Sheet Metal Workers Local No. 41

SHEET METAL WORKERS LOCAL NO. 41 Sheet Metal Workers Local No. 41, Sheet Metal Workers' International Association, AFL-CIO and Local No. 1, Office and Professional Employees In- ternational Union, AFL-CIO. Case 25-CA-9599 May 24, 1979 DECISION AND ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 12, 1979, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, the General Counsel filed Limited exceptions and a supporting brief, and Re- spondent filed a brief in opposition to the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs. Without passing at this time on the merits of the Ad- ministrative Law Judge's rulings, findings, and con- clusions, we have decided to remand this proceeding to the Administrative Law Judge for reconsideration of the August 1978 dismissal of Linda Martindale. The Administrative Law Judge, inter alia, dis- missed the allegation that Respondent, through its business manager, Joe O'Neill, violated Section 8(a)(3) of the Act by dismissing Martindale in August 1978. The Administrative Law Judge found that, de- spite O'Neill's demonstrated animus toward Martin- dale's protected activity of seeking union representa- tion, she was lawfully discharged for the deliberate misappropriation of funds. Martindale's duties as a clerical employee included responsibility for drafting her own paycheck. Since 1974 she has calculated the amount of her semiannual raise based on the percentage increases received by the journeyman members of Respondent Union un- der their contract. In July 1978 the members received no basic wage increase but did receive, for the first time, a contribution on their behalf to the National Stabilization Agreement of the Sheet Metal Industry (SASMI), an unemployment fund. Since the contract called for the contribution to equal 3 percent of the members' gross earnings, Martindale granted herself a corresponding 3-percent increase effective July 1978. The record reveals a sharp conflict as to how O'Neill instructed Martindale concerning the formula to be used to calculate her wage increases. O'Neill testified that he instructed Martindale to use as the basis for her increases only the percentage increase in the members' basic hourly wage. Martindale, how- ever, testified she was told to follow the same wage increase formula utilized by Ruth Potter, an em- ployee of Respondent's health and welfare fund. Pot- ter told Martindale that she calculated her increases on the basis of the entire economic package enjoyed by Respondent's members. Prior to July 1978 the total wage and benefit pack- age consisted of a total wage, comprised of a basic wage and contributions to the health and welfare and local pension plans, plus contributions to three other funds. In July 1978 the SASMI contribution was added to the package as part of the total wage cate- gory. Beginning the first week in July 1978 Martindale drafted her weekly paychecks to include an increase of $5.94, or 3 percent. Early in August O'Neill told her that she was not entitled to that raise because the journeymen had not received a basic wage increase in July. Martindale offered to pay back the money from her next check. She then received a letter from O'Neill, dated August 7, stating that she was dis- charged effective August 31 with the overpayments to be deducted from her last month's paychecks. The Administrative Law Judge correctly stated the issue to be whether Martindale had reason to believe, and did believe, that she was entitled to a wage in- crease in July 1978 based on the journeymen's SASMI benefit, the only contract benefit increased at that time. The Administrative Law Judge anchored his find- ings, including credibility resolutions, on his analysis of the contracts covering Respondent's members and of Martindale's wage history. He compared Martin- dale's percentage increases with the members' basic wage increases and the members' package increases for each 6-month period from July 1975 through July 1978. The Administrative Law Judge concluded that until July 1978 Martindale never gave herself the benefit of the entire package increase. The Adminis- trative Law Judge's figures showed that Martindale's increases correlated much more closely with the basic wage increases than with the package increases for the period up to July 1978. Accordingly, the Administrative Law Judge dis- credited Martindale's testimony to her understanding of O'Neill's instructions in 1974. The Administrative Law Judge reasoned that if Martindale had in fact believed that she was entitled to the package increase each time, she would have taken it rather than re- stricting herself to increases closer to the basic wage increase alone. 242 NLRB No. 99 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel excepts to the Administrative Law Judge's credibility resolution against Martin- dale. The General Counsel agrues that the Adminis- trative Law Judge made serious computational errors in his comparative wage analysis. We have reviewed the record and agree with the General Counsel that the Administrative Law Judge made two inadvertent errors in calculating percentage increases in the basic wage column of his chart and that he made a system- atic error in calculating each percentage entry in the total package column. He divided each package in- crease not by the value of the previous package but by the previous basic wage rate. The Administrative Law Judge's table, as corrected, reads as follows: Comparison Between Martindale's Increases and Members' Benefits Date 7/75 1/76 7/76 1/77 7/77 1/78 7/78 %Martin- Members dale Wage Used Incr. 4.75 $.45(4.76%) 4.5 .45(4.5%) 4.25 .44(4.25%) 4.21 .45(4.17%) 3.9 .40(3.55%) 3.05 .29(2.49%) 3.0 .00(0%) Members Package Incr. $.50(4.73%) .50(4.51%) .51(4.4%) .50(4.14%) .49(3.89%) .40(3.06%) .40(2.97%) The Board has decided to remand this proceeding to the Administrative Law Judge so that he might, in reconsidering the circumstances surrounding Martin- dale's discharge in August 1978, reevaluate his in- ferred finding of lack of correspondence between Martindale's understanding of O'Neill's instructions and her actions, in light of the corrected figures, su- pr, as well as the testimony of Martindale and O'Neill. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge David L. Evans for the purpose of reevaluating his findings in light of our determination herein. I'l IS FUtRTIFR ORDERED that, upon the conclusion of his deliberations, the Administrative Law Judge shall prepare and serve on the parties a Supplemental Decision containing resolutions of the credibility of witnesses, findings of fact, conclusions of law, and recommendations as to the disposition of the 8(a)(3) allegation that Linda Martindale was discriminatorily discharged in August 1978. It IS FURTHER ORDERFI) that following the service of this Supplemental Decision on the parties, the pro- visions of Section 102.46 of the Board's Rules and Regulations and Statements of Procedures, Series 8, as amended, shall be applicable. DECISION DAVID L. EVANS, Administrative Law Judge: Upon charges filed by Local No. I, Office and Professional Em- ployees International Union, AFL CIO (herein called the Union or the Charging Party), against Sheet Metal Workers Local No. 41, Sheet Metal Workers' International Associ- ation, AFL-CIO, as an employer (herein called Respon- dent), the General Counsel issued a complaint and amend- ments thereto alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act.' Respondent filed an answer to the complaint denying commission of any unfair labor prac- tices. Hearing was held before me on August 28, 1978. The General Counsel and Respondent have filed briefs which have been carefully considered. Upon the entire record,' and from my observation of the demeanor of the witnesses and the inherent probabilities and improbabilities of the testimony of each witness, I make the following: FINDINGS OF FACT I. THE OPERATIONS OF RESPONDENT Respondent is, and has been at all times material herein, a local union chartered and affiliated with Sheet Metal Workers' International Association, AFL-CIO, a multi- state labor organization of which Respondent is an intergral part. Its principal office is located in Indianapolis, Indiana, where it is, and has been at all times material herein, en- gaged in the representation of employees covered by collec- tive-bargaining contracts with employers in the construc- tion industry concerning wages, hours, and other terms and conditions of employment of said employees. During the year preceding the issuance of the complaint, which period is representative, Respondent, in the course of its opera- tions, collected dues and initiation fees from its members in excess of $250,000 and has, during said period, transmitted in excess of $40,000 of said monies to its International headquarters, which is in Washington, D.C. During the same period of time, Respondent, in the course and conduct of its business operations, transmitted funds on behalf of its employees and agents in excess of $10,000 directly to the Sheet Metal Workers' Local Unions and Councils Pension Fund at its headquarters, also in Washington, D.C., to pur- chase pension coverage for said employees and agents. Upon these admitted facts, I find that at all times mate- rial herein Respondent has been an employer engaged in commerce and in an operation affecting commerce within the meaning of Section 2(6) and (7) of the Act. I The original charge was filed on February 1, 1978; the first amended charge was filed on February 7, 1978; the original complaint was issued on March 30. 1978; the first amendment to the complaint was issued July 26. 1978; the second atmended charge was filed on August 10. 1978; and the second amendment to the complaint was issued on the following day. 2 The General ('ounsel's unopposed motion to correct the record in var- ious minor and/or obvious respects is granted. Respondent's "Petition to Correct Testimony" is denied. 554 SHEET METAL WORKERS LOCAI NO. 41 II. T1F I.ABOR OR(iANIZAIliON IN\()OLI) Local No. 1, Office and Professional Employees Interna- tional Union, AFL CIO, herein called the Union or Charg- ing Party, has been at all times material herein a labor or- ganization within the meaning of Section 2(5) of the Act. 111. THLE NFAIR I.ABOR PRA('TI('S The General Counsel alleges that Respondent made the working conditions of office clerical employee Linda Mar- tindale more onerous on January 30, 1978:' that it dis- charged her on February I: that it recalled her on Feburar 6, but it increased her work hours without a commensurate increase in pay; and that it discharged her on August 7. all in violation of Section 8a)(1). (3). and (4) of the Act. The General Counsel further alleges that the imposition of the more onerous working conditions and a threat to Martin- dale constitute independent violations of Section 8(a)(1) of the Act. Respondent contends that Martindale was a confi- dential employee and not protected by the Act and denies the commission of any unfair labor practices. A. Employee Slatms of Martindale Respondent represents craft sheet metal workers in the