Magnetics International, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Magnetics International, Inc. and Vivian Knutson. Case 8-CA-12397 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 17, 1980, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in answer thereto. 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 brief' and has decided to affirm the rulings,2 find- ings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. In adopting the Administrative Law Judge's con- clusion that Respondent violated Section 8(a)(3) and (I) of the Act by issuing Vivian Knutson a warning note for excessive absenteeism on June 27, I Respondent has requested oral argument This request is herehy denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties We find no merit i Respondent's exception to the Administrative Lasw Judge's questioning of witless I'rank Baka Sec 102.35(k) of the National Labor Relations Board Rules and Regulations, Series 8, as amended, gives an adrninistratise law udge authority to "call. examine, and cross- examine" witnesses We note that Respondent neither objected to) the questions onl the record nor requested i its brief to the Adminlistratile Law Judge that the answers be stricken. lFurther, we find that Responl- dent was not prejudiced by the Regional Director's dentail of Responl- dent's motionl for a postponement oIf the hearing date. Responldett did not appeal the Regional Director's rulinlg, seek any continuance from the Administrative Law Judge during the hearing, or argue prejudice in its brief to the Administrative l.aw Judge z Respondent moved to dismiss the cotilplaint onI the ground that Spiel- berg ManuJacturing Cirmpunpv, 112 NLRB 1)80 (1955), here requires de ferral to an arbitration award. We herein affirm the Administrative Law Judge's denial of the motion to dismiss See also Suburban Motor Freight. Inc., 247 NLRB No 2 (198) Further, as indicated il the instant I)eci- sion, infra. the current test for unlawful employer motivation in (a)(3) cases Is taounrit 811 "righi .iLnc, a )ivlronr / of l'riht Line, In , 251 NI RB I)83 (190). 3 Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance iof all of the relevant evidenlce con - vinces us that the resolutions are incorrect Standard Dry Wall IProducl. Inc., 91 NLRB 544 (1950), ed 188 F.2d 362 (3d Cir. 1951). We hare carefully examined the record and find no basis for reversing his findings We herein correct two inadvertent errors of the Administratice Law Judge First, Wendell Garman telephoned Vivian Klutsonl on July 12, not June 12. Secondly, the transcript excerpt quoted by the Adninistra- tive Law Judge concernilng Franlk aka's description of Ktlsitson's cen- ployment history should refer. iter alita, to an ncidelt lof Julie 8, iot July 8. 254 NLRB No. 62 1978,4 by suspending her on July 11, and by dis- charging her on July 22, we do not rely on his ap- plication of the "in part" test to find the violations. Rather, we analyze the case based on our recent Decision in Wright Line, a Division of Wright Line, Inc., 251 NLRB at 1100. The test set forth therein first requires the General Counsel to make a prima facie showing that Knutson's protected activities were motivating factors in Respondent's decision to discipline and then discharge her. If the General Counsel is successful, the burden of proof is effec- tively shifted to Respondent to show that the dis- charge or discipline would have occurred even in the absence of Knutson's engagement in protected activities. As to the disciplinary warning charging Knutson with "excessive absenteeism," we find that the General Counsel has made the necessary prima facie case. Respondent supported its disciplinary action by listing 8 specified days of absence during April, May, and June. The Administrative Law Judge found that 3 days were unexplained by Knutson, and that she attempted to have Respon- dent excuse three other absences by submitting her physician's note attesting to her illness on the days in question. We agree with the Administrative Law Judge that the record provides no basis for doubt- ing Respondent's contention that its plant rules provided for excused absence due to illness only when the illness lasted longer than 1 week. The re- maining 2 days encompassed within Respondent's case for "excessive" absenteeism were, however, directly related to activity by Knutson protected by the Act. On April 6, pursuant to the prosecu- tion of a Title VII lawsuit filed by Knutson against Respondent, she was absent to attend the taking of a deposition by her attorney of Respondent's former personnel manager. On April 12, Knutson was absent to enable her to give her own deposi- tion to Respondent's counsel. The Administrative Law Judge correctly states that the Act protects an employee who files a law- suit to assert a statutory right growing out of the employment relationship. We find that the General Counsel has successfully demonstrated that Knut- son's April 12 absence was a motivating factor, or, in the Administrative Law Judge's words, "an effi- cient cause" of Respondent's characterization of Knutson's absences as "excessive" and thus war- ranting discipline under its rules. The General Counsel's successful prima facie case of wrongful motive thus shifts to Respondent the burden of showing that Knutson would have been disciplined ' All dales referreld to hereinafter are ill 1)7X8 unless otherise indical- ed 520 MAGNETICS INTERNATIONAL, INC even if the two protected absences had been con- sidered. Respondent presented no evidence as to either its criteria for determining when absences became "excessive" or as to how other employees had been treated under the rule. We therefore con- clude that Respondent has failed to meet its burden and affirm the Administrative Law Judge's conclu- sion that Respondent violated Section 8(a)(1) of the Act on June 27 by disciplining Knutson. We further find that the General Counsel has presented a prima facie case of 8(a)(3) discrimina- tion with respect to the discharge of Knutson on July 22. On July 11 an employee asked Shop Ste- ward Knutson a question about her work assign- ment. When Knutson took out a copy of the con- tract in order to look up the pertinent provision, Foremen Frank Baka gave her a disciplinary cita- tion for "reading personal material" during work- time.5 Baka testified that Knutson then angrily re- sponded to the citation with the threat that "one of these days" Baka would not "make it home." Upon learning of this alleged threat, Respondent's per- sonnel manager, Wendell Garman, suspended Knutson indefinitely in order to "investigate" the matter. Garman conceded that the investigation consist- ed only of a review of Knutson's complete person- nel file and did not include interviews with Knut- son herself or either of the two employees nearest to Knutson and Baka at the time of the alleged threatening remark. The suspension was converted to a discharge on July 22. We agree with the Administrative Law Judge that Respondent's version of a threat to Baka's life is not credible. Garman's investigatory failure to seek corroboration of the remark alleged to be such a serious threat is not compatible with a belief that it actually occurred. Also, the Administrative Law Judge reasoned that, if the threat had been made as described by Respondent, then the dis- charge decision would not have taken as long as 10 days. Finally, even top management officials differed on the significance of the alleged threat of June 11. On that evening, after work, Baka's car was run off the road by an unidentified vehicle. Moskin testi- fied, in effect, that he attributed the highway