Volt Information Sciences, Inc.

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Volt Infromation Sciences , Inc. and Noel Creary and Denis Henry and Gregory Waite and Edgar Torres and Josh Pryce and Diana Wel- come and Mercedes Rodriguez and Printing and Graphic Communications Union , Local 51, AFL-CIO. Cases 2-CA-18065, 2-CA-18273, 2-CA-18295, 2-CA-18296, 2-CA-18305, 2- CA-18315, 2-CA-18349, and 2-RC-19116 25 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. IT IS FURTHER ORDERED that the Regional Di- rector shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Order, open and count the ballots of Robert Porter, Frank Giordano, Luqman Magied, and Sheila Copper and prepare and cause to be served on the parties a revised tally of ballots on the basis of which he shall issue an appropriate certification. DECISION On 8 February 1983 Administrative Law Judge Harold B. Lawrence issued the attached decision.' The General Counsel, the Respondent, and the Pe- titioner filed exceptions and supporting briefs, and the Respondent and the Petitioner filed answering briefs. The Board has considered the decision and the record in light of the exceptions and briefs2 and has decided to affirm the judge's rulings,3 find- ings,4 and conclusions,5 as modified,6 and to adopt the recommended Order. ' On 8 and 24 March 1983, the judge issued Errata to his decision 2 The Petitioner's motion to strike the Respondent's answering briefs is denied as lacking in merit 3 During the hearing, the judge refused to admit into evidence the New York State Department of Labor Unemployment Insurance decision concerning Diana Welcome Although not controlling, the decision is ad- missible Western Publishing Co, 263 NLRB 1110 fn 1 (1982) According- ly, we have considered the decision, but find that it does not require a different result 4 All parties have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 5 We agree with the judge's conclusion that the Respondent failed to establish that the status of Sheila Copper was changed from that of a full- time employee to that of a temporary employee pursuant to an alleged company policy We therefore find it unnecessary to adopt the judge's alternative rationale that Copper would still be an eligible voter even if the existence of such a policy had been established 6 We agree with the judge that the Respondent did not violate the Act by its treatment of employee John Mulram, but we clarify the rationale The definition of concerted activity set forth in fn 38 of the Judge's deci- sion is no longer correct See Meyers Industries, 268 NLRB 493 (1984) Assuming, arguendo, that Mulram's 21 April 1981 protest constituted concerted activity, we find that Mulram exceeded the protections of the Act by shouting in the presence of other employees in a work area on working time, disrupting operations, refusing to accompany a supervisor to a conference room, and refusing to leave the premises See NLRB V Thor Power Tool Co, 351 NLRB 584 (7th Cir 1965) Therefore, the Re- spondent acted lawfully in suspending and reprimanding Mulrain for his unprotected conduct Concerning Mulram's discharge, we agree with the judge that the two causes were Mulram's insubordination and his hostile attitude toward his employer We find it unnecessary to pass on the judge's finding that Mul- rain's complaints about supervisors and leads were not protected by Sec 7 of the Act Assuming, arguendo, that such complaints were protected, the Respondent did not rely on them in discharging Mulrain STATEMENT OF THE CASE HAROLD B LAWRENCE, Administrative Law Judge These consolidated cases were heard before me in New York City on January 27, 28, and 29, February 1, 3, 4, 5, 24, and 25, and April 5, 6, 12, 13, 16, 28, 29, and 30, 1982. On July 29, 1981,' the Petitioner, Printing and Graph- ic Communications Union, Local 51, AFL-CIO (the Union) filed a representation petition. An election was conducted on September 3 upon a Stipulation for Certifi- cation upon Consent Election, approved by the Regional Director for Region 2 on August 10. Objections were thereafter filed by Volt Information Sciences, Inc , the Respondent, and by the Union. The Union challenged the ballots cast by employees Robert Porter, Frank Giordano, and Luqman Magied on the ground that they were supervisors The Respondent challenged the ballot cast by Sheila Copper on the ground that she was a temporary employee and therefore ineligible to vote and challenged the ballots cast by Denis Henry, Gregory Waite, Josh Pryce, Edgar Torres, and Diana Welcome, whose employments ended at vari- ous times between April 23 and the date of the election, on the ground that they were ineligible because they did not have status as employees at the critical times. Henry, Waite, Pryce, Torres, and Welcome filed charges of unfair labor practices at various times during the period from May 12 to September 8, on which these complaints were issued and thereafter consolidated by order dated September 30, 1981. On November 9, 1981, a further order was made consolidating the hearing on challenges in Case 2-RC-19116 with the hearing on the consolidat- ed complaint in the unfair labor practice cases The consolidated complaint alleges numerous viola- tions of Section 8(a)(1) and (3) of the National Labor Re- lations Act (the Act) which are set forth below in the summary of the issues herein.2 The most serious allega- i All dates are in 1981 except when specifically stated otherwise 2 At the hearing, the General Counsel withdrew allegations to the effect that Cedric Brown unlawfully interrogated employees, that about June 22, 1981, the Respondent unlawfully eliminated its night shift, that the Respondent unlawfully discharged an employee named Mercedes Ro- driguez, and that Cedric Brown was a supervisor within the meaning of Sec 2(11) of the Act 274 NLRB No. 47 VOLT INFORMATION SCIENCES tions relate to the discharges at various times of seven employees, whose dates of hire and termination are found by me to have been as follows. Employee Date Began Date Terminated Noel Creary 9/11/80 4/23/81 John Mulrain May 1978 5/12/81 Josh Pryce 1/5/81 7/6/81 Denis Henry 11/19/79 8/14/81 Edgar Torres 4/9/79 8/18/81 Gregory Waite 5/7/79 8/25/81 Diana Welcome 5/5/80 9/9/81 The Respondent's answers deny all allegations of wrongdoing and deny that any violation of the Act was committed by the Respondent. The Respondent contends that Copper's failure to file an unfair labor practice charge required that the objection to her ballot be sus- tained. The issues thus presented may be summarized as fol- lows: 1. Did the Respondent violate Section 8(a)(1) and (3) of the Act by reason of commission of any or all of the following acts because employees supported the Union and in order to discourage them from engaging in pro- tected concerted activities: (a) In May 1981, imposing more onerous and less de- sirable working conditions by imposing stricter supervi- sion and enforcing a previously unenforced attendance policy. (b) At various dates discharging Pryce, Henry, Torres, Waite, and Welcome and refusing to reinstate them be- cause of their union activity or adherence (c) Discharging Henry for the additional reason that on August 14 he sought to leave work early in order to comply with a subpoena to appear at a New York State Department of Labor hearing pertaining to John Mul- rain. 2 Did the Respondent violate Section 8(a)(1) of the Act by reason of the following actions: (a) On May 6, 1981, curtailing use of the bulletin boards over its timeclock (b) On August 27, through Robert Epstein, unlawfully interrogating employees. (c) On June 10, through Luqman Magied, threatening employees with reprisals because of their union activities. (d) Because John Mulrain and Noel Creary concerted- ly complained to the Respondent regarding working conditions and for the general purpose of discouraging employees from engaging in protected concerted activi- ties, (i) In December 1980 transferring Noel Creary to a less desirable position of employment. (n) Discharging Creary on April 23 and thereaf- ter refusing to reinstate him. (iii) Reprimanding and suspending John Mulrain on April 21. (iv) Discharging Mulram on May 12 and thereaf- ter refusing to reinstate him. 3 Were the ballots cast by Robert Porter, Frank Gior- dano, and Luqman Magied invalid because these employ- 309 ees were supervisors within the meaning of Section 2(11) of the Act? 4. Were the ballots cast by the following named per- sons invalid because at the time of the election they no longer had status as employees of the Respondent Denis Henry, Gregory Waite, Josh Pryce, Edgar Torres, and Diana Welcome? 5. Was the ballot cast by Sheila Copper invalid be- cause on September 3 she was a temporary employee and ineligible to vote? The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have been filed by and on behalf of the General Counsel, the Peti- tioner, and the Respondent. On the entire record and based on my observation of the demeanor of the witnesses and the manner in which they gave their testimony, and after due consideration of the briefs submitted on behalf of the General Counsel, the Respondent, and the Union, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue as to jurisdiction. The Respondent is a corporation involved in a number of business enter- prises which involve the rendering of field service to nonretail customers in the nature of technical writing and illustrating and the provision of data processing. Its principal office is in Syosset, New York. Annually, in the course of its business operations, the Respondent pro- vides services valued in excess of $50,000 to various en- terprises within the State of New York These include the New York Telephone Company, which by itself an- nually purchases goods and services valued in excess of $50,000 from firms located in States other than the State of New York At the hearing it was stipulated, and I find, that the Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Petitioner is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act II THE RESPONDENT' S BUSINESS As noted, the Respondent is in the field service busi- ness, providing to other business concerns on a contrac- tual basis services such as technical writing and illustrat- ing, photocomposition and computer work, and nursing aids for hospitals. It has contracts with telephone compa- nies throughout the United States. It furnishes in-house contractual services such as preparing books, manuals, technical literature, and commercial literature. The Re- spondent has various divisions, which are not centrally housed but operate from various locations in the United States and Europe. One of the Respondent's operations involves the pro- duction of the classified telephone directories for the boroughs of New York City and several neighboring counties, and goes under the appropriate name of the New York Telephone Yellow Pages Project. Robert Ep- 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stein is the project director. The project's function is to process the classified advertising which appears in the di- rectories from the time salesmen bring it in up to but not including the actual publication. The project employees prepare the advertisement from copy furnished by the advertiser to the selling agent and set up the pages for the Yellow Pages directories. The staff performs all phases of production up to delivery of the film negatives of the completed page to the publisher. The project offices and workrooms are located at 375 Pearl Street, New York City (the Telephone Building) on the 30th floor The employees have the use of a lounge on the fifth floor. The landlord and provider of services for the premises is New York Telephone, which furnishes the office space, furnishings, equipment, sup- plies, electrical heating, telephone, and light Volt sup- plies the labor Volt bills New York Telephone on the basis of the number of hours of work performed, at rates which New York Telephone and Epstein agree on for various categories of work. Consequently, personnel changes are reported to New York Telephone if they affect the billing. The identity of supervisors is reported to New York Telephone so that its personnel know who to deal with. New York Telephone interfaces with Ep- stein or Assistant Project Director Terry Muccio and with the supervisors when necessary, but not directly with the employees. Organizational changes are also re- ported to New York Telephone. Until June 15, 1981, the Respondent operated a night shift which continued the work of the day-shift person- nel. Each department had its own night-shift counterpart, directed by a lead, with all night-shift personnel subject to the supervision of Night-Shift Supervisor Philip Leonti. It was normal practice for departmental supervi- sors to leave oral or written instructions with Leonti for transmittal by him to the nighttime leads and they would frequently check in by telephone during the evening. Ep- stein checked by telephone and from time to time visited the office at night. The Respondent's departmental divisions were camera, proofreading, input, staff, input-output, ad quality control and filing (a combined unit), and production. The determination of the validity of the charges made against the Respondent depends, among other things, on the findings made respecting the Respondent's knowl- edge of the employees' union membership, support, or activities.3 I;. certain of these cases, there is no evidence whatsoever that the Respondent had any knowledge or reason to believe that the particular employee was sup- porting the Union. The General Counsel did not invoke the "small shop" rule, apparently deeming the issue of the Respondent's knowledge to have been adequately covered by the specific proof introduced by him How- ever, I do not so find. The question is thus squarely pre- sented as to whether the "small shop" rule is applicable so as to permit imputation to the Respondent of knowl- edge of the employees' union membership or activities. 9 An allegation of discriminatory discharge is dismissible where there is no evidence of the employer's knowledge or suspicion of the employ- ee's union activities La Habra Dodge, 251 NLRB 1 (1980), Maple Shade Nursing Center, 223 NLRB 1475 (1976) The organization of the New York Telephone Yellow Pages Project as it existed on September 3 is typical of its organization throughout the period of time pertinent in this case, with the major exception that prior to June 15 there was a night shift. The organization and staffing was as follows. Department Supervisor Lead Ad Q.C (Quality Control) Richard O'Connor Brenda Richardson File Richard O'Connor Robert Hughes P I & Table Maintenance Richard O'Connor David Gitomer Camera Alan Charles Schwarka Schmalenberger Robert Porter I/O (Input-Output) Richard O'Connor Emanuel Napoleon Code Proofreading Barbara Boynton Page Q C Barbara Boynton Irving Metzger Video Terminal Operators Frank Schilero Philippe Baroulette Data Speed Operators (sort and match) Frank Schilero Cheryl Ryan Michael Titus Production Frank Gallarello Sheila Hughes Frank Giordano Luqman Magied Rocco Summa Staff Philip Leonti The employees were divided tions as follows: Camera 7 Negative Q.C. 3 Ad Q.C. 7 Proof Copies 2 File 4 Ad Manuscript 1 P.I. & Table Maintenance 3 I/O 6 Code Proofreading 9 Page Q.C 8 Video Terminal Operators 12 Data Speed Operators/ Sort and Match 9 Production 30 Staff 5 Administrative Assistant 1 107 among the various sec- Under the "small plant" doctrine, knowledge of union activity can be inferred from circumstances such as the small number of employees at the plant; the extent of employees' conversation about the union; knowledge by an employer of an employee's past union activity; the timing of an unfair labor practice, especially after union activity has become apparent, the fact of simultaneous discharges of union adherents; and the degree of abrupt- VOLT INFORMATION SCIENCES 311 ness of discharge and lack of warning.4 Other circum- stantial evidence which may be considered includes the size of the plant, the acoustics in the work facility, the employees' lack of circumspection in their discussions about the union, and the advancement by an employer of a pretextual reason for discharging an employee.5 The mere size of the plant or of its employee comple- ment may not be a sufficient guide to application of the doctrine. Size alone is not the criterion A small employ- ee complement does not justify the inference that the employer had knowledge of its employees' union activi- ties in the absence of supporting evidence that their ac- tivities were carried on in such a manner or at such times that, in the normal course of events, the employer must have been aware of them 6 In addition, The Board looks not only to whether the protected activities take place in such a manner as to give the employer the opportunity to observe it, but also to whether the employer made statements or engaged in conduct which make it likely to believe that he gained knowledge of the protected activities.7 In short, plant size and size of employee complement are recognized in the same fashion as many other factors as being logical bases for an inference 8 As such, the weight accorded it depends upon the circumstantial con- text, with the reported cases consequently showing dif- ferent outcomes after consideration of factors such as employee concealment of union activity9 and the number of employees. 10 As will appear from the factual analyses which follow, I have not applied the "small plant" doctrine in the case of any employee who has been discharged by the Re- spondent. The Respondent's New York Telephone Yellow Pages Project is not a small operation to begin with. Not even the production department, by itself, can be considered a small operation. The dates on which the employees were discharged do not seem to be in any way related and not all of them are close to the date of 4 Wiese Plow Welding Co, 123 NLRB 616, 618 (1959), Syracuse By-Dee Diaper Service, 251 NLRB 963, 967 (1980) (two union adherents dis- charged on same day) 5 Pay 'N Save Foods, 257 NLRB 1228 fn 1 (1981), Florida Cities Water Co, 247 NLRB 755, 756 (1980) 6 Maniac Corp, 231 NLRB 858 fn 2 (1977), Friendly Markets, 224 NLRB 967, 969 (1976) Knowledge may not be inferred when an inde- pendent basis for inferring knowledge is lacking even where there is proof of union animus, suspicious timing, and false reasons advanced to justify discharge Samsonite Corp, 206 NLRB 343 (1973) 7 Samsonite Corp, supra at 349 8 American League of Professional Baseball Clubs, 189 NLRB 541, 548 (1971) 9 In Picker Corp, 222 NLRB 296, 299 (1976), and Central Buying Serv- ice, 223 NLRB 542 (1976), the "small plant" theory was held inapplicable where activity was secret, and no violation of the Act was found in ab- sence of proof of knowledge on the respondent's part 10 Some cases which have considered the specific numbers illustrate the wide range and the influence of the circumstantial background or lack of it Not applying the "small plant" doctrine are Friendly Markets, 224 NLRB 967 (1976) (10 employees), Maniac Corp, 231 NLRB 858 fn 2 (1977) (11 employees), Complas Industries, 255 NLRB 1416 (1981) (50 employees) Applying doctrine Wiese Plow Welding Co, 123 NLRB 616 (1959) (13 employees), A to Z Portion Meats, 238 NLRB 643 (1978), enf denied as to this aspect 643 F 2d 390 (6th Cir 1980) (16 employees), Flor- ida Cities Water Co, 247 NLRB 755 (1980) (19 employees), Syracuse Dy- Dee Diaper Service, 251 NLRB 963 (1980) (42 employees) the election. Some testimony was adduced to the effect that some employees were not circumspect in their dis- cussions of union affairs, but the effect of their careless- ness is speculative. None of the discharges were abrupt and all were after warnings-in some cases, many warn- ings I credit the testimony of all of the Respondent's su- pervisors, who said they acted without knowledge that the employee being discharged was a union adherent. Most importantly, I think the reasons advanced in justifi- cation of the discharges are anything but pretextual III. THE ALLEGED VIOLATIONS OF SECTION 8(A)(1) AND (3) A. Changes in Working Conditions Paragraph 14 of the complaint alleges that about May 1981 the Respondent imposed more onerous and less de- sirable working conditions on its employees by imposing stricter supervision and by strictly adhering to a previ- ously unenforced attendance policy. Neither allegation is supported by any substantial credible evidence. The General Counsel did not prove that an existing policy re- specting attendance had been allowed to lapse, or that at a particular time or on a particular occasion the Re- spondent revived it, or that on any occasion or at any time it imposed stricter supervision, or that any such ac- tions on the part of the Respondent were applicable to the general employee body rather than to a few specific individuals. The contention respecting