Hussmann Corp.

National Labor Relations Board - Board DecisionsSep 15, 1988

290 N.L.R.B. 1108 (N.L.R.B. 1988)

1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hussmann Corporation and International Molders & Allied Workers, AFL-CIO, CLC. Case 15-CA- 10270-2 September 15, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 2, 1988, Administrative Law Judge J. Pargen Robertson issued the attached decision.' The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. 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, fmdings,2 and conclusions and to adopt the recommended Order. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This case was heard in Montgomery, Alabama, on 18 June 1987. The complaint, which issued on 20 May 1987, based on a charge filed on 9 April 1987, alleged that Re- spondent violated Section 8(a)(l) and (3) of the Act. In its answer Respondent admitted the comerce allega- tions that it is an employer engaged in commerce and that the Charging Party (Union) is a labor organization. Respondent did not admit, contending rather that it is without sufficient information, the allegations regarding the filing of the unfair labor practice charge. However, the original charge, the service sheet, and the postal re- turned receipt were received in evidence without objec- tion from Respondent. Those documents show that the charge was signed by the Union as charging party on 6 April 1987, that the charge was filed on 9 April 1987, and that Respondent, by Donna Wyatt, executed the postal return receipt on 20 April 1987. Because there was no evidence disputing the above-mentioned documents, I credit the above evidence. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Hussmann Corporation, Mt. Meigs, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The Respondent , a Delaware corporation with principal offices locat- ed in St Louts, Missouri , is engaged in the manufacture of coolers and freezers at its Mt Meigs, Alabama facility During the past 12 months, the Respondent purchased and received goods and materials valued in excess of $50,000 at its Mt Meigs facility directly from points located outside the State of Alabama 8 The Respondent has excepted to some of the judge 's credibility find- ings 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 We agree with the judge that the Respondent violated Sec 8(a)(3) and (1) of the Act by terminating employee George Smoke because of his union activity In doing so , we do not rely on the judge's find- ing that "several , perhaps all" the employees discharged under the Respondent 's 3-day absentee rule had been tendered greater latitude than Smoke In rejecting the Respondent 's defense that it discharged Smoke in reliance on a good-faith belief that Smoke had violated the 3-day absentee ride, we rely in particular on the judge's crediting of Smoke's testimony that he had called in on March 31 and April 2, his discrediting of Supervisor Schwalbach 's testimony that Smoke had claimed only to have called in on April 2, and his finding that the Respondent discharged Smoke without having made an investi- gation that could reasonably show that Smoke had in fact failed, in violation of the rule , to call in on any of the 3 days Clement Kennigton, for the General Counsel. Christopher C. Antone and Greg Richer Esgs. (Jackson, Lewis, Schnitzler & Krupman), of Atlanta, Georgia, for the Respondent. Gerald T Parks, Staff Representative , of Anniston, Ala- bama , for the Charging Party. 290 NLRB No. 145 FINDINGS OF FACT 1. THE EVIDENCE A. No Solicitation The General Counsel made several allegations that Re- spondent promulgated , enforced , and threatened employ- ees regarding union solicitation on 9 March 1987. Plant Manager Ned Gallis was called as an adverse witness by the General Counsel. Gallis admitted Re- spondent 's employees engaged in two union organizing campaigns , that elections were held in May of both 1986 and 1987 , and that Respondent openly opposed the Union on both those occasions. The 1987 campaign was initiated with a union meeting with some of Respondent's employees on 8 March 1987. Those employees were advised to notify Respondent that they were engaging in union organizing activities. Union Staff Representative Parks testified that employee Ray Pruett was the primary employee spokesman for the Union in 1987. On 9 March Ray Pruett rode to work with alleged dis- criminatee George Smoke. While at breakfast , en route to work, Smoke signed a union authorization card. When Smoke and Pruett arrived at Respondent 's facili- ty, they prepared to solicit union cards at the back land- ing. Pruett offered a union card to employee Morrell Foster. Foster said he had already received a union card. After a few minutes Smoke and Pruett decided to wait and tell Plant Manager Gallis about the organizing ac- tivities before continuing to solicit . They entered that plant and , between the restroom and Plant office Manag- er Gallis' were discussing the 8 March union meeting, when Supervisor Leroy Hobbs approached . According to both Smoke ' and Pruett, Hobbs said that he wanted ' Smoke did not know Hobbs by name. Hobbs, however, admitted talking to Pruett about distributing union cards HUSSMANN CORP 1109 to offer Pruett some friendly advise not to be passing cards out on company property Hobbs testified that he told Pruett "not to be handing [union cards] out after the whistle blew , or during working time " After the conversation with Hobbs, employees Pruett, Smoke, Jeff Fuller, James Goggans, and Scott Blackwell went into Plant Manager Gallis office Gallis recalled that, in addition to himself, Supervisors Leroy Hobbs, Doug Cannon , and Mike Farrell were also present Pruett told Gallis that the employees would conduct a union campaign on company property during nonwork- time Pruett went on He [Gallis] stressed it would be on our own time, and I told hum , yes, it would And he told me that passing out cards on Company time would be a vio- lation of company policy and could result in termi- nation Q Okay Then what happened9 A Doug Cannon asked me if it was going to be on company premises I told him yes , but on our own time I thanked Mr Gallis for his time and for listening to us and left the office and went to the break area to hand out union cards Gallis recalled that he told employees "On the right time I told them to be sure and do it on the rules, be sure and not do it during working time or they could get in trouble " On that same day Plant Manager Gallis prepared a memo to General Manager Tim Garvey 3/9/87 6 55 A M Ray Pruett-Spokesman Jeff Fuller Scott Blackwell James Dobbins George Smoke The above group of employees came into the shop office and advised me that they would con- duct union business on company property on their own time I accepted their demand, but told them to abide with all rules, and not to do any union business on company time or they would be in trouble They accepted my reply Plant Manager Gallis admitted that by the word "trou- ble" he meant that employees "would end up getting fired for not working, but soliciting " After meeting with Plant Manager Gallis, Smoke and Pruett solicited union cards for 3 or 4 minutes until it was time to start work Smoke testified, without rebuttal, that Plant Manager Gallis and Supervisor Jun Schwal- bach passed through the break area while he and Pruett were soliciting cards Plant Manager Gallis testified that in March 1987 Re- spondent was in the process of "revamping the rules " Gallis testified the rule on solicitation was taken down after the 1986 union campaign and was not reposted Gallis admitted that the first the employees had direct notice that there was a rule against soliciting on compa- ny time was when he told them of the rule during the 9 March 1987 meeting B George Smoke Discharge George Smoke was terminated on 2 April 1987 for the stated reason "23 days consecutive absent without notifi- cation (G C Exh 2-g) At material times one of Respondent 's work rules dealt with absenteeism and the requirement to call in 2 ANY EMPLOYEE WHO FAILS TO REPORT FOR WORK MUST CALL THE OFFICE (271- 0730) by 900 A M OF THAT DAY TO REPORT THE REASON FOR ABSENCE 'I' ANY EMPLOYEE WHO DOES NOT REPORT FOR WORK FOR THREE (3) CON- SECUTIVE DAYS WITHOUT CALLING IN WILL BE CONSIDERED TO HAVE VOLUN- TARILY RESIGNED FROM HIS JOB III The evidence demonstrated that Respondent has on regular occasions enforced the 3-day rule by discharging employees There is no question that George Smoke missed work on 31 March and 1 and 2 April 1987 The evidence is undisputed that Smoke suffered from the flu , beginning when he was at work on 30 March On 31 March Smoke visited a Dr Kulkam The statement from Kulkarn (G C Exh 7), was given to a foreman of Respondent on the afternoon of 3 April, the day Smoke was notified of his termination Although Respondent questions Smoke 's involvement with the Union in its briefs, the evidence is not disputed that Smoke engaged in union activities beginning on 9 March 1987 and that Respondent was aware that Smoke was working for the Union Plant Manager Gallis admit- ted that Smoke was one of the employees that met with him and told him of the Union's campaign on 9 March Also the evidence stands unrebutted that Supervisor Leroy Hobbs approached Ray Pruett and Smoke and spoke about union solicitation in the plant on the morn- ing of 9 March It is undisputed that Supervisor Schwal- bach and Plant Manager Gallis passed through the break area on 9 March as Smoke was soliciting union cards before work There is little controversy regarding the events that led to Smoke 's discharge On Monday , 30 March, al- though Smoke felt ill while at work, he completed the workday Ray Pruett testified that