Fibracan Corp.

FIBRACAN CORP. 161 Flbracan Corp. and Amalgamated Clothing and Tex- found her earlier use of abusive language objection- tile Workers Union, AFL-CIO, CLC, Hudson able, she replied by repeating the prior profanity. 3 Valley Area Joint Board. Cases 2-CA-16369 We find this repeated and blatant use of profanity and 2-CA-16381 in reply to a supervisor's statement of its objection- November 4, 1981 ability amounted to insubordination. Consequently, the Respondent's response was a lawful exercise of DECISION AND ORDER its rights to maintain order and respect. See N.L.R.B. v. Thor Power Tool Company, 351 F.2d BY MEMBERS FANNING, JENKINS, 584 (7th Cir. 1965), enfg. 148 NLRB 1379 (1964). Thus, even taking into full consideration the con- On September 16, 1980, Administrative Law text in which these remarks were made, we find Judge Howard Edelman issued the attached Deci- that this intentional insubordination is sufficiently sion in this proceeding. Thereafter, the General egregious to remove Van Nostrand's activities from Counsel filed exceptions and a supporting brief, any protection they might have otherwise en- and the Respondent filed an answering brief in op- joyed.4 See New Process Gear, Division of Chrysler position to exceptions. Corporation, 249 NLRB 1102, 1108-09 (1980); Pursuant to the provisions of Section 3(b) of the Calmos Combining Co., 184 NLRB 914, 914-915 National Labor Relations Act, as amended, the Na- (1970). 5 Therefore, unlike our dissenting colleague, tional Labor Relations Board has delegated its au- we agree with the Administrative Law Judge that thority in this proceeding to a three-member panel. the Respondent's discharge of Van Nostrand did The Board has considered the record and the at- not violate the Act. tached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, find- ORDER ings,' and conclusions of the Administrative Law Pursuant to Section 10(c) of the National Labor Judge and to adopt his recommended Order. Judge and to adopt his recommended Order. Relations Act, as amended, the National Labor Re- In doing so, we adopt the Administrative Law lations Board adopts as its Order the recommended Judge's finding that employee Van Nostrand was lawfully discharged for her use of profane language on March 16 and 21,2 and that absent her use of hereby orders that the Respondent, Fibracan profanity there was no reason for Plant Manager Corp., Walden, New York, its officers, agents, suc- Mintoni to single her out from the other nine em cessors, and assigns, shall take the action set forth ployees who also walked out on March 16 and in the said recommended Order, except that the at- swhose employment Minton continued. As more tached notice is substituted for that of the Adminis- whose employment Minton continued. As more fully described by the Administrative Law Judge, trative Law Judge Van Nostrand directed profanity against the plant MEMBER JENKINS, concurring in part and dissent- manager at the meeting preceding the March 16 ing in part: walkout and again at the March 21 interview to Contrary to my colleagues, I cannot agree with discuss her continued employment, when after the Administrative Law Judge's findings and con- the Administrative Law Judge's findings and con- being specifically informed by Minton that he clusions pertaining to the discharge of Lisa Van The General Counsel has excepted to certain credibility findings Nostrand. In all other respects, I am in agreement made by the Administrative Law Judge. It is the Board's established with my colleagues. policy not to overrule an administrative law judge's resolutions with re- With regard to Van Nostrand, the evidence indi- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry cates that on Friday, March 16, 1979, Van Nos- Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. trand, along with nine other employees, engaged in 1951). We have carefully examined the record and find no basis for re- versing his findings. I According to Minton's testimony, which the Administrative Law In the absence of exceptions thereto, we adopt, pro forma, the Adminis- Judge credited Minton started this interview with Van Nostrand by stat- trative Law Judge's findings that the March 16 walkout, in protest of the discharge of Shift Supervisor Johnson, was protected concerted activity ing: and his related findings that the 10 suspensions following that walkout Lisa, we have only two things to discuss. One, if you want your job and the subsequent discharge of employee La Bar were unlawful because back, and number two, whether I want to take you back because they were based on the employees' participation in the walkout. We note you embarrassed me in front of the other employees when you used that the conversation between Plant Manager Minton and employee Day the abusive language that you did. in which Minton compared the Respondent's benefits with the benefits of Van Nostrand, at this point replied, "I still think that you're a rotten son other employers in the area occurred on the workday following Hulzen- of a bitch." (At the March 16 meeting, she had called Minton an s.o.b. ga's discharge, apparently April 2, and not March 21, as stated by the m-f-.) Administrative Law Judge. ' The cases cited by our colleague are distinguishable in that in none of 2 No evidence was presented that profanity is commonly directed at those cases did the Board find, as we do here, the misconduct sufficiently supervisors at Respondent's plant, although the record shows its use is egregious to deny an employee the protection of the Act. not rare among the employees. 5 See. generally, A/lantic Steel Company. 245 NLRB 814, 816 (1979). 259 NLRB No. 14 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protected concerted activities by walking off their quired Van Nostrand affirmatively to contact the jobs to protest the discharge of a supervisor. Employer in order to avoid being discharged for Thereafter, on Monday, March 19, Plant Manager her protected activity. Thereafter, Van Nostrand Minton sent the following mailgram to all employ- appeared at the interview with Minton and was im- ees who walked off the job, including Van Nos- mediately told a relevant matter to be discussed trand: was whether the Employer wanted to take her Due to your refusal to work Friday, March back. Minton then made reference to Van Nos- 16, you are hereby suspended for 2 days. If trand's use of profanity at the March 16 meeting, you desire to continue your employment, which immediately preceded the protected walk- come in to see me Wednesday [March 21] be- out, thereby evoking at the interview a profane tween 8:00 a.m. and 4:00 p.m. to discuss your comment from Van Nostrand. employment ... . If you do not contact me In these circumstances, in agreement with the by Wednesday, I will consider you terminated. General Counsel's exceptions, I find that Minton's March 21 interview with Van Nostrand was inte- It is undisputed that the 2-day suspension of these grally related both to Van Nostrand's protected ac- employees, including Van Nostrand, was attributa- tivities pertaining to the walkout and to the Em- ble solely to their protected walkout and that the ployer's commission of unfair labor practices in Employer's imposition of discipline based on such connection therewith, and that her use of profanity conduct violated the Act. The evidence further re- veals that on March 21, in response to Minton's on March 21 must be viewed I this context and mailgram, the aforementioned employees assembled not in isolation. Further, I note particularly that mailgram, the aforementioned employees assembled the Employer not only implemented the unlawful at the Employer's premises and were interviewed the Employer not only implemented the unlawful separately by Minton in his office. Minton com- 2-day suspension because of Van Nostrand's pro- menced his interview with Van Nostrand by stat- tected activities, but also, both before and at the ing to her that there were only two things to dis- outset of the March 21 interview virtually placed cuss: one, whether she wanted her job back, and the burden on Van Nostrand to convince the Em- two, whether he wanted to take her back. Minton ployer not to discharge her because of those activi- then told Van Nostrand that he had been embar- ties. In view of the Employer's repeated violations rassed by her profanity directed toward him at a of Van Nostrand's statutory rights, I find that the meeting which Minton had attended with Van Employer is not privileged to base its discharge on Nostrand and other employees on March 16, imme- Van Nostrand's March 21 outburst. Louisiana diately preceding the walkout. At this point in the Council No. 17, AFSCME, AFL-CIO, 250 NLRB interview, Van Nostrand replied, "I still think 880, 889 (1980); Max Factor & Co., 239 NLRB 804, you're a rotten son of a bitch." Minton then asked 818-819 (1978). Rather, in my view, such a basis Van Nostrand to wait in the breakroom and fol- for discharge is causally related to Van Nostrand's lowing his interviews with the remaining employ- protected activities in walking off the job, and to ees, who were reinstated, Minton called Van Nos- the unlawful conduct of Minton, both at the time trand back into his office and informed her that he of Van Nostrand's suspension and at the later inter- had decided to terminate her because of her use of view. Accordingly, I would find that the Employ- abusive language. er's discharge of Van Nostrand was attributable to Based on the foregoing, my colleagues conclude her exercise of protected concerted activities, and that the Employer's discharge of Van Nostrand would further find that, inasmuch as Van Nos- was lawful because it was attributable solely to trand's March 21 outburst occurred in the context Van Nostrand's use of profanity, including her of the Employer's own unfair labor practices, her comments to Minton at the March 21 interview. comments to Minton, while not to be condoned However, such a finding entirely overlooks the fact are not so serious as to remove her activities from that the basis for Van Nostrand's discharge stems the protection of the Act. United States Postal Serv- from a situation which the Employer itself created by virtue of its commission of unfair labor prac- that Van Nostrand's discharge violated Section tices. Thus, the evidence clearly establishes that 8(a)(1 of the Act. J. P. Hamer Lumber Company, Van Nostrand was unlawfully suspended for 2 days P. Hamer Lumber Company, because of her participation in a protected walkout. Contemporaneous with the implementation of the unlawful suspension, the Employer's March 16 mailgram, again unlawfully, placed Van Nostrand's employment tenure in serious jeopardy and re- FIBRACAN CORP. 163 APPENDIX 20, and 21, 1979, and on January 9 through 11, and 22, 1980, in Newburgh, New York. The consolidated com- NOTICE To EMPLOYEES plaint in the above-captioned cases issued on May 25, POSTED BY ORDER OF THE 1979, on charges filed on April 9 and 13, 1979, by Amal- NATIONAL LABOR RELATIONS BOARD gamated Clothing and Textile Workers Union, AFL- An Agency of the United States Government CIO, Hudson Valley Area Joint Board, herein called the Union. WE WILL NOT suspend or terminate employ- The complaint alleges, inter alia, that Fibracan Corpo- ees or in any other manner discriminate against ration, herein called Respondent or the Company, violat- ed Section 8(a)(l) and (3) of the National Labor Rela- them with regard to their hire or tenure of em- tions Act, herein called the Act, by