Burris Industries, Inc.

BURRIS INDUSTRIES, INC. Burris Industries, Inc. andUBC, Southern Council of Industrial Workers, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO. Cases 26-CA-5185 and 26-CA-5263 March 25, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 12, 1974, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thorrity 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 brief and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Burris Industries, Inc., Prairie, Missis- sippi, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Or- der, 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 While we agree that certain of Respondent's officials and supervisors, on April 25, 1974, engaged in surveillance and thereby violated Sec. 8(a)(1) of the Act, we do not agree that the record clearly supports such a finding concerning Supervisor Joe Moore Contrary to the Administrative Law Judge's statement, Moore did not testify that he drove in the area of the church We also agree with the Administrative Law Judge that the Respondent violated Sec. 8(a)(4) and (1) by reprimanding Mary Drake and Robbie Anderson for being absent from work the morning of the hearing date It is clear that each of them had received permission to be absent for the-whole day from the personnel manager, who was fully aware that the hearing was scheduled for 1 p.m„ and the comments of Supervisor Nabors to Anderson at the time of the reprimand reveals the true reason therefor; i e , Respon- dent's displeasure with the employees' testifying at the hearing. Cf. Royal Manufacturing Company, 177 NLRB 264 (1969). DECISION STATEMENT OF THE CASE 91 THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on October 22, 23, and 24, 1974, at Aberdeen, Mississippi, on complaint of the General Counsel against Burris Industries, Inc., herein called the Respondent or the Company. The charges were filed on July 3, 1974 (Case 26-CA-5185), and on August 21, 1974 (Case 26-CA-5263), by UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the-Union, and the initial complaint issued on August 20, 1974. The issues are whether the Respondent violated Section 8(a)(1), (3), and (4) of the Act. A brief was received after the close of the hearing from the General Counsel. Upon the entire record' and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Mississippi corporation with an office and place of business in Prairie, Mississippi, where it is en- gaged in the manufacture and distribution of furniture. Dur- ing the past 12 months, the Respondent purchased and re- ceived at this location products valued in excess of $50,000 directly from out-of-state sources, and during the same period sold and shipped from this location products valued in excess of $50,000 directly to points located outside the State of Mississippi. I find that the Respondent is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED I find that UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Picture of the Case A union movement started among the approximately 425 employees at the. Respondent's Prairie plant early in April 1974. A number of union meetings were held in various loca- tions during the next few months and a Labor Board hearing on the Union's representation election petition was held on August 13. One of the principal activists generating prounion sentiment was Johnnie Drake. Between April 8, when the first organizational meeting took place at the home of em- ployee Eva Reese, and June 19, when he was discharged, Drake successfully solicited signatures to about 120 union cards and delivered them to the Union's business agent. A principal allegation of the complaint is that Drake was dis- I The General Counsel filed a motion to correct certain enumerated typographical errors in the record transcript of testimony. The motion stands unopposed and is granted. 217 NLRB No. 25 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged because of his union activities and that thereby the Respondent violated Section 8(a)(3) of the Act. The other major charges are that agents of the Company resorted to coercive conduct aimed at intimidating the em- ployees so that they would abandon their union resolve. This improper conduct, as alleged in the complaint, took the form of illegal interrogation, threats. of economic retaliation, and overt surveillance of union meetings-all said to have vi- olated Section 8(a)(1). There are a number of direct questions of cred- ibility-employee witnesses called by the General Coun- sel telling what they heard supervisors say and what they saw them do, and the Respondent's witnesses, virtually all com- pany agents, ostensibly giving the first group the lie. This is true of all the alleged violations of Section 8(a)(1). As to the discharge of Drake, there is also a credibility issue-was it or was it not he who worked on the defective chair parts which the Respondent says justified a reprimand and consequent dismissal because it was the third he had received in 9 months? Resolution of the specific question, however, does not dispose of the discharge issue. The theory of complaint as to Drake is that, even assuming he made certain mistakes at work that day, the Respondent seized upon the incident as a pretext to get rid of him, and that its real motivation was to remove from the plant so outstanding a union