Steward-Warner Corp.

I)ECISI()NS ()F NA IONAI. LAB()R RELATIONS BO()AR) Stewart-\Warner Corporation anrd Neil Burke and Mlark Weisbrot, Margaret McCarthy and Bruce Bernstein. Cases 13-CA-18102, 13-CA- 18740, 13-CA-18820, and 13-CA--I 8956 October 28, 1980 DECISION AND ORDER BY ClIIRNlSN FANNING ANI) Ml MBI1.RS JE NKINS ANI) P NI I O On May 28, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the Respondent, the Gen- eral Counsel, and Charging Party Mark Weishrot filed exceptions and supporting briefs, and the Re- spondent, the General Counsel, and Charging Party Bruce Bernstein filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge, except as modified below, and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Bern- stein's discharge was unlawful. Bernstein, who fa- vored replacing the Union with the United Work- ers Association (UWA), was discharged on Monday, June 11, 1979. The only link between Bernstein and UWA is that, on the weekend before his discharge, he hosted a party which originally was planned as a purely social gathering but some- where along the line acquired an additional organi- zational purpose. Thus, some, but not all, of the in- vitations contained the notation: "Let's Get a Decent Union at S-W!" The invitations gave Bern- stein's address, but not his name. The Administrative Law Judge acknowledged that there is no direct objective evidence that the Respondent was aware of Bernstein's sponsorship of the party, or of his support for the UWA, or that it even knew of the existence of the UWA. However, he found that the Respondent had "the opportunity for gaining knowledge" of both the or- The Respondenit. the General Counsel, and the Cha rging Party have excepted to certain credibility findings made by he Adnilislrai is l Judge II is the Board's established policy not to ).crrilJc ian adnillnstra- tive lawx judge', resolulin s with rcpct to crelibility I nless the clc;ar preponderance of all of he rle vaii eidencc con inccs us Ihal Ith rcst)- lutions arc incorrect Standard Dr, r 4 ll I'rdi/,,ot , 9li, 9 1i NlR I 544 (1950)1. enfd IX88 2d 362 (3d Cir 1951) We hast .l refull e.lxaminir ed the record and find nio basis for revcersing iis ir diig I In adopting thc Adminiistrative t.as Judge's cnlchlisiol that tlhe Re spondertt did nol violate emploece Wl,sbrol's rights Illder \ I R , Wln elrietI ln, 420 tI 5 251 (1975), ('hallrman ilainitug .iland M rllbel Jenkins do not rely on Raudwry a 1.Xprcs, Inc. 246 NIRlI No 18) ( 1979) 253 NLRB No. 16 gani/alion and of Bernstein's participation therein because the invitations to the party were passed around to employees and because conversations about the upcoming party occurred within a few feet of supervisors. Bernstein, however, did not pass out any of the invitations which recited the organizational purpose. In addition, his address, without a name, o011 the invitations cannot reason- ably support a inference of identification of a new, probationary employee in a plant of approxi- mately 3,(000 employees. Moreover, there is no evi- dence that Bernstein's name was ever mentioned during the conversations that supervisors arguably were capable of overhearing. In short, the possibil- ity of the Respondent's gaining the relevant knowl- edge is present in only the most remote and hypo- thetical sense. Unpersuasive, too, is the evidence that the Re- spondent had sufficient motivation to discharge Bernstein for his UWA activities. Acknowledging that the Respondent did not violate Section 8(a)(1) of the Act at any time during the extended and vigorous UWA campaign, and that its opposition to a change in the existing organizational status of its employees was lukewarm at most, the Adminis- trative Law Judge rests his finding of animus on a single remark by the supervisor who discharged Bernstein. This remark was made more than 2 months after the discharge, and consisted of telling a UWA supporter that he thought she was "too smart to get hooked up" with that group. When the employee answered that her conduct was "not company business," the supervisor added that he was not talking to her as the Company, but as a friend. The incident, which was not alleged to be unlawful, is, at best, ambiguous, isolated, and remote, and hardly bespeaks a degree of animus which permits the inference that the Respondent would have singled out Bernstein for discharge had it known of or suspected his UWA activity. Given the less than passionate role the Respondent as- sumed even as the UWA campaign coalesced and eventually succeeded, this case does not appear to fall within the category of cases exhibiting the "nip in the bud" variety of employer unlawful counterorganizational conduct. While an unlawful motive may be inferred from the falsity of the stated motive, "such an inference is not compelled and is justified only where it may reasonably be concluded that the motive sought to be concealed by the asserted false reasons is unlaw- ful." Superior orwardling Company, 242 NLRB 761, 765 (1979). Cf. irst N\ational Bank o Pueblo, 240 NLRB 184, 185 (1979); Shattuck Dnn Mining Cor- poration v. .L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). 13h STEWARI-W'ARNFIR CO()RPO(RATI()N For the foregoing reasons, we find that the Adminis- trative Law Judge's conclusion that Bernstein was dis- charged in violation of Section 8(a)(3) arid (I) of the Act is not supported by a preponderance of the record evi- dence, and we hereby dismiss that allegation of the com- plaint. 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, Stewart-Warner Corporation, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Delete paragraphs (a) and 2(a) and (h), and reletter the subsequent paragraphs accordingly. 2. Substitute the attached notice fo(r that of the Administrative Law Judge. APPENDIX NoTIcct To EN1PI.O'tits POSII.D HY ORI)II R o: THE N.TIONAT . LABOR Rt-t AFIONS BOAR) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WI.I NOT threaten employees; wt wll.i NOT intimidate or denigrate employees; wt WILl. NOT coercively interrogate employees; and wt;: WtI. NOT limit the right of employees to engage in protected concerted activities, in circumstances which restrain, coerce, or inter- fere with the rights of employees to engage in activities within or on behalf of labor organi- zations. WE Wl I. NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. STEWART-WARNIR CORPORATION DECISION BI RNAR,) Rt. s, Administrative Law Judge: Case 13- CA-18102 was heard in Chicago, Illinois, on April 18 and May 2, 1979, and closed on the latter date. Thereaf- ter, counsel for the General Counsel filed motions to reopen the record and to consolidate for further hearing with Case 13-CA 18102 the complaints which had sub- sequentls been issued in the other threc-captioned cases. ()ver Respondent's opposition, I granted the motions. The new matters were heard in Chicago on November 13-16 and December 3, 1979. Only Respondent filed a brief after the initial hearing; both Respondent and the G(eneral Counsel, on or about March 18, 1980, filed briefs addressing the second group of allegations The pleadings establish that it is appropriate for the National l.abor Relations Board to assert jurisdiction in this pro- ceeding. The proceeding consists of two well-demarcated phases At issue in the original case is whether, on sever- al occasions in September and October 1978, Respondent engaged in conduct designed to interfere with the "union and/or protected concerted activity" of employees, as al- leged in the complaint, and thereby violated Section 8(a)(1) of the National Labor Relations Act, herein called the Act. The second set of complaints charges both 8(a)(l) and (3) violations occurring during a subse- quent stage of Section 7 activity in May-September 1979. ()n the basis of the entire record.1 the briefs, and my impression of the demeanor of the witesese I make the following findings. conclusions, and recommenda- tions 1. .\ II (; I IONS RISIN( O't l 1t F- ( 001 CA PAI U(N As of 1978, Local 1031, International Brotherhood of Electrical Workers, represented the employees at per- haps 3 of Respondeat's plants aid, as well, about 65 other bargaining units. In the late summner of 1978, some of Respondent's employees, dissatisfied w ih being repre- sented by Local 1031, established an organization called the "Committee for Our ()wn Local." or, acronymically, "COOL." On September 5, 1978, the day after Labor l)ay, COOL. members began distributing, inside and out- side the plant, literature and cards. The cards, which were designed to be mailed to IEWV International Presi- dent Pillard, requested that "our bargaining unit be re- moved from the jurisdiction of Local 1031 and estab- lished as a separate IBEW local union" Neil Burke is listed on the cards as one of the two "Co-ordinators" of the COOL group. Burke, an employ- ee for 20 years, began collecting signatures on September 5. He testified that, on September 7, he was told to go to the office of Chester Kopier, his department foreman. There. according to Burke, Kopier said he had been told thirdhand that Burke had been out of his department without permission. Burke denied having done so, and said he "just went through this a couple of weeks ago with Bill Buchanan." Kopier, after saying "Don't go into Department 65 for any reason," then stated, "Neil, we have been friends for years, but when a termination comes through this office, you know, it wouldn't be coming from me, but that I'll have to process it." Burke then asked that the source of the information be contact- ' £( ,iIsr l loir ite (ileTr.ll (.iunllel ;ildt Resp)II till ha. filed a.1 Oe i imoloni to corret atiC ra,lil rlpt Ihexc tr,,rs are hcreh} tlloted nld otr retced Ihe r cord uis .one.Il Il Ch lIl l] [tehi * i lllnlih r: tIlere aI refer- ence to "rfic ( hlwlgo .ireal plIlnts" at other polilnt, 117 I)tliISI()NS ()F NA II()NAIL I .ABt()R R LA-I()NS l()ARI) ed so that they could "get this straightened out right now,'" but Kopier said he would riot disclose the source. Burke thel said to Kopier, near tile end of the conversa- lion, "ook, Chester, off the record I can tell you hov. i'm organizing this and I don't have to leave the deparl- menCt t do it." IHe went on to relate the manner ill which he could solicit signatures without running afoul of the rules. Kopier said nothing, aid Burke left. The conmplaint alleges that, on or about September 7, Respondent violated the Act whenl1 Kopicr "'threatened to discharge an employee if the employee engaged in union and/or protected concerted activit." I am i- clined to think that Burke's testimony supports a fi iding that Kopier violated Section 8(a)( ). Kopier as not called by Respondent as a witness. While another witness, urke's immediate foreman, Wil- liam Buchanan, did give sortme testimony purportedly re- lalinig to this incident. Kopier's failure to appear compli- cates the decision, leaves directly uchallenged the testi- monl of Burke, and leaves uncorroborated and unclari- fled the testimony of Buchanan. Respondent's brief simply states, "Kopier's presence would have been a needless expense to the company because Burke's testi- molny establishes that the alleged 'terminatioin' eilark does nrot constitute a violation and that Kopier did rnot discuss illard cards." Considerinlg thai an appearance by Kopier might have consunledCL only a fewv hours of his time and would have enlltiled no more than the expense of travel from one part of Chicago to another, that explanation displays a kind of confidence not often encountered in these cases. Responident is, of course, entitled to let the General Counsel's ase stand or fill otn its own merits, but one cannot help but speculate about a decision not to have Kopier come in to profess his completely benign motive ill an aencounter which was evidently the main event of the first phase of this proceeding. Burke testified that he had been spoken to by supervi- sion o(n two occasions in the preceding 20 years about having left his department without permission. He said that, in December 1977, he had taken a wrong turn in the planlt and wound up in department 65. At that time, Kopier had called him in and spoken of issuing him a warnilig slip, but after Burke explained what had hap- pened, "[Kopier] agreed with me, and I didn't receive a warning and I went back to work." More pertinent to the present issue was Burke's ac- count of an incident in August 1978, the month before the alleged violation. Burke said that, in early August, he had secured permission from Buchanlan to go to depart- ment 65 to grind a tool, and that, about 2 weeks later, Buchanan chastised him for having gone to that depart- ment without permission. While Burke testified that the tool grinding occurred in early August and the criticism by Buchanan 2 weeks later, his October affidavit placed the times as, respectively, "about August 15" and "about August 29." At first stating that the affidavit was "incor- rect," Burke later said he "may have had it right there, and I don't right now." Supervisor Buchanan testified to an occasion which floats uncomfortably in the air, unconnected in time, almost contradictory of Burke, but unconfirmed by Kopier. Sometime "iii the summer or fall of 1978," Kopier assertedly told Buchanan that Burke "was seen in another department, I)epartment 65, talking to other people." That same morning, Buchanan asked Burke about it. and Burke told him he had gone to grind a tool. Iuchanani told Burke that he should get a pass if he wanted to leavc his work area. Again on that morning, Kopicr told lBuchanian that he also had spoken to urke about the matter, anid, iot long after this, Burke com- plaiied to B3uchananl about havinig been chastised by Kopier. Buchanan was a fairly good witness. If it is as- sumed that he and Burke were referrinlg to the same inci- dent, this would mean that Kopier spoke to Burke about it in August nrot September. Buchanan's inability to place this iincident il time leaves us thirsting for the more definitive testimony by Kopier which was not pre- senled. I am ireclined to credit Burke that some time elapsed between his appearance in department 65 and the admo- nilion given him by Kopier. Burke's uncontradicted ac- counlt of the September 7 conversation with Kopier idi- cates that a violation occurred. Respondent's rules re- quire "'[w]ritten approval . . . to visit the following loca- tions: . . . ()ther Dcpartmenits" They further provide that "a verbal warnilng will be issued for the first inci- dent [of violation of this rule], a written vrarning for the second incident, and a suspension for the third incident Ani employee is subject to termination for the fourth inci- dent in a running year. " a The lestimoion discloses that this sequelice is faithfully adhered to. That being so, Kopier's statement to Burke, "Neil. we have been friends for years, but when a termination comes through this office, you know, it wouldin't be coming from me, but that I'll have to process it," was plainly disproportionate to any claim that Kopier was merely speaking to Burke about being away from his de- partment. Puttinig aside the December 1977 incident, which Burke says, without contradiction, was dismissed without so much as a warning, Burke's credited testimo- ny is that he had inot been in department 65 since, at worst, August 15. For Kopier to call him in oni Septem- ber 7, 2 weeks after Buchanan had already spoken to him about the matter ad shortly after the beginning of the distribution of the cards (an event which was open and notorious at the plant), and rarn him about "termina- tion" would have reasonably been perceived by Burke 4 as an overreactionl sparked by the passing out of the cards. 5 I find, accordingly, that Kopier unlawfully threatened Burke on September 7 because of his participation in protected concerted activity. ; In so finding, I have con- :' All ilteresting feature of Resporldctllts ,lplllary  lstern is that sollCm '%e rhal arllilgs" are tllenirialiic ll i .w rling. so Ithal i order to diffrtrliait Ihl osec warnrilgs from '"l ittel w arnmiIgs." a specific designla- tioll of the kind of iarmiig heing issued is made on the larning noItice It Bulk. trc it'li . 'ithoul rcluillli<l. that on September 6 Itllananll harlded him a signed card. evidenly fiund by him. saiving, "t guess this is yours ' Although Kopier did lnot menlill cards, it seems apparlen i li he and lurkc, Iwsio old friends, undersiiod whail the wcre talkinlg abhut Respildetll's inlsletncet on brief. that itrnal uIllilol acii. it s I nt prleclted h Sec 7 is far off he manrk Woorr,-.McC'ormA L. /,i'h or- Cronilin ued 13X S'}AVKAR I V (ARN'R I()RPRAI IN sidered tlurke's past history of aclixlsn, dissent, and liti- gation. but I have councluded. i the circtinsltallces of this case and the manner of presentation of he cx ideCce. thlat no other result is T-carrantcd. The faicl that a social rcla- tionship existed between Burke and Kopier is no mit nigat- ing circumstance; according to thc Board. "the impact of such statements, comning fonl a 'frieId' who is part of management, is prohbabhly reater in xricw of thie authen- ticity and credihilit of the soulrcc" (',lchll an( I:'quip- ment Suale Corp.. 228 NLRB 440 ( 1977). Lawrence Cooperman. al alitornaltic srew niachiine op- erator and a supporter of (')(O1. w ho circulated cards. testified that on September 7. as lie and Burke were talk- ing in the departmen in \xhich they worked. traliling in- structor Carl Bogaard walked up and said that he had something to show to Cooperman. They \ ient to C(oo- pernian's nmachine w, here Ilogaard displa;ltd to Cooper- mani, thein just graduated from Irainee status hut llnot SCt a full-fledged operator, a cracked tool cau;sedt by someo(lne else's error. According to Coopermain. Bogaard then changed the subhect. sailg. "l isten. I1'e caught (,iou talking to Ncil tice loday, aind I've caught ou talking to him before.'" li Co11illued, "ll your position, that' not a good thinlg to he doing," ad theni repeated the phrase "''i slightly different form." Coopermlan conceded at the hearing that lie had spoken to Burke previously that day, hen they hadt] met hile Cooperman \was walking toward the washrooti aitd Burke xwas leaving it. Cooperman (lescribed these casual conversations ais a common and accepted practice. Carl Bogaard was all instructor ill the automatic scre, machine training program, under hichli a ne hire filst occupies "trainee" status, then becomries a "junior opera- tor," and then an "operator." He testified that it nornial- ly takes 8 months to progress from the first sage to the second, and then I month to the third. He further tcsti- fted that a primary function of a operator is to pax close attention to the highly comiplicated machines as they automatically produce parts. Commenting on the fact that Cooperman was il trainee status for 11 months before he was promoted to junior operator on August 28, 1978, Bogaard said that Cooperman's "progress was somewhat on the slow- side and his production as a little bhit oIn the marginal end of it and the foreman was reluctant to send him ill the de- partment unless his efficiency improx ed." It was against this background that 13ogaard says he spoke to Cooperman in what he beliexed was "the latter part of August" before Cooperman was promoted from trainee to junior operator on August 28. He conceded that, having seen Cooperman speak to Burke twice ott the day in question and also on "a day or so before, two days before," he "leaned over and told him it would not be a good idea for him to he engaging in conversations away from his machine." Bogaard denied knowing of Cooperman's affiliation with COOL, and attributed his comment to a concern about Cooperman's successfully completing trainee status. poratud. 172 Nl RB 278 19h8), Sargent I..[ r (npuan. 2() NIRIt h(0. 637, 638 t74\. Indurr (i'ncrai (orportort. 221 NI Rt 12(1. 