stricter supervision is that when three employees Edgar Torres, Denis Henry, and Josh Pryce, became active in support of the Union in May, they suddenly came under heavy criticism. On May 5, Edgar Torres was spoken to about his work and his record of absences and tardiness. Henry was spoken to on June 22. Pryce was given a serious warning around June 4. The employees claimed that these were the first occasions on which they were spoken to about such mat- ters. Their work performance was criticized and Henry was taken to task for failure to perform assigned work. The criticisms are examined in detail below in connec- tion with the circumstances of their respective dis- charges. In this branch of the case, the General Counsel did not contend that an employer which has been lax in criticizing employees' performance may never resort to criticism, but that timing is the crucial factor from which inferences adverse to a respondent may be drawn. i i " In Peavey Co, 249 NLRB 853, 857 (1980), the administrative law judge found that the surrounding circumstances did not justify the em- ployee's discharge because the employer had tolerated poor performance over an extended period and discharge was for activity typical of the em- ployee's past behavior which had gone unpunished, he took into account proven animus toward her union activities and the timing of her dis- charge On review, the circuit court, in refusing to enforce an order for her reinstatement, noted the existence of conditions which hold true in the instant case poor performance tolerated without complaint, but em- ployee given warnings, employer's stated reasons for discharge were not pretextual, and employer met burden of showing lawful reasons which prompted the discharge The court commented, "Moreover, an employ- er's silence does not extinguish its right to discipline an employee whose conduct continues to worsen" Peavey Co v NLRB, 648 F 2d 460, 462 (7th Cir 1981) 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such an argument, however, must rest upon proof of knowledge on the part of the Respondent that organiza- tional activity was in fact taking place on the part of these three individuals . This is a circumstance which is nowhere established by the evidence. The Respondent has asserted that it first became aware of union activity around May 19 or 20, on receipt of a letter from the Union dated May 18, and that its first knowledge that any particular employee was engaged in union activity came to it upon receipt on May 14 of a copy of the charge filed by Noel Creary with the Board. The contention respecting the attendance policy is that the Respondent's toleration of Gregory Waite's tardiness ended when he became a union adherent. It flounders on the General Counsel's complete failure to prove that the Respondent ever knew of such interest on the part of Waite and, on the evidence, discussed below in connec- tion with his discharge, that the Respondent extended itself considerably in order to help Waite alter the condi- tions which caused his tardiness . Furthermore, it is highly questionable whether the Respondent was enforc- ing a policy which had not previously been enforced. The prior existence of the policy itself cannot be doubt- ed, for the policy statement furnished to all new employ- ees, which was received by the individuals involved in the present case, clearly set forth that regular and punc- tual attendance is necessary to the Respondent's oper- ation and "frequent lateness and/or irregular attendance reflect seriously upon your record . . . excessive ab- sences may lead to suspension or termination." The policy statement explicitly required reports to supervi- sors concerning absence. Proof abounds that the stated policy was rigorously enforced. The exhibits in evidence contain summaries of warnings given to employees and reasons for their termination of employment and establish that during the years 1979, 1980, and 1981 numerous warnings were given to employees regarding lateness and absences and that a number of employees were dis- charged for the specific reason that they had poor late- ness or attendance records. Since the evidence establishes that policies relating to attendance and tardiness existed and were enforced prior to the time that Waite received his first warning and that disciplinary actions, including both warnings and dismissals for lateness and poor at- tendance, were routinely taken during the years men- tioned, no distinction is shown between the manner in which Waite's problem was handled by the Respondent and the manner in which other employees were handled. Waite did not receive disparate treatment and the mere fact that disciplinary warnings given to him coincided with the beginnings of his union activity does not war- rant a finding of discriminatory behavior on the Re- spondent's part. This is especially true in view of the fail- ure to prove that the Respondent had knowledge of Waite's union activity 12 There is absolutely no evidence that the general body of employees was subjected to any form of stricter super- vision or rigorous enforcement of previously unenforced policies. The sparse proof that has actually been adduced in support of the General Counsel 's case relates specifi- 12 Fruehauf Corp , 255 NLRB 906, 909, 910 (1981) cally to Waite, Torres, Henry, and Pryce The Respond- ent, on the other hand, introduced proof in the form of credible testimony by Epstein and copies of internal memoranda , which established that supervision of the quality of employees' work, involving criticism and, when necessary , discharge, was normal procedure. If the failure of the Respondent to apply such meas- ures rigorously to these employees until May 1981 raises an arguable point with respect to their discharge, it nev- ertheless has no significance with respect to the rest of the employee body. The reason is that the Respondent's actions were not coercive and violative of Section 7 of the Act because they were in accordance with the poli- cies that were enforced against other employees through- out 1979, 1980, and 1981. Inasmuch as the point arises repeatedly in this series of consolidated cases, it is well to note at this point that it has long been understood that no one factor, such as timing of discharge, governs the determination of wheth- er or not such action was unlawful . The conclusion that discrimination was practiced flows, not from the conflu- ence of union activity and the timing of a discharge, but from a fair inference drawn from all the facts of the case. Such facts would include the failure of an employer to seize an opportunity to fire union activists upon discon- tinuance of operation of certain machinery or, as in the instant case, the discontinuance of the night shift on June 15.13 Timing is an important factor,14 but not the only one. 15 B. Discharges on Account of Union Support and Other Protected Activities 1. Josh Pryce Josh Pryce began working for Volt on January 5, 1981, and was discharged on July 6, 1981 It was his function to make up the mechanicals with the actual type for the advertising pages. Pryce's participation in the Union's organizational campaign began in May . He signed a union card on May 18. He posted notices on the bulletin board and distribut- ed union authorization cards. He testified that he gave a card to an employee named Chris Bowen , who returned it to him on June 4. He spoke to Bowen on June 3 and argued the advantages of joining the Union He also gave a card to an employee named Curtis Thomas, who filled it out and signed it in his presence Among the things he posted on the bulletin board over the timeclock 13 Campbell & McLean, 118 NLRB 967 , 969 (1957), appeal dismissed sub nom Woodworkers v NLRB, 262 F 2d 233 (D C Cir 1958) 14 NLRB v Montgomery Ward & Co, 554 F 2d 996, 1002 (10th Cir 1977), modifying 220 NLRB 373 (1975) 15 Ray 's Liquor Store, 227 NLRB 1800, 1801 fn 3 ( 1977) "However, mere timing and severity of the disciplinary action do not necessarily lead to the conclusion that his discharge was discriminatory Campbell & McLean, Inc, 118 NLRB 967, 969 ( 1957) " To the same effect , see A T & SF Memorial Hospitals, 234 NLRB 436 ( 1978), and Don Lucas Interna- tional, 229 NLRB 127, 128 (1977), enfd 83 LC ¶ 10,367 (9th Cir 1978) (no published opinion) In a proper case, timing can be controlling, but "where other evidence overcomes any inference arising from timing, as in this case, the matter of timing is no more than another factor to be considered " Central Buying Service, 223 NLRB 542 , 547 (1976) VOLT INFORMATION SCIENCES was a copy of Section 7 of the National Labor Relations Act, together with a list of examples of rights protected by the section. He also placed copies in the day crew's desks. He fixed the time of this occurrence as immediate- ly after the first union meeting, which he recollected took place early in May. Pryce based his belief that the Respondent was aware of his union activities on several incidents: (a) Chris Bowen told Dennis Latham, another employee who said he was looking for a union card, that Pryce was giving out cards. Pryce regarded Latham as a spy Sal Rada, a daytime worker who was working overtime, overheard a discussion about the cards between Bowen and Pryce around June 3 or 4. (b) A week later, Pryce had a con- versation with Curtis Thomas in which they discussed the Union and the need to convince a lot of people to get into the Union. Luqman Magied's desk was behind Pryce's seat. According to Pryce, Luqman interrupted and said to Pryce, "Boy, you really are trying to commit suicide." (c) Pryce asserted that he had actually told Magied, whom he regarded as part of management, that he was engaged in union organizing . In fact he gives Magied credit for having inspired the organizational campaign by suggesting (surreptitiously) that the em- ployees get together and try to get the Union in. This had occurred in January or February, when the employ- ees were sitting in their coats and complaining about the lack of heat in the premises. According to Pryce, Luqman Magied suggested that they all get together and organize themselves so they would not have to work under such conditions. In Pryce's terms, "He wasn't a part of it, you know, but he just inspired it." (d) Pryce and other employees talked about the Union in the cafe- teria in front of Magied, so he presumably overheard their conversations and was aware of what was going on. Pryce connected the Respondent's imputed knowledge with its actions toward him. He testified that immediate- ly after his conversation with Bowen and Rada, Luqman Magied called Pryce to his desk and confronted him with a folder which contained two pages of an advertise- ment and told Pryce that he was making mistakes. He warned Pryce that if he did not shape up by the end of the week, he would be terminated. The next week, im- mediately after Pryce's conversation with Curtis Thomas, when Luqman had made the suicide remark, Magied called Pryce to a meeting with Phil Leonti. They told him that if he did not shape up they were going to "ship him out" by the end of the week. At the same time that Pryce testified to the foregoing; however, he gave contradictory testimony to the effect that he acted with great secrecy and care to avoid his union activities being discovered by the Respondent. When he posted the copy of Section 7 of the National Labor Relations Act on the bulletin board, and when he posted all the other notices and slipped the notices of union meetings into the various desks, he took care to avoid being seen by anyone. He did not believe that anyone from management saw him sign his card or saw Curtis Thomas and Chris Bowen sign their cards. He had testified, however, that Curtis Thomas filled out and signed his card in the cafeteria where, as he had also tes- 313 tified, from time to time they spoke in front of Magied. Thus, he appears to have been extremely careful and ex- tremely careless at the safe time. None of his testimony squares with his testimony that the original inspiration for the whole organizational campaign came from the very Luqman Magied who was threatening to fire him. The duplicitous role assigned to Magied is, of course, denied by Magied in his testimony. The basic thrust of the case in regard to Pryce is that the Respondent attempted to build a case for discharge. Little attention is given to the possibility that there may have been good cause 16 Pryce testified that after his transfer to the day shift his work was criticized by George Gallarello and Phil Leonti "just about every week" for minor errors. Though he insisted that not all of the errors were his, Pryce conceded that there were "quite a few of them" and that his reaction to the criti- cism was resentful from the outset Gallarello pointed out mistakes during Pryce's very first week on the day shift and warned him that. if his work did not improve and if he did not stop making mistakes, he would be let go by Friday of that week. Pryce testified that he initial- ly tried to defend himself but then realized that it was useless, so he just listened to Gallarello and at one point said to him, "Why go through all this? Why not just get rid of me?" As this was in the very first meeting, his re- action seems premature, especially in view of Leonti's re- sponse, when he said, "We want to help you " The fact is that, as Pryce conceded, he had received a final warning, because of the poor quality of his work, even before he moved to the day shift The Respondent contends that it discharged Pryce be- cause of the deficient quality of his work and points to Pryce's own reaction when Gallarello called Pryce to his desk on July 6 and pulled out a file to review with him. Pryce said, "Please, I don't want to see that again If I'm fired, I'm fired." Pryce conceded he did not give Gallar- ello a chance to say anything about the work. Gallarello fired him at that point. Testimony by Gallarello, Leonti, and Magied and the tone of the contemporaneous memoranda made by Gal- larello establish that Pryce was discharged because of his poor work performance His work came to Gallarello's attention frequently because of his failure to follow cor- rect procedures or adhere to proper guidelines and be- cause of the frequency of his errors. Gallarello testified that he would leave compilations of the mistakes for Leonti or Magied to review with Pryce and receive memoranda from them in return assuring that the errors and proper procedures had been reviewed by them with Pryce. Magied testified that Pryce was unable to remem- ber rules from day to day, such as basic rules respecting centering of trademarks or lining up of logos. Gallarello would write detailed memos about the mistakes which Magied would review with Pryce, but it did no good. 16 An employer's animus, its knowledge of an employee's activity in support of a union and its timing of the discharge "all argue powerfully for finding a violation Nevertheless, these factors would not sustain a finding of unlawful motivation if the Respondent came forward with a convincing explanation for its conduct " Sentry Investigation Corp, 249 NLRB 926, 927 (1980) 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leonti spoke to Pryce on June 4, 1981, pursuant to a memo from Gallarello about Pryce's errors in page makeup, which were serious because they were "on a sensitive page." The mistakes displayed obvious careless- ness, such as putting bell logos upside down. In this con- ference, at which Magied was present, Leonti showed Pryce Gallarello's memorandum, and testified that Pryce promised improvement. On this occasion, Pryce com- plained that Magied talked down to him about his errors, thus conceding that such occasions were necessary with some frequency. On June 9, Gallarello brought a collection of new errors into a conference which he had with Pryce, in Leonti's presence, on the night shift. Gallarello told Pryce that he was taking a personal interest since Pryce would be working directly under him when the night shift was terminated and he joined the day staff. Gallar- ello testified that Pryce remarked, "Why bother, I know you're building a case against me." Gallarello denied that and persisted in reviewing the errors with Pryce. Leonti testified that Pryce "just sat there with a grin on his face." Pryce attributed the errors to bad eyes, bad light- ing, and Magied's manner of speaking to him which he said took his mind off his work Gallarello put him on notice that failure to show improvement in the next 2 weeks would result in termination of employment. Pryce's response to that was that he should have been fired 4 months previously. The conference ended with Pryce being given a repeat warning and promising to do his best. Gallarello testified that he found no improvement in Pryce's work after Pryce began working days, and he terminated him on July 2. Though Pryce denied ever being told that he was on probation, I credit Gallarello's testimony that he put him on notice and terminated him because his work failed to improve 2. Denis Henry The General Counsel's contention with respect to Denis Henry, who worked for the Respondent from No- vember 19, 1979, until his discharge on August 14, 1981, is that he was terminated because he sought to leave work that day in order to testify in Mulrain's unemploy- ment insurance hearing at the New York State Depart- ment of Labor and because of his support of Local 51. According to Henry, he received a subpoena on August 13 and advised Frank Schilero, the input depart- ment supervisor, as soon as he arrived for work on August 14. The hearing was scheduled for 10.15 a.m. that very day. Henry testified that Schilero simply told him to check with him at breaktime, which was 9:45 a.m. and, when Henry did so, Schilero told him he was fired, and said that he had to let Henry go, and something about getting a lot of pressure and something about watching his work. Henry's quotation of Schilero's re- marks is extremely vague and he admitted difficulty in remembering, but he was sure that Schilero told him he did not know why he was being fired. The last remark apparently did not prompt Henry to ask Schilero what it was about his work that he was watching, an omission which casts doubt upon his version of the conversation Henry testified that he had signed a union card on May 27 and actively solicited signatures on cards from at least four other employees He had met the Union's busi- ness agent in late April or early May in a meeting attend- ed by Mulrain, Selden, Cox, and Creary, at which union- ization of Volt had been the topic. He attended four meetings in this period. He disclosed the fact that he had attended a union meeting to Cedric Brown, whom he had known for a long time. (The complaint originally al- leged that Brown was an agent of management, but this allegation was withdrawn during the hearing ) The foregoing is the substance of Henry's entire case against the Respondent. He failed in any way to show that the Respondent had knowledge or reason to know of his union activities. 