he noticed that Smoke looked ill as they rode home together after work Smoke admitted to Pruett that he was "feeling bad " On 31 March Smoke phoned the plant "around" 8 a in and said that he "would not be in , and that [he] was going to the doctor to find out what my problem was " Respondent offered no probative evidence to dispute 2I do not credit the testimony of the General Counsel's witnesses Bruce LaFogg and Dorothy Miller to the extent their testimony cast doubt on the existence of the 3-day absentee rule Both Ray Pruett and George Smoke admitted the existence of the 3-day rule 1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Smoke's testimony that he phoned in on 31 March.3 Nor is it disputed that Smoke was ill or that he visited a Dr. Kulkarn on that day. Moreover, it is not disputed that on 3 April, Smoke furnished Respondent with a statement from Dr. Kulkarn showing that he visited the doctor on 31 March. Plant Manager Gallis originally testified that Smoke should have talked to his supervisor when he phoned in. Later in his testimony, Gallas admitted that employees were not required to talk to their supervisors. The writ- ten rule requires only that employees "must call the office." Moreover, the record shows that employees rou- tinely reported to Respondent's receptionists. Therefore, Smoke's testimony that he reported his absence to the woman that answered the phone for Respondent on 31 March shows that he complied with the phone-in re- quirement of Respondent's 3-day rule. George Smoke admitted that he did not phone in on 1 April. Smoke's wife told him she would phone in, but she failed to make the call. Smoke testified that he phoned between 10 and 11 on 2 April and told the receptionist that he would not be in that day. Again there was no direct evidence disputing Smoke's testimony Supervisor Schwalbach, however, testified that on 3 April he investigated Smoke's claim and discovered that all the women that Schwalbach felt could have received Smoke's call on 2 April denied re- ceiving a call from Smoke. According to the testimony of Plant Manager Gallis, Supervisor Schwalbach came to him at 9 a.m. on 2 April and told him that George Smoke had missed 3 days without phoning m. Gallis testified the matter was cut and dry and he told Schwalbach to terminate Smoke. Gallis admitted that he conducted no investigation other than his interview with Supervisor Schwalbach. Smoke's termination report was signed by Schwalbach on 2 April 1987. The plant manager testified that Schwalbach had the "paper already filled out" when he and Schwalbach talked at 9 a.m. on 2 April. On 3 April George Smoke was phoned by Ray Pruett. Pruett told Smoke that Respondent was getting ready to terminate him. Smoke then phoned Supervisor Jim Schwalbach. Schwalbach admitted that Smoke phoned him between 8:30 and 9:30 a.m on 3 April. Both Smoke and Schwalbach testified during that phone conversation that Schwalbach told Smoke that Smoke was being terminated because he had missed 3 consecutive days without calling in. Nevertheless, a sig- nificant dispute in testimony involves one element of the Smoke-Schwalbach phone call on the morning of 3 April. According to Smoke, among other things, he told Schwalbach "that I had called in, and that I had talked to the receptionist " Schwalbach's a testimony differs from Smoke's in that Schwalbach understood Smoke to say that "he did call in on Thursday, April 1." a Super' isor Schwalbach testified that he was unaware of Smoke call- ing in on either 31 March or 2 April However, Smoke did not contend that he talked to Schwalbach, and Schwalbach admitted that he did not investigate whether Smoke phoned on 31 March Schwalbach testified Smoke told him that he phoned in on 2 April, but that Smoke said noth- ing to him about phoning in on 31 March The significance of the above dispute relates to Schwalbach's actions after talking to Smoke. According to Schwalbach he then conducted an investigation. How- ever, because Smoke mentioned only 2 April as a date he phoned in, Schwalbach specifically limited his investiga- tion to the question whether Smoke phoned in on 2 April. Schwalbach admittedly did not investigate wheth- er Smoke had phoned in on 31 March or 1 April. Ac- cording to Schwalbach, his investigation failed to sup- port Smoke's contention that he had phoned in on 2 April. On 3 April Smoke' s termination paper reached the office of General Manager Tim Garvey. Garvey testified that he called Jim Schwalbach because Schwalbach had signed Smoke's termination paper. Schwalbach told Garvey that he had talked to Smoke and that Smoke claimed he had phoned in on 2 April. However, Schwal- bach told Garvey that "he had checked out the story, and he could find no indication of the fact that [Smoke] had called." Garvey told Schwalbach he would have to notify Smoke that he was terminated. C. Discussion