1212 ( 197S6 Allhough it appears to me thalt the cautionary words ullttrcd h Bogaard to C(oiperTllaitl were hbasicall1 mtieant to be prolectix. I also iifer that wihat Bogaard really iii- ended ails to achiexe that protectioll by isolating Coo- pcrinanri froni Burke. Bogaard xxais lunsure of the date of this incident,. although he thought it occurred prior to ('oopernlam t's elevation to junior operator. Cooperman sertlll(ed (ilite sure thit it happIened ol Sptetblher 7 after 1lt had graduictd I fronm tra;ille statillS ard after the ('()()[. camlpaign Iad beguil I iam inclined to accept Coopermllan's recollection. While malchine coperators were reqmlired to keep a ear oil their machines, there is no direcl conrtradicliorl of Cooperman's testiniony that, prior to the disputed con- versation, ogaard had witnessed him casually talking to Burke on the work floor "malis tItCes. Ilil' tinles. Illil\ times" itlhout issuing a \arnirilg ad that all the opera- tors indulged inl such coll\crsallios. Bogaard concteded that operators might have "a half anll hour of fre time"'' it' their machines are runniing l, and l l that oinlv ltleril a machine ,,as "iot runniriing good" ould te operator lhae to ' "stlay there collstlilll and \Ralth II cornstantly.l Bogaard also concede d that hlie ls i;avarc of Burke's al- filiatioti uith C()()l. but he aid. ot at the irne of IhiS incident, it seems difficult o hbelieve that hle could ha l remtilcnhe red so precisel ten l c h bcalme ax, are of Burke's COO()()I conectlotil I tililk that ill specifxing that he had caught Cooperman talking to "Neil" on several occasions,` and that, in Coopermanl's position. "that's not a good ilitg to be doing." Bogaard intenrded to conmvey the lnotion thlat, xith the dvenl of the COO()() effort as- socialtion with Burke had ahruptl\ become less thanli ad- vailtalgeCOs ith respect to Coopermnan's anticipated pro- motion to operator. It seems likel to me that Bogaard, ho appeared to be a kidlyn ma, helieved he was acting in Cooperman's best interests in so xxarnilng himi. Nonetheless. the clear connotation of risk by association ith a person notori- ously engaged in protected activity certainly iolates Section 8(a)(1), and I so find. 7errV Koth handed out COOL literature at the plant gates heginniing the day after I abor Day. Although the time is unclear, perhaps about a week later she solicited a signature from a fellow employee at the timeclock, prior to the start of work. They went to a table so that the other employee could sign a card, and Supervisor Char- lotte Alexander saw them. Alexander said, "Oh, no. you don't Oh, no, you don't. You can't do nothing of that on my line. Put that away." Turning to Koth, Alexander said, "Oh, you're doing this? All right. I bet you have a lot of cards over there in that drawer. I'm going to go and look." Koth invited Alexander to do so. Whether she did or did not remains a mystery. The other employ- ee left without signing. "About a week after that and about the third week of September." when Koth went to see Alexander about an assignment, the latter asked, "()h, how are yor( coming with your cards? Are you getting my girls to sign your cards?" Koth replied that the cards were none of Alex- 7 ii glr( Ics-tiificd ti hc "posihi" Lltalt rcti refnrcnIc 1 Bulrk, I11 ll t't \ c . t'ro iltll l I 14 I)tECISI()NS ()01 NAI()NAI I.AI()R RI.A''IONS H()ARD ander's business and that, if she kept interfering, Koth was "going to have to go to the Labor Board." Later that day, having soldered and washed some parts, Koth asked Alexander if she should rack them. Al- exander said she herself would do that job, whereupon Koth told her that she was not supposed to perform bar- gaining unit work. Alexander bristled, left the area, and returned with General Foreman Roy [)ePriest. Koth was summoned into DePriest's office. According to Koth, DePriest accused her of trying to run the department and then, uponi her denial, said she did not have the intelligence to do so. When Koth asked that her intelligence be left out of the discussion, De- Priest said, "I won't even say what I think of your intel- ligence. You make me sick, you and your husband and the rest of that sleazy bunch. You're trying to kick out the union. You're trying to get people to sign your cards, and you're trying to act like a big shot, trying to act like you're the union steward, so you get people to sign up on the cards." DePriest went on to say that he knew Koth was "threatening people to make them sign these cards." Alexander began complaining that the employees were asking Koth for advice "just like she's a union ste- ward," and DePriesl told Koth, "You're not allowed to talk to the girls about if they have questions or problems with the union or about their pay or their acations or anything like that." On October 30, DePriest called Koth into his office and, in the presence of an assistant chief steward and an- other supervisor, halnded her a warning slip for "interfer- ing with work of other employees causing them to stop work. Acting in a capacity of a union stewart [sic] when you are not a stewart. Violation of rule #9 & rule #13." Koth demanded details, but DePriest told her only that the misconduct had occurred that morning and that she should file a grievance if' she wanted the facts. She filed a grievance on November 3, in which she professed in- nocence and linked the warning to her "union activity." Koth testified that she had had no conversations on working time on October 30, but recalled that. prior to the start of work that morning, she had a -minute con- versation in the aisle with an employee named John Sa- miglioni, also not yet on his working time. As rioted below, the written warning was ultimately rescinded. Finally, Koth testified that just 2 weeks before this hearing began, around April 6, 1979, Alexander came to her work station and, after engaging in some discussion about Koth not making the newly instituted piece rate, said, "Pretty soon I'm going to take you off calibration, you can solder or something like that. you can be a sol- derer because you're not making the rate. I'm going to have to break you down." When Koth protested that the new rate was too high, Alexander repeated, "I'm going to have to break you down." Koth then challenged Al- exander to discipline her if she were dissatisfied with Koth's production, after which Koth would "file a griev- ance and we can have it out downstairs." Alexander said, walking away, "Oh yeah, sure, and then you'll go to the Labor Board and all that." Charlotte Alexander did not testify. Respondent argues on brief that a negative inference is not warranted "be- cause Alexander's absence is explained by her physical condition described in the statements of two doctors." In two statements attached to a motion for postponement of hearing filed by Respondent with the Regional Director a week before the hearing began in April 1979, one doctor cited Alexander's cardiac condition and a recent episode involving that condition as a reason for "strong- 1 recommending" that she be excused from testifying "for at least 6 months, "' and the other doctor noted that he had advised her "not to expose herself to tension pro- ducing situations" for the same reason. While these let- ters may explain why Alexander did not testify, although no mention of her condition was made at the hearing,' her absence makes it difficult to evaluate whether Koth was telling the truth or not. I note that when the hearing resumed on November 13, 1979, pursuant to the motions to reopen, Respondent made no effort to offer Alexan- der's testimony and, in fact, acquiesced in a motion by Burke's counsel to "limit the introduction of evidence to the three new charges which were consolidated in this case." My general impression of Koth was good, and I see no basis in her testimony of these encounters with Alexander for discrediting her. The first incident described by Koth, supra, involved the actions of Alexander with respect to the attempted card signing in the plant. The nearest thing in the com- plaint to this incident is an allegation that, "[i]n or about September 1978. Respondentt. by and through its agents Alexander and DePriest . . . did instruct an employee to refrain from engaging in union and/or protected concert- ed activities." It is not clear that the complaint intended to encompass this mnatter. since Koth failed to mention it in her affidavit. Still. the complaint might have so intend- ed; Koth testified that she told the General Counsel about the incident at sonic later time, although we have no way of knowing -whether it was before or after the complaint issued. It would appear to me, however, that the allegation. which refers to "Alexander and DePriest" instructing "ian employee,'' meant to refer only to the subsequent interview bet'ween those two and Koth. Since the complaint was niot amended to allege this initial inci- dent, ' and since the matter cannot, in the absence of Alexander, be said to have been "fully" litigated, I shall recommend that no unfair labor practice finding be made here. I find, however, that Alexander's questioning of Koth a week later as to whether Koth was "getting [Alexan- der's] girls to sign your cards" was, under Board law', an unlawful intrusion into the intraunion activities of both Koth and the other employees, suggesting, by the very nature of the question, an intimidating employer interest in those who would upset the applecart. That Koth, Ihe motion, hve.\c. oIrly sought postpoltement from April IS to August " I'h rilotion to postpone, denied h Ihe Regional Director, As not renewed hefore me. ' Respondenti' brief s,o nole, it () hblief. Respondenl contends tihat I had no real interesl il this "inlerl i unllion quabhle " ()h viu ly , Respoltdell .'s interes would he less prlIourlcc d hllat in aii initial rganlizing effor, but it night ell have rca'olS, for oppolsirg IhC atrlcn lpl to change argainilg reprcsentative, (ICe redsonl Wtould be., oi course, that t preferred to hargain \ilih i"he d 1e i kw" [lhe otllel ould he a more particular csllste rIir the p,.- (onlnuevd 14) II V\ARI-WVARNIR (C)RP')RA I I()N by iher own account. displa ed spirit i responding to Al- exanlder may only show that she is a spirited person. and not necessarily that the intrusion might riot have dial- pened her future enthusiasm for the task. II airy \vc t, the familiar test is hether te collLuct ould reasoi- ably hare tended to coerce emnployeces, ot hether the employee lwas in fact coerced. E.g. Pasquitom t/ali/c. rc. . N.L.R.B., 565 F.2d 1()74. 1080() (th Cir. 1'77). The remaining allegation involving only Koth and Al- exander relates to the April conversation about Koth ot making the piece rate. At the hearing, the complaint was amended to allege that Alexander "coerced and/or inter- rogated" Koth by this conversation. It is not clear to me what the underlying theory is. Koth's version includes no "interrogation" by Alexander in any way connected with her protected activities. It may be thought that by saying, "Oh yeah. sure. and then you'll go to the Labor Board and all that." in response to Koth's request that she be written up so that she could grieve, Alexander was coercing Koth. This remark, however, seems clearly to be derived from Koth's own statement to Alexander in September that, if Alexander kept interfering, Koth would "have to go to the Labor Board." I do not believe that there was coercion inherent in this exchange and I would dismiss the allegation. The other Koth allegations include DePriest. As to the incident arising from the dispute about Alexander doing unit work, DePriest simply said that he told the two women not to yell at each other on the production line. He testified that he did not refer to Koth's intelligence, to her "sleazy" associates. or to her acting like a ste- ward, and that he did not prohibit her from talking to other employees. Although DePriest's demeanor was tin- exceptionable, certain of his testimony on various points seemed dubious, and I simply cannot believe that Koth, also a good witness, was fabricating almost this entire conversation. I find, therefore, that by telling Koth that she was "not allowed to talk to the girls about if they have questions or problems with the union or about their pay or their vacations or anything like that," and by ex- pressing hostility toward the supporters of COOL, De- Priest violated Section 8(a)(l). As to the October 30 warning notice, DePriest gave the following account. He said that trucker John Samig- lioni came to him and complained that Koth was bother- ing him by coming from her work station to the trucking aisle and telling him that he should file a shift differential pay grievance, and he "wanted something done about it." Samiglioni told DePriest that this had been occurring between 7:45 and 8 a.m.; work began at 7:45 for Koth. After receiving assurance from Samiglioni that he would support DePriest if Koth should file a grievance about discipline imposed on her, DePriest called in the assistant chief steward and issued the warning notice to sibhliy of having to deal ith urke, Who. a Rspondenl documenlld, had heen a n ,ilble acilNlsl throughout much (If his cirer, dlssenlltg fromnt It EW p)icels. filing l.aW it 1rl and gilXis TicC, etl Again. there 1 a distinct psilhililN hal, cven though Re.pondcntl malllllinrli no orporae po licy agallst C()()I, some of ils ulprs',-rs... filr artoui reasill, rlighI have preferred Local 106)l Io an aulrInomouls local confined to leprceilt- ing Responden's ernployes lKotil giving her orally a general Butline of Ihc coni- plaint againslt hier Subsequently, according to D)cPriest, after Koth filed the gricsiancc, Samnuiglionii. ho was aboult to retire, said thlt e h did iot ish to get furthcer involscd. IThis failure of proof cle Respondent to rescind thel warinig otice ()ObiouNsl, DI)cPriest did not concoct this incidcent out of whole cloth. Koth. in her testimony. remembered speaking to Sanriglioni on the morning of the discipline. It is. furthcrnmorc, reasonable to infer that I)el'riest heard about this only because, as he testified. Samiglioni came to him to complainr ahout it. There is no way to be cer- tain h;lal Samiglionli gave as the ime when the ap- proaches were made to him by Koth, but it seems most probable that Samiglioni said to DePriest that it hap- pled while he was working, since the notice refers to "Interfering with work of other employees causing them to stop work." The warning was given 10 days after Burke filed the first amended charge. which named Koth as a victim of harassment. I do not believe, in these cir- cumstances, that DePriest would have disciplined Koth without a good-faith belief that she had engaged in the misconduct for which she was cited. 12 That conclusion does not necessarily end the inquir. An employer who disciplines an employee in the honest belief that the latter had engaged in misconduct in the course of protected activity may still violate the law, if the General Counsel establishes that the employee did not in fact engage in misconduct. Rubin Bros. Footwear, Inc.. and Ruhin Brotlhers Footwear Iltnc., 99 N.RB h610, 611 (1951). In the present case, although Koth's testimony as to the timing of her October 30 conversation with Samig- lioni is not refuted, the General Counsel has not adduced any evidence that Koth's approach or approaches to Sa- miglioni constituted protected concerted activity. In fact. she testified with respect to the claim in DePriest's answer to her grievance that she had left her work sta- tion, asked another employee if he were receiving premi- um pay. and offered to file a grievance for him, and that "[n]one of that was true." Accordingly, I recommend dismissal of this allegation based on the rescinded warn- ing notice. Catherine Peters testified that around the middle of September, as she was standing at Charlotte Alexander's desk waiting for an assignment, Alexander asked employ- ee Mary Rainey and then Peters if they had signed cards (adding, to Peters, "I suppose you did"). Rainey said she had not. Peters replied that she had: when Alexander asked why, Peters said, "Because I'm looking out for myself." Alexander then looked "mad" at Peters. As discussed, Alexander did not testify. Peters ywas a most credible witness. There can be no doubt that the reference to "cards" meant the separate local cards; Peters immediately understood it as such, and the ei- dence shows no other kinds of "cards" in circulation at t he ltti nlll of 'ersoliil Dlirecior D)avid Siafford conirills tii }ce It i ail eild a c,rlt'rtrlitce u, ll i l Sanligllll l )1'ir1,l ii} \at1it Ilie I;i')rnllC ie thlai " ahe s s. U illlllg ItI r Clir l .idll dilr't w.InI .ll I..ll x t il." ifitr whlich 5 hSlffi4rd sialhrv Ihe sriicil s.irii iid Sl.lflord ss i i ls credible Wi iIess 141 I)E(.'IS()NS ():F NAII()NAI. I AB()R R F.AIO()NS It()ARI) the time. Under oard law. this unjuslitiable exploration of employee sntimlent id activity, accomlpanied b a showing of supervisory displeasure about the protected activity, would have rcasonabiy tended to coerce I'eters and Rainey in the exercise of their Section 7 rights. I find, accordingly, that Alexander committed a iolation of the Act by coercively interrogating Peters ad Raiiicy in mid-September 197X. Sonrio lilcicitno passed out cards on behalf of C()().. She testified that, about a week after the solicitation began, as eployee Joyce Harold asked Feliciano about the purpose of the card which Harold had received at the plant gate, Alexander appeared and said to Harold, who was holding the card in her hand, "Don't sign that. That's full of shit. Throw it in the garbage." Harold then obediently threw the card into a waste container. As Al- exander walked away, she said that she did not know why the employees wanted something other than the "good union" they presently had. Feliciano had a language problem, but I had no doubt about her veracity. The testimonial inconsistencies to which Respondent's brief adverts amount to nothing. Fe- liciano was not violating the plant no-solicitation rule, as Respondent contends, but was merely answering a ques- tion. Although the discussion occurred on working time, it is evident that Alexander was responding to the con- tent of the discussion rather than its timing. Alexander's harsh reaction to the cards naturally tended to intimidate Feliciano and Harold in the conduct of activities which Section 7 protects. I conclude that Respondent thereby violated Section 8(a)(1). Robert Mc'Trl/and handed out cards for C()OOL i early September. About September 20. he was told by his immediate supervisor to report to DePriest's office. When he did, DePriest, according to McFarland, asked his secretary and another person to leave. He inquired of McFarland whether he was involved in "the movement to start a new local" and received an affirmative answer. DePriest then said that someone had seen McFarland obtain a signature "in a working area during working time which was . . . against company rules." McFarland denied a breach of the rules. When he sought the identi- ty of his accuser, DePriest said the information was "privileged." According to McFarland, DePriest told him that he "couldn't talk to anybody in the department . . . unless I had written permission from my supervisor and the su- pervisor in the department," and he had to "sign in and out of my department when I left and when I came back." McFarland commented that speaking to machine operators was part of his job, and DePriest "cut me off and he told me that I was to do what he said. I can only talk to department supervisors and the floor foremen." DePriest also reprimanded McFarland, a stock chaser, for a mistake he had made involving a failure to follow prescribed procedures for checking the quantity of parts on a ticket. Prior to work the following morning, McFarland was leafletting outside the plant. He handed a leaflet to De- Priest as he entered, and DePriest allegedly said, "Oh, you finally came out of the woodwork." After McFar- land punched in on the timeclock, DePriest came up to himi and said, '1 just wanted to make sure that you got to the department on time." Mc [arland replied that he knew the rules. DecPricst said, "If I knew it was you who had bid for this job, you never would have gotten it, and you w\on't last long in my department." I)elPriest testified that he called McFarland into the office on September 19 (not September 2(), as McFarland said) because of an error McFarland had made in moving parts from one department to another. " McFar- land having only recently, in August, begun to work for l)ePriest, the latter said that he took the opportunity to explain to McFarland his duties (which included signing ilt and out of the department) and the individuals he was to contact as he went into the various departments; i.e., "only" the foremen and dispatchers. l)ePriest further tes- tified, "And also in this conversation, I had told him that I had heard or [it] had been reported to me that he had been going into departments distributing literature during working time and I said, 'If you are doing this, I would suggest to you to stop it."' In saying this, I)ePriest made reference to the no-solicitation rule contained in the bar- gaining agreement. Del'riest explained at the hearing that he had previously received "seven or eight" calls from other department supervisors and employees (including the chief steward) about McFarland distributing litera- ture, but had done nothing about it. Shortly after the foregoing conversation, DePriest said, as he was entering the plant one morning, McFar- land handed him a piece of literature and said, "Here, smart-ass, here's something for you to read." DePriest replied, "Well, Bob, you finally came out of the wood- work and express [sic] yourself." He denied that he thereafter had any conversation with McFarland about checking up on him or threatening to discharge him. Although DePriest testified that his secretary and McFarland's supervisor were present at the meeting with McFarland on September 19, neither was called to sub- stantiate DePriest's testimony. Nor did Respondent seek the testimonial assistance of the four specified supervisors present at the plant gate who, according to DePriest, heard the alleged exchange between him and McFarland. I think it probable that DePriest did question McFar- land as to whether he was involved "in the movement to start a new local," and that such a question (at a time when McFarland had not yet "come out of the wood- work") was improper. To the extent that McFarland was told that he was to speak "only" to the foremen and dis- patchers in other departments, I accept DePriest's testi- mony that a stock chaser properly deals only with those personnel. Nonetheless, DePriest testified that, while stock chasers "are not directed" to talk to other employ- ees, he was sure "the occasion would arise and they would talk to someone if they wanted to." The entire record shows that casual conversation occurs throughout the plant. Thereforc, insofar as DePriest, in a discussion about McFarland's union activities, went to the extreme of proscribing all and any such conversations with : Ihere scrams h la qu tIluon thalt M : Farland had Inld d m11ade a r;lthr Siuhllltlat l lmistake A for iIl e vidcllncC collirms that, as dcs NMcI trlin a rrn' Itn rls 142 I V:AR I V \RN} K ('()R () RAI I()N others, that conduct had}1; a cearl\ coerci titneniic. andI is, I find, a violation. As for the c, ents of the tfiltling da(;. it see11s unlike- ly to me that t nin wou1 ti c alled his ung h- eral supervisor a "simart-ass, and, inl the abhne of the production of presumably aailable colrohoraltig it- nesses, I would not so ind.'4 Ihe unlpr(ovoked commenit to McFarland, "()h. ou finally camel out of thle \\ood- work," is the kind of upervisor denigration likely to re- strain ll employee fro(tll cntillHing his conCrltCd i;Cti\i- ties, and therefore Is ,,ilaltive of the Act . .L.R. B. tt'nrik en, lit(.. d/ /' (ihsoi )Jloiclil ('t ltl.e, 481 ' 1156, 1 167-8 (5th ir. 1973). also do not bcliec thla McFarlanld's tlslinlltly about [)c'rics tl mionitorilig hi punching of the tfileclock anid il.ilng [hat he w(ould 11ot "last lonIg ill I11 departellt " %its sh eer ill \etill i oi the part of Mclarland. I cnclude rhat the lattelr threalt sini- larly constituted a j iolationl of the Act. I1. '()NSI-()()l \ I (,\l(1NS The COOL effitrt failed, In Janu;ar 1'7)9, the Inlerlna- tional Brothierhood of Electrical Workers rejected the re- quest made by C()()L supporters for creation ; f a sepa- rate 113EW local coverilig Respondent's employees. Undaunted, those rilpl(oees who had sought Cseparate representation returnecd to the drawing board. In April 1979, a new organzi ation w-as formied by Neil Biuirke andt( some other COOL members, this one called the United Workers Association (UWA). Eschewrig further efforts to act within the I3EW, the U\V;A prolposed to represent the employees of Stewart-Warner as an independent union. The UWA launched its effort in June, and by Septem-i- her 21 had filed a representatitni petitioni with the Board. In an election held on October 24 aniotig.th_ 3,()X) em- ployees in the bargaining unit, UWVA received a majority of the votes cast and thus ousted IBEW local 1031.: The three new complaints consolidated here with the original one allege, most importatntly, that b disciplining and twice discharging one employee, Mark WVeisbrot and by discharging another. Bruce Bernstein, during the period May-September 1979 Respoidenit violated Section 8(a)(3) and/or (I) of the Act. The complaints also allege that. on two occasions during this period. Respondent violated Section 8(a)( ) by refusing to afford employees union representation as required by '.L.R.B. v. J. 