17 In addition, he testified that Schilero had told him in advance that he, Schilero, would oversee his work for a period of 1 week, thus conceding that he had received a warning with a dead- line for improvement of his work. His testimony in this regard, of course, seriously undermines his contention that he was fired on August 14 for wanting to testify at a hearing on that day In fact, on August 27, 1981, he testi- fied at the New York State Labor Department in the Mulrain hearing that Schilero had told him he was being fired because his work was falling off. Also, he testified that the meeting he told Cedric Brown about was a pub- licized meeting, a notice having been posted and every- body having been aware that it was to be held. At that point in time the Union was openly and publicly distrib- uting literature and soliciting membership through letters and leaflets and Mulrain and the business agent were making distribution in front of the building. Finally, he conceded that he had known for several days before August 14 that he would be subpoenaed to testify, but waited until that very morning to advise Schilero. The Respondent put in testimony by Frank Schilero, the supervisor of the input department, which typesets ads that come in from the selling agents, by a computer- ized process; Barbara Boynton, the supervisor of proof- reading and page quality control; and Philippe Barou- lette, a lead in Schilero's department. They testified to the following history- Henry had acquired approximately a year's experience on the Harris machine while he was on the night shift. When the night shift was eliminated on June 15, 1981, he was given a position in the input department on a data speed machine, since all of the 10 Harris machines were being used by day-shift employees. A data speed ma- chine is similar to a word processor. It is connected to a computer. The ad is typed on a keyboard, reflected on a screen, and stored on a computer disk in the computer room. A Harris machine is a videographic machine 17 In Hillside Bus Corp, 262 NLRB 1254 (1982), the Board comment- ed "However, in assessing whether a prima facie case has been presented, an administrative law judge must view the General Counsel's evidence in isolation, apart from the respondent's proffered defense It is only after the General Counsel's prima facie requirement has been met that an ad- ministrative law judge must consider the respondent 's defense " Never- theless, I am presenting a brief summary of the Respondent's defense be- cause I believe the facts adduced in support of such defense are disposi- tive of the issues even if a prima facie case is deemed to have been estab- lished VOLT INFORMATION SCIENCES which sets the type The Harris operators have the re- sponsibility for retrieving the ad, assigning point sizes, and setting the layout of the ad. The work is then for- warded to the proofreading department. Henry worked on a data speed machine from June 15 to July 27, when a Harris machine became available for him to work on. Since the proofreaders are the first to see the ads after the Harris machine operators make the copy layout, Henry's work product soon came to Boynton's attention because of the frequency of his errors, which included failure to follow the specifications for the ads Boynton called Schilero's attention to the matter and began sup- plying him with examples of the errors. On August 7, Schilero sat down with Henry and re- viewed the errors which had been collected to that date. He told him that his work was of poor quality and was not up to par, and that it would be watched for 1 week; he would be on probation According to Schilero, Henry denied making some of the mistakes but, as to the rest, admitted he had been careless During the ensuing week, Schilero caught more mistakes, which he showed to Henry, and on August 12 received a memorandum from Boynton with another batch of photocopies of errors her department had picked up. On August 14, when Henry came to his desk during the morning break, he showed him the corrections that he had accumulated from the time he had put him on probation until then. They went over the corrections, and Schilero terminated him. According to Henry, August 7 was the only time his work was criticized and the mistakes pointed out to him were typographical errors. However, the exhibits in evi- dence indicate mistakes of a more substantial nature and Henry appears to have been put on plenty of notice that his work was deficient. Baroulette testified to two con- versations, prior to August, in which Schilero told Henry to see him or Baroulette if he needed any help and warned him about the quality of the work. (Barou- lette quotes Henry as telling Schilero he knew his job.) According to Schilero, Henry was fired, not so much for the number of mistakes he was making, as for the type of mistakes. The Respondent's defense is not without its trouble- some aspects. During the year in which Henry worked on the Harris machine on the night shift, there appear to have been no complaints that his work was unsatisfac- tory; in fact, Henry testified without contradiction that Leonti told him that they were proud of him, he should keep up the good work, and he would be getting a raise. He received two raises The Respondent concedes that it was only from the date he began working on the Harris machine in the daytime operation that his work proved unsatisfactory. 18 In addition, on the morning of August 14, something peculiar happened. Baroulette usually acted as a witness when Schilero fired somebody, and Schilero testified that he made his decision to fire Henry on August 12. Yet, on the morning of August 14, Barou- lette put work on Henry's desk, obviously unaware of the imminent dismissal. 18 The Respondent's posthearing br 96 315 However, there are facts in evidence which, I think, adequately account for the phenomenon of Henry's seemingly sudden disfavor. The most important is that his work came to Boynton's personal attention, because the proofreaders started to talk about him. What oc- curred was not the result of either a sudden change in the quality of Henry's work or in the Respondent's atti- tude The proofreaders had been mentioning for some time that when a particular person named Henry worked on material, there were errors, and she had begun col- lecting samples. The June period is when the Suffolk County book is prepared, and in such busy periods she usually proofreads some ads herself. She therefore picked up some of the mistakes herself. When she called Schi- lero's attention to them, and he asked her to look out for more errors, she began a conscientious watch In short, Henry's work was getting concentrated attention from the supervisors, which it had not received before that time. The errors shown by Boynton to Schilero centered around the last week in July and the first week in August 1981 because by that time Boynton was on the lookout for mistakes by Henry. Another noteworthy fact is that, notwithstanding his experience on the Harris machine, Henry originally ap- pears to have resisted assignment to it when he was asked to work on one temporarily to replace an ill em- ployee on June 19. Baroulette had to take him to see Terry Muccio, who ordered him to move to the Harris machine. Henry testified that he was merely questioning Baroulette's authority to give him such an order, but one would have expected him to be delighted with the op- portunity to do his principal work on the day shift. Schilero denied having said anything to Henry about having been placed under pressure, and it does seem to me to be unlikely that a responsible supervisor, which is the impression I had of Schilero, would make such a dis- closure to an employee. Schilero denied any knowledge of Henry's union activity, and there is no evidence which would indicate that he had reason to know of it. Henry testified that he believed his activities were not known to the Respondent, for he did not think he had ever been seen performing any activities on behalf of the Union and did not recall any member of management ever saying anything to anybody about the Union Card collecting was an activity which all of the activists did their utmost to keep secret, even after the Respondent sent out a letter to the employees referring to the receipt of a telegram from the Union, thus indicating its knowl- edge that the Union was on the scene The General Counsel's case rests on no substantial evi- dence, and relies chiefly on the fact that there apparently arose with great suddenness dissatisfaction with Henry's work. The foregoing review indicates that the sudden- ness was more apparent than real, amounting more to sudden awareness rather than a change either in the qual- ity of the work or in the Respondent's attitude toward Henry. Such difficulties as exist in the Respondent's case are heavily outweighed by the profusion of serious errors which Henry made Accordingly, I find that Henry was not discharged by reason of having absented himself to testify at Mulrain's 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing or by reason of his union activity, but because his work was unsatisfactory. 3. Edgar Torres Edgar Torres was employed by the Respondent from April 9, 1979, to August 18, 1981. He worked on the night shift until June 15, 1981, and then was absorbed into the regular daytime operation On both shifts he worked in ad quality control, checking the ads against the original layout sheets supplied by the customer. His review was the final in-house check of the ad before it was sent out for the customer's approval. Leonti testified that staff of ad quality control and proofreaders are directed to read the name, address, and telephone number in the ad at least twice, for an error in any one of those items when the ad is printed entitles the customer to a complete refund of the cost of the adver- tisement. Manifestly, if the advertisement appears in the book looking other than as it was written on the copy layout sheet, Volt is responsible. It was Torres' job to compare the two and catch any discrepancies. New York Telephone sends Volt a quarterly report showing the errors that are considered Volt's fault. Torres reported directly to Phil Leonti. Leonti checked Torres' work and advised him of errors. Torres admitted to being advised of errors by Leonti at the rate of one a month throughout 1980, but the Respondent's witnesses testified to many more errors. It was necessary for Leonti to give him a succession of warnings. Torres admitted that, when he first started to proofread, and was just getting acquainted with the work, he received oral warnings about the quality of his work; he further admitted receiving periodic warnings, fixing the times vaguely at approximately every 2, 3, or 4 months there- after. The last warning given to him before his discharge was in writing and was given to him in the course of a conference which he had with Leonti on May 5. Four errors were exhibited to him, which he agreed were his mistakes. Leonti told him that, if he continued making errors, they would have to terminate him The confer- ence took place on May 5 because on that day Volt had received a quarterly error report from New York Tele- phone Of the total of six errors reported, four were the ones exhibited to Torres, which he conceded were his. They all involved critical items such as names, addresses, and telephone numbers. The July quarterly report was received in August, and Torres was again responsible for a very high percentage of the errors listed, involving errors in the advertisers' names, addresses, and telephone numbers and a typo- graphical error in the text of an advertisement. The errors had been made before June 15, but at the time the report was received the night shift had already, of course, been abolished and Torres was working in ad quality control directly under its supervisor, Richard O'Connor. It was O'Connor who made the decision to terminate Torres. He and Leonti showed Torres the errors and he conceded having made them. About three or four mistakes were involved, and they told Torres that they had to let him go because his work was under par. It is to be noted that these errors were not excusable either by reason of the work volume, which Torres han- dled, or the fact that once he passed an advertisement through, there still existed opportunity for the advertiser to spot an error The idea that persons who do more work may make more errors and thus account for a higher percentage of the total number of errors is not pertinent because, according to Leonti, it was empha- sized to employees that they not try to put volume in, but concentrate on making sure the ads were correct. According to Leonti, the employees are expressly told to take their time. The emphasis is on accuracy. It was apparent to me from Torres' testimony on cross-examination that his mastery of the job was less than complete. He was not sure of the system by which New York Telephone reported complaints from its cus- tomers and did not remember hearing at any time of quarterly error reports though he had to have known that there existed a device by which errors in the pub- lished advertisements were reported, even if Leonti had not shown it to him. He did not know anything about claims, settlements, or refunds. He did not know what an advertising claim settlement sheet contained. While such matters are beyond the scope of his job responsibilities, his lack of information respecting them indicates a lack of awareness on his part of the nature and importance of the duties which he was hired to perform, despite coun- seling and warnings by Leonti over an extensive period of time. As of May 5, Torres had not yet signed a union card, though he had discussed it with Mulrain in March. He testified that he signed a union card at his work station on May 21, but never engaged in any activity on behalf of the Union. Leonti denied any knowledge of union ac- tivities on the part of Torres at the time of his discharge and no testimony elicited from O'Connor touched upon the question of whether he had any knowledge, although there is evidence that he was without knowledge at the time of a meeting which he had with Epstein and Muccio to obtain their approval for Torres' discharge. There is no evidence from which I can infer that the Respondent (a) had knowledge that Torres was a union member or that he was engaging in any union activity and (b) that the Respondent dismissed him because of it. All that has been proved is that Torres, a union member whose activity was nil , was fired 2 weeks before the rep- resentation election. While the timing of a discharge can have great significance when it is related to other cir- cumstances, such as proven animus or other concurrent commission of other unfair labor practices, by itself it is insufficient to support an inference that the discharge was on account of the employee's union membership. On the other hand, there is substantial evidence, in- cluding the documentation of the errors, to support the Respondent's position that Torres was discharged be- cause of poor work performance.' 9 As is noted above, Torres' own testimony is studded with admissions of warnings received from management . Richard O'Connor, a highly credible witness, testified that while the night 19 See in 17 VOLT INFORMATION SCIENCES shift was in existence, Torres and another employee were the only ones making mistakes with any frequency; he spoke to both of them and found that the other employ- ee's performance improved but not Torres' work. The only time his work was ever passable was while he was in training, once he was on his own, Brenda Richardson, a lead, began spotting errors right away There were at least 10 errors per month He caught 20 in May and as- sumes there were others O'Connor testified that he de- cided to allow Torres a period of 5 months to straighten out, because he was a long-time employee doing new work He directed Leonti to work with Torres When the quarterly error report for May arrived, he directed Leonti to warn Torres that failure to improve would lead to termination. From then until June 15, he person- ally monitored Torres' work and found that the same mistakes were continuing to be made. After Torres was brought into the daytime operation, the July quarterly report, received in August, showed more errors. (These were errors that had slipped through; Torres had ac- knowledged responsibility for other errors that had been caught in-house) Accordingly, in consultation with Ep- stein and Muccio, a decision was made to fire him. O'Connor asserts that at that time he had no knowledge regarding Torres' union affiliation. I am not unmindful of certain deficiencies in the Re- spondent's presentation, but I think they relate to debata- ble points.20 The evidence of numerous serious mistakes and of frequent warnings, beginning at a date long before the discharge and the credible testimony that these were the sole reasons for the discharge require me to sustain the Respondent's defense. 4 Gregory Waite The overwhelming weight of the evidence clearly es- tablishes that the discharge of Gregory Waite was occa- sioned by his well-documented record of excessive tardi- ness and unjustified absences, regarding which he had been given numerous warnings during 1980 and 1981 and while he was on both the day and night shifts. Reference has already been made to a brochure routinely distribut- ed to new employees, which stressed the importance of punctual attendance as a matter of company policy ("ex- cessive absences may lead to suspension or termination") and to the fact that that policy had been enforced. Waite began working for the Respondent in the pro- duction department, on the night shift, on May 7, 1979. 20 The testimony of the Respondent's witnesses raises questions as to why a high rate of errors was permitted for an inordinately long trial period, why Torres was taken into the daytime operation after a poor night-shift track record, why he was not given more training or a differ- ent job, and the differences in evaluation by Leonti and O'Connor These are debatable points and there are plausible answers to all of them, re- garding which evidence is in the record O'Connor , as supervisor, was in a better position than Leonti, as overall night-shift manager, to observe Torres' performance and compare it with that of other employees As to excessive tolerance, this tribunal cannot substitute its judgment for that of the Employer, it can only determine whether the end of that tolerance, reached 2 weeks before the election, betrayed an unlawful motive While a question of timing is raised, it has been held that failure to discharge when earlier opportunities to do so existed weakens the contention that when discharge finally occurs it was for an antiunion motive See General Motors Corp, 243 NLRB 614, 618 (1979) (employee's poor attendance continued after counseling) 317 He was fired by the department supervisor, George Gal- larello, on August 25, 1981, for lateness and poor attend- ance. Gallarello testified that he had decided to terminate Waite on August 17 and that at the time he actually fired him he had before him a summary of Waite's attedance record, which be showed to Waite He knew from per- sonal observation that Waite was frequently absent when he worked on the night shift. The summary which he showed Waite (in evidence as R. Exh 11) is a memo dated August 24 from Gallarello to Epstein, setting forth in tabular form figures showing that out of 158 working days, from January into August, and covering Waite's performance on both the night shift and the day shift, he was on time a total of only 47 days, fairly evenly divided between occasions when he made it into the office within a permissible grace period of 12 minutes-estab- lished by company policy and occasions when he was late beyond the grace period. He was absent 17 days during this same period There is no reason to doubt the authenticity or the correctness of the attendance records, especially since Waite's own testimony largely confirms the extent of his lateness and absences. Of course Waite lacked recollec- tion of specific figures and was vague about the details. For example Waite was not at all sure that he had actu- ally been late to work 22 times and absent 3 times in the 30 days prior to being given a written warning by Leonti on May 15, 1981, but he remembered giving reasons for his lateness in discussions with Gallarello. His failure to recollect is surprising in view of the Respondent's con- ceded policy of docking workers who were late more than 12 minutes. Gallarello testified that the purpose of the grace period was not to place a stamp of approval on lateness, but to save employees who came in within a few minutes of the proper starting time from being docked. There was testimony that the practice was not to look at the grace period too closely but, when it was abused by an employee, to remind him that lateness is not acceptable. Waite, by his own admission , had many latenesses beyond the grace period and received many reminders. His testimony and that of Gallarello are basi- cally in agreement that he was given numerous warnings. He testified that in February, Leonti told him that bad attendance would result in a verbal warning, then a writ- ten warning, and then suspension; and if attendance still did not improve, termination Waite admitted that Gior- dano had explained this to him as long ago as 1979.2 t He also conceded that on another occasion, which he could not place chronologically, Gallarello reprimanded him for being away from his work station for 45 minutes and told him that he would be fired if his lateness continued. Gallarello had also had a serious talk with him in early August, when he tried to blame his lateness on a subway problem. 