Marmon Group, Inc.

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marmon Transmotive, a Division of the Marmon Group, Inc.' and Calvin N. Braden, Roger Thomas Helms, and Edward N. Cooper. Cases 10-CA- 10825-1, 10-CA-10825-2, 10-CA-10914-2, and 10-CA-10914-1 July 14, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On February 26, 1975, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the counsel for the General Counsel filed limited exceptions with a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein. In agreeing with the Administrative Law Judge that Cooper and Helms were discharged for engaging in union or protected concerted activity, in violation of Section 8(a)(3) and (1) of the Act, we find it un- necessary to rely on the Administrative Law Judge's findings of disparate treatment. The record does not show that the Respondent had ever discharged any other employees for leaving the plant, as did Cooper and Helms, without clocking out either on a daily or on the regular weekly clock, and thus there is no ba- sis for comparing the Respondent's treatment of 1 The name of the Respondent appears as amended at the hearing. 2 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 Watt 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 The Administrative Law Judge, in his remedy and conclusions of law, did not make the specific finding that Roger Thomas Helms was refused pro- motion because he engaged in union and protected activity We hereby make that finding. 7 The counsel for the General Counsel excepts to the failure of the Ad- ministrative Law Judge to find that Helms and Braden would have been promoted at a date certain . Although we have agreed that Helms and Bra- den were refused promotion for discriminatory reasons, we find that the record does not demonstrate with any specificity when such promotions would have occurred had it not been for the Respondent's discriminatory action. Accordingly, we adopt the Administrative Law Judge's recommen- dations that the date such promotions would have occurred and the amount of backpay due these individuals should be left for compliance proceedings. Helms and Cooper and other employees in this re- gard. However, we find that the Administrative Law Judge's conclusion that the bases for the discharge of Helms and Cooper were not for the reasons stated, but were pretextual and to rid the Respondent of two active union adherents, is supported by a preponder- ance of the evidence: (1) the Respondent's animus toward Helms and Cooper was clear and was vocally expressed by Respondent's supervisors consistently and continually during approximately 6 months prior to their discharges; (2) a reason stated at the hearing for the discharges, that the two individuals were at- tempting to cause a "wildcat" strike, was clearly an afterthought, since it was not stated as the reason at the time of the discharges; (3) the alacrity with which the Respondent assumed Helms and Cooper had "quit"; and (4) the complete disinterest of the Re- spondent in investigating or checking Cooper's ex- cuse that he left because of illness and that Helms was required to leave to drive him home. The Chairman argues that it was not "inherently implausible" for the Employer to have discharged Cooper and Helms for leaving work without notify- ing their supervisors and without clocking out. From this she concludes that the General Counsel has not sustained his burden of showing that the discharge was discriminatory, citing P. G. Berland Paint City Inc., 199 NLRB 927 (1972). Yet it is plain, as noted above, that this departure of Cooper and Helms was not the reason for their discharge, but was an after- thought, a pretext, whose only relevance is to supply an inference that the Employer was concealing the true reason. It is therefore a non sequitur to conclude that, because the pretextual reason could have prop- erly justified the discharge had it been the real rea- son, the General Counsel's proof has failed. The lan- guage in Berland on which the Chairman relies does not mention the "pretext" issue; we consider the de- cision to embrace that point in its "unsupported by credible evidence" language, and thus regard the Chairman's reliance on it as misplaced. Unless it is so read, Berland does not correctly state the law. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Marmon Transmotive, a Division of The Marmon Group, Inc., Knoxville, Tennessee, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 219 NLRB No. 12 MARMON TRANSMOTIVE 103 1. Substitute the following for paragraphs 2(a) and (b): "(a) Immediately promote all employees who have not been promoted by reason of their having filed grievances or engaged in other activity, such promo- tion to be made in conformity with the section of this Decision entitled `The Remedy,' and make each such employee whole for any loss of earnings such em- ployee may have suffered by reason of such discrimi- nation in the manner set forth in the said section of this Decision. "(b) Offer to Roger Thomas Helms and Edward N. Cooper immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previous- ly enjoyed, and make each whole for any loss of earnings he may have suffered by reason of the dis- crimination against him in the manner set forth in the section of this Decision entitled `The Remedy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN MURPHY, concurring in part and dissent- ing in part: Although I agree with my colleagues in adopting the Administrative Law Judge's findings of unlawful conduct by Respondent in threatening employees with reprisals for filing a grievance , refusing to pro- mote employees Helms and Braden because they filed a grievance over their eligibility for promotion under the contract, and reprimanding Helms in retal- iation for his union activity , I dissent from my colleague's finding that the subsequent discharge of employees Cooper and Helms was discriminatorily motivated. The Administrative Law Judge found and it is un- disputed that at approximately 2 p.m. on September 3, 1974, employees Cooper and Helms left their jobs for the day without notifying their immediate super- visors and without clocking out. The Administrative Law Judge further found that they left their jobs with the intent to engage in a wildcat strike in violation of the no-strike clause in their collective-bargaining agreement. Notwithstanding these findings, the Ad- ministrative Law Judge concluded that Respondent discharged them the following day for discriminatory reasons, relying in large part on his finding of dispa- rate treatment in Respondent's discipline of another employee who also left work early that same day and who was only disciplined with a loss of holiday pay for the day before and was not discharged as were Cooper and Helms. My colleagues properly disavow that finding of disparate treatment since it is clear that this employee claimed he was sick, notified his supervisor that he was leaving and clocked out, and there was no other evidence in the record that any employee who left work for the day without permis- sion and failed to clock out was treated any differ- ently from Cooper and Helms. They nonetheless adopt the Administrative Law Judge's conclusion of unlawful discharge relying on other evidence of ani- mus which Respondent harbored against these two employees . In short, they find the reasons assigned to the discharge by Respondent to be pretextual. I dis- agree because I do not believe that the evidence is sufficient under the circumstances here to establish that the asserted reasons were not the real reasons for the discharge of the two employees. It is well established that, where an employee en- gages in misconduct which would provide the em- ployer an independent reason to discharge him, the fact that the employer welcomed the opportunity be- cause of the employee's prior union activities does not make the discharge violative of Section 8(a)(3) of the Act. As the Board stated in P. G. Berland Paint City, Inc., 199 NLRB 927, 927-928 (1972): On the record it is fair to assume that the Re- spondent entertained a desire to get rid of Rob- bins, whose union activities it resented, and was pleased to have an opportunity present itself for doing so. But that alone is not enough to estab- lish that the discharge was in violation of Sec- tion 8(a)(3). The mere fact that an employer may want to part company with an employee whose union activities have made him persona non grata does not per se establish that a subse- quent discharge of that employee must be un- lawfully discriminatory . If the employee himself obliges his employer by providing a valid inde- pendent reason for discharge-by engaging in conduct for which he would have been dis- charged anyway-his discharge cannot properly be labeled a pretext and ruled unlawful. Save where the reason itself is unlawful, it is not for the Board to substitute its judgment for that of management as to what constitutes prop- er cause for discharge . Unless the ground ad- vanced is inherently implausible, is unsupported by credible evidence, or is proved by the record to have been used disparately on the basis of unlawful considerations , its rejection by the Board is unwarranted... . Applying those principles to the facts here, it is certainly not "inherently implausible" to discharge employees because of their conduct in intentionally leaving their work stations without permission or even prior notification to their immediate supervisors and leaving the premises for the day without clocking out. And since I agree with my colleagues that there 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no evidence of disparate treatment in the discipline meted out to these employees, I would find that Gen- eral Counsel has failed to satisfy its burden of prov- ing the discharges were discriminatorily motivated and would accordingly dismiss the complaint allega- tions relating to their discharge .4 4 See also Formed Tubes Southern, Inc., 188 NLRB 12 (1971). APPENDIX privileges, and we will make each whole for any losses he may have suffered as a result of our discrimination against him. WE WILL immediately promote any employee who has not been promoted by reason of filing grievances or engaging in any protected or con- certed activity. WE WILL make employees who have been un- lawfully refused promotion whole for any losses they may have suffered as a result of Respondent's discrimination against them. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that we will not promote any employees who file griev- ances through United Steel Workers of America, AFL-CIO-CLC, or any other union. WE WILL NOT threaten our employees that it will be futile for them to file grievances through said union. WE WILL NOT refuse to promote any of our employees because they engage in union and protected concerted activities such as filing grievances or any or all protected concerted ac- tivities. WE WILL NOT give written reprimands to any of our employees because they file grievances through the Steelworkers or any other union or because our employees may engage in other union or protected concerted activities. We hereby withdraw the written reprimand given to Roger T. Helms and will clear from our records any and all reference to said reprimand. WE WILL NOT discharge any of our employees because they engaged in union and protected concerted activity such as filing grievances or any other similar activity. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to form, join, or assist, or be repre- sented by, the above-named union, United Steel Workers of America, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representatives of your own choosing or engage in other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Roger T. Helms and Edward N. Cooper immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and MARMON TRANSMOTIVE, A DIVISION OF THE MARMON GROUP, INC. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This proceeding was heard on October 23 and 24, 1974, at Knoxville, Tennessee, on the complaint in Case 10-CA- 10825-1 and 10-CA-10825-2 issued by the General Coun- sel on August 30, 1974, which complaint was based upon a charge filed by Calvin N. Braden, an individual, in Case 10-CA-10825-1 filed July 22, 1974, and a charge in Case 10-CA-10825-2 filed July 22, 1974 by Roger Thomas Helms, an individual, and a complaint issued by the Gen- eral Counsel in Cases 10-CA-10914-1 and lO-CA-10914- 2 based upon an original charge in Case 10-CA-10914-1 filed September 13, 1974, by Edward N. Cooper and a charge in Case 10-CA-10914-2 filed September 13, 1974, by Roger Thomas Helms and an amended charge in Case lO-CA-10914-2 filed September 26, 1974, by Roger Thom- as Helms. The complaints, consolidated for hearing by or- der dated October 2, 1974, allege, in substance, that Mar- mon Transmotive,I herein called the Respondent or Company, threatened employees that it would not promote employees who filed grievances with the Union, told em- ployees that it would be futile for them to file grievances, refused to promote Calvin N. Braden and Roger T. Helms because they engaged in union and protected concerted activities, issued a written warning to Roger Helms because he engaged in such activities and, finally, discharged Roger T. Helms and Edward N. Cooper because they engaged in the foregoing activities, all of which violated Section 8(a)(3) and (1) of the National Labor Relations Act, herein called the Act. The Respondent's duly served answer, while admitting certain allegations of the complaints, denies the commission of any unfair labor practices. At the close of the hearing, the parties waived oral argument but thereaf- ter submitted briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration giv- en to the contentions advanced by the parties in their briefs, I make the following:2 1 The name of the Respondent appears as amended at the hearing 2 To the extent that I credit a witness only in part , I do so on the evidenti- MARMON TRANSMOTIVE 105 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Marmon Transmotive, herein called the Respondent or the Company, is an operating division of The Marmon Group, Inc., a Delaware corporation qualified and doing business in the State of Tennessee . During the calendar year immediately preceding the issuance of the complaints herein, a representative period, the Respondent purchased and received supplies of a value in excess of $50,000 direct- ly from suppliers located outside the State of Tennessee. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO-CLC, here- in called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues According to the complaint and contentions of the coun- sel for the General Counsel, the Respondent sought to dis- criminate against the employees mentioned heretofore be- cause of a grievance filed by certain employees and processed by the Union over the fact that the Respondent failed to promote certain employees at the time that such employees requested promotion. The General Counsel fur- ther complains and contends the Respondent not only threatened employees with failure to promote because they filed grievances, but actually carried out this threat. Addi- tionally, the Respondent, according to counsel for the General Counsel, gave employee Helms a written repri- mand for his part in the grievance filing and processing and, ultimately, discharged employees Cooper and Helms for a like reason. The Respondent defends, contending in the first place that the employees had no absolute right to promotion but that such promotion was within the purview of the Respondent's discretion under its contract with the Union, and, furthermore, that when it was determined by the Em- ployer that progression from one classification to another constituting promotion became necessary by reason of the Respondent's workload, such promotions were made. Ad- ditionally, the Respondent defends and states that the writ- ten reprimand given to employee Helms was for cause in that Helms was not performing up to standard and was not, in fact, performing at all times while he was supposed to be working. Additionally, the Respondent defends the discharges of Helms and Cooper on the ground that they violated a company rule in that they left their work without ary rule that it is not uncommon "to believe some and not all of a witness' testimony." N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2). permission and without clocking out as required of all em- ployees and, furthermore, because they were seeking to in- fluence and force other employees to engage in a walkout in violation of the aforesaid collective-bargaining agree- ment. B. The Facts 1. The contractual provisions and the history of promotions in the Respondent's plant It is undisputed that before the current collective-bar- gaining agreement between the Respondent and the Union, the effective date of which is March 9, 1973, pro- motions within the plant from lower to higher classifica- tions were automatic after a 30- to 60-day probationary or trial period. This promotion, of course, included a raise in hourly wage rates. This procedure resulted in an imbalance in the assembly department so that as of November 20, 1972, there were no assemblymen class II in that depart- ment but only assemblymen class I, the higher classifica- tion. According to the Respondent, it sought to rectify this situation by the agreement between the Respondent and the Union dated March 9, 1973. Section 10, job promotion, of the said agreement would seem to indicate that from that date on, movement from classification II to classifica- tion I is not to be automatic, but in the event an employee applied for promotion and was denied the same, the em- ployee could file a grievance. However, since that date, the Union and employees have maintained that automatic pro- motion is still in effect or, at least, some of the employees maintain automatic promotion is still in effect. The Com- pany maintains that promotions are to be made only on qualification of the employees by their work and acquired skill and the decision by the Respondent that employees in the next higher classification are actually needed for the Respondent's production purposes. 2. The request for promotion in October 1973 and the resultant grievance Roger T. Helms who was employed by the Respondent on August 27, 1973, as an assemblyman class II, requested of his foreman, William C. Duncan, around the first of November 1973 to help him get a promotion to a position as assemblyman class I . Duncan consented, stating that he thought Helms could do the work and would speak to Plant Manager Donald Durben. Later that day, Duncan reported back and told Helms that Durben had said that the Respondent was in the process of changing its name and it would be January 1974 before anyone could be pro- moted to assemblyman class 1.3 Thereupon, Helms told Duncan that Helms would file a grievance through Shop Steward Edward Cooper. Accordingly, a grievance was timely filed by Cooper on November 26, 1973, raising the issue as to whether the advancement from assemblyman 7 The name of the Respondent on March 9, 1973, the date of the collec- tive-bargaining agreement between the Union and the Respondent was Long-Airdox Company, a division of The Marmon Group, Inc The change in name did not affect the contractual relationship. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD class II to assemblyman class I was automatic or required first that the assemblymen class II be qualified for the class I position, and secondly, depending on whether the Re- spondent, in its judgment, needed class I assemblymen. This grievance, filed November 26, 1973, was signed by employees Helms, Calvin N. Braden, one of the Charging Parties herein, and two other employees, Allen Mynatt and Ronald Munsey. Before Cooper filed the grievance on behalf of the four employees, he spoke to Supervisor Duncan and told the latter that there was no reason why the men could not be "set up" until January ("set up" means "promoted"). Cooper said that the contract had nothing to do with the Respondent changing its name. He thereupon told Duncan that he would have to file a grievance on behalf of the complaining employees. Duncan then told Cooper, "Coop- er, now there you go again. Now you have filed a grievance and now you are going to make the old man mad and then they won't never get set up." Evidently, the term "old man" refers to R. C. Crosby, general manager of the Re- spondent. In any event, the grievance filed by Cooper was processed through the various grievance steps. It ultimately went to arbitration which arbitration matter was heard on June 3, 1974.° David Gray Munsey had a conversation with Duncan 2 to 3 weeks after the grievance was filed. Duncan told Mun- sey that if the employees had not filed the grievance and had waited until the time (probably after the first of the year) the employees probably would have been promoted. However, because they filed a grievance and made the "old man" angry, they would not be promoted because the "old man" did not like to be pushed into anything.5 In about the middle of March 1974, Shop Steward Coop- er had a conversation with Duncan. This was shortly after the Union and the Respondent had gone through the third step of the grievance procedure. At that time, Duncan told Cooper "You know what will happen to that grievance, it will end up just like the rest of them, in the garbage can." 6 Employee Ted Myers who was promoted to stockman class I shortly after the arbitrator's decision on the griev- ance was handed down on July 3, 1974, testified that some time in May of that year, in the stockroom, Stockman Foreman Samuel Stallings told Myers that Stallings was trying to get the latter "topped out" for quite a while but that Durben, plant superintendent, was afraid to "top out" Myers because of the grievance that had been filed by Cooper.' ° All of the foregoing from credited portions of the testimony of Helms, Braden, and Cooper Duncan did not deny making this statement. In fact, on cross-examination, Duncan admitted that it was possible that he made such statement. S From the testimony of Munsey who is still working for the Respondent as an assemblyman class I and who was subpenaed to testify. Again, Dun- can did not specifically deny this conversation but, rather, admitted that it was possible he made the statement to Munsey. 6 From the credited testimony of Cooper Here again, Duncan's admis- sion that he might have made such statements to employees does not consti- tute a denial of the statement to which Cooper testified. r From credited testimony of Myers who was still working for the Re- spondent at the time of the hearing herein , was subpenaed to testify. and had nothing to gain by this testimony. Stallings admitted that he did make a statement that if he could , he probably would wait until after the decision In addition to the foregoing, Cooper also credibly testi- fied to the same incident involving Myers and Stallings. During that conversation, Stallings told Cooper that if Cooper had not filed the grievance "a lot of the boys could have been topped out now." Shortly thereafter, employee Ronnie Joe Williams, who has been employed by the Respondent for approximately 9 years and is an assembly electrician class II, pay grade 2, at approximately the middle of June 1974 had a conversation with Duncan in the assembly department. Duncan told Williams that "If the boys hadn't filed a grievance then some of them would be set up by now" or words to that effect.' Williams also had two conversations with assistant fore- man of the assembly department, Julius W. Peffley. The first conversation took place during the first or second week of July in the assembly department. Peffley told Wil- liams, ". . . If the boys had not filed the girevance .. . then some of them would be set up by now." The second Peffley conversation took place approxi- mately July 19. Present also were Edward Cooper and Helms. Helms was talking with Peffley and Williams heard only the last part of the conversation in which Peffley stat- ed that if the boys had not filed the grievance some of them "would have been set up by now." Again, on July 19 in the stockroom, employee Myers, whom I have heretofore credited, told Peffley that it looked as though Peffley could help Helms get promoted. Peffley answered that he probably could have done so before the grievance was filed but not since. Peffley added that when the employees filed the grievance, they took the matter out of his hands.10 In the same vein, Charging Party Braden had a conver- sation with Foreman Duncan of the assembly department. This occurred on August 7, the day after Braden was pro- moted from assemblyman II to assemblyman I. Duncan told Braden that if the latter had not filed a grievance, Duncan could have gotten him promoted sooner." of the arbitrator to recommend promotion. On the basis of the foregoing and on my observation of the witness , I credit Myers. 8 Again, Duncan did not deny making this above statement to Williams, but, rather, merely testified that he could not recall it On my observation of both of these individuals, and inasmuch as this testimony as given by Wil- liams is similar to that given by other employees whom I have credited, I credit Williams. Moreover, Williams is still employed by the Respondent and still subject to whatever pressures Respondent could legally place upon him Additionally, Williams was subpenaed to testify at the hearing and is not a member of the Union 9 From the credited testimony of Williams as corroborated by Helms and Cooper. 10 All of the foregoing from credited portions of the testimony of Helms, Cooper, Williams, and Myers Peffley did not specifically deny these con- versations but stated that he could not recall them However, in testifying. Peffley did admit that when employees were asking what he could do to get them promoted he had told them that since the grievance had been filed it was no longer in his hands to say who should or should not be promoted 11 From the credited testimony of Braden Duncan again did not specifi- cally deny this conversation but merely stated that he could not recall hav- ing made such statement to Braden. I credit Braden, not only on the basis of the fact that I have heretofore discredited Duncan, but also on the basis of Braden's demeanor while testifying and because of the fact that Braden had already been promoted and could not gain anything by this testimony MARMON TRANSMOTIVE 107 3. Respondent's defense regarding promotion matters The Respondent argues that, in the first instance, the above set forth expressions and statements by its various low level supervisors were nothing more than opinions which did not express a policy of the Respondent and did not set forth the Respondent's actual reasons for failing to promote the individuals who filed grievances until after June 3, 1974, the date the grievance was ultimately heard by an independent arbitrator. Instead, the Respondent sets forth its economic defense through documentary evidence and the testimony of General Manager Crosby and Plant Superintendent Durben together with the explanatory testi- mony of Comptroller J. I. Oglesby. As claimed by Crosby, the Respondent does not recognize under the existing con- tract that promotions are automatic but, rather, are made only when (a) the Respondent has a need for persons in the classification to which promotions may be made and (b) the individuals who desire promotion into that classifica- tion are qualified to fill the higher classification. Then, ac- cording to both Crosby and Durben, at the time in 1973 when Helms and the others requested of Duncan that they be made assemblymen class I there was no need for class I assemblymen because, in fact, the Respondent's business at that time was such, and its projected production sched- ule was such, that for the time being, at least, there was no necessity to create additional assemblymen class I jobs. In support of this testimony, the Respondent submitted in evi- dence three documents. The first document is a production schedule which, al- though Respondent's testimony sought to explain, is mean- ingless by reasons of various symbols that do not explain what work is required in each department and how much time is involved by that department of any particular item of manufacture. Actually, according to Crosby, this docu- ment is a scheduling sheet or order sheet, which represents the dates in 1974 upon which the items are scheduled to be completed. This sheet shows the names of the company and the items themselves which are represented by symbols rather than names and are therefore unintelligible to the reader unfamiliar with the meaning of the symbols and, moreover, does not indicate in what department or how many production hours in that department will be required to produce any specific item. Nor does it show in any re- spect what classification of employees are necessary or the number of employees so classified which would be neces- sary to complete the respective items in accordance with the requested delivery dates on the orders for those items. Respondent's Exhibit 2 and Respondent's Exhibit 3 are comparisons, according to Crosby's testimony, which can be compared to show a pattern of orders for manufactured items during the period of July 1973 to December 1974, a