suspending and dis- ployment or any term or condition of employ- charging employees for engaging in protected concerted ment because they engage in activities protect- activities, and interrogating and threatening employees, ed under Section 7 of the Act. in violation of Section 8(a)(1) of the Act, and discharg- WE WILL NOT create the impression of sur- ing employees because of their membership in or activi- veillance of the union activities of our employ- ties on behalf of the Union in violation of Section 8(aX3) ees. of the Act. WE WILL NOT threaten our employees with Briefs were filed by counsel for the General Counsel discharge if they join Amalgamated Clothing and counsel for Respondent. Upon consideration of the and Textile Workers Union, AFL-CIO, CLC, entire record, the briefs, and my observation of the de- Hudson Valley Area Joint Board, herein called meanor of the witnesses, I make the following: Hudson Valley Area Joint Board, herein called the Union, or any other labor organization or FINDINGS OF FACT if they engage in other union activities. WE WILL NOT interrogate our employees I. THE BUSINESS OF RESPONDENT concerning their activities on behalf of the Respondent is a New York corporation with its princi- Union, or any other labor organization. pal office and place of business located in Walden, New WE WILL NOT threaten our employees to York, where it is engaged in the manufacture, sale, and reduce employee benefits and withhold wage distribution of paper cups and related products. During increases because of their membership in or ac- the past year, Respondent sold and shipped from its tivities on behalf of the Union or any other Walden, New York, facility products valued in excess of labor organization. $50,000 directly to points located outside the State of WE WILL NOT threaten our employees to New York. close our plant if they select the Union or any The complaint alleges, Respondent's answer admits, and I find that Respondent is, and has been at all times other labor organization to represent them. material, an employer engaged in commerce within the WE WILL NOT in any other manner interfere meaning of Section 2(2), (6), and (7) of the Act. with, restrain, or coerce employees in the exer- cise of the rights guaranteed them under Sec- 11. THE LABOR ORGANIZATION INVOLVED tion 7 of the Act. The complaint alleges, Respondent's answer admits, WE WILL make whole Lisa Van Nostrand, and I find that Amalgamated Clothing and Textile Alice Hulzenga, Carol Thompson, Marie La Workers Union, AFL-CIO, Hudson Valley Area Joint Bar, Alice Lubitz, Lori Day, Roberta Lubitz, Board is a labor organization within the meaning of Sec- Cynthia Ciatto, Patty Williams, and Ann tion 2(5) of the Act.' Hornbeck for their lost earnings, plus interest. WE WILL offer Marie La Bar immediate and 111. CONCLUDING FINDINGS full reinstatement to her former job or, if her job no longer exists, to a substantially equiva- lent position without prejudice to her seniority Respondent employs approximately 50 employees at its or other rights and privileges previously en- Walden, New York, location of which approximately 40 joyed, and WE WILL make her whole for her employees are classified as production employees. None lost earnings, plus interest, of the employees employed by Respondent are represent- ed by the Union or any other labor organization. Respondent operates three production shifts from FIBRACAN CORP. Monday through Friday. The shift hours are 8 a.m. to 4 DECISION p.m., 4 p.m. to 12 midnight, and 12 midnight to 8 a.m. Each shift is supervised by a shift supervisor, who is ad- STATEMENT OF THE CASE mittedly a supervisor within the meaning of the Act. The HOWARD EDELMAN, Administrative Law Judge: This ' Respondent amended its answer at the hearing to admit the complaint case was heard before me on December 10 through 13, allegation concerning the status of the Union. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shifts, with the supervisors, are rotated every 2 weeks. concern for the employees' safety, the employees under The shift supervisors report directly to the plant man- his supervision were devoted to him. ager who is in overall charge of the plant. The plant Minton testified that when he replaced Faulls as plant manager reports directly to Edgar DeLusa, president at manager, on March 5, 1979, he felt resistance to his su- Respondent's Canadian facility (the parent company). pervision from Faulls and Johnson. For example, both The production employees are generally classified as Johnson and Faulls opposed different operating tech- packers and machine operators. niques established by Minton concerning waxing cups, Respondent commenced operation sometime during conveying cups, and removing the cups from the chutes. the summer of 1978. Lawrence Minton, Respondent's In addition, Johnson stressed production. Minton felt plant manager since March 5, 1979, concedes that upon Johnson sacrificed quality in order to achieve produc- his assumption of the position of plant manager he ob- tion. Minton wanted to clean up and reorganize the plant served a number of safety problems that existed and re- which would require Saturday work. Johnson refused to quired correction. Among the problems he observed work on Saturdays. According to Minton when he as- were the stacking of large rolls of bottom stock on end sumed the job of plant manager, he ordered an end to which tended to increase the risk of falling and causing smoking and taking snacks by the machines. He marked injury, smoking was permitted in production areas, there off an area on the production floor to be used as the was an inadequate number of fire extinguishers in the smoking area. Yet, according to Minton, despite his rule plant, there were no protective guards on the head rim- concerning smoking, Johnson continued to permit em- ming area of the cup machines, there were no see ployees under his supervision to smoke by their ma- through plexiglass shields over the metering gears of the chines. On March 15, Minton observed Johnson smoking cup machines, the waxers were operating at an unneces- a cigarette while lying under a machine. He called him sarily high temperature which resulted in waxfires, the 6- into his office and spoke to him about it. Johnson said it foot stiller machine was not provided with a protective was his business what he did on his shift. On March 16 guard, there was no spring loaded shield to enclose the Minton decided to discharge Johnson and Faulls because cup oven opening of the patio waxer, there was no light of his feelings that both individuals were resistant to his signals to indicate whether the machines were running, ideas and because of the problems he was having with there was a shortage of first aid kits, there was oil and Johnson set forth above. Minton notified Faulls and excessive wax buildup on the production floor, and many Johnson of his decision on March 16 around 8 a.m. other safety problems. As a result of these safety prob- The March 16 Walkout lems, a number of employees suffered a variety of inju- ries, some of them serious. When Johnson left Minton's office following notifica- Minton, as set forth above, became plant manager on tion of his discharge, he met with Lisa Van Nostrand, an March 5, 1979, succeeding Sam Faulls who stayed on in employee on his shift. He told Van Nostrand of his dis- a transitionary consulting capacity. At the time Minton charge. Van Nostrand then called a number of employ- became the plant manager, the shift supervisors were Mi- ees on Johnson's shift to tell them that Johnson was dis- chael Johnson, Gerald Shafer, and James Bruyn. charged. Among the employees called by Van Nostrand Michael Johnson was extremely popular with the em- was Alice Hulzenga, who also proceeded to call a ployees on his shift. He was an excellent mechanic who number of employees on Johnson's shift and inform them had been employed by Paper Machine Company (PMC), of his discharge. During these phone calls, the employees the company who had manufactured Respondent's cup decided they would meet with Minton prior to the start machines, immediately prior to his employment with Re- of their shift at midnight to protest Johnson's discharge. spondent. He would maintain and repair the machinery There is some question as to whether they intended to for his shift. He would move heavy paper rolls for the walk out in protest of Johnson's discharge, whatever the employees and take them to the employees' machines.2 result of their proposed meeting with Minton, or wheth- Johnson would train new employees, instruct the em- er they would meet with Minton, listen to what he had ployees as to first aid, and run and clean the machines to say, and then decide what if any action to take. In when the shift was short handed. In addition, his shift either event, I do not find it material to the decision of consistently maintained the highest production. Howev- this case. er, he was rather loose in his supervision of employees At 11:45 p.m., all the employees on the Johnson shift, and permitted them to smoke and take snacks on the pro- except for Clara Miller and Brenda McGinnes met in the duction floor by their machines, a questionable safety break room. Also present from another shift were Linda practice. On March 9, 1979, Johnson wrote a letter to Sanservire, Alice Hulzenga's sister, Debbie Wieczurak, Minton that he showed to the employees on his shift and Eileen Loertsher, an employee on Johnson's shift wherein he expressed concern for the safety conditions who was out on disability at the time. The employees on that existed in the plant and implored Minton to correct the Johnson shift punched their timecards in at 11:45 these unsafe conditions. As a result of Johnson's ability p.m. but met in the break room rather than proceeding to repair and maintain the plant machines, his high pro- to work. duction records, his loose supervision, and his apparent Minton testified that around 11:30-11:45 he arrived at the break room with Greg Jenks, Johnson's replacement. 2 Most of the production employees were female employees. Johnson's As he and Jenks entered the room, Van Nostrand shift was an all female shift, screamed at him, "Why did you fire Mike you son of a FIBRACAN CORP. 165 bitch mother fucker?" According to Minton, Van Nos- The only significant issue in dispute in connection with trand was very upset throughout the meeting. It was ob- what took place during this meeting is the abusive and vious to him she had been crying. She kept repeating profane language attributed to Van Nostrand by Minton over and over, "What am I going to do, I can't find set forth and described above. Mike [Johnson]." 