'ein- garten. Inc., 420 U.S. 251 (1975). A. The Allegations Relating to Mark Wishbro! The consolidated complaints assert that Respondenit violated Mark Weishrot's Sectioin 7 rights on six occa- sions. It is alleged that the imposition of a sign-in policy on May I 1, 1979, constituted such a violation, o tle theory that it was designed to impede Weishrot's cirecula- tion around the plant: that the denial of Weishrot's re- quest for a union steward at an iiterview o June I1 vio- lated Weisbrot's Weingarten rights: that Weisbrot was un- tI DePrlcusli tlLid 111 "Ilicai" ITItleftnIlIlrg h111S iallegedi CO nM tL1 h! Mct-arltand to a Boaird it I dulring iltir in ,stigili,.rs intIe'%i% s Although th, isse i.is aIrnt muticcdct i' t ilhI hitrlrlg. itrl .rt he ,i qulestirl tlill tLU.'A rs . ~tliltll4l% }io1 r orgllli;.llll. llt i I 'o find I; lwfi't Illy suspe 1I ed o) Jul I C I . aItl terrlilni ted o)1 Jilt 14, "ecllcuse si(id lctplo scc a;ked for lnitioti rpresentla- tioll . . and hbecause of sai cnmlyec 's protected ;iand cOllCtrl l et ;iclik'il: and l that Wisbr tot\ hatlig beent re- Stlo tl' to Clppl illtlt i i te filst plrt lof JI\ *itas LIIl- li\t'l s sll Suspeittnded 'o t 3 days o(l .AlguSt 1 S at IliCn agai; discharged tilt SeptemChber 13 hcc;IsC tle "ltlgaged ill ullion anld/or other prolected ciccried ;activitiCs for the pllrpose of collctis\ h;largailning r olier IlnlitLlal id or pOtcttillH." Mir-e hackgrouill is appropriate at thiS pitrl. As stated above, ili Januiar 5 174, 1131 W turncd dotn the CO()()L requeslt for creation of a separate local. I April. tlhc C)()I supporters orgaii/ed LWA. It sas not until Nol(lda\. Jtlnc 18, }lo .er, thltl WA ftrrital 5 a;11- ounctd te estlahblislintit of the nrit cnipaigin. b dis- Iributing Li\VA athori/atioil cards i h sending Re- 1spolildcit ;i letter, received n June I. \hlich annllriounccd thIe re a;tion of LUWA a;nd liste I erploics. inlcitding Wcishrol, ;is participants Il i te efftort. As to those violationis allegcd to have occurred prior to) June 18., Itc c record is less than o,er\whchniin ill denl- onstrtllirng the "prot(ctiel cotteredl aclivit' of' W'eis- hrolt. knos n to Respondenl. hich Respondetnt was pur- portedli retaliating againsl. There was no solicilation for I union, as such. between the demise of C()()I. in Ji- arv aiid the commencemenitit of the WA canlipaigil oti Julle 18. I is clear that. fr the past f'c\ years, Respond- tllt has eerl, w'itl respect to leaflettitlg. It paper 111a;111- falcturer's delight. l)ircctor of Personnll Staffird testified that sonic "two, three. four hunidred" literature handl(ots occurred oultside the plant. perhaps ecry other day. in the year precedilg the ()Octoer 1)7 ) lecti on menltion- ing such groups as "'alk-B;ack," ''Colccrned Workers,"'' "United 11HEW Workers." "Workers' Actioi Move- melnt," "'rogressive Ihbor Parts" couple of "Commu- nist new spapcrs. he Call alid The Challenge," COO , "WAII.," and lIWA UW\A rgani7er telen IHorn re- ferred to the distributions a "two or three forests" of paper. Weisbhrot testified on rebuttal that he handed out litera- lure outside the plant "before May." and added that he gave Olmle at that tinle to Ro) DePriest. the head of his department who figured prominently in the discipline meted out to Weisbrot at arious times. However. when he had been asked in his initial appearance, 3 weeks before, about supervisors who saw him passing out leaf- lets "bef(ore May 9th," he named two, not including De- Priest. He then went on to say. in answer to a question regarding such distribution to his own departmental u- pervisuors that he recalled handing material to DePriest "all the time." hut he could not "say dfinitely' that he gave ally to DePriest "before May 9th." Wcisbrot was not an unimpressive a'itness, but this sort of variance in testimony is disconcerting. E en if he did distribute matter prior to May 9, however, it ap- peared to have consisted of s(itle newspapers callet "()Our Newspaper.' and there is no eVidetice that the conitainied a reference to a net untiion. here is nro oh- jeClive evideilce. ill short, that managemelnt kiies,, before June 8I. that a; ne unitio \vas ill thie process of frma- 14 I)FICISI()NS ()O NA'I()NAI. I.A()R REL.A-IO()NS B()ARI) tion or that Weisbrot posed any particularly significant concern. I shall discuss hreafter, however, specific testi- mony of occurrences from wAhich knowledge might be in ferred. 1. he imposition of the sign-in ptlicy on May 9) Weishrot hbegan working for Respondent onl cither September 19 or October 1i}. 1978.' i lie was employed in department 23 until late March or early April. w hent he tanssferred to departaeti 2() in the position of stock chaser. Wheni Weisbrot came ito department 20(), which contains about 260 people. Leonard Kuczylski was its foreman and chief supervisor: o April 23. Delriest who had been until then the general foremanl of depart- ments 21, 22, and 37, was given respontsibility over de- partment 20 as well and received tile newly created title of "adminstrator" of those departments. Kuczynski re- mained as the second in comniand of department 20. As one of the two stock chasers assigned to depart- ment 20, which assembled speedometers and tacho- meters, Weisbrot's duties involved being sent to other departments to obtain parts needed in the assembly proc- ess. His immediate supervisor was Sarath Goldstein, the "manufacturing assembly dispatcher," who also super- vised two other classifications of material handlers: "ulil- ity workers," who both filled in for assembly line work- ers and who also chased parts, ad the "truckers," who apparently chased parts in other departments and also moved parts within the department. 7 The first allegation relating to Weisbrot is that, o or about May 11, Respondent, for illicit purposes, "imposed a sign-in policy against its employee Mark Weisbrot." Weisbrot testified that at or about 7:30 in the morning of May 9, in a conversation in the department 20 office with "Roy, myself, and the secretaries, and Le;lny" Kuc- zynski present, DePriest told Weisbrot that "the stock chasers would have to sign a sheet, signing out of the de- partment for all the parts they went after." When Weis- brot protested, and asked why he had to do this, De- Priest said, "[Y]ou have no business talking to radicals in Department 65." Further argument followed, with Weis- brot saying the new system would slow him down, and DePriest saying, "it was always done and that the stock chasers would have to sign in anrid out." In explaining the probable meaning of the reference to "talking to radicals in Department 65," Weisbrot testified that he "believe[d]" that he had spoken to Ira Jackson in that department the day before: Jackson was a fellow member of the UWA organizing committee. On May 10, Weisbrot filed a grievance about the institution of the new procedure, saying that it was wasteful and "obvious- ly intended only to harass me." DePriest testified that he was assigned his new respon- sibilities with regard to department 20 on April 23 be- cause the department had been operating at a low stand- ard of efficiency, losing over $250,000 from January to April. One high priority item for revitalizing the depart- ment was a badly needed parts control system. As a lie t estified to bothl dates rThere is rason t helliesc, (ill this record, tha thle mtlter ttiploees, may have misunderstood hese separall classificaions start, he considered it useful to initiate a system under wlich thile stock chasers \would note on paper their desti- nations, their leaving and returning times, and the identi- fication numbers of the parts which they were going to pick up. DePriest testified that he notified Weishrot of the new system at a meeting attended not only by Weis- brot, but also by Michael Murray, the other stock chaser. Sarah Cioldstcin, probably the utility workers, and, per- haps or perhaps not, the truckers. lie denied making ref- erence to any radical connection of Weisbrot's, arid maintained that the procedure was instituted for legiti- mate business purposes. I find it difficult to believe that, as alleged, DePriest instituted the sign-out system in order to somehow hobble Weisbrot's protected actLities. D[ePriest testified that, for several ears, he had had a similar system in effect for stock chasers in departments 21 and 22. In this, he ,was supported by Gilberto Garcia a department 21 stock chaser and a most credible wvitness, who said that DePriest had put in place a sign-out system in that de- partment and in department 22 some 2-1/2 years before. Against this background, it seems logical that it would have occurred to I)ePriest, only some 2 weeks after taking charge of Department 20, to institute a simi- lar procedure there, especially in view of the potential usefulness, for several reasons, of being able to know where the stock chasers are and what parts they are chasing, and the obvious need for rehabilitating the defi- cient parts control system in department 20 found by De- Priest. While Weisbrot testified on direct that he was the only production employee present when DePriest announced the system to him on May 9, his testimony on further ex- amination suggests his lack of certainty on that score. 9 The signout sheets in evidence for May 9 show that Murray, the other chaser, first signed out on that date at 7:30 a.m., 2 ° thus indicating that he was told early in the morning, probably together with Weisbrot. 2 l The new system, in sum, seems to have been an ordi- nary business procedure, routinely conceived and imple- mented. The only evidence implying the contrary is Weisbrot's testimony, denied by DePriest, that the latter told the former, in the course of announcing the system, ' r (iarcia said hat after ahout h mnihs. when Ihings seemed to he g(ilng ell. the procedure was abandoned, from months to a year after that, sshenl "''seryhid started falling off again,' they returned to signing in and Out tie was doing so in April 1979 At he original hearing, Del'riesl leslified Itiat tock chasers "n all my departments sign in and ut. lind that hls Insirucllon to McFarland to do so on September 20, 1978, us earlier discussed, as gisen as par] of a summation to McFarland about his job duties, at their first mcctin g since McFarland had come to deparlment 17 in August l T he tCesimonly as stated JU )(;l RIIs: Mr Weishrol. I have a fess questions for you In your conlversation otl May 9th when Mr I)P'riest told you that the slock chasers would hase to sighn in aid out, was Mr Murray pres- crll at that time' Iil Wi NI ss: No, I don't heliee so, nol 2' See (;CC Fxh 3 9 (a). Murray made his first two entries of the day on t e "I rucker Sign-(ul l.og,'" then swilched to the "Stotckchasers" log (i C isxl 3(b)h . i ilirray did not estify While the Cienelral C'ounsel. ,i hbrief que- Iill s tc correctlless f the dale , oil the relesvant sheets. they are, after ill. his exhibits 144 S'IF WAR'r-WA RNR R t()RA I()N that he had "no business talking to radicals in Depart- ment 65." There is no particular reason to credit one wit- ness over the other on this issue. Even if DePriest, in passing, made the statement, I would still find it difficult to conclude that, as alleged, the new system was "im- posed" primarily in order to frustrate Weisbrot's kno, n and legitimate Section 7 activities. As of May 9, the for- mation of UJWA had not been announced. Even if De- Priest had referred to a conversation with Ira Jackson. as Weisbrot theorized, it seems unlikely that DePriest would have made such a statement to Weisbrot if he thought him also a "radical"; it seems improbable that a recognized "radical" would be told that he has "no busi- ness" talking to another known "radical." 2 " Furthermore, I cannot understand how the sign-out procedure could have contributed to any attempt by De- Priest to monitor Weisbrot's peregrinations through the plant, short of a rather elaborate conspiracy to communi- cate with the departments to which Weisbrot had signed out, find out when he arrived and left. and so keep close watch over him. There is no evidence that the sheets were ever so used; the evidence is, to the contrary, that they were thereafter employed to make contact with Weisbrot for business purposes. 2 3 It seems plain that De- Priest, just taking over department 20 in addition to his other responsibilities 2 4 did not have in mind the creation of an intricate technique for surveilling Weisbrot when the signout system was inaugurated. For these reasons, I recommend that the allegation based upon the installa- tion of the signout procedure be dismissed. 2. The allegations related to the June II incident. The complaint next claims that, on June 11, Respond- ent unlawfully denied Weisbrot's request "to be repre- sented by a union steward during an interview which said employee had reasonable cause to believe would result in disciplinary action"; that, on the same day, Re- spondent suspended Weisbrot because he "asked for union representation as described above . . . and because of said employee's protected and concerted activity": and, further, that 3 days later. Respondent "terminated employee Mark Weisbrot for the reasons stated above." It seems useful here to review Weisbrot's history of encounters with management authority as of June I1, at which time he had been employed for somewhat in excess of either 7 or 8 months. The parties stipulated that, on March 13 and May 2, Weisbrot had received written warning notices for absenteeism. They further stipulated that Weisbrot received a verbal warning notice for extending a break on May 4.25 - One has the impresslon that. at Stewart-.;arner. he Icrm "radical" might well have a broader thruht than mere union affiliatlon the word "communist" appears here and here in he record :' Supersisor Douglas Wyper, an excellent witness, te,,tified that he saw Goldstein "frequently"'' refer to the ignout heel I, i order Il ctontact a stock chaser 2 DePriest as In charge of about 560 employcces as of April 23 zs As earlier alluded to, Respondent responds to work nfracltons h issuing verbal warning notices and written warning notices. by suspend- ing, and by discharging While the IBEW contract provided that rittln warning notices had o be subscribed bh) a steward. verbal -Aarnllig n- Weisbrot testified that, on May 17, Foreman Kuc- zynski, finding Weisbrot taking his break in a area de- marcated and reserved for departments 21 and 22 em- ployees, brought him into the office. Kuczynski began to prepare a written warning notice. DePriest entered the office and. informed of the problem, stated that he had previously told Weisbrot not to use that area for his breaks,2' but nonetheless instructed Kuczynski just to give Weisbrot a written verbal warning (the warning is it evidence). O()n May 23, while Weisbrot and the odometer liie em- ployees were on break he circulated among them a grievance petition, apparently not initiated by him, asking that department 20 employees be allowed to use department 22 vending machines and that an additional eating area be allocated for department 20. As Weishrot was attempting to turn the grievance in to a steward, who was then at work on a line in department 20,2 he was approached by DePriest and KuczyVski who took him into the office. Other management and union repre- sentattives joined them. There was some argument about whether Weisbrot should be allowed to turn in a grie,- ance "while my steward was working and I was on break;" the upshot was that he received no warning. There were two other pre-June 11 incidents. Douglas Wyper was, until the summer of 1979, a department 20 assembly supervisor, in charge of line 1. He became the supervisor of the chasers as well in August, when his duties changed hut prior to that time had no immediate authority over Weisbrot. However, Weishrot chased parts for lines I and 2; consequently, Wyper and Weis- brot got together, "usually every day," to discuss the parts needed by Wyper to keep line I running Wyper testified that, prior to May II, he had seen Weisbrot stop and talk to employees working on line 1, especially Evelyn Randall, and "many times" had caiu- tioned him against doing so. On May II1, he saw Wcis- brot speaking to Randall while she was at work, and told him that if he continued to engage in the practice, Wyper would give him a written warning Wyper thein went to his desk and filled out a verbal warning notice for "repeatedly stopping on assembly line to hold non- work related conversations"; the notice was thereafter inserted in Weisbrot's file. Weishrot seemed to admit on rebuttal that Wyper had reprimanded him about talk- ing,2 although he denied the threat of a written arn- ing. It appears that Weisbrot was not made aware that Wyper had executed the formalized verbal warning. icCcs did not hase to hbe so itnessed Nonethlss. a riltcll rcoCrd f the tIslanc (f a %erhal W Irrii lg ' is natlll all ed in the enlpioc 'e file ! A the hearing, Welhrot aid this was ulru. whilc I)cl'rlct ind KilcyiLskl nliltaliled that the5 had prior thereto reniollntrilCd slth Welhrolt for uing the wrong break area I hasec no ha;ll for decidin g which ersionl Is accurate w clshrol testllfied that he was still il hi, break A ts tl Itlfied: () It is true, is iit rot, that Mr Wypur did warn you about ta;lking lo aooi e' A No () 1I It your (testimony he 1neser said anything Io y)ou about that' A I rlenlemhr one icident wIhere h old m Hie told nit t, ].ac nco hent I was t;alking to him, yes 145 I)IL(' ISl()N (): NA I()NAI L.A()R RA I()NS B(ARI) The other incident occurred on May 30. I:oreniarl Kuczynski testified that he received a call fronl the liore- man of department 65, perhaps "during he summer of 1')979, and that Weisbrot was in that department "disturb- ing one of his workers during working hours." I'he de- partmeit 65 foreman told Kuczyniski that lie had in- formed Weishrot earlier that day that a part would not be ready until late that afternoon or the next da), but that "Wcisbrot had, wilhout a husiness purpose, returnled to dpartment 65 liater i the morning. Kuczynski later asked Weishrot Vihalt hie had been doing there, but ii- posed no disciplinie. ie also mernioned the icidlent to D)c Priest. Weisbrot, on rebuttal, denied having aniy coniversation with Kuczy nski about returning to department 65 urirec- essarily. He did, however, concede that something was "said to [him] about department 65 on May 30()th", he at- tributed the "something" to DePriest, saying he did not "believe I enliny was there" whol the commernt was made. The incident to which all three were undoubhteddly re- ferring occurred on May 30, as indicated by a stock chaser's signout log of that date, put in evidence by the General Counsel, \which bears the notation, 1:20) Called by 65 Mark in the dept." Weisbrot testified that, on May 3(), DePriest, not Kuczynlski, asked him why he was speaking to someone in department 65, and that a further detailed discussion followeLed in which DePriest spoke of suspending him, but never did. I have no idea who was giving the more accurate ac- count of this incidenlt I see no advantage to Respondent for Kuczynlski and DlePriest to insist that tile formler, not the latter, spoke to Weisbrol about being in department 65, andri not much to Weisbrot lfor insisting oil tle con- trary. VVhal seems more significant here is the iesap- able implication that Weisbrot's superiors received a complaint about himi for unnecessary loitering in depart- ment 65: it is inconceivable to me that the notation on the log was a abrication, and also that the only action taken was an inquiry. 