Indianapolis, Indiana, area. In that city it maintains an of- fice which also houses an office of another employer, the Sheet Metal Workers' Local Union No. 41, Educational and Training Fund. The educational fund administers in- dustry apprenticeship programs in the area. A third em- ployer involved herein, Sheetmetal Workers' Local No. 41 Health and Welfare and Pension Fund, is located in a sepa- rate building in Indianapolis. The chief officer of Respondent is Joe O'Neill, business manager. He is assisted by a financial secretary, three busi- ness agents, and an office secretary, who at all times mate- rial was Linda Martindale. Martindale was first employed by Respondent in July 1967. At all times her duties were of a clerical nature, in- volving primarily typing; filing, writing, and recording re- ceipts for dues; maintaining the cashbox; and answering the telephone. Respondent alludes to no material which Martindale handled which was considered confidential by anyone. While she handled the payroll. the salaries of all employees of Respondent were voted by the membership in open meetings. She typed contract proposals for negotia- tions with the employer association, but there is no evi- dence of a confidential nature of such proposals before they reached typewritten form. There is no evidence that person- nel files for any of the six employees of Respondent existed. There was testimony that the business agents maintained some personal files of an undisclosed nature, hut Martin- dale had no access to these. To establish that an employee is "confidential," it must first be proved that the individuals for whom the employee works are "persons who formulate, determine and effectu- ate management policies in the field of labor relations." The B. F Goodrich Company, 115 NLRB 722. 724 (1956). Sec- ond, the employee in question must assist and act in a con- ) Unless otherwise specified, all dates refer to the year 1978 fidential capacity to those persons. he Natrional ( ash Reg- ister Compan', 168 NLRB 910 (1967). Here, neither element is present. Policies in the field of labor relations are formulated and determined by the executive board and the membership at open and/or recorded meetings. While O'Neill presumably effectuates such policies, the require- ments of Goodrich are in the conjunctive. W elverhacuser Conmpav, 173 NLRB 1170 (1968). Regarding the second element. the only function to which Respondent alludes as assistance or action in a confidential capacitD is Martin- dale's opening of mail. Specificall. Respondent relies on the fact that Martindale opened correspondence regarding the organizational drive. namely. a demand letter and a copy of a petition for election. Martindale opened all mail for O'Neill. and there is no evidence that he ever informed her that he considered such communications to he confi- dential; and, of course, they were not. Finally., Respondent hypothesizes that Martindale would act in a confidential capacity if there were a hbargaining relationship between Respondent and a labor organization. Such conjecture will not suffice to deprive an employee of her status as such. Accordingly, I find and conclude that Martindale was not a confidential emploxee. Moreover. even were I to conclude that Martindale was a confidential employee. I would not find that she was unpro- tected by the Act. While the decisions of two courts of ap- peals would so indicate,' the Board has consistently refused to follow them.' I am, of course. bound hb\ the Board deci- sions. Accordingl, I find that at all times material herein. Martindale was an emploee protected b Sections 7. 8, and 10 of the Act. B. .4l lcged A clions of lnterfrence and First Discuharge of M1artindale Martindale's II years of emplox ment were seemingly un- eventful until July 1977, when she contacted the Union af- ter being refused a request for a substantial wage increase. There is no question that at all times Martindale per- formed her duties competently. In fact, she was given addi- tional bookkeeping duties as time went h. She was en- trusted with the dutd of drafting her own Aeekl paroll check, as well as those of O'Neill and the business agents. The office was operated on a verN casual basis. Martindale reported to work at 8 a.m.. unless she had difficult w ith her children or transportation, in which event she came in litter without loss of pay. She took from I to 1-1 2 hours for lunch, or up to 2 hours if O'Neill was treating. an event which occurred several times after he was, elected to office in 1974. During the da) Martindale was free to converse with the business agents, members who came in i to pa their dues, and Rita Pfarr, office secretar> of the educational fund. Quitting time for Martindale was 4 p.m. In Jul5 1977 Martindale requested a $65-per-\scek in- crease in salary. O'Neill replied that the request was rdictu- lous. Martindale thereupon contacted the lnion. of which 4V. R B . hht.ihng Elecrru (, 444 F2d. 73 (4th (ir 19711: Pcr/t of .lmerwla, Inc . L R B 484 - 2d 11i 8 7th ('Ir 1971) ' See Hendricks ( unti Rural ./I. br , ow ,crinp (-p.oratn.m 236 N I R B 616 1978). for a hl ihscusson i this legal isuc iand the conlrollig .iscs on the point DECISIONS OF NATIONAL LABOR RELATIONS BOARD she had been a member for several years, and it began an effort to secure recognition as representative of the clerical employees of Respondent, the health and welfare fund, and the educational fund. In July and August 1977, the three clericals met with Union Representative Frances Bick about three times. On August 18, 1977, Respondent