3 Minton informed the employees that Supervisor Greg Jenks, Respondent's witness, general- he had discharged Johnson and Faulls and that Greg ly corroborated Minton's testimony concerning Van Jenks would be their new supervisor. Hulzenga then pro- Nostrand's profane statements directed to Minton. Van tested that Jenks was not qualified. Minton disputed this Nostrand denied using such language and asserted that at and proceeded to set forth Jenks' experience. all times during this meeting she treated Minton "with The General Counsel's witnesses, Van Nostrand, Hul- respect." zenga, Sanservire, and La Bar, testified in substance that For reasons set forth below in the section of this Deci- the employees, particularly Van Nostrand and Hulzenga, sion relating to the discharge of Van Nostrand, I credit pointed out to Minton that, with Johnson gone, their Minton and Jenks and find that Van Nostrand directed working conditions would be less safe since Johnson was to Minton the obscene and profane language attributed an excellent mechanic who was able to maintain the ma- to her by Minton and Jenks. chinery in a safe condition and was additionally sincerely March 16 was a Friday. On Monday, March 19, concerned with safety conditions in the plant. The em- Minton sent the following mailgram to all those employ- ployees also pointed out that Johnson's shift had the top ees, including Van Nostrand, who had walked out on shift production in the plant and implied that production March 16: would drop as a result of Johnson's termination. Min- ton's testimony essentially corroborates that of the Gen- Due to your refusal to work Friday, March 16, you eral Counsel's witnesses. In this connection, Minton testi- are hereby suspended for 2 days. If you desire to fled that a number of employees asked him, "How are continue your employment, come in to see me we going to work safely with Greg [Jenks]," and "we Wednesday [March 21], between 8:00 a.m. and 4:00 had top production; what are we going to do without p.m. to discuss your employment. Requirements, Mike?" Other employees pointed out that Johnson was Greg Jenks will be the new supervisor. If you do an excellent mechanic and, without him to maintain the not contact me by Wednesday, I will consider you machines, their productivity would go down. In this terminated. connection Minton testified as follows: The mailgram was signed by Minton. JUDGE EDELMAN: Was the subject of safety con- ditions discussed at all during this meeting? The evidence, including the admissions of Minton, es- dINTONs d:Scfedt a al .duion t ereting? tablishes the employees met with Minton on March 16 MINTON: Safety conditions were only discussed in respect that its going to be less safe with Mike for the purpose of protesting the discharge of Supervisor Johnson, because they believed that his discharge would JUDGE EDELMAN: Who said that? adversely affect their safety conditions and their produc- :JUDGE EDELMAN: Who said themat? . ... tivity, which was a factor in their job evaluation. When such meeting failed to achieve Johnson's reinstatement, In view of the testimony of the General Counsel's wit- the employees walked out to further protest his dis- nesses and the candid admissions of Minton, I find that charge. the purpose and thrust of this meeting was to protest the The Board has held that a walkout by employees to discharge of Johnson because the employees believed his protest the discharge of a supervisor who they believe discharge would have an adverse affect on their safety has a direct impact on their job interests and on their job conditions and on their production. performance is protected under Section 7 and that if an The meeting was by all accounts a volatile meeting; employer discharges or suspends these employees for en- tensions were high and voices raised. The meeting lasted gaging in such walkout he violates Section 8(a)(l) of the about a half hour. It ended when the employees walked Act. Puerto Rico Food Products Corp., Trade Winds Foods out. According to Minton, the employees stated they Inc. and Island Can Corp., 242 NLRB 899 (1979); Holi- were leaving because Johnson was fired. All shift em- day Inn of Henryetta, 198 NLRB 410 (1972); Howard ployees scheduled to work that night except for Anna Manufacturing Company, Inc., 227 NLRB 1858 (1977); F. Munderville refused to report to work and left the C. F Papers Inc., a Division of the Mead Corporation, 211 plant.4 NLRB 657 (1974); Dobbs House, Inc., 135 NLRB 888 (1962). ' Throughout the hearing there was considerable testimony that Van Clearly safety conditions in the plant and quantity of Nostrand was pregnant by Johnson and that they were to be married. production, where employee job evaluation is in part Van Nostrand denied she was pregnant by Johnson. On the basis of over- based on such production, are factors which have direct whelming testimony by numerous of the General Counsel's and Respond- ent's witnesses, I conclude that Johnson and Van Nostrand had a close impact on employees' job interests and job performance. personal relationship. I find it unnecessary to determine whether Van Sargent Electric Company, 237 NLRB 1545 (1978); Lloyd Nostrand was pregnant by Johnson or whether they were to be married. A. Fry Roofing Company, Incorporation, of Delaware, 237 'The following employees scheduled to report to work on the March NLRB 1005 (1978); Modern Carpet Industries Inc., 236 16 shift participated in the walkout: Lisa Van Nostrand, Alice Hulzenga, Carol Thompson, Marie La Bar, Alice Lubitz, Lori Day, Roberta Lubitz, NLRB 1014 (1978); Union Boiler Company, 213 NLRB Cynthia Ciatto, Patty Williams, and Ann Hornbeck. 818 (1974). 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, the evidence set forth above clearly estab- Following Minton's initial interview with Van Nos- lishes that the employees had reason to believe that trand, he next interviewed Hulzenga. Hulzenga testified Johnson's continued employment would have advanced that Minton asked her if she wanted her job back and and improved safety conditions and continued top pro- she said she did. Minton then asked her what her prob- duction. That Respondent had good and sufficient reason lems were and Hulzenga mentioned various problems she to discharge Johnson is immaterial as to whether the em- believed related to the safety of the plant operation. ployees' walkout to protest his discharge is protected. Minton agreed that there were indeed numerous safety Puerto Rico Food Products Corp., supra. problems in existence but that they would be corrected. There is no question that the employees were suspend- He informed Hulzenga that from now on the female em- ed because of their walkout. The mailgrams notifying the ployees would no longer be required to lift heavy paper employees of their suspension for the March 16 walkout rolls. La Bar testified to a similar conversation about conclusively establish the reason for the suspension. safety problems in the plant with Minton during her in- terview. Accordingly, I find that the employees walked out on March 16 to protest the discharge of Supervisor Johnson .Van Nostrand testified that following her initial inter- view with Minton, she remained in the break room al- who they believed improved their safety conditions on view with Mton, she remained in the break room al- the b ieved p i sf dtionthough not specifically instructed to do so by Minton. the job and achieved top quantity shift production, and According to Van Nostrand following Hulzenga's inter- that their suspension by Respondent because of such view, Huzenga told her that Minton wanted to speak to walkout violated Section 8(a)(1) of the Act. view, Hulzenga told her that Minton wanted to speak to her following his interviews with the other employees. The Discharge of Lisa Van Nostrand Sandra Simzak, an employee, called by Respondent, testified that she happened to be present in the break On March 21, around 10 a.m., the employees who had room after Van Nostrand completed her initial interview received the mailgrams described above, assembled in with Minton and that, during a brief conversation with the break room. Minton interviewed each employee sep- her, Van Nostrand told her that she had called Minton a arately in his office. Van Nostrand was the first employ- "stupid fuck."6 ee to be interviewed. Minton testified that following his interviews with the Minton testified he began his interview with Van Nos- remaining employees he called Van Nostrand into his trand by stating to her that there were only two things office. At this time, he told her he had decided to termi- to discuss. One, whether she wanted her job back and, nate her because of her abusive language. Minton testi- two, whether he wanted to take her back. Minton then fled in this connection as follows: pointed out that he had been embarrassed by her profan- ity directed toward him during the March 16 meeting. According to Minton, Van Nostrand replied, "I still made up your mind that you were goig to dis- charge her at the time she reported to your office think you're a rotten son of a bitch." At this point, on the 21st? Minton told Van Nostrand to wait in the break room be- MINTON: No, I hadn't. cause he was going to have to decide whether he wanted JUDGE EDELMAN: Could you pinpoint what she to take her back. Van Nostrand then left and waited in said during the interview which became the decid- said during the interview which became the decid- the break room with the other employees. Van Nostrand testified that Minton stated he had two ing factor in your decision to fire her? MINTON: It was when she called me a rotten son things to discuss with her: whether he wanted her back of a bitch (On March 21). and whether she wanted to come back. Van Nostrand re- plied she needed her job and was here for her job. Van Nostrand testified that after Minton had interviewed Minton then asked her if she were still seeing Johnson, the remaining employees, Minton summoned her to his and she replied she was here about her job and not about office and informed her that he had considered the Johnson. Minton then told her that he did not feel Re- matter and he did not wish to continue her employ. Van spondent could use her any longer. Van Nostrand asked Nostrand asked if she were fired and Minton replied that whether she was fired and Minton replied, "No, you're she had quit. quitting, you quit when you walked out." Van Nostrand The discharge of Van Nostrand presents a clear credi- then left and returned to the break room. Van Nostrand bility issue. Minton asserts that he was both angered and denies the use of profane language attributed to her by embarrassed by the profanity directed to him by Van Minton during the March 21 interview. For reasons set Nostrand during the March 16 meeting. He further as- forth below, I credit Minton's version of this interview serts that her discharge was triggered by her utterance of and find that Van Nostrand used the profanity during the similar profanity directed to him during the March 21 in- March 21 interview attributed to her by Minton. terview. Minton then interviewed all other employees who had Van Nostrand, on the other hand, denies the profanity received similar mailgrams. All of these employees with attributed to her by Minton and asserts that, at all times the exception of Van Nostrand were informed by Minton during the March 16 meeting and March 21 interview, that they could return to work that night.5 she treated Minton "with respect." As set forth above, I credit Minton. 'The employees who were reinstated on March 21 with the exception of Van Nostrand are set forth above in fn. 4. 