2! None of the pre-Juic 11 incidents and arniigs dis- cussed immediately above are considered by the (ieral Counsel to consitute unfiir labor practices. :"' We turn now to the alleged unfiair practices of June 11 and thereafter. Wyper testified that oin that day. a Monday, at his regular morning meecting with \Weisbrot, they began to check through a list of parts in order to review their location. When they reached the third part on the list, \vper mrientiooned that, on the preceding Sat- 2'I ,'i.hrit tIellrcd- thlll )Del'r ,tl ill" tl Iill 1iit ti i gi l ll )11 ft) mnore thall 2 pars mi the flire; h M s 3 lg shols idhat hie . hIclln igilillg ti t t) coilctT l s ri1 Ianx ais 10 parts at :1 ltinl If tlihs m rc so, he did llor pay nmch lheed; the lo-gs for t111 li'xt 2 idal sihlW Veishrrot sign nlg olr to get us aillany as Ioulr prls at a tite Vw 'ishroil Sltiied tlit it. adhered 1I1 the policy "for l fe ( d;lys" an11d thl'n "phased ourl of i " (il- herl (ilarcia Itestfied that. he l he I giloulIl i yICnl hllt hcrl inltrodluced in is t, 11 i departmeiil i fem years hbefire, )L'rilsi had ild thIl stt k chasers ito "talk lu:i or Ihrec Ililllhl i ililbe r l.L IiiosC " :" Althouigh \wtshroi did itl kino of t1 tXisteCilc iof 1t1i Mi I marililig ai the time, it it.s him.ll At lllr OI1 Agust 13, s% iI.stlTsd iilrt ('uCOuIsel for he (ietierail touiul 1%as iih',Vitiisly awarc of i prior o the ropetnilig of tilh haring. sil It it ilncludedl i the lyped sIpul.lion off(red oi I tle firsl Iday f hal hearing It is clear thait 1e hiise miil io allege lhill tihe illlillg A, as IsSUed dis rllllinlloltiri I urday, lie had run short of that part, earlier brought to the department by Weisbrot, because assembly line 2 was using the parts in the belief that they had been brought in for tha liiie. In a discussion with Weisbrot, Wyper asked if it were Weishrot's job to coordinate betweell the tso lines, and the latter replied that it was Wyper's job, not his. At that point, Wyper said, "O.K., let's go to the office." :" Wyper's intention, he testified, since he was not Weisbrot's supervisor, was to get a clarification from l)ePriest as to whether Weisbrot bore the responsibility fior coordinating the supply of parts to both lines. He did not, however, explain this to Weisbrot, nor did fie indi- cate that lhe had any intention of disciplining him. There is serious conflict between the testimony of Wyper and Weisbrot about the subsequent evets. Wyper seemed to me a fine witness more impressive in termns of demeanor than Weisbrot. iHe also was no longer employed by Respondent at the time of the hearing, and was a seemingly disinterested witness. O()n brief, although riot yielding ill his assertion of Weisbrot's superior claini to credence, counsel for tire General Counsel, "in order to minimize the necessity of making credibility resolu- tiois . . . assumes "yper's account is essentially correct, and argues from it." Based on their comparative demiea- nor, maturity, and interest, I am inclined to think it prob- able that Wyper's account is more accurate than Weis- brot's. NWyper testified that, upon entering DePriest's office, they founid DePriest nd his superintendent, Mitch Ci- clhorski. 'Weisbrot sked at th;at point, "Am I going to be disciplined''?" Wypcr awered, "No, we just vwant to talk. la:c a seat"-' W'isbrot rcrnairiled staniding ad said, "Well, I ,sant to know if I'm going to be disci- plined." I)ec'riest, sayrig lie "''didn't kno(w what 'was going on," told Weisbrol to be seated. Weisbrot again asked if he were going to receive a wariing notice, and Del'riest, again asserting ignorance of the problem which brought the to into his office, told Weisbrot to sit dow n. W'eisbrot said, "Well, I have my rights. If I'm going to get a arninlg notice I have my right to a steward. An I going to get a warning notice?'" ()Once more. DePriest said that lhe did not know(, and told Weishrot to sit down "so we can find out what's going on" At that point, Weisbrot turned, thres the door open, and i a "very loud" voice yelled, "Somebody get me Ruby'," referring to the departnient 20 uniorn steward. Cichorski stood and said, "Well, this is insubordination. Hie could be suspend- ed for this." DePriest, "sort of shell-shocked," told Weis- brot and Wyper to follow him to the personnel depart- menit. As they walked by the assembly lines in the depart- menl, Weisbrot began to ask questions of DePriest "very loudly," such as, "Are you going to suspend me for not A.e..iiir ng 1l W'.ihol i -lhat ,\5,p'l s1 id s ."1 tt's go ill the oi'flec and lalk iahoul it" I)el'riest Itelilt t that Wl'Ier uas ilulh ll ore spccific: "lhere 1 lno ginlg i hi ;Sany disciphlinc N diNciphicil uill he admilniisttred I asilllle th;ll S'iptcr has , 11 rl(l' lIl riII Ite rI(cal of if s l ), 1I UAo irds, illld that I)l'riwt "kl Ix LIClliig this p)lllt al h lalltrlll 'S llt(d t) dlo 146 SI t(WART-WARNIR C()RP()RA N II()N sitting do?" a n itld nearby nlploxces looked p at the procession. In the personnel office, tlhey found (eorge Pike, the manager of hourly personnel, and Ntta I.ohrmann, the chief union steward. After giving his ersion to Pike, and recommenlding uspension for Weishrot, DcPriest left. Weishrot told his stor, , as did Wyper. Evenlually, Pike suspended W\Veishrot, the suspension notice reading "suspension pending invesligation, for insubordination." After Weishrot had left the building Pike again dis- cussed the sequence of events I detail with Wyper, and also went over the episode once more with DePriest. He testified that he then decided to terminate Weisbrot. ltr the reasons that he "repeatedl refused to participate in a meeting with management. just flatly refused to cooper- ate in aniy ay. He created disturbanie inl the depart- ment, numerous times on the way to the personnel de- partment. He seemed to be looking for a contest . . . It was out and out insubordination I thought lie should be terminated for." Weishrot was terminated on June 15. Weishrot grieved the termination. Personnel Director Stafford decided. after a hearinig o June 27, to reinstate Weisbrot, saying that hie seemed "sincere" and lie felt Respondent "should give him another chance." Weisbhrot returned to work after missing about 3 weeks of work. .L. R. B.. J. .i rI gar,. Inc., 421 U.S. 251, 262 (1975), held that § 7 guaranlees an employee's right to the presence of a union represeltati e at a in cest igatory interview in which the risk of discipline reasonably in- heres . . ." Whether such a risk is reasonilbl> present is measured by "objective standards under all the irculm- stances of the case," id. at 257. fi. 5. I am hard put to conclude that Weishrot "reasonably" feared the imposition of discipline poni entering the office. The trip to DePriest's office should ha e seemed routine to Weisbrot. It begani with an issue raised by Wyper, as the two elngaged their dailk revie, of the parts list, as to whether Weisbrot was responsible for co- ordinating the supply of parts to both lines With Weis- brot giving one answer. and Wyper uncertain,:*: Wyper's instruction that they "go in the office and talk about it" would not seem to have carried an olinous connota- tions for Weisbrot's future. From all that appears a rea- sonable person would have regarded the office visit as nothing more than an effort to obtain clarification of Weisbrot 's duties. In Qualit ' .MlruJiluring Comlpany, 195 NLRB 197, 199 (1972), the Board stated that thle rule affordinig representation did not apply to "run-of-the-mill shop-floor conversations as, for example, the gi ing of instructions or training or needed corrections of \work techniques." Although this was not a "shop-floor" con- versation, which detracts somewhat from the analogy, al objective view of the circumstanees should sensibly have suggested that Wyper only intended an ordinary, nonth- reatening discussion of a question of work function. In addition, I have found above that, when Weisbrot, upon entering the office, first asked whether he was going to be disciplined, Wyper replied, "No, we just want to talk." In (ncral Ilclric Company, 240( N I RH :':t ()l croi,%-examilllllll, 'le hroli greicd thilt "'hert 'l \itiie o tl'Ctl-1 s l{rl iJl10 ab0Lo t hel-r lill %tit, palrl , 1 lh " 47, 4() (1979), the Board relied on the fact that the ap- preliensi' e employee v as tlod "alrilrol frorm tie outset of the coIversationl with his foretmanrr that he would not he disciplined about his alle·gedl's ;faiult work" in conclud- ing that the employee had no reasonable hasis for fearing discipline as a result of the interviewa. In the present case. when Weisbhrot asked whether he %ould he disciplined, W. per expressly denied the possibility and explainled (comfortingly, one would think) thal they were there "just to talk After this statement was made bh the onl supcrvisor present who kne. the purpose oif the isit, \Weisbrolt ihuld plainly ha. e felt aslured that no disci- plinle would elisue. I Wyper's assurance satitfied te requirements of te W 'eingarlel doctrine. Having heen to1, tl h per thatl no discipline would issue, Weishrol had no1 reason to sup- pose that he was being compelled to attend 'an investi- gatory interview in hich the risk of discipline reason- ably inhere[d], aid therefore no purpose to hc ser cd by the presence (if a union represenlati. e Moreover. it seems to me that Respondent mna; he on the mark i dra\ ing an analogy be ht ceni this case and Road wayt' pres, Inc., 246 NL R I No. 18(0 (1979) (Chair- man Fanning and Member Jeinkins dissenting) There thc majority held that it \as rnot violative of tie IcnMgarlen principlh for an employer to discipline an eiplo cc for the insublordinate act of refusing, becauset f the absence of his ste ~ard, to leave the dock area ill order to attendi a nriceting ill the office concernlig earlier misconduct (tf thie employee. While Roadway is factually distinguishable i sonmec respects. it seems to hoil do, rn to a holding that. whilc n Iemployee may llilh impLuiti resist an iill orced unrepreseCnted in. estigatory intervlie the emploCer's "right to maintain discipline" entities the etmployer to insist that the emnployee behave it h decorurn prior to the commencemnlet of the iter. iea. Ibid. In the present case, according to Wypcr's credited ac- count. 'Weisbrol was thrice told to be seated. and thrice refused, hbefore he asked that a steward be called It vas, according to ike, principally the insubordinate onIIduct of refusing to sit for which Weisbrot was disciplined In a meaningful sense, the ease is stronger than RoadwatY ili that the insubordination, at least initially, was in io way linked to a request for representation. From another per- spective, it may he said that. as anl employer may require all employee to leae the plant floor i order to appear in an office so that the interview, ma) begin,: so hie mnia require the employee, once in the office, to sit doi ,n for the same purpose Trh coomplaint alleges that Weisbrot was uspcided and temporarily terminated in June not only because he sought unioln representation, but also becaulle of his "pro- ' 'th (illrll (r 1r ( nslcI airgICs ll hrief th.ll \.i l hrot hlilwi 11 l 11, C I.i',irhll b ll l heI All ' h l per sa, 1t'. 1h.e-l t k il lisig ,hih. ii pr L-L'lT" ;tlll h it , ) DcPI'rlc ','s ltr r[lillk 1htl e 1 "id t (1tl kl1\ shether F ir not tsInlrt %collld ret-lo% l a Alrlllg miliC Itlil/td IIIC l te tiiess oft w prs' is stlurai.e the hosrl jint I I% tlat \iNi[i r \;1 kioll ii i(I w clshrtil 1s the onl', sJplertil r res..cilt 11' , lis, tirtt qlos I li' .-hi1tl' t i.' t 1 % h ile t i II liti \ I'il r t Irlsi V '\p r'e 1titiig Ilt'rlI " l,[n t[lllp \. % s (I{,'IutIglrl-ll rigllt. \stlh ;I1 I1t, .,t11ill.ll{ .i t. tl;trdi. rllltlh. ' ;1{ lilt 01 I- lCll'f1I 11 -. tMlll it II ll in[ 1 ik. A ' l'1,/ 147 I8DECISI()NS ()F NA 'IONAI IA()OR RELATIONS HO()ARD tected and concerted activity." It becomes appropriate at this point to discuss two matters which arguably indicate that Weisbrot's Section 7 activities came to Respondent's attention before June 11. The first is that on May 21, reacting to the signout policy, Weisbrot filed a charge with the Board's Region- al Office against Respondent, giving as the basis for the charge: "Since on or about May 9, 1979, and continuing to date, the above named employer, by its supervisors and agents, has harrassed [sic] and discriminated against its employee Mark Weisbrot." There is, as Respondent points out on brief, no express mention in the charge of any union activity. Another section of the document, however, alleges violation of "section 8(a), subsections I and 3," of the Act, and the latter reference, of course, is to the subsection protecting union activity. Nonetheless, since the formation of the UWA was being kept, in Weisbrot's word, "underground" until June 18, it is not easy to infer from this charge that Respondent knew what was on Weisbrot's mind when he filed it.:` The record does not show how many such charges are filed in a facility of Respondent's size or to whose attention they come. The other item is some testimony by Weisbrot and former employee Bruce Bernstein. Bernstein, a proba- tionary employee, was discharged on the day that Weis- brot was suspended, and the asserted grounds for Re- spondent's knowledge of Bernstein's pro-UWA position to some extent involve Weisbrot as well. Aside from his testimony that he participated in put- ting together the June 18 newspaper announcing the for- mation of UWA, the only union activity by Bernstein before he was fired on June II (he had begun employ- ment on April 15) was his sponsorship of a party at his apartment on Saturday, June 9, which in part was in- tended to promote the UWA. Initially, Bernstein and some friends thought to have a purely social function, but somewhere along the line it seemed a good idea to make an organizational affair of it. Two kinds of invita- tions were handed out:: 7 one simply announced a "PARTY," giving Bernstein's home address and the day and time; the other read, "Party? Let's Get a Decent Union at S-W!" and it, too, gave Bernstein's address, as well as his telephone number, plus the day and time. Bernstein himself, however, did not pass out any copies of the latter invitation. A total of some 45 employees at- tended the party. Bernstein testified that at or about 9 a.m. on June 11. the Monday following the party, he was standing in the plant near an elevator with Weisbrot and Robert McFar- land. They were discussing the "success of the party and the effect it would have on the organizing, the union drive, in fact, we were discussing the fact that a large number of people from the plant went to the party and that overall it was a successful thing." At some point, :s The 'small plant" doctrine, see Wieie PloH We'ldrig C(.. Inc.. 123 NlRB 61h (1959), would apparently not apply to Respondent's 3,000 em- ployee operation (even assuming that each of the plants were considered separately). It i. parenthetically, a limitation about which I have some doubts Word probably circulates around a 50-man department (of a huge plant as rapidly as it doe, around a 50-man plant S far as I know, ho w- ever, the Board has refrained from uch an analysis '7 There is reference to a third, but it is not in evidence. Superintendent Cichorski "walked very close to us and overheard a part of the conversation which we were dis- cussing the party." After he passed by, Weisbrot re- marked that Cichorski "had his c->c on" Bernstein. Bern- stein had never previously spoken to Cichorski and did not know his last name or title; he knew only that he was a "big boss." Weisbrot essentially confirmed Bernstein's account, only he had Cichorski looking at both of them with "kind of a mean look," and said that he told Bernstein "to watch out, that this guy had it in for Bruce." Weis- brot testified that he passed out both kinds of invitations to the party. It is, of course, possible that a supervisor became aware that Weisbrot was circulating invitations to a party, some of which made reference to "getting a decent union" at Respondent's plants, and passed on the information to the appropriate authorities. It is also possi- ble, but improbable, that Cichorski, walking by Bernstein and Weisbrot at his "normal stride," was fortunate enough to overhear that Bernstein, whom he did not per- sonally know, and Weisbrot, who he may or may not have known, had held a party which successfully fos- tered a new union.:i I have somewhat more respect for the possibilities inherent in the testimony of Helen Horn, a department 23 employee, an organizer of UWA, and a believable witness, that discussions about the party were had "on at least a couple of occasions" within a few feet of two of the supervisors; such things as "maybe we could get ourselves a better union" were said, but the talk was not "real loud"; however, on Friday afternoon, "you get a little louder than you are supposed to or would be advisable." One of the department 23 supervi- sors testified that she knew nothing of the UWA as of June 11; the other was not asked. This line of evidence primarily links Bernstein to the UWA. I find it difficult to infer from it that Respondent had by June 11 focused in on Weisbrot as a central figure in an effort to unseat the IBEW. In any event, even if I were to conclude that Respondent had such knowledge, I could not find here that it seized upon Weisbrot's behavior on that day to eliminate him. I note that Weisbrot himself testified that DePriest urged only that Weisbrot be suspended for his behavior, an unlikely showing of restraint if the purpose were to stamp out the UWA campaign. It was Pike who decided on discharge, a punishment which, at the time of the hearing, he still thought appro- priate; he announced this decision on June 15, 2 days after Weisbrot filed a charge with the Board based on the June suspension, and perhaps at a time when Pike might have been aware of that charge. Stafford chose to reduce the discipline to a suspension in the course of the grievance procedure. While the argument might be made that Stafford, unlike Pike, feared the issuance of an unfair labor practice complaint, at least as valid a conten- tion can be made that there is no easier and relatively less painless way for a large employer like Respondent to :' Cichorski did not testify. but this ornission seemr quile dilffrent from F:ltreman Kopier's failure to testify about his colnversatilonl with Burk i Sptcmhber 1978 148X S llXARI -WARNI R CO()RPO(RA ION nip an organizational campaign i the bud than to fire a lowly paid notorious partisan. Ihis Safford chose riot to do. l For the reasons given. therefore. I erid no nmerit in the allegations based on the June II sutispclsiorll arid June 15 termirlation of Wcishrot 3. The suspension of August 15 The complaint next alleges that \Vcisbrot was unilaiw- futll sspetnded b [)ePriest for 3 days on ALugustl 15. After June 18, as discussed, Respondent was officially on notice that the UWA was being formed andri tha Weishrot was one of the charter members. There is n o evidence that Weishro andri Reponde i t had anyr proh- lenis inrilmdialely after he returned to work in the first part of July. The plant was then shut down for vacation in the last 2 weeks of July. On August 13, Weisbrot received another written warning notice. On this occasion, the foreman of depart- ment 24 savw him talking to an employee while she was working on the line. DePriest was called by the foreman. and he aid Cichorski took Weisbrot to te personnel office. There. Delriest told Pike that he knew of Weis- brot passing out union buttons i sotrte department. and also handing out literature i department 1, which Weis- brot denied. In the presence of three stewards. Pike first told Weis- brot that he would be suspended; subsequentlly. Pike said that under the rules, having previously received a verbal warning, Weisbrot could be given no more than a writ- ten warning at the time. It was at this point that Weis- brot was shown for the first time the written verbal warning executed by Wyper on May II11. A written warning, signed by DePriest, was then drawn up for the August 13 violation of "beiiig out of work aiea without permission and disturbing employees during working time." Issuance of this notice (like the May I1 warning) is not alleged to be violative of the Act, although Weis- brot testified that he had merely "stopped to say hello" to the department 24 employee and was there for "maybe five" seconds; at the hearing, counsel for the General Counsel characterized the notice as "legitimate" discipline. Two days later, on August 15, Weisbrot was again dis- ciplined for speaking to a working employee; this inci- dent is alleged to be unlawful. According to Weisbrot, he had returned from lunch and "had seen my supervisor [Goldstein] toward the back of the back of the depart- ment toward the office." Wanting to ask her a question, he went toward her, but she "wasn't there when I got toward the back." He "stopped in on line 3" and asser- tedly asked Deborah Williams, who was working, if she had seen Goldstein. Williams said she had not. He "was there a few seconds" when DePriest came over, took him into the office, called in a steward, and suspended Weisbrot for 3 days, the suspension notice alleging the identical violation as the August 13 notice, set out above. Weisbrot testified that, during their discussion, DePriest :" Nor did he make Weishro whole for losl pay at he time of rein- slalcmenl, a probhahle ceoirst if he srer seekinlg to avoid isslanct of a cimplalt pointed to somec UWA authorization cards in Weisbrot', pocket and asked if he were distributing them on the line; Weishrot said he was not. The initial theorv of the violation appears to he that )ePriest blew ti up an inoffensive and fleeting exchange of ,ords intllo a pretext for suspension. A secondary argu- ment is possible: that, even if the facts were as DcPriest described them, the inposition of discipline was nonethe- less discrimrinalory :lmployee Williams was proffered to support Weis- brot's testimony that his conversationl with her , as ephemeral. She seemed a most honest person. hut one part of her testimony was disquieting and other portions were riot helpful to Weisbro Although Weisbrot testi- fied that he "stopped" at the line for "a few, seconds," Williams persistently said that "he didn't stop to talk he just asked mie i passing ... [and] kept walking by,"'' then repeated, in answer to a question, that Weisbrot did not "stop to talk" with her ("No, he asked me in pass- ing"). ut, wvihen asked how long the conversation took, her reply was, "It didn't take five minutes if it took that long," following which she reverted to "'H didn't stop. like I say." As I read Weisbrot's testimony and study a map in evi- dence, the only way he might have seen (Goldstein toward "the back of the back of the department towxard the office" as he returned from lunch would be if he had been proceeding south to north on the main aisle through the department, although his testimony gives no details. But Williams explicitly has Weisbrot proceeding from east to west, coming from within the lines, which apparently would be no place for him to be coming from in returning from lunch, and which seems inconsistent with his testimony DePriest testified that, as he entered the department. he spotted Weisbrot standing next to Williams at her work station, where he remained for the 60-90 seconds it took DePriest to reach them. He said that he did not accept Weisbrot's story that he was merely asking if Wil- liams had seen Goldstein, for several logical reasons, aside from the time consumed by the two as witnessed by DePriest. 