protagonist. An ultimate finding of unlawful discharge would be an infer- ence, justified or not justified by consideration of all relevant facts. B. Violations of Section 8(a)(1) At the first gathering of employees with Union Business Agent Bracken, at the home of Eva Reese on April 8, 1974, there were eight or nine employees, including Mrs. Mary Drake, her three sons-Johnnie, Clinton, and Herman-and Mabel Drake, a daughter-in-law. Everybody signed union cards and the next day, according to uncon- tradicted and therefore credible testimony, Johnnie Drake started soliciting signatures for others; he had 23 very quickly that day. The next day, at about noon, a floorlady, not herself a supervisor in the statutory sense, told Mrs. Drake that one of her boys had some union cards, and pointed to Johnnie as the one. The mother, apprehensive about her son, went to him and in the immediate presence of Supervisor Robert Criddle asked was it true. She received the answer many mothers receive today-that if he did have union cards it was none of her business. Later in the afternoon Billy McCaney, the Re- spondent's personnel manager, came to Mrs. Drake's sewing machine, and there was talk about the Union; here the first credibility question emerges. According to Mrs. Drake, McCaney said: "Mary, a boy told me Pony [Johnnie's nickname] had some union cards," and when the lady an- swered she did not know, he continued with: "You'd better talk to him, because if he gets fired on account of union, that would go in on his record and he won't get no job at none of these other plants." The employee said she would talk to her son. Mrs. Drake went on to testify that McCaney returned to her place of work later the same afternoon, to say: -Mary, we are going to have to put the hurt on Pony.' And I looked up at him and I said, `What now, Billy?' And he said, `A boy told me that Pony tried to get him to sign a. Union card." Now Mrs. Drake said the personnel manager should confront the two-her son and the other boy-to find out who was -telling the truth. Her final detail of this incident is that the next day, at the water fountain, McCaney asked her had she inquired of her son about his having any union cards. The personnel manager gave a different version. He started by denying he asked did the son have union cards, or voicing any threats. He testified Mrs. Drake called him to her work station and "... asked had I heard a rumor that Johnnie, or Pony she calls him, had union cards," and that when he answered he had heard the rumor she said she did not believe it. On cross-examination, the witness then put it this way: "Mary called me to her machine and asked me if I had heard that Johnnie, or Pony as she called him, was passing out union cards or had union cards." Asked had he then told the woman "to be sure that she did talk to him;" the witness admitted: "I could have said it." One of the few clear facts shown by this record is that Mrs. Drake-regardless of whether she has or does not have just cause-is frightened by the danger of retaliation from man- agement for any kind of conduct of which it disapproves. When she went to her son to inquire did he really have union cards, after the floorlady mentioned the possibility, she did so because "I wanted him to deny it because I didn't want him to get fired." Four months later she was subpenaed by the Union to testify at the Labor Board hearing and did so. The next day her immediate supervisor, Laverne Nabors, with whom she has worked for years, asked her to come to the office without telling her why. Mrs. Drake had no idea why she was wanted in the office. The following is from her uncon- tradicted testimony: ... she same to my machine and told me, "Come on Mary, you got to go with me." And I said "Where are you going?" And, she said, "You got to go to the office." I said, "Miss Lavern, please don't take me to the office." She said, "Come on, Mary, you got to go with me, now, come on." I said, "Miss Lavern, please, ya'll going to fire me." She said, "No, when something's going to happen, don't I always warn you?" And I told her, "Yes." She said, "Well, trust me." And I told her, "Okay." If McCaney is to be believed, this frightened woman in- formed on her son by volunteering to the personnel manager the knowledge that the young man "was passing out union cards." I do not credit McCaney, both on the ground of the relative demeanor of the two witnesses, and on the basis of rational human probabilities. There is more reason for reject- ing the testimony of the personnel manager. Several em- ployees testified that on April 25, while 30 or 40 employees were gathered in front of the Morgan Chapel Church in Aberdeen, 8 miles away from the plant, 4 supervisors drove slowly back and forth in front of the premises and looked at who was there. One of the supervisors identified was McCaney. Denying that he had engaged in any act of surveil- lance, McCaney started by saying he simply happened to pass near the church that evening, a block away, shortly before 7 p.m., but not later. Asked on cross-examination what he was doing in that area that night, he answered: "I was just riding 9f BURRIS INDUSTRIES, INC. 93 Q. Was this just a leisurely drive or what? A. No. Q. Well, you were riding. Why were you riding? Were you going somewhere or coming from somewhere? A. Not