period of approximately 1-1/2 years and covering the times during which the disagreement between the Union and the Respondent occurred over the progression of employees from a lower classification to a higher classification. How- ever, here again, especially in Respondent's second exhibit, although the exhibit shows monthly labor hours it does not show by classification what employees are necessary and, although it shows an increase of hours toward the end of 1974, which would indicate an increase in the number of total hours of production within the Respondent's plant, it does not show whose production by classification is neces- sary to meet the increased demand for Respondent's prod- ucts. Otherwise put, it does not show what man hours are necessary for what classification. This being so it does not reflect, with any degree of accuracy, the number of assem- blymen class I which would be necessary to fill the orders on hand and to be completed for the period from Novem- ber 1973 until September 1974 during which the incidents which are the basis for the alleged unfair labor practices charged herein occurred. Additionally, the same conclusion is made with regard to the third document submitted by the Respondent in support of its economic argument. Moreover, the Respondent's second exhibit which shows labor hours for certain months in 1973 is not broken down by departments whereas Respondent's third exhibit shows labor hours for months of 1974 broken down by departments so that, as a result, no real comparison can be made because each ex- hibit shows something different. Additionally, Comptroller J. I. Oglesby, whom I credit and find to be a most reliable and forthright witness, admitted in his testimony that these exhibits were merely historical documents which can only be compared to show productive hours and cannot be uti- lized to estimate future productive hours or needs. Accord- ingly, I find and conclude that these documents do not support the testimony of Crosby and Durben to the effect that there was no necessity to promote any of the individu- als involved in the grievance until some time in July or August 1974. One other document was submitted by the Respondent. This is an untitled "spread sheet" which shows, according to Durben who prepared the document, the assembly de- partment load or projected load by all open orders in the house either as the Respondent had them scheduled throughout the month or a customer's requested schedul- ing date or delivery date. This sheet, according to Durben, he prepared from what is called the monthly sheets which were the first exhibit of the Respondent. Durben testified that he prepared this document himself and prepares it only for his own purposes and "only when I feel it would necessary for my own beneficial use." It should be noted in connection with this document that it was prepared only I week before the hearing herein was held. Obstensibly then, I find and conclude that this was prepared solely for the purpose of the hearing herein and is therefore somewhat suspect as a self-serving document. Since it is prepared only when Durben feels it is necessary, it is not necessarily a document kept in the regular course of business. Its evi- dentiary value, therefore, is somewhat questionable. Since the foregoing documents, in my opinion, do not sustain the burden for which the Respondent introduced them into evidence, I turn to the testimony, or the sub- stance of the testimony of Crosby and Durben, and espe- cially Crosby, to the effect that due to the energy crisis and other problems, which could have been lack of production on the part of Respondent's suppliers and other such items, the buildup of orders in December 1973 through January 1974 did not materialize as fast as hoped for. Starting in 1974, however, the production forecast indicated enough substantial orders to warrant an increase in the work force 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that therefore the buildup commenced in all depart- ments including assembly. However, since assembly is nor- mally the last department involved in the production of a product it would be last to feel the effects of such a build- up. 4. Conclusions with regard to the economic defense Were this testimony to be accepted then it could explain the reason that the Respondent did not fill the assembly- men class I jobs until such became necessary in the assem- bly department late in the spring of 1974. However, I must assess Crosby's and Durben's testimony in the light of find- ings heretofore made with regard to what was stated to the various employees with relation to the reasons why they were not promoted. Duncan, the foreman and chief operating head of the assembly department, as stated above, engaged in a num- ber of conversations with various employees in which he emphatically stated that were it not for the filing of the grievance the employees would have received their promo- tions long before they received them. Certainly, the chief foreman of a department cannot be considered a minor official who would not know why the principal officers of the Company did certain things. Additionally, the fact that Duncan worked closely with Durben is brought out, as hereinafter set forth, in their alleged discussion as to why Helms and Cooper were discharged or were to be dis- charged on September 3, 1974. In addition to the fore- going, there is also conflict between the testimony of Dur- ben and Duncan. Duncan testified Durben told Duncan in November 1973, when Duncan related the request for pro- motion to Durben, that the Respondent would take up the matter of promotions after the first of the year. However Durben denies or rather could not recall making a "flat statement" that there would be assemblymen first jobs af- ter the first of the year; i.e., after the name of the Respon- dent was changed . However, Duncan testified "I told them the first of the year, that's what Mr. Durben said .. . around the first of the year when we changed over." Be- cause of the other matters which occurred between No- vember 1973 and July 1974, I conclude that Duncan's ver- sion of the conversation between Duncan and Durben with regard to the promotions at the end of November 1973 is the more reliable and that Durben did tell Duncan that Respondent would reconsider the promotion matter in the assembly department after the changeover of name imme- diately after the first of the year 1974. It should be noted that this conversation occurred before Helms and the others protested to Cooper their failure to be promoted from assemblymen II to assemblymen I and before Cooper filed the formal grievance on behalf of these employees. Accordingly, I find and conclude that at the time of the first refusal of promotion in November 1973, Duncan re- lated the Respondent's intention to reconsider the matter after the first of the year but that after the grievance was filed the Respondent decided that it would not make any promotions until it was determined by an arbitrator that such promotions would have to be made in accordance with the terms of the contract. I, therefore, find and con- clude that the statements made by the various supervisors including Peffley, Duncan, and Stallings reflected the actu- al promotion policy of the Respondent made after the No- vember 27 grievance was filed and was made in retaliation for the filing of such grievance. This being so, I find and conclude that the Respondent, as set forth in the com- plaint, did fail and refuse and continues to fail and refuse to promote employees Braden and Helms because they en- gaged in union and protected concerted activity of filing grievances with regard to Respondent's failure to promote them in November 1974. In so finding, however, I do not find that promotions are automatic or that the contract required automatic promotions. I find, however, that the Respondent's refusal to promote these individuals was based not on the terms of the contract but, rather, because the employees filed the grievance pursuant to such con- tract. Additionally, I find that the statements above set forth made by Duncan, Peffley, and Stallings were threats of refusal to promote because the employees filed grievances. Such threats constitute interference with employees' Sec- tion 7 rights and are, therefore, violative of Section 8(a)(1) of the Act. C. The Written Reprimand of Roger Helms As hereinabove set forth, Helms and Braden, together with two other employees were the grievants in the griev- ance filed by Cooper, the shop steward, in the latter part of November 1973. It was Helms' impression, at that time, that promotion from an assembly class II to assembly class I was automatic. This was by reason of the fact that Helms had been employed by the Respondent at an earlier time and in that earlier employment he had been automatically promoted from class II to class I after his original proba- tion period. When Helms applied for reemployment and was reemployed on August 27, 1973, there was no hesita- tion to reemploy Helms. Therefore, it must be assumed that during his first employment with the Respondent Helms performed satisfactorily. Hereinabove, the reactions of the various company offi- cials and supervisors have been set forth, which reactions clearly displayed the Respondent's officials' feelings with regard to the filing of the November 1973 grievance. On July 3, 1974, the arbitrator rendered his decision in the foregoing grievance. In that decision, the arbitrator held that although promotions under the then current collec- tive-bargaining agreement were not automatic and the po- sitions to be open for promotion were for the Respondent to decide, nevertheless, he also decided that Braden and Helms, both assemblymen class II, qualified for promotion to assemblymen class