4 0 I think that there is some reason to believe that De- Priest spotted Weisbrot standing and talking to Williams at her work station. Given that Weisbrot had, only 2 days before, received what the General Counsel termed "legitimate" discipline for the same offense, I find it diffi- cult to engage in the hairsplitting which would somehow differentiate between the two offenses, especially taking Weisbrot's entire work history into account. While I do not generally find DePriest to be a reliable witness, it does appear to me that he had a somewhat cautious streak, and would not be likely to take on Weisbrot (and another witness) if he had seen Weisbrot do nothing more than exchange a few words with Williams in pass- ing. I think a more substantial conversation occurred. It is useful to address at this point the evidence bear- ing on Respondent's general attitude toward employee I'" Wilhalms stified hat Dc Priesl approached him from hi, offie., noli from the ntain lisle I cannot sec. from Io)king the map. iho, , William.l could hac manle smwCh kan ohtbsrstlltwi 149 I)LCISI()NS ()I NAII()NAI. I.AI()R R I.ATIO()NS B()ARI) conversations, charitable and commercial solicitations. and similar lnonproductive use of working timle. I can (do little more. alter reviewing the evidencee thanl say that it is a mixed bag. It appears to me that. as might be likely in any large facilily, enforcementi of tle rules varied tronm departlmen to departlment and usuall related t( the tcmpcrament of the supervisors. Ihc re is evidenc of occasional lotteries anrid selling of callidy anid other goods by employees ill difierelt parts of the plalt. someiltilies with the knowledge and/or endorsement of' supervisors. O)n the other hanlld, it appears that Respondent attempted to control, as best it could, the activities of its thousanids of employees. Thus, in December 1977, Respondent made a point of' posting the planlt rule oil "selling ad making unauthorized collections," with a warling about discipliiary actiol, in anticipation of the Christmas season. A certain aniounlt of colnversation was permitted. Thus, Wyper testified that it has "always been'' that as- sembly workers it department 2() sitting near eacth other on the line spoke to one another, ad his testimony shows that it was only after he cautioned Weisbrol "mariV tlimes" aboul speaking to workers at their statiolns that he drew up the May II verbal warning. There seems to have been an understanding by the employees. however, insoflar as there nlay be any generalizations drawn, that it was improper to spend time speaking about nonwork-related matters. Thus, Deborah Williams testified that Weisbrot spoke to her occasionally on the line, but "[n]ot too much because the rule was that I didn't stop to talk to anybody during working hours. So, it was never too often." Weisbrot, in describing his appeal to Pike on August 13 for a \warning instead of a suspension, had, himself, said to Pike, "If you want to give me a warning, O.K., I talked to someorie, I admit it."4 I Considerations of significance here, it seems to me, are the role of DePriest in department 20, and the character of the man. DePriest testified that, when he took over the department on April 23, he was told that among its problems was absence of discipline This vas confirmed after April 23 not only by his own observation, but also by a letter he saw soon thereafter which had been re- ceived by one of Respondent's vice presidents from oth- erwise unidentified "Old Timers Of Dept. 20 Asking For tHelp!" This missive asserted that "the majority of people in dept. 20 are good working people who do their job," but that "certain people are being allowed to do what- ever they want when they want." The letter went o to give details of the alleged laxity, and ventured the opin- ion that management was "afraid of certain workers be- cause of the people belonging to certain communists [sic] groups." DePriest began his effort to reorder the department by instructing the supervisory staff to explain the rules to " Safford iestified hat certain cllectlions, such as the annllual Crusade of Mercy and hbond dri.Cs are authorized others are nol I trre ICS1- monr that. prior Io Ihe election irl October, tinuticrou IEW rpreserta- rises mtiade foria} inl tile plianl. so Tinetlmle alcinilllpaiiel h, floreiieCrl Slafford spkc (eof his hing a icklikh probhlrr, since Iocal 11i11 had access riglhr fi r legtirnale business, hul aid Illat, lclcnver lie heard if an abuse . h attrnptl to c it olrol it ernployees and tell them that he wanited obedience. It seeims clear that DePriest is a "book manl" who expects that rules will be lhonored. lersonniel l)irector Stafford testified that DePriest enforces rules more stringently than other foremenl and that probably two or three times at nilay grievances are filed against him as against other formeni. Elmployce Williams agreed. and other evidence lmakes clear, thiat, after DePriest assumed authority over the department, "there has been some rather strict en- forcelelnt of rules that employees are unhappy about. " 4 I he June 18 edition of the UWA newspaper reprints a Icalelt entitled "Roy [)elriest vs. the Workers of Dept. 2(0," which accused )elPriest, inter lia, of "trying to turn Dept. 20 into some kind of combination kindergar- tell arid maximum security prison." It thus appears that l)elriest has a particularly author- itarian bent, that oine of the purposes behind his assign- meint to the overhaul of department 20 was to bring that special characteristic to bear, and that he did so with de- termination. (Given these factors, it does not seem incon- ceivable that whenl Del riest saw Weisbrot speaking to Williams at her work station on August 15-the same Weisbrot who had been punished by DePriest for the same conduct only 2 days before and who, among other things, had been discharged for insubordination only 2 months before--this disciplinarian would have been spurred to action. I am not persuaded that Weisbrot was back in the as- sembly area simply to ask where Goldstein was, for rea- sons which analysis of the evidence discloses;4 :3 I can see that DePriest might reasonably have felt the same. And while DePriest or another supervisor might have merely reprimanded a first-time offender for this incident, I cannot say that DePriest's reaction to such conduct by Weisbrot. only freshly disciplined for the same behavior, was not an appropriate reaction for the offense, particu- larly from a supervisor of DePriest's temperament. In view of the fact that the General Counsel has not chal- lenged the May 11 and August 13 warning as improper, there is scarcely anN logical basis for making a different contention as to the August 15 discipline, once it is con- cluded that Weisbrot was in fact standing and talking to Williams. One difficulty with the issue is the reference in the August 15 notice to "being out of work area without permission" in addition to "disturbing employees during working time." The evidence on the question of whether Weisbrot was "out of' his work area is complicated. Testimony by Weisbrot Margaret McCarthy, and Deb- orah Williams was to the effect that stock chasers deliver parts into the assembly lines all day long, and did so right up until the hearing. 4 4 Wyper testified that chasers were at no time "normally" supposed to go into the a4 Williarms herself filed a grievalnce iabout having Il get permission lo use Ihe resitronl, and she signed he May 2 grievance relating to use of dclparlnliet 22 sCllding rmachilles, puttilg fie exclamatiorn arks [ext to her ilame 4: (O) t he whole, as presiously detailed a( as discussed intar. Weis- hreut Cse lled (m nmlake a habit of otel ixrsilg htl \sorker, at their slations: it does nol rsc urllikelk Ilo lie Ihail he was doing the same here 41 Wllianm,, however, a, allsure f the clasificalions, and she nmay hare hcn referring io ulill1 ,orkers andl/.or ruckcrs 15() S't:ARI \I'ARNELR CO()R'(RA I ()N lines, but that the "proper procedure" was for them to drop off parts at the enid of the lines; after a newa parts control system was put into effect, probably in late August, the chasers aetre only to dcliser to 3 main stock- ing areas (but even then, some suhasseibly lines had their own storage points). Kuczynski said that chasers "should never have gone into the lines to deliver a part," but he was "sure there were times when the stock chas- ers did get into the lines sometimes just to visit people ." DePriest testified that, at some uncertain time, he told the stock chasers that they were not permitted to go into the assembly lines; he said that this instruction was giveni during "[t]he first couple weeks when I was establishing the parts department." In the light of Wyper's testimony, this appears to refer to the time iate in August when the three major storage areas were created. Relying particularly on Wyper's testimony, I think it fair to say that, as of August 15, stock chasers were gen- erally not supposed to go into the lines to deliver parts, although they probably did so from time to time; the de- livery to the lines was I think, by and large done by the truckers and the utility workers. If chasers did go into the lines, they were, I infer, supposed to be doing so for a business purpose. In a sense, then, Weisbrot was "out of [his] work area" if he was in the lines for a purpose other than delivering supplies or other work-related activity. Both Pike and DePriest had, according to their testimony, made clear to Weisbrot on May 23, at the time that Weisbrot at- tempted to deliver the petition to the steward at her work place, that he "was not to disturb other employees in the department [while] they were working" and was required to obtain permission from an employee's super- visor in order to go into an assembly line to speak to that employee. Weisbrot testified that DePriest had said "it was against the rules." Practically speaking, I doubt that DePriest gave much thought to the wording of the notice; it mirrors precisely the language of the August 13 notice he had given to Weisbrot, and he undoubtedly simply copied that notice. It may be argued that DePriest, by including the refer- ence to a "work area" violation, in addition to "disturb- ing employees," was straining to hold Weisbrot to an im- proper standard, thus giving rise to a suspicion about De- Priest's motives. I recognize the argument, and have con- sidered it. It still seems to me that the basic question is whether the General Counsel has established by a pre- ponderance of the evidence that DePriest, a man of a certain temper and personality, with a given mission to increase the efficiency of department 20, would on August 15 have treated differently another employee, not engaged in union activity, for disturbing a worker on the line, where that other employee had, like Weisbrot, re- ceived a verbal warning for such conduct in May, 4 a written warning for similar behavior (from DePriest) on August 13,46 and, inter alia, had been discharged and re- instated just 6 weeks before. I cannot conscientiously say, on this evidence, that the General Counsel has estab- lished that DePriest would have acted differently toward 's As noted, the May disciplinle for the same coniducl is not alleged he violative. 4e This arning is also nor alleged to be unlawful an eniployee (lot asociated u ith the UW'A. I shall there- fore recommend dismissa , of this allegation 4. The Septlemrnber 13 discharge of' Weisbrot The final complaint allegation pertaining to Weishrot relates to his discharge on September 13, s\ hich is said to have been caused by his "union and/or other protected concerted activities for the purpose of collectic bhargain- iiig or other mutual aid or protection." One can only guess at the forces ithin \Veishrot which led him to behave as he did in the sleek of Sep- tembher 10-15. Despite has ing been fired in June. and having received a written arrting on August 13 and a 3- dai suspension on August 15 for "disturbing emplo ces during working time, "4 Weisbrot conccdedl . on Monday, September 10, and on Wcdncsda 5 , September 12, went to department 64 and spoke to employees hile they worked. On these occasions, unlike the previous ones, his workday had ended. The department 4 eim- ployees were engaged in work, however, and one might suppose that a minimum amount of circumspectio-n would have counseled against such activit b Wcisbrot. but the asserted basis for his second discharge is essen- tiallyv uncontested Joe Butler, a supervisor in department 64, testified that, at or about 4:30 p.m. on September 10, he sa"w Weisbrot, whom he did not knos at the time, talking to an employee named Coushan at the work stattion of the latter. Weisbrot was wearing a UWA T-shirt. Butler asked Weisbrot to leave. 4 Shortly after this, Roy Collins, foreman of department 64, saw Weisbrot, as of then unknown to him, in the area talking to employee Jim Butler, the nephew of Joe, as Jim was working. Collins asked Weisbrot if he had a job to do; Weisbrot said yes, and Collins told him to go do it. 4 ' A few minutes later, he saw Weisbrot again, this time simply standing in the adjoining department II; his attention was then distracted by another employee About 10 minutes later, he saw Joe Butler and asked if he had seen the "guy in a red T-shirt." Butler said he had run him out of the department earlier. Collins told Butler to ascertain Weisbrot's identity if he saw him again. On Wednesday, September 12, Joe Butler again saw Weisbrot, wearing his UWA T-shirt, in the department about 4:30 p.m.. this time talking to employee Nadine Roberts as she worked. He asked Weisbrot to leave. Sub- sequently, he mentioned this incident to Collins, who asked if he had ascertained Weisbrot's identity. Butler said he had not, since "It]he guy didn't give me a hard time and he just left." Weisbrot's testimony was somewhat different from that of the two supervisors. He said he had talked to Jim Butler on Monday for "[a]bout five minutes." and he 4 i addition to he pre Jlune I I disciphil ai d i cldCIIi earlier set ouit. the record shows that. ,i Aiguit 24, 'relishro receled another i rittcn warnilng notice for absntCeelsn, his third iotlirc oni Ihis sUhlecct mslCt March I 4 As slated aboe. W'etihrit's shlit ha.d allrcad elnded il 3 45 W4 5eishrot testified that he tfits ans, credl in ith affirnam, rather thail get intio . pintles .. Lsls-,'l' s1ith ( lie 151 I)(tlISI()NS (f NAI I()NAI. I.AI)R R All ()NS I)ARI) "believe[d] he was working: I can't be sure. thonghl" Asked if he had talLFd to any other employees in depart- ment 64 on that day. Weishbol said, "1 don't think so. No one I call remember offhand. no." ()n rebhttal. he testi- fied that he did not know anll employe named C(oushan. He identified Collins as the supervisor who told hin to leave on Monlday. Hc also agreed lhatl he spoke to Rob- erts on Wednesday, a conversation of about "a minute'' which was cut short by the supervisor; but he further testified that he spoke to Jim Butler again on that day. I credit Joe Butler's testimony that he spoke to Weishrot on Monday as well as Wcdnesday; I do not believe he invented this encounter. On Thursday. September 13, the UWA distributed a leaflet containing a picture of 18 of the union organizers, with their names and department numbers. Upon seeing the leaflet and recognizing Weisbrot, Collins attempted to call Kuczynski, who was on vacation, and then spoke to DePriest, telling him that Weisbrot had been asked to leave department 64 three times that week and request- ing DePriest to "make sure he stays out of here." De- Priest notified the hourly personnel manager, Pike. Later that day, at a meeting with Local 1031 union stewards present, Weisbrot was discharged for having been "in a work area without proper authorization and was disturbing employees in this working area during their working time." ° The discharge decision was made by Pike, who interviewed Collins, Joe Butler, and Jim Butler after hearing from DePriest. Pike was informed, inter alia, that Weisbrot had been wearing a UWA shirt. Pike, it will be recalled, had made the decision, subse- quently reversed by Stafford, to discharge Weisbrot in June. He testified, with respect to the second discharge, that he "checked into" Weisbrot's record, which would have shown, as set out above, the three written warnings for absenteeism in March, May, and August, the verbal written warning for extending a break in May, the verbal written warning for using the wrong break area in May, the verbal written warning for "repeatedly stopping on assembly line to hold non-work related conversations" in May, the converted termination in June, the written warning of August 13 for "being out of work area with- out permission and disturbing employees during working time," and the 3-day suspension of August 15 for the same offense. Pike testified, "The fundamental considera- tion I made about the previous discipline in his record was for similar type discipline that he had received for similar violations-most notably, a warning notice and a 3-day suspension for the same thing-the same violation, the same infraction of the rule." Pike's investigation in the second week of September showed that, on Monday, Weisbrot had been found in department 64 talking to a working employee and had been told to leave; that in- stead of doing so Weisbrot went and talked to another working employee, and was again instructed to leave; and that, on Wednesday, Weisbrot once again breached "I So reads the termination notice Added to it in handwriting is the statement. "[)uring the process of administering the ternlination employ- ee threatened he foreman and caused a disturbance in the department and refused to relinguish his pass" Wceishrot conceded that, in an allgry discussion, he refused to hand in his pass, "started yelling," and called DePriest a "pmrip" the disciplinle of department 64. Consideriing that Pike had. ill Jtile, di'scharged Wisbrot, it does rit lseem tn- tcaillble to thilik thiat Pike hbelieved it \was aglitli ime for Wcishrot to depart. The superficially arresting fact that Weishrot's ideintifi- cation through the UWA leallet led to his discharge seems, i my judgmcnt, to work at least as much in Re- spondent's favor as against it. The fact is that both Col- lins and Butler saw al unfamiliar employee wearing a UWA T-shirt and speaking to department 64 employees otn Monday, and did nothing more than chase him off. Butler did the same on Wednesday. This suggests that Respondent may not he treated as a motnolith, uniformly and conspiratorially dedicated to rooting out all signs of UWA activity. If that were true, presumably Weisbrot would have been apprehended by Butler and Collins on Monday and turned over to DePriest then. This relative- ly laissez-fjire attitude should be compared to that of Foreman Mallick who, seeing Weisbrot conversing with a working employee in department 24 on August 13. had immediately corralled him and contacted DePriest. 5 While it might be argued that Collins and Butler were prepared to allow a suspected UA organizer off, but had second thoughts about Weisbrot's importance when his picture appeared in the leaflet, there is no reason to believe that they would so finely discriminate between organizers. Against this background, it is not easy to draw an in- ference that Weisbrot's activity on behalf of the UWA played a meaningfully contributory role in the decision to terminate his employment. There is certainly no evi- dence that any other employee had been allowed to ac- cumulate such a string of rule violations without suffer- ing the ultimate penalty. There are, I think, some impediments to the General Counsel's theory all along the line that, since May 9, Re- spondent had been out to get Weisbrot. If that were so, why did DePriest, as Weisbrot testified, instruct Kuc- zynski to issue Weisbrot only a written verbal warning, instead of the already made out written warning, on May 17? Similarly, why did DePriest decide not to give Weis- brot the threatened warning for turning in a grievance to the steward while at work on May 23, and why was no effort made to follow up on the report that Weisbrot had been talking to employees in department 65 on May 30? In like vein, it might be argued that, if Respondent were determined to eliminate Weisbrot, it would have stuck by its guns on the June discharge. I do not mean, I should add, that the case is at all clearcut. While again noting that his demeanor gave no a I have considered the iestimony of Nadine Roberts that inollerl- plolyees of departnment i4 comne into that departmenl "al day" II talk to working employees without superslsory intcrlnttri W'hile Roberts is a vvitness of strength and dignlity I am inclined to beliese thal Collins, ar equally impressive uitless. did not lie in suhsequenllly tesTifyllng that his rule is that nonemployes may nolt speak to empil)oee withlrul permis- sion, ad that Roberts would he farnihar with this requirement hbecause she had personal experience with it when a frienld f hers persistently oserstayed break isits, leading Collins to call the friend's fireman 5While practice O1 s ariouls ralters seemed to differ from deparlmenl o department. the (eneral Cunel's witness L)lane Mseiheltlcr testified that, i departmlti 37, "'il o,, i .ined go talk 1)to oilebhtli oil the lire, you alsays ,wci tip ad talked io [the foremar ] first 152 S I WAR] -WARNER CRPORATI-I()N indication of dishonesty. I have concluded elsewhere that DePriest was probably fabricating in various in- stances, and there are conflicts in the testimony of Re- spondent's witnesses which might be thought suspi- cious. 