Leas & McVitty, Inc.

National Labor Relations Board - Board DecisionsOct 28, 1965

155 N.L.R.B. 389 (N.L.R.B. 1965)

LEAS & McVITTY, INCORPORATED 389 record shows that each of these men registered for unemployment compensation, complied with all the requirements therefor including that of making an independent search for employment, and that none was ever refused a compensation check for .any reason, including the failure to make such an independent search for work. The record here shows that each discriminatee made a search for work over and beyond mere registering for unemployment compensation. Consequently, I must find that none of the discriminatees suffered any willful loss. At the hearing Respondents made the contention-not repeated in its brief-that all these discriminatees had to do to secure employment, as they well knew, was to :apply at Respondents' Reynolds Pallet and Box Company at Maude, Ohio. How- ever, the evidence showed that several did in fact attempt to make such applications there only to find the gate to the plant locked with a sign thereon reading "No Work Available"-which may account for the absence of this contention in the brief. B. Conclusions Therefore, I accept the aforementioned backpay specifications with the changes :mentioned heretofore in its entirety. Leas & McVitty, Incorporated and International Union of Dis- trict 50, United Mine Workers of America . Cases Nos. 5-CA.- 0994 and 5-RC-4873. October 08,1965 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On June 25, 1965, Trial Examiner George A. Downing issued his Decision in the above-entitled proceedings, finding that the Respond- -ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain .affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. In addition, he recommended the overruling of the objections to the election in Case No. 5-RC-473. Thereafter, the Respondent filed exceptions, and the International Union of District 50, United Mine Workers of America, herein called the Union, and the General Counsel filed exceptions and supporting briefs to certain findings and conclusions in the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial. Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire rec- 155 NLRB No. 43. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ord in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions and modi- fications noted below.' The Union's objection to the election in Case No. 5-RC-4873 related to Harrison's discharge on November 19, 1964, and was grounded on the same conduct which was alleged as an unfair labor practice and liti- gated in the above-consolidated hearing. The Trial Examiner found that the discharge of Supervisor Harrison was in reprisal for his testi- mony as a union witness at the representation hearing held in October and November 1964, and thereby violated Section 8(a) (1) of the Act. The Trial Examiner in support of his finding pointed out that the manifested intent and the net effect of Harrison's discharge immedi- ately after the conclusion of the representation hearing was to cause nonsupervisory employees reasonably to fear that Respondent would take the same action against them if they testified against Respondent in a Board proceeding to enforce their guaranteed rights under the Act. We agree with the Trial Examiner's findings. However, we are unable to agree with his ultimate conclusion that such conduct was not also sufficient to set the election aside. It is clear that the Respondent's unlawful conduct which occurred during the critical period 2 constituted not only a threat of reprisal against employees if they testified against the Employer in a Board proceeding, but reasonably caused employees to fear for the protec- tion of their rights guaranteed under Section 7 to engage in self- organization and freely to select a bargaining representative. Thus Harrison was not only the instigator and chief mover of the Union's organizing drive, but he acted as a "central drop" or "contact man" for employees who were engaged in solicitation, and was known through- out the plant as one of the leading exponents of union organization. The discharge demonstrated graphically to rank-and-file employees the extreme measures to which the Employer would resort in order to thwart employees in their desire to join or assist a labor organization. Accordingly, we find that the conduct which was violative of Sec- tion 8(a) (1) of the Act interfered with the exercise of a free and untrammeled choice in the election involved here and deprived the employees of their right to express a free choice in the election. More- over, the Board has consistently held that conduct of this nature which i For the reasons stated by the Trial Examiner , we agree that the 23 union authori- zation cards obtained by Harrison cannot be counted as valid designations in determining union majority . However, in this regard, we further rely on record evidence showing that from Tuesday, September 15, through the end of that week, Harrison was in com- plete charge of the cutting department in Supervisor Bales' absence , and, during this very period of time , Harrison obtained signatures on some 20 of the 23 cards , and in at least one instance threatened an employee with reprisals in connection with working conditions if the employee did not sign the card. 2 The critical period fell between September 25, the date the representation petition was filed , and December 29, the date of the election LEAS & McVITTY, INCORPORATED 391 is violative of Section 8 (a) (1) is, a fortiori, conduct which interferes with free choice in an election. See Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786; Playskool Manufacturing Company, 140 NLRB 1417, 1419; and Ideal Baking Companay of Tennessee, Inc., 143 NLRB 546, 552553. Accordingly, we shall therefore set aside the election of December 29, 1964, and direct the Regional Director for Region 5 to hold another election at such time as he deems circum- stances permit a free choice of a bargaining representative. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondents, Leas & McVitty, Incorpo- rated, Pearisburg, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. Add the following paragraph 2(b), and consecutively reletter the present paragraph 2 (b) and those following : "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 2. The citations to Crossett Lumber Company and Isis Plumbing & Heating Co., cited in paragraph 2(a) are corrected to read "8 NLRB 440" and "138 NLRB 716," respectively. IT IS FURTHER ORDERED that the election held on December 29, 1964, among Respondent's employees be, and it hereby is, set aside, and that Case No. 5-RG4873 be remanded to the Regional Director for Region 5 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Text of Direction of Second Election omitted from publication.