this case in Mernll's favor (fns.. 7 and 13), her testimony was either corroborated by other credible evidence, or the opposing testimony was inherently improbable and unbelievable. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is not to say that the record is entirely devoid of evidence justifying an inference that Respondent was harsh and unreasonable vis-a-vis Dixon. Thus, Dixon may have had just cause to complain at being kept for months on a bagging machine subject to continual breakdown. Al- though on "day time" pay during breakdown periods, Dixon's earnings might have been affected adversely- although this appears to be speculative . Be that as it may, the right of an employer to manage his business includes the right to assign and distribute work among his workmen. The protection afforded an employee by the Act does not include the right to prescribe his own work assignment. "It is only if an onerous assignment is made for the purpose of encouraging or discouraging member- ship in a labor organization, that such action runs afoul of Section 8(a)(3) of the Act." Sears Roebuck and Co., 110 NLRB 1162, 1175 (1954). I conclude that the preponderance of the credible evidence fails to support the complaint allegation that Respondent constructively discharged Wyona Dixon in order to discourage union activity, in violation of Section 8(aX3) and (1) of the Act. CONCLUSIONS OF LAW 1. By coercively questioning employees concerning their union sympathies, by threatening them with reprisals if the plant were unionized, and by conveying to them the impression of surveillance of union activities, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(aXl) of the Act. 2. By reprimanding and issuing a 3-day disciplinary layoff notice on December 19, 1974, to employees Griffin and Dixon because they had engaged in a protected concerted Walkout, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Section 7, thereby violating Section 8(aXl), of the Act. 3. By discharging employee Duncan on March 1, 1974, and thereafter failing or refusing to reinstate her, in order to discourage union activities , Respondent has discriminat- ed in regard to hire and tenure of her employment, in violation of Section 8(aX3) and (I) of the Act. 4. The aforesaid unfair labor practices and each of them affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. It has not been established that Respondent has violated Section 8(aX3) and (1) of the Act by "construct- ively" discharging employee Dixon on May 14, 1974; nor Section 8(aX 1) of the Act by requesting employees to give union buttons to supervisors. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The affirmative relief will include the customary provi- sion that Respondent offer to the discriminatorily dis- charged employee (Mary Duncan) immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason thereof, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her unlawful discharge (March 1, 1974) to the date of Respondent's offer to reinstate her, together with interest thereon, less net earnings if any during such period, backpay and interest to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The employees unlawfully given a 3-day layoff (Jackie Griffin and Wyona Dixon) shall similarly be made whole for any loss of earnings they may have suffered by reason thereof. Respondent shall also expunge from its records all reference to such layoffs. In view of the nature of the unfair labor practices Respondent has engaged in, Respondent shall be required to cease and desist from infringing in any manner upon rights guaranteed employees by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 29 Blue Star Knitting, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees concerning their sympathies and activities for any labor organization; threatening them with reprisals (including plant closure) if the plant is organized; conveying to them the impression of surveillance of union activity ; or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. (b) Interfering with, restraining , or coercing employees by reprimanding, laying off, or otherwise disciplining employees for engaging in lawful concerted activities, including lawful walkouts, for the purpose of mutual aid or protection. (c) Discouraging membership and activities in any labor organization (including United Textile Workers of Ameri- ca, Local No. 667, AFL-CIO), by discriminating in regard to the hire and tenure of employment of Respondent's employees, or by discriminating in any other manner in regard to any term or condition of their employment, in order to discourage or interfere with membership or activities therein. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act. (a) Offer Mary Duncan immediate and full reinstatement to her job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or 29 In the event no exceptions are filed as provided by Sec. 102.46 of the provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Rules and Regulations of the National Labor Relations Board, the findings, Board and become its findings, conclusions, and Order, and all objections conclusions, recommendations, and recommended Order herein shall, as thereto shall be deemed waived for all purposes. BLUE STAR KNITTING, INC. other rights and privileges, and make her whole for any loss of pay she may have suffered as a result of her discharge in the manner set forth in the section of this decision entitled "The Remedy." (b) Similarly make whole Jackie Griffin and Wyona Dixon for any loss of pay they may have suffered as a result of the 3-day disciplinary layoff given them; and expunge from its records all reference to such layoff. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the extent of its compliance under the terms of this Order. (d) Post at its plant in Milwaukee, Wisconsin, copies of the attached Notice marked "Appendix." 30 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's represent4tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 30 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 323 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an Administrative Law Judge, at which all sides had the chance to give evidence, it has been decided that we have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to self- organization and to engage in other concerted activities (including lawful walkouts) for the purpose of mutual aid or protection. Accordingly, we give you these assurances: WE WILL NOT coercively question you concerning your union sympathies and activities; nor threaten you with reprisals (including plant closure) if the plant is unionized; llor convey to you the impression of surveillance of your union activities. WE WILL NOT interfere with, restrain, or coerce you by reprimanding, laying off, or otherwise disciplining you, or in any other mannef discriminate against you for engaging in concerted activities (including lawful walkouts) for purposes of mutual aid or protection. WE WILL NOT fire or take any reprisal against any of you because you have joined or supported, support, or will support a labor organization of your choice, including United Textile Workers of America, Local No. 667, AFL-CIO. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Mary Duncan immediate and full reinstatement to her formerjob or, if that job no longer exists, to a substantially equivalent job, with full seniority and all other rights and privileges since she was found to have been discharged by us in violation of the National Labor Relations Act. WE WILL make up all pay lost by Mary Duncan with interest. WE WILL also make up all pay lost by Jackie Griffin and Wyona Dixon since we have been found to have violated the Act by giving them a 3-day disciplinary layoff for engaging in a protected concerted walkout; and we shall expunge from our records all reference to those layoffs. BLUE STAR KNITTING, INC.