Distinctive Graphic Arts Corp.

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Distinctive Graphic Arts Corp. and Picture Frame and Moulding Workers' Union, Local 18-B, Upholster- ers' International Union of North America, AFL- CIO. Case 13-CA-13686 July 28, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 25, 1975, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. After requesting and receiving an extension of time in which to file exceptions, the Respondent, Distinctive Graphic Arts Corp., filed a motion to re- open the record, together with an affidavit summa- rizing the evidence which the Respondent seeks to introduce and explaining why such evidence was not presented at the hearing. Thereafter, the General Counsel filed a "Response and Opposition" to the Respondent's motion. 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 Respondent's motion and has decided to deny the motion,' and to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge and adopt his recommended Or- der.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Distinctive Graphic Arts Corp., Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the recommended Order. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on February 11, 1975, in Chicago, Illinois, on the complaint of the Gen- eral Counsel issued on December 10, 1974,' and the answer of Distinctive Graphic Arts Corp., herein called the Re- spondent or Company. In issue are the questions whether the Respondent, in violation of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended,2 dis- charged employee Ruby Walls because of her protected union and concerted activities, and whether the Respon- dent otherwise interfered with, restrained, and coerced em- ployees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. At the close of the hearing, the parties waived oral argument but subsequently filed briefs in support of their respective positions. Upon the entire record,3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, is engaged in the production and sale of picture frames and the sale of graphics, posters, and related products at its factory and place of business in Chicago, Illinois. In the normal course and conduct of its business operations, the Respondent an- nually purchases and receives goods and services valued in excess of $50,000 from sources located outside the State. The Respondent admits, and I find, that it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded, and I find, that Picture Frame and Moulding Workers' Union, Local 18-B, Upholsterers' In- ternational Union of North America, AFL-CIO, herein i Under Sec. 102.48(d)(l) of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended, a party may, because of ex- traordinary circumstances, move to reopen the record . The motion must state that the additional evidence , if adduced and credited , would require a different result. The Board finds that the Respondent's additional evidence, even if adduced and credited , would not affect the result . Moreover, we are not persuaded that the alleged personal animosity between Respondent's counsel and its president constituted, in the circumstances of this case , suffi- cient reason to reopen the record at this state of the proceeding. 2 As noted, Respondent's counsel requested and received an extension of time in which to file exceptions but subsequently filed only the motion to reopen . The Board has examined the record with regard to the findings of the Administrative Law Judge that are implicitly called into question by the matters raised in the motion . We perceive no basis for finding that the Administrative Law Judge committed reversible error. Accordingly, we af- firm his Decision on the merits. i The complaint is based on a charge filed on October 23, 1974, by Picture Frame and Moulding Workers' Union, Local 18-B, Upholsterers' Interna- tional Union of North America, AFL-CIO, a copy of which was duly served on the Respondent by registered mail on October 25, 1974. 2 Sec. 8(a)(l) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7" of the Act. Insofar as pertinent, Sec 7 provides that "[elmployees shall have the right to self-organization , to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection . Sec. 8(aX3), with certain qualifications not material herein , prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- shi , in any labor organization . ... S Errors in the transcript have been noted and corrected 219 NLRB No. 139 DISTINCTIVE GRAPHIC ARTS CORP. called the Union, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Walls' organizational activities; the appearance of the Union The Respondent conducts its shop operations on the fifth and eighth floors of a building located on 210 West Van Buren, Chicago, Illinois. At the time of the relevant events herein, Ruby Walls and four other employees worked on the eighth floor where they packed pictures in boxes, wrote up packing slips, bills of lading, and receipts, stocked merchandise, and maintained inventory. Two of the men there employed also drove trucks. Working on the fifth floor were some 13 employees who assembled pic- tures, cut picture mats and glass, and placed protectors around the pictures to be packed and shipped by the eighth floor employees. One morning in August 1974 4 Walls engaged the other four employees on the eighth floor S in a conversation