21 This testimony was adduced in the course of an attempt by the General Counsel to prove that Waite should have been entitled to a sus- pension before being discharged The Respondent's supervisors testified that it was not the practice to suspend for lateness or excessive absence and there is no evidence in the record which refutes their testimony re- specting company practice or establishes disparate treatment 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waite was well aware of the seriousness with which the Respondent viewed his inability to come in on time regularly, for his excessive tardiness on the night shift had actually blocked a transfer which he had wanted to arrange to the day shift. He admitted that Leonti's first reaction when the idea was initially mentioned to him was that he would not recommend it until Waite was able to improve his attendance record. At one time, Waite was a lead in the production department on the night shift and had to give up the position because he could not get in on time. Waite candidly testified that he thought to himself on that occasion that if good attend- ance was important for a lead, then he would have to forget about being a lead . In 1980, he and Leonti experi- mented with a change of night-shift hours for a month, in spite of which he came in late several times and, in his testimony, purported to be unable to remember if he had not also been absent a couple of times as well. On May 15, Leonti handed him a memo which, by its own terms, was stated to constitute a "final warning" and asked him to acknowledge receipt of a copy of it by signing it. Waite refused to do so. With the abolition of the night shift on June 15, Waite was transferred to the day shift where he worked direct- ly under George Gallarello. It only took about a week for Gallarello to find it necessary to give him an oral warning. While Waite's recollection was poor respecting a number of things he was asked about at the hearing, he remembered telling Gallarello the reasons why he was late and he remembered Gallarello telling him that he would have to let him go if he did not make an effort to be on time. Waite also conceded that he had another talk with George Gallarello about lateness around July 2, when he came in late and gave an excuse to Gallarello that he had some problem with the lock on his apartment door. Gallarello responded sympathetically but neverthe- less warned him, according to Waite's own testimony, that if he could not improve his attendance he would be discharged. Despite the warning in July, Waite was absent for sev- eral days in August. The circumstances of these absences were such that Gallarello appears to have been skeptical regarding the plea of illness advanced to justify her latest absences. On August 13, Waite's wife, Diana Welcome, telephoned to advise that Waite would be out because of stomach pains. Nevertheless, he came in a 1 p.m. that day and went to work. (He testified he did not work ef- fectively.) He was paid for the day. The following day, which was Friday, August 14, he was absent again. Diana Welcome again telephoned and reported that Waite could not come to work because he was suffering unbearable stomach pains . Waite did not consult a physi- cian. Gallarello testified that on August 17 he decided to fire Waite and he actually did so on August 25 Waite testified that Gallerello gave as the reason for termina- tion the fact that Gallarello did not believe he had been sick, but Waite conceded that Gallarello also mentioned his attendance record, cited Waite's failure to try to im- prove it,22 and reminded him of the warnings. Gallarello testified that on this occasion he showed Waite his record, presented him with the attendance sheet, and they talked but neither of them made any mention of union activities by Waite. Waite in his own testimony did not contend that there was any discussion along that line. Gallarello insisted in his testimony that at the time he discharged Waite he had no knowledge or information of any union activity by Waite and did not know that Waite had signed a union card. There is no credible evi- dence contradicting this denial. There is no evidence which satisfactorily establishes, on the part of any of the Respondent's responsible personnel, any knowledge of Waite's union activity and there is certainly no evidence which links such activities to his discharge. To be sure Waite attempted to link his discharge to his union activi- ties. The extent of Waite's union activity in 1981 amount- ed to giving out union cards to several of the employees, speaking to them about the bad working conditions, and what the Union probably could do for them, and hand- ing out some leaflets. The evidence that any of this came to the attention of the Respondent consisted entirely of Waite's speculation that he may have been seen engaging in this activity. He was asked whether, to his knowledge, supervisors employed by Volt saw him performing any of these activities. His affirmative response was based on an occasion when he was giving or receiving a card from another employee named Sherril Selden. Waite fixed the time of this occurrence as around May 20, 1981. He testified as follows: "Luqman Magied came over at the time, and I feel he saw me . . . . He didn't say anything to me, but he looked at me, and when he looked at me, I said, I feel he saw me because of the way he looked at me and he caught me right in the act." Waite further testified, regarding this incident, that Selden had failed to cover the union cards, "and that's when I looked up and I saw them and he saw me and he gave me that look." Waite's testimony as to what he believes somebody else saw or meant by a look is pure speculation. There is no evidence that Magied actually saw the card, that he recognized the cards as union authorization cards, that he appreciated the nature of the transaction between Waite and Selden, or that his look had the significance ascribed to it by Waite.23 Waite's efforts to connect his minimal union activi- ties24 to his discharge is especially unconvincing in the 22 See General Motors Corp, 243 NLRB 614, 618 (1979), for a similar situation in which an employee continued a record of poor attendance despite counseling 23 It has been stated in a similar situation involving minimal union ac- tivity, in which union sympathies were concealed from management, that an inference of knowledge on the part of the employer would be strained The employee's poor attendance record was held to support the Employer's contention that it was not motivated by union animus Keller Mfg Co, 237 NLRB 712 (1978), 106 LRRM 2546 (7th Or 1980) (enfd in part and denied in part , no published opinion) 24 In Micro Met! Corp, 257 NLRB 274, 279 (1981), an employee was fired for excessive absenteeism , after warnings, and discharge was held lawful on finding that evidence was lacking that the discharge was based on the employee's minimal union activities VOLT INFORMATION SCIENCES face of the numerous warnings he received throughout almost the entire period of his employment and certainly before the time of the supposed discovery of his activi- ties He received a written "final warning" from Leonti 5 days before the incident with Magied. Furthermore, not- withstanding the supposed discovery of his union in- volvement around May 20, he was not fired for another 3 months, a circumstance which he makes no effort to explain. An explanation is in order, for the Respondent knew during that entire period that a union was active among its employees, had consulted its counsel, and had to have recognized that an election might be held.25 It could have got rid of Waite right away instead of wait- ing until mid-August. Another thing which Waite did not explain was the fact that he signed a union card immediately after receiv- ing the "final warning" on May 15, 1981. That day was a Friday. Waite signed a union card on the following Monday, May 18. We may ponder whether a linkage be- tween these two events ought not to be recognized in view of their closeness in time. In view of the foregoing, I conclude that it has not been proved that the discharge of Gregory Waite was the result of his union activities and was an attempt on the part of the Respondent to discharge an employee be- cause of union activity. His discharge did not constitute an unfair labor practice under the Act. 5. Diana Welcome There is no dispute respecting the inception of Diana Welcome's maternity leave. She applied, by written memorandum dated March 2, 1981, addressed to Philip Leonti, the night manager, for leave, from March 9 to September 1. The application was granted. There is also no dispute that at the time of her application, Welcome was familiar with the Respondent's policy respecting ma- ternity leave: employees who did not return on their scheduled return dates were presumed to have quit. Ex- tensions could be applied for before or on the return date, and there appears to be some verifiable history of such extensions having been granted in cases in which extensions were requested. There was uncontroverted testimony that the actual policy of Volt was to permit a maximum of 3 months' maternity leave, but that Epstein was allowing up to 6 months' leave on condition that employees be certain to return when they were supposed to. Therefore that was the ongoing policy insofar as the employees of the Yellow Pages Project were concerned. Consequently, the fact that Welcome made no applica- tion at any time, to anybody, for an extension of time be- comes extremely important. In his posthearing brief, the General Counsel states that Welcome telephoned Schi- lero, who was then her supervisor, "to tell him she was 25 In Genera! Motors Corp, 243 NLRB 614 (1979), respondent's dis- charge of an employee who failed to respond to counseling concerning his absences and latenesses was upheld because the supervisor who dis- missed him did not know of his union activities though the Respondent did Thus, even had the General Counsel established that Waite's activi- ties had come to the attention of the Respondent, it would have been in- sufficient, inasmuch as I credit Gallarello's testimony that he had no knowledge of his union activities 319 extending her maternity leave another week to the full six months she was entitled to." (Emphasis added.) 26 It may be noted at this point that she was not entitled to 6 months; that period was the maximum allowable extent of one maternity leave; she was entitled to the period she had requested and had been authorized to take. Schi- lero's response is a matter of sharp dispute. According to Welcome's testimony, she telephoned Schilero on Sep- tember 1 and told him that, the memorandum notwith- standing, she would return on September 7 (not remem- bering that that was Labor Day); in her very next state- ment she asserted she told him she would be in on Sep- tember 9, having been given permission by Leonti to return on that date because her leave began on March 9. She asked Schilero what time she should report for work and he told her to come in at 8:30 a.m. On September 3 she came in to vote in the representation election. After small talk with Schilero, she went in to vote. She was told by Rocco Summa that her vote was going to be challenged because she was terminated. Schilero had said nothing to her about that. When she reported for work on Tuesday, September 8, she was not allowed into the office. She testified she had forgotten her identification and had called Schilero, who came down to the security desk and told her that she had been terminated as of Sep- tember for overstaying her leave. It seems to me that Welcome tells an improbable story, rife with contradictions and ambiguities. She testified that she told Schilero that she would return to work on September 7, which was Labor Day, but nothing is said about Schilero's reaction. In the same conversation, she testified she told Schilero that Leonti had told her she had until September 9, the end of the 6-month maternity leave period. She actually came in to report for work on Tuesday, September 8. Her confused working plans get her story off to a poor start, especially since there was no need for her to call at all on September 1 if she was due back on a later date. Her inquiry about what time to report to work does not enhance the credibility of her story. Assuming that she had never, during the time she worked on the night shift, heard what hours the day sec- tion worked, and assuming that her husband never told her, I think she must have known what hours her hus- band, Gregory Waite, was supposed to work. Despite his enormous indifference to punctuality, which ultimately cost him his job, the evidence shows that he knew what hours he was supposed to be at work and that he actual- ly arrived at work on time sufficiently often to permit an inference that his wife must have become familiar with the day-shift working hours. Then again, she referred in her testimony to the additional time as an "extra week" and said she needed it because she was having trouble getting a baby sitter. This would imply that her original intention had been to return to work on September 1. In any event, she said nothing about that in her telephone conversation with Schilero Also, I find her conduct on September 3 somewhat strange, if her story is taken liter- ally. She came into the office on September 3 to vote at a union election and was told that her ballot was being 26 G C Posthearing Br, p 7 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD challenged because she was terminated. She had no curi- osity as to the reason, she does not claim she asked, and was not told, or asked and was given a false reason. She was not shocked, dumbfounded, or outraged She did not object, but instead accepted the news of the challenge imperturbably and without curiosity. Thus, I find it necessary to discredit Welcome's ver- sion of the events of her alleged discharge I found Schi- lero a credible witness, not at all confused about the events in question, whose testimony was corroborated by another witness. I was impressed by the fact that Ep- stein's list of ineligible voters, consisting of the names of employees who had been terminated, contained Wel- come's name, since that list was necessarily prepared prior to September 3 and indicates that she was consid- ered terminated before that date, to wit: on September 1. Schilero testified that when he received Welcome's telephone call, he pointedly told her that he was going by the memorandum in the file and that she would be deemed to have quit if she did not return on the stipulat- ed date. He would check with Leonti and honor any ex- tension he had given her and call her back to tell her that the time was extended; if Leonti did not back her up, he would consider her terminated as of September 1. His half of the telephone conversation was overheard by Philippe Baroulette, the lead. Baroulette knew Schilero was talking to Welcome because he picked up the tele- phone when her call came in and knew her voice. Schilero testified that Leonti had no recollection of having been asked for an extension by Welcome or of having granted her one. They checked her file together and found no extension.27 Inasmuch as Welcome herself terminated her employ- ment by failing to return on time, and inasmuch as the Respondent had the right to insist upon the precise per- formance of the terms and conditions of her maternity leave, 28 I find that the Respondent did not discriminate against her with respect to hiring or tenure. Even if I be- lieved that the Respondent was glad to be rid of a union supporter, the Act does not extend to such desiderata but only to acts or omissions in violation of the Act's objec- tives There is no basis for a finding that she was fired for any reason except that advanced by the Respondent. Accordingly, I find that the Respondent did not dis- charge Welcome because of her union activities or mem- bership, as alleged, and in fact did not discharge her at all, and has committed no violation of the Act with re- spect to her. 27 An attempt was made to impeach Schilero's credibility by the testi- mony of a former employee, Cheryl Ryan, who had been one of Scht- lero's leads, to the effect that around the date of the election she men- tioned to Schilero that she had heard that Welcome was returning the Monday after the election She quoted Schilero as saying, "No, she's not I'm going to fire her" She also quoted him as saying, "We don't want that kind" around in the office Existence of union animus is not an essen- tial inference from these remarks, which are consistent with the proven facts of the case and his own testimony The conversation is fixed in time as occurring after September 1, the date of his telephone conversation with her He had said that so far as he was concerned, she was terminat- ed as of then The reference to that kind" can as easily be deemed refer- able to indifferent employees as to anything else Its interpretation is a matter of pure speculation In any event, Schilero denied making the remark 28 American Motors Corp, 206 NLRB 287, 291 (1973) IV THE ALLEGED VIOLATIONS OF SECTION 8(A)(1) A. Curtailment of Use of Bulletin Board The complaint alleges that around April 1981 Local 51 commenced an organizational campaign among the Re- spondent's employees The earliest date on which the Respondent concedes knowledge of it is May 19. It is further alleged that about May 6, 1981, the Respondent, acting through Terry Muccio, promulgated the following rule: Effective immediately, no one will be allowed to hang anything on the bulletin boards over the punch clock without my permission. Muccio testified that on May 4 she found an obscene piece of literature entitled "Liberating Masturbation" posted on the bulletin board at the timeclock. With Ep- stein's permission, she issued the notice prohibiting post- ings without her permission The literature in question is in evidence and there is no dispute about the impropriety of posting such material in a conspicuous location in a place of business. There is no evidence which would tend to establish that the motivation for the restriction was to interfere with rights of employees under Section 7 of the Act, or that the object was any purpose other than to keep im- proper material off a conspicuously positioned bulletin board. The credible evidence establishes that the restric- tion was imposed prior to the time the Respondent had knowledge that union organizational activity was taking place. There was evidence that subsequently Magied re- moved a copy of Section 7 of the Act which had been posted, and the parties have debated whether this was permissible because of alterations in the form used; there is no debate, however, over the fact that Pryce posted and distributed copies of a notice of a union meeting without interference, nor over the fact that a number of other bulletin boards remained available in the premises for the unrestricted use of the employees. Under these circumstances, I find that the rule promul- gated by Muccio was not a violation of the Act. B. Interrogation by Robert Epstein The complaint alleges that about August 27, 1981, the Respondent, acting through Robert Epstein, at its facility interrogated its employees regarding their membership, activities, and sympathies in and on behalf of Local 51. Only one employee, Sheila Copper, testified with re- spect to such interrogation, and her testimony was limit- ed to a conversation between herself and Epstein. She conceded that she did not hear what he said to any other employee. She testified to the following effect: Q. Tell us what Mr. Epstein said to you when he came over to you. A. Hello. He asked me how did I feel working at Volt and I told him it was okay and then he asked, he started speaking and then he asked me how did I feel, oh, no, he said that there wasn't need, he was VOLT INFORMATION SCIENCES saying something about there wasn't a need for the union to come in because we were doing fine as we were, and he asked me about it. And I said I didn't have any comment, and that was that. A less coercive conversation would be hard to imag- ine, and in the absence of any element of coercion the conversation cannot be held to violate the Act, for "[a] noncoercive statement under noncoercive circumstances is not unlawful."29 This is especially true if the conver- sation is an isolated incident 30 Conversations which are "merely discussions over the pros and cons of unionism . . . cannot be construed as an interrogation.,' 31 In Blue Flash Express, 109 NLRB 591 (1954), in hold- ing lawful an inquiry which occurred in a background free of coercion and which contained no threat or prom- ise, the Board stated- [I]nterrogation of employees by an employer as to such matters as their union membership or union ac- tivities, which, when viewed in the context in which the interrogation occurred, falls short of in- terference or coercion, is not unlawful. .. . We hereby repudiate the notion that interroga- tion per se is unlawful. . . . In our view, the test is whether, under all the cir- cumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exer- cise of rights guaranteed by the Act 32 C. Threat to Employees The complaint alleges that about June 10, 1981, the Respondent, acting through Luqman Magied, at its facili- ty, threatened its employees with unspecified reprisals because of their activities in Local 51. The allegation is based on testimony by Josh Pryce as follows: Q. And where did you speak to Curtis Thomas? A. Well, Curtis sits right next to me, and we were talking about the Union, and we were talking about that we would really have to convince a lot of people to get into the Union, and that if-we were talking about the benefits, and how comforta- ble it would be, and Luqman sits behind us, and sometimes we would forget that he's there, and I remember when we had that conversation, Luqman