I. Shortly thereafter, Braden was promoted from class II to class I, but Helms was not. Approximately the middle of August, Helms acted as shop steward for a period of 2 weeks while Cooper, the designated shop steward, was on vacation. During that time, employee Donald Baker reported to Helms that Bak- er had decided to file a grievance because Calvin Braden had been promoted to assembly I and Baker had more seniority than Braden. Thereupon Helms, in his capacity as acting steward, informed Foreman Duncan. Duncan then told Helms that Donald Durben, the plant manager, would MARMON TRANSMOTIVE 109 handle the matter . Upon receiving this information, Helms spoke to Alex Rhymer , president of the union local. As a result a meeting was held between Helms, Durben, Baker, and some of the union committeemen . However, the meet- ing accomplished nothing and , as it broke up, Helms an- nounced that "they" would file a grievance with regard to the Baker matter. On August 27, 1974, shortly after Helms had acted, or perhaps during the time that Helms acted as shop steward, and shortly after Helms stated that a grievance would be filed with regard to the Respondent 's failure to promote Baker, Helms received a written reprimand signed by Fore- man William Duncan . Helms testified that he had never been reprimanded in any manner prior to this date. How- ever, the reprimand stated that in the recent past Duncan had discussed with Helms the latter's indifferent , careless, and inefficient work habits . It further stated that the writ- ten reprimand was a warning in confirmation of the verbal admonitions which Helms had received for failure to deliv- er the amount of work required of him and that if the inferior performance continued it could result in additional and further disciplinary action including layoff or possible discharge. In contrast to Helms' testimony that he had never re- ceived any verbal warnings, criticism, or reprimand or had been counseled about his work, Foreman Duncan testified that during the weeks before the written reprimand was handed to Helms by Duncan , Helms had been warned time and time again with regard to his work attitudes. However, Duncan referred to only one specific matter. He testified that he gave an oral reprimand to Helms within 2 weeks before the written reprimand. This oral reprimand was given to Helms and to another probationary employee. Duncan told them to get to work and stop "pecking" at a chain which they were making . According to Duncan, they were not hitting the links hard enough to have any effect on the metal and, therefore, the work was not progressing. Additionally, both Peffley and Duncan testified that at the arbitration hearing on June 3 , 1974, they stated that they did not consider Helms to be an assemblyman class I. On the morning following the June 3 arbitration hearing, according to General Manager Crosby and Assistant Fore- man Peffley, they spoke to Helms when they saw him lean- ing against a machine, doing nothing . Helms testified that this was because he needed blueprints to do the work that was assigned to him and he did not have a set of blueprints to work from. According to Helms, at that time Crosby told Helms that Crosby was going to make an example out of Helms before all the other men of the Company. On the other hand, Peffley testified that on the morning of June 4 Helms told him that if Helms was not promoted and re- mained an assemblyman class II, he would require a fore- man to tell him exactly what to do in detail. Helms did not deny this, he merely testified that he had a conversation with Peffley on that date and that he had a misunderstand- ing with Peffley . Crosby denied that he ever made a state- ment to Helms to the effect that he would make an exam- ple of Helms. Peffley further testified that a reoccurrence of this same type of incident took place on the morning of June 5. At that time, according to Peffley , he noticed Helms standing, doing nothing again. Peffley asked what the problem was this time. Helms answered that he was waiting for someone to help lift a battery off a truck on to the floor. Evidently the battery was to be used in the work that Helms was assigned to perform. According to Peffley he .then told Helms that Helms did not have to wait for Peffley to give him permission to get someone to help him take the battery off the truck; that there were able bodies nearby who could have helped him if Helms had merely asked. Peffley testi- fied further, in general terms without pointing to any spe- cific incident, that during the entire period from that time until the written reprimand was given to Helms, Helms' work attitude was bad; he simply was not performing. Peff- ley stated that Helms did not "put out" sufficient quality or quantity of work, no matter what work was assigned to Helms. From the testimony of both Crosby and Duncan it is apparent that it was Crosby, the general manager of the Respondent's Knoxville facility who ultimately wrote, worded and had typed the written reprimand given to Helms. It was further testified by Duncan and Crosby that they had a discussion with regard thereto because of the fact that Crosby had earlier told Duncan and Peffley to see what they could do to straighten out Helms' attitude to- ward Helms' work. Donald Durben, the plant superintendent, also had a hand in the ultimate written warning to Helms. He testified that failures on the part of employees to perform are al- ways discussed with him by the various foremen of the various departments. He further testified that when Peffley and Duncan spoke to him about Helms' poor performance in the early part of June around the time of the arbitration hearing, he told Duncan and Peffley to keep notes on the performance and warnings given to Helms. As a result, Peffley made notes of the verbal warnings given by Peffley to Helms with regard to Helms' behavior during that peri- od. These were used by Peffley to refresh his recollection in testifying and were ultimately received in evidence. These warnings all pertain to the incidents which occurred a day or two after the hearing before the arbitrator on June 3. In addition to all of the foregoing, Duncan testified that the employee with whom Helms was working on the chain when they were allegedly reprimanded by Duncan for merely pecking at the chain was discharged a few days later by Duncan for failure to perform. Respondent points out that it would seem rather peculiar that although Helms testified he was told by Crosby on June 4 that Crosby was going to make an example of Helms, neither Cooper, nor any other employee, substanti- ated this portion of Helms' testimony. Certainly, Cooper is not only a friend, but was also the shop steward who would have been told by Helms of the incident not only because of the closeness between the two men but also because of what had occurred the day before at the hearing and in the months preceding the hearing. Certainly, at this time Cooper and the other employees would have been very much aware of the Respondent's attitude toward the griev- ances and that the statement by Crosby to Helms would have been a further indication of the Respondent's annoy- ance, to say the least, with regard to the filing of the griev- ances and toward the individual grievants, of whom Helms 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was one. Respondent argues that Cooper, who testified in great detail with regard to many matters, did not even mention the alleged threat by Crosby to Helms. But he was not asked about the matter. I conclude, therefore, that Crosby did make the threat to Helms. I conclude further that Helms was merely "gilding the lily" by his testimony relating to this incident. After he received the written reprimand, Helms in- formed Union President Rhymer about the matter and Rhymer set up a meeting held 2 days later with General Manager Crosby at which Helms, according to Helms' tes- timony, told Crosby that Helms had never received any verbal reprimands. According to Helms, Crosby said that a further meeting would be held with Duncan and Rhymer and that the reprimand would probably be dropped. But when Helms asked if Cooper could represent him at the meeting Crosby answered, according to Helms, "in no way." Although Crosby did not deny this statement in his testimony, he was not asked a question as to whether he made such statement. With regard to that meeting held after Helms had received the written reprimand, according to Crosby the meeting was with an International represen- tative of the Union and with members of the assembly shop, the steward (Cooper), and other people, and Rhymer, the local union president. The written reprimand was dis- cussed and there was also a general discussion about the lack of communication between the steward and the de- partment foreman. At the International representative's suggestion, Crosby then suggested that Helms and Duncan get together either privately or with Crosby who would be glad to participate and that the Union could participate also to discuss how to iron out the differences between Helms and Duncan. According to Crosby's testimony, both Helms and Duncan stated that they elected to iron the matter out between themselves. I have heretofore found that the Respondent was ag- grieved and annoyed at the filing of the November 1974 grievance regarding promotion, and have also found that it refused to promote any individuals until after the grievance was resolved and the arbitration decision was handed down on July 3, 1974. I have further found that this refusal to promote and the statements of the various supervisors and company officials were violative of the Act. It is prob- able and within the realm of human experience that after Helms failed to receive his promotion as did Braden and employee Myers, subsequent to the arbitrator's decision, Helms would have been quite naturally disappointed and disgruntled. This would be consistent with Helms admit- tedly telling his supervisors that inasmuch as he was only an assemblyman class II and not an assemblyman class I, he was not going to do anything on his own initiative in working for the Respondent, and would wait for specific instructions on each item of work before he would perform such work since no more was expected of a class II assem- blyman. Moreover, at the times that Crosby and Peffley allegedly discovered Helms doing nothing, when Helms stated that he did not have instructions from his superiors as to what to do, the matters to be performed by Helms were of such trivial nature that even a new employee would have known what to do. Thus, it is entirely possible that Helms did not have the blueprints to do the work on one occasion but could readily have found his foreman, Dun- can, or his assistant foreman, Peffley, with ease because when Crosby was informed by Helms that he did not have instructions Crosby immediately was able to locate the foreman to get the instructions to Helms. If Respondent's witnesses are credited, Helms certainly could have ob- tained the same instructions with minimal effort. Likewise, when Peffley allegedly asked Helms on the following day why the latter could not pick up the battery, or why he did not ask for assistance from fellow employees, Helms dis- played another indication of unwillingness to work to even a normal or. average worker's standard. However, I have considered this testimony in the light that these foregoing incidents occurred early in June and that the written warning was not given to Helms until after Helms had been acting steward in Cooper's absence. This was in the middle of August, approximately 2 months after the above set forth incidents took place. I have further taken into consideration the fact that the letter of repri- mand was composed and ultimately typed in Crosby's of- fice. While the record does not show how many employees were employed in the Respondent's plant at the time, it would seem that it was a large enough facility so that the head of the entire operation would ordinarily not have had to be consulted with regard to issuance of a written warn- ing by a department foreman. Additionally, Foreman Duncan could testify specifically to only the single "chain pecking" incident as occurring during the 2-week period before the written reprimand was given to Helms. There- fore, on the basis of all of the testimony and all of the facts above set forth, I find on the record as a whole that the reprimand was given because Helms had threatened to file a grievance on behalf of employee Baker, or had himself filed as a grievant regarding the promotion matter the lat- ter part of November 1973, and not because Helms might have, in fact, failed to perform satisfactorily at all times. Accordingly, because the reprimand was given for discrim- inatory reasons, I find that the giving of the reprimand was violative of Section 8(a)(3) and (1) of the Act.12 D. The Discharges of Helms and Cooper It is undisputed that on September 3, at approximately 2 p.m., Helms and Cooper left the Respondent's plant with- out clocking out either at the timeclock or on their daily worksheets. It is further undisputed that when they arrived at work the following morning, September 4, their time- cards were not in the rack and that they were told by Shop Superintendent Durben that inasmuch as they had not clocked out before leaving, or without telling their fore- man, that the Respondent considered that Cooper and Helms had quit. There is further no dispute that Durben then sent for Duncan who denied that Cooper had asked him for permission to go home and that Durben then said the Respondent considered they had quit and instructed both Helms and Cooper to get their toolboxes and leave the plant. However, there is considerable dispute as to 12 Helms denied that he told Peffley, in effect, he would do nothing unless specifically instructed but admitted he and Peffley had a misunderstanding that morning MARMON TRANSMOTIVE 111 what actually occurred on September 3 before and after Helms and Cooper left the plant. I have heretofore discussed a number of incidents which occurred and which involved employee Helms. To under- stand fully the context in which they were discharged, it is necessary to trace the relationship between Cooper and his immediate superiors during the period from the autumn of 1973 until his discharge on September 3, 1974. As hereto- fore noted, during this entire period Cooper was the desig- nated shop steward. It was Cooper, who on November 26, 1973, filed the grievance with regard to the promotions of the four employees among whom were Braden and Helms. I have heretofore found violative Duncan's statement to Cooper upon Cooper's filing the grievance on behalf of the complaining employees to the effect that "Cooper, now there you go again. Now you have filed the grievance and you are going to make the old man mad and then they won't never get set up." Cooper further testified that al- though he and Duncan did not have personal problems, whenever Cooper took anyone's part in his capacity as union steward in the assembly department , Duncan would act resentful and upon a number of occasions called Coop- er a "troublemaker." Cooper further testified that Duncan tried to make Cooper look small and additionally called him an agitator and instigator. As an example, Cooper tes- tified that an employee, David Munsey, was absent I day. When Munsey returned, Duncan asked Munsey for a doctor's excuse . Munsey and Duncan got into an argument over the matter and Cooper, overhearing, stepped in as shop steward and representative of Munsey. Cooper told Duncan that, if the latter required one employee to bring a doctor's excuse, he should require it of all employees. In- stead of giving Cooper an answer, all Duncan replied was, "Cooper, you're just a troublemaker." That this incident occurred is affirmed by employee Munsey who testified to virtually the same language as did Cooper. It should be noted that Munsey was still in the employ of the Respondent at the time of the hearing here- in. Moreover, Duncan did not deny calling Cooper a trou- blemaker and Respondent admits that in this instance, at least, Duncan obviously lost his temper. I have also found that, at another time, when they were talking about the grievance filed on behalf of the four em- ployees in the assembly department , Duncan stated that the grievance would be thrown in the garbage can. That the Respondent's supervisory personnel and higher offi- cials did not regard the entire matter of the grievance with- out resentment is amply set forth, above, in this decision. That Helms also was not very highly regarded by the Re- spondent is demonstrated by the written reprimand. We come then to the date of September 3, 1974, con- cerning which there is much conflicting testimony. Accord- ing to Cooper, during the early part of that day he told Foreman Duncan that he was not feeling well and that if he did not feel better later in the day he would be leaving. He also testified that he told Duncan that he would ask Roger Helms to drive him home in the event that he had to leave. According to Cooper, he remained at work until just after the afternoon break which was between 1:45 and 2 p.m. Before that, however, he had informed Helms that he was ill and asked that Helms take him home and further informed Helms that Duncan had given him permission to leave and permission for Helms to leave with Cooper in order to drive Cooper home. Helms confirmed the latter part of this testimony and stated in testifying that he was told by Cooper at that time that Cooper had received per- mission from Duncan for Cooper to leave if he did not feel well and for Helms to drive him home. According to both Cooper and Helms they left the plant about 2 p.m. and forgot to either sign out on their weekly sheet or to clock out at the timeclock. According to both of them, they went directly to Cooper's home stopping only a couple of times when Cooper became nauseous and feared that he would have to vomit. Both Cooper and Helms steadfastly main- tained, in testifying, that this was their sole and only reason for leaving. They further testified that they told no other employee any different story. Cooper further testified that he told some employees he was leaving because he was sick. However, there is no corroboration of this particular phase of the incident by any of the employees whom Coop- er allegedly told he was ill and was leaving. In fact, the only employees who testified at all with regard to Cooper and Helms leaving on September 3 were insistent in stating that they were informed by either Helms or Cooper that the two were leaving to strike and asked the individuals to walk out with them and support their movement. Thus, Luit McGinnis, whom I credit, and was subpenaed to testi- fy and was not anxious to do so, testified that on that day, which he remembered as the day after Labor Day, during the afternoon break between 1:45 and 1:55 p.m., Helms asked McGinnis if McGinnis would "go out with him." McGinnis told Helms that he would not go. As a matter of fact, McGinnis told Helms that it was the wrong thing to do. McGinnis admitted that Helms did not mention Coop- er to him at this time. 13 Also, employee Jack H. Marley testified, upon being subpenaed, that after lunch on Tuesday, September 3, Cooper made the statement that "We were going out at break." Marley testified that he did not know who Cooper meant by "we." He stated definitely that Cooper did not tell him that Cooper felt ill.14 Another subpenaed employee, Vestal Newton, testified 13 I especially noticed McGinnis' behavior on the witness stand He was a most reluctant and frightened witness It was quite evident from his actions and from his general demeanor on the stand that he did not happily testify against Helms, his former fellow employee Nor was there anything in his cross-examination which would indicate in any way that McGinnis was not completely truthful . Moreover, employee Bill Foster testified that he was standing by when Helms was having this conversation with McGinnis and Foster's testimony in many respects supports McGinnis completely 14 Marley on cross-examination admitted that he did not tell the Compa- ny about this particular incident until just before the arbitration proceeding concerning the discharges which took place a few weeks before the hearing in the instant case Moreover, when asked if he had left the plant immedi- ately after the arbitration proceeding without clocking out, Marley admitted that he did However, on redirect examination Marley testified without con- tradiction that he left the plant to go on an assignment for the Respondent in another State and that therefore he was still on company time when he left and was not required to clock out under the circumstances . Although I am not as certain of Marley's testimony as I am of McGinnis, I nevertheless find nothing in either Marley's demeanor or in his testimony which would indicate that he was not telling exactly what occurred insofar as he remem- bered it 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had a conversation with Cooper on the afternoon of September 3. This occurred some time around the af- ternoon break. Newton testified that Cooper told him "That he had worked hard for us and he was going out. We could go out if we wanted to or we could stay in." Newton further testified that Duncan saw them having the conver- sation and came over and asked them what was going on. Newton answered that he did not know and, in testifying, Newton stated that he still did not know what was going on. However, when questioned, Newton further stated that Cooper neither mentioned that Cooper was ill at the time nor did he appear to be ill. On cross-examination Newton remained adamant in his testimony and could not be shak- en. He stated after being asked what Cooper's exact words were "The only words he said to me is he has worked for us hard and we could stay in here if we wanted to or we could go out and he was going out." I credit Newton. Duncan, who admitted in testifying that he had called Cooper a troublemaker and other names when Cooper had acted in his capacity as shop steward, testified that on the afternoon of September 3 Helms was working down the line in the assembly department near Assistant Foreman Julius Peffley and Duncan was at the other end of the assembly department near where Cooper was working on a yard control project. About 5 minutes before 2 p.m. Dun- can saw Cooper and Helms walking by, Cooper with a paper lunchbag in his hand and Helms with his lunchbox. Duncan further testified that he thought that they were going to the washroom to put up their lunches. However, when they did not come back out into the department he went into the washroom, looked for them and could not find them . He then went to Peffley and asked the latter if he had given them permission to leave. Peffley answered in the negative. He then went to Shop Superintendent Durben and asked him if he had given Cooper and Helms permis- sion to leave. Durben answered in the negative . At that point, Duncan called the operator who said that they had received no emergency calls. After this, Duncan went to Crosby and told him that Cooper and Helms had walked off the job without clocking out and that Duncan was going to pull their cards. With that, Crosby gave his assent. Duncan emphasized that neither Cooper nor Helms had requested permission to leave. The next time that Duncan saw Cooper and Helms was the following morning when they came to him and asked him why their timecards had been pulled. Duncan told them that it was because they had walked off the job with- out clocking out. Duncan further told them that as far as he was concerned they had quit. Cooper insisted that he had told Duncan that he was sick and Duncan told him "that he was supposedly a preacher of the gospel and he was sitting there telling a damn lie." According to Duncan, Cooper then answered that he did tell Duncan and said that he had forgotten to tell Duncan that Helms was going to take him home. Employee Alex Rhymer, who is also the president of the Local of the Union involved herein, testified that on the night of September 3, during the night shift on which Rhymer worked, he was called to the phone by Foreman Goad and spoke to Roger Helms. Helms asked if Rhymer knew who was on this phone with him and Rhymer an- swered "Yes, this is Roger." Helms then asked Rhymer to pull the men out into the street. Rhymer said he could not do that or he would not do it. Then Helms asked if the Union would back him and Rhymer said there is no way they could back this action. Then Helms told Rhymer that at 5 o'clock in the morning there would be a picket line up. However, Helms did not say who was going to establish the picket line. Rhymer did tell Helms that if there was a pick- et line that the men would not cross it. However he did say that they would not support the strike. Goad was standing nearby and testified that he heard the conversation. Rhymer testified that Goad repeated to Rhymer what he had heard Rhymer say over the phone. Goad testified to much the same , namely, that he had heard Rhymer's answers to Helms and that, moreover, he knew it was Helms on the other end of the phone because when he answered the phone he recognized Helms' voice having spoken to him before on the phone on a number of occasions. I credit Rhymer and Goad. Rhymer that evening called Superintendent Durben but first called Tom Johnson, the business representative of the Steelworkers. Johnson advised Rhymer to take no part in the action of Cooper and Helms. Rhymer also called Cros- by and Durben. Crosby asked him what had happened and Rhymer, believing that Durben had already told Crosby what had happened, told Crosby that the way he under- stood it was there was going to be a picket line in the morning. He also told Crosby what Helms had said with regard to pulling the men out. Durben confirmed the fact that Rhymer had called him that evening and that, as a result, he had called Crosby. In connection with these discharges, the General Coun- sel argues that the reasons assigned by the Respondent for the discharges of Helms and Cooper are suspect. He fur- ther states that the walking out without clocking out or signing the daily worksheets was used as a pretext by the Respondent to get rid of two active union adherents. To support his contention, he argues first that the Respondent, through Durben and Duncan, told Helms and Cooper on the morning of September 4, when the two reported for work, only that they were discharged for failing to clock out and that therefore Respondent had considered that they had quit. Secondly he argues that there was bad blood between Duncan and Cooper and Duncan and Helms and that only shortly before, Helms, as acting steward, had filed a grievance on behalf of another employee. Addition- ally, Duncan's longstanding disagreements with Cooper which occurred by reason of Cooper's acting in his capaci- ty as union steward indicates that the Respondent was seeking a way in which it could rid itself of Cooper and Helms and that by forgetting to clock out in their anxiety to get Cooper home, the two provided the Respondent with the pretext it needed . Thirdly, the Respondent contends that it also discharged Cooper and Helms because they were attempting to cause a "wild cat" strike. General Counsel maintains that this was an afterthought and was not told to Cooper and Helms at the time they were dis- charged. Finally, General Counsel contends that Durben's testimony was to the effect that Helms and Cooper, having left without permission, were automatically considered quits but when other employees left without permission MARMON TRANSMOTIVE 113 they were not so regarded and that Durben's explanation leads only to the conclusion that the Respondent was look- ing for any reason to get rid of Helms and Cooper and that, it follows, the reasons given for the discharges were pretextual in nature. Durben, in testifying on cross-examination, admitted that on the afternoon of September 3, an employee named Atkins left early without permission. For this, Atkins was deprived of his holiday pay for the previous day, Septem- ber 2, Labor Day. Durben also admitted that at the time of the hearing a grievance over the holiday pay filed by At- kins was in process. He also stated that "They did not have permission to leave the plant" referring to other individuals who had evidently lost their holiday pay because they left the plant without permission. However, Durben insisted that the other individuals including Atkins did not quit, Durben explained this by the following question and an- swer: Q. Wasn't it the company policy that anyone that left without permission quit? A. Getting back to that individual, if a man come up and says I am going to leave the plant and is not given permission that is one thing, if a man leaves the plant and says nothing that is a voluntary quit. When asked what is the difference between the two situ- ations, Durben answered that in the case where the man asked permission and is not given permission but walks out any way, the Company knows where he is, but in the case where a man does not ask for permission at all, but merely walked out, the Respondent has no way of knowing where he is. When Durben was asked if they knew where Atkins had gone on September 3, Durben could not answer. The Respondent, in its arguments, makes no mention of this testimony of Durben. Moreover, the Respondent did not show through the testimony of any of its witnesses that it had ever discharged any other employee for leaving the plant without clocking out either on the daily timesheet or on the regular weekly clock. Although, it is the burden of the General Counsel to prove disparate treatment and to show in this case that other employees who walked out under the same circumstances that Helms and Cooper walked out were not discharged, in view of Durben's eva- sive answer to the questions as outlined above, I conclude that Durben was not truthful with regard to the Respondent's policy to the effect that it was applied evenly to all employees. Additionally, it would seem rather peculiar that, under the circumstances, if the Respondent had discharged Helms and Cooper for the reason that they had attempted to provoke an organized "wild cat strike," neither Duncan, Peffley, nor Durben, who spoke to Cooper and Helms on the morning following the attempted or aborted strike, mentioned the attempts of Cooper and Helms to organize a walkout the day before. Accordingly, although I have found that Rhymer and Goad were truthful in their relat- ing, to Durben and Crosby, Helms' conversation with re- gard to an attempted strike, I find that this was not a rea- son why they were discharged. Durben emphasized that he told Cooper and Helms on the morning of September 4 that since they had not clocked out at either of the two required places, the Respondent had considered that they quit. His failure to mention the attempted strike by Cooper and Helms is ample proof that the Respondent had no intention of discharging these two for that reason. This is borne out by the fact that not a single employee did at- tempt to strike or picket the Respondent on September 4, the morning that Helms and Cooper were discharged. Accordingly, I find and conclude that Duncan, Durben, and other of Respondent's officials and supervisors were, in fact, eager to seize on this alleged default of Cooper and Helms in order to rid the Respondent of two individuals who were, perhaps, overly zealous in their attempts to car- ry out what they considered the proper performance of their duties as steward and acting steward. The fact that Duncan had admittedly called Cooper a troublemaker and other similar names adds only to the conclusion that the reasons for discharge were, in fact, pretextual. As noted above, Durben's explanation as to why Atkins, who evi- dently left under somewhat similar circumstances on the day that Cooper and Helms left the plant, was not dis- charged was so unsatisfactory and evasive that although General Counsel did not offer further proof of disparate treatment, I conclude that there was, indeed, disparate treatment as evidenced by the difference in the disciplinary action taken against Atkins and the disciplinary action tak- en against Cooper and Helms. Accordingly, I find and conclude that Cooper and Helms were discharged for engaging in union or protected concerted activities and that thereby the Respondent com- mitted violations of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with its opera- tions set forth above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent discriminatorily ter- minated and has refused to reinstate Roger T. Helms and Edward N. Cooper, I shall recommend that the Respon- dent offer them immediate and full reinstatement to their former and substantially equivalent positions without prej- udice to any seniority, or other rights and privileges they may enjoy. Respondent shall make each whole for any loss of pay he may have suffered by reason of the discrimina- tion against him by payment to each a sum equal to that which he would have received as earnings from the date of the discharge until each is fully reinstated, less any net interim earnings. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It having been found that the Respondent threatened 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it would not promote employees who filed grievances with the Union in violation of Section 8(a)(l) of the Act and having further found that the Respondent threatened its employees that it would be futile for them to file griev- ances through the Union, and that thereby Respondent has restrained and coerced employees in violation of Section 8(a)(1) of the Act I shall recommend that the Respondent cease and desist therefrom. It having been found that Respondent has discriminato- rily given to Roger Helms a written reprimand, I shall rec- ommend that Respondent withdraw such reprimand and expunge the same from Helms' record. Having also found that the Respondent refused to pro- mote Calvin N. Braden and other employees because they engaged in union and protected concerted activity of filing grievances, I shall recommend that the Respondent make them whole for any earnings they may have lost by reason of the failure of the Respondent to promote these individu- als at the time when they ordinarily would have promoted such individuals until these individuals were placed in their classification after the resolution of the grievances filed by these individuals. Inasmuch as the record in this case does not show when these promotions would have occurred had it not been for the Respondent's discriminatory action, it is left for compliance proceedings to determine this date and the amount of backpay due these individuals, such back- pay to be computed as heretofore set forth above. On the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Marmon Transmotive, A Division of The Marmon Group, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees that it would not pro- mote them because they filed grievances with the Union and also that it would be futile for them to file grievances through the Union, the Respondent has interfered with, restrained and coerced its employees in the exercise of their rights guaranteed said employees in Section 7 of the Act and thereby Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By refusing and failing to promote employee Calvin N. Braden and other employees because they engaged in protected union and concerted activity, Respondent has violated and is violating Section 8 (a)(3) and (1) of the Act. 5. By discriminatorily giving Roger T. Helms a written reprimand, Respondent has violated and is violating Sec- tion 8(a)(3) and (1) of the Act. 6. By discriminatorily discharging Roger T. Helms and Edward N. Cooper because these employees engaged in union or protected concerted activities, the Respondent has violated and is violating Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record , and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: ORDER'S Respondent, Marmon Transmotive, A Division of The Marmon Group, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees that it will not promote employees who file grievances with the United Steelwork- ers of America, AFL-CIO-CLC. (b) Threatening its employees that it will be futile for them to file grievances through the said Union. (c) Refusing to promote any of its employees because they engage in union and protected concerted activities by filing grievances or any other protected concerted activity. (d) Giving written reprimands to Roger T. Helms or any other employee for engaging in union or protected concert- ed activity. (e) Discouraging membership in United Steelworkers of America, AFL-CIO-CLC, or any other labor organization, by discharging any employee for engaging in union or other protected concerted activity, or discriminating against any employee in any other manner in regard to their hire and tenure of employment or any term or condi- tion of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, assist, or be represented by the United Steel- workers of America, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representa- tives of their choosing or to engage in other concerted ac- tivity for the purpose of collective bargaining , or other mu- tual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Immediately promote all employees who have not been promoted by reason of their having filed grievances or engaged in other activity , such promotion to be made in conformity with the section of this Decision entitled "The Remedy" and make each such employee whole for any loss of earnings such employee may have suffered by reason of the discriminatory failure to promote such employee as de- scribed in the said section. (b) Offer to Roger T. Helms and Edward N . Cooper immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make each whole for any loss of earnings he may have suffered by reason of the discrimination against him in the 13 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 MARMON TRANSMOTIVE 115 manner set forth in the section of this Decision entitled "The Remedy." (c) Withdraw the written reprimand given to Roger T. Helms and expunge the same from all company records. (d) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records and reports, and all other reports necessary to analyze the amount of back- pay due under this Order. (e) Post at its facility in Knoxville, Tennessee, copies of the attached notice marked "Appendix." 16 Copies of said notice on forms provided by the Regional Director for Re- gion 10, 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 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director of Region 10, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 16 In the event the Board's Order is enforced by a Judgment of a United of the National Labor Relations Board" shall be changed to read "Posted States Court of Appeals, the words in the notice reading "Posted by Order Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."