'Van Nostrand was not called to rebut this testimony. FIBRACAN CORP. 167 Minton's testimony in connection with Van Nostrand's instate Van Nostrand on March 21 solely because of the use of profanity directed toward him during the March profanity she directed to him during the March 16 meet- 16 meeting is essentially corroborated by Jenks. ing and during the March 21 interview. I was very impressed with the demeanor of both The evidence establishes that the most outspoken em- Minton and Jenks. Both individuals were consistently re- ployee during the March 16 meeting that preceded the sponsive to questions put to them on both direct and walkout was Hulzenga. Other outspoken employees in- cross-examination. Minton was particularly candid in his cluded La Bar. Van Nostrand, who was emotionally response to questions put to him on cross-examination upset concerning the whereabouts of Johnson with and frequently made admissions against Respondent's in- whom she had a strong personal relationship, contributed terest. In contrast, I was not impressed with Van Nos- very little to the very little to the discussion centering on the reasons for trand's demeanor, particularly during cross-examination Johnson's discharge and its affect on the employees during which she was extremely hostile and at times ar-he gumentative. Additionally, she was often vague and un- except for vile and profane language she directed to ~~responsive. Minton in the presence of other employees. Therefore, Further, the testimony of employees called as wit- absent her use of such profanity, there would be no nesses by both the General Counsel and Respondent reason for Minton to sigle her out and refuse to rein- tends to establish that Van Nostrand did utter the pro- state her while at the same time reinstating every other fanity attributed to her by Minton and Jenks at the employee who took part in the walkout. March 16 meeting and by Mlnton at the March 21 inter- Further, Minton's mailgram to all employees, includ- view. In this regard, the General Counsel's witness, ing Van Nostrand, participating in the walkout would Anne Hornbeck, testified that during the March 16 meet- appear to have contemplated reinstatement. Had he ing, Van Nostrand repeatedly used the words "fuck," wished to discharge her for her role in the March 16 "shit," and "cocksucker," although Hornbeck was unable walkout he could have sent her an appropriate mailgram to testify whether such profanity was directed at Minton. or none at all. That Van Nostrand was the only employ- Even Hulzenga, the General Counsel's witness and ee not reinstated following the interviews on March 21 close friend of Van Nostrand, was rather equivocal on suggests that it was something that took place during her this issue. When asked whether Van Nostrand called interview on March 21, which resulted in her termina- Minton "a son of a bitch," she testified, "The word was tion rather than her participation in the walkout. In this used many times." However, I do not recall whether it connection during Hulzenga's and La Bar's interviews, came from "Lisa's (Van Nostrand's) mouth."' the most outspoken employees during the March 16 Respondent's witness, Sandra Simzak, testified that, meeting, Minton engaged in sincere discussion with them following Van Nostrand's initial interview with Minton concerning the reasons for the walkout and during these on March 21, she admitted calling Minton a "stupid interviews conceded there were safety problems and as- fuck." This testimony was not rebutted by Van Nos- sured the employees that they would be corrected. These trand. discussions, with the most active participants of the Additionally, there is evidence that Van Nostrand had March 16 meeting which led to the walkout coupled directed similar profanity to Sam Faulls, the plant man- with the reinstatement of all employees who participated ager prior to Minton. In this regard, Supervisor Jim in the walkout, except for Van Nostrand, lead me to be- Bruyn testified that sometime in December 1978, when lieve that Minton recognized the problems precipitating Van Nostrand was demoted from lead operator to opera- the walkout and was willing to let bygones be bygones. tor by Sam Faulls, the plant manager at the time, he Accordingly, I do not believe Minton refused to reinstate heard Van Nostrand call Faulls a "no good bastard," a Van Nostrand because she participated in the walkout. "miserable fuck," and a string of similar obscenities. This Rather, I conclude that Van Nostrand was discharged testimony also was not rebutted by Van Nostrand. solely because of the vile and profane language she di- Accordingly, based on the above considerations, I find rected to Minton on March 16 coupled with similar pro- that Van Nostrand directed the profane language to fanity directed to Minton on March 21. Accordingly, I Minton during the March 16 meeting and during the conclude that Respondent did not violate the Act as al- March 21 interview attributed to her by Minton. The evidence established that, with the exception of leged by his discharge of Van Nostrand. Van Nostrand, Minton reinstated every emoloyee who Union Organization and Company Knowledge participated in the walkout on March 16. Minton denies he discharged Van Nostrand because she took part in the On March 22, following her discharge, Van Nostrand walkout on March 16. He contends that he refused to re- spoke with her mother and informed her of the events surrounding her discharge. Van Nostrand's mother con- 7On direct examination Hulzenga denied that Van Nostrand directed tacted a friend who in turn contacted the Union. Pursu- any profanity to Minton. The General Counsel's witnesses, La Bar, Day, ant to this contact with the Union, Union Manager and Sanservire, also generally denied that Van Nostrand directed any profanity to Minton. However, Sanservire testified that obscenities were Robert Redlo telephoned Van Nostrand. Van Nostrand freely used through the course of the meeting. Day testified that she was described the March 16 walkout and the unsafe condi- in the back of the room while Minton and Van Nostrand were in front tions that existed throughout the plant. Redlo explained and it was hard to hear what was going on because everyone was talking to Van Nostrand the advantages of union representation at once. Neither Hulzenga nor La Bar impressed me as a credible wit- ness. Their credibility is discussed below in connection with Hulzenga's and how the Union might be able to help the employees discharge. concerning working conditions. Van Nostrand agreed to 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contact those employees who might be interested in the cards at this meeting and returned the signed cards to Union. Redlo. Among the employees who were present and On March 23, Van Nostrand contacted Hulzenga at signed cards were Hulzenga, La Bar, and Day. La Bar home and asked her if she would be interested in trying and Day were given extra cards to distribute to other to organize the employees. employees. In order to advertise a planned union meeting sched- On April 4, at 10 a.m., Hulzenga, La Bar, and Van uled for April 1, Van Nostrand prepared a written notice Nostrand met with Redlo outside the plant. entitled the "Pajama Game." The notice set forth that a Redlo, accompanied by the three women, then went union meeting would be held on April I at the nearby inside. Redlo asked the receptionist to see Minton. The Unitarian Meeting House. four individuals waited for Minton to appear. In about 15 On March 26, Van Nostrand gave Hulzenga a packet minutes Minton appeared with two policemen. Redlo in- of pajama game leaflets and asked her to distribute them troduced himself to Minton and told Minton his Union among the employees. represented a majority of employees and requested rec- On or about March 27, Hulzenga gave a number of ognition. Minton asked them to leave and they left. pajama game leaflets to an employee on one of the other Minton states he summoned the police because of a shifts and asked her to pass them out. Hulzenga also rumor he had heard about possible union violence. gave La Bar some of the leaflets to distribute. Hulzenga then distributed leaflets to employees in the break room Interrogation and Threats prior to the start of their shift. La Bar additionally dis- Linda Sanservire testified that, on March 29, Supervi- tributed some leaflets during her shift hours. There is no sor Gerald Shafer asked her to come to his office. When evidence that Minton or any supervisory employees ob- Shafer and Sanservire were alone in Shafer's office served Hulzenga or La Bar distributing these leaflets. Shafer told her he knew about the scheduled union meet- Neither Minton nor any supervisor spoke to La Bar or ing and that the Company knew who the representatives OHulzenga about the Union. an employee, asked his of the Union were, and that he had a list of those em- On March 28, Neil Bolsten, an employee, asked his ployees planning to attend. Shafer stated he knew Hul- shift supervisor, Jim Bruyn, if he were going to Lisa's zenga and Lisa were behind it. Shafer then stated that zenga and Lisa were behind it. Shafer then stated that (Van Nostrand's) pajama party. Bruyn asked him what any employee involved with the Union would be let go. any employee involved with the Union would be let go. he meant and Bolsten handed him a copy of the pajama He asked Sanservire whether she was going to the union game leaflet. Bruyn told Bolsten if he wanted to go to meeting because of her sister (Hulzenga). Sanservire said the meeting he should go. she was going for herself and Shafer asked her not to go. Later on the same shift, Sandra Simzak, another em- Shafer told Sanservire he had lost a job once because of ployee, came over to Bruyn, her supervisor, with a a union; that unions were no good; that if a union came packet of leaflets and told him that Linda Sanservire had in the employees could lose a few holidays and raises in the employees could lose a few holidays and raises given them to her to give out. Bruyn told her not to give would not be forthcoming; and that, if necessary, the them out. Simzak gave them instead to Bruyn. C On March 29, Bruyn gave Minton a copy of the On March 29... Bu. gaveMinton a, copy of.the During his direct examination, Minton denied he au- pajama game leaflet. This would appear to be Minton's During his direct examination, Minton denied he au- thorized or was aware of Shafer's statements to Sanser- first knowledge of union organization. On March 29, Anne Hornbeck was present in Minton's Onffice. Mintonarch 29, Anne Hornbeck was pre discussent ing local La Bar testified that, on March 28, she and Supervisor schools. Minton, who was new to the area, was trying to Jenks were discussing the plant generally. It was brought schools. Minton, who was new to the area, was trying to up by one of them that the Company's Canadian plant find a suitable school in which to enroll his children. up by one of them that the Company's Canadian plant During this discussion, Minton mentioned that he was could notwas unionized. asked Jenks why the employees aware that the Union was trying to organize the employ- could not have a union came in to this plant; Jenks repled that ees and had scheduled a union meeting for April 1. He before a union came in to this plant Respondent would ees and had scheduled a union meeting for April 1. He then told Hornbeck that he could not stop the Union rather close the plant down.9 Jenks did not deny this from trying to get in. statement. On March 21, Lori Day, an employee, was present in I find the following undenied statements by Supervi- Minton's office. Jenks was also present. Minton had writ-o be attributable to Respondent ten the words Blue Cross-Blue Shield on a blackboard. and violative of Section 8(a)(l) of the Act. Minton told Day that the Company had the best benefits I find Shafer's statement to Sanservire that he knew in the area but that if a union wanted to come in she about the scheduled union meeting, that he had a list of should listen to what they had to say and then make those employees planning to attend, and that he knew them put it in writing and, if they were willing to put it Hulzenga and Lisa (Van Nostrand) were behind it con- in