interrupted and he said to me "Boy, you really are trying to commit suicide." The testimony sounded plausible to me, quoting a nat- ural colloquiallism as Magied's reaction. There is no ap- parent reason to disbelieve Pryce on this point, especially since, had he wanted to fabricate a story, I am sure he 29 Flint Provision Co, 219 NLRB 523 (1975), Georgia Highway Express, 170 NLRB 1335, 1337 (1968) ("He asked us what our gripes was, what we had to complain about and what the trouble was"-held not coercive interrogation ) 30 Complas Industries, 255 NLRB 1416 (1981) 31 Howard Aero, 119 NLRB 1531, 1533 (1958) 32 109 NLRB at 593 321 could have done much better As it is, I think the quoted remark falls into that class of ambiguous statements which have been held not to be threats because they are too ambiguous to compel the listener to conclude that re- prisal will be the consequence of continued activity on behalf of a union 33 The statement is not coercive. Accordingly, I find no violation of the Act in this re- spect. D. The Reprimand, Suspension, and Discharge of John Mulrain John Mulrain started working for Volt in May 1978 and at the hearing the Respondent's counsel conceded that his work was excellent and that he had received pay raises during the period of his employment He was head gridder on the night shift in the production department. As a gridder, it was his function to plan and design the pages As will be explained below, he transferred to the day shift effective May 11 and he survived there exactly 1 day. George Gallarello, the supervisor of the produc- tion department, testified that in his opinion Mulrain was an "average" worker, doing fair work, but he was aware that "everybody was saying that he was doing good work." Philip Leonti's evaluation was that Mulrain was a good worker. The Respondent does not attribute Mulrain's dismissal to any shortcomings in his work performance, but to his lack of proper attitude toward the Company. The com- plaint alleges that he was discharged because in two in- stances he complained to the Respondent about the em- ployees' working conditions and because the Respond- ent, by dismissing Mulrain, sought "to discourage em- ployees from engaging in such activities, or other con- certed activities for the purposes of collective bargaining or other mutual aid or protection " 1. The lighting incident In December 1980, while Mulrain was training Noel Creary, another employee, in the gridding work, Creary complained about the inadequacy of the lighting Creary only spoke to Mulrain about it There is no evidence that any other employee complained to management about the lighting. Nevertheless, a genuine problem existed with respect to the lighting, for Epstein ultimately became involved in order to obtain repair of certain fluo- rescent fixtures by New York Telephone. On the night in question, however, no corrective action was taken until several requests for additional lighting had gone unheed- ed and Mulrain had found it necessary to address the personnel in the production department in a voice loud enough to be heard by everyone in the department. While he was talking, Frank Giordano, a lead who may have had supervisory authority at the time, telephoned 33 The following statement was held "too ambiguous" "You know who is going to pay for this, don't you'i It is going to come out of our profit-sharing." Leggett's Department Store, 137 NLRB 403, 404 (1962) The following statements were deemed too "equivocal" a statement that party felt "stabbed in the back", a comment about organizational activity that, "Whoever started it better make sure what he was doing" Lerner Shops, 91 NLRB 151, 152 fn 4 (1950), and Involex Sales Co, 152 NLRB 773, 775 (1965), respectively 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gallarello at home and was authorized to obtain a lamp from the stockroom for Creary to use This incident occurred on a Friday night when Leonti was not working, and he received a report about it from Giordano the following Monday. He reproached Mulrain for causing a disturbance and Mulratn denied having done so. Leonti testified that Mulrain 's response included a statement that he had "used a mental trick on Frank, I got him to put a light in there." No disciplinary action was taken by the Respondent in connection with this incident. 2. The telephone incident Employees were normally allowed to use the company telephones to make emergency calls and short personal calls. On April 20 the receivers were removed from the telephones to prevent outgoing calls because someone had made 1I unauthorized calls to Kingston, Jamaica. The telephones remained cut off for 2 days while the perpetrator was being tracked down He was identified and terminated and the telephone privileges were re- stored. However, this did not occur before Mulratn had started down the path which the Respondent says led to his dismissal. On the night of April 21, Mulratn delivered tirades in the fifth floor lounge, in the elevator, and in the corridor between the departments in which he excoriated manage- ment for penalizing the employees while permitting what he claimed were gross abuses by supervisory personnel. He asserted that what the Company had done with the telephones was wrong, pointing out that there were em- ployees with medical problems, that employees could not communicate with their families in a crime-ridden city, and that they could not let their families know when they were working overtime. He further asserted that he knew about thefts from management by supervisors and that unless something was done he "would go through a chain " He also declared that supervisory personnel who had themselves punched out by other employees and Luqman Magied's constantly sleeping on the job and harassing people cost the Company more than the phone calls that had been made to Jamaica. He suggested that the employees organize a protest and sign petitions to have the telephones restored. Mulrain testified that he was expounding in this fash- ion when Leonti walked in "and I told him we wanted our rights, and I then reeled off all of their crimes to him and he said something to me like, 'You are trying to make a scene."' Mulratn testified that Leonti then sus- pended him and sent for a telephone company security guard, who came up and escorted Mulrain out of the building. Mulrain testified that as he was going to the el- evator with the guard, "Noel Creary followed me show- ing his solidarity." Leonti's account of the incident portrays Mulrain as belligerent, insubordinate, and disruptive, an impression already implanted in my mind by Mulrain's own testimo- ny. Leonti testified that he encountered Mulrain as he walked through the production department on his way to the conference room. It was between 8:15 and 8:30 p.m. He was in the process of investigating the long-dis- tance calls. Mulrain was standing at his work area, yell- ing, "I want my rights." Leonti asked him to calm down and come into the conference room to talk to him but Mulrain dust kept shouting. He started yelling about the telephone saying that a phone call costs 10Q, then he was yelling that the black man is being punished the way he has been punished throughout history. One black man does something wrong and all are punished for it. Then he went on to talk about-he said, but the white boys they don't get punished. He said something, the white boys in the file rooms snort three pounds of cocaine and nothing happens to them They sell drugs and nothing happens Leontt said that at that point he had really stopped lis- tening to him and was concentrating on what to do about him. He thought Mulrain was shouting loud enough for everyone on that floor to hear, except per- sons in an office which was separated by a closed door. 34 Leonti testified that the first thing he told Mulrain was that he should calm down, that that was no way to solve a problem. He invited him to go into another room to talk Mulrain refused and kept on yelling. Leonti testi- fied: I then told him, John, if you continue this, I have to suspend you for the evening. He didn't pay any attention to me He kept on yelling. I walked up to him, I said, John, please leave, you're suspended for the evening. At that point he refused to leave. I dust went right to my desk, I called up building security, and said, I need a guard up here as soon as possible to remove someone from the premises. Leonti testified that while they were waiting for the guard Mulrain "just kept yelling." He was yelling, now they're going to get someone up here to shoot me be- cause I'm yelling." According to Leonti, Mulrain was staring into space, his hands were raised at times, and he was yelling continuously. The guard came up and was directed by Leonti to escort Mulratn out of the building Mulrain calmed down and assured the guard he would not give him a hard time and they walked out together. Creary, who had been sitting at his work station, got up and followed the guard and Mulrain out to the elevator. Leonti followed them and told Creary that he should stay on the floor, because leaving the floor during working hours could lead to termination as a violation of company policy with respect to leaving the work station during work time. Creary got off the elevator and returned to his work station when Mulrain told him he was all right. 34 Adjacent to the production department is an area in which photoco- pying is done, and the proofreading department is contiguous to it on two other sides The area is divided into three departments by partitions which are 6 feet high, leaving open space between the top of the parti- tions and the ceiling Mulrain's voice was apparently heard throughout the area, for Edgar Torres, whose desk was separated by a distance of 50 feet and two partitions from the spot where Mulrain was standing, came up to Leonti and asked him what it was all about VOLT INFORMATION SCIENCES Creary did not participate in any way in Mulram's out- burst. A period of about 5 minutes appears to have elapsed from the time Leonti joined Mulram until the time Mul- rain got on the elevator According to Leonti, Mulrain did not stop yelling until the guard came up While he was yelling, other employees, including Creary, had stopped working and were staring at him Those who normally were seated with their backs to him turned around to see what was going on. After Mulrain left, conditions quickly returned to normal. Mulrain insisted that he had not spoken loudly enough to be heard in all the departments and asserted that the employees had just returned from their break and had not yet resumed work when he addressed them. At the same time, he suggested that the break might not have been over, though everybody was back at their work sta- tions. It is clear that he went on talking for some time after they got back to their work stations, so it seems highly probable that at some point during his oration the breaktime came to an end, if it had not ended before he started He conceded that he spoke loudly enough to be heard by all of the workers in the production depart- ment Though he denied that he had been yelling, he conceded that persons in the other departments could have heard him speaking without being able to make out what he was saying and that he was speaking in a "strong voice." The extensive testimony respecting the loudness of his voice and who could hear him is actually of relatively little importance, for Mulrain did not dispute the fact that when he came back up in the elevator he did not start work though his break was over, and either kept the other employees from resuming their work or, if they had started, brought their work to a halt His actions were unquestionably disruptive. It is not clear from Mulrain's testimony whether he understood that his suspension was only for one night. He neither came in nor called the following day. Going down in the elevator, Mulrain was asked by the guard about the length of his suspension and he professed not to know. Nevertheless, he returned on April 23 without having telephoned in, so he must have known his suspen- sion was over. Creary's testimony respecting the incident corrobo- rates Leonti's version of it Creary testified that Mulrain addressed the employee body generally and declared that management chose to punish the entire Company for un- authorized calls made by one individual while refusing to punish a supervisor who slept in front of the employees Creary specifically confirmed that Leonti asked Mulrain to go into the conference room with him and called the guard when Mulrain refused to do so. On being advised of the incident by Leonti, Epstein in- structed him to give Muccio a memo about it and to pre- pare a final warning memo to Mulrain and give it to him when he returned to work the following day. The fol- lowing day, April 22, Epstein remained late in order to talk to Mulrain but Mulrain did not report for duty on the night shift He did not call in. He returned to work on the evening of April 23 Leonti presented him with the written warning and told him that such behavior 323 could not be accepted . This was done in Magied 's pres- ence. 3 Mulrain's union activities and the Respondent's knowledge of same Mulrain testified that his interest in unionizing the shop began "probably in December" 1980. By January 1981 he was convinced as a matter of principle that a union was needed. At that time Magied told him the Company was antiunion and he told Magied that Creary had convinced him of the need for a union . According to Mulrain, Magied and he agreed that a union was needed. Mulrain did not meet the business representative of Local 51, John Gurrieri, until the end of April or the be- ginning of May. He filled out a union membership card on May 4 and thereafter saw Gurrieri frequently. He in- troduced Gurrieri to Sal Rada, an employee in the pro- duction department who had been with Volt for about 5 years, and brought a committee from Volt consisting of Creary, Henry, Cheryl Selden, and Paul Cox to the union offices for a discussion as to how they could get a union into Volt. According to Mulrain, attempts were made to keep or- ganizational activity secret. Gurrieri advised secrecy and limitation of activities to breaks and lunch hours, and pe- riods before and after work. However, it is contended that notwithstanding such ef- forts, the Respondent learned of Mulrain's activities. There was testimony that an employee made some re- marks which were overheard by another employee be- lieved to be a spy for management, and that Magied overheard some talk about union activity and remarked that they seemed to be "trying to commit suicide." And, of course, Mulrain asserted that he had general discus- sions about unions with Magied in January.35 If the Respondent had such knowledge, then the timing of Mulrain's discharge is significant In addition, the General Counsel attempted to prove that the Re- spondent believed that Mulrain attempted on May 11 to begin union activity on the day shift and that that affect- ed the timing of his discharge. The General Counsel in- troduced testimony by Mulrain to the effect that on May 11, 1981, during the afternoon break, on the elevator, he gave Sal Rada John Gurrieri's business card, that Rada "understood the secrecy of it right away" and put it in his pocket; that on May 12 he spoke to Rada during a morning break in the fifth floor cafeteria and Rada asked him about the business card; that he told Rada the names of a number of people who were joining with him in or- ganizational activity including Pryce, Torres, Cheryl Selden, Waite, and Curtis Thomas and commented that they had fired Creary already, that Rada had a very neg- ative attitude, suggesting to Mulrain that ultimately the other people would betray him; and that the next day Rada had a conversation with Frank Gallarello, the pro- duction supervisor a' Mulram testified that when Gallarello offered him a transfer to the day section , he assumed management knew he was heading a'umon 'and wanted him out of the night shift 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of course the General Counsel had no proof of what was said between Rada and Gallarello . That is left to speculation Gallarello, in his own testimony , insisted that no matters pertaining to the Union were discussed. Nevertheless, at 2 or 3 o'clock, on that very day, he brought Mulrain from his work station to Epstein 's office for a conference with Epstein. He left him at the door. Terry Muccio and Phil Leonti were sitting there with Epstein , waiting for him. According to Mulrain , Epstein opened the meeting with the statement that he had been concerned about the April 21 situation. Leonti proceeded to describe the events of that evening, quoting Mulrain's remarks about wanting his rights , the white people get- ting things which the blacks were not getting, and re- marks in a similar vein. Epstein then said that since Mul- rain was bitter and was spreading his bitterness to the day shift, they would have to let him go. A fuller history of Mulrain's dealings with Leonti and his conferences with Epstein is given below in connec- tion with the discussion of the Respondent's contentions respecting the discharge. 4 Union animus Several circumstances are relied on by the General Counsel to establish union animus on the part of the Re- spondent. In January, Magied told Mulrain that the Company was antiunion. On the occasion when Luqman Magied overheard an employee's remarks concerning union activity , he com- mented that Mulrain and the other employee seemed to be "trying to commit suicide." There are also certain remarks attributed to Frank Schilero around September 1, which were noted in the review of the circumstances of Diana Welcome's dis- charge. There is the close relationship in time between Mul- rain's conversation with Sal Rada on May 12 and his dis- charge. On May 11, in a meeting with Mulrain in Epstein's office, Terry Muccio exploded and made remarks critical of Mulrain's involvement with the problems of other em- ployees . She went into a "tirade " Mulrain testified as follows. Q You don't recall anything of what she said? A. She was saying that, "you ought to mind your business, you shouldn't worry about other employ- ees, you should worry about yourself, why do you worry about these other people," she said, "you ought to just worry about yourself, don't worry about other employees, we'll handle that, stay away from other employees," something to that effect, she was going off, I don't-she was saying a lot of things about that about stop worrying about other employees that was the-of her tirade. Finally, there are a number of remarks about Mulrain's "bitterness" which are discussed in detail below. The General Counsel argues that the term "bitterness" is a euphemism for "union activity." 5. The Respondent 's contentions respecting Mulrain's dismissal The Respondent contends that whether or not Mul- rain's protests on April 21 and on prior occasions were concerted protected activity, his subsequent insubordi- nate conduct was not, and it is contended that these in- subordinate actions on his part were the basis for his dis- missal . A close examination of all of the evidence re- specting the events subsequent to April 21 is therefore essential . Mulrain's testimony emphasized the protests themselves, while the testimony of the Respondent's leads and supervisors paints a picture of subsequent pos- turing, insolence, and insubordination on its part. After the incident on April 21, according to the testi- mony of Epstein and Leonti, Leonti told Epstein that he had suspended Mulrain for one evening. Epstein directed him to leave Mrs. Muccio a complete writeup of exactly what had taken place and to prepare a final warning for Mulrain to sign . Epstein remained late the next evening (April 22) to talk to him Mulrain did not come in that evening and did not call. He reappeared on the evening of April 23. Epstein instructed Leonti to deliver the final warning and let him know that Epstein wanted to talk to him Leonti complied promptly with his instructions, but from April 23 to May 4 Mulrain did not come in to see Epstein. On one evening when Epstein was unable to stay late he left word for Mulrain to come in early to see him, but Mulrain did not do so. On April 29, Mulrain sent Leonti a letter disputing the matters set forth in the warning, and stating that his object had been to alleviate unfavorable working condi- tions. Leonti received it on May 4 and showed it to Ep- stein . According to Epstein's testimony, he had planned to stay late that night to see Mulrain in any event On the evening of May 4, therefore, Epstein stayed late and Leonti brought Mulrain in to see him Mrs Muccio was in the office with Epstein when they entered. Mulrain in- sisted that Leonti leave, telling Epstein that he did not trust him, so Leonti left and George Gallarello came in (At the hearing Mulrain testified that he insisted on Leonti's exclusion for the purpose of demeaning him.) He then made complaints about the supervisors and leads, describing improprieties which he had witnessed on the part of supervisors and management personnel: supervisors sleeping; selling and using drugs; smoking marijuana; having other people punch their clocks All of these complaints were about supervisory personnel.36 There were no complaints about working conditions and there was no mention by Mulrain to Epstein about a union or any union activity. 