Despite Respondent's argument to the contrary, I find George Smoke was a credible witness. His testimony was supported by the testimony of Raymond Pruett who also impressed me as credible. The demeanor of both George Smoke and Ray Pruett convinced me that they testified truthfully Pruett's testimony was in substantial accord with the testimony of all other witnesses Only Pruett's (and Smoke's) testimony regarding comments by Leroy Hobbs was seriously disputed. George Smoke's testimony illustrated candor. For ex- ample, Smoke admitted that Respondent was not phoned on the day of his second consecutive absence. Smoke tes- tified before anyone else concerning his actions regard- ing the call-in rule when he missed work on 31 March and 1 and 2 Apnl. Despite Smoke's admission of the ex- istence of the call-in rule, Smoke admitted that on 1 April his wife failed to phone Respondent even though she told Smoke she would make the call. Moreover, Smoke's testimony accords with that of witnesses for both the General Counsel and Respondent. His testimony finds support in the testimony of Plant Manager Gallis, Supervisors Schwalbach and Hobbs, and employee Ray Pruett except as noted below. Regarding Smoke's disagreement with Supervisor Schwalbach, the dispute involves only a segment of their early morning phone conversation on 3 April. As to his disagreement with Supervisor Hobbs, both Smoke and Pruett recalled that Hobbs said they could not pass out union cards on company premises or property. Hobbs testified that he said they could not pass out union cards "after the whistle blew, or during working time." Respondent attacked Smoke's credibility regarding tes- timony that he told Supervisor Schwalbach of his 31 March visit to a doctor. However, the evidence is unre- butted that Smoke did visit Dr. Kulkarn on 31 March. A note from Dr. Kalkarn was given to a foreman of Re- spondent's on 3 April. The note, which is in evidence, indicates, according to Smoke, that he had a type of flu. HUSSMANN CORP Respondent also argues that Smoke was not at home when Supervisor Schwalbach phoned back on 3 April That testimony is rebutted by Smoke who testified it is incredible that Smoke was asleep in view of his imminent discharge, I do not find that contention incredible con- sidering Smoke's illness Also Respondent argues that Smoke 's reaction to his final discharge is incredible However, Smoke's resigned attitude is not disputed In fact Smoke's testimony re- garding his action when he came to the plant later on 3 April are in accord with the testimony of Supervisor Schwalbach That reaction does not appear strange con- sidering Smoke 's illiness Moreover, the charge itself, which was signed by the Union on the following Monday , 6 April, shows that Smoke was in fact upset to the extent of immediately contacting the Union about his discharge Schwalbach's testimony regarding Smoke 's discharge was not impressive Schwalbach recalled that he submit- ted Smoke s termination papers on 3 April However, the termination document itself and testimony of Plant Man- ager Gallis show that Schwalbach prepared the termina- tion report on 2 April Gallis testified that he talked with Schwalbach about discharging Smoke on the third day of Smoke's absences without calling in The third day was 2 April Gallis recalled they talked right at 9 am Gallis' testimony squares with the testimony of Smoke On 3 April Schwalbach admittedly talked with Smoke between 8 30 and 9 30 During that conversation he told Smoke he had already sent in Smoke 's termination papers On 2 April, according to Gallis, Schwalbach had Smoke's termination paper with him and Schwalbach said that Smoke had not phoned in on that date Gallis' testimony appears to be correct Smoke said he called in between 10 and 11 on 2 April If so , Gallis' tes- timony that Schwalbach told Gallis, at 9 a in, that Smoke had not called in that day would be in accord with Smoke's testimony On the other hand if the facts are as related by Schwalbach, then he wrote up the termination and talked with Plant Manager Gallis on 3 April Under that scenario Schwalbach would have told Gallis at 9 o'clock that Smoke had not phoned in on that date Schwalbach, however, admitted that Smoke did phone in between 8 30 and 9 30 a in on 3 April If Smoke had phoned in before Schwalbach talked with Gallis, it stands to reason that Schwalbach would not have misrepresented to his own supervisoi that Smoke had not called that day If, on the other hand , Smoke phoned shortly after Schwal- bach 's 9 a in talk with Gallas, the time would certainly have impressed Schwalbach Obviously, Schwalbach would have recalled that Smoke phoned just a short time after Schwalbach told his boss that Smoke had not called Therefore, Schwalbach's own testimony illus- trates that he was not correct when he testified that he began to process