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The complaint proceeding , Case No . 5-CA-2994 , supra, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat 136; 73 Stat. 519), was heard before Trial Examiner George A. Downing in Pearisburg , Virginia, on March 24 through 26 and April 12, 1965, pursuant to due notice . Consolidated therewith by order of the Regional Director was a hearing on an objection to the election in Case No. 5-RC-4873. The complaint , which issued on January 26, 1965, on charges and amended charges dated November 21 and December 7, 1964, and January 6 and 19, 1965 , alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1), (3 ), (4), and (5) of the Act by discriminating against Luther Harrison on 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' October 15 , 27, and 28 and by discharging him on November 13, because of his, union membership and activities and because he gave testimony at a Board hearing and by refusing to bargain on and after September 28 with the Union as the repre- sentative of its employees in an appropriate unit. The objection to the election in Case No. 5-RC-4873, on which the Regional Director ordered a hearing, related only to Harrison 's discharge . Respondent answered , denying the unfair labor practices. Upon the entire record in the case, and from my observation of the witnesses, 1 make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent, a Delaware corporation , operates a leather tanning plant at Pearisburg„ Virginia, from whence it ships annually to extrastate points goods valued in excess of $50,000. It is therefore engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization within the meaning of Section 2(5), of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction ; the representation proceeding ; the issues Respondent operates plants at Pearisburg and Salem, Virginia , some 60 miles apart„ both of which have been the object of various unsuccessful organizational drives in the past. The present proceedings arose from a campaign ( also unsuccessful ) involv- ing the Pearisburg plant which began around September 13, 1964, and which was. followed by a request to bargain dated September 23 and the filing of a representa- tion petition on September 25. On September 28 Respondent refused recognition, asserting doubt of majority. Hearings were held in the representation case on October 15, 27, and 28 and November 16, with Respondent contending in part that the unit should include both, the Salem and the Pearisburg plants. There was also dispute as to the supervisory status of some nine individuals including Luther Harrison , who testified first as the Union's witness and was later recalled by Respondent . It was agreed that seven of the nine might vote challenged ballots and that the Regional Director would make a• determination of the status of the other two (Homer Lindsey and R. L. Stafford). By his decision issued December 1 the Regional Director found appropriate a production, and maintenance unit limited to the Pearisburg plant, found Lindsey to be a super- visor, and found the evidence inadequate for determining Stafford's status. The election was held on December 29, with the Union receiving 71 votes, with 102 votes being cast against it , and with I1 challenged ballots. On January 5 the Union filed its objection based on "conduct of company and Board agent ," and on January 6 it filed a clarifying statement in which it limited its objection to the alleged discriminatory discharge of Luther Harrison on November 19. Aside from the refusal to bargain , the only unfair labor practice alleged in the complaint and litigated at the hearing was the discharge of Luther Harrison, which constituted also the sole ground of the Union 's objection to the election . And since the General Counsel's refusal-to-bargain theory is based on the Bernel Foam doctrine (Bernet Foam Products Co., 146 NLRB 1277 ), it follows that unless it is established that Harrison 's discharge was an unfair labor practice ( to which the Union 's loss of the election may be attributed), there is no basis for ordering that the election be set aside and no basis upon which a refusal to bargain may be found . Irving Air Chute Co., Inc., 149 NLRB 627. If Harrison 's discharge be unlawful, how- ever, then numerous factual issues arise under the refusal -to-bargain allegation concerning the Union 's majority status. In dispute are some 18 individuals whose status was not determined in the representation proceeding as well the validity of many cards offered to prove majority , including some 23 which were solicited by Harrison. Since Respondent defended Harrison 's discharge mainly on the ground of improper performance of his supervisory duties, we begin with the preliminary but nonetheless, crucial issue of his status. B. The supervisory status of Luther Harrison Respondent 's plant is comprised of a large number of separate buildings and instal- lations located on a fenced tract whose dimensions, though irregular , are roughly 800 feet by 800 feet. There are 10 separate departments within that area, in which a total of some 185 employees work under the overall supervision of Plant Manager LEAS & McVITTY, INCORPORATED 393 C. J. Taylor. Under Taylor, William Ratcliffe supervises some five departments, C. W. Wilburn supervises four ( including cutting), and Clyde Nuckols supervises the maintenance department. In addition there is a leader or leadman in each depart- ment, including Graham Bales, admittedly a supervisor in cutting, and Homer Lindsey in maintenance (with only 12 employees), who was found by the Regional. Director to be a supervisor. The cutting department (with 25 employees) occupies, with bend finishing, physi- cally separated portions of a building which is located in the most remote corner of the plant property and which is separated by a railroad siding from other main plant buildings; it is some 200 yards from the plant office and more than 300 yards from some of the other departments. The cutting operations which are performed there have nothing to do with the tanning of leather, with which the rest of the plant is con- cerned, and it is in effect practically a separate plant, or at least a completely separate department, with its own account numbers and its own system of accounting. Indeed