37 Epstein thanked him for a6 Employees have no Sec 7 right to engage in activities designed to effect or influence changes in management hierarchy Louisiana Council No 17, 250 NLRB 880 fn 3 (1980) 37 In Mushroom Transportation Co v. NLRB, 330 F 2d 683, 685 (3d Cir 1964), denying enf 142 NLRB 1150 (1963), the court commented, It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees VOLT INFORMATION SCIENCES bringing these matters to his attention and said he would look into them He then proceeded to talk about the events of the evening of April 21 He told Mulrain that he would have fired him for his outburst, the racial re- marks, the yelling, the disruption of operations, and espe- cially for not showing up for work the next day Mulram stated that the reason for what had happened was the locking of the telephones and the fact that supervisors and leads were making long-distance calls Epstein told Mulram that he had found out who had made the calls, and it was not any of the supervisors and leads. Mulrain then brought up the matter of Noel Creary's discharge, which he believed was because of him Epstein told Mul- rain that at least 2 weeks prior to April 21 he had direct- ed Creary's discharge, which was actually supposed to have happened on the evening of April 21 but was de- layed because of the telephone incident and Mulrain's en- suing outburst The Respondent takes the position that Mulrain was not engaged in concerted protected activities but was acting solely in his own interests at the May 4 and later conferences. Epstein testified that Mulrain never asserted at any of their conferences that he was looking out for the interests of the employees. What he actually said was that he was looking out for the interests of the Company. He did not claim to be acting as a spokesman for any other employees on April 21, did not say he had ever been asked to do so, did not give any indication that he had been acting jointly with any other employees on April 21, and did not complain about any working condi- tions other than the actions of the leads and supervisors which he said were against the interests of the Company. The evidence supports the Respondent's contention in- sofar as the conferences are concerned, but there can be little question that on April 21 Mulrain was speaking on a matter which he correctly regarded as a matter of common employee concern His remarks on that occa- sion, even if overly emphatic in tone, constituted protect- ed concerted activity.38 Several days after the May 4 meeting, Gallarello ad- vised Epstein that he had an opening on the day shift which Mulrain, who had once expressed interest in a day position, could have since he was the senior night worker on the night side It is asserted that the job was offered to Mulram on the assumption that he would be happy to make the transfer, especially in view of his dif- ficulties with Leonti, but that instead, Mulrain told Leonti, who transmitted the offer to him, that he would think about it. After some delay, he accepted the trans- fer. He started on the day shift on May 11. At the time he accepted, Mulrain requested a further meeting with Epstein, which Epstein scheduled for May II as a matter of convenience. At this meeting, which was also attended by Gallarello and Muccio, Mulrain de- manded the removal from his personnel file of Leonti's 38 The test of whether concert of action will be found to back up the actions of a lone complainer is whether the actions "relate to conditions of employment that are matters of mutual concern to all the affected em- ployees" Air Surrey Corp, 229 NLRB 1064 (1977), enf denied on other grounds 601 F 2d 256 (6th Cir 1979) See also Lloyd A Fry Roofing Co, 237 NLRB 1005, 1006 (1978), enfd 651 F 2d 442 (6th Cir 1981), Alleluia Cushion Co, 221 NLRB 999, 1000 (1975) 325 warning dated April 23. Epstein refused, telling Mulram that he believed the contents to be true and that such material could not be expurgated from a personnel file, and pointing out to him that the matter would be buried as a night-shift matter and was better not brought up now that he was on the day side. Mulrain continued to look upset and Epstein commented about it. At this point, there occurred the discussion of "bitter- ness" on Mulrain's part which the Respondent has assert- ed as one basis for his discharge. Epstein testified that he suggested that Mulrain let the matter of the written rep- rimand be forgotten, but Mulram indicated it continued to affect him and that he was very bitter and disgruntled. Although four persons testified to the conversation (Ep- stein, Gallarello, Muccio, and Mulrain), it is not entirely clear who first used the word "bitter" or what it was that Mulrain said he was bitter about In his testimony, Mulrain claimed to have been bitter because statements were contained in Leonti's April 23 warning which simply were not true, but asserted he was not "bitter against the company " It may very well be that a seman- tic difficulty clouded the true meaning of what Mulrain was saying . Mulrain described the conversation of May 11 in part as follows: Q. Now, during this conversation did the matter of your bitterness come up9 A. My bitterness? Q. Yes. A. Yes. Q. Did you say you were bitter because of the racist accusation that had been made against you? A. He asked me if I was bitter Q. Yes, and you answered you were? A. I answered, "I'm bitter about that statement in that letter " Q. The statement in the warning letter? A. Yes, sir. Q. And which statement in the warning letter were you bitter about' A. I was bitter about the lighting situation which I was completely right about everyone said so, and then Leonti wasn't there at that time, and I was bitter about him saying that I made racial remarks Q. Now, after you told Mr. Epstein that you were bitter, what did Mr Epstein say? A. Mr Epstein answered he said, he said to me, I didn't tell him I was bitter, he used the word, he said, "were you angry?" I said, "Yes, I'm angry about that." He said, "Are you uncomfortable about that?" I said, "Yes," he asked me if I was bitter, and I said, "yes, I'm bitter." Q Now, after you said, "yes," what did Mr. Ep- stein say about that answer9 A. He said, "If you're bitter, go find you another job because we don't like bitter employees here." Mulrain's version of the May 11 conference thus dif- fers from Epstein's in that it suggests that Epstein sup- plied the "bitterness" verbiage and was leading Mulrain along. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because Mulrain was disputing Leonti's account of the events of the evening of April 21, Muccio suggested a further meeting at which Leonti could be present.39 This was set up for the following day, May 12 Before the meeting started, Gallarello, on the basis of information supplied to him by Sal Rada, reported to Epstein that Mulratn "had been talking to employees against the Company." The General Counsel contends that the terms "bitterness" and "talking against the Company" were euphemisms employed by Gallarello and Epstein for union activity. At the May 12 meeting, Leonti gave his version of what had transpired on the night of April 21, which Ep- stein checked point by point with Mulrain. Finally, ac- cording to Epstein's testimony, Epstein asked him if there was anything at all that he could do to resolve this bitterness. Mulrain answered, "No, there is nothing. I'm dust bitter." On receiving this response, Epstein told him that in view of his insubordination and bitterness it was probably better to part company and he initiated the ter- mination paperwork. In Mulrain's version, however, the result of the May 12 conference is depicted as a foregone conclusion. Mul- rain testified that he denied the truth of Leonti's version, and specifically denied that he had made any racist re- marks, but he made no rebuttal because he recognized the futility of attempting to defend himself. "I'm sitting there and I know what the man is going to do to me." His dialogue with Epstein is quoted by him as follows. Q. Did Mr. Epstein say after listening to you and to Mr. Leonti that he believed Mr. Leonti's version? A. He said something like, "for making racial re- marks," he said, "he should have fired you on the 23rd, shouldn't let this go." He said, "I tried to give you a new life bringing you on the day shift and you're spreading your bitterness on the day shift." He said, "I'm paying you off, I'm going to pay you for the rest of this week, give you your vacation pay, give you some personal time and goodbye." Q. Did you after that meeting on the 12th repeat that you were bitter? A. No. Q. Did he ask you whether you were bitter? A. He said I was spreading my bitterness throughout his staff. 99 Mulrain's credibility was not enhanced by his proclivity for making unfounded charges and by other admittedly deceitful behavior In con- nection with the April 23 memorandum, he alleged to the Equal Employ- ment Opportunity Commission that he and other black employees had been subjected to intimidation and threats of discharge and that that would not have occurred had they been Caucasian He admitted that he did not believe the charges In the lighting incident, he claimed he "tricked" Giordano into supplying a lamp When offered the job on the day shift, he kept Gallarello waiting for his answer, he admitted he wanted the transfer but was "suckering the company " He testified, "I was resisting it to their faces, but we had planned for me to go to the day shift " At the same time, he testified he thought the Company wanted him to go on the day shift because it knew of his union activities Refer- ence has already been made to his attempt to demean Leonti by exclud- ing him from a conference with Epstein 6 Analysis and conclusion The General Counsel established a prima facie case, but not a convincing one. It has been established that Mulrain, a competent night-shift worker, not previously in trouble, addressed the employee body on two occa- sions about problems relating to working conditions, became interested in the Union in January 1981 and began engaging in activity in support of unionization in April or May. Unionization activities by the employees intensified in late April or May. On May 12, 1 day after his transfer to the day shift, Mulrain was fired. Evidence introduced to show the Respondent's awareness of union activity through Magied and Rada was weak, but cov- ered that item of the General Counsel's prima facie case. For proof of animus, the General Counsel relied on quo- tation of remarks made by Muccio, the assistant project manager, remarks by Magied and Schilero, and the refer- ences made by Epstein and Gallarello to Mulrain's "bit- terness" and his spreading of it to the rest of the staff Mulrain's testimony for the most part substantiated the descriptions furnished by the Respondent's witnesses of his behavior in the lighting incident, the telephone inci- dent, and the conferences with the supervisory personnel and with Epstein His hostility toward Leonti and Gal- larello is obvious from his own remarks and references in his testimony to deliberate attempts to insult or outsmart them. His description of events, in numerous respects, such as the loudness of his orations, corroborates that of the Respondent's witnesses. While he denied making some of the remarks attributed to him, not a single other employee, including Creary, testified in such a manner as to contradict in any important respect the versions of these events put forward by the Respondent's witnesses. Epstein, a highly credible witness in terms of consistency of testimony and demeanor, recited the things that dis- turbed him in Mulrain's behavior: the accusation, proved on investigation to be completely unfounded, which Mulratn made on April 21 that "The white boys are smoking and selling pot in the file room"; his remarks about bitterness toward the Company; his reviving the argument about removing the memo from his file on the first day of his new assignment; his insubordination in re- fusing to accompany Leonti into the file room for a dis- cussion and in refusing to leave the premises when Leonti suspended him; his failure to come in or tele- phone the following day; his refusal to sign and acknowl- edge receipt for Leonti's warning; and his refusal to come in to see Epstein. Furthermore, the observation must be made that in too many instances the General Counsel's case rests on evi- dence of situations which is not quite sufficient to afford completely satisfying clarification. A perfect example is the testimony that Magied, on the one hand, had encour- aged Mulrain and Creary to look into the possibility of unionization in January, but later, on overhearing discus- sion of the Union, had labeled such activities as suicide, the testimony of Cheryl Ryan that she was instructed to help build a case against Cox, a union activist, by teach- ing him some difficult operation, because Schilero wanted to get rid of Cox, whereupon the Respondent of- fered testimony, which was not rebutted, that the oper- VOLT INFORMATION SCIENCES ation Cox was to be taught was a basic beginner's type of work of extremely simple nature and that Cox is still employed; and the conjectural nature of the inference which the General Counsel contends should be drawn from the testimony about the conversation between Sal Rada and Frank Gallarello. Neither side called Rada. The failure to do so counts against the discriminatees, though he was equally available to both sides, the issue was what he told Gallarello, and I had only Gallarello's testimony as to what the discussion involved. In the face of Gallarello's testimony, I must infer from the failure of the General Counsel to call him that had he done so, Rada's testimony would not have supported his version of the case. The Respondent denies having had knowledge of union activity prior to receipt of notices from the NLRB, the earliest of which was received on May 14; denies that the remarks attributed to Magied and Schi- lero were made by them, points out that, in spite of notice of union activity, the Respondent took effective action to save the jobs of everyone on the night shift, which was being eliminated as an economy measure at the insistence of New York Telephone; and points out that the Respondent saved the job of Cox after he was denied admission to the building by New York Tele- phone for throwing an umbrella down a shaft, though he was a union activist (and is still employed). Generally speaking, the Respondent's witnesses testi- fied with fairly good recollection of events, few contra- dictions, and generally persuasive demeanor.40 The Re- spondent's account of the facts does not labor under some of the enigmas which beset the discriminatees' cases. The character of Mulrain's conduct is well established by the evidence though Mulrain's conduct did not result in discharge until approximately 3 weeks after the most egregious incidents. The period from April 21 to May 12 saw Mulrain, Epstein, and Leonti engaged in a develop- ing situation, the pertinent events being Leonti's memo, Mulrain's rebuttal letter, the meeting of May 4, the trans- fer of Mulrain to the day shift, and the meetings of May 11 and May 12 The Respondent's contention that it acted in good faith to alleviate the personal confronta- tion between Leonti and Mulrain sounds plausible and is strengthened considerably by Mulrain's own acknowl- edgements of bitterness. This is not to say that there are no weaknesses in the Respondent's contention that Mul- rain was discharged because he had stated that he was bitter and disgruntled against the Company and that nothing could be done to resolve that bitterness, and be- cause of Mulrain's acts of insubordination. If the events to which the Respondent points in justification actually triggered Mulrain's discharge, there seems to have been an unexplained delay in reaction. For example, Epstein told Mulrain that he should have been fired for his con- duct on April 21, when he refused to go into the confer- 40 The mere fact that Gallarello, Boynton, Giordano, Schilero, and Magied were employed by the Respondent does not require that I dis- count their testimony to any degree The demeanor of the witnesses was considered in determining whether the fact of their employment by the Respondent has influenced their testimony, and I find that it has not See General Motors Corp, 243 NLRB 614, 615 In 8 (1979) 327 ence room with Leonti and when he raised an uproar. However, he was not fired and there is no explanation of the failure to discharge him. It has already been noted that a question exists as to who first used the language about "bitterness." It also appears that Epstein, in direct- ing Leonti to issue a warning, told him to issue a "final warning." There is no evidence of any prior warning though Mulrain had been rebuked by Leonti after the lighting incident. Epstein thus gives the appearance of pushing matters to an abrupt finality. A further observation is in order on the question of how the expression, "bitterness," came into vogue. The statement attributed to Mulram does not quite ring true to my ear when considered as an affirmative, unsolicited declaration by him to Epstein; Mulrain's own version, quoted above, seems more realistic. It is countered by Muccio's testimony that the term "bitterness" was first used by Mulrain Obscure as its origin may be, however, this much is certain: the meeting at which it was first ut- tered was one which took place at the instance of Mul- rain, not Epstein, and was requested by Mulrain for the purpose of pressing his view with respect to matters of fact he was disputing with a person in a supervisory po- sition, which inevitably led to the disastrous meeting of May 12.41 Thus, both of the meetings at which Mulrain made the statements on which Epstein impaled him were products of his own initiatives, a fact which undercuts the otherwise inevitable suspicion that Epstein deliberate- ly put words in Mulrain's mouth and manipulated Mul- rain into saying and doing things that would justify his ouster 42 Whether or not such a scheme existed, and whether or not that was the Respondent's objective, proof thereof is lacking. Both the General Counsel's presentation and that of the Respondent have their sticking points, but both are also possessed of an inherent plausibility. Nevertheless, of the two, the General Counsel's case is by far the weaker. The burden of proof lies with the General Counsel. He has not proven the allegations of the com- plaint respecting the Respondent's behavior toward Mul- rain by a preponderance of the evidence. The General Counsel has proved that Mulrain was en- gaged in concerted protected activity and was dis- charged after a series of unpleasant confrontations with management. The Respondent has established largely through testimony not controverted by Mulrain or by any of the General Counsel's other witnesses, that Mul- rain, though a good worker, over the course of the 5- month period antedating his discharge behaved toward supervisory personnel in an obnoxious and insubordinate manner; that Mulrain was moved to the day shift, at his own election, in the hope of restoring some tranquility in his relations with management, that his attitude became progressively more insolent until he finally told the 41 In Stein Seal Co, 605 F 2d 703 (3d Cir 1979), enf denied of a Board direction 237 NLRB 996 (1978), to reinstate an employee dis- charged for pressing a dispute with a supervisor after it had been settled, leading to heated argument 42 An employer cannot rely on an employee's indiscretion provoked by the employer as a basis for terminating the employment Louisiana Council No 17, 250 NLRB 880, 886 (1980) 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD project director that his bitterness against the Company could not be assuaged, and that his conduct at these times did not constitute concerted protected activity. There is no evidence from which I can infer that Mul- rain's and Epstein's use of language (and they both used the same terms) should be interpreted in other than a lit- eral fashion On the basis of careful study of the testimo- ny of all the persons who were present at the two meet- ings between Epstein and Mulrain, I find that Epstein's reference to Mulrain's "bitterness" was not a euphemism for "union activity."43 I conclude from the evidence that Mulrain's insubordi- nation and his hostile