really. I knew there was a union meeting going on.. . someone told me.... I knew it was in a church. McCaney also denied having interrogated Mrs. Drake about her son's activities the following morning on April 9 at the water fountain. On the credited testimony of Mrs. Drake set out above, and that of Johnnie Drake that he saw McCaney twice drive slowly in front of the church where the employees were wait- ing to hold their union meeting, I find that the personnel manager coercively interrogated Mrs. Drake about the union activities of her son, threatened he would be discharged for union activities, threatened to blacklist him against other possible employment because of such activities, and spied upon the union meeting of the employees. I find that by each of these acts of its personnel manager the Respondent vi- olated Section 8(a)(l) of the Act. - Mrs. Drake and her son, Clinton, testified they saw Sam- mie Carson, a supervisor, pass slowly past the gathered em- ployees in front of the church before the meeting of April 25, make a U-turn at the end of the street, and slowly drive back again. Johnnie Drake said that in addition to seeing Carson pass twice he also saw Supervisor Joe Moore (four times) and Plant Manager Byron Wilson (twice) drive slowly by, always while the employees stood waiting in front of the building. Clinton testified he too saw these other three management people drive by slowly. These witnesses were corroborated by employee Eva Reese as to both Wilson and Carson. The denials offered by Wilson, Carson, and Moore are unconvincing. Wilson said he did drive by the church but that it was earlier and he saw no one. Then he added he went there because he "had been alerted" to the fact there would be union activities "within the northeast area of Mississippi." "I had also heard that afternoon or sometime a day or two prior to that time that there was to be a union meeting. . . . Then I heard later that afternoon that it was going to be at a church in Aberdeen, and I didn't know exactly where the church was, And after I got off work and went home that afternoon, I drove down just to locate the church." Carson said helives 5 miles away from Aberdeen in one direction and that he that evening went to dine at a restaurant 5 miles out of town in the other direction, and just happened to drive by the church when the employees were gathered to hold their union meet- ing. Denying any spying objective, he said that when some employees yelled at him he made a U-turn and went away. He had no reason for making a U-turn, for he said he knows of no dead-end street in that area. Moore told a story of his just being on the way to feed his horse in the country when he passed in the area of the church. This was mass surveillance, planned as virtually admitted by the two top officials of the Company-the general manager and the personnel manager. The lower supervisors were simply following the pattern set by top management. I find the company agents deliberately set out to spy upon the employees' union activities, to ascertain the identity of the particular persons involved, and to intimidate them by their very presence in such numbers that night. By all this the Respondent violated Section 8(a)(1) of the Act. The mass activity reveals a determination, however illegal the methods, to put a stop to the union campaign. Moore's testimony about a talk with Johnnie Drake the next morning was no more persuasive. Drake testified Moore came to him and asked had he attended the meeting the night before, and that in response he said yes, and invited Moore to come next Thursday. While ostensibly denying illegal in- terrogation, Moore said he had heard there would be a union meeting at a church the night before, he went out of his work department into Drake's work area the next day, and put his question this way: "I asked him if he carried his Bible to church'last night." He was interrogating the employee, pure and simple. I find the inquiry to have been still another- violation of the Act. Mrs. Drake also told of being questioned by Laverne Na- bors, her, supervisor, the morning after this meeting. She testified Nabors first asked had she gone to the meeting, and then kept asking were employees Jenkins or Cripper or Pruitt there. Drake answered she recalled no one except herself, her children, and Eva Reese. I do not credit Nabors' denials of all this interrogation, for Mrs. Drake's testimony is com- pletely consistent with the proven activities of like kind by the other management representatives. Supervisor Nabors' inter- rogation of Mary Drake constituted further violations of Sec- tion 8(a)(1) chargeable to the Respondent. The unlawful surveillance continued. There was another union meeting on about May 16 at a Masonic Temple in the town of Prairie, close to the Respondent's plant, Earnest Ewing, then an employee, and Eva Reese testified they saw Johnnie Earnest, a supervisor, slowly drive by while seven or eight employees were waiting to go into the meeting. Ewing also said that the day before Earnest told him, ". . . to go and see who was going to be at the meeting and come back and tell him." Ewing continued that the morning after the meet- ing he told the supervisor the names of three employees who had attended the meeting-Mary Drake, Johnnie Drake, and Mabel Drake-and that