Smoke's termination on 3 April The testimony of Gallas and General Manager Garvey illus- trates that Schwalbach discussed Smoke 's termination with Gallas on 2 April and with Garvey on 3 April Because of their demeanor and the entire record, I credit the testimony of George Smoke and Ray Pruett D Findings 1 No solicitation The credited testimony shows that Supervisor Leroy Hobbs stated on 9 March , in the presence of employees Ray Pruett and George Smoke , that he wanted to offer Pruett friendly advise about not passing out union cards on company property In an on the-record discussion regardng a motion to dismiss , I commented that I did not feel that Hobbs' comments, constituted a threat of unspecified reprisals On reflection , however, it is clear that Hobbs was telling the employees not to pass out cards at the plant Obvi- ously such a comment includes a broad admonition that incorporates both working and nonworking time Moreover , immediately after Hobbs' comment, Hobbs attended Plant Manager Gallis' meeting with Smoke, Pruett, and three other employees During that meeting nothing was said to remedy any wrong impressions from Hobbs' earlier comments , and Plant Manager Gallas testi- fied that he told the employees they "would be in trou- ble" if they decided not , among other things, to "abide with all rules" (See G C Exh 3, Gallis' memorandum dated 9 March 1987) Because of the above I find, in agreement with the General Counsel , that Hobbs did implicitly threaten em- ployees with unspecified reprisals even though he began his comments by offering "friendly advise " Additionally, in that conversation Hobbs verbally promulgated a overly broad no-solicitation rule by prohibiting solicita- tion on company property Regarding the no-solicitation rule announced by Plant Manager Gallis , employees Bruce LaFogg, Dorothy Miller, and George Smoke testified they were unaware of the enforcement of a no-solicitation rule before 9 March and that employees and supervisors actually en- gaged in solicitation, including punchcards , Tupperware, and football pools during worktime and breaktime in the plant Although Supervisor Leroy Hobbs testified that he chased employee Tommie Lutlow out of his department because Lutlow was soliciting Tupperware on an occa- sion in 1986 , Hobbs admitted that he solicited football pools and asked his secretary to solicit for his son during break and nonworking time Hobbs also admitted that other employees have come to him and solicited things during worktime Hobbs testified, "I have not said any- thing to them " Orval Kent Food Co, 278 NLRB 402 (1986) Because of the above evidence and Plant Manager Gallas' admission that the no -solicitation rule was re- moved after the 1986 union campaign , I find that Re- spondent promulgated and maintained a no-solicitation rule on 9 March 1987 to discourage its employees union activities Harry M Stevens Services, 277 NLRB 276 (1985) Moreover, the credited testimony of Pruett and Smoke proves that Respondent, through Plant Manager Gallas, threatened employees with discharge if they vio- lated its illegal no-solicitation rule 1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. George Smoke The credited evidence shows that Respondent termi- nated George Smoke on 2 April because of Smoke's union activities. On 9 March Respondent learned that Smoke was one of five employees enegaged in union or- ganizing activities. Moreover, earlier on 9 March Re- spondent became aware that Smoke was directly in- volved with the leading union advocate, Ray Pruett Pruett demonstrated his leading role when he acted as spokesman at the 9 March meeting with Plant Manager Gallis. Before that meeting Smoke and Pruett had solicit- ed for the Union on Respondent's back landing and they were cautioned by Supervisor Leroy Hobbs near Plant Manager Gallis ' office. Immediately after the meeting in Gallis' office, Smoke and Pruett solicited union cards in the breakroom. Respondent, through Plant Manager Gallis, admitted its opposition to the Union. That opposition was further demonstrated by Respondent's illegal activities regarding no-solicitation. The testimony of Plant Manager Gallis illustrated Re- spondent's eagerness to terminate Smoke. At 9 a.m. on 2 April, Supervisor Jim Schwalbach presented Gallis with an opportunity to terminate one of the leading union pushers. At that time Schwalbach told Gallis that Smoke had missed 3 consecutive days without calling . In fact, 2 April was Smoke's third day of absence. Neither Schwal- bach nor anyone else had conducted an investigation to see if Smoke had phoned anyone other than Schwalbach. Although Schwalbach testified that he conducted an in- vestigation on 3 April, he admittedly never conducted a full investigation involving all 3 days of absence. No effort was made to determine what had happened to Smoke. At the direction of Gallis, Smoke was terminated on 2 April. By the above, the General Counsel has established a prima facie case that Smoke was illegally terminated. Regarding the question whether Smoke would have been terminated in the absence of union activities, the record includes documentation of nine employees, in- cluding Smoke, who was discharged in 1986 and 1987 for violation of Respondent's 3-day rule. Record documents show there were approximately 100 employees in Respondent' s bargaining unit in the spring of 1987. Although, as mentioned above, nine employees were terminated under the 3-day rule, there was no showing that any of those employees, other than Smoke, contend- ed that they did not violate the rule. Of those nine, three of the documents, other than Smoke's, indicate only that the employee missed 3 consecutive days without report- ing. Regarding others, Rob Lockhart' s termination shows that he was absent on Thursday, 5/28; Friday, 5/29, Saturday, 5/30; and Monday, 6/1, and that he was discharged on 6/1/87. Sharpe Green's termination record states, "left work station and absent 3-days without noti- fication." Randy Winters' termination record states "absent over three days without notification" (emphasis added). Gregg Zachary's record states 3-day out and Gregg went to Doctor's office and tried to get Dr. to give him an excuse from work for the week. Gregg said that he was playing in a state tourna- ment and did not want to chance hurting his knee. The Doctor told him he was able to work. The Doctor's office then called us and told us what Gregg had asked. Doug Scarbrough's termination record includes the com- ment "on pay 10 day absent 4." The above record shows that several, perhaps all, the employees discharged under the 3-day rule were ten- dered greater latitude than Smoke. Lockhart, Green, Winters, Zachary, and Scarbrough were not discharged until Respondent had justification that exceeded that af- forded Smoke. Of primary import, however, is the record evidence that shows that George Smoke did not violate Respond- ent's 3-day rule. Smoke's credited testimony shows that he personally phoned in on 31 March. That testimony stands unrebutted. Even if I should credit Jim Schwa]- bach's testimony that Smoke only mentioned phoning in on 2 April, it would remain that Smoke claimed both before and during the hearing that he also called in on 31 March. Nevertheless, no evidence was offered to rebut Smoke's testimony in that regard. I must assume that if Respondent had called its receptionists, one of them would have corroborated Smoke's testimony that he called in on 31 March 1987. Therefore, at best, Smoke had missed only 2 consecutive days without calling in when Respondent discharged him on 2 April 1987 Moreover, even if I should credit Schwalbach that he did not terminate Smoke until 3 April, the record would show that Smoke did not violate the 3-day rule Even Schwalbach admitted that Smoke phoned in as early as 8:30 a.m. on 3 April 1987. Therefore, even assuming the very best case for Respondent, it appears that Smoke missed no more than 2 days, 1 and 2 April 1987, without calling in by 9 a.m. Respondent also argues that it had a reasonable belief that Smoke missed 3 consecutive days without calling in. The credited evidence shows that Respondent had no such belief. Respondent failed to produce any evidence that Smoke did not call in on 31 March In order to es- tablish reasonable belief it is necessary to show that Re- spondent actually believed that Smoke failed to comply with the 3-day rule. As shown above it was admitted that Smoke could have complied with the rule if he phoned the receptionist on 31 March. However, Re- spondent never checked with the receptionist to see if Smoke called in on 31 March. It is beyond belief that Respondent would not have checked out Smoke's story at some point. In the absence of some showing that Smoke did not call in on 31 March, I must conclude that Respondent did not have reasonable belief that Smoke missed that day without calling in . All I have before me in the record on Respondent's side of the ledger is a showing that Jim Schwalbach and Nick Gallis agreed to discharge Smoke at their earliest opportunity-9 a.m., on 2 April 1987. At that time Respondent did not know whether Smoke had phoned in on 31 March and 1 April. It knew only that Smoke had not talked with Schwal- bach even though he was not at work on 31 March and 1 April and had not reported by 9 a.m., on 2 April. Nei- HUSSMANN CORP 1113 ther Schwalbach nor Gallis, at that time or at any time subsequently, made any effort to see if Smoke had talked with anyone else on 31 March or 1 April That evidence shows nothing more than an eagerness to terminate George Smoke It does not illustrate a reasonable belief that Smoke had violated the 3-day rule Central Manage- ment Co, 284 NLRB 825 (1987) I find that