attitude toward his employer, openly expressed and declared incurable by Mulrain him- self, at a point in time when he was not engaged in con- certed protected activity, were the two causes of his dis- missal, and he was therefore lawfully discharged 44 I find specifically, that the Respondent has not been proved to have had union animus and lacked knowledge of union organizational attempts prior to May 14, 1981.45 These findings are also pertinent in the cases of some of the other employees who claim to have been discriminatorily discharged, which are reviewed in this decision. In all of these cases, the observation is pertinent that the Respondent convincingly demonstrated that the true reason for discharge was a deficiency in the employ- ee's performance, attitude, or discipline, which removes the case from the operation of the remedial provisions of the Act.46 E. The Alleged Transfer of Noel Creary to a Less Desirable Position and His Subsequent Discharge It is alleged that Noel Creary, who was employed by the Respondent from September 11, 1980, to April 23, 1981, was transferred to a less desirable position of em- ployment about December 1980 and was discharged on April 23, 1981, because of his participation in the above- described incidents, arising out of the protest over light- ing conditions and the telephone curtailment, and be- cause the Respondent sought thereby to discourage em- ployees from engaging in concerted protected activities. Mulrain and Noel Creary have a situation which is dis- tinct from that of the other employees who were dis- charged, because they both actively expressed dissatisfac- 49 Recurrent reference to employees' attitudes as a basis for the Em- ployer's action may be found to be an allusion to their union sympathies, but such a finding must be grounded in all the circumstances of the case See Pay 'N Save Foods, 257 NLRB 1228, 1230 (1981) 44 Despite employees' right to engage in union activity, the Act "is not a shield protecting employees from their own misconduct or insubordina- tion " Guardian Ambulance Service, 228 NLRB 1127, 1131 (1977) 46 The result would not be different had union animus on the part of the Respondent been found to have existed In Central Freight Lines, 255 NLRB 509, 5:J (1981), enfd 666 F2d 238 (5th Cir 1982), the Board stated Although he was involved with the Union, Southerland did not thereby cloak himself with protection from discipline or discharge Respondent's union animus is readily apparent from this record, but this does not mean that it cannot discharge a union adherent so long as the discharge was not based on the adherent 's union activity It is not for the Board to substitute its judgment for that of an employer in deciding what are good or bad reasons for discharge 46 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) tion with certain working conditions to management, and openly and obviously supported each other in actions or positions taken against management Both Mulrain and Creary protested what they considered to be inadequate lighting conditions. When Mulrain protested the curtail- ment of telephone privileges and was suspended for the night of April 21, Creary showed support by accompa- nying him to the elevator He also permitted himself to be identified as a "witness" for Mulrain in connection with the acknowledgement of the warning to him which Leonti wanted to procure from Mulrain on April 23. Creary's testimony relating to the changes in his jobs was as follows- He worked as Mulratn's assistant in the gridding department from December 1980 to February 1981, when he was assigned to ad quality control. At the time of his discharge he was working in ad and page makeup He had been transferred to that position in Feb- ruary, at which time Leonti told him that management was dissatisfied with his attendance record and his atti- tude in regard to the lighting situation and would consid- er letting him go, except that his work was good, so they were considering keeping him, but not in the gridding section. He would be moved out of the gridding section and put in for a $30 raise at the end of a 6-month period and he would also be considered for ad quality control position and promotion, but never back to the gridding section I find this to be an inconsistent and tangled narrative which I cannot credit, and which is, in any event, thor- oughly refuted by Epstein's testimony Epstein testified that after the December 1980 lighting incident neither Creary nor Mulrain was transferred to a less desirable position and no action was taken against either one of them on account of their protest Epstein furnished testi- mony, which was never contradicted, to the effect that ad and page makeup quality control positions are not less desirable positions than gridding; all are production de- partment functions; and Creary's changes of position in- volved no change in pay, benefits, or conditions of em- ployment. Epstein also pointed out that no gridding work is done in March and that the persons normally in- volved in it consequently are shifted to work on ad pas- teup. Creary's testimony about his dismissal relates it direct- ly to his show of solidarity with Mulrain. Creary seems to have been anticipating trouble. When Mulrain arrived at work on April 23, Creary told him that if Mulrain was called into a conference he should feel free to ask Creary in as a witness . Mulrain was called into a conference about 7 p.m and later told Creary that he had advised Leonti that Creary was willing to come in as a witness, but permission to bring Creary into the conference had been refused Immediately after the conclusion of his conference with Mulrain, Leonti summoned Creary into a conference with him and Lugman Magied to remind him that they had spoken to him about his production, but it had not improved. Creary testified that Leonti stated that Creary had said on the earlier occasion that he would not do more than 10 pages a night, and though Creary denied having made such a statement, Leonti VOLT INFORMATION SCIENCES proceeded to say that he was sorry but they would have to terminate him. It is not contended that Creary was discharged for ac- tivities directly in support of Local 51, and, in fact, in re- sponse to a question from the Respondent's counsel, Creary conceded that he actually had had no direct in- volvement with any union prior to his discharge, though he had discussed union activity generally with Mulrain or Selden in December or January during lunch and had indicated willingness, to talk to a union official, and had discussed the possibility of organizing a union with other employees at Volt, including Curt Thomas, Josh Pryce, Ned Torres, and Paula Hill. However, he testified that no supervisors were present or in a position to overhear any of these conversations, he was never threatened with reprisals by any supervisor for joining a union, he never mentioned a union to any supervisor, and no supervisor ever mentioned a union to him He first met John Gur- rieri, the business representative for Local 51, some time in April or May after he was fired. The explanation offered by the Respondent for Creary's discharge47 is that Leonti terminated him on April 23 "because he felt Creary was deliberately deliv- ering unsatisfactory performance " The separation report prepared by Leonti in conformity with standard compa- ny practice listed, as the reasons, "deliberately unsatisfac- tory performance," "unsatisfactory performance/not qualified," and "work volume was not sufficient." According to Leonti, the problem started when Creary was put in for a raise and the amount of the raise was cut down. In March 1981 Creary's record under- went the normal 6-month review given to all new em- ployees. Leonti put him in for an increase of $30, which was cut to $20 because of his poor attendance record. His lateness was not a matter of dispute. Creary conced- ed frequent latenesses. Before the review, Creary's rate of production in ad quality control was 15 pages per day. That was four pages less than what Leonti defined as the "norm." After the pay increase, it dropped to 10 pages. Leonti ques- tioned Creary about the decline and Creary responded that (1) the work he did was the work he was able to do, and (2) he was dissatisfied with his raise. He also said he was tired of hearing criticism of his work. None of this is controverted by Creary He conceded that he had been called into a conference about his pro- duction in February and that the transfer to ad quality control was a promotion, and that events in the course of a few weeks followed a sequence consisting of the con- versation, the increase, and the promotion to ad quality control He had worked in ad quality control for only a week or two, when he complained to Leonti that Magied was accusing him of errors which he had not made. He was then reassigned to work on page makeup, ad makeup, PMTs, and cutting the amberliths. He testi- fied that there were no further discussions about his work with Leonti or anyone else and no discussion of his attendance until April 20, except for occasions when Leonti praised his work. He did not recall any discussion in January about his attendance He conceded that 41 The Respondent's Posthearing Br, p 61 329 Leonti had mentioned that his attendance was not satis- factory when an affidavit he had furnished to the Board was called to his attention, in which he stated, "About one week later in mid-January, I was called into a meet- ing with Magied and Leonti in the conference room. . Leonti mentioned that he was unhappy with my attendance record and that they were dissatisfied with my attitude regarding the lighting situation." The evidence also establishes that in early March on his 6 months' review, when he received the $20 increase, Leonti told him that upper management still was not sat- isfied with his attendance and chose to give him a $20 increase instead of $30 for that reason. Actually, Creary had come closer to dismissal at that time than he real- ized. Epstein testified that he discussed Creary's work with Leonti and Gallarello at the 6 months' review and they informed him they were not satisfied with the quan- tity of work that he was producing. It was way below everyone else's. They were also having problems with his lateness and absentee record. It was Epstein's feeling at the time that Creary should not be given any raise but should be terminated They convinced him that Creary should he given less than the full normal raise, in the hope that it would spur him to do better work. He was given a $20 increase Epstein followed up by asking Leonti and Gallarello how Creary was doing and was in- formed that matters had gotten worse and his production reduced even more. Epstein directed them to give Creary 2 more weeks at the outside and terminate him if there was no inqrovement. Leonti testified that a month or two before Creary's termination an announcement had been made in the pro- duction department that 20 pages would be considered an acceptable average day's production, and that on April 20 he had called Creary to task for producing only 10 pages and had warned him that if his production did not increase they would consider letting him go. In his testimony, Creary denied having said that he could not do more than he was doing or that he could not produce more than 10 pages a night. He testified that he promised to continue working on his production He also asserted that in fact he had not been producing only 10 pages a night Creary testified that at the time of his dismissal he in- dicated to them that he had anticipated their action, that he told them that he "realized that this was their compa- ny and that they were going to do whatever they pleased, wrong or right, and then I asked him if that was the extent of the discussion. They said yes and I got up and left " The foregoing description of a bitter and antagonistic meeting is somewhat different from the version of the discussion which Creary gave in an affidavit furnished to a Board investigator on May 15, 1981. At page 12 of that affidavit he stated that he told Leonti and Magied he re- alized he was being fairly treated. He testified that that statement in the affidavit is a misquotation and that if he had noticed the statement before he signed it he would have corrected it. I do not find this explanation persua- sive in view of the fact that he corrected and initialed other statements in the affidavit 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence, discussed in connection with Mulram's situation , of union animus, sufficiently colors the dis- charge of Creary following his open support of Mulrain and history of engagement in protected activities to war- rant a finding that the General Counsel has made out a prima facie case. It is a flimsy case, however, and evaporates in the face of the testimony, almost uncontroverted, that Creary's work performance was deficient ; that he was warned that he would be discharged if it did not improve; that it deteriorated instead of improving ; and that for this reason, as well as because of his chronic tardiness, about which he had also been warned , he was fired The fact that he received a pay raise does not alter the picture, in view of the fact that the raise was part of an ongoing general program of review of the performance of all new employees and was explained as being given in the hope of encouraging improved performance . The fact that the raise was less than the customary amount lends credence to the Respondent's contention that there existed a long- standing dissatisfaction with Creary 's work. Accordingly, I find that no violation of the Act has been proven with respect to Creary. V. THE CHALLENGED BALLOTS A. The Union's Challenges to Allegedly Supervisory Employees The Union challenged ballots cast by three employees, Robert Porter, Frank Giordano , and Luqman Magied, on the ground that they were supervisory employees .4 ' The state of the evidence leads me to conclude that Porter never had such status, that at times Magied may have had it, and that at times Giordano certainly had it, but that none of them had it at the times which are crucial in these proceedings . All of them are unquestionably em- ployees who have shown a special loyalty to the Re- spondent and who, through the election period, have been entrusted with responsibilities as leads . However, it has not been established by a preponderance of the evi- dence that they possessed supervisory status within the meaning of Section 2( 11) of the Act on September 3, 1981, or at any time following the abolition of the night shift on June 15, 1981.49 The situation in this case is that contemplated in United States Gypsum Co., 118 NLRB 20, 25 (1957)• The question whether particular individuals in a given case are supervisors within the meaning of Section 2(11) of the Act must be resolved upon ex- amination of all the evidence in the case. Concluso- ry statements that the individuals can "effectively 48 On failure of the Charging Party to present a witness who had been expected to testify specifically with respect to Porter's supervisory status, the Respondent moved to dismiss the challenge of Porter 's ballot The Charging Party's argument was that Mulram had testified as to Porter being a supervisor and that while it was not the strongest possible case it was enough to make a prima facie case Accordingly , the motion was denied and the question was left for consideration on the entire record 49 "The determination of who is a supervisor is a fact question and a matter of practical application by the Board to the infinite gradations of authority within a particular industry " NLRB v Broyhill Co, 514 F 2d 655, 658 (8th Cir 1975), enfg 210 NLRB 288 (1974) recommend" changes in the status of employees and that they "exercise independent judgment " and [sic] do not establish supervisory authority . Such expres- sions are words of art reflecting legal conclusions, but they are not evidence which assists in the reso- lution of disputed supervisory authority . It is also necessary to note that Congress, in defining the term "supervisor," did not include "employees with minor supervisory duties." Congress "distinguished between straw bosses, lead men, set-up men, and other minor supervisory employees , on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such acts." 1. Robert Porter The objection to Porter's ballot is based on testimony by Mulrain that Porter was his supervisor and assigned work to him. Mulrain's testimony is contradicted by more precise and knowledgable testimony by Alan Schmalenberger, the supervisor of the camera depart- ment and by testimony from Porter himself. Their testi- mony is to the effect that Porter is a self-taught techni- cian, who services the camera equipment . His knowledge of the equipment is so extensive that he is regarded as a technical adviser and renders assistance to other person- nel in the department when they have problems with the equipment . For the most part, however, his duties are similar to those of the other personnel in the camera de- partment. His working conditions and benefits are the same as those of the other employees . He is paid on an hourly basis . He appears to have had no disciplinary au- thority. During the hearing, the fact that he once sus- pended an employee was cited as evidence of superviso- ry status, but the circumstances of that action clearly were such that he exercised no independent discretion and merely carried out instructions from someone else. He testified that he had authority to direct the employees to assist him, but the context of his testimony made it clear that this authority related to situations in which heavy machinery had to be repositioned so that he could work on it. If the authority to summon such help consti- tutes supervisory authority , then it is a transient, occa- sional , and exceptional instance which does not amount to the kind of assignment of work and direction contem- plated by Section 2(11) of the Act and is entirely consist- ent with his status as a lead. As of September 3, Porter's primary duties were to assist if there were problems with any of the equipment. He was the technical man, reporting to Alan Schmalen- berger, the supervisor, and was consulted prior to calling in a service man. When he was not working with the equipment, he performed other normal camera depart- ment functions such as running the camera , opaquing, stripping, contracting , and motor work, all of which are functions routinely performed by the other camera people Porter is paid in excess of $9 an hour His salary consists of his basic pay together with annual increases and numerous merit increases which he has received over the years. Porter turned down an opportunity to be VOLT INFORMATION SCIENCES appointed supervisor in the camera department. He has a speech impediment and seeks to avoid any responsibility for dealing extensively with other personnel. He does not like to give directions and just prefers doing his work as a camera person Epstein testified that he made Porter a lead because he wanted to give him some recognition. The mere fact that Porter trained other workers, acted as a "troubleshooter," and handled problems relating to the machinery falls short of meeting the requirements of Section 2(11) of the Act 50 The fact that management might consider Porter to be an extraordinary worker does not mean either that they considered him to be a supervisor or that he in fact acted as supervisor. The circumstances of Porter's employment are clearly insufficient to require that he be regarded as a supervi- sor. 2. Frank Giordano and Lugman Magied Frank Giordano and Luqman Magied were leads, and as such passed on supervisors' orders, reviewed employ- ees' work, and did some preliminary interviewing of job applicants. They were conduits for the work, routing it through established procedures. None of these activities changed their status from that of leads to that of supervi- sors 51 Their participation in the hiring process was in a non- discretionary capacity. When they interviewed appli- cants, they turned in their information to the departmen- tal supervisor, who cleared the hiring with Epstein or Muccio It appears that in many cases the supervisors did some independent investigation as well Both Creary and Pryce were interviewed by Magied (Creary on Septem- ber 9, 1980, and Pryce on December 16, 1980). In their testimony, both men asserted that they were hired by Magied, but they conceded that after they were inter- viewed there was a lapse of time, after which he contact- ed them and told them that they were hired. The fact that he did not hire them immediately at or after the interview and the fact that there was a lapse of time sup- port the Respondent's version of its hiring procedure Therefore, the extent to which Magied or Giordano participated in the hiring process was insufficient to re- quire an inference