inci- dent to Knutson and gave it great weight in the discharge decision. Garman, on the other hand, as- serted that the incident played no role in manage- ment deliberations. The evidence submitted by the General Counsel effectively shifted the burden to Respondent to I No exception :as taken to the Administratzve I.aw Judge's disnlisaill of the allegation that the issuance of this citation Nl'olated Sec 8(a)(3) of the Act show that the discharge would have occurred even in the absence of Knutson's engagement as shop steward in clearly protected activities. Respondent alleged that Knutson was discharged for her absen- teeism during the spring of 1979, poor production on three separate occasions, insubordination and a threat against Baka on June 8, and the threat against Baka on July 11. Knutson's personnel file contains disciplinary citations for all these events. Garman also testified that Knutson, as the shop ste- ward, should have been an example to other em- ployees rather than one who "willingly" violated shop rules as reflected in her filed citations. The two instances of Knutson's conduct alleged by Respondent to have been insubordinate took place during her representational efforts on behalf of other employees. Baka testified that on those two occasions, as well as on others when she filed and processed grievances on her own behalf, Knut- son engaged in "argumentative discussions" and caused "commotion" and "disruption" in the shop. However, we agree with the Administrative Law Judge, for the reasons stated by him and recit- ed above with respect to the July 11 incident, that threats by Knutson against Baka did not occur as alleged by Respondent. That otherwise heated con- frontation over employee grievance handling took place between Knutson and management officials is undisputed. As found by the Administrative Law Judge, Respondent has offered no credible evi- dence beyond its own conclusionary characteriza- tions that Knutson's conduct of her protected union activities was so flagrant, serious, or exten- sive as to render her unfit for further employment. Thus, eliminating Knutson's protected grievance handling activity from consideration, Respondent's case for the discharge is reduced to the absenteeism citation, found herein to be violative of Section 8(a)(1) of the Act and the three citations for poor production. The dates of those citations were in January 1975 and February and April 1978. Re- spondent offers no evidence as to whether employ- ees with similar production records have also been discharged. We note that in this instance one of the poor production days was 3-1/2 years before the discharge and the most recent one was 3 months before that severe discipline was imposed. We con- clude, therefore, that Respondent has failed to demonstrate that it would have discharged Knut- son for her production deficiencies even in the ab- sence of her protected activity and its own opposi- tion to it. We affirm the Administrative Law Judge's finding that Respondent violated Section 8(a)(3) of the Act by its discharge of Knutson on July 22. 521 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Magnetics International, Inc., Maple Heights, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(c): "(c) Offer Vivian Knutson immediate and full re- instatement to her former position or, if that posi- tion no longer exists, to substantially equivalent employment, without prejudice to her seniority or any other rights and privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered as a result of her suspension and discharge in the manner set forth in the section of this Decision entitled 'The Remedy."' MEMBER PENELLO, dissenting in part: I would defer the complaint allegation that Vivian Knutson was unlawfully discharged to the arbitration award herein. It is undisputed that all parties participated in the arbitration, that evidence was adduced as to Knutson's protected activities, and that the hearing was fair and regular. Never- theless, the majority agrees with the Administrative Law Judge that it would be inappropriate to defer to the award because the "arbitrator considered only the contractual contraints upon the Respon- dent, not the statutory." However, in a case such as this, "the key is the evidence presented." Gener- al Warehouse Corp., 247 NLRB No. 142 (1980) (dis- senting opinion).6 Here, the arbitrator specifically stated that he considered "all the evidence, its nature and type, the demeanor of the witnesses, their opportunities for observation of grievant's work conduct, their self-serving interest or other- wise, and the work record of grievant." On the basis of the foregoing, the arbitrator made a finding that the discharge was for just cause because the grievant was guilty of insubordination. In my opin- ion, the award is, therefore, not clearly repugnant to the purposes and policies of the Act and fully meets the Spielberg standards7 for deferral. Accord- ingly, I would dismiss the allegation of the com- plaint relating to Knutson's discharge." 6 My colleagues rely on Suburban Motor Freight, Inc., 247 NLRB No. 2 (1980). As I stated in my dissent therein, I adhere to Electronic Repro- duction Service Corporation 213 NLRB 758 (1974). which requires only that an arbitration proceeding provide the opportunity to present unfair labor practice issues. In this case, the grievant and the Union not only had the opportunity to present the unfair labor practice issue, but did so. Spielberg Manufacturing Company, 112 NLRB 1080 (1955). g With regard to another matter, I agree with my colleagues that Knutson's prosecution of a sex discrimination suit against Respondent constituted protected concerted activity, but, in so finding, I specifically rely on thc fact that the collective-bargaining agreement provided that Respondent shall not discriminate against employees on account of sex. See King Soopers. Inc., 222 NLRB 1011, 1018 (1976). DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge: This case was heard at Cleveland, Ohio, on May 24, 1979 on a complaint issued by the General Counsel upon charges filed by Vivian Knutson, an individual, on November 13, 1978.' In essence, the complaint alleges that Respondent took the following actions against Knutson because of her activities as steward (or committeeman for Interna- tional Association of Machinists and Aerospace Workers, Local Lodge 233, AFL-CIO (herein called the Union): suspended her for 3 weeks on June 8; issued written warning notices to her on June 27 and July 11; indefi- nitely suspended her on July 12; and discharged her on July 22, all in violation of Section 8(a)(1) and (3) of the Act. In an answer duly filed, Respondent admitted the discipline and discharge of Knutson but denied the com- mission of any unfair labor practices. Additionally, Re- spondent contends that the substance of the complaint has been disposed of by Knutson's invocation of the grievance procedure and binding arbitration provisions of the contract between it and the Union and that the Board has no jurisdiction of this matter. The General Counsel replies that the arbitration decision which denied Knutson's grievance in issue should not be given deference as it is repugnant to the Act. At the end of the hearing the parties waived oral argu- ment. Thereafter counsel for the General Counsel and for Respondent filed briefs which have been carefully considered. Upon the entire record in this case, including the briefs of the parties, and upon my observation of the witnesses who testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation, is engaged at its fa- cility at Maple Heights, Ohio, in the manufacture of elec- tric motors and lifting magnets. Annually, Respondent ships products valued in excess of $50,000 from its facili- ty directly to points outside Ohio. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. ' All dates herein are in 1978 unless otherwise specified. 522 MAGNETICS INTERNATIONAL, INC. It. 'IHE MOTION TO DISMISS Respondent, in effect, has moved that the complaint be dismissed because the matters therein alleged to be viola- tions of the Act have been disposed of by an arbitration award (issued on November 13) which is final and bind- ing and which comports with the standards established by the Board in Spielberg Manufacturing Company, 112 NLRB 1080 (1955), and its progeny. I reject this conten- tion. It is true that the arbitration provision of the con- tract recites that it is binding and the Union and Knutson voluntarily invoked the proceeding and there is no con- tention that the proceeding before the arbitrator was other than fair and regular. However, it appears from the decision that while the Union and Knutson advanced the theory that her discipline and discharge were motivated by unlawful considerations, it further affirmatively ap- pears that these contentions were not considered by the arbitrator. The arbitration decision is cryptic. It merely recites the contention of the parties and announces a result. Re- spondent contended that Knutson had been insubordinate and threatened Foreman Frank Baka, and the Union and Knutson denied any wrongdoing on her part and con- tended that Respondent's actions against her were caused by her grievance-filing activity. While these contentions are noted by the arbitration decision, there is no discus- sion of the evidence and critical conclusions based there- upon are not made. The only analysis of the issues is: DISCUSSION This case, being a disciplinary matter, the Com- pany had the burden of proving that the grievant's conduct was just cause for discharge. The contract provided therefore in Article 4 as to violation of Company rules. It was the sole duty of Arbitrator to determine from the evidence submitted whether the company had borne its burden of proof. The Arbitrator con- cludes from all the evidence, its nature and type, the demeanor of the witnesses, their opportunities for observation of grievant's work conduct, their self serving interest or otherwise, and the work record of grievant. The Arbitrator concludes therefore that the Company has sustained its burden of proof and that the grievant was guilty of insubordination (Shop Rule #16) and that the Company had just contrac- tual cause for discharge. [Emphasis supplied.) It is thus clear that the arbitrator only considered the contract's article 4 (which gives management the right to establish reasonable rules of conduct) and Respondent's shop rule number 16 (which prohibits insubordination or refusal to carry out orders of foremen or other supervi- sors). The arbitrator did not decide if Respondent's moti- vation was mixed to any extent with unlawful consider- ations. It is, of course, the law that even if an employer possesses a just cause for discharge, if he is motivated in any part by unlawful considerations as well, the dis- charge is unlawful.2 This rationale is precisely what 2 . B and S. Chernmal Company, 224 NIRBt I (1976) tive to the denial of wrongdoing). Rather than consider the statutory issues involved, the arbitrator ended his in- quiry upon the determination of whether "the Company had just contractual cause for discharge." Therefore, it affirmatively appears that the arbitrator did not take into consideration whether the discipline and discharge of Knutson was motivated in whole or in part upon activi- ties which were protected by the Act. The arbitrator considered only the contractual constraints upon Respon- dent, not the statutory, and it would be inappropriate for the Board to defer to the arbitration decision.3 Accordingly, Respondent's motion to defer to the arbi- tration decision is denied. IV. THE AILEGI D UNFAIR L.ABOR PRACTICES The Union has represented Respondent's approximate- ly 185 production and maintenance employees for several years. There has been a series of successive collective- bargaining agreements covering those employees, the most recent of which has effective dates of June 7, 1977, through June 6, 1980. Vivian Knutson was employed in 1972 as an armature connector and was covered by this contract until her discharge on July 22. Her foreman, at all times material herein, was Frank Baka who also su- pervised some 75 other employees. Baka reported to Steve Moskin, plant superintendent, who, in turn, report- ed to James Patz, vice president and general manager. Respondent's personnel manager from about January I to the date of the hearing was Wendell Garman. Respon- dent admits that each of these individuals is a supervisor within the meaning of Section 2(11) of the Act. Knutson's employment was relatively uneventful until January when she was elected steward (or "committee- man") of her department. As one of eight committeemen she was charged with the responsibility of investigating and/or settling grievances in the first and second stages of the four-step grievance procedure of the contract. Knutson credibly testified that in December 1977, before she was nominated to be committeeman, she was in the office area where Moskin told her that she should not "get involved" in the Union. Knutson replied that she did not know if she would accept if nominated. Con- currently with the events of this case Knutson has pros- ecuted in Federal district court a sex discrimination suit under the 1964 Civil Rights Act, the exact nature of which was not disclosed in this record. Knutson testified, without contradiction, that on December 13, 1977, she was called to Moskin's office where she was confronted by Frank Novey (Garman's predecessor in office as per- sonnel manager), Moskin Baka, Elsie Nagy (secretary of the Union), and Florence Gallicky (chief shop steward). According to Knutson, Novey "accused" her of circulat- ing a petition which sought to oust the Union as the rep- resentative of the employees. Knutson denied knowledge I Raytheon Compan, 140 NL.RH 83 (Iq63), and most recently, riple .4 Machlne Shop. Inc.. 245 NLRB 136 (1979), which reaffirms this princi- pie and further discusses the inappropriateness of deferring to arbilration decisilons in which an arbitrator merely recites contentions or refers tor "an alleged incident," declines to make necessary credihiliy resolutions. and simply announces a result 523 l) CISIONS OF NATIONAL LABOR RELATIONS BOARD of any such petition to Novey. 