writing, he would listen to them. stitutes creating the impression of surveillance. Jarva In- On April 1, the union meeting was held at the Unitar- corporated, 235 NLRB 1047 (1978). ian Meeting House as scheduled. About 20 employees I find Shafer's statement to Sanservire that any em- were present. Union Manager Robert Redlo was present ployees involved with the Union would be let go consti- for the Union. Redlo explained the benefits of Union rep- resentation and informed the employees present that if ' Shafer was not called as a witness by Respondent. He left Respond- resynwanted in the ey to ig ent's employ in April 1979. they wanted to join the Union they would have to sign 9 The complaint was amended at the hearing to allege that the state- union authorization cards. All employees present signed ment by Jenks concerning plant closure was a violation of Sec. 8(aXI). FIBRACAN CORP. 169 tutes an unlawful threat of discharge. Didde-Glaser, Inc., train a new employee by having him observe her operate 233 NLRB 765 (1977). these machines. '" I find Shafer's questioning of Sanservire as to whether Sometime during the morning on March 30, the lower she was going to attend the union meeting constitutes ink pan of the 7-ounce machine operated by Hulzenga unlawful interrogation. La-Z-Boy Tennessee, 233 NLRB overflowed. The cup machines have two ink pans, an 1255 (1977). upper and lower pan. Each pan contains a different color I find Shafer's statement to Sanservire that if the ink. A printer contacts each pan and prints a particular Union came in the employees could lose a few holidays legend on the cup. Jenks corrected the overflow by un- and raises would not be forthcoming constitutes a threat kinking the plastic hose connected to the bottom of the to reduce benefits and withhold raises. Petco Inc., Inter- ink pan. state, 238 NLRB 1297 (1978); Jamaica Towing, Inc., 236 Around 1:30 p.m., the top ink pan on the 9-ounce ma- NLRB 1700 (1978). chine being operated by Hulzenga overflowed. This is a I find Shafer's statement to Sanservire that if necessary more serious overflow than an overflow of the lower ink (to keep the Union out) the Company would close its pan because the ink overflow mixes with the ink of a dif- doors and Jenks' statement to La Bar that before a union ferent color in the bottom pan. As a result the cause of came in Respondent would rather close the plant down the upper pan overflow has to be corrected and the ink constitutes an unlawful threat to close the plant. Bruce in the lower pan, which is being recycled, has to be Duncan Co. Inc. 233 NLRB 1243 (1977). changed. In addition, the printing plate and hose at- tached to the lower ink pan must be cleaned, resulting in Discharge of Alice Hulzenga considerable downtime for the machine. When Jenks observed this overflow he at first attempt- Alice Hulzenga was employed by the Company at the ed to clear it by sticking a screwdriver into the hose at time of her discharge on March 30 as a lead operator. the bottom of the pan, thus removing the obstruction. She held this position since December 1978. However, this effort was unsuccessful. This hose leads to On March 29, a broken seam clamp was discovered on a container which recycles the ink back to the top of the the machine that Hulzenga was operating. Minton and pan. Supervisor Jenks were examining the broken seam clamp At this point, Minton arrived, removed the hose, a 3- which appeared to have resulted from a stress fracture. to 4-foot section, and took it to a nearby sink where he While they were examining the seam clamp Hulzenga ran water through it. He discovered the cause of the ob- stated, "I think someone's trying to sabotage us." Neither struction to be a small wad of steel wool which he re- Jenks nor Minton suspected sabotage at the time. moved. There was no evidence elicited which would dis- On March 30, at 6:30 a.m., Supervisor Jerry Shafer pute Minton's claim that the steel wool in the recycle told Minton that Linda Sanservire, Hulzenga's sister, told hose was the cause of the overflow. him (Shafer) the night before that Hulzenga had done According to the testimony of Minton, Jenks, and Su- something in the plant that would be found out and for pervisor Bruyn, the only possible way a wad of steel which she might go to jail. Shafer told Minton that San- wool, sufficient in size to plug the recycle hose, could servire would not divulge what it was Hulzenga had become lodged in the hose would be for it to be inten- done. Minton told Shafer to submit to him a written tionally placed there. A physical examination of the pan memo concerning this conversation. Shafer did so. The and recycle hose supports this testimony. The pan is a memo is dated March 30.10 flat pan about I inch high. Ink enters the pan through a During this same conversation with Minton, Shafer tube over one end of the pan. The ink flows to the told him that he had found alcohol in the glue barrel, height of a bushing located in the center of the pan which reduces the efficiency of the glue and Speedy which protrudes about three-eighths of an inch above the Dry, a substance normally sprinkled on the floor to bottom of the pan. The inside diameter of the bushing is absorb oil, in the filter of the 16-ounce cup machine. about three-fourths of an inch and the inside diameter of This would cause the machine to stop running. In addi- the recycle hose below the bushing slightly more than tion, he told Minton that someone had turned the heat three-fourths of an inch. Minton testified that normally dials on the 12-ounce machine up to maximum levels. steel wool would not be used for any purpose in the vi- This could cause the machine to malfunction. Minton cinity of the ink pan. Moreover, if a wad of steel wool took no action at this point. sufficient in size to plug the hose were to accidently fall into the ink pan it would sink to the bottom of the pan On March 30 when Hulzenga reported to work at 8 nrather than become lodged in the bushing. Hulzenga tes- a.m. she was assigned by Jenks to work the 7- and 9- am. she was assigned by Jenks to work the 7- and 9- tified that, shortly before the overflow, she saw employ- ounce cup machine. In addition, she was assigned to ee Bob Kubilius cleaning the printer which is located Io Shafer left the employ of the Company shortly after March 30. He above the ink pan with steel wool. This testimony ap- was not called by the Company to testify. Sanservire denied making such pears to be a speculation by Hulzenga that particles of statements to Shafer. I find it unnecessary to determine whether in fact Sanservire made the statements attributed to her by Shafer. I do find that " Hulzenga denies she was assigned to work the 9 -ounce machine. For Shafer informed Minton of the statements attributed by Shafer to Sanser- reasons set forth below, I credit the testimony of Jenks who testified he vire. I make this finding based on Minton's credibility as set forth and assigned her to the 9-ounce machine and the testimony of Jenks and discussed above, and on Shafer's memo which was written in his own Minton who testified that they observed her working both the 7- and 9- hand and dated March 30. ounce machine that day up to around 1:30-2 p.m. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steel wool may have fallen into the pan and clogged the was assigned only the 7-ounce machine and that hose accidentally. Kubilius denied that he ever used steel Loertsher was assigned to operate the 9-ounce machine. wool to clean the cup machines. However, it is obvious Loertsher and La Bar corroborate this testimony. Hul- from the physical setup of the pan that, assuming Hul- zenga conceded that she took over operation of the 9- zenga's testimony to be true, particles falling from the ounce machine on March 30 during Loertsher's morning printer into the pan would settle to the bottom. More- break and again during her lunch period of one half hour over, any particles which might float on the top would which took place about noon. Jenks, on the other hand, flow freely through the bushing and hose. According to testified that he assigned Hulzenga to the 7- and 9-ounce Minton, there have been no other instances, either prior machines and he and Minton testified that they observed to March 30 or subsequent thereto, where an ink pan Hulzenga operate the machine at various times through- overflow was caused by a steel wool blockage in the re- out the day. For the reasons set forth immediately cycle hose. below, I credit Minton and Jenks. Accordingly, I find that the ink overflow of the top For the reasons set forth above, I found Minton and pan was caused by a wad of steel wool forced into the Jenks to be credible witnesses. Additionally, Minton and recycle hose. I further find that this was an intentional Jenks' testimony is supported by company records. In act. ~~~~~~~~~act. ~~this connection, Minton and Jenks testified that in a Around 2 p.m., a few minutes after Minton discovereded t the steel wool in the recycle hose, he asked Jenks to given week whichever employee was assigned to operate send Hulzenga into his office. Hulzenga reported to Min- the 7-ounce machine would also be assigned to operate ton's office several minutes later. Minton showed Hul- the 9-ounce machine Jenks testified that Hulzenga was zenga the wad of steel wool he had removed from the assigned to operate the 7- and 9-ounce machines the recycle hose of the 9-ounce machine and told her this week of March 30 because they were the oldest ma- was the cause of the overflow. chines in the plant and had maintenance problems which According to Hulzenga, she told Minton that Kubilius required the assignment of the most capable operator to was cleaning the printer of the 9-ounce machine with insure that they would run effectively. Respondent's steel wool. Minton replied that he had to let her go. breakdown records support the testimony of Minton and Minton testified that he told Hulzenga that he believed Jenks. They establish that Hulzenga was assigned and she was responsible for plugging the recycle hose and operated both machines on March 27 and 29.'3 that he had reason to believe she was responsible for The breakdown reports also establish that, on March some of the other things that have been going on in the 30, Hulzenga was assigned to operate the 7-ounce ma- plant over the last couple of days. He did not elaborate chine. No breakdown report was filled out for the break- on what other things he was referring to. 2 down of the 9-ounce machine. 