in which she expressed her opinion that a union was needed in the shop. All but one of these employees agreed with Walls who thereupon asked where a union could be locat- ed. At an employee's suggestion, Walls obtained the name of the charging party from the telephone book. At lunch- time, Walls telephoned the Union and informed the indi- vidual who took the call of the employees' union interest. That individual explained the nature of his organization and the benefits to be derived from unionization and sug- gested that Walls speak to Union President and Business Manager Theaplus Lee who was expected to return from a trip in a week. Walls left her telephone number. The following week, Walls called Lee who advised her to form an employee committee and to come with the com- mitteemen to the Union's office. Because she was subse- quently unable to form such a committee or to persuade any employees to accompany her to the Union, Walls, on September 11, in the presence of employees Cole, Hill, Smith, Calderone, and Howard Marcus, drafted on the eighth floor a two-page document for employees to sign. On the first sheet, which was the signature page, Walls printed "We the Fellow Employee (sic) of Distinctive Graphic Art (sic) agree on the Following Terms Listed." On the second page, which was attached to the first, Walls set forth "Wanted Conditions," listing the improvements the signers sought.' After Walls, Cole, Marcus, Hill, and Smith signed the signature page, Walls handed the docu- ment to Cole or Marcus 7 to secure the signatures of the 4 Unless otherwise indicated , all dates refer to 1974. s They were Rosenda Calderone, Freddie Hill , Sam Smith, and Oscar Cole. 6 Specifically, they were : a starting salary of $ 115 a week, $ 125 a week after 30 days, and a 12.5-cent increase every one-half year ; paid holidays; paid vacations after I year; better insurance ; sick pay, pensions; a prohibi- tion against framers driving company trucks; and better working conditions (porter, etc.). 7 Walls testified that she gave this document to Cole to have the fifth floor 641 employees on the fifth floor. At lunchtime, the document was returned to Walls with 9 additional signatures totaling 14. On the same day (September 11), Walls delivered the signed document to Lee at the Union's office. Lee, there- upon, handed Walls authorization cards with instructions to have the employees sign before he could do anything. At lunchtime on September 12, Walls signed an authori- zation card and solicited signatures from four other eighth floor employees. Apparently, no supervisor was present during Walls' solicitation. Walls then requested Marcus or Cole to secure signatures from the employees on the fifth floor, cautioning him to be careful that Shop Manager Robinson did not observe him soliciting. Shortly thereaf- ter, Marcus or Cole returned with eight signed cards which he gave to Walls who, in turn, mailed all 13 signed cards to Lee. The next day Lee called Walls and acknowledged re- ceipt of the cards and advised her that he was sending a letter to the Company. By letter dated September 13, which the Respondent re- ceived on September 16, Union President Lee informed Jack Newman, the Respondent's president, that a majority of the employees had designated the Union as their bar- gaining agent and accordingly requested recognition and the institution of contract negotiations. It appears that sub- sequent to Walls' discharge the Respondent granted recog- nition to the Union and concluded a contract with it .8 About 2 days after sending the above correspondence, union representatives arrived in front of the plant at 4 p.m., the close of the workday, and drove some nine employees to a union meeting where Lee explained the benefits of unionization and the employees voiced their complaints against the Company. 2. The September 20 company meeting with employees On Friday morning, September 20, Company President Newman assembled all the employees on the fifth floor and addressed them in the presence of Shop Manager Rob- inson and Supervisor Leavelle. According to Walls' ac- count, which was corroborated by employee Cole in essen- tial respects, the following occurred: Newman opened up his remarks by noting that he had received a letter from the Union and that he was going to speak to the union repre- sentatives. He also stated that the Union was a good one; that he was glad that the employees had not selected the Teamsters because they were a bunch of cutthroats; and that a lawyer-friend of his advised him to accept the Union. However, Newman thereupon added that the em- ployees were "going to catch it" and proceeded to tell them that they would be required to pay a $150 union initiation fee and weekly dues of $15. When Walls shook her head in disagreement with Newman's latter remarks, Newman re- peated the amounts and told her to verify their accuracy with Robinson, which Walls declined to do, asserting that employees sign and the next day she gave authorization cards to Marcus to secure the same signatures . Cole testified he was given the cards and Marcus the document. It is obviously unimportant to determine who was requested by Walls to solicit signatures to the document or the cards. 8 Among other things, the Union alleged in its unfair labor practice charge filed herein on October 23 an unlawful refusal to recognize the Union and to bargain in good faith. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robinson lacked knowledge. Newman then discussed the benefits employees were enjoying. He alluded to the paid lunch hour employees had which the Union would not give them, thus saving him (Newman) $750. Newman also re- ferred to newborn baby gifts and wedding presents which he customarily gave employees and which they would not obtain from the Union. Observing that the employees were aware of his financial problems and that nothing like this had ever happened to him before, although he had been in business for a number of years and had been a millionaire a couple of times, he chided them for not once according him any consideration. Newman then stated that, if the employees wanted a union, they should have asked him for one and he would have tried to bring it in, as he had once tried to do but nobody really wanted it. Newman turned to Robinson for confirmation and Robinson concurred. Apparently near the close of his remarks, Newman warned that, should the shop be unionized, the employees would no longer be granted raises every 2 or 3 months. This evoked Walls' comment that she had not received an increase since the past April, which was a fact.9 Newman, nevertheless, insisted that Walls was mistaken and asserted that she had been granted a larger raise than any other employee. Newman then ordered the employees to return to work, declaring that neither the Union nor anybody else ,.was going to make him keep smart asses ." It is noted that Walls was the only employee who spoke up during this meeting. Without contradicting the details of Walls' above testi- mony except in one respect, Shop Manager Robinson gave this version of the September 20 meeting: Newman first informed the employees that he had been contacted by the Union. He then stated that they could have a union if they wanted and that he would try to help them get one. How- ever, he added that the Union would not obtain for them the benefits they were then having and, in fact, the Union would benefit him (Newman) more than the employees. Concerning raises, Robinson quoted Newman as saying that "most time" he gives them to the employees every 5 or 6 months. Robinson further testified that at this point Walls "smirked and said it was a lie" and that she had never received a raise . He also testified that he did not hear Walls say that she had not received a raise since April. Both Walls and Cole specifically disputed this portion of Robinson's testimony, categorically denying that Walls charged Newman that he lied in his above comments about raises or that Walls unqualifiedly said that she had never been given a raise. Instead, Walls and Cole repeated that Walls said that she had not received an increase since April, which was true. From my appraisal of the testimony, I find that Walls' version, substantially corroborated as it was by employee Cole,10 more accurately reflects Newman's remarks at this meeting than does Robinson's testimony. Indeed, not only 9 The parties stipulated that since her employment in August 1973 Walls had received a raise on August 23 and September 6, 1973, and April 19, 1974. 10 As an individual still in the Respondent's employ, it is hardly likely that Cole would deliberately lie about his employer's remarks and thereby incur his displeasure. Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961). was Newman not called as a witness, although he was pre- sent at the hearing, but Robinson did not controvert the details of Walls' testimony except with respect to Walls' exchange with Newman regarding raises. As for such dis- puted testimony, I find it hard to believe that Walls, who impressed me as an intelligent and candid witness, would falsely deny that she had ever received an increase when she had actually received three, and then would publicly charge her employer with lying. It is more likely, as she and Cole testified, that she stated that she had not been granted an increase since April which, as indicated above, was a fact. Accordingly, I credit Walls' corroborated testimony and reject Robinson's insofar as it is in conflict with hers. 3. Walls' insecure tenure; Robinson's poll of employees regarding union representation While at lunch several hours after the above employee meeting, Shop Manager Robinson informed Walls that Newman told him to fire her but that he (Robinson) stated to Newman that he could not do it because Walls was one of his best workers. tt Later in the day (September 20), Robinson conducted a poll among the employees to ascertain whether or not they wanted the Union. Accordingly, with a written list of em- ployees entitled "Union-Vote?" in his hand, Robinson ap- proached Walls and, after informing her that Newman di- rected him to take a vote to see who wanted the Union, he put that question to her. When she answered she favored the Union, Robinson noted "Yes" alongside her name on the list and told her to initial her response, which she did. It was stipulated that the same procedure was followed by Robinson with respect to all the other employees on this list. The result of the poll showed that 14 employees de- sired union representation while 3 did not. 4. Walls' discharge; the Respondent's asserted reasons As indicated above, Walls was employed as a shipping clerk on the eighth floor in early August 1973. Since that time she had received wage increases on August 23 and September 6, 1973, and April 19, 1974. On September 23, the Monday morning 12 following Newman's meeting with the employees, Robinson informed Walls shortly after she reported for work that Newman had directed him to fire her. In answer to her inquiry as to the reason, Robinson stated that Newman said she had "a smart mouth" in de- claring at that meeting that she had not received a raise since April. Robinson also requested Walls not to call the union people because he wasn't supposed to notify her of the discharge until 4 o'clock. About 5 in the afternoon, Walls was paid off for the time she had worked on Friday, 11 This finding is based on Walls' uncontradicted testimony, which I credit. 