4 Knutson further testi- fied, again without contradiction, that in the same meet- ing Novey told her that he had been under the impres- sion that she had dropped her sex discrimination suit, otherwise she would not have been recalled from layoff. (Just when Knutson was laid off and recalled is not dis- closed by the record.) Finally, Knutson testified that Novey said he felt she was making too many telephone calls to the union hall. In addition to written grievances over discipline against her, once elected, Knutson filed other written grievances over work assignments and assignments of overtime, each claiming that she was the aggrieved em- ployee. The only exception to this was a written griev- ance filed February 10 which generally claimed Baka was harassing other union members, as well as herself and "[c]ausing tension in the department . . . [d]isrupt[ing. . . production . . . [d]enying union rights and human rights . . . [c]ausing slowdown on produc- tion. Failure to notify stewart [sic] of problems in the de- partment and changing of job schedule .... " Addition- ally, she filed with Baka several oral grievances which, as the testimony quoted below indicates, played a part in her ultimate termination. A. Suspension of June 8 At some point during June 8 it was reported to Knut- son by employees Jeannie Moss and Rita Mechalski 5 that employee Pat Stevens was performing three job func- tions at one time. To Knutson this was a seeming viola- tion of the contract. (Baka admitted on cross-examination that stewards have complained about such assignments before.) Knutson went to Stevens' work station and ac- cording to Knutson: I asked if she had orders from the working super- visor, Mr. Eddy Biala, to perform all three jobs. She didn't give an answer and I says, "You are a new girl and you are not allowed to run three jobs in one and another classifications. The girls are complaining." Further, according to Knutson, she thereupon returned to her work station from which she was summoned by Baka. According to Knutson, Baka called her a few feet away from her work station and started to talk about a topic which arose the previous day, discipline of another employee, John Kaminski. Knutson testified that she told Baka she considered the Kaminski matter "closed" as Kaminski had been disciplined without union representa- tion and, thereupon, turned heel and walked away from Baka to her work station. Further, according to Knut- son, Baka followed her "screaming at me" and: He told me to hit the damn bricks, and I looked at him and I said, "No" and then he says, "We're going to Moskin's office," and I said, "Not without Union representation," because Mr. Baka was very angry. 'There was no further testimony about any such petition S Moss did unot testify; Mechalskt testified but not on this topic Then, further according to Knutson, she went to punch her timecard and others appeared and gathered around her and Baka including Moskin, Eddy Biala (the assistant foreman, who apparently had given Stevens the triple as- signment), and chief steward Gallicky. 6 After a "com- motion" among them, Moskin ordered her to leave the plant, which she did. Employee Vivian Furr testified that when Knutson was at her normal place of work, she heard an exchange between Knutson and Baka. According to Furr, Knutson refused to go to the office "without union representa- tion": Knutson asked for Gallicky, and Brian Barner, an- other steward, and that Baka refused stating "No, you are fired, you punch out and you go home, you hit the bricks)." Baka testified that he saw Knutson causing a "commo- tion" by instructing Stevens not to perform the job. Baka further testified that he told Knutson to go back to her job and that Knutson became "very belligerent." When pressed for what he meant by use of that word, Baka tes- tified that Knutson said, "I'll get you." Baka testified that then: I asked her to come onto the side and we would discuss the problem or go into the superintendent's office to discuss the problem in order to get the commotion away from the department. Knutson refused stating that she wanted to clear the matter up on the floor. Baka called Personnel Manager Garman and informed him of the problem. Garman ap- peared and Baka told him what the problem was, away from Knutson, and "suggested to him that it was insub- ordination and she should be suspended for this." Ac- cording to Baka, Garman replied that he would check into the matter. Garman talked to Knutson, returned to Baka, and agreed that Knutson should be suspended. Then Moskin appeared, "and we had informed him what happened on the floor. We went through with the sus- pension, indefinite suspension." By this point, further ac- cording to Baka, Knutson had returned to her work sta- tion. Then Baka went to the office to write out the in- definite suspension, returned with it to Knutson who was at her work station and told her to leave the plant. Baka did not deny that when he went to Knutson's work sta- tion, Knutson asked for union representation. Baka did deny ever telling Knutson that she was fired or to "hit the bricks." The disciplinary notice signed by Baka had circled the following of 23 different violations listed on the forms: 7. Interfering with, talking with, or otherwise dis- turbing employees either within or outside of own department. 8. Willful disregard for the rights of other em- ployees. 16. Insubordination or refusal to carry out orders of Foreman or other Supervision. 22. Organizing, promoting and/or participating in an unauthorized work stoppage or slow down. ; Neither iala nor Gallicky testified. 524 MAGNETICS INTERNATIONAL, INC. It concluded "indefinite suspension." In answer to a grievance filed by Knutson over the indefinite suspension on June 8, Baka replied "grievant was clearly insubordi- nate to the department foreman." At some point, obvi- ously within the 3 following days, the suspension was re- duced to only 3 days' duration. Garman testified that Baka, in his presence, ordered Knutson to return to her department and she refused. According to Garman: THE WITNESS: In my presence Mr. Baka ordered or told Ms. Knutson to go to the superintendent's office to discuss this. She actually refused to do so. Mr. Baka said to Ms. Knutson, "You have been clearly insubordinate in front of other employees." He thought she should be suspended, and I was standing right there and said, "Frank, you are the foreman, suspend her," which he did. As noted, Baka had testified that Knutson and Garman spoke out of his hearing and the decision to suspend was after he, Garman, and Moskin conferred jointly. While Baka had said that Garman and Knutson had left his presence to discuss the matter, Garman makes no men- tion of a separate conversation with her (and Knutson testified that she did not remember seeing Garman at all). Finally, in regard to discrepancies between Baka and Garman, Baka testified to no (second) order to Knutson by himself in Garman's presence. Moskin testified that when he arrived at the depart- ment employees were standing around and: THE WITNESS: The department was disorganized. There were people standing around. The foreman was trying to get Ms. Knutson off to the one side and I didn't hear any exact words at that time until I checked with the foreman and he told me what was going on. She refused to comply with his orders and I suggested that he suspend her indefi- nitely at that [point]. Moskin testified that he did not hear any request for a union representative. Moskin testified that Garman was there, but he heard nothing that Garman said. Moskin testified that Knutson was suspended by Baka pursuant to his instructions because she would not leave the area where the imbroglio was occurring. However, Baka tes- tified that Knutson was not in Stevens' area when Moskin arrived; he thought Knutson had returned to her machine by that point. The issues devolving from this multiplicity of accounts are whether Knutson interfered with the work of other employees and what was the nature of the conduct which Respondent considered insubordinate. (What is not an issue is whether Knutson requested union repre- sentation and the effect thereof, because the General Counsel does not contend Knutson was disciplined for refusal to submit without union representation to an in- terview at which she could reasonably have expected discipline. However, for possible purposes of review. I note that I believe Knutson's and Furr's testimony in this regard.) There is no evidence that Knutson interfered with the work of other employees. At most she informed Stevens that she was performing too many job junctions and should