2 But the case is the General Counsel's to prove by "the preponderance of the testimony taken," as spelled out in Section 10(b). arid, looked at as a whole, I am not convinced that the evidence so preponderates. My sense of the case is that Respondent opposed the ouster of Local 1031 by an independent union."' As I have earlier noted, however, I doubt that the pulse behind that opposition beats as strongly when the issue is exchanging one union for another as when the stakes are whether a company should be organized in the first place. It is of interest, I think, that not a single violation of Section 8(a)(1) by verbal restraint, coercion, or inter- ference is alleged here with regard to the UWA cam- paign, although the facts and figures make that surpris- ing: a 4-month effort among 3,((X) employees monitored by a vigorous organizing committee. It is entirely possible that Respondent and DePriest were delighted by the opportunity to say goodby to Weisbrot on September 13: under prevailing law, only if' it can be concluded that Respondent would not have taken advantage of that opportunity in other, neutral cir- cumnstances would there be a basis for finding a violation. Golden 'Nugget. lI(t., 215 NLR 50, 52 (1974). On this record, I see no substantial basis for finding that another employee, not engaged in union activity. would have been treated more leniently than Weisbrot. Therefore, with some degree of reluctance arising from my unre- solved suspicions about the case, I feel constrained to recommend the dismissal of this, and all, allegations per- taining to Weisbrot B. The Discharge of Bruce Bernstein Bruce Bernstein was hired into department 23 on April 17, 1979. His 2-month probationary period would have expired on Saturday, June 16. He was discharged on Monday, June II, and, not being a regular employee. was unable to grieve his discharge. The complaint l- leges that Bernstein was terminated "because of his having engaged in union and/or other protected concert- ed activities for the purpose of collective bargaining or other mutual aid or protection." The evidence relating to Bernstein's concerted activi- ties has been discussed above. As indicated, he linked a small social affair planned to be held in his apartment on June 9 with a promotion of the soon-to-be-announced UWA, and some of the invitations handed out at the plant referred to the party as having the purpose of get- ting a "decent union"; Bernstein's address and telephone number were on the latter invitations. In the week pre- S' Another mall example of DePriesit, seminig unrehahilily Is found in his tesirnony about his walk with Weihrol il the personnel office on June 11 Weishroi testlfied Ihal l)ePriesl aid he could "suspend ou f don't like your looks if I want to do that " DePriel letified that w hal he said was, "t could suspend )ou or terminate ou ust hecause I don't like the way you look, but that doesn't mean it snould stick" The addendurn testified b DLe'rest eenls exceedingly humble, Im context, for a man of DePriet's prsonailts and aulhorit .a I anm not much persuaded io Ihe coinrary by the public stance of neutrality taken by the C(mpsly hortly before the election. ceding this function, there was some discussion about it by employees near the desk of department 23 supervisors and Wcisbrot and Bernstein were speaking of the success of the party on the morning of June 11 when Cichorski, the superintendent of automotive assembly, walked by and gave Bernstein, whom Cichorski had not met, a "mean" look. As company knowledge of an employee's union activi- ty goes, this is not strong stuff. It is settled, however, that proof of knowledge may be inferred from all the cir- cumstances,54 and there are circumstances in this record of the sort upon which the Board often relies to infer both knowledge and unlawful intent. Bernstein testified that, in the afternoon of June 11. 2 days after the party, he was called into the office of Frank Weaver, the foreman of department 23, who su- pervises about 175 employees. Present with Weaver were Cichorski and a secretary. Weaver told Bernstein that he was being terminated because lie had had too many ab- sences. After he left the office, Bernstein spoke to some other employees who urged him to find out whether he was being fired by Weaver or the personnel office Ac- cordingly, Bernstein returned to Weaver's office (Ci- chorski and the secretary were still present). Bernstein told Weaver that he did not think he had a bad attend- ance record, saying that his absences fell vwithin the range outlined to him by Weaver when he was hired. He pointed out to Weaver that when he had been ill on three recent days, May 30-31 and June 1, he had brought back a medical note, had asked Weaver if his ab- sences would affect his record, and had been told that they would not He then asked Weaver whether he or the personnel office was responsible for the discharge. According to Bernstein: Mr. Weaver replied by saying neither, that I had met the standards or the boundaries of the accept- able absences. I had followed procedures, but that wasn't the point. he said. He said the point was that there was nothing he could do. Procedures were firing me. That is the word he used. He said I was being fired by procedures. He said I was being fired neither by him nor personnel and there was nothing he could do about it and he repeated the thing about this should be a lesson and I should look at this as a learning experience. Bernstein then went to the personnel office and spoke to personnel employee Ed Rieger. Rieger said he would look at Bernstein's record and discuss the matter with him the next day. When Bernstein returned, Rieger told him that his absentee record did not merit automatic dis- charge, but that this was a "foreman's discretionary firing" and Rieger could do nothing about it. As indicated, Bernstein was told that he was being fired because of his absentee record. The notice of termi- nation given him on June II states, as the reason for dis- charge, "Released-Absenteeism." In an area of the form for evaluating the employee's "work," "conduct." and "ability" as either "very good," "good," "fair," or 4 .I. R.B. Li.n Bei/l (onmpanv. 311 S 584. t()2 (1t41) 15x I)}.V'ISlNS ()F NA IO()NAI. I.AilO()R RlI.A I I)NS t(),XRI) "poor," Bernstein received a poor rating on all three items. Although the terminalion notice oInly specilies "Absenteeism'' as the reason for discharge, at the hearing Respondent's switnesses assigned weight to IBernstein's ill- ferior work performance. as discussed below. Respondent's principal testimony o tile IBernstein lle- gation CanlC fronl I:oreman Wlea e and dna Peer, Beriistein's immediate supervisor. hey both made i- pressive personal appearaices. especially Peer (although she became less conviltcing on cross-ex;llillatioln). Peer denied any knowledge of BIernstein's involvement in the formnation of a ine uniion; Weaver was itot questioiied onl the subject. It is difficult, perhaps because We'aver was called as an adverse witness by General Counsel and did not reappear il Respondent's case, to get a firill grasp oni how, from Responident's point of view, the de- cision to terminate Bernstein developed, and its tinliiig decided on. Weaver first testified that ernstein was dis- charged for "excessive absenlteeism."'' His lest inoiy seems to be that. when line supervisors such as Peer have absentee or other problems with employees. they notify Weaver and he counsels the errant eployee. Weaver "believed" that Peer spoke to hini not only of Bernstein's absenteeism but also of his poor work record, but lie could not say how mnany times. lie "believed" that he called in ernstein a "couple of times" to ,.arn himi about his abseniteeism, but could not say whe i he did so. Subsequently, he said that, "as mluch as he] call recall," he talked to him oce or twice, but it is "possi- ble" that he did not speak to hilm at all." ' Asked when it was decided to discharge ernstein, Weaver said, "The supervisor came inll and complained that he was off a period of time and when he came back, it was decided because of the absenteeism and his poor work record that he would be terminated." l'he refer- ence to "when he came back, it was decided" vwould in- dicate that the decision was made on or soon after June 4, when Bernstein returned from a 3-day illness, but the evidence is that he was not discharged until Monday. June 11. Peer, as shown below, testified differently as to the time of decision. As Weaver agreed, the reference to Bernsteinl's work performance at this point in his testimony contradicted his initial statement that the discharge was caused by ab- senteeism, but he asserted that "the main purpose was his absenteeism." as exacerbated by performance. Weaver then made a statement which seems to indicate that the decision to discharge was made and about to be imple- mented even before Weaver heard of the poor work record, although that construction is inconsistent with the statement quoted above as well as with Bernstein's account of the discharge interview: "[Excessive absentee- ism] was the main purpose that I had him in there for, but after the supervisor brought to my attention that his work record was also poor . . . .56 5" bternslein teslified ha h had cnever heen arned ahout his ahsell- leeism 6 'Ih c slilerice 'was iint colmpleted Accordtilgly to tirnsilill. Peer was not prer cl, t a tc ile li of dischalrge W\ca'cr's tatemer t thil hi '"had iflcrnlrstil] In there." suggesting thit the illitlali C ve ls W 'c'al'cr',. i con - trary to Per's licn ,mlon r I1i II Si \ti' t t' ci Vca cr ailroi ld the ellc t of May Io complain of tkernstein' ace ad poor performance T[he attelldanlce record Ifr I3erinstcin. hired oln April 17. shows the folloxiing: lie was tardy o(il April 23: hc had all uexcused abhsence otl N1;ay 17: and lie had ex- cused absences oil May 30.() May 31, atld J le I At tlhc hearing, Weaver testified that, ;s he recalled, lrnsteii 'u;as absent "approximately foiur timles in a period of about six weeks," which ainlualized out to 3h work dalys (lt' asence a ear and "w vhich is, i rr book, too rmulch. aid I couldn't stand for it." Weaver wals not later r- called to testify iln response to 3erilstcir's subsequent tes- timoiny about Weaver saying that "procedures" 'as the villain; he did say, i response to questionls by the (;criner- al Counsel, that he believed he kew al the time of dis- charge that Bernstein had "two excused and two unex- cused absences," that he "thinks'' that Herrilsteir pre- scrited a doctor's excuse to him "on two ccasions." ad that hie had "no recall" of assuring Bernstein that lie had niothing to worry about as a result of the cxcused ab- teristein testified that on the morning of Juie I fr the first and only time. Weav er was unpleasant to himi As Bernisteinl was sorting cases, Weaver approached and said, "I hope you are not putting the stamped cases back ill the bhis because if you are, your ass is grass." WVeaxcr was not recalled to testifv about this assertioi. Supervisor Peer, called as a witness for Respondeitt. was questioned by Respondent as if I3ernsteiri's deficientt ork was the only, or at least the principal, cause of the discharge, Thus, her iterrogatioll began with questions relatinig to the various functions of ernstein's job. She dutifully stated that ernistciin's operation of the bezzliig machine was "vcry poor" and that he was "remoxed' froil that operaitori after he damaged "many parts." Sub- sequently, hoxvcver, she testified that Bernistein as never actually "removed" from the machine, ill that she kept returning him to it for another "chance throughout the whole period of his employment." Actu- ally, on the basis of ernstein's testimony, there is some reason to believe Peer's original account that he was "re- moved" from the machine; he said that he was taken off the bezzling machine at some unclear time, but he said this was done because Peer told him "they wanted to train new people." PI'eer was further asked about Bernstein's performance of his stock handling function, and termed it inadequate, in that he had "mixed parts" and "mixed boxes" on more than one occasion for each kind of error. While the record leaves some doubt as to how Peer could be sure that it was Bernstein, rather than another employee, who was culpable on all such occasions, his own testimony, referred to below, indicates that he had made errors known to Peer. Peer said that she discussed Bernstein's work perform- ance with him on two occasions, telling him at the begin- ning of his second week, and then perhaps after 2 weeks of employment, that she would "have to see improve- ment." She could recall no other conversations with him "regarding his work." In this respect, ernstein painted a rather more filvorable picture for Respondent than did '' A s utl ll ahove, hls is inaccurate. 154 STEWARI -WARN'R CO()RI()RA'TIO()N Peer; while his testimony was somewhat confusing. he conceded that on one occasion Peer "yelled" at him for returning late from a break, and that perhaps four times she admonished him that "You have got to be more awake" and "You have got to use your head more." However, he also said that he heard her make similar rc- marks to all the employees. While, as set out above, Weaver testified at one time that his predischarge warnings to ernstein (if, indeed, there were any at all) related to absenteeism, and that he became aware of Bernstein's inadequate work perform- ance only somewhere around the time at which dis- charge was decided on Peer conttarily testified that she asked Weaver to speak to Bernstein about his poor per- formance "about in the middle of the next week after the second time I talked to him." She further said that she spoke to Weaver on this subject again. she "think[s]," on the "second day after his absence" (presumably May 31. the second day of the only consecutive string of absences by Bernstein): "Not only his work performance Nas poor, he'd been absent for, this was the second day in a row. I couldn't survive ill that manner." By this she meant that he was one of only four men i the depart- ment, that usually the men operate the bezzlitig machine because of its strenuous nature, and that Bernstein's ah- sence was therefore "crippling." There seem to be some problems vw ith this latter piece of testimony One is that Peer's other testimony would indicate that Bernstein's performance on the bezzling ma- chine was horrendous and his May-June efforts on the machine were simply to give him another "chance'' on those facts, his inattendanice would not likely adversel affect this function. a The second is Bernstein's testimno- ny on rebuttal that on the second day of his 3-day ab- sence he came to the job for ai few hours, found that he was too ill to work, asked permission from "I think Edna" to see the plant nurse, got a note front the nurse permitting him to go home, "showed Edna the note." and left work. This testimony was given by Bernstein on the last day of the hearing. Company counsel objected to the testimo- ny as to whether "a nurse sent him home or whether he spoke with Ms. Peer concerning it, as properly being part of the General Counsel's case-in-chief, and counsel complained, inter alia, that he would "have to now bring in Ms. Peer to testify with respect to this." After a collo- quy which, in the transcript, is rather confusing, the General Counsel stated that the only testinony that he "want[ed] to stand is that he came to work that day and left." Counsel for Respondent did not demur. On this state of the record, it would be improper to rely on Bernstein's testimoy that he showed a medical excuse note to Peer on the second day of his absence. It would, however, be proper to depend on his testimony that he "came to work . . . and left" on the second day. This appearance, presumably known to Peer, raises a question as to why she would speak to Weaver on the second day of Bernstein's absence. Peer had previously testified, however, that Bernstein was "absent three days s I put aside here Ihe fact hal Itern',ici n Iesrified that he , ai.luall removed from the bezzling machine hefore his employment ended in a row," and that, while it is "possible" that she gave him a pass to see the nurse "at any time," she does not remember doing so. I should note that. it w ould appear from other evidence that if Bernstein had worked for 2 hours on the second das, of his illness that might sho\, on his attendance record in evidence; it does not How- ever, the attendance records are obviously not free from error: an example is one of them which marks anti em- plo)ee vsAitli excused absences oil nexistcnt days in February. It seems probable to me that Bernstein did make an effort to work on May 31, and that Pccr must have been so aware, Peer testified that she supplied Weaver's secretary with the information on the termination forni that Hern- stein's "work," "conduct," and "ability" serc all "poor." Hoswever, she as not sure at the hearing hether she sould have said that his "conduct" was 'poor" or "fair." She could recall no reason, haever, fr dsigna- ting Bernstein's "conduct" ecen as loss as "fair" other than "having repeatedly to tell him instruction'' which she conceded, on reflection, to be a matter relating to his work rather than to his conduct. Peer indicated that she was causally responlsible for the cvcntual discharge of Bernstein. going to Weaecr and telling him that, "not only his attendance wkas poor, his work performance hadn't improved." This "last" conter- satin with Weaver about Bernstein occurred. she said. after he had been absent, I noticed the second da i a rosA and that is when I went to him She would not. however. go so far is to say that she recolmmenrded Bernstein's discharge; hen asked if she did, Peer re- plied, "Something of that sort " Her account of Weaver's response was also equiocal: "I guess he was going to talk to him and do whatever was necessary." Peer said that, when she spoke to Weaver, she vs as not a are that the May 30-June 1 absences were excused, bhut that when Bernstein returned on Monday, June 4, 'I think Bruce told mc himself that day, he had been sick or something." )Dwight Perry began work in department 23 some h days after Bernstein started. He testified that about weeks before his appearance at the hearing o November 15, 1979, Peer asked him if e "remembered what type worker Bruce was"; he told her that Bernstein was a "decent worker." He further testified that, about 2 wceks before the hearing, Peer asked him if Bernstein was "the guy that she was trying to locate for about an hour on a previous occasion and when he returned, he was walking down the aisle smoking a pipe, when I told her no, that it was Thad . . . an assembler in Department 23." Perry further testified that Bernstein had trained him to work on the bezzling machine. a fact Bernstein himself did not mention. There was nothing about Perry's appearance which would suggest that he was not being truthful. and the fact that he could not even "pronounce [Bernstein's] last name" at the hearing indicates that he was no particular friend of Bernstein's. Although Peer testified the dtay after erry did, she was not asked to deny his testimony about her seeking his appraisal of Bernstein's work, nor was she asked about Perry's claim that Bernstein had 155 )DECISIONS ()i NATI()NAL AB()OR REI ATIONS O()ARD trained him on the bezzling machine. The only reference by her to Perry's testimony came when she was asked some seemingly unhelpful questions about whether she remembered an employee named Thad, the kind of clothing he and Bernstein wore, and whether she knew if either of them smoked a pipe. If Perry is to be believed, one might infer that Peer's subsequent detailed testimony about Bernstein's inadequacies was not founded in her recollection. The propriety of such an inference is open, it would seem, to some argument. If Peer were knowingly in- volved in the discharge of Bernstein in June for illegal reasons, she would likely recall him vividly enough in October not to have to ask Perry what sort of worker he had been (and, indeed, if she knew that Bernstein had been unlawfully discharged and that a hearing was coming up, she would have been exceedingly stupid to have asked such a question of a rank-and-file employee). In other words, Peer's questioning of Perry can be read to mean that she truly remembered little about him, an improbable state of affairs if she had been consciously in- volved in his discharge for improper reasons. On the other hand, the questions put to Perry by Peer might be consistent with the effort of a middle-level supervisor at- tempting to prepare to bolster a decision made by a higher authority to discharge an employee