12 There is a conflict in the evidence whether Walls had reported for work on time (8 a.m.) on September 23, as she testified she did , or whether she reported for work at 8.22 a in., as indicated on her timecard, which she claimed was incorrect However, it is unnecessary to resolve this conflict since it appears that the discharge decision had been previously made and Robinson, who purportedly recommended the discharge, had not seen the card until he computed Walls' earnings after informing her of her termina- tion. DISTINCTIVE GRAPHIC ARTS CORP. 643 September 20, and Monday, September 23. It appears that the workweek ends on Thursday and employees are regu- larly paid on Friday. There is no question that Walls had received her regular paycheck the Friday before her dis- charge.l3 The Respondent denies that it was unlawfully motivated in terminating Walls and presented Robinson 's testimony and documentary evidence to support its position. Rob- inson testified that it was he who made the initial decision that it was time to get rid of Walls after she falsely asserted at the September 20 meeting, in contradiction of Company President Newman's statement, that she had never received a raise. At that time, he testified, he had no knowledge of Walls' union activities, although undeniably he was by then aware of the Union's presence. He further testified, in effect, that, in reaching that decision, he also considered Walls' poor attendance record and unsatisfactory job per- formance manifested in errors she made in the merchan- dise she packed for shipment to customers and in the pack- ing slips she prepared. Robinson also testified that he discussed the matter with Newman on Friday, after the meeting, and secured his approval of the discharge, as he was required to do. As found above, Walls did not make the false statement at the meeting which allegedly precipitated her discharge. Indeed, the Respondent's letter to the Board's Regional Office sent on October 31, in response to the unfair labor practice charge filed by the Union herein, does not even mention such a reason for Walls' dismissal.14 Concerning Walls' alleged poor attendance, Robinson testified that she was late once or twice a week. However, the Respondent produced only two of her timecards,15 one of which was her final timecard covering 2 days only- Friday, September 20, and Monday, September 23, when she was terminated. It shows that on September 20 she reported on time, which was before 8 a.m., and on Septem- ber 23 she reported late (8:22 a.m.). Walls challenged the correctness of the September 23 notation, insisting in her testimony that she had reported early for work that day. However, since the discharge decision was made on Sep- tember 20, Walls' alleged lateness on September 23 obvi- ously was not considered. The second timecard embraces the period September 6 to 12 and discloses a few minutes lateness on each of 3 days but that Walls clocked out short- ly after the end of these workdays and received credit for a full 8-hour day. Oddly enough, no timecard was-produced 13 The foregoing findings embody Walls' credible testimony which Rob- inson did not dispute except that he testified that he told her that she was being removed from the payroll because "she made a falsified statement against the company and [because of] her work and her attendance." Rob- inson did not impress me as a candid witness . His reliability suffered greatly in his unconvincing efforts to substantiate the reasons for his discharge decision or recommendation, which will presently be discussed. 14 The letter states that "Ruby Walls was not discharged because she was a Union enthusiast, but because she was constantly late or absent . She was also careless," referring to a packing error she had made on September 18, which will later be discussed. 15 Since each timecard was supposed to cover a week ending Thursday, the procedure followed , according to Robinson , was for him to prepare usually on Thursday a new timecard for each employee to punch during the next workweek beginning Friday. The preparation consisted of inserting the employee's name, clock number, and department number. for the week immediately preceding September 20 (Sep- tember 13 to 19) so that it would not be unreasonable to infer that she was probably punctual during that period.16 In other words, whatever might have been her record of lateness during her period of employment-and Walls con- ceded that there were occasions when she was late but no more frequently than other employees-it appears that she was, in all likelihood, punctual at least during the 8 days immediately preceding the Respondent's discharge deci- sion. In any event, Robinson admitted that other employ- ees were also frequently tardy. Moreover, there is no evi- dence that the Respondent was sufficiently concerned about Walls' tardiness as to warrant a reprimand, warning, or other discipline.'