not be doing such, but she did not physically in- terfere with Stevens, and there is no credible evidence that she told Stevens to stop working in any terms which would tend to make Stevens do so without supervisory permission. Moreover, there is no evidence that Stevens did, in fact, stop working. Presumably, if Stevens had been verbally abused by Knutson, explicitly instructed to stop working, or physically interfered with, she would have been presented by Respondent; I draw a negative inference from Respondent's failure to present Stevens or explain its failure for not doing so. International Unior. United Automobile, Aerospace and Agricultural Implement Workers of America (UA W) [Gyrodyne Company of 4mer- ica] v. .. L.R.B., 459 F.2d 1329 (D.C. Cir. 1972); Fabri- cut, Inc., 238 NLRB 768 (1978). When testifying that "belligerence" toward himself was a reason for the suspension of Knutson for insubor- dination, the only factor cited by Baka was Knutson's purported threat "I'll get you." When so testifying, Baka first attempted generalization giving the distinct impres- sion of grasping at straws for a justification for his con- clusionary testimony that Knutson had been belligerent. Then he advanced the "I'll get you" alleged threat, but only after being pressed, rendering himself incredible on the point. Moreover, I find it plainiy incredible that Baka would have responded only that the commotion should be moved to the office if he had actually been threatened or thought he had been threatened. Had Knutson threat- ened Baka at that point, he would have instantly sus- pended or otherwise disciplined her and not waited for orders and/or Baka would have mentioned it in his notice of suspension, and/or mentioned it in the second step reply to Knutson's grievance. According to the doc- umentary and testimentary evidence, Baka did none of these. I find that Knutson did not make the threat to "get" Baka on June 8. However, all versions of Respon- dent's account demonstrate that it was aware that Knut- son's actions on June 8 were taken in the course of gen- erally protected activity. Since I have found there is no credible evidence that Knutson engaged in the miscon- duct attributed to her in the course of that conduct, it must be held that the suspension of Knutson therefore violated Section 8(a)(1) and (3) of the Act. Star Eopan- sion Industries Corporation, 164 NLRB 563 (1967), and cases cited therein. B. The June 27 Written Warning Votice On June 27, Knutson received a written warning notice of "excessive absenteeism." (Although written, the notice is designated "oral" which is the first step of a three-step progressive disciplinary procedure for listed infractions such as those listed above in the discussion of the June incident as well as "excessive absenteeism." The other steps are "written citation" and "disciplinary action" which is specified, such as suspension or dis- charge.) The notice lists April 6, 12, and 25, iMa2 22, 23, 25, and 30; and June 26 absences which are the basis for the citation. 525 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knutson testified without contradiction that on April 6, she was absent because she was assisting her attorney in taking the deposition of Frank Novey, the previous personnel director, for the sex discrimination suit men- tioned above. On April 12, she was at Respondent's at- torney's office where her deposition was being taken.7 On May 22, 23, and 25, Knutson was ill. Knutson brought a doctor's excuse to the plant which Baka re- fused to accept. The General Counsel offered no expla- nation of her absences of April 25, May 30, and June 26 at the hearing. Knutson testified that to her knowledge Respondent accepted doctors' excuses and did not charge employees with absences when they were presented. There is no testimonial or documentary corroboration of Knutson on this point. On the contrary, Personnel Manager Garman testified that absences are chargeable except as specified in the contract where it is stated that employees who are ill for more than a week may be granted a leave of ab- sence. The record does not support Knutson's bare testi- mony in this regard and there is no reason to believe that Garman's testimony about Respondent's general absence policy is untrue. However, in the series of absences which, on June 26, became "excessive" to Respondent, Respondent counts two absences which constituted activity protected by the Act. The prosecution of a suit to assert a statutorily pro- tected right growing out of the employment relationship is protected activity. Krispy Creme Doughnut Corp., 245 NLRB 1053 (1979); Self Cycle & Marine Distributor Co. Inc., 237 NLRB 75 (1978). Specifically, this is true of suits under the 1964 Civil Rights Act. King Soopers, Inc., 222 NLRB 1011 (1976). To hold that the giving or taking of depositions in such a suit is not activity protect- ed by the Act would stultify the exercise of the right to file and prosecute such suits. However, I really need not decide whether all participation in all such discovery proceedings is protected. Respondent included in its enu- meration of absences one which is compelled (April 12), and it is beyond question that a statutory right to file and prosecute such suits would be destroyed if an employer could compel an absence and then penalize an employee for complying. Since the April 12 absence is an efficient cause of the June 27 notice, its issuance violated Section 8(a)(l) of the Act and I so find and conclude. However, I decline to find that the issuance of the June 27 notice independently violated Section 8(a)(3) of the Act. While, as found, Respondent's agents expressed displeasure at Knutson's becoming a steward, it is purely conjectural that her becoming a steward or her action as such, played any part in Respondent's decision to issue the notice. C. The July 11 Warning Notice and Suspension and Subsequent Discharge I. Facts Knutson testified that on July 11 she received another verbal complaint, or grievance, from employee Jeannie If either of these depositions took less than a full day, there was no evidence thereof. Moss. According to Knutson, Moss questioned whether the employer had the right to make a temporary transfer. According to Knutson: . . I explained to Jeannie that under the contract rules, the Company had a right to place an employ- ee for 16 hours. She kindly disputed that, so I told her I would look it up and she could read it from the contract book. Then, Mr. Baka and Mr. Moskin came alongside of me, by my machine, when I was looking up the part about transferring for 16 hours. They left and the next thing I knew Mr. Baka brought me a cita- tion saying, "Reading personal material." Knutson testified that she read the citation and said nothing. She was absent the next day, ill at home, when Garman called and said she had been suspended for threatening Frank Baka. Baka testified that he gave the "oral," or first step, notice to Knutson because he saw her sitting at her ma- chine reading the current collective-bargaining agree- ment rather than working. The notice states as a reason therefore: "loafing ... reading personal Mat'l. at ma- chine on productive time." Baka testified that when he gave the notice to Knutson, Knutson replied: A. "You can't do this to me," something like that. She became very loud and boisterous. Q. What did she say in a loud boisterous remark? A. She had gotton up from her chair and we walked over to the side of the aisle which is close to where she works. She works on one side and we walked to the other side, and she looked up at me and she said, "One of these days big boy8 