without having consulted her first. But it may be argued that, if Weaver had instructed Peer to be ready, at the forth- coming hearing, to testify that Bernstein had been an in- adequate employee, she would not blithely and foolishly have approached Perry to ask whether he remembered "what type worker Bruce was"; her course in this regard would already have been set. In short, I am uncertain of the value of Perry's essentially undenied testimony. There is in evidence, for comparison with Bernstein's absentee history, the attendance records of all employees who served their entire (or truncated) probationary peri- ods in department 23 between January 1978 and June 1979. The General Counsel introduced some of these re- cords and Respondent introduced the majority of them. On brief, each side draws various conclusions as to the gravity of Bernstein's relative absenteeism, relying on differing premises. Important to Respondent's analysis is Personnel Direc- tor Stafford's testimony on this issue. In discussing how absences are recorded on employee attendance records, Stafford testified that the department 23 shop clerk does not make entries of absences, if any, for a given week on an employee's attendance record until Tuesday or Wednesday of the next week. At that time, the clerk makes entries on the records showing the kind of ab- sence (unexcused, excused, unreported, etc.) and its length. Those attendance records are not available to Foreman Weaver until perhaps Thursday or Friday of that succeeding week. In other words, Stafford said (re- ferring to G.C. Exh. 25(b)) the absences of the employee shown on that attendance record on Monday-Wednes- day, October 16-18, would not be physically placed on the record until the following Tuesday or Wednesday, October 24 or 25, and probably not given to the foreman until Thursday, October 26. Thus, it is possible that Weaver would not see a record of the October 16 ab- sence until October 26, some 10 days later. The object of this testimony was to show that some probationary employees with arguably worse records were allowed to complete their probationary periods be- cause the foreman may not have known, as to those pro- hationers who were absent in the 10 days preceding the end of their periods, that they were absent, since the at- tendance record, if reviewed on the last day of their period, would not reflect the more recent absences. Stafford further testified, in explaining the retention of certain probationary employees, that discipline was re- laxed with regard to attendance in the severe winter months of January 1978 and February 1979. Stafford also testified that probationers, unlike regular employees, did not receive progressive discipline. The purpose of the probationary period, he said, is "to evalu- ate an employee with regard to this [sic] general work requirements. That includes conduct, it includes his abili- ty to perform the job, his attendance." Respondent re- leases probationary employees "whenever we want to do it or have reason to do it" within the 60-day probation- ary period, and there is no prescribed maximum for pro- bationary absenteeism. On brief, Respondent attempts to show that Bernstein's attendance record (one unexcused absence and three ex- cused absences) as of his termination date (5 days before the end of his probationary period) was as bad as any of the other 62 probationary employees hired into depart- ment 23 between January 1968 and June 1979. In a chart designed to so demonstrate, appended to its brief. Re- spondent, relying on Stafford's testimony, makes adjust- ments in the absentee record of the other probationers. One of these adjustments is a deduction of absences "which occurred ithin 10 days of the end of the em- ployee's probationary period or within 10 days of the date the employee was discharged if the employee did not work the full probationary period." The assumption made here is that, because of the posting system, Fore- man Weaver might have let absences occurring during the latter part of the probationary period slip by unno- ticed because they were not actually recorded by the shop clerk at the time the 60-day period ended. This assumption is not necessarily compelling. For one thing, 10 days is too broad a compass; an employee's ab- sence on a Tuesday, Wednesday, Thursday, or Friday should, according to Stafford, be available to the fore- man on the attendance record by the following Thurs- day. More importantly, the fact that an absence has not been posted does not necessarily mean that Weaver is unaware of it, as shown by the testimony of Weaver and Peer that Bernstein's absences of May 30-June I were discussed by the two supervisors either "when he came back" (Weaver) or when he had been absent "the second day in a row" (Peer), at which time, and before the ab- sences were posted as excused, they decided to get rid of him. It is similarly important to point out, however, that the fact that Peer assertedly brought Bernstein's situation to Weaver's attention does not mean that other supervi- sors at Peer's level would necessarily bring similar or even worse cases to Weaver; and, if they did not, it 156 S'I WVAR'I'-WARNELR CN()KI'()RA [II()N seems clear that Weaver would likely not be aware of absence problems until the absences were posted. Weaver testified that, except when a line supervisor noti- fies him of problems with I of his 175 employees, he re- views weekly only the attendance records which his clerk "has pulled out for me and put on the side for my attention." The General Counsel introduced the records of 17 contemporary probationers for the apparent purpose of demonstrating disparate treatment of Bernstein. As the General Counsel states on brief. "Measuring Bernstein's attendance against that of other employees is difficult .... " and, in fact, the General Counsel's brief refers to only nine of his own exhibits and four of Respondent's. As indicated, it is impossible to know which supervisors, applying a "discretionary" standard, would approach Weaver at any given time during a probationary period to complain about an employee's attendance; this could well depend on a subjective balancing of the employee's absenteeism against his or her perceived skills and poten- tial. The General Counsel's analysis of the records com- pares certain nondischarged employees' performances against "the pro-rated figure of 32 absences per year given by Weaver"--aclually, Weaver testified that Bern- stein's 4 absences "in a period of about six weeks" annua- lized to "thirty-six workdays a year. which is, in my book, too much"-and some testimony by Stafford about a 6 percent figure. 5 9 The General Counsel also includes an employee who left after only working a few weeks, on the apparent theory that Respondent should promptly discharge probationers whose absences quickly and early mount up, which may or may not be a fair assumption. He further includes instances of tardiness, the signicance of which is really unclear on the record. Having done so, he arrives at the cases of 13 employees "whose at- tendance during the probationary period was far worse than Bernstein's but who were retained." Some of the General Counsel's choices are questionable in certain re- spects; others seem to be reasonably substantial compari- sons. Recognizing the variables involved, it is not easy to make comparisons. Some cases are superficially more ag- gravated than Bernstein's. Diana Hagerstrom (G.C. Exh. 23(a)), for example, was hired on January 30, 1979. She had four unexcused absences in February, 6 fi received a warning notice on March 7, and had two excused ab- sences on March 12 and 19, the latter date being her last day worked, at which time she separated ("Quit-Better job"). Stafford testified that receipt of the warning notice indicates that Hagerstrom must have been an "exception- al" worker, because progressive discipline does not nor- mally apply to probationers. Her separation notice rates her as "good" in all work characteristics. It is impossible to say that the four unexcused absences in February by se Stafford in fact iestified that there a, nolt estahlished criterion of excessive absenteelsm h prohationrlers He did sa) that the managemnt goal oserall is 4 per cert absenteeism." hut hat Respondent aerages an unsatisfaclorI ' I" per cent abelh nteciti ' SO Notations of tIro) more such absences on1I ebruary "2'" and 30" are ohviousli Ill error 1 vao of the althentlc unc.cused absences A ere for 4 and 3 hours an employee thought to be "good" was ever brought to Weavcr's altention, although one might presume that is so; in any event, the fourth such absence occurred a month after she began and there could have been a desire to see how she performed over the next 2 or 3 weeks. '; Jeffrey Fowler (G.C. Exh 24(a)) was hired on Sep- tember 26, 1978. In October, he was tardy three times. In November he had an unexcused absence on November I, a 4-hour unexcused absence on November 15, a tardiness on November 16, and excused absences on November 20, 22, and 24. Assuming that WVearer did not learn from Fowler's foreman of the latter three absences until after the expiration of Fowler's probationary period on No- vember 25, it may be argued that his record vas not as bad as Bernstein's. An opposite assumption could lead to the contrary inference.6 2 Nereida Lucas (G.C. Exh. 25(a)) had a record quite similar to Bernstein's. Hired on September 26, 1978, Lucas was tardy on October 4, had an unexcused ab- sence of 4 hours on October 9, and had three excused absences on October 16, 17, and 18. Lucas, however, quit work on October 26, only 30 days after starting em- ployment, and, arguably, too soon into the 60-day period for any serious evaluation. Frankie Dorband (G.C. Exh. 29) is a more meaningful comparison. Dorband, hired on January 18, 1979, had in- curred three excused absences and one unreported ab- sence by March 1, long before the end of her 60-day period. These four absences in 6 weeks would seem to qualify her for termination under Weaver's standard, and he presumably saw her attendance card, recording the four absences, prior to the end of her probationary period on March 19. She was not released, and there is no explanation of the distinction except in Respondent's appendix to the brief, which lumps her two excused and one unreported absences in February as presumptively "bad weather" days which would have been discounted by a supervisor. : At least as, if not more, discrepant is the case of Marie Pickett (G.C. Exh. 32).64 Hired on January 18, 1979, Pickett was tardy on February 7, had an unexcused ab- sence on February 13, had three excused absences on February 20, 21, and 22, was tardy again on February 28, and had an unexcused absence of 4.8 hours on Monday, March 12. Since her probationary period ex- pired on Monday, March 19, it may be argued that, be- cause of the posting procedure, by March 19 Weaver would not have known of her unexcused absence of l Respondenrl', brief dlcounls ;all of the Fchruary unexcused ahsrcncc, because thc occulrred in a hbd weather month It takes this general hroad-brush pprioach as 10 all of January 1°71 and Ftheruar> I')79, dIe- spilte he absence of any showing that the particular da Nr missed 'were in- clemell ' t I Las ,ee some force in he testimony of Personnel Direlot r Stafford that. n assessing an emplsee' s ab',ntcneeism during the probhaionarN period, tihe facl Ihat a absence is "excued" inder person el department pro.edture* would nrot necessarly mean ihil it is Irlicken fron a supcrr- sor's milid s i ncgallie factlr An mploece ho lend, lo he sick or olthcrsvre ndlspos ed mighl nolt h considered dsirhrble i: N i 1')liri"icnl 23 siupcrulor ,cr Ictll l TIhat such ib l tiles erre ot erlooked h, The ieneral Consel', brief does nol refer to, this record 157 I)I(CISI()NS ()OF NAI()ONA. I.AB()R R.ATI()NS I()ARI) March 12. ut even withoul that knowledge. he presurnm- ably would hase seen, before the end of her termination period, the four absences which had occurred by -ehl-u- ary 22. Picket \was not discharged at the end of the 0() days." Sylvester Neal (Resp. Exh. 61) was hired on Noveim- ber 24, 1978. lHe , as tardy on November 28, and had ex- cused absences of full or part days on December 8, 21. and 29, and January 6 and 19. Even discounting the Jan- uary 19 absence as possibly not being known to Weaver prior to the expiration of Neal's 60-day period on Janu- ary 23, that leaves at least four absences which might have been known to Weaver by the latter date; Respond- ent's brief would discount one of these four as a bad weather day because it fell in January. There are, in addition, other records which, in an ab- solute sense, are as bad or worse than Bernstein's but which did not result inll discharge; arguably, they fall into the reporting lag exception urged by Respondent. See Drake (G.C. Exh. 22(a)) (five absences as of end of period, last two occurring within last 6 days), Calhoun (G.C. Exh. 26) (five absences in period, last three occur- ring in last 6 days of period), Thomas (G.C. Exh. 27) (seven absences in period, last four in last 6 days of period), Torres (G.C. Exh. 34) (seven absences in period, last four in last 4 (lays of period). None of these employ- ees was discharged at the end of the probationary period. Then there is the interesting case of Evelyn Ray. The records introduced by Respondent (Resp. Exh. 67) show that Ray was hired on May 1. 1979, was tardy on May 3, had unexcused absences on May 4 and 7, had excused absences on May 15 and 18, and was "Release[d]-Absen- teeism" on June II11 the very day on which Bernstein was discharged. Ray's record, in total absences, and even in tardiness, was identical to Bernstein's; in quality, one might argue that it is a shade worse, since Ray had two unexcused absences to Bernstein's one; but, by Weaver's standard of counting and annualizing total absences, the record of the two employees is just about identical. Given the fact that Ray, not identified in the record with the UWA. was released on the same day from the same department as Bernstein, one might have thought something would have been made of this seemingly fa- vorable point by Respondent at the hearing. Except for the introduction of Ray's records, the transcript is silent about her; only on brief does Respondent argue her case as proof of the neutrality of the handling of Bernstein. I am left to puzzle about Ray's case. How did it come about that after four absences in the first 18 days of em- ployment, and none thereafter, it was decided that she should be discharged 24 days after the last absence and some 19 days before the expiration of her probationary period?66 Perhaps, after all, it was sensible litigation strategy to leave Ray quietly ticking away in the record; while her case gives rise to the foregoing questions, it must, obviously, be accorded careful consideration.fi7 ,l The appendix to Respondent's brief does not deduct Pickett's four February absences, tir reasons unlexplained 66 The terniiatiorn form shows Ray as a "fair" worker inm all categl- ries. 6 I nmay well he that Respolldcnlt wisely chose rli to highlight Ihe simultaneous discharge of Ray for fear of provoking arn amendmen to A few other items deserve discussion. ()ne is that Bernstein and Weisbrot were disciplined on the same day. T'his appears to be coincidence. It is hard to con- ceive, as Respondent argues, that Respondent would have anticipated that the routine June 11 discussion be- twcen Wyper and Weisbrot could have resulted in the admitted insubordination, calling for a steward, etc., which brought about Weisbrot's suspension on that day. ()ine would have to infer a conspiracy and a scheme by Wyper, DePriest, and Pike. all dependent on a hoped-for reaction by Weisbrot: that seems wholly unlikely. Similarly, the fact that Cichorski was present in the department 20 office when Weisbrot came in on June 11, and in the department 23 office when Bernstein was fired on that date, does not seem to be more than happen- stance. The testimony is that Cichorski was present 'for various business reasons. It seems somehow entirely too sinister, and inane on his part, to suppose that he engi- neered or was aware of a plan to discharge both employ- ees for their UWA involvement, and deliberately chose to be present as the plan was being put into effect. Finally, there is the uncontradicted testimony of de- partment 23 employee Helen Horn that, on August 24, Weaver started a conversation with her by pointing to her UWA button and asking what it was. When she said it was a union button, Weaver told her that he thought she was "too smart to get hooked up with that." He went on to say that he had seen her name in a leaflet put out by WAI.L, an opponent of UWA, which identified her as a UWA solicitor. He asked if she had been in- volved in the organization of UWA; she replied that she was "wearing the button." The conversation ended with Weaver saying that he thought she was smart enough to work in the office, and offering to help her out if she had any problems. Horn testified that the leaflet to which Weaver had referred had come out that morning or the day before. Horn's name also appears on the letter announcing the formation of UWA received by Re- spondent on June 18. The foregoing is, I believe, a fairly exhaustive analysis of tile important evidence relating to the Bernstein dis- charge. The problems in that evidence seem to me to be troublesome. After considerable reflection, and recogniz- ing the difficulties in the case, my inclination is to con- clude that the General Counsel has made out his case by a preponderance of the evidence. To some extent, and with some regret, that decision is necessarily a mechanical one. Bernstein seemed to me a most honest witness, and he heightened that impression by conceding at the hearing that Peer had criticized his work on several occasions. He testified that, when he re- turned from his absence of May 30-June 1, he asked Weaver if that absence would jeopardize his job, and Weaver assured him that it would not. Asked by the General Counsel, prior to Bernstein giving this testimo- ny, whether such an event had occurred, Weaver simply said, "I have no recall of that." Weaver was not called as a witness for Respondent after Bernstein had testified tilhe complaint alleging that Ray' discharge was designed Ito obscure he iol elC bchlld Iternstein's terminatioin I'hat has happened in inilar cases in the past I VAR I \R-WARNI-R C()RI'()ORA I()N to more positively denl ha;l.ig gix en WeaLer this assrur- ance. I very much doubt that errnstein faricated ;l is ex- change (iser the tcstiniori (f Peer th;it the last tinle she spoke to \V'eaker about B3crslten A as on the second day of his 3-day ;ahslnc. together sitlh 'Weaver's testi- mony that "it was decided" ill that last conversralion that Bernstein would be terminatcd. it would have heen wholly incollsistent , itlh such a decislon for WVeavcr o have suhsequently assured lerrrsteiii that he had nothinlg to worry about. Indeed, the decision having purportedlly been taken before 1CBernstein retlrned, i is hard to under- stand why VW'eaver ould go 1no urther than to say hei had "no recall" of harilng given such ai assurance ap- propriately, he should harve quite certainly remenlbered not having done so. The inference here, of course, is thiat an intervening evenrit-the party-brought about a change of nlind by WVeascr. Similarly, art adverse inference must be drawrn frolt Bernstein's uncontradicled testiniony that Weaver said that the decision to fire him was dictated by "procc- dures," rather than being a decision by Weaver or the personnel office. Again, I do riot believe Bernlsteinl dreamed up this colloquy. While it might be implicit in Weaver's general tcstiniony that he made no such state- ment, his filure directly to address this claim makes it impossible to test its accuracy And assuming that it was in fact said, it contradicts e'caver's underlying theme that he exercised his discretion based oil Bernstein's ab- senteeism and poor performance. As for the latter deficiency, it is a impression that Peer was so overzealous in attempting to downgrade Bernstein that another adverse inference is appropriate. Bernstein's allegedly wretched performance, resulting in the damage of "many parts," on the bezzling machine (from which Peer could not seem to decide whether Bernstein had been removed or not) was at the same time so valuable that his 3-day absence from that oper- ation was "crippling" to her assembly line. Again, al- though Bernstein simply could not learn to operate the machine efficiently, he was assigned, according to the uncontradicted testimony of Dwight Perry. to teach Perry how to run the machine. Similarly, the decision to rate Bernstein as "poor" not only in "work" and "abili- ty" but also in "conduct," when there is no evidence at all that Bernstein engaged in anv untoward conduct, is more of the sort of overkill which tends to create a sus- picion that a coverup is in progress. The several conflicts in and between the testimony of Weaver and Peer strengthen this suspicion. Weaver's ini- tial testimony that he "believed" he spoke to Bernstein a "couple of times" about his absenteeism, and also about his poor performance, was subsequently reduced to the "possib[ility]" that he did not speak to him at all; this latter is quite likely, because he surely would not have called in Bernstein about his first absence on May 17, and he clearly did not admonish him after Bernstein re- turned from his 3-day string of absences, his only other incident of absenteeism, ending June 1. Although Weaver at first testified in a way suggesting that he may have spoken to Bernstein early on about his low-quality performance, and, although Peer testified that she asked Wcaser to sp;eak to lernslteiln coitcerrinig his efficicl' ''aibout i tie riiddle of