that they possessed supervisory au- thority, The evidence amply supports an inference that at cer- tain times during the existence of the night shift they had authority effectively to recommend certain action, such as hiring, firing, and disciplinary action. Unquestionably, there were numerous instances in which they exercised supervisory functions. This was es- pecially true in the case of Giordano, who worked the night shift for a period of time at the production depart- ment supervisor's specific request, in order to improve the operation of the night shift in that department The Respondent's counsel, in his posthearing brief, asserts so Ballas Egg Products, 121 NLRB 107, 108 (1958) 51 Westlake United Corp, 236 NLRB 1114 (1978) Their review of the employees ' work was a normal part of their function and did not make them supervisors Ballas Egg Products, 121 NLRB 107, 108 (1958) 331 that Giordano was a "minor supervisor" during this period of time .52 Noteworthy specific instances of such actions by Magied include his interviewing Noel Creary and, ac- cording to Creary, advising him at the interview that he was hired, his statements to Creary that Creary should have come to him in the first instance with his com- plaints about the lighting (which Greary asserted he had in fact done); and his authorization to Pryce to leave early each morning to catch the 3 a.m. Long Island Rail- road train. All of this testimony was denied by Magied. However, there are in evidence form letters which were issued to all new employees signed by Epstein which told the employee which unit he was assigned to and who his supervisor was. Pryce received one stating he was assigned to the production department which identi- fied Magied as the supervisor to whom he was responsi- ble Pryce also asserted that Magied "negotiated" salary with him, but it is apparent from his testimony that Magied did no more than detail it for him In any event, he was not hired at the interview and there is no hard evidence as to who actually made the decision to hire him except that which is provided by the Respondent. There is also in evidence documentary proof that Magied on one occasion suspended an employee.53 If Magied's case is borderline, Giordano's certainly is not. He signed a "punctuality notice" addressed to Mul- rain as a production supervisor, from March 9, 1979, to June 9, 1980, he worked temporarily on the night shift at the Respondent's request, ironing out problems, during which time he was given various supervisory titles, Creary took gridding problems to Giordano when Magied could not help him; according to Gregory Waite, Giordano interviewed him and hired him; one of Epstein's letters for new employees identified Giordano as supervisor, he prepared a check list and noted his name on the bottom as production supervisor; and, in- controvertibly, he fired an employee named Steven Hurst on September 13, 1979. However, the evidence establishes that with the end of the night shift, matters changed considerably, and both logic and common sense indicate that there should have been changes. Magied and Giordano, as of September 3, had for some time been employed as leads in the day sec- tion under well-established supervisors Gregory Waite, one of the alleged discriminatees, testified that after Giordano became a daytime lead, he did not hire, fire, promote, or do any of the things supervisors do, he di- rected work to the extent of assigning it and checking it for mistakes Waite explicitly recognized that Gallarello was the only supervisor in the production department when the night-shift production personnel were absorbed into the main operation. On the day shift, only the real 'Z The Respondent's posthearing brief 13 53 Testimony elicited from Porter and Leonti that in certain circum- titances, involsmg extreme misbehavior on the part of employees, they suspended th,. employees fiorn duty does not, by reason of the isolated and special nature of those circumstances, prove supervisory status Such situations basically involve devolution of authority on the senior employ- ee present at a moment of crisis 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors used the title and exercised the authority of supervisors. What the evidence adds up to is that Giordano and Magied were leads who, in numerous instances during the course of the time they worked on the night shift, acted like supervisors. As leads, they were supposed to perform certain functions under the direction of the de- partmental supervisors: distribute work, call employees' attention to mistakes, report problems with personnel or with the work, refer grievances to supervisors, and make recommendations respecting transfers, disciplinary ac- tions, and promotions of employees In order to perform their work, they enjoyed certain accoutrements, such as desks instead of worktables. Magied took his breaks at different times than the other employees, but this was for the purpose of expediting the workflow. The salaries of Magied and Giordano differed from those of other em- ployees only to the extent that they reflected the lengths of their respective periods of service, merit increases which the Respondent had granted from time to time, and special pay allowances, as when Giordano, hired as a daytime worker, agreed at the Respondent's request to work for a period of time on the night shift. While on the night shift both Giordano and Magied seem to have been permitted to become sufficiently con- fused to regard themselves as actually being supervisors. They can easily be forgiven for this, since Epstein was calling them supervisors. According to Epstein, he straightened matters out in a meeting which he called of all supervisors and leads in the early summer of 1980. At the meeting he explained who were leads and who were supervisors. He told Magied, for instance, that Magied was a lead, but, since he had been calling himself a su- pervisor and had utilized a form which he had signed as "Production Supervisor," he could continue using that title so far as the employees on the night shift were con- cerned. Epstein asserted that he did this to avoid embar- rassment to Magied. It is beyond serious argument that on the night shift both Giordano and Magied assumed or were invested with certain significant indicia of supervisory authority, including permission to use the title itself. They were re- ferred to as supervisors, in writing, by no less a person- age than the project director. The employees' perception of them as such is readily understandable while the con- ditions of the night shift existed. There is no evidence, however, that either the real or apparent bestowal of such authority upon them by man- agement survived their transfer to the day section when the night shift was abolished on June 15. The entire op- eration then came under the oversight of the actual su- pervisors and Giordano and Magied functioned as leads once more. (Giordano had actually been functioning that way since his return to the day section on June 9, 1980.) The fact that Giordano and Magied, or either of them, had once had supervisory status or had been permitted to be perceived as having such status, would not preclude either one of them from being counted in the unit and from voting once they resumed their positions as leads.54 64 The fact that an employer may have put someone in a position of responsibility to an extent which would identify him with management There is not a single piece of evidence which would tend to establish that, as of the crucial dates, Giordano or Magied had supervisory authority or acted in such fashion as to suggest that they did. The Respondent cor- rectly points out that the mere fact that Giordano told a job applicant who was a former employee to fill out an application form does not indicate that he played a role in hiring that person.55 In fact, Epstein had already made the decision to rehire the man without an inter- view, since none was needed. Furthermore, I doubt that there was any likelihood that after the night-shift employees were absorbed into the regular daytime operation there could have been any confusion in their minds as to the status of Giordano and Magied. The General Counsel contends that the employ- ees continued to be under the impression that they were supervisors because no announcement was made of the termination of such status after the night shift ended. In the circumstances which then obtained, such an an- nouncement would have been superfluous. When the entire staff was united in the daytime operation, the re- alignment of the work positions of Magied, Giordano, and Leonti, and the presence of the actual supervisors, such as Gallarello, during the daytime working hours, made the unwarranted assumption of authority and titles by Giordano and Magied impossible. There was no ne- cessity for an explicit pronouncement that persons who had been permitted to continue calling themselves super- visors on the night shift were no longer permitted to do so. B. The Respondent's Challenges to Employees' Votes 1. Sheila Copper The Respondent challenged the ballot cast by Sheila Copper on the ground that, in accordance with estab- lished company policy, her status had been changed from that of a full-time employee to that of a temporary employee This is claimed to have occurred in July when she gave the Respondent notice of her intention to go to school in September. The General Counsel and the Union disputed the existence of any such policy at that time. When Copper began working for Volt she was not a student. She was referred by the unemployment division of the New York State Department of Labor. She made her decision to start school sometime after beginning work at Volt and notified Richard O'Connor, her super- visor. Their testimony is in agreement that she told him she would be leaving in September to go to school (he testified she said she was "returning" to school); he asked her to give him something in writing, which she never did; but in August she arranged with him to take 2 and which would lead employees to understand that he spoke for man- agement, may render management responsible for his actions within the area of ostensible authority , but is not dispositive of the issue of whether he is a supervisor within the meaning of the Act Hanover Concrete Co, 241 NLRB 936, 939 (1979), see also Higgins, Inc, Ill NLRB 797, 799 (1955), National Dairies Products Corp, 121 NLRB 1277, 1279 (1958), Ryan Aeronautical Co, 132 NLRB 1160, 1166, 1167 (1961) 55 Participation in recruitment process does not confer supervisory status Great Northern Paper Co, 171 NLRB 824 (1968) VOLT INFORMATION SCIENCES days' vacation in September, and he helped her fix the dates by sitting down with her with a calendar The Respondent attempted to prove the existence of the policy, under which her status changed, through the testimony of Leonti and O'Connor. Leonti testified that it was company policy to place persons returning to school on temporary employment status from the time that they give notice According to Leonti, he first learned of the existence of such a policy some 2-1/2 years before the hearing His testimony on this point seemed to me to be highly unsure He interpreted the effect of such change of status as meaning that the em- ployee stopped accruing vacation leave time However, Copper's pay remained the same and it ap- peared that the leave time which she was selecting, with the help of O'Connor, took into account time which ac- crued during the remaining period of her employment after the date of her first notice to O'Connor. This would not be surprising, since the existence of the policy seems to have been news to O'Connor. He testified that he first became aware of the policy in 1980, but he was referring to a company policy which provided that it only applied to employees initially hired on a temporary basis. His testimony clearly showed the need for improv- isation in what was for him a new or unexpected situa- tion: the departure of a permanent employee for school When Copper first advised him that she was leaving, he conferred with Muccio, and testified that she told him that Copper would be on temporary status as of then. That did not stop him from sitting down with a calendar to figure her leave time accrued to the approximate time of her anticipated departure. The Respondent's counsel conceded that no written statement of this policy existed. This is remarkable when considered in the light of the Respondent's proclivity for filing and preserving all kinds of self-serving memoranda O'Connor's testimony conveyed the distinct impression that this policy was a well-kept secret Leonti's testimo- ny on this point lacked the certitude and conviction with which he had testified respecting other matters and I found it unconvincing, especially inasmuch as he and O'Connor seemed to disagree as to whether leave stopped accruing. Accordingly, I find that the existence of such a company policy, prior to the time Sheila Copper gave notice of her intention to leave, was not es- tablished Even if it had been, however, she would have been eligible to vote It is well settled that an employee is eligible to vote in a union election if he has worked throughout the eligibil- ity period, regardless of whether he intends to quit im- mediately thereafter to return to school. It makes no dif- ference whether or not such intention is announced prior to the election.56 In the present case, there is no question that Copper was hired as and worked as a permanent employee until she announced her intention to attend school. She was not a student returning to school. She entered the employment on a permanent basis All of the cases relied on by the Respondent as requir- ing a determination of ineligibility are inapplicable to 56 Computed Time Corp, 228 NLRB 1243, 1250-51 (1977), modified 587 F 2d 790 (5th Cir 1979) 333 these circumstances, as they related to students who were hired on a temporary basis Pacific Tile Co., 137 NLRB 1358 ( 1962), excluded students employed during summer vacation periods from the bargaining unit be- cause they were temporary employees The case express- ly held that further factual investigation was required in the case of two students , one of whom did not quit, but at the end of the summer went on the night shift as a regular part -time employee and one of whom had not in- tended to return to school at all but had changed his mind and quit the job after he had been granted a schol- arship . Agar Packing Corp, 62 NLRB 358 (1945), ex- pressly held that students who intended to continue their employment after the end of the vacation period were entitled to one vote and only those who intended to return to school were ineligible. Bannon Mills, 146 NLRB 611 (1964), involved students who were hired in June and left to return to school in late August and early September. I also disagree with the Respondent's contention that the challenge to Copper 's ballot is presumptively valid since there is no unfair labor practice charge pending on her behalf. Counsel's reliance on Stainless Welded Prod- ucts, 104 NLRB 204 (1953), is misplaced . That case held that, in the absence of an unfair labor practice, an em- ployee who claimed to have been discharged on account of union activities was presumed to have been dis- charged for cause, and thus the challenge to his ballot was sustained . That is not this case . Copper was not dis- charged, but left voluntarily and, as noted, the presump- tion in the case relied on by the Respondent related to the propriety of the discharge Accordingly , the challenge to her ballot is overruled 2 Diana Welcome The circumstances surrounding the termination of Diana Welcome's employment have already been re- viewed and it has been concluded that it has not been proved by a preponderance of the evidence that she was discharged because of union activities or sympathies. The eligibility of employees on maternity or sick leave to vote in an election is circumscribed by the qualification that they not have quit or been discharged.57 My findings regarding the circumstances of the termi- nation of her employment are also dispositive of the issue of the date her employment ended. Since she is deemed to have quit by reason of her failure to return to work upon the expiration of her authorized leave, the due date of her return is the date she ceased to be an employee. That date was September 1, 2 days before the election. Accordingly, the challenge to her ballot is sustained 3. Pryce, Henry, Torres, and Waite Josh Pryce, Denis Henry, Edgar Torres, and Gregory Waite were all discharged prior to the election, as fol- lows. 57 American Motors Corp, 206 NLRB 287, 291 (1973), (an employee who did not return to work within time limit set by employer's rules fol- lowing absence on approved leave was held to have quit work) 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pryce July 6 Henry August 14 Torres August 18 Waite August 25 I have concluded, on the basis of my review of all of the evidence relating to the circumstances under which they were discharged, that the General Counsel has failed to establish that they had been discharged in viola- tion of the Act. I further concluded that the Respondent had made an effective presentation that in each case the discharge had occurred for valid business reasons and not in violation of the Act. Consequently, at the time of the election, none of these parties had employee status and none of them were eligible to vote in the election. The challenges by the Respondent to their ballots must therefore be sustained. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3. The Respondent has not engaged in the unfair labor practices alleged in the consolidated complaint herein. 4 Prior to the election held on September 3, 1981, Josh Pryce, Denis Henry, Edgar Torres, and Gregory Waite, full-time employees of the Respondent, were law- fully discharged by the Respondent and were not eligible to vote in the election. Their challenged ballots should not be opened and should not be counted. 5. Prior to the election held on September 3, 1981, Diana Welcome voluntarily quit her job with the Re- spondent and was not eligible to vote in the election. Her challenged ballot should not be opened and should not be counted 6. At the time of the election held on September 3, 1981, Sheila Copper was a regular full-time employee whose status as such was unaffected by the fact that she had given the Respondent notice of her intention to leave the Respondent's employ some time after Septem- ber 3 to attend school full time. She was eligible to vote in the election and her ballot should be opened and counted. 7. At the time of the election held on September 3, 1981, Robert Porter, Frank Giordano, and Luqman Magied were employees of the Respondent who did not have supervisory status within the meaning of Section 2(11) of the Act. They were eligible to vote in the elec- tion and their ballots should be opened and counted. THE REMEDY It will be recommended that an Order be made dis- missing the consolidated complaint except with respect to the representation case. It will be recommended that the consolidated representation case be returned to the Regional Director with the direction to open and count four of the nine challenged ballots- to wit: those of eligi- ble employees Robert Porter, Frank Giordano, Luqman Magied, and Sheila Cooper and, if the four additional ballots give the Union a majority of the total vote, to certify the Union as the exclusive bargaining representa- tive of the bargaining unit, and with the further direction that in the event that after the additional four ballots have been counted the Union has less than a majority of the total vote, the Regional Director shall certify the re- sults of the election On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed58 ORDER The consolidated complaint herein is dismissed insofar as it alleges violations of the Act not found herein. IT IS ORDERED with respect to the election conducted in Case 2-RC-19116 on September 3, 1981, that the chal- lenges to the ballots cast by Robert Porter, Frank Gior- dano, Luqman Magied, and Sheila Copper be overruled, and that the challenges to the ballots cast by Diana Wel- come, Josh Pryce, Denis Henry, Edgar Torres, and Gregory Waite be sustained. DIRECTION It is directed that the Regional Director for Region 2 shall open and count the ballots cast by Robert Porter, Frank Giordano, Luqman Magied, and Sheila Copper in the election conducted in Case 2-RC-19116 on Septem- ber 3, 1981, and prepare and cause to be served on the parties a revised tally of ballots. If the revised tally re- veals that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Representative. However, if the revised tally shows that Petitioner has not received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Results of Election. 58 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses