Voplex Corp.

278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Canandaigua Plastics (Division of Voplex Corp.) and United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1097. Case 3-CA-12827 7 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 31 December 1986 Administrative Law Judge Martin J. Linsky issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(3) and (1) of the National Labor Rela- tions Act by suspending and discharging employee Darlene Bendzus on 9 and 11 July 1985,1 respec- tively, because of her union activities.2 The Re- spondent excepts to this finding. We find merit in the Respondent's exceptions and, for the reasons set forth below, we reverse the judge and find that the Respondent did not violate Section 8(a)(3) and (1) by suspending and discharging Bendzus. Based on the uncontested evidence showing that Bendzus was an ardent, active union supporter, both during and after the Union's organizing cam- paign, and that the Respondent had vigorously fought to keep the Union out of the plant, we agree with the judge's finding that the General Counsel made out a prima facie case showing that Bendzus' union activity was a motivating factor in the Respondent's decision to suspend and discharge her. However, contrary to the judge, we find that the Respondent has shown that Bendzus would have been suspended and discharged even in the absence of the protected conduct. Thus, we find that the Respondent has met its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),3 of showing that it had a legitimate reason ' Unless otherwise stated all dates are in 1985 2 Bendzus actively supported the Union during an organizing cam- paign, which resulted in the Union being defeated by a vote of 425 to 163 in a Board-conducted election on 24 October 1984 Following the elec- tion Bendzus continued to support the Union. 3 See NLRB Y Transportation Management Corp, 462 U S 393 (1983) for discharging Bendzus and discharged her for that reason. On 9 July there was an incident between Bend- zus and employee Regina Franceschi, who had openly supported management during the organiz- ing campaign. Bendzus, in response to being as- signed to work on one of the less favorable ma- chines, said to Franceschi, "you got away with it, didn't you crybaby."4 This comment upset Franceschi. Thomas Pickering, Respondent's pro- duction foreman, upon seeing that Franceschi was upset, asked her what happened. After Franceschi gave Pickering her version of the incident, Picker- ing called Bendzus into his office where he told her, in the presence of Albert Drauch, the Re- spondent's department manager, to stop harassing employees. Drauch added that Bendzus should stop harassing people or punch out and go home. Bend- zus returned to work. According to Franceschi, when Bendzus re- turned from the office Bendzus told Franceschi to "move your ass, bitch" and yelled that Franceschi was a crybaby. At the break Franceschi told Drauch what Bendzus had said to her and asked to be moved to a different work area. Drauch testified that after he talked with Franceschi5 he notified Lynn Robitaille, the Re- spondent's personnel manager, about the encoun- ters between Franceschi and Bendzus. Robitaille talked with Franceschi about the incidents and then discussed it, along with Bendzus' previous conduct, with Pickering and Drauch. Robitaille, Drauch, and Pickering decided to suspend Bend- zus. Pickering called Bendzus into his office and, along with Drauch, asked her if she had again har- assed Franceschi. Although Bendzus denied that she had done so,7 Pickering and Drauch notified her that she was being suspended pending further investigation. In addition to obtaining a statement from Franceschi and the conversations already held with Bendzus, management investigated the 9 July inci- dents by talking with Richard Chapman and Cyn- thia Elliott, two other employees who were work- ing in the same area. Chapman told Robitaille that he did not hear Bendzus say anything to Frances- chi. Elliott told Robitaille that Bendzus was upset * Franceschi was originally supposed to work on the less favorable ma- chine Thus, when Bendzus was assigned to the machine, she thought it was because Franceschi had complained to management and that man- agement had made the reassignment to accommodate Franceschi 5 According to Drauch , Franceschi told him that Bendzus had said to her, "I 'm going to get you, you fucking bitch " 9 Robitaille testified that Franceschi told her that Bendzus had said, "Best move your ass, bitch " Drauch testified that when he questioned Bendzus about whether she had harrassed Franceschi again, Bendzus' response was "so what " 285 NLRB No. 35 CANANDAIGUA PLASTICS 279 about having to work the less desirable machine and that Bendzus told her that she had called Franceschi a crybaby. Elliott further admitted that she may have told Robitaille during the investiga- tion that she was not paying attention to Bendzus because she was busy working. Robitaille decided not to take formal statements from either employ- ee, however, as she concluded that neither one was an eyewitness to any incident between Bendzus and Franceschi. On 10 July Franceschi telephoned Robitaille at work and told her that she would be late because Bendzus had been following her in her car and had tried to cut her off. Franceschi, afraid of what might happen, drove to her husband's place of em- ployment where she reported the matter to the police. That same day, Robitaille discussed Bendzus' conduct with Neil Rush, the Respondent's manu- facturing manager. The two jointly decided to dis- charge Bendzus based on the 9 July conduct, con- versations with Pickering and Drauch about Bend- zus' behavior, Bendzus' past record, particularly in regards to an incident with Barbara Conyard, and the phone call from Franceschi on that day saying that Bendzus was continuing to harass her.8 Robi- taille notified Bendzus that she was being terminat- ed because of her continued refusal to change her attitude towards her fellow workers and supervi- sors. The judge credited Bendzus' denial that she con- tinued to harass Franceschi on 9 July and found that the testimony of Chapman and Elliott corrobo- rated Bendzus' version of the incident.9 The judge further found that the Respondent's "rush to judg- ment in believing Franceschi over Bendzus, Chap- man and Elliott" indicated "that Respondent wanted to get rid of Bendzus because of her out- spoken pro-union sympathies." The Respondent excepts to the judge's crediting of Bendzus rather than Franceschi. We adopt the judge's credibility resolutions.1 ° We do not, how- a The judge discussed the 10 July incident at length However, because Robitaille testified that she believed Bendzus would have been discharged regardless of the 10 July incident, we find it unnecessary to comment on the incident We further give little weight to the incident with Barbara Conyard, which occurred during the organizing campaign and thus at least 8 months before the Respondent's decision to discharge Bendzus 9 Although both Drauch and Pickering testified regarding the 9 July incidents and the decision to discharge Bendzus, the judge did not discuss their testimony The judge discredited the testimony of Franceschi. 10 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 ever, agree with his conclusion that the testimony of Chapman and Elliott corroborated Bendzus' ac- count of the incident. Admittedly, the testimony of Chapman and Elliott does not corroborate Frances- chi's account of the incident either. Rather, we find, contrary to the judge, that their testimony, as Robitaille concluded, offered little to clarify the in- cident as neither Chapman nor Elliott witnessed Bendzus' action, or inaction, during the relevant time period. Consequently, we do not find that the Respondent rushed to believe Franceschi's story over Bendzus, Chapman, and Elliott. Rather, we conclude that faced with conflicting stories by Franceschi and Bendzus, and little other evidence to clarify those stories, the Respondent opted to believe Franceschi's account of what happened on 9 July.1 I Certainly, the Respondent had grounds for be- lieving Franceschi. There is uncontroverted evi- dence in the record, which the judge failed to ad- dress, showing that the Respondent had warned Bendzus about her behavior on the job, particularly her attitude toward Franceschi, on several occa- sions prior to 9 July. Drauch testified that in May 1985 Bendzus turned in a job report alleging that another em- ployee was lying about the amount of her produc- tion. Drauch discussed the job report with Bendzus who stated that Reggie Franceschi was the one lying about her production but that she did not have any proof. When Drauch asked Bendzus how she knew it was happening, she replied that she just knew it was happening and then stated, "Be- cause I hate her." Drauch told her that her feelings toward another employee were not a factor and that he needed some proof so that he could investi- gate the matter. Drauch did indeed investigate Bendzus' allegation by reviewing job reports over the next couple of days; however, after finding no reporting discrepancies, he dropped the matter. Thomas Pickering testified that Bendzus had a problem getting along with other employees, par- ticularly Franceschi. Pickering testified that he and Drauch spoke with Bendzus in April and May 1985 about the problem and that Bendzus was told that her personal feelings toward other employees were to be kept outside the plant. In May 1985 Bendzus received her annual review which stated that she showed an abrasive attitude toward other employees and that her atti- tude must improve. The review further rated her totally unsatisfactory or less than satisfactory in 11 That the judge failed to believe Franceschi has no bearing on the Respondent's giving credence to her account At most the judge's dis- crediting Franceschi vis a vis Bendzus provides part of the basis for con- cluding that the General Counsel made out a prima facie case 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD several categories relating to attitude, safety, cour- tesy, and stability. As a result of the review, which Bendzus refused to sign, it was recommended that she receive no wage increase. Pickering testified that he discussed the review with Bendzus and that she was specifically told that her feelings toward Franceschi were not a concern of the Company's and that she should stop harassing Franceschi. Bendzus was further told to avoid any situations with Franceschi. Lynn Robitaille testified that in June 1985 Franceschi gave Neil Rush a letter describing an incident in which Bendzus had harassed her. Robi- taille explained that she did not talk with Bendzus about that incident, however, because she did not become aware of it until well after it occurred. That same month, Robitaille was informed by an- other employee that Bendzus was spreading rumors about Franceschi. Based on these circumstances, we find no justifi- cation for second guessing the Respondent's reli- ance on Franceschi's account and thus cannot con- clude that the Respondent's believing Franceschi in any way indicates union animus.12 The record shows that the Respondent conducted an investiga- tion of the 9 July incident, which was neither biased nor cursory, and that based on that investi- gation concluded that Bendzus harassed Frances- chi. The record further shows that Bendzus had harassed Franceschi in the past and that she had been warned to stop doing so. Accordingly, we find that the Respondent has established that it would have discharged Bendzus even in the ab- sence of her union activities. We disagree with the judge's finding that over the years the Respondent had disciplined other em- ployees for harassment of fellow employees by is- suing warnings and that the discharge of Bendzus in this case indicated disparate treatment. The above evidence shows that the Respondent, on various occasions in the 3 months preceding 9 July, had reason to believe that Bendzus was har- assing Franceschi. On several occasions, the Re- spondent warned Bendzus that her attitude toward her fellow workers had to improve. Specifically, in May, during Bendzus' annual evaluation, she was denied a wage increase based on poor performance, particularly in getting along with fellow employ- ees. At that time, Bendzus was notified in writing 11 In so concluding, we note that Drauch's account of what Bendzus purportedly said to Franceschi differs somewhat from Robitaille's and Franceschi's accounts of what Bendzus said This difference, however, does not detract from the reasonableness of the Respondent's belief that Bendzus harassed Franceschi a second time The record shows that the Respondent discharged Bendzus for harassing Franceschi after specifical- ly being told not to do so That the witnesses' recollections of that state- ment differ does not alter that they all testified Franceschi reported that a harassing statement was made that her attitude must improve. While the record shows that the Respondent had in the past issued disciplinary warnings to employees who had har- assed coemployees, there is no indication that in any of those situations the harassment continued after the employee had been warned to stop. Here, it is clear that the Respondent warned Bendzus to stop harassing other employees and specifically told her that her attitude must improve. As Bend- zus' conduct continued even after she was warned, the Respondent determined that further action was necessary. Therefore, we find no basis for conclud- ing that Bendzus was disparately treated because of her union activity. In sum, we find that the Respondent adequately investigated Bendzus' 9 July conduct and that based on that investigation reasonably concluded that Bendzus harassed Franceschi on that date. We further find that the Respondent had, on several occasions during the months preceding 9 July, talked with Bendzus about her attitude toward fellow workers, particularly Franceschi, and told her that her attitude must improve. Therefore, we find that the Respondent has shown that Bendzus would have been discharged absent any protected activity and thus we conclude that the suspension and discharge of Bendzus did not violate Section 8(a)(3) and (1) of the Act. ORDER The complaint is dismissed. Michael Cooperman, Esq., for the General Counsel. Dorothy Rosensweig, Esq., of Melville, New York, for the Respondent. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 5 and 13 August 1985, a charge and amended charge, re- spectively, were filed by United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1097 (the Charging Party or Union), against Canandai- gua Plastics (Division of Voplex Corporation) (Respond- ent). On 29 May 1986 the National Labor Relations Board, by the Acting Regional Director for Region 3, issued a complaint, which, as amended at the hearing, alleges that Respondent violated Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (the Act) on 9 July 1985 when it suspended employee Darlene Bendzus and on 11 July 1985 when it discharged the same employee. Re- spondent filed an answer in which it admits that it sus- pended and later discharged Darlene Bendzus, but that it did not violate the Act in doing so. A hearing was held in Canandaigua, New York, on 19, 20, and 21 August 1986. CANANDAIGUA PLASTICS On the entire record in this case, to include posthear- ing briefs submitted by the General Counsel and Re- spondent, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent Canandaigua Plastics (Division of Voplex Corporation) is and has been at all times material a cor- poration duly organized under and existing by virtue of the laws of the State of New York. Respondent has maintained its principal office and place of business in Canandaigua, New York, and various other plants and places of business in New York State, including three plants in Canandaigua, and is, and has been at all times material, engaged at the plants and locations in the man- ufacture, sale, and distribution of plastic and pressed parts for the automobile industry and related services. Respondent's Canandaigua plants are the only facilities involved in this proceeding. Annually, Respondent, in the course and conduct of its business operations, manufactures, sells, and distributes at its Canandaigua plants products valued in excess of $50,000 of which products valued in excess of $50,000 are shipped from the plants directly to States other than the State of New York. Respondent admits, and I find, that it is now and has been at all times material an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that United Automo- bile, Aerospace and Agricultural Implement Workers of America. Local 1097 is, and has been at all times materi- al, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues It is alleged by the General Counsel that Darlene Bendzus was suspended from her job on 9 July and ter- minated on 11 July 1985 because of her activities on behalf of the Union. It is uncontested that Darlene Bend- zus was an active supporter of the Union during an orga- nizing campaign that terminated some 9 months before her suspension, with the Union being defeated by a vote of 425 to 163 in a Board-conducted election on 24 Octo- ber 1984. In addition, it is clear from the evidence that Respond- ent did not want its employees unionized and it fought a vigorous campaign to defeat the Union . It is further clear from the record that Darlene Bendzus continued to be prounion and would be active in future organizing efforts among Respondent's employees. Respondent contends that in suspending and terminat- ing Darlene Bendzus that it was well aware of her prounion sympathies and activities and bent over back- wards to treat her fairly. Respondent contends that it was solely motivated in suspending and terminating Dar- 281 lene Bendzus because of misconduct it believed her guilty of, to wit, harassment of fellow employee Regina Franceschi on 9 and 10 July as well as prior incidents be- tween Darlene Bendzus and another employee, Barbara Conyard It is my conclusion, on the basis of the entire record, that Respondent suspended and terminated Darlene Bendzus because of her activity on behalf of the Union. B. Discussion and Analysis The union organizing campaign, which ran from Janu- ary to October 1984, was hotly contested. Darlene Bend- zus, who began her employment with Respondent in September 1983, was a most active union supporter. She was one of the 10 to 15 most active supporters of the Union-out of a work force that numbered at least 588 employees. During the campaign she attended meetings, collected authorization cards, passed out union literature, submitted material for the union newsletter, attended the Board-conducted representation hearing 2 months before the election as a potential union witness, and wore a union T-shirt and UAW button at the plant. Darlene Bendzus' picture appeared in the local news- paper the day before the election and she was identified in the accompanying article on the upcoming union elec- tion as being the only employee who both stated she was prounion and gave her name to the paper. In February 1984-shortly after the union campaign began-Darlene Bendzus' immediate supervisor, Tom Pickering, told her that if the Union lost the election she could be one of the first persons fired. Present at the time was fellow employee Jim Briggs who told Bendzus and Pickering that his mother-in-law supported a union in a union organizing campaign where she had been em- ployed for 4 years and after the union lost the election she was fired. Pickering went on to say that Bendzus might be fired for the littlest thing even if the Union won the election. After the election, which the Union lost by a vote of 425 to 163, Bendzus was one of several employees who continued to wear a union T-shirt on the job. In addi- tion, management officials of Respondent were well aware of Bendzus' continued interest in the Union. Indeed, in the spring of 1985-just a couple of months before her suspension and discharge-Bendzus told De- partment Manager Al Drauch in a conversation in a bar following a company dinner that she was still prounion. In addition, Bendzus spoke with her fellow employees following the election and told them that they would re- organize and try to unionize Respondent the following year. Bendzus' prounion activities contrast sharply with those of fellow employee Regina Franceschi. Regina Franceschi was vehemently opposed to the Union and during the organizing campaign exercised her right to speak against the Union. She even prepared, with some assistance from management, and posted a notice on the employee bulletin board urging her fellow employees to vote against the Union. The two-page notice listed a number of benefits Respondent gave its employees and ended with the following language "on October 24th just 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD remember all these things the company had done for you, and remember your [sic] taking a chance of gam- bling all these things away by voting in a union." Regina Franceschi worked for Respondent from January 1984 to May 1986 when she voluntarily quit Respondent's employ to take a position elsewhere. 1. The 9 July 1985 incident On 9 July 1985 Bendzus and Franceschi were resched- uled to work their regular 3 to 11 p.m. shift at the plant. Bendzus, who usually operated a piece of equipment called a pad printer, was ordered to work another piece of equipment called a silk screen. When there was no more work for her to do on the silk screen she was working on, she asked where she should go next and was told to work the machine Regina Franceschi was operat- ing because Franceschi was supposed to be on the pad printer. Bendzus went to the bathroom and when she returned to the shop floor she was told by Supervisor Tom Pick- ering to work the pad printer. Bendzus thought that Franceschi had complained to management that she did not want to work the pad printer. In the past both Bend- zus and Franceschi had complained about working on the pad printer because of its fumes. As Bendzus passed Franceschi on her way to the pad printer she said, "You got away with it, didn't you, cry- baby?" Franceschi began to cry, which was not that unusual since she had cried before on the job over incidents that would not reduce most people to tears. Supervisor Tom Pickering admitted he had seen her cry before as had employee Tamara McWilliams. Indeed, Franceschi ap- peared on the verge of tears during her testimony at the hearing in this case. Supervisor Tom Pickering saw Franceschi crying and asked her what happened. Franceschi said that Bendzus said, "You finally got you way your little bitch." Pickering took Bendzus off the floor into a nearby office where he reprimanded her for saying something to Franceschi, which caused Frances- chi to cry. He warned Bendzus in the presence of De- partment Manager Al Drauch not to harass any of her fellow employees and Drauch told Bendzus either to go to work and not harass anyone else or to punch out, go home, and do not come back. Bendzus returned to the floor. A while later she took her break and when she returned to her work station, she was called into the office again where Pickering and Drauch spoke with her. They accused Bendzus of going back out on the floor after they spoke with her and har- assing Franceschi again. Bendzus denied it. Bendzus was told she was suspended pending further investigation. After Bendzus had returned to the floor after Picker- ing and Drauch first spoke with her, Franceschi had ap- proached Department Manager Al Drauch and claimed that Bendzus had again harassed her by saying "I'm going to get you. You fucking bitch." At the hearing Franceschi claimed that Bendzus had returned to the floor and harassed her for 15 to 20 minutes. The investigation of the 9 July 1985 incident consisted of management talking to four witnesses of the event: Bendzus, Franceschi, and two persons still employed by Respondent at the time of the hearing in this case, i.e., Richard Chapman (a 9-year veteran with Respondent) and Cynthia Elliott (an 8-year veteran with Respondent). Bendzus denied that she had said anything further to Franceschi after Pickering and Drauch had first spoken with her and she was corroborated by both Chapman and Elliott. Chapman heard nothing and Elliott only heard Bendzus call Franceschi a "crybaby" prior to Bendzus being talked to by Pickering and did not hear Bendzus say anything to Franceschi thereafter. It was the word of Franceschi against the word of Bendzus, Chapman, and Elliott and Respondent chose to act as if what Franceschi said was the truth and not what Bend- zus said even though Bendzus was corroborated by two long-time employees of Respondent. It makes you wonder why. As noted above, at the hearing Franceschi testified that Bendzus yelled at her for about 15 to 20 minutes and yet Chapman and Elliott did not hear it. Al- though machinery and a radio in the area made for a noisy worksite, all four employees, i.e., Bendzus, Franceschi, Elliott, and Chapman, were working in a small area and were close to each other.' Harsh words between employees on the floor were not unusual. 2. The 10 July 1985 incident On 10 July 1985, the day after Bendzus had been sus- pended pending further investigation, Franceschi called Respondent's plant and spoke with Personnel Manager Lynne Robitaille. She said she would be late for work, that Bendzus was following her in her car and tried to cut her off, and that, in fear, she had driven to her hus- band's place of employment. Franceschi claimed she told her husband that she was being followed by Bendzus; that Bendzus parked her car nearby and that Frances- chi's husband spoke with Bendzus, returned to Frances- chi, and told her that Bendzus said she was going to make life miserable for Franceschi. Franceschi told Robi- taille that she had reported the matter to the police. Respondent's personnel manager, Lynne Robitaille, ac- cepted the version of events furnished by Franceschi without question and it was part of the alleged miscon- duct of Bendzus that Respondent relied on in terminating her employment. If in fact Bendzus on 9 and 10 July did what Franceschi claimed or Respondent reasonably be- lieved she did, then Respondent would have been well within its rights to discipline Bendzus, but I conclude that Bendzus did not do what Franceschi claimed and Respondent did not in good faith believe Bendzus did it. Respondent did not conduct even a superficial investiga- tion into the events of 10 July 1985. It accepted without question the version of events offered by Franceschi against ardent union supporter Bendzus. Respondent did not interview Bendzus, Franceschi's husband, or the police to see if they had received a report that a woman was being followed and threatened by someone she knew who tried to cut her off on the road. At the hearing Franceschi testified about being fol- lowed by Bendzus, reporting the matter to the police, 1 A fifth employee, Lon Lutz, also heard nothing although Respond- ent was not aware she was a witness. CANANDAIGUA PLASTICS 283 and Bendzus' alleged threat to Franceschi's husband about making her life miserable. Franceschi's husband was not called as a witness nor was his absence ade- quately explained, e.g,, he was sick, out of town, etc. On cross-examination Franceschi claimed that the police of- ficer to whom she reported the incident was Officer Whittenburg, but it was later stipulated in the General Counsel's rebuttal case that police records reflect that no officer named Whittenburg was even on duty at the time the incident was allegedly reported and no record of a report being made existed in the records of the police de- partment. Bendzus denied the entire incident. I credit her denial and do not credit the testimony of Franceschi. 3. Franceschi's letter to Manufacturing Manager Neil Rush Respondent, in deciding to terminate Bendzus, also relied in part on an undated letter Franceschi had writ- ten to Neil Rush, the manufacturing manager, about June 1985 or approximately 1 month before Bendzus was sus- pended and discharged. In this letter Franceschi claimed that she was being harassed by Bendzus; that Bendzus had accused her of sleeping with Franceschi's boss; that when she accidently hit Bendzus with a swinging cafete- ria door at work, Bendzus cursed her and threatened to beat her up; and that she had been receiving obscene phone calls at her house and believed Bendzus to be behind them. At the hearing Respondent claimed that it did not consider at all the allegation of obscene phone calls against Bendzus . Franceschi conceded that she never told the police about the obscene calls and that the calls stopped after she had her phone number put in her husband's name. Bendzus know her husband's name. There was absolutely no credible evidence that Bendzus was involved in making obscene calls to Franceschi. After receipt of this letter, Respondent offered to change Franceschi's shift from the 3 to 11 p.m. shift to the 11 p.m. to 7 a.m. shift, but she refused the shift change, saying she could only work the 3 to 11 p.m. shift. At the hearing Franceschi claimed she could not change shifts because of a part-time job she had with a florist, but as she later explained at the hearing this part- time job was only on holidays. Respondent never at any time asked Bendzus about the truth or falsity of the allegations in the letter nor did they ever ask Bendzus to change shifts. 