te IlCXl cck altelcr the scond tlime I talked to hiri" (hich appareitly Wouldl hasc been in the third w\eek of Icrnstein's cirlplonicnil. Wca\'er later seenled to say that hie had heard riothiii abhout IeCrnistein's work till lie was about to discharge hlirl: "[[xcessixve absentcism j was the n;ail purpose t hat I had hin i there for, hut after the supervisor brought to niy attenlti(on that his ,uork record 'ias also poor." ()11 its face, the "poor performniance"'' reason selnis riakev eighlt aftCrthought It is riot express1 illtiltolled ill the terillnatioln Ioril as a reasoLn for releaise. allhlough the exhibits tile contains the recordls if three prohbation ers whose given reason for discharge was "Not caplhl of our type of work." plainl a recognizeed lc'tcgorx Moreover, eveni taking ito accout all ll the ariables aiid ulcertailnties discussed earlier kith respec Ito the report- ing-of-absence process. it does sceni rather difficult to be- lie\ c that Bernstein's unexcused absence anid three ex- cused absences were truly considered so ioleriable a record i department 23. While. for the reasons givel above. I cannot he sure of this, niy rex iew of the rcords leaves at least a strong hunch that the four absences. three of them excused. in 55 days might riot ordiiariil arIuse Weax er or his subordinate niaiagers. ; ' 1i record shows. as to the 63 probationers ull ose records are in evidence. that only 3 of them. BIernstein. John Roberts, and Evelyn Ray, were released for absenteeism. At this point, however, the case of Eselyn Ray looms large. As indicated, her absentee record was quite sinilar to (or perhaps qualitatively somewhat worse than) Bern- stei's and she was fired on the same day As also indi- cated, unilluriiated questions attend her case. AcknolI- edging the surface force of Ray's discharge, and at the same time the unanswered peculiarities relatinig to hy she was fired henl she was, I have concluded that this piece of evidence simply is not sufficielnt to carry thc day for Respondent against all the other considerations set out here. Timing is a meaningful factor. If the decision to dis- charge Bernstein was made on or about May 31. as Peer would have it, why was he not terminated hen he re- turned to work on Monday, June 4? Neither of the su- pervisors was asked to comment on this sticky question One document in evidence shows that an excessivels absent probationer. John Roberts, was let go on the day that he returned from four consecutive days of unreporl- ed absence (G.C. Exhs. 211a) and (b)). Other documents disclose that Weaver had no particular day of the week for discharging probationers. Roberts, above. was fired on a Friday. Moore, thought of as not being "capable of ' ' ()I11L an enlploye p;,¢scs iht prnohau ill;lr ptriod, the rtlcs bc conl c rlloldtcrab*h relaxed "()nc dly of repolrted ahcllscic nll cilh nollth v Jth- OuJl %thSr;llllatIlg cvld nn c ' ill be pcrmrlrtcd" hcrfirc b rls dlt'clplln I I1 pOictI An cmpilpr c rcc, cs grraduled (liicipilic, h ill i n hl TnlrII- llaldt', tint )t's (tll fur IlidCllu s If unciL ut'l ilit ui ui rcrorlcl inB scUi'" .lit llin t calendar quarir, nutu nlcidenlrs of abshin.' irc lil t a rrit d iforvard for this purprec fron) oe lL quaricr ti(, .nCllothr Sttiff'lrd tsiliSd, lOsnoC ar J }ll , pinnt tchn r onsrl raonlahlr , lil Rn'sporldcI trics III .;I.tl in11iknlig rcuilAl r those culnplIn, ! cs ho tihrett n l .ils tils h5, ' tsil 11 Is 1l p 11,I ] tl C' tll lc ' vll Irc(1 . h i h.rh cr I shr lcl.t'1II. 0 .n1o l lUrl Irlrd ti, sirk orl ihc sce lu idl , of t is tia I(\s V.1tiLnt I.Sl C appcarcd t h' 'l( a ill q{inpunsn'c ] so I) (CISI()NS ()1: NA'II()NAL IAI()R RELAIIONS ()AkI) our type of work," was released on a Monday (Resp. Exh. 57). Wilmer, also deemed incapable, was discharged on a Wednesday (Resp. Exh, 80). Bendford, terminated for the same reason, was fired on a Friday (Resp. xh. 38). The failure to take similar action promptly against Bernstein once the decision was made inevitably leaves one doubting that the decision was in fact made as early as Weaver and Peer testified it was.t ; Bernstein testified, as noted, that, on the morning of June 11, Weaver walked up to him as he sorted cases and said, "i hope you are not putting the stamped cases back in the bins because if ou are, your ass is grass." Bernstein replied that he was performing his work cor- rectly. He testified that Weaver had never been deroga- tory to him before. Weaver did not testify about this in- cident, and there is no reason to disbelieve Bernstein. The statement would seem to be significant. It may be read to be a warmup for the subsequent discharge, which Bernstein seemed to think. More sensibly, however, it reads as if, at the time he made the statement, Weaver contemplated a continuing relationship with Bernstein and had not yet decided to discharge him, contrary to his testimony: why bother delivering such a conditional threat to an employee whose fate has already been sealed? This interpretation would perhaps, although not necessarily, lead to the belief that the decision had not yet been made as of the morning of June I I. I come to the issue of Weaver's knowledge of Bern- stein's sponsorship of' the June 9 party. There is no direct evidence that Weaver had such knowledge. There is, nonetheless, evidence indicating that such evidence might have been quite accessible. Printed invitations, some of them stating that the party was to "get a decent union at S-W" and listing Bernstein's home address and telephone number, were passed around. There was dis- cussion about the party in the department, some of it near the desk of the supervisors. The opportunity for gaining knowledge was, I think, sufficiently there.70 Respondent makes the point on brief, and I have earli- er remarked, that Respondent's reaction to UWA was, so far as the record shows, scant in terms of unfair labor practices. This raises the fair question of whether Weaver would have been aroused enough by Bernstein's participation in an effort to "get a decent union at S-W" that he would decide to terminate his employment, espe- cially since, at that time, UWA had not even gelled into an announced candidate for bargaining representative. I see no reason not to think so. At a later time, on August 24, according to the undenied testimony of Helen Horn, Weaver displayed a certain antipathy to the idea of an independent union, telling Horn that he thought she was "too smart to get hooked up" with UWA. He might well have felt the same way about the notion that Bernstein was an agitator for a new union, whether or not Weaver was implementing company policy, and for *9 Personnel Director Stafford stated that the pay week enid, on Sunday If the decision to fire Bernstein were made on or about Ma 31, it would at the least have seemed sensible to let him go no later than Friday. June 1(0, to avoid having to write him a separate check for the work performed on Monday, June I I '° As previously stated, it is established that knowledge may be in- ferred from the circumstances N L. iKR s Link-Behlt Company. upru whatever reasons he might personally have had. Bern- stein witas, clearly, a target of opportunity, being in the final week of his probation, and the chance might have seemed to Weaver too easy to ignore. Although the case is not an overpowering one, I am. for the reasons given, persuaded that the General Coun- sel has made it by "the preponderance of the testimony taken," as provided by Section 10(b) of the Act. One other fact gives rise to a lingering doubt. Bernstein did not file his charge with the Board until July 2,71 while his friend Weisbrot filed the charge about his own June 11 incident o June 13. The reason for the delay in filing the charge was not litigated. The Board has held that the fact of delay, without more, is an improper considera- ltion. Central FIreight Lines, Inc., 222 NLRB 388, fn. 2 (1976). The rule seems just: any number of explanations, such as personal problems, might have been offered if the question had been raised. Accordingly, I conclude from all the evidence that the discharge of Bernstein on June 11 was directly related to and substantially prompted by his activities on behalf of UWA, and therefore violated Section 8(a)(3) and ( 1). C. The Allegations Pertaining to Margaret McCarthy The complaint asserts that on June I, 1979, in circum- stances in which employee Margaret McCarthy request- ed and was entitled to Weingarten representation, Re- spondent unlawfully denied it. There is no contention that McCarthy's pro-UWA sympathies played any part in the incident. The players are McCarthy, who worked in department 20, Foreman Kuczynski, and Administrator DePriest. McCarthy testified that, as she was returning from morn- ing break on June 1, Kuczynski called her into the de- partment office. She testified that her prior visits to the office had been "mainly to receive warnings." When she entered and asked what the problem was, Kuczynski said, "I am going to give you a written warning." He ex- plained that she had broken the rule about entering the assembly area without wearing her safety glasses. She stated that she had not known that this was a breach of the rules. At this point, McCarthy said, DePlriest entered, and McCarthy asked, "Can I have the steward here be- cause you people are talking about giving me a arn- ing." DePriest told her to sit down, which she did, and she again asked if she could have a steward present. Kuczynski said that a steward did not have to be called until a warning was actually written, and DePriest said that "they didn't really need the steward." A discussion about the rules followed, with DePriest saying, inter alia, that he had also seen her carrying coffee, another rule violation, "and that he could give me a warning for that, but all he really wanted to do was tell me about these rules." At that point, McCarthy asked whether she was going to receive a warning or not. He [apparently Kuczynski] said, 'Well, I am going to give you a verbal warning.' " IBernstein's signature on the charge is dated July 21 he "Date Filed," as typed in by the Rcgioinal Office, is "June 2h, 1979 " he latter date is bhviously an error. The complaint in Bernstein's case reciles that his charge was filed on July 26. 160 S'T'WA RT-WARNER C()RIPORA'ION "She then asked DePriest if he were"going to give me a warning," but he said nothing. DePriesl then made refer- ence to the "petition out in the department about eating apples and oranges on the line," which she assumed was in reference to the May 23 grievance relating to the use of food-dispensing machines. "After a while, they were just telling me about all of the rules and I just sat there." Eventually, McCarthy again asked if she were to get a warning or not. The two men "kind of looked at each other," and told her to go back to work, which she did. "That was the end of it." She received no discipline. I have given above a substantially complete paraphrase of McCarthy's version of the conversation on direct ex- amination. She said that she was in the office for "at least 20 minutes," so it is clear that her testimony did not fully replicate the conversation. Kuczynski testified that he called McCarthy into the office because DePriest had notified him that an employ- ee was "walking on the line without wearing her safety glasses." He went out, saw McCarthy, and called her into the office. When he asked her if she knew "what this is about," she replied, "Yes, about the safety glass- es." Kuczynski conceded that he then said, "Well, I'll probably have to discipline you." After McCarthy began to say that she thought the rules permitted her to leave the glasses off during rest breaks, DePriest (who was, ac- cording to Kuczynski, in the office from the beginning of the interview)7 2 said, "Well, she don't seem to under- stand the rules. Maybe you better not discipline her." A discussion of the rules followed, and it was only at this point, said Kuczynski, that McCarthy asked for a ste- ward. She was told, "Well, what do you need a steward for? There's no discipline." She then left the office. DePriest, questioned only briefly about this incident, said that, in McCarthy's presence, he "instructed Lenny not to discipline her, just to explain the rules." McCarthy appeared to be an excellent witness, but I note that her account of this 5-month-old event changed somewhat on further examination. Thus, when I later asked McCarthy for a reprise of the interview, De- Priest's assurance that she would receive no discipline seemed much earlier and more emphatic. In that second version of the meeting, McCarthy said that, after she had requested a steward, and Kuczynski had said it was not necessary to provide a steward until a warning was actu- ally given, DePriest said "they just wanted to talk to me .... He told me that they just wanted to talk to me and tell me the rules. That is how I remember. He told me that they just wanted to talk to me and tell me the rules .... We don't need Ruby because we are going to tell you the rules. We just want to sit here and talk to you and tell you the rules. What do you need a steward for?" It seems to me that neither the letter nor the spirit of the Weingarten principle was offended by the failure to summon a steward, assuming arguendo that McCarthy did ask for one soon after Kuczynski admittedly told her that he "probably" would issue a warning. For, almost immediately, DePriest, the ranking official, made it clear that the only purpose of the discussion was "just . . . to ;z DePriest said the twio were already n he ffice when he entered talk to [her] and tell [her] the rules." That assurance, it seems to me, should reasonably have allayed any fears on McCarthy's part that the interview might result in discipline, and the precedent earlier cited in connection with Weisbrot's June I1 interview is applicable here.7: Indeed, it might further be contended that the interview. from the beginning, was not "investigatory" in the sense contemplated by Weingarten, thus making a steward's presence useful. So far as the record shows, no interroga- tion occurred, and McCarthy's testimony indicates that the interview was essentially didactic."' In this respect, the conversation was arguably analogous to "the giving of instructions or training or needed corrections of work techniques" authorized by Quality Manufacturing Compa- nv, supra, 195 NLRB at 199, to be undertaken despite any request for a steward. The record discloses that there had been confusion in the plant about the use of safety glasses. On May 18, a lengthy notice had been posted on all bulletin boards on the subject of "Wearing of Eye Protection," stating that "There has been some question by many employees re- garding the established rules governing the wearing of safety glasses," and then setting out the rules. One of the noted locations where glasses did not have to be worn was "In a break area." Because it appeared from the Mc- Carthy incident that questions still lingered in depart- ment 20, Kuczynski had the notice retyped to read "In a break area (Departmental Lunch Area)"; copies were distributed to the employees so that other employees. like McCarthy, would not misunderstand the rules. The foregoing indicates to me that, there being "some question by many employees" about the safety glasses re- quirement, DePriest. understanding that, merely under- took on June I to attempt to clarify the rules to McCar- thy. Of course, DePriest's intention would not necessar- ily have a bearing on McCarthy's reasonable apprehen- sion of discipline, and I would think that, at the begin- ning of the conversation, she surely had grounds for some apprehension. In view of her concession, however, that DePriest very soon thereafter said that no steward was needed because the two managers "just wanted to talk to me and tell me the rules," it seems to me that no 71 A stlatement that no steward is needed because a supers.isor "Just wants to talk to an employee and tell her the rules" is, in my siev, con- siderahly more of a commitment that discipline will not he nvolved than a mere statement that "an employee does not need assistance." Lenu.ro Industrie.s, Inc., 244 NLRB 607 (1979), cited by the General Counsel 7 "Then he started telling me about all of these different rules, mlotl) relating to glasses." "After a while. they were just telling me about all if the rules and I just sat there" "- [Tlhey Were telling me all of these rules. see, and I was just listening to them " At one point. McCarilh testified that, toward the end of the cotnrersaion. she "asked them if the', had ianl other questions"' While the Wsord "other" suggests that there had been prior questions, she did not testif' to any I note that in referring to his testimony n order to argue that there was no interrogation, Respondent's brief omits the rather significant word "other' " I further note that Respondent', brief is i palpable error in some other instances, uch as the claim that "Nowhere in her testimony doe, McCarthy identify precisely when during the 15-20 minute inter- ite' that she requested a steward" In fact, as cited in the transcript. Mc- Carthy is as precise on this point as one could he, short of haing noted down the time of day, and much more so than Kuczynskl's testimion ahbut midway" through the inerview ("I would feel it as somewhere midway ") touted hb Respipndnit as the "only testimony as It the tining of the rquest I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial Weingarten obligation continued. I find it diffi- cult to believe that Kuczynski later said that he was going to give her a verbal warning, especially since this did not come to pass. McCarthy made a fine appearance, but I am inclined to think that time may have eroded her recollection . 7 On this evidence, I would not find that Respondent failed to comply with its statutory duty, and I recommend dismissal of this allegation. CONCIUSIONS Oi LAW 1. Stewart-Warner Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Workers Association is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees, by intimidating employ- ees, by coercively interrogating employees, by limiting the right of employees to engage in protected activity, and by denigrating employees, in September 1978, Re- spondent violated Section 8(a)(1) of the Act. 4. By discharging Bruce Bernstein on June 11, 1979, Respondent violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Other than as found above, Respondent has not vio- lated the Act as alleged in the consolidated complaints. THt RlIM HI)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the pur- poses of the Act. Having found that Respondent unlawfully discharged Bruce Bernstein on June 11, 1979, 1 shall recommend that Respondent be required to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and other rights and privi- leges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of termination to the date of Respondent's offer of reinstatement, less earnings during such period. The backpay provided herein shall be computed on a basis of calendar quarters in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Tlis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). I shall also recommend posting of the traditional no- tices. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 7" here may also he a question hether a verbal warning conslilutes "discipline " Stafford testified Ihal I. ocal 1031, taking the position thai verhal warnings could not he grieved, sought and received agreement fromn Respondent around 1977 hl employees xo4uld no longer receive copies of erhal warning forms ORDER 7"t The Respondent, Stewart-Warner Corporation, Chica- go, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist From: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of employment in order to discourage membership in United Workers Association or any other labor organization. (b) Threatening employees in order to discourage ac- tivity within or on behalf of any labor organization. (c) Intimidating and denigrating employees in order to discourage activity within or on behalf of any labor or- ganization. (d) Coercively interrogating employees in order to re- strain them from engaging in activity within or on behalf of any labor organization. (e) Limiting the right of employees to engage in pro- tected concerted activities. (f) In any like manner interfering with, restraining, or coercing its employees in the exercise of rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Bruce Bernstein, if Respondent has not al- ready done so, immediate and full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's unlawful discrimination against him, in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) 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 recommended Order. (c) Post at its Chicago, Illinois, facilities copies of the attached notice marked "Appendix."7 7 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. "' In the eent ioi exceptions are filed as provided by Sec. 10246 of the Rules arid Regulations f the National Lahor Relations Hoard. the findings, conclusions. and recomlmenrrded Order herein shall, as provided il Sec 1112 48 of the Rules and Regulations he adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " 11the I cvien that this Order is enforced by a Judgnment of a Uilted Slate, Court off Appeals. the words in he notice reading "lPmted hb ()rder of the National I.abor Relations Board" shlil read "Posled P'ursu- itlo ao Judgmnrl of hle liriled Staite Court of Appeal, Eiiforrcirg all ()rder of the National I .abhir Relatiorns oard " 162 SrIEWART-WARNER CORIPORATION (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. I IS URI H-R ORI)ERII) that the allegations in the consolidated complaints be dismissed except insofar as specific findings of violations based on those allegations have been made above. h13