you're not going to make it home." I said, "What?" And she walked back to her work station, and I says, "Vivian, this is a personal threat to me. What did you say?" She said, "Your word against mine," and I went back-and then just then the quitting bell had rung, or the 3:20 whistle had blown and I was trying to have her repeat what she had told me. As soon as the bell rang, she left. She says "Your word against mine." I turned right after the bell and went back to see Moskin. I told him about it and informed Mr. Garman about it. Baka repeated on cross and redirect examination that the threat was loud. On the back of the warning notice issued that day Baka wrote: 3:04 P.M. At issuance of this citation V. Knutson said, "one of these days, big boy, you [sic] not going to make it home. No witness is present. (signed) F. Baka HBaka Is, ) feet, 2 inchec tall, Knutson is 5 fct, I inch all 526 MAGNETICS INTERNATIONAL, INC. However, at the hearing, Baka acknowledged that there were two employees in the immediate (5 or 6 feet) area, Vivian Furr and Teresa DeFranco. He asked DeFranco (at some unspecified time later) if she heard the threat and DeFranco said to him that she had not. Baka did not ask Furr. Furr and Mechalski, who also worked in the area at the time, testified on behalf of the General Coun- sel and denied seeing or hearing any part of the incident. Baka testified that he immediately informed Moskin and Garman and "Their reaction was that we should sus- pend her and investigate the matter." aka, as well as Moskin and Garman, testified that by the time the deci- sion to suspend Knutson was made, it was after the 3:30 p.m. quitting time, and Knutson had already left the plant. Baka testified that on his way home that evening his automobile was run off the highway by another auto- mobile, an event he reported to three different police au- thorities in the area. He reported the incident to Moskin and Garman the first thing the next morning, and Garman and Moskin told him they would investigate the matter. On July 12 Knutson did not report to work because, as she testified, she was ill. Garman testified that he called Knutson at home some time during the morning of June 12, but he did not know what hour; Knutson testi- fied that no call was received until 2 p.m. Garman also testified that he told Knutson that she was suspended for threatening Frank Baka. Garman testified that Knutson was suspended, rather than immediately terminated, because: It took some time to review her whole personnel file case to get information which he thought was particularly needed before the decision was made, but not to make a hasty, snappy decision, just took our time, gathered information, had conferences and finally came to the conclusion in reviewing her whole personnel file. Garman testified that as well as reviewing the personnel file he, or some other unnamed representative of Respon- dent, attempted to find witnesses, but did not talk to any employees who would have been in hearing distance of the alleged threat. Specifically, Garman knew of no man- agement representative who had discussed the matter with Furr or Mechalski whom he conceded worked 8 to 10 feet from Knutson's work station. Garman further conceded that discussions with Knutson were not a part of Respondent's investigation. Baka, Moskin, and Garman agreed that the purpose of the suspension had been to investigate the propriety of a discharge. Garman testified that in deliberating the dis- charge the incident Baka had reported to have happened on his way home played no part in Respondent's deci- sion. However, Moskin testified: Well, the final conclusion came when the fore- man reported the next day that somebody tried to run him off the road. We thought, we're not dealing with somebody who is making idle threats anymore, somebody is really taking steps against the foreman. Therefore, Moskin and Garman squarely conflicted on whether the incident Baka had on the way home had anything to do with the discharge of Knutson, Moskin being very clear that it was the precipitating cause and Garman denying that it had anything to do with the dis- charge. A logical inconsistency in Respondent's account is that no one attempted to call Knutson at home either on the night of the alleged threat to Baka or at the start of the shifts the next morning when she failed to appear. Logically, had a supervisor been threatened as Baka claimed to have been she would have been notified of discipline immediately, not some time in the morning of the following day which Garman could not specify. An- other detracting factor from Respondent's account is the fact that although Baka testified that the threat was made by Knutson's loud voice, and there were other employ- ees working nearby, none (except possibly DeFranco) was contacted at any time during Respondent's "investi- gation." Furthermore, Baka's memorandum of the al- leged threat reflects that it was made at 3:04 p.m., or 26 minutes before quitting time. Baka, according to his own testimony, immediately reported the incident to Moskin and Garman, any of the three could have, and presum- ably would have, immediately attempted to secure cor- roboration of the threat if they really believed it had been made, especially if, as Baka testified, it was made in a loud voice, and especially if, as Baka related. Kiulson had said its "your word against mine." Finally, had there actually been a threat, or Respon- dent's agents believed there had been a threat, there would have been no purpose served in the suspension; she would have been discharged immediately not 10 days later. In summary, I find that Respondent's account of a threat by Knutson to Baka to be incredible.9 However, assuming that Knutson threatened Baka in any manner, the testimony of Garman makes it clear that Knutson's activity as a job steward was at least a part of the reason for her discharge. Garman characterized the seven or eight grievances which Knutson had filed as a job steward as "her per- sonal grievances" by which he meant "she didn't like the way the foreman ran the department. She was slowing down production and he didn't consult with her when he changed the schedules. It had nothing to do with other employees or representatives of the Union. She didn't like the way he ran the department." Hle further testified that he considered the grievances only "personal" be- cause most of them were in response to disciplinary ac- tions which had been taken against Knutson herself. After stating that most of the grievances were consid- ered nonmeritorious by management, Garman was asked if Knutson's filing of these unmeritorious grievances came into play in determining to discharge her, to which T9 his is not to say that I believe Knutron's teslimon I hal when she received he July 11 warning notice she said nothing Knutson made an unfavorable impression She appeared to he affecting a demneanor too meek to helieve Furthermore, I do riot believe Baka fabricated the entllre account to manufacture a pretext for securing the discharge ,of Kilutso ,ll believe that Knutson aid something, but i Respondenl believed she had made the threall alleged, or anything like it, i ,ould not have ,xaitcd 10 di1\ s hile re eles ing her personnel tile herfre dli.charging her 527 ) DCISI()NS OF NA FIONAL LABOR RELATIONS BOARD Garman replied "not heavily." Garman testified that Knutson was discharged, in part, for "disrupting work and workers in her department" by which he meant: Several occasions she tried to insist that other employees filled grievances out when they didn't want to file grievances. And, with regard to some of the grievances