when he could rememeber no more names the supervisor took him through the production area and had him point out others to him. Ewing said he did that. He then added that later in the day Supervisor Earnest came back to him to say he had reported the information to Plant Manager Wilson and Personnel Manager McCaney and now wanted to thank him. The supervisor's story is that he did drive near the Masonic Temple that night, "made the circle there and came back," "there was some people there," and that then he went to his bootlegger. "I didn't know what was going on there I just assumed it aught be a union meeting. As far as knowing, I didn't know." He denied asking the employee to go to the meeting or to report who had been there. He said Ewing simply volunteered, told him some names the next day. The supervisor then testified: "I said who else and he told me some more people." Half admissions and half denials will not do in a total picture of determined sur- veillance such as this one. I credit employee Ewing, and I find that by Supervisor Earnest's request that Ewing go to the meeting for the purpose of reporting, by his going to the Masonic Temple to see who might be there, and by his asking the employee for additional names of employees who had attended the meeting, the Respondent repeatedly violated Section 8(a)(1) of the Act. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Comment on just one other instance of planned surveil- lance will suffice. Bracken, the union representative, spent much time near the plant in and about the small town of Prairie; perhaps half a mile away from the plant, the town consists of no more than two service stations, a grocery store, a dairy bar, and a post office, all clustered on the highway. He drove away from the stores one day to call on Ewing, and Supervisor Moore followed him in his own automobile. Bracken said Moore turned from one highway into another exactly as he was doing, drove past Ewing's home after Bracken had stopped and was talking to Ewing on the grass, and then drove back and forth, passing four times in front of the employee's home before returning back in the direction from which he had followed the union agent. Moore admitted he drove behind Bracken, turned left into a second road ^ as Bracken did, "went on down the road . . . turned around and came back." Q. Why did you go two miles past his car and decide to turn around and come on back to the plant? A. I decided I'd go back to the plant. Q. Why at that point and time did you decide to make a U turn and come back, is what I'm trying to ask? A. I just went back to the plant. As it happened, at the moment Ewing was no longer an employee of the Company, but there can be no question Moore was carrying out the illegal surveillance strategy planned by the Respondent. It was clearly implementation of a company policy. The General Counsel also offered testimony intended to prove still further acts of improper surveillance, largely upon the organizational activities, of Business Agent Bracken, on the public street in front of the plant and at the cluster of stores about 500 yards away, the small area called Prairie. The spying here is alleged to have occurred in September. The evidence does not suffice to prove any unfair labor practices under these complaint allegations and I find none. In warm weather many employees, and supervisors as well, make it a practice to sit in their cars to eat lunch, even under the trees bordering the street outside the plant property. Many more drive each day at noon hour to the nearby stores to buy sandwiches or drinks. They clutter the area while eating. Bracken was there many times, at both locations, and some- times talked to employees. He, and others,sometimes saw one supervisor or another "look" at him. Somebody tried to take pictures of one or two supervisors sitting in the cars while eating. It is hardly proof of illegal surveillance, in the "look- ing" because the supervisor "ducked" in his seat and did not want to be photographed. C. Discharge of Johnnie Drake Drake's job was primarily to sew chair backs coming through his work station, chairs of many different styles and colors. Part of his time was spent doing other kinds of work, some called tying buttons to stuffed chairs, as time permitted and as the flow of work required. Robert Criddle, the fore- man of the department, also, part of his time, did sewing of backs at the machines, as well as other work, again as the varying production needs demanded. On the morning of June 19, 1974, between 7 a.m., when he arrived, and 10 a.m., when he was summarily discharged, Drake did both kinds of work. He testified that after sewing a small number of backs, he was told by Criddle to do the tying, and that he spent most of the remaining time doing only that. He also testified that Criddle sewed backs in greater number that morning, indeed that Criddle sewed most - of whatever backs came through. In direct conflict, Criddle insisted at the hearing he did no sew- ing of backs at all that day until after Drake was discharged. Whoever it was that sewed which backs that morning, there was agreement among the witnesses at the hearing that some of the chair backs sewed early in the morning were imper- fectly made and needed correction. There was also seeming agreement that the defective ones