? As for Walls' performance, Robinson testified that he was informed "mostly" by Debra Gilbert, who then worked in the Respondent's showroom's as store supervi- sor and payroll clerk, that she had received complaints from customers regarding Walls' unsatisfactory packing work involving "loose" boxes and incorrect packing slips. He further testified rather ambiguously that he "mentioned to her plenty of times about trying to get it altogether as far as tightening up the packing and getting the packing slips correct and so on." When questioned whether those com- plaints were relayed to Walls or to some other employees, Robinson answered, "No, there were others there." He then replied in the affirmative to a leading question by the Respondent's attorney, "And you talked to these people and told them to do better work?" Under cross-examina- tion, Robinson agreed that there were complaints about other employees in addition to Walls. In another part of his testimony, Robinson stated that he had received "numerous" complaints about Walls' work. Upon further interrogation, he testified, as follows: Q. When was the last time you received com- plaints? A. I can't say. Q. Did you ever talk to her [Walls] about the com- plaints? A. Yes, I have. _ Q. How often have you spoken to her about com- plaints? A. I can't say the amount of times but it was more than once. Q. Do you know when the last time was that you spoke to her . . . [a]bout the complaints? A. Well, when I took her off the payroll I explained it to her. Q. What about before that? A. I can't say. 16 it is noted that in the Respondent's October 31 letter to the Regional Office, it submitted detailed records of lateness and absenteeism of four employees other than Walls, who were also named in the charge herein as individuals discriminatorily laid off or discharged about a month after Walls' termination Similar information , however, was not transmitted with respect to Walls The other four employees were not included in the com- plaint subsequently issued in this case. 17 Although, as indicated above, the Respondent informed the Regional Office that Walls was discharged, among other things, because "she was constantly late or absent," no evidence was produced relating to her absen- teeism 18 The showroom and factory are located in different buildings 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD s s reason-good, bad, or indifferent-provided he is not mo- tivated by the employee's actual or suspected union or con- certed activities . To be sure, it is equally well established that the existence of a "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." 20 From my analysis of the evidence , I am persuaded that Walls was discharged because of her protected union and other concerted activities, as the General Counsel main- tains, and not because of any false statement that she alleg- edly made at the September 20 meeting that she had never received a raise, or because of her record of lateness or unsatisfactory performance, as the Respondent urges. It is clear that Walls instigated the union movement ; acted as contact with the Union ; drafted and circulated among the employees the petition for improved working conditions; secured blank authorization cards from the Union; with the assistance of an employee, solicited signatures from other employees ; and then transmitted the signed cards to the Union which thereupon sought recognition from the Respondent. Moreover, Walls was the only employee who spoke up at the- September 20 meeting called by Company President Newman to discuss the Union about which he had ambivalent feelings. There, Walls challenged Newman's assertion that employees would be obligated to pay the Union an initiation fee of $150 and $ 15 weekly dues. When Walls also voiced her disagreement with Newman's statement that he customarily granted wage raises every 2 or 3 months and Walls truthfully alluded to the fact that she had not received any increase since the previous April, Newman reacted with the declaration that neither the Union or anyone else "was going to make him keep smart asses." As discussed above, this prophesy soon became a reality in the Respondent's summary termination of Walls the next workday, Monday, September 23. There can be little doubt that, when viewed in the con- text of the above events, the timing and suddenness of the discharge in the middle of the workweek of the leader of the union movement lend strong support for the inference that there was more than a coincidental connection be- tween Walls' union activity and her termination. Indeed, strengthening a finding of discrimination is the fact that the reason which assertedly precipitated the discharge, namely, the alleged falsity of Walls' statement to Newman regarding a raise, has no credible basis in the record. It is not without significance that the Respondent did not even advance this reason in its letter to the Board's Regional Office as a ground for the discharge, although it