4. Prior incidents with Barbara Conyard Respondent, in discharging Bendzus, claimed it relied in part on two prior incidents between Darlene Bendzus and an employee named Barbara Conyard. Conyard was on longer an employee of Respondent having moved out of the area. She did not testify as a witness. The inci- dents occurred during the organizing campaign within a week of each other and came to Respondent's attention at that time. Conyard told Respondent's personnel man- ager, Lynne Robitaille, that she had two encounters with Bendzus-one in the plant parking lot and the other in the plant-and that during the encounter in the plant Bendzus slapped Conyard in the face. No details were offered regarding the incident in the parking lot. Bend- zus was interviewed by Robitaille. She told Robitaille that she was just kidding with Conyard and had acciden- tally slapped Conyard's face. 5. Overview Robitaille testified that she and Neil Rush jointly made the decision to discharge Bendzus for harassment of fellow employees, specifically Regina Franceschi and Barbara Conyard.2 Robitaille testified that she believed that Bendzus would have been discharged even if they had no report about Bendzus following Franceschi on 10 July 1985. Respondent has approximately 600 employees and yet only one other employee of Respondent other than Bendzus had ever been fired for harassment of a fellow employee and that was Dawn Penner in 1984. Penner, according to Robitaille, had been warned "nu- merous times" by her supervisor to stop harassing a fellow employee. The straw that broke the camel's back occurred in February 1984 when Penner so harassed a fellow employee that this employee became physically ill and production on the line was interrupted. In Bendzus' case production was not interrupted. Over the years Re- spondent has disciplined other employees for harassment of fellow employees, e.g., Michel, Rogalinski, Dumas, Reeves, Berna, Green, Waugh, Van Gorden, Tuttle, Berry, and Steiner, but in all these cases warnings were issued and no one was discharged. This is strong evi- dence of disparate treatment that can only be explained by Bendzus' prounion posture. A comment on the credibility of Regina Franceschi and Darlene Bendzus is in order. Based on demeanor I credit the testimony of Darlene Bendzus. Based on de- meanor and because I find her testimony to have been seriously undercut by other credible evidence, I discredit the testimony of Regina Franceschi. I found Bendzus to be a blunt, candid, and honest witness. I found Frances- chi to be less than credible. She impressed me as being something of an actress-and not a very good one. Respondent's rush to judgment in believing Franceschi over Bendzus, Chapman, and Elliott concerning the events of 9 July 1985 and in so believing Franceschi's version of the events of 10 July 1985 that Respondent did not even bother to ask Bendzus about it, lead me to the inescapable conclusion that Respondent wanted to get rid of Bendzus because of her outspoken prounion sympathies and seized on the opportunity to do so pre- sented by Franceschi. I note it would not have been too much longer before the Union could have tried again to unionize Respondent's employees. A piece of Respond- ent's campaign literature introduced into the record at the hearing contained the following language "union sup- porters in the plant have already shown that they do not respect the rights of anyone who disagrees with them." The union supporters were accused of engaging in a "campaign lies and intimidations." In reaching these conclusions. I rely on analysis devel- oped by the Board in its landmark decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), which analysis 2 Neil Rush did not testify 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD received approval from the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The General Counsel has met his burden of proving by a preponderance of evidence that Darlene Bendzus was suspended and discharged because of her activity on behalf of the Union, which activity is protected concert- ed activity under Section 7 of the Act. Respondent at- tempted to show that it had cause to suspend and dis- charge Bendzus and disciplined her for those reasons and not because of her union activity. But Respondent did not prove that to me by a preponderance of the evidence and, in any event, even assuming Respondent had cause to discipline Bendzus based on her prior incidents with Conyard and her inability to get along with Franceschi, the General Counsel has proven by a preponderance of the evidence that the real reason or motivating factor in the disciplining of Bendzus was her union activity and that Respondent would not have disciplined Bendzus absent union animus and Bendzus' ardent support of the Union. REMEDY The remedy in this case should include the posting of a notice and the reinstatement of Darlene Bendzus with a make-whole remedy. Respondent should, of course, be ordered to cease and desist from this or similar miscon- duct. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and in operations affecting commerce , within the mean- ing of Section 2(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. By suspending and discharging Darlene Bendzus be- cause of her protected concerted activity on behalf of the Union, Respondent violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]