she had filed following disciplin- ary action to one incident, one violation of shop rules, she became very loud and belligerent and profane and broadcasting it so that everybody could hear her. She was telling the Company off. Garman was asked by his own counsel: Q. Was that fact that she was a shop committee person, I take it as of January, 1978, did that fact enter into the discussions or deliberations that led up to her discharge? A. Yes Q. In what sense, Mr. Garman? A. To the extent that we felt that being a depart- ment steward she should have known not to violate some of the shop rules that she willingly violated. She should have been an example for the employ- ees. Q. During the first half of 1978, was that type of employee, in your opinion as the personnel manager of the Company, was Ms. Knutson's average? A. Not outstanding or brilliant. Her work was satisfactory, but she continued violation of shop rules over and over. A continuous process, until we got to a point where we felt that she was not going to try to work under supervision. Q. And you had input from Mr. Baka, your fore- man, in arriving at that conclusion, did you not? A. Yes. Garman testified that all of the "continued violation(s) of shop rules" were reflected by the warning notices in evi- dence. These violations were poor production on Janu- ary 4, 1975, and February 20 and April 20, 1978, as well as the incident of insubordination on June 8, the eight ab- sences and the alleged threats to Baka on July II which are discussed above. Baka described Knutson's employment history accord- ingly: Q. Separate and apart from the incidents of July 8th and July 11th, tell us in your words what kind of worker Ms. Knutson was in the first six months of '78. A. The first six months of 1978, I'm trying to recall the date that she reported-shortly after she came to the department she ran for committee girl and seems that after this election, she was elected, her attitude and her performance were very distrub- ing to the department. Q. You noticed a change in her attitude and per- formance after the time she was elected to commit- tee person? A. Yes. Q. Would you describe that for us? A. She caused a lot of problems, unnecessary Union connected or worker union connected com- motions within the department. Q. What type of commotion, what would be a typical example of commotion? A. Argumentative discussions. Q. Would that have been argumentative discus- sions with you or with other employees, or what? A. Both. Q. With what frequency was this type of action taking place? A. Oh, I'd say almost daily. Q Would you issue a citation, an oral warning to her each and every time you observed this type of activity? A. No. Q. Why not? A. Some of it was very incidental. I don't know whether it was her motive to promote a disruptive department. Things were working fine and she was finding so many things, in her opinion, that I was doing wrong. Q. Were many of Ms. Knutson's activities during the first six months-have an impact on the efficien- cy and productivity? A. Yes. Q. In what manner, sir? A. Well, the commotion that she had caused, hol- lering, causing a lot of- MR. SIMONEI-II: Objection, unless he can give specific answers and lay a foundation. All these are conclusionary statements. JUD(;E EVANS: They are conclusionary. If he doesn't lay the proper foundation, I assume he can't. Let's get on. A. She had caused a lot of disruption in the de- partment in her actions, either between the employ- ees and myself. Q. Can you recall any specific incidents where there was disruptive activities other than July 8th and July I 1th incidents? A. Yes. There was another occasion where an- other employee had been-one employee noticed another employee doing a job, and Vivian Knutson tried to get the other one employee to file a griev- ance because of someone else doing that particular person's job. What I was doing, I was training an- other person. And the employee, not the committee girl, was not-she did not want to follow her Ms. Knutson sort of instigated, tried to tell her to file the grievance and that she should not- Q. Approximately when did that occur, Mr. Baka? A. Sometime in March, I think it was March 9. Q. Of 1978? A. 1978, yes. Q. Any other specific incidents that you can recall concerning Ms. Knutson and her activities in the motor department? 528 MAGNETICS INTERNATIONAL. INC. A. Yes. She oftentimes complained about why she was not asked to work overtime when other people were. She stated that she should be given the opportunity to work. She hadn't been experienced at the work that was supposed to have been done, and she again made a lot of commotion because of it. Q. Did you report any of those incidents to either Mr. Garman or your superior, Mr. Moskin? A. Yes, I did. Q. Did you normally and regularly have discus- sions with them concerning activities in your de- partment? A. Yes. Q. Did you make them aware of what was going on with Ms. Knutson? A. Yes, I did. Since, as Baka testified, he kept Garman apprised of all these problems with Knutson, and since, as Garman testi- fied, he consulted with Baka in the process of determin- ing whether the suspension of Knutson should be con- verted to discharge, it is obvious that at one point or an- other these observations of Baka became a part of the decisional process pursuant to which Knutson was termi- nated. In summary, the suspension was to review Knutson's employment history; that history included Knutson's grievance-handling activity; and that activity was at least a part of Respondent's basis for discharging Knutson. Just how great this part is was impossible to determine with precision, but it was clearly substantial because the only nongrievance-handling activity relied upon by Re- spondent is the citation for absenteeism (which I have found to be violative) and poor production on three oc- casions, one some 3-1/2 years before the events of this case. 2. Conclusions The action which precipitated the issuance of a writ- ten warning notice on July 11 was Knutson's sitting at her work station reading the contract rather than work- ing. The General Counsel contends that this activity was protected. I disagree. According to her own testimony, Knutson was perusing the contract only because an em- ployee had disagreed with her interpretation on a point regarding temporary transfers. While stewards, in ab- sence of express contractual prohibition, may be pre- sumed to be allowed a reasonable amount of time to in- vestigate grievances, any such presumption would seem- ingly apply only where there is a necessity for such ac- tivity during working time.'0 Here, Knutson was not in- specting the situs of a dispute or conferring with an em- ployee who was involved in a situation which required her immediate attention. In short, Knutson could have waited until some time later to satisfy the grieving em- ployee that Respondent was correct. or incorrect, in han- dling the temporary transfer complained of. According- ly, I find that Respondent did not violate Section 8(a)(1) '° See, for example, & Painting (i,. 174 NtRB 411 (1h). ('i- sumerv Power (Coirtpanv, 245 NIRB 183 ( 17U ) and (3) by issuing the warning notice to Knutson on July II. As noted, I have discredited the testimony that on July 11, when Knutson received the lawfully issued warning notice, she threatened Baka with violence on the way home some day, and there is no other evidence of unprotected activity on her part. Conversely, the ex- tensively quoted testimony of Baka and Garman clearly demonstrates that protected activity, as a steward, was a substantial reason for her discharge. Therefore, the most that can be claimed by Respon- dent is that Knutson's attempts to enforce the contract caused momentary disruptions of the departmental rou- tine. However, "It is obvious that concerted activities which are protected by the Act often create a distur- bance in the sense that they create dissatisfaction vwith the status quo. Such a fact without more can hardly jus- tify discharge." Salt River Valley Water Ucrs' .4sociation v. N.L.R.B., 206 F.2d 325, 329 (9th Cir. 1953). Assuming that Knutson's conduct may have been "in- subordinate" at different times, it still was taken in the course of a generally protected activity, grievance-han- dling. Respondent's supervisors characterized Knutson's grievance as "personal." While those relating directly to discipline imposed upon Knutson may in a sense have been also personal, they were no less a demand that the contract be followed, and, therefore within the activity protected by Section 7 of the Act. " The Board has held that an employee may be deprived of the protection of the Act, even in the course of such Section 7 activity as grievance handling, but only in "flagrant cases in which the misconduct is so violent or of such serious nature as to render the employee unfit for further service." 7l1 Bettcher .ManuJtcturing Corporation, 76 NLRB 525 (1948); Socony Mobile Oil Company, 153 NRB 1244 (1965). There is no credible evidence of such conduct on the part of Knutson. In summary, I find that (despite the general denials by Baka and Moskin) Knutson was discharged at least in part because of her history of vigorous prosecution or enforcement of the collective bargaining agreement which began with her election to the position of commit- teeman in January 1978. I further find that there is no evidence that any of this conduct was so outrageous as to render Knutson unfit for further employment. Ac- cordingly, I find that by suspending Knutson on July 11 and discharging her on July 22, Respondent violated Section 8(a)( ) and (3) of the Act. Upon the basis of the foregoing findings of fact anti the entire record, I make the following: CONCI USIONS Ot LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act i I(, accept a CorltentliOl that prosecuton .pf pctron;l gricarlc ' Il ste tard, Is uiprteclced sould riedll In the .lriloiilIisi hlclfdlll, that In ti- .salrd are Ililprtc .idl hecnl Filirng gril aiics t h lCl m.i f l Inmcn diatltl) ,11 t, IlewI , [I bc'tict 529 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By issuing a disciplinary warning notice to employ- ee Vivian Knutson on June 27, 1978, because she filed or pursued a complaint under the 1964 Civil Rights Act, Respondent violated Section 8(a)(1) of the Act. 4. By suspending the employment of employee Vivian Knutson on June 8, 1978, for a period of 3 days; by in- definitely suspending Knutson on July 11, 1978; and by discharging Knutson on July 22, 1978, because of her ac- tivities as union steward in administering the grievance provisions of the collective-bargaining agreement, Re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. By the same conduct Respondent has discrimi- nated against employee Vivian Knutson with respect to terms and conditions of employment for her conduct in engaging in protected concerted activities, thereby dis- couraging membership in the Union, in violation of Sec- tion 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not otherwise violated the Act. REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Having found that Respondent unlawfully suspended employee Vivian Knutson on June 8 and July 11 and dis- charged her on July 22, 1978, I recommend that Respon- dent be ordered to reinstate her and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her. The amount of backpay shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977).12 Upon the foregoing findings of fact and the entire record in this proceeding, I make the following recom- mended: ORDER' 3 The Respondent, Magnetics International Inc., Maple Heights, Ohio, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Suspending employees, issuing them disciplinary warning notices or discharging them because they have engaged in protected concerted activities including the '2 See, generally. Is Plumbing & learing Co.. 1311 NLRB 716 (19)2) " In the event no exceptions are filed as provided by Sec 1(12 46 of the Rules and Regulations of the National L.abor Relations oard. 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, colnclusions, and Order, and all objections thereto shall be deemed waived for all purposes. filing and processing of grievances under the contract and complaints under the 1964 Civil Rights Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, or dis- couraging membership in a union by discriminating against them for engaging in protected concerted activ- ity. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Rescind and expunge from the personnel file of Vivian Knutson all disciplinary notices and other records relating to her suspensions of June 8 and July 11 and dis- charge of July 22, 1978. (b) Rescind the written warning notice issued to Vivian Knutson on June 27, 1978 and expunge from her personnel file any and all evidence of such warning. (c) Offer to Vivian Knutson immediate reinstatement to her former position or, if such position no longer exists, to substantially equivalent employment, without prejudice to seniority or other rights and privileges pre- viously enjoyed, and make her whole for any loss of earnings she may have suffered as a result of her suspen- sion and discharge in the manner set forth in the remedy section of this Decision. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business and office at Maple Heights, Ohio, copies of the attached notice marked "Appendix." '4 Copies of said notice on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. " In the event that this Order s enfiorced by a Judgment of the United States Court of Appeals. the words i the notice readinlg "Posted by Order of the National l.abor Relations lBoard" shall read "losted Pur- suant to a Judgment of the United States Curt of Appeals Enforcing an Order of the National l.abor Relations Ioard." APPENDIX NOTICE TO EMPI OYFIS POSTEl) BY ORDER O THE NATIONA. LABOR RI ATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations 530 MAGNETICS INTERNATIONAL, INC. Board has found that we violated the law and has or- dered us to post this notice. WE WILL NOT suspend employees, issue them dis- ciplinary warning notices or discharge them because they have engaged in activities protected by the National Labor Relations Act including the filing and processing of grievances under our contract with International Association of Machinists and Areospace Workers, Local Lodge 233, AFL-CIO, and the filing and processing of complaints under the 1964 Civil Rights Act. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act, or discourage membership in or activities on behalf of the Union by discriminating against them for engaging in protected concerted activities. WE WILL rescind and expunge from the person- nel file of Vivian Knutson all disciplinary notices and other records relating to her suspensions of June 8 and July 11 and discharge of July 22, 1978. WI wit i rescind the written warning notice issued to Vivian Knutson and expunge from her personnel file any and all evidence of such warning. WE WILL offer Vivian Knutson immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges. WE Wll. make Vivian Knutson whole, with in- terest, for any loss of ay she may have suffered as a result of our discrimination against her. MAGNETICS INTERNATIONA, INC. 531