14 Minton then told Hulzenga that he had a conversation Hulzenga, on the other hand, was unable to recall who with Shafer concerning a conversation Shafer had with was assigned to work the 9-ounce machine on any other Sanservire. He did not relate the details of the conversa- day that week other than March 30, when she alleges tion between Shafer and Sanservire described above. He Loertsher was assigned to operate the 9-ounce machine, then told Hulzenga that he was terminating her. Hul- although the breakdown reports filled out by her estab- zenga stated, "Larry [Minton], I'm not going to argue lish that she operated the 9-ounce machine on March 27 with you." She then left Minton's office. and 29. Further, Hulzenga testified that it was she who After Hulzenga left Minton's office, she went to the made the machine assignments and that, during the week plant floor. She informed employees Loertsher and La of March 30, only three operators were present including Bar that she had been terminated. Both Loertsher and La herself and that she assigned one operator to a machine Bar proceeded to shut off their machines and, without in accordance with the standard procedure. This testimo- obtaining permission, left the plant with Hulzenga. ny however is in direct conflict with the breakdown re- Loertsher and La Bar carpool with Hulzenga. Hulzenga ports for the week of March 30 which establish that she had driven them to work this day. There is no public worked both the 7- and 9-ounce machines on March 27 transportation available and employees use carpools ex- and 29. Moreover, on her direct testimony, Hulzenga clusively as a means of transportation to and from work. placed the crucial breakdown on the 9-ounce machine to Hulzenga denied that she put the wad of steel wool in have taken place at 10:30 a.m. On rebuttal, she correctly the recycle hose causing the overflow on the 9-ounce placed the time around 1:30 p.m. machine. She also denied responsibility for the alcohol in Loertsher testified on rebuttal that she was assigned to the glue barrel, Speedy Dry in the filter, the changed and operated the 9-ounce machine on March 30. I found settings on the heat dials, the broken seam clamp, and the overflow on the 7-ounce machine I conclude that ' Breakdown reports are filled out by the employees operating the ma- there is insufficient evidence to establish whether Hul- chine only if the machine breaks down. Apparently there were no break- zenga was actually responsible for any of these incidents. downs on either machine on March 28. Hulzenga also denied that she was assigned to operate " I do not find it significant that no breakdown report was submitted for the 9-ounce machine on March 30 since the breakdown which oc- the 9-ounce machine on March 30. She testified that she curred took place immediately prior to Hulzenga's discharge and Loertsher's exit from the plant with La Bar and Hulzenga. It would 1 This is an apparent reference to the broken seam clamp, the alcohol appear no breakdown report was submitted because whether Hulzenga or in the glue, Speedy Dry in the filter, the heat dials being set to a maxi- Loertsher was operating the 9-ounce machine, both individuals left the mum level on the 12-ounce machine, and the overflow on the 7-ounce plant shortly after the breakdown and there was insufficient time for the machine. operator to prepare such report. FIBRACAN CORP. 171 Loertsher to be a totally incredible witness. Throughout concerning the walkout on March 16. Under the heading her testimony, and especially on cross-examination and "Action to be Taken," Minton filled out, "Employee ter- on questions that were put to her by me, she avoided eye minated due to poor work performance." Minton testi- contact and constantly cast her eyes downward toward fled that he listed poor work as the reason for Hulzen- her lap. She also answered questions in a very tentative ga's discharge rather than suspected sabotage which he manner. However, the most significant factor in my eval- asserts was the actual reason because he did not want the uation of her credibility was her inability to recall any of record to reflect such a serious offense explaining, "that's the details concerning the overflow which precipitated just my inner type thing." He testified that the notation Hulzenga's discharge. When questioned on cross-exami- concerning the March 16 walkout and March 21 warning nation whether she had any problems with the lower pan merely reflected prior conduct the Company considered on the 9-ounce machine around 1:30 p.m., the approxi- improper. Minton testified the sole reason for Hulzenga's mate time of the overflow which immediately preceded discharge was suspected sabotage. Hulzenga's discharge, she could not recall. She did recall Upon consideration of all of the evidence, I conclude that a breakdown took place sometime during the day that Minton discharged Hulzenga because he believed but could not recall whether the breakdown involved the but could not recall whether the breakdown involved the that she had intentionally caused the overflow of the upper or lower pan or whether the breakdown took upper ink pan on the 9-ounce cup machine as described place in the morning or shortly before Hulzenga's dis- charge. Nor did she recall Minton and Jenks coming above, and may have been responsible for some recent over to investigate the problem and Minton removing malfunctions, breakdowns, and unusual occurrences de- the hose to clean it, nor his discovery of the wad of steel scribed above, rather than because of her participation in wool as the cause of the overflow. Her inability to recall the March 16 walkout or her activities on behalf of the such unusual events which immediately preceded and Union. precipitated Hulzenga's discharge and occurred on her I conclude that Hulzenga's participation in the March last day of work for Respondent convinces me most con- 16 walkout was not a factor contributing to her dis- clusively that her testimony was totally fabricated. 11 charge on March 30. In this regard Minton reinstated all Moreover, except for March 30, Loertsher was unable to employees, including Hulzenga, who participated in the recall the machines to which she was assigned to operate walkout except Van Nostrand who was discharged for that week. cause as set forth and described above. In addition, In support of Minton's and Jenks' testimony, Loertsher during Hulzenga's reinstatement interview on March 21, admitted that Hulzenga generally operated both the 7- Minton candidly acknowledged existing safety problems and 9-ounce machines at the same time. and sought Hulzenga's suggestions for correcting them. I do not credit La Bar's testimony that she observed This interview, as described by Hulzenga's testimony, in- Loertsher operate the 9-ounce machine on March 30. My dicated that Minton wanted to put the walkout behind, general impression of La Bar's demeanor was that she let bygones be bygones, and work with the employees was frequently vague and unresponsive to questions put toward correcting the existing safety problems. In this to her on cross-examination. Further her answers on spirit he told Hulzenga that from now on female employ- cross-examination were often given in a defiant tone of ees would no longer be required to lift heavy paper rolls. voice, an indication to me of hostility. Moreover, La Bar I credit Minton's explanation as to why the Company's gave contradictory testimony in connection with critical records contained the notations described above concern- issues involved herein. In this regard La Bar initially tes- ing the March 16 walkout and March 21 warning. I also tified that Loertsher operated the 9-ounce machine credit Minton's explanation as to why he noted in the during the entire week of March 30. However, this was Company's records that Hulzenga was discharged for contradicted by the breakdown reports described above. poor work rather than suspected sabotage. When this was pointed out to La Bar she subsequently I further conclude that Hulzenga's activities on behalf conceded she could not recall which machines were of the Union was not a factor contributing to her dis- being operated by any employees during the week of charge. The evidence establishes that Hulzenga was one March 30, except that she did recall that Hulzenga oper- of the most active employee union supporters. She dis- ated the 7-ounce machine and Loertsher operated the 9- tributed "Pajama Game" leaflets to employees, attended ounce machine on March 30. the April I union meeting, signed a union authorization Following Hulzenga's discharge, Jenks filled out an card, and distributed other cards to employees. Although employee warning record form. Upon the heading of there was no direct evidence to establish that Minton or "Company Remarks," Jenks wrote, "Employee walked other supervisory employees observed such activity, off job March 16, 1979. Since returned job performance Shafer's statement to Sanservire that he knew that Van has been marginal. Day in question (March 30) the print- Nostrand and Hulzenga were behind the Union is evi- ing units on two machines which this operator was re- dence that Shafer at least was aware that Hulzenga was sponsible for overflowed." This form further indicated playing an important role in the union organization, al- that Hulzenga had received a prior warning on March 21 though he may not have been aware of her specific ac- tivities. If Shafer were aware of Hulzenga's participation, " Loertsher walked out with La Bar immediately following Hulzenga's SO in all probability was Minton. However, knowledge of discharge. She received a suspension for such unauthorized walkout. union activity standing alone is not sufficient to support However. Loertsher never returned to work following her walkout on March 30. The complaint does not allege Loertsher's suspension as a vio- an allegation of a discriminatory discharge. There must lation of the Act. be sufficient evidence of union hostility or opposition to 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union, strong enough so that a conclusion can be tion in the March 16 walkout or because of her member- drawn that the employer was willing to violate the law ship in, or activities on behalf of, the Union. by the discharge of an employee, to keep the union out. Manmouth College, 204 NLRB 554 (1973), enfd. sub nom. Discharge of Marie La Bar Weinberg v. Manmouth College, 491 F.2d 752 (3d Cir. Marie La Bar was first employed by the Company in 1974); Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe November 1978. In February 1979, she was promoted to Hotel, 229 NLRB 1094, 1107 (1977). the position of quality control supervisor. 16 The facts of this case fail to establish such hostility or On March 30, at or about 2-2:30 p.m., Hulzenga in- opposition to the Union. Other than a single conversa- formed La Bar and Loertsher that she had just been dis- tion between Shafer and Sanservire in which Shafer charged and was going home. made a number of unlawful statements and a single un- La Bar testified that at or about the same time she saw lawful statement by Jenks to La Bar, the record is Minton who told her that he had fired Hulzenga. Ac- devoid of other evidence of hostility or opposition to the cording to La Bar, she told Minton that she would be Union. There is no evidence to establish that Respondent leaving because she carpooled with Hulzenga. " Accord- was waging an antiunion campaign. To the contrary, the ing to La Bar, Minton told her he understood, but he evidence establishes that Minton, the plant manager, who wanted her to report to work the next (work) day.'" had overall responsibility for the entire operation, dis- Minton denied that he gave La Bar or Loertsher per- played a neutral position toward the Union. Such atti- mission to leave. He testified that he came out of his tude is evidenced by his statement to Hornbeck on office shortly after he had discharged Hulzenga and ob- March 29 that he could not stop the Union from coming served La Bar and Loertsher leaving. When he asked in, and his statement to Day on March 31 that she where they were going, La Bar replied she was leaving. should listen to the Union and he would listen to the Jenks, the shift supervisor, testified that, at 2:30 p.m., Union. I do not attribute the hostility that may be evi- he observed La Bar and Loertsher leaving the plant. He denced by Shafer's and Jenks' unlawful statements to heard La Bar state, "That's my ride" and observed La two employees to Minton. I