were all styled model 369, as distinguished from other styles also going through. There had for several months been complaints-from customers and from various officials within the company-about this same error in sewing, both on model 369 chairs and on other models. On June 19, two management agents from the Respon- dent's main office were making their usual monthly visit to the Prairie plant, and walked through the production area with Manager Wilson. They noticed some defectively sewn backs. It is not possible to make a clear and definitive finding of what happened then, for the employee witnesses disagree with the Respondent's witnesses, and in a critical sense the Company witnesses were inconsistent among themselves. But in any event, within a matter of minutes Drake was given a written reprimand reading "for not sewing bottom of backs right," and immediately discharged. At the moment that the defective model 369 backs were noticed by the management officials, Drake and Criddle got into a dispute over which of the two had worked on them, each blaming the other; they continued the argument, each denying responsibility for those particular errors, at the hear- ing. Their protests were to be expected, what with the poor work being somehow tied to one man's loss of a job and the same issue becoming a major question in outright litigation. On the pinpointed question of who worked on those particu- lar few chairs at that particular time I cannot accept the conclusionary insistence of either man. Drake said he did work on some backs on and off during the morning, but felt sure he never touched a model 369 chair. At one point he said the visitors were looking at "My work ... the work that I had-was supposed to be done." He then clarified he meant his work on other model chairs. Criddle said he did not work on any chairs at all before 10 o'clock, but Virgil Kirby and Clinton Drake, both working in the same department and very close by, testified they saw Criddle working on chair backs. They might not have been able to see it was model 369 chairs he did, but they were certainly close enough to see it was chair backs. Moreover, it is a fact Criddle does often work on such backs; he even admitted he had sometimes himself sewn the backs improperly. Despite the foreman's denial, I do credit the testimony of the-three employees that Criddle did work on chair backs that, morning, and he may very well have made errors that day also. In the circum- stances, nevertheless, it is possible Wilson, the manager, could have formed the impression these particular bad backs had been made by Drake. I think, however, that the essential question raised by the complaint over Drake's discharge is not answered with final- BURRIS INDUSTRIES, INC. 95 ity either by a finding it was he who made those errors, or by a theory that Wilson thought he had made them. There are other facts pointing to an inference Drake was not discharged because of defective work . He testified very clearly that when the subject of the bad chairs came up, with the visiting offi- cials present, the manager told Criddle to give Drake a repri- mand, and that when the foreman said Drake already had two, Wilson gave the foreman a direct order to fire him then and there. When called to testify as an adverse witness at the start of the hearing, Wilson said flatly it was Criddle who made the decision to terminate Drake, and that he was not sure anyone else in management had anything to do with it. In complete contradiction, Criddle's testimony shows clearly he was disassociating himself from the decision to fire the man. He said it was Keith, the plant superintendent, a man- agement agent over him but under Wilson, who instructed him to give Drake a reprimand . When Criddle, still as he testified, answered by telling Keith the employee already had two, he was revealing his reluctance even to make out a reprimand slip, and only called Drake to the office to be fired after Keith said to him he, Keith, "had no alternative." To say, as Wilson would have it, that Criddle decided Drake had to go is simply not true. One asks: why this deception by the plant manager at the hearing? In fact, all three of the Respondent's witnesses-Wilson, Keith, and Criddle-spoke at the hearing as though the deci- sion to dismiss Drake was a mechanical functioning of a numerical formula, with no human thinking or consideration entering into the matter at all. Wilson said that all he did was say to Keith, "Take care of this problem," walked away and was not involved in whatever happened later . Keith also said his part in the affair was limited to calling Criddle and another foreman, and "I pointed out the problem to them and told them to get the problem solved." He -added that when Criddle said he already had once talked to Drake, he, Keith, told him "put him on reprimand." And Criddle, as already set out above, simply said there were already two reprimands. The truth is he had no part in any decisionmaking process. The Respondent's affirmative defense of discharge for cause seems to be-it filed no brief-that whenever it is proved an employer writes out a third reprimand slip for a man, and that it has discharged other employees to whom three repri- mand slips were issued, it follows of necessity and conclu- sively there could have been no motivation in the