urged other reasons . Reliance on unfounded reasons to justify a discharge can only serve to cast doubt on the purity of the underlying motive. The Respondent's other grounds for Walls' termina- tion-her lateness and poor performance-are equally sus- pect. Thus, as indicated previously, Shop Manager Rob- inson did not inform her at the time of her discharge that these shortcomings had brought about her separation. In- stead, answering Walls' inquiry as to the reason, Robinson stated that Newman said she had "a smart mouth" at the meeting. It is hard to understand, if Walls' tardiness and unsatisfactory performance really were the grounds'for her Q.... Did you ever warn Ruby Walls that she was subject to discharge if her performance did not im- prove? A. I warned the whole department. Q. Well, I'm asking you about Walls? A. Well, yeah. Q. And you warned other employees the same way? A. Right. Q. Well, when did you warn Walls last? A. I can't remember the date, you know, exact date. It's been quite a while back. In its previously mentioned letter to the Regional Office in which the Respondent assigned Walls' carelessness as one of the reasons for her separation, the Respondent spec- ified an error that Walls made on September 18 19 in send- ing a customer a signed Salvador Dali graphic costing much more than a Barlett poster which the customer had ordered and which was listed on the packing slip signed by Walls. However, according to the credible testimony of former employee Gilbert, the Respondent was first in- formed of this error when the customer telephoned her on September 27, 4 days after Walls' discharge . Clearly, this error could not possibly have entered into the Respondent's discharge decision. Gilbert also testified to other mistakes assertedly made in shipping two instead of one picture of several items which were listed on packing slips signed by Walls or in shipping a different item than that ordered and described on a packing slip. However, Gilbert further testified that all the employees made similar mistakes. Moreover, she conceded that she was not famil- iar with the packing procedures and that she did not have personal knowledge who had packed the items in question but attributed the above mistakes to Walls simply because Walls had signed the packing lists. However , there is evi- dence that fifth floor employees placed protectors around the pictures and that thereafter the packers on the eighth floor packed a number of these pictures in one box des- tined for the customer . It is thus not too clear who was actually responsible for the indicated errors. Walls admitted that "a couple times" during her tenure of employment management had spoken to her about packing errors she had made and complaints it had re- ceived from customers regarding the shipment of wrong pictures. She further credibly testified that the last time Robinson criticized or warned her about her performance was about 4 or 5 months before her discharge. B. Concluding Findings 1. With respect to Walls' discharge The question of discrimination presented here is essen- tially a factual one whose resolution rests , as it often does, on circumstantial evidence. Of course, in making this de- termination, one must be ever mindful of the settled princi- ple that an employer may terminate an employee for any 19 The packing slip is dated September 17. 20 N. L. R. B. v. Solo Cup Company, 237 F.2d 521, 525 (C A. 8, 1956). DISTINCTIVE GRAPHIC ARTS CORP. discharge, why she was not so informed, unless they were mere afterthoughts designed to cover up an impermissible reason. Further demonstrating the pretextual nature of the as- signed reasons for Walls' discharge is the fact that, whatev- er was her record of tardiness, it did not seem to be of sufficient concern to the Respondent to warrant a repri- mand or disciplinary action or some warning that she risked discharge if she did not improve, until her union sympathies became apparent . Probably, the reason she was not reprimanded or warned in the past was that her record of lateness was no more intolerable than that of other em- ployees. Moreover, since Walls appears to have been punc- tual during the 8-day period immediately preceding the discharge decision, the Respondent's reliance on lateness as a factor prompting the decision is highly dubious. With respect to Walls' job performance, here, too, all the employees made packing errors which were the subject of customer complaints . Apparently, management spoke to all the employees about their mistakes and warned them to do a better job. In Walls' case , she credibly testified, with- out contradiction, that the last time she was criticized or warned by Robinson was about 4 or 5 months before her termination . When to the foregoing is added Robinson's statement to Walls on September 20 that he regarded her as one of his best workers and that that was the reason he gave Newman on that day for refusing to fire her, it be- comes readily evident that it was not Walls' alleged unsat- isfactory performance that contributed to her discharge but rather her union activity . Indeed, the Respondent grasped at straws to justify to the Board's Regional Office Walls' discharge on account of poor performance by rely- ing on a packing error about which it had first learned 4 days after Walls' termination. In short, I find that