therefore conclude that Min- Bar and Loertsher get into Hulzenga's car. The shift ton's hostility or opposition to the Union was not so ended at 4 p.m. strong that he would discharge Hulzenga or any other La Bar testified she left work with Hulzenga because employee in order to keep the Union out. she was upset about Hulzenga's discharge and additional- The evidence leads me to conclude that Minton dis- ly because she had no other way to get home charged Hulzenga solely because he believed that she in- On Monday, April 2, neither La Bar nor Loertsher re- tentionally caused the overflow in the upper ink pan on ported to work. La Bar testified that she did not report the 9-ounce machine on March 30 and may have been to work because of Hulzenga's discharge. responsible for other recent malfunctions, breakdowns, On April 2, at 2:14 p.m., Minton sent the following and strange occurrences. The evidence establishes that mailgram to Loertsher: Minton had ample cause for such belief. In this connec- tion, on March 29, a day prior to Hulzenga's discharge Due to your refusal to work Friday, March 30, you Hulzenga told Minton and Jenks who were at the time are hereby suspended for two days. If you desire to examining a broken seam clamp on her machine which continue your employment, come in to see me had apparently resulted from a stress fracture, "I think Wednesday, April 4, between 8:00 a.m. and 4:00 someone's trying to sabotage us." The following day, at p.m., to discuss your employment requirements. If 6:30 a.m., Supervisor Shafer told Minton that Hulzenga's you do not contact me by Wednesday, I will con- sister, Linda Sanservire, had told him that Hulzenga con- sider you terminated. fided in Sanservire that she had done something in the plant for which she might go to jail. Such statement Loertsher never returned to the Company."9 would reasonably imply sabotage. In addition, Minton On April 2, at 2:22 p.m., Minton sent the following was informed at the time about the presence of alcohol mailgram to La Bar: in the glue barrel, Speedy Dry in the air filter, and the heat dials being turned up, all of which would appear to Due to the fact that you walked off the job twice in be caused by an intentional act. Therefore when the the last two weeks, once on March 16, and on upper ink pan on Hulzenga's machine overflowed several March 30, you are hereby terminated. hours following Minton's conversation with Shafer and the cause of such overflow was discovered to be an in- The mailgrams were written out by Jenks pursuant to tentional act, and apparently sabotage, it was certainly Minton's instructions on March 30, after La Bar and not unreasonable for Minton to believe that Hulzenga Loertsher had left. However, Jenks reminded Minton was responsible for such occurrance as well as the others described above. Under such circumstances, immediate 6 It was stipulated that La Bar is not a supervisor within the meaning of the Act. discharge would be expected. Leon Ferenbach, Inc., 213 As set forth above, employees traveled to and from work by car be- NLRB 373, 387 (1974). cause there was no public transportation available. During the week of Accordingly, I conclude that Hulzenga was dis- March 30, Hulzenga, La Bar, and Loertsher drove to work in Hulzenga's charged because Minton believed and had good reason carl" March 30 was a Friday; the next workday was Monday, April 2. to believe that Hulzenga was guilty of sabotaging the '9 As set forth above Loertsher's suspension was not alleged in the Company's equipment and not because of her participa- complaint, or by counsel for the General Counsel as a violation. FIBRACAN CORP. 173 that La Bar and Loertsher depended on Hulzenga for a was no public transportation in the area, it was reason- ride home and Minton agreed to wait until the afternoon able for Minton and Jenks to believe La Bar's stated of April 2 to see if the employees returned to work reason for leaving. That they did in fact believe this is before sending the mailgrams. evidenced by Jenks reminding Minton on the morning of Minton testified that his main reason for discharging April 2, when he was about to send the mailgram dis- La Bar was the fact that she was a leadgirl and was ex- charging La Bar, that La Bar and Loertsher depended pected to set a proper example for other employees. He on Hulzenga for transportation. Although La Bar testi- testified, "She had walked out and had not even both- fled that she left March 30 and failed to report to work ered to call Monday morning (April 2), and being an em- on April 2 because of Hulzenga's discharge, I find there ployee of that nature, she was not expendable." Howev- is no evidence that she communicated this to Minton or er, this testimony contradicted Minton's affidavit which Jenks. Assuming that in La Bar's mind she was leaving was consistent with his mailgram to La Bar. work to protest Hulzenga's discharge, her statements to The evidence above establishes that, although La Bar Minton and Jenks contradict such state of mind and it is and Loertsher left work without permission immediately unreasonable to assume that Minton was aware or should following Hulzenga's discharge, Minton took no action have been aware of such asserted reason for her leaving based on Jenks' advice to Minton that both La Bar and work on March 30 and failing to report for work on Loertsher depended on Hulzenga for transportation to April 2. Therefore, I reject the General Counsel's con- and from the job, there being no public transportation tentions. available. It was only after both individuals failed to However, as I have concluded that La Bar's discharge report to work on April 2 that mailgrams were sent to resulted at least in part because of her participation in the respective invididuals notifying La Bar of her dis- the March 16 walkout which I have concluded to be a charge and Loertsher of her suspension. The mailgram to protected concerted activity, I conclude that her dis- Loertsher notified her she was suspended because of her charge was therefore unlawful and a violation of Section walkout on March 30. Loertsher, as set forth above, had 8(a)(1). Clarklift of Atlanta Inc., 237 NLRB 461, 471 not participated in the walkout of March 16. The mail- (1978); McGraw Laboratories, a Division of American Hos- gram to La Bar notified her that she was discharged be- pital Supply Corporation, 206 NLRB 602 (1978). cause she had walked out on March 16 and again on It was also alleged that La Bar was discharged be- March 30. Based on the disparate treatment between cause of her activities on behalf of the Union. The evi- Loertsher and La Bar in that Loertsher, unlike La Bar, dence establishes that La Bar was less active on behalf of was merely suspended, rather than being discharged, I the Union than Hulzenga. Further, unlike Hulzenga, conclude that La Bar's discharge resulted at least in part there is no evidence that the Company had direct or in- from her participation in the March 16 walkout. In view direct knowledge of La Bar's union activity. Additional- of this evidence, and his affidavit which contradicts his ly, as set forth above in connection with Hulzenga's dis- testimony, I do not credit Minton's explanation that La charge, I am unable to find sufficient union animus to Bar was discharged rather than being suspended because compel a finding that the Company would discharge an she was a leadgirl who was not expendable. Moreover, employee to keep the Union out. I therefore conclude when Minton was asked what the difference was be- that La Bar was not discharged because of her member- tween a lead operator and operator, he replied, "Not a ship in or activities on behalf of the Union. whole lot, primarily as the lead operator she (La Bar) has more experience." In this connection both La Bar Discharge of Lori Day and Loertsher earned the same rate of pay. Lori Day began work on January 17, 1979, as a Counsel for the General Counsel additionally contends packer. She was supervised by Mike Johnson before he that La Bar ceased work and walked out on March 30 in was replaced by Jenks. On April 2, during her work order to protest the unlawful discharge of Hulzenga and shift, Day passed out two union authorization cards to that such walkout was protected concerted activity. The employees who signed them and returned them to Day. Board has held that a walkout to protest the discharge of There is no evidence that the Company's representatives a fellow employee whether such discharge was lawful or saw th unlawful is protected concerted activity. Auto-Truck Fed- On April 6 at or about 10 a.m., Delora Miller, the eral Credit Union, 232 NLRB 1024, 1028 (1977). As set quality control supervisor who had replaced La Bar, as- forth by the Administrative Law Judge in Auto-Truck signed Day and three other packers the job of scraping Federal Credit Union, supra, "[T]here is nothing of more the foor. 20 Miller, concededly had the authority to moment or concern to employees than matters of dis- assign such work. Moreover, Day concedes that the charge." However, the evidence does not establish that floor scraping duties assigned to her by Miller were La Bar and Loertsher left work to protest Hulzenga's among the job duties of the packers. Day and the three discharge. La Bar testified that when she encountered other packers at first refused to scrape floors. Subse- Minton immediately following Hulzenga's discharge, but quently, the three packers did scrape the floor but Day after Hulzenga informed La Bar of her discharge, she continued in her refusal to do so. Day testified she re- told him she would be leaving with Hulzenga because fused to scrape the floor because she felt that Miller's she carpooled with her. Similarly Jenks testified that fol- lowing Hulzenga's discharge he observed La Bar and 20 As set forth above, it was stipulated that the quality control supervi- Loertsher leaving the plant and heard La Bar state, sor was not a supervisor within the meaning of the Act. The three pack- "that's my ride" and get into Hulzenga's car. Since there ers referred to above were Kathy, Jean, and Cindy. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tone of voice when making the job assignment was rude. she would perform the assignment at this time. Day, for Miller then told Jenks about Day's refusal to perform the the second time flatly refused. Such conduct represents assignment and Jenks summoned Day to his office. the clearest form of insubordination imaginable. It is hard Jenks asked Day what the problem was. Day replied to conceive that any employer faced with such insubor- that scraping floors was hard work and employees on dination would not fire the insubordinate employee on other shifts did not scrape floors. Day also complained the spot. The evidence establishes this is in effect exactly that Miller had not asked her to scrape the floor in a what Jenks did. In Day's presence he prepared an em- nice way. Jenks told Day that what employees did on ployee record and under the heading of "Company Re- other shifts and how Miller spoke to her were not the marks" briefly described the insubordination. Under issue. He informed Day that he considered scraping action to be taken he recommended termination. Jenks floors to be among the job duties of packers and asked credibly testified that he did not terminate her on the Day if she would do the work. Day refused. spot because he was a new supervisor and was not cer- Jenks stated he would have to write this up and pre- tain he had such authority. It is significant that during pared an employee warning record in Day's presence. his conversation with Day he did not at any time bring Under the heading of "company Remarks," Jenks wrote, up the subject of the March 16 walkout. His action in "Employee refused an order to scrape wax on the floor writing up the report recommending termination took around the heaters. When further questioned, she refused place immediately following Day's second refusal to a second time. This is considered part of the routine carry out the work assignment. The recommendation for cleaning procedure." Under the heading, "Action to be termination was in short spontaneous, immediately fol- Taken," Jenks inserted "Referred to plant manager. Ter- lowing Day's insubordination. Jenks' subsequent conver- mination recommended." This record was signed by sation with Minton amounted to no more than Mlnton Day. Jenks then told Day that as of now she was sus- ratifying Jenks' recommendation. Significantly, there was pended until he spoke with Minton. Day left the plant no discussion in this conversation of the March 16 wal- and went home. kout. Minton's ratification of Jenks' recommendation to When Minton returned to the plant later that day, terminate Day was made solely on the basis of the facts Jenks explained to Minton the details surrounding Day's surrounding Day's refusal to perform a work assignment suspension and Minton told Jenks to do whatever he as related to him by Jenks. Under these circumstances thought was necessary. Jenks told Minton that she had Jenks' contention that the mailgram notifying Day of her refused to work and there was no way to overlook it. discharge merely set forth her prior work record and Minton then authorized Jenks to send a mailgram notify- that the sole reason for the discharge was her insubordi- ing Day of her discharge. ing Day of her discharge. written warning for using nation is believable, and I credit Jenks in this regard. Day had received a prior written warning for using Additionally, as set forth above, I find that following abusive language to the then-quality control supervisor, Additionally, as set forth above, I find that following La Bar, in March and a prior oral warning for an unau- the walkout Minton was willing to let bygones be by- thorized shutdown of her machine. gones. Further, Day was not among the most outspoken On the evening of April 6, Day received the following employees during the March 16 meeting which preceded mailgram from Jenks: For the same reasons set forth in my analysis above, I You were suspended for two days on March 19 and conclude that the Company's animus toward the Union 20, for walking off the job on March 16. This is was insufficient to conclude that it would discharge Day your second offense regarding refusal to work. or any other employee in order to keep out the Union. Therefore, you are terminated as of this date. Additionally, the evidence establishes that Day was even less active in connection with the Union than either La Jenks testified repeatedly and I conclude creditably in Bar or Hulzenga and that the Company had no direct or response to questions put to him by me and on cross-ex- indirect knowledge of her activities. amination that the sole reason for Day's discharge was Accordingly I conclude that Day was discharged her continued refusal to perform a work order and that, solely because of her insubordination described above absent any prior warnings, an employee's outright refusal and not because of her participation in the March 16 to perform work assigned would result in termination walkout or because of her membership in or activities on under any circumstances. He denied that the March 16 behalf of the Union. walkout was in any way a contributing factor in the de- cision to discharge Day. CONCLUSIONS OF LAW Jenks testified that the mailgram sent to Day merely documented her prior work record and notified her of I. Respondent is an employer engaged in commerce her discharge. within the meaning of Section 2(6) and (7) of the Act. The evidence described above establishes conclusively 2. The Union is a labor organization within the mean- that Day flatly refused to perform a work assignment ing of Section 2(5) of the Act. issued to her by Miller, a lead person with authority to 3. The employees of Respondent who participated in a issue such assignment. When Miller complained to Jenks walkout on March 16, 1979, to protest the discharge of about Day's refusal to perform the work assignment their shift supervisor, Michael Johnson, were engaged in given to her, Jenks then spoke with Day concerning her protected concerted activities within the meaning of Sec- refusal to perform her work assignment and asked her if tion 8(a)(1) of the Act. FIBRACAN CORP. 175 4. By suspending employees Lisa Van Nostrand, Alice Upon the foregoing findings of fact and conclusions of Hulzenga, Carol Thompson, Marie La Bar, Alice Lubitz, law, and upon the entire record, and pursuant to Section Lori Day, Roberta Lubitz, Cynthia Ciatto, Patty Wil- 10(c) of the Act, I hereby issue the following recom- liams, and Ann Hornbeck on March 19, because of their mended: participation in the walkout described above in para- graph 3 of this section of the Decision, Respondent has ORDER 23 violated Section 8(a)(l) of the Act. 5. By creatviolated Section 8(a)(1) of the Act. The Respondent, Fibracan Corporation, Walden, New 5. By creating the impression of surveillance of the York, its officers, agents, successors, and assigns, shall: union activities of its employees, by threatening employ- 1. Cease and desist from: ees with discharge if they joined or engaged in union ac- (a) Suspending or terminating employees or in any tivities, by interrogating employees concerning their ac- tivities on behalf of the Union, by threatening to reduce ther manner discriminating agint them with regard to employee benefits and withhold wage increases from em- ployees because of their membership in or activities on tion of employment because they engage in activities behalf of the Union, and by threatening to close the plant protected under Section 7 of the Act. if the Union came in, Respondent has violated Section (b) Creating the impression of surveillance of the 8(a) (1) of the Act. union activities of its employees. 6. By discharging its employee, Marie La Bar, on (c) Threatening its employees with discharge if they April 2, 1979, because of her participation in the walkout join Amalgamated Clothing and Textile Workers Union, described above in paragraph 3 of this section, Respond- AFL-CIO, Hudson Valley Area Joint Board, herein ent has violated Section 8(a)(1) of the Act. called the Union, or any other labor organization or 7. The aforesaid unfair labor practices described in engage in other union activities. paragraphs 4, 5, and 6 of this section affect commerce (d) Interrogating its employees concerning their activi- within the meaning of Section 2(6) and (7) of the Act. ties on behalf of the Union, or any other labor organiza- tion. THE REMEDY (e) Threatening its employees to reduce employee Having found that Respondent has engaged in certain benefits and withhold wage increases because of their unfair labor practices, I shall recommend that it cease membership in or activities on behalf of the Union or and desist therefrom and take certain affirmative action any other labor organization. designed to effectuate the purposes of the Act, including (f) Threatening its employees to close its plant if they the posting of the notice [omitted from publication] at- select the Union or any other labor organization to rep- tached to this Decision. resent them. Since I have found that Respondent discriminatorily (g) In any other manner interfering with, restraining, suspended Lisa Van Nostrand, Alice Hulzenga, Carol or coercing employees in the exercise of the rights guar- Thompson, Marie La Bar, Alice Lubitz. Lori Day, Ro- anteed them under Section 7 of the Act. berta Lubitz, Cynthia Ciatto, Patty Williams, and Ann 2. Take the following affirmative action necessary to Hornbeck, I shall recommend that Respondent make effectuate the policies of the Act: whole all of the above employees, for any loss of earn- (a) Make whole Lisa Van Nostrand, Alice Hulzenga, ings they may have suffered from the date of their sus- Carol Thompson, Marie La Bar, Alice Lubitz, Lori Day, pension on March 19 until their reinstatement on March Roberta Lubitz, Cynthia Ciatto, Patty Williams, and Ann 21.21 Hornbeck for their lost earnings in the manner set forth Since I have found that Respondent discriminatorily in the Remedy. discharged Marie La Bar on Arpil 2, 1979, I shall recom- (b) Offer Marie La Bar immediate and full reinstate- mend that Respondent be ordered to offer her immediate ment to her former job or, if her job no longer exists, to and full reinstatement to her former job or, if it no a substantially equivalent position, without prejudice to longer exists, to a substantially equivalent position of em- her seniority or other rights and privileges, and make her ployment, without prejudice to her seniority or other whole for her lost earnings in the manner set forth in the rights and privileges, and make her whole for any loss of Remedy. earnings she may have suffered from the date of her dis- (c) Preserve and, upon request, make available to the charge until the date of Respondent's offer of reinstate- Board or its agents, for examination and copying, all ment. payroll records, social security payment records, time- The backpay for said employees shall be computed in cards, personnel records and reports, and all other re- accordance with the formula approved in F W Wool- cords necessary to analyze the amount of backpay due worth Company, 90 NLRB 289 (1950), with interest com- under the terms of this recommended Order. puted in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977) 22 23 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 "' As set forth above, I have concluded that Van Nostrand was dis- findings, conclusions, and recommended Order herein shall, as provided charged for cause on March 21, 1979. in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and :: See, generally. Isis Plumbing d Heating Co., 138 NLRB 716, 717-721 become its findings, conclusions, and Order, and all objections thereto (1962). shall be deemed waived for all purposes. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its Walden, New York, plant copies of the it for 60 consecutive days thereafter, in conspicuous attached notice marked "Appendix." 24 Copies of said places, including all places where notices to employees notice on forms provided by the Regional Director for are customarily posted. Reasonable steps shall be taken Region 2, after being duly signed by Respondent's au- by Respondent to insure that said notices are not altered, thorized representative, shall be posted by Respondent defaced, or covered by any other material. immediately upon receipt thereof, and be maintained by (e) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what 2' In the event that this Order is enforced by a Judgment of a United steps Respondent has taken to comply herewith. States Court of Appeals, the words in the notice reading "Posted by IT IS ALSO ORDERED that the complaint be dismissed Order of the National Labor Relations Board" shall read "Posted Pursu- insofar as it alleges violations of the Act not specifically ant to a Judgment of the United States Court of Appeals Enforcing an found. Order of the National Labor Relations Board."