act of discrimination except automatic application of a rule. The approach removes from any consideration the overt unfair labor practices committed by the management representa- tives as otherwise shown on this record . A reading of the testimony leaves the impression the company witnesses were deliberately avoiding the question whether Drake was released for improperly sewing backs . With this, the rule, which has no mind, becomes the determining factor in the case, and there can be no charge of illegal intent made against a rule. I do not think the union animus in the Respondent re- vealed by this total record, aimed against the union move- ment generally and also against Johnnie Drake individually, can be so facilely swept away and ignored. The widespread campaign to survey the union activities , in which most of the managers engaged, reveals a clear intent to ferret out the unioneers. Drake was seen more than once by his supervisors at the -union meeting locations . When Supervisor Earnest asked Ewing to go to the meeting and report back, Ewing gave the supervisor Drake's name the next day . Wilson's conclusionary assertion of innocence is unconvincing for many reasons. Asked by his own lawyer what Drake was doing when he arrived that morning with the visitors, Wilson said "He was sitting at a sewing machine sewing buttons." This is exactly what Drake testified to. In the next breath the lawyer straightened out the witness' testimony : "Q. He was at the machine sewing backs when you got there? A. Yes, sir." The manager's first answer is strong indication Drake's error in sewing a particular kind of chair back was not the real reason for his dismissal. Wilson admitted that model 369 chairs were also produced at other plants of the Respondent, and when, a few weeks earlier, Drake was seen to,make such mistakes, Criddle told him about it but did nothing more. Criddle also admitted Drake was "a good worker," "a hard worker." In a plant with a 40-to-50-man turnover each month, such an employee would hardly be dismissed out of hand for errors that had been passed over before. But most significant of all is the initial threat of retaliation against this man when he started soliciting union cards all over the plant. McCaney, the personnel manager, told his mother the first day he could be "fired on account of Union." Instead Drake persisted, and by June had successfully solic- ited perhaps 100 more cards. All things considered, on this total record I do not credit the general testimony of the management witnesses. I find that Drake was discharged because of his prounion activities and that thereby the Re- spondent violated Section 8(a)(1) and (3) of the Act. D. ReprimandsforAssisting the Union at the NLRB Hearing Mary, young Drake's mother, and Robbie Anderson, have both worked for this company for 7 years. Neither was ever criticized for her work and neither was ever given a repri- mand of any kind. Each of them was subpenaed by the Union to appear as witnesses at the Board hearing on the Union's representation petition and testified there on August 13, 1974. They were served with the subpenas on the evening of the day before at home and the next morning called the plant to say they would not be in that day. There is no issue as to what they told the company representative on the telephone. Mrs. Drake called at 6:55 a.m. and talked to the personnel- manager, saying she would not be in . When he asked why, she said: "I'm going to a National Labor Relations Board hear- ing," and he answered : "Well,, all right." Anderson called about 8 : 15 and also spoke to McCaney. "I said, `Billy, this is Robbie. I've got to go to Court this morning, today.' And he asked me what time, and I told him at 1 o'clock. He said okay. And I said well I'll see you tomorrow. And he said, well fine. That was the end of the conversation." The hearing was scheduled for 1 p.m., but Bracken, the union officer, had asked the two ladies to meet with him in the morning to discuss the facts they would bring out. At the close of the hearing, after the two had testified, the Respon- dent's lawyer advised the Company to put a reprimand on each of the two women for having been absent from work during the morning without proper justification. As ex- plained at the hearing by the Respondent this was a correct 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing to do because the hearing was not scheduled to start before 1 p.m. The complaint alleges that by so reprimanding these two employees the Respondent illegally coerced them in their statutory right to assist the Union, thereby violating the Act, and I so find. The Respondent certainly knew when the women called that morning that the hearing was scheduled for the after- noon, for its agents were there themselves. Anderson even told the personnel manager she was scheduled to testify at 1 p.m. If she were violating . any "established policy," as Manager Wilson said at the hearing, the time to tell Anderson so was when she telephoned early in the morning. I am con- vinced the reason these two written reprimands were given the women was to intimidate them against further assistance to the Union. When Anderson was in the office the next day and protested against the reprimand, her supervisor, Nabors, asked her "why are you turning, against the company." This