Respondent terminated George Smoke be- cause of his union activity and Respondent failed to prove that Smoke would have been terminated in the ab- sence of union activities CONCLUSIONS OF LAW I Hussmann Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Molders and Allied Workers Union, AFL-CIO-CLC is a labor organization within the mean- ing of Section 2(5) of the Act 3 by promulgating and enforcing a no-solicitaion rule on 9 March 1987 in order to discourage its employees from supporting or assisting the Union, by threatening its employees with discharge for violating its illegal no-so- licitation rule, by promulgating a no-solicitation rule pro- hibiting union solicitation on company property, and by threatening employees with unspecified reprisals if they engaged in union solicitation on company property, Re- spondent engage in conduct violative of Section 8(a)(1) of the Act 4 By discharging employee George Smoke on 2 April 1987, Respondent has engaged in conduct violative of Section 8(a)(1) and (3) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall order it to cease and desist therefrom, and to take certain affirmative aciton designed to effectu- ate the policies of the Act Having found that Respondent has illegaly terminated its employee George Smoke in violation of Section 8(a)(1) and (3) of the Act, I shall order Respondent to offer Smoke immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and to make Smoke whole for any loss of earnings he may have suf- fered as a result of the discrimination aganst him Back- pay shall be computed in the manner described in F W Woolworth Co, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 4 4 Under New Horizons for the Retarded, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Flori- da Steel Corp, 231 NLRB 651 (1977) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Hussmann Corporation, Mt Meigs, Alabama, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Discharging and otherwise discriminating against employees because of their union and other protected concerted activities (b) Interfering with, restraining, or coercing its em- ployees in the exercise of rights guaranteed them by Sec- tion 7 of the Act, in violation of Section 8(a)(1) of the Act, by promulgating and enforcing a no-solicitation rule to discourage its employees from supporting or assisting the Union, by threatening its employees with discharge for violating its illegal no-solicitation rule, by promulgat- ing a no-solicitation rule prohibiting union solicitation on company property and by threatening employees with unspecified reprisals if they engage in union solicitation on company property (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to George Smoke to his former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights or privi- leges, and make Smoke whole for any loss he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of this deci- sion (b) Remove from George Smoke's personnel file any reference to its termination of him, and notify Smoke in writing that this has been done and that the evidence of his unlawful termination will not be used as a basis for future personnel action against him (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Montgomery, Alabama facility copies of the attached notice marked "Appendix "a Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- s If no exceptions are filed as provided by Sec 10246 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 a If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. porting or assisting International Molders and Allied Workers Union , AFL-CIO-CLC or any other labor or- ganization. WE WILL NOT threaten our employees with discharge for violating our illegal no-solicitation rule. WE WILL NOT promulgate a no-solicitation rule pro- hibiting union solicitation on company property. WE WILL NOT threaten our employees with unspeci- fied reprisals if they engage in union solicitation on com- pany property. WE WILL NOT discharge our employees because they engage in union activities or other concerted activities protected under the National Labor Relations Act WE WILL NOT in any like or related manner interfere with , restrain , or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL abolish our no-solicitation rule which was promulgated in order to discourage our employees from supporting or assisting the Union , and WE WILL abolish our rule prohibiting employees from engaging in union solicitation on company property. WE WILL offer immediate and full reinstatement to George Smoke to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges WE WILL make George Smoke whole for any loss of earning he may have suffered by reason of our discrimi- nation against him with interest. WE WILL NOT promulgate or enforce a rule against so- licitation in order to discourage our employees from sup- HUSSMAN CORPORATION