Walls' alleged shortcomings assigned by the Respondent as the cause for her discharge are at best afterthoughts designed to conceal its real motivation which was to eliminate the spearhead of the union movement . The fact that other em- ployees were also engaged in organizational activity who were not discharged does not relieve the Respondent of liability for the discriminatory treatment accorded to Walls. , Reinforcing the inference of discrimination against Walls is the Respondent's antipathy to the Union revealed at the September 20 meeting in Newman 's threats to withdraw employee benefits if the shop were unionized and in his other statements to the employees, although, to be sure, some of his opening remarks were somewhat con- ciliatory. Considering the foregoing factors which lead me to be- lieve that Walls' discharge was discriminatorily motivated, I find the Respondent's denial of knowledge of Walls' union activity at the time of her dismissal less than candid. While it is true there is no direct evidence of such knowl- edge, all the circumstances described above , as well as the small size of the shop , combine to reveal the Respondent's awareness of Walls' prominence in the union movement 22 Certainly, Walls' outspoken challenge to Newman at the 21 N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F.2d 272 276 (C.A. 5, 1952), cert. denied 344 U.S. 865. 2^ Cf. Alberto-Culver Company, 199 NLRB 156, In. 2 (1972); Long Island 645 September 20 meeting concerning the Union's initiation fee and weekly dues, her verbal exchange with Newman regarding raises and Newman's response that no union could force him to keep "smart asses" in his employ, sug- gest that the Respondent was not entirely without knowl- edge of Walls' union involvement. Accordingly, I find that Walls was discharged'in reprisal for her union activity and that the reasons assigned by the Respondent were mere pretexts. Such conduct clearly con- stitutes discrimination in employment to discourage union membership which Section 8(a)(3) of the Act prohibits. Moreover, there is no question that, in addition to her or- ganizational activity, Walls was engaged in concerted ac- tivity for mutual aid and protection to improve working conditions at the Respondent's shop. This right is guaran- teed to employees by Section 7 of the Act and is protected by Section 8(a)(1). As Walls was terminated, in part at least, as a result of her dispute with Newman at the Sep- tember 20 meeting over the Respondent's asserted practice or policy concerning wage raises, the Respondent thereby independently violated Section 8(a)(1) of the Act. Even were it assumed that Walls' purported deficiencies to some extent entered into the-Respondent's discharge decision, I find that her protected union and concerted activity was a substantial cause of her discharge and that therefore the same statutory provisions were violated.23 2. With respect to interference, restraint, and coercion As shown above,, President Newman made it clear at his meeting with employees on September 20 that, if the shop were unionized, they would lose the benefits they were then enjoying, such as a paid lunch hour, raises every 2 or 3 months, newborn baby gifts and-wedding presents. More- over, when employee Walls questioned Newman' s state- ment of the Company's practice or policy respecting wage raises, Newman warned Walls that "smart asses" risked discharge and the Union could do nothing to prevent the Company from taking such action. Plainly, such remarks amounted to coercive threats of reprisals against employ- ees for their union sympathies and for engaging in other protected concerted activity for mutual aid and protection and constituted interference, restraint and coercion of em- ployees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. In addition, it is undisputed that Shop Manager Rob- inson on September 20 conducted a poll among the em- ployees to ascertain whether or not they favored union rep- resentation. Interrogation of this type without complying with the conditions indicated by the Board in Struksnes to minimize the coercive impact of such interrogation on employees also violated Section 8(a)(1) of the-Act. Airport Limousine Service Corp, 191 NLRB 94, 95, enfd. 468 F.2d 292, 295 (C.A. 2, 1972); Wiese Plow Welding Co., Inc., 123 NLRB 616, 618 (1959). 23 N.LR B v. Herdis E. Gammon d/b/a Gammon Trucking Company, 506 F.2d 1403 (C.A. 7, 1974), J. P. Stevens & Co., Inc. v. N.L.R.B., 380 F.2d 292, 300 (C.A. 2, 1967), cert. denied 389 U.S. 1005; N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2, 1954). 24 Struksnes Construction Co, Inc., 165 NLRB 1062, 1064 (1967). 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to ef- fectuate the policies of the Act. It has been found that the Respondent unlawfully dis- charged employee Ruby Walls because of her protected union and other concerted activity. To remedy these unfair labor practices, it is recommended that the Respondent offer Walls immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of her unlawful discharge by payment to her of a sum of money equal to that which she normally would have earned from the date of her discharge to the date of the offer of reinstatement, less her net earnings during the said period. Backpay shall be computed with interest on a quarterly basis in the man- ner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). To facilitate the computation, as well as to clarify the named employee's right to reinstatement, the Respondent shall make available to the Board, upon re- quest, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recom- mended. In view of the nature of the discrimination for protected union and other concerted activity for mutual aid and pro- tection which "goes to the very heart of the Act," 25 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accord- ingly, I recommend that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act 26 Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS of LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Ruby Walls to discourage membership in, and activities on behalf of the Union, the Respondent en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 3. By discharging Ruby Walls for engaging in protected concerted activities for mutual aid and protection, the Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By warning employees that, if the shop were union- ized, they would lose the benefits they were then enjoying, such as a paid lunch hour, wage raises every 2 or 3 months, newborn baby gifts, and wedding presents; by warning em- ployees that they risked discharge for engaging in union or 25 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 534 (C.A. 4, 1941). 26 N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 433 (1941). concerted activity for mutual aid and protection; and by interrogating employees concerning their union sympathies in a manner prohibited by the Act, the Respondent inter- fered with, restrained, and coerced employees in the exer- cise of their statutory rights within the meaning of Section 8(ax 1) of the Act. 5. The aforesaid unfair labor practices affect commerce 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, as amended, I hereby issue the following recommend- ed: ORDER 27 The Respondent, Distinctive Graphic Arts Corp., Chica- go, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Picture Frame and Moulding Workers' Union, Local 18-B, Upholsterers' In- ternational Union of North America, AFL-CIO, or any other labor organization, by discharging employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condi- tion of employment. (b) Discharging or otherwise disciplining employees for engaging in protected concerted activities for mutual aid and protection with respect to wages, hours, or other terms and conditions of employment. (c) Warning employees that, if the shop were unionized, they would lose the benefits they were then enjoying, such as a paid lunch hour, wage raises every 2 or 3 months, newborn baby gifts, and wedding presents. (d) Warning employees that they risked discharge for engaging in union or concerted activity for mutual aid and protection. (e) Interrogating employees concerning their union sym- pathies in a manner prohibited by Section 8(a)(1) of the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Ruby Walls immediate and full reinstatement 27 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. DISTINCTIVE GRAPHIC ARTS CORP. 647 to her former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her se- niority and other rights and privileges , and make her whole for any loss of earnings she may have suffered by reason of her unlawful discharge in the manner set forth in the sec- tion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary and useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its shop in Chicago, Illinois, the attached no- tice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, where no- tices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 28 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of those activities. WE WILL NOT discharge or lay off employees or otherwise discriminate against them because of their membership in, or activities on behalf of, Picture Frame and Moulding Workers' Union, Local 18-B, Upholsterers' International Union of North America, AFL-CIO, or any other labor organization. WE WILL NOT discharge or otherwise discipline em- ployees for engaging in protected concerted activities for mutual aid or protection with respect to wages, hours, or other terms or conditions of employment. WE WILL NOT warn employees that, if the shop were unionized, they would lose the benefits they were then enjoying, such as a paid lunch hour, wage raises every 2 or 3 months, newborn baby gifts, and wedding pre- sents. WE WILL NOT warn employees that they risked dis- charge for engaging in union or concerted activity for mutual aid and protection. WE WILL NOT interrogate employees concerning their union membership, sympathies or activities in a man- ner prohibited by Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a con- dition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL offer Ruby Walls immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to her seniority and other rights and privi- leges, and make her whole for any loss of earnings suffered by reason of her unlawful discharge. All of our employees are free to become or remain, or refrain from becoming or remaining, members of Picture Frame and Moulding Workers' Union, Local 18-B, Uphol- sterers' International Union of North America, AFL-CIO, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a)(3) of the Act. DISTINCTIVE GRAPHIC ARTS CORP.