re- ceived a letter from Bick requesting a meeting for the pur- pose of negotiating a collective-bargaining agreement for the clericals. Upon reading the letter, O'Neill asked Martin- dale if she had "sicced" the Union on him. Martindale did not respond. On January 6, 1978, Bick filed a representation petition in Case 25-RC-6810, describing as the unit involved all office and clerical employees of the three employers. A hearing on the petition was scheduled for January 25. On the evening of January 24 Martindale received a subpena which was issued at the request of the Union. The next morning she reported to O'Neill that she would have to miss part of the day to attend the hearing. According to the undenied testimony of Martindale, "[hie said that he guessed work for the Local Union would just have to go to hell for the day and the office would just have to close up." O'Neill demanded to see the subpena. When she showed it to him he announced that she would not be paid for the day. It is undisputed that Martindale had theretofore been given days off from time to time for personal reasons, and Respondent did later pay Martindale for the day she spent at the hearing. At the representation case hearing, Respondent con- tended that the requested unit was not appropriate for the purposes of collective bargaining in that the employees in- volved were employed by separate employers. The Re- gional Director agreed and ultimately dismissed the peti- tion, but one of the issues which had to be resolved was that of the frequency and nature of interchange between Mar- tindale and Rita Pfarr, clerical for the training fund. The Union's evidence of this point was provided by the two clericals who testified that their work was "commingled," and that term was used repeatedly throughout the hearing. The first work day after the hearing was January 30 due to what was described as a "blizzard" on January 26 and 27. Shortly after starting time on January 30, Pfarr ap- proached Martindale at her desk to discuss the weather. O'Neill approached them and, according to the undenied testimony of Martindale (which testimony is essentially du- plicated by Pfarr), O'Neill stated that "he didn't want any more commingling on, and that he meant it. And then he walked away." Neither Pfarr nor Martindale knew by this if O'Neill in- tended to include all personal conversations. Pfarr volun- teered to find out. She went to the training fund office, where O'Neill had gone. When she got there, Striby,6 her supervisor, was on the telephone. Pfarr, whose testimony is undenied, describes what happened in the office thusly: So as soon as I walk into the room Mr. O'Neill starts to tell me how much damage we girls had caused. We had jeopardized the funds. We had taken the chance of their losing his many years of works, efforts towards pension and other benefits: how his health had been affected by it. e Striby was not called to testify. I tried on two occasions to interrupt and ask him to wait until Mr. Striby was off the phone, but he was very upset and agitated, and more or less continued the same line. When Mr. Striby did finish his conversation and came over to the counter where we were standing, he went over most of that again. I mentioned to both of them that it was never our intent to hurt anyone in particular or any of the funds. If there was any damage done it was unintentional. And if they as union members had not foreseen the problem. how did they expect us to, and, really, what could they expect after all those months that we had been ignored, why the big suprise that some legal ac- tion had finally been taken. And then I asked Mr. O'Neill what he had meant by his statement to Linda and I about no more commin- gling. And he finally said, "I mean I want everyone to do their own work." And I said, "Well, I was wondering, because I didn't know if you didn't want us to pass the time of day." And I said, "But as far as that's concerned, the commingling had never been initiated by us girls." And I think that was probably the end of our con- versation. Pfarr reported this diatribe to Martindale. Martindale testi- fied that theretofore she had received substantial help from Pfarr and that she had given some help, but to a lesser extent, to Pfarr. While exactness in this regard is not possi- ble, it is undisputed that O'Neill's order of January 30 made the jobs of both clericals more difficult, and O'Neill frankly admitted that he issued the order against commingling be- cause of the clericals' testimony at the representation case hearing. On February I Respondent received its attorney's bill for $825.00, $750.00 of which was for his professional services rendered in regard to the representation case. Martindale opened this bill, as she did all mail, and placed it on O'Neill's desk. At lunchtime Martindale and Pfarr did not leave the office because of another day of bad weather. The two clericals were the only persons in the building. Martin- dale walked to the doorway of Pfarr's office, a distance of less than 25 feet, and stood where she had an unobstructed view of the front door of the building. She continued talk- ing to Pfarr for a few minutes and then returned to her office, which is on one side of the door. O'Neill left his office, which was on the other side of the front door, and approached Martindale, who testifies: I looked out the office door I just caught a glimpse of Joe going over to his desk. And I stood back there and we talked a little bit more. And then I went up to my desk. And Joe more or less was angry. He said I shouldn't have been back there, that I had left the cash box unattended. And at that time he walked over and opened the file cabinet drawer, took the cash box out, took it back to the safe and locked it up. And then he started in telling me that-well, he grabbed the attorney's bill off of his desk, or whatever, 556 SHEET METAL WORKERS LOCAL NO. 41 wherever it was, and he shook it at me, and he said, you know, that so far I had cost the attorney-or had cost the Union $750.00 in attorney's fees, and that if our petition as a unit would be honored by the Labor Board that I had caused everybody to lose their union pension. And he went on about how I had always kept his blood pressure up just by causing all these problems, and that until I had gotten greedy and had wanted a union contract that everything was going along just fine there. And I said that I-you know, I wasn't asking for anything more than what the Sheet Metal Workers asked for [that] being a union contract. And he said that he had-you know, there had been plenty of occasions when he had let me leave for doc- tors' appointments, and things like that. And I pointed out to him that there were times that I didn't take all my lunch period because I had a doc- tor's appointment, and that he and the other fellows, if they needed to go to the doctor, or whatever, they went and there was no problem that way. And he said that that didn't really matter becuase he was elected and I was just an employee. And so then he told me that if I wasn't happy with the way things were, I could clean out my desk and leave. I told him that I wasn't going to quit my job. And he said then that he thought it would be a good idea if I just cleaned out my desk and left. And I asked Joe, I said, "Are you firing me?" He said, "Yes, you're fired." O'Neill did not deny that he made all of these remarks to Martindale. He did testify that the cashbox had been on top of the file cabinet in Martindale's office with the cash visi- ble. I discredit O'Neill in this regard. He first only testified that the box would have been visible to a person who en- tered the building; then he improved upon his testimony by claiming that the cash itself was visible. At any rate, it is undisputed that Martindale was not required to, and not before February I, lock the cashbox in the safe each time she left her office to go to another point in the building. Moreover, it is undisputed that Martindale could have seen anyone who entered the building, which is only about 25 feet deep. On February 4, the day he received the original charge herein, O'Neill sent Martindale a telegram instructing her to return to work on February 6, "due to differences of opinion." Upon her arrival at work, O'Neill told Martindale that she was thereafter to report to work at 7:30 a.m. and work until 4 p.m. and that she was to take only a half hour for lunch. A month later O'Neill told her that she could return to the 8 a.m. starting time, but that she was still to take only a half hour for lunch. Her weekly salary did not change with these changes in hours. O'Neill testified that he effec- tuated these changes because, at the representation hearing, Martindale had testified that she did not know exactly what her hours were. C. Wage History and Second Discharge of Martindale In 1974, at the request of O'Neill, Respondent's executive board voted to grant Martindale an immediate wage in- crease of $10.40 and thereafter placed Martindale on a sys- tem of percentage wage increases based on the contracts negotiated for its members.' The then existing contract, and the one in effect at the date of hearing, provided for wage and benefit increases on a semiannual basis beginning in July 1975. Martindale was told of this executive board decision by O'Neill shortly after the meeting. Whether O'Neill told her that she was to use only the base wage increase as the basis of her calculations is in sharp dispute. O'Neill and Business Representative Michael Sullivan, who claims to have been present, emphatically state that O'Neill told Martindale to use only the base increase in the members' base wage as the basis of her calculations. Martindale testified that she was simply told that she had been placed on the same wage increase system as that of Ruth Potter, secretary of the health and welfare fund. Martindale testified, and Potter corroborated her, that Potter told Martindale that she used the entire package, wages and economic fringes, in comput- ing her wage increases. The economic fringes, according to Martindale, would and did include contributions made on behalf of the members of the following funds: health and welfare, pension, local education and industry, and national training.' She testified that she did not know how to calcu- late wage percentages, so she arrived at her figures by con- ferring with Potter on a hit-and-miss method of interpola- tion. In July 1978 the members received no base wage increase. They received only a 3.0-percent contribution on their behalf to an unemployment compensation fund called the National Stabilization Agreement of the Sheet Metal Industry (SASMI). Martindale testified that, consistent with her understanding that she was to take advantage of the entire economic package, she granted herself a 3.0-per- cent increase in her weekly salary. Beginning with the first full week in July and continuing for 4 weeks thereafter, Martindale drafted her checks to include a 3-percent increase, or $5.95. Before doing so she did not consult with O'Neill, who signed the checks without noticing the increase. Martindale testified that the first she knew that there was any problem regarding this increase was a phone call from counsel for General Counsel during the first week in Au- gust. The content of the conversation between Martindale and counsel is not disclosed, but, on the following day, Martindale approached O'Neill on the mater. She told him that she understood there had been some question about her raise. O'Neill replied that she was not entitled to a raise because the journeymen had not received one. Martindale stated that she would not argue the point, but that she would pay the money back out of that week's paycheck "and that we would see whether I had the raise coming or I The term "members" is used here, as it was at the heanng, for the sake of convenience. The tecrm is intended to include all journeymen sheet metal workers covered by the agreement negotiated by Respondent with construc- tion industry employers in the area. I Contnbutions to each of these funds were made on Martindale's behalf by Respondent. 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not." O'Neill said nothing further: he did not tell her that there was a letter of discharge in the mail to her, which was the case. O'Neill testified that he first learned that Martindale had granted herselfa raise on Friday, August 4, at the first regu- lar membership meeting after he returned to Indianapolis after an absence of a few weeks. Hle testified that after the monthly disbursements were read to the membership, one member asked ifa raise for Martindale had been authorized in his absence. He replied that it had not. On Monday, August 7, without any investigation of the matter, he in- structed his attorney to draft for Martindale a letter of dis- charge. The letter, dated August 7, states that because of her "unilateral" raising of her salary, she was to be dis- charged effective August 31, and amounts equal to her overpayment were to be deducted from her intervening paychecks. Whether Martindale had reason to believe, and did be- lieve, that she was entitled to take advantage of the institu- tion of the journeymen's SASMI benefit is the ultimate fac- tual issue in the case of her second, and final, discharge. In evidence are the contracts and a summary of Martin- dale's wage history. The following table reflects the dollar and percentage wage increases Martindale computed for herself after the disputed instructions from O'Neill and the dollar and percentage base wage and package increases given to members pursuant to the contracts. [Table omitted from publication.] Although both counsel for the General Counsel and counsel for Respondent submitted brief's on general and well-established propositions of law, neither attempted to compare Martindale's wage summary to the contracts or suggest an analysis of these figures, which determine the ultimate issue in this case. What the above table clearly demonstrates is that Martindale, until July 1978, never gave herself the benefit of the entire package increases received by the members. Martindale gave herself precisely the same percentage increase as the percentage increase in the mem- bers' base wage twice (January and July 1976) and differ- ences in percentages of only 0.03 in July 1975, 0.05 in Janu- ary 1977, 0.45 in July 1977, and 0.56 in January 1978. Of course, there was an infinite difference in Martindale's July 1978 wage increases and the increase in the base wage of the members; they received none. Accordingly, I must discredit Martindale's testimony that in 1974 O'Neill did not specify that only the members' base wage was to be used in computing her semiannual salary adjustments. If for any reason Martindale had really believed that she was entitled to more than the percentage increase in the members' base wage, she would not have given herself the same, or essentially the same, percentage increase on six different occasions before July 1978. More- over, when she testified that she really did not know how to compute percentage wage increases and relied only on a hit-and-miss method of' calculation and consultations with Potter, I got the distinct impression that Martindale was playing dumb. Regardless of the increases received by Pot- ter from her employer, Martindale knew, in 1974 and there- after, that her employer intended her increases to be calcu- lated only upon the basis of the base wage increases received by the membership. IV. (CONCI.USIONS A. First Discharge of Marrindale and Acts of Interference It requires little discussion, and no citation of authority, to find and conclude that, as alleged by the complaint, Re- spondent, by O'Neill, imposed harsher working conditions upon Martindale, threatened her with loss of pension bene- fits, and on February 1, 1978, discharged her and on Febru- ary 6, 1978, did reinstate her, but did, on that date, increase her working hours without a commensurate increase in pay, all in violation of Section 8(a)(l), (3), and (4) of the Act. Martindale, as O'Neill knew, had been a member of Charging Party from the inception of her employment. However, the Charging Party had done nothing in an eflbrt to secure a contract for Martindale's benefit until she con- tacted Frances Bick. O'Neill had been content with Martin- dale's nugatory membership and the Union's not bothering him about her. However, when Martindale "sicced" the Union on him, his animus was brandished from the start, receipt of Bick's letter on August 7, 1977. His antipathy for Martindale's participation in Board processes was made plain when he replied that Respondent's business would just have to "go to hell" while she appeared at the represen- tation case hearing. The statement about pension benefits, as related by Mar- tindale, was somewhat ambiguous, but O'Neill got his point across: the employees were going to suffer for the exercise of their rights. The rule against "commingling" had apparent twofold objectives; it was obvious retribution for the employees' putting Respondent to the trouble and expense of attending the representation case hearing, and it was a segregation of the employees to make future recognitional efforts more difficult, or impossible, as Martindale and Pfarr would more likely be held to be one-employee units in further Board proceedings. Either objective violates the Act, and I so find and conclude. The change in starting time and reduction of the lunch hour, as O'Neill admitted, was effectuated because of Mar- tindale's testimony at the representation hearing. O'Neill feebly explained that he took the action because Martindale had testified that she did not know exactly what her work- ing hours were. This does not justify the changes, both to her detriment, and thus they constitute further violations of the Act. B. Second Discharge of Martindale The cases before the Board in which employees are fired for actual, or alleged, theft or misappropriation of funds are legion. Where there has been demonstrated animus against the employees' union or protected concerted activity, and where it has been shown either that the misappropriation or theft did not occur or that if it did the employee was acting under a good-faith but mistaken belief of entitlement, viola- tions have been found. By word and by deed O'Neill showed his animus for Martindale's union activity and her participation in Board proceedings. There is no reason to believe that this antipa- thy had abated in the months between February and Au- 558 SHEET METAI. WORKERS LOCAL NO. 41 gust, especially since he continued in effect the discrimina- tory treatment of barring "commingling" and the reduction of the lunch period. Moreover. Martindale's participation in Board proceedings had by August undoubtedly cost Re- spondent a great deal more in legal fees than the $750 for the representation case. Answering the charges and the original complaint and filing motions was most certainly not done pro bono by counsel, and O'Neill was assuredly not unmindful of the prospective cost of preparing for, at- tending, and briefing the then scheduled unfair labor prac- tice hearing on the February discharge and other violations found herein. As demonstrated above, the expense of Board proceedings was another source of the animus harbored by Respondent against Martindale. But no matter how great the animus toward Martindale's protected activity, it did not insulate her from discharge for deliberate misappropriation of funds. Martindale knew that she was not entitled to take advan- tage of the members' entire wage package. If she had, she would have done so in the past. She did take approximately 1/2 percent above the percentage increase in the basic wage at two of the six prior semiannual wage adjustment periods and less than 1/10 percent of two others. These differences were apparently imperceptible to O'Neill and the member- ship, who received greater wage and benefit increases at the same time. However, when O'Neill, the business managers, and the membership received no wage increase. Martin- dale's stood out like the proverbial sore thumb. The General Counsel argues that O'Neill should have made an investigation before he took action. While lack of investigation has been held to be a factor indicating unlaw- ful motive in cases where there was no theft, or there was a misappropriation under a good-faith but mistaken belief, such is not the case here. O'Neill knew that he had instructed Martindale to use only the base wage in her calculations. He also knew that the contract between Respondent and the employer associ- ation provides: "Starting July 1, 1978, the Employer shall make monthly payments of an amount equal to three (3) percent of the gross earnings of each employee subject to this Agreement to the National Stabilization Agreement of the Sheet Metal Industry (S.A.S.M.I.)." He further knew, as did Martindale, that in 1977 the Charging Party had sub- mitted to him the following proposal in its attempt to secure recognition, bargaining, and a collective-bargaining agree- ment: Section 8. Local #41 agrees to pay full benefits into Sheet Metal Workers' Local 41 Health & Welfare Fund, Sheet Metal Workers' Local #41 Pension Fund, Sheet Metal Workers' Local #41 Educational Fund, Sheet Metal Contractor's Industry Fund and the Sheet Metal Workers Local Unions and Councils Pension Fund. Begining [sic] July 1, 1978 in lieu of SASMI Benefits, all employees covered under this Agreement, salaries shall increase percentage wise [sic]. Upon discovery of Martindale's self-granted wage increase. it was not illogical for O'Neill to conclude that she had "unilaterally" granted herself what the Charging Party had tried, and failed, to secure for her, as stated in the letter of discharge. Acting in accordance with such belief. it was not a viola- tion of the Act for Respondent to discharge Martindale. The case is not without its difficulties. Martinda.le as a; employee of 11 prior years of good and faithful service. Certainly. O'Neill felt no peril in her continued presence at the office, since she was allowed. for almost a month. to continue in her former duties. including writing paNroll checks and caring for the cashbox about w hich O'Neill was purportedly so concerned the preceding FebruarN. And one could speculate that had it not been for her prior protected activities. O'Neill might have meted out lesser discipline. But speculation is all that would be in absence of e, idence of condonation of such conduct in the past. Such speculation is not the proper basis for a decision be the Board, and it is not the province of the Board to substi- tute its judgment for that of Respondent as to what is "fair" in such circumstances. The Board does not sit in judgment of the severity of the punishment in absence of evidence of disparate treatment, of which there is none in this case. Martindale intentionally granted herself a 3-percent or 15-cent-per-hour wage increase to which, as her prior con- duct demonstrates, she knew she was not entitled.' In doing so she presented Respondent with a legitimate reason for her discipline, including, necessarily. discharge. While O'Neill continued to harbor animus against her protected activities, there is no evidence that this animus pla ed anns part in the decision to discharge her. AccordinglN, Respon- dent did not violate the Act by discharging Martindale. and I so find and conclude. Upon the basis of the above findings of fact and upon the entire record in this case. I make the following: CONC( I'SlONS (OF .LA\ I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By promulgating and enforcing harsh work rules and threatening an employee with loss of pension rights because of her support for the Union and because she gave testi- mony under the Act, Respondent violated Section 8(a)(I) of the Act. 4. By increasing the work hours of Linda Martindale without a commensurate increase in pay. and b discharg- ing her on February 1. 1978. because of her support for the Union and to discourage activities on behalf of the Union, and because she gave testimony under the act, Respondent violated Section 8(a)(1). (3). and (4) of the Act. 5. The aforesaid unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and constitute unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to establish by a pre- ponderance of the evidence that, by discharging Linda Martindale on August 7. 1978. Respondent has engaged in I Whether she was attempting to implement the wage increase proposed in 1977 in lieu of SASMI by the Union or attempting to duplicate. /ir the irst ime, the agreement Potter had with her employer or loth Is mmaterial 59 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1)(3) and (4) of the Act. THE REMEDY Having found that Respondent has engaged in unfair la- bor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Linda Martindale on February 1, 1978, and thereafter in- creased her work hours without a commensurate increase in pay, I recommend that Respondent be ordered to make her whole for any loss of earnings she may have suffered from the date of her initial discharge until the effective date of her second discharge. The amount of backpay shall be com- puted in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).'0 Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" Respondent, Sheet Metal Workers' Local No. 41, Sheet Metal Workers' International Association, AFL-CIO, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Imposing harsh work rules or threatening loss of pen- sion or other benefits because employees join or assist Local No. 1, Office and Professional Employees International Union, AFL-CIO, or give testimony under the Act. (b) Discharging or otherwise discriminating against em- ployees to discourage union activities or support for Local No. 1, Office and Professional Employees International Union, AFL-CIO, or any other labor organization, or to discourage their giving testimony under the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make Linda Martindale whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Decision. (c) Post at its plant in Indianapolis, Indiana, copies of 0 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Dirctor for Re- gion 25, after being duly signed by Respondent's represent- ative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed as to any alleged violations of the Act not found herein. 2 In the event that this Order is enforced by ajudgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT impose harsh work rules upon our employees and WE WILL NOT threaten them with loss of pension or other benefits in the event they choose to be represented by Local No. , Office and Professional Employees International Association, AFL-CIO, or any other union or in the event they give testimony under the National Labor Relations Act. WE WILL NOT discharge our employees, increase their working hours, or otherwise discriminate against our employees in regard to their hire, tenure, or any term or condition of employment because they become members of or engage in activities on behalf of Local No. 1, Officers and Professional Employees Interna- tional Association, AFL-CIO, or any other labor or- ganization or because they gave testimony under the Act. WE WILL NOT in any other manner interfere with restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act, including the rights to self-organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection. WE WILL make Linda Martindale whole for any loss of earnings she may have suffered as a result of our unlawfully discharging her on February 1, 1978, and our increasing her hours without a commensurate in- crease in pay, with interest. SHEET METAL WORKERS' LOCAL No. 41, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO 560