was the employee's testimony. Nabors said it was "not in those terms ..., I asked why she got mixed up ...." Q.... What are you referring to? The Union, is that what you're referring to? A. Yes. Q. Is that what you asked her, why did you get mixed up in the Union? A. No, I didn't say the union. I said why did you get mixed up in this... . The purported assertion of innocuous reprimand is not strengthened by Manager Wilson's belated attempt to inject an extraneous element in defense. At one point he asserted that one of the women deserved the reprimand because on the telephone she had said she had to go "to an industrial rela- tions hearing," as distinguished from a National Labor Rela- tions Board hearing. I find that the Respondent reprimanded Mary Drake and Robbie Anderson because they participated in the National Labor Relations Board hearing on behalf of the Union and thereby violated Section 8(a)(1) and (4) of the Act. THE REMEDY In view of the unfair labor practices found to have been committed, the Respondent must be ordered to take appro- priate remedial action. This will include, of course, an injunc- tion against repeating such unfair labor practices, and an order directed towards affirmative action aimed at undoing the effects of the improper conduct. Johnnie Drake, who was illegally discharged, must be restored to his former employ- ment, or an equivalent position, and made whole for any loss of earnings he suffered in consequence. And the unfair labor practices committed require a broad cease-and-desist order binding the Respondent not to commit further unfair labor practices of any kind. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAw 1. By discharging Johnnie Drake on June 19, 1974, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(3) of the Act. 2. By recording reprimands issued against Mary Drake and Robbie Anderson, the Respondent violated Section 8(a)(4) of the Act. 3. By the foregoing conduct, by interrogating employees concerning their union sentiments and activities, by threaten- ing to discharge employees for union activities, by threaten- ing to blacklist its employees, by spying upon union meetings, by asking employees to attend the union meetings and report back to management the identity of employee participants, the Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (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 recommended: , ORDER' The Respondent, Burris Industries,, Inc., Prairie, Missis- sippi, its officers, agents, successors, and assigns, shall: 1. Cease_ and desist from: - (a) Discharging or in any other manner discriminating against its employees because of their union activities. (b) Issuing reprimand notices to, and placing them in the files of, employees because they participate in National Labor Relations Board hearings. (c) Coercively interrogating employees concerning their union sentiments and activities, threatening to discharge em- ployees for union activities, threatening to blacklist em- ployees, spying upon union meetings, or asking employees to attend union meetings and to report back to management the identity of employee participants. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organ- ization, to form, join or assist UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or, other mutual aid or protection, or to, refrain from any and all such activities. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: 2 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes BURRIS INDUSTRIES, INC. (a) Offer Johnnie Drake immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay or any benefit he may have suffered by reason of the Respondent's discrimination against him. (b) Preserve, and upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Expunge from its records the reprimand notices issued to Mary Drake and Robbie Anderson on August 14, 1974. (d) Post at its place of business in Prairie, Mississippi, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's represen- tative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 97 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the Federal law by discharging an employee because he engaged in union activities and by com- mitting other acts of illegal coercion: WE WILL NOT coercively question our employees con- cerning their union sentiments or activities. WE WILL NOT threaten to discharge our employees be- cause of their union activities. WE WILL NOT threaten to blacklist our employees against any further employment because of their union activities. WE WILL NOT spy upon the union activities or union meetings of our employees. WE WILL NOT request our employees to attend union meetings and to report to management the identity of employees participants. WE WILL NOT discharge or discriminate against any employees for engaging in concerted or union activities. WE WILL offer Johnnie Drake immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent position. WE WILL pay Johnnie Drake for any earnings he lost as a result of our discrimination against him , plus 6- percent interest. WE WILL expunge from our records the reprimand no- tices given to Mary Drake and Robbie Anderson on August 14, 1974. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to join or assist UBC, South- ern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. BURRIS INDUSTRIES, INC.