the department was transferred to Pearisburg in 1961 from Philadelphia, where it was a separate plant, and employees from Philadelphia were sent to Pearisburg to train the employees. At that time both Bales and Harrison were trained for 3 months as foremen of the department, following which they were called to the plant office where Wilmer Souder (general manager of the Salem and Pearisburg plants) informed them that Bales had been chosen as foreman, that Harrison was to serve as the "number two man," and that in Bales' absence Harrison was to be in charge of the department and responsible for its operation in the same manner that Bales was when he was present. Testifying at the representation hearing, Harrison plainly made out a case of super- visory status for Bales and himself. Thus he testified that Bales had the authority to, change or alter the status of the employees under his supervision and to make work assignments , assigning employees to any job within the department; that if a man was, not doing his work, Bales was authorized to send him to the office and that Bales had, and exercised, the authority to recommend disciplinary action and effectively to recommend transfers. Bales also had the authority to assign extra or "task" work to employees, to allow them extra pay for it, and to initial the timecards approving such extra work without getting permission from Taylor to do so. Cf. Lyon, Incorporated, 145 NLRB 54, 55, footnote 2. Harrison testified further that he himself was given, and that he exercised, exactly the same authority during the periods when he was acting as foreman in Bales' absence. Thus he testified that after Bales was chosen as foreman he (Harrison) had several times taken over when Bales was off, "for maybe 2 or 3 weeks at a time, and I was told when I took over to place the men around where I need them, tell them what I want to do, and get the production out. And that's what I done." Harrison testified further that he was responsible for production in the department in Bales ' absence and that if he needed to change employees from one job to another, he would "shift them around here and there to get my day's work out " He testified further that he made recommendations for promotions both to Taylor (in Bales' absence) and to- Bales, though he did not know whether his recommendations were acted upon. Indeed, Harrison testified that he knew the operations and the jobs in the cutting department better than Bales, that he felt he had more training as a supervisor than Bales, and that whenever Bales was absent, even for as little as an hour a day, he took. over, testifying: It might be he has left and gone up town for an hour or two and said for me to watch out, for me to watch for things until he got back; that right. It was thus apparent from Harrison's testimony that during periods of Bales' absence he regularly acted as the supervisor, with exactly the same responsibility for operating the department and exercised exactly the same authority as Bales had in directing the employees; and those facts accorded precisely with the testimony of- Taylor, Wilburn, and Bales at the present hearing. There was little in the remainder of the record to offset the plain import of the foregoing evidence save for Harrison's studied attempts at the present hearing to qualify damaging aspects of his former testimony and to dilute and diminish his former claims of supervisory authority. But those efforts were wholly unpersuasive- in view of the fact that Harrison's prior sworn testimony accorded with Respondent's evidence here. Furthermore Harrison continued to admit that he was placed in full charge of the cutting department approximately 3 weeks a year, that he did exactly the same things as Bales did except for certain paperwork, and that he directed the men where they were to work and assigned them to their jobs in the event there were not enough men to do the job. His denial that he was in charge for brief periods during the day when Bales was absent was contradicted by his former testimony to the contrary and by Bales' similar testimony. His denial that he could initial timecards; 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for extra work without the permission of Taylor or Wilburn was also in conflict with his former testimony that he exercised the same authority as Bales and was contra- dicted also by the denials of Taylor and Wilburn that approval by them was necessary. 1 credit the denials of the latter. There was also testimony by Ulmont Reynolds, Jr., an employee in the cutting department, that he regarded Harrison as a supervisor at all times when Bales was not in the department, including short absences for as little as 20 or 30 minutes; and it was stipulated that many other employees in the department would testify to the same effect if called. Furthei evidence related to Harrison's supervisory status in 1964. Before leaving on a week's vacation in May, Bales called the men together and informed them spe- -cifically that Harrison would be in full charge of the department and that they were to carry out his orders. Harrison was also in charge of the department during Bales' subsequent 3-day vacation on August 24, 25, and 26 and during Bales' absence because of illness from Septmeber 15 through 18, inclusive. Bales' total absences in 1964, through the latter date, aggregated 13 days. A night shift was set up in the cutting department from July 5 through August 23, with Harrison and some two or three employees. Taylor directed Bales to put Har- rison in charge and Bales testified that he did so, that Harrison was in complete charge, and that he himself paid no particular attention to the night shift. Harrison denied that he was in charge and testified that no one was, that the men reported to Bales before he left, and that Bales gave the instructions as to what was to be done. 'Since the shift was a full one of 8 hours and since the evidence showed that Bales was not present during much of it, I do not credit Harrison's testimony that no one was in charge, and I credit instead the mutually corroborative testimony of Bales and Taylor that Harrison was put in charge. Indeed, it is inconceivable in view of Harrison's regular exercise of supervisory authority over a work force of 25 employees ,on the day shift that he would not have exercised similar authority in Bales' absence over a crew of two or three employees on the night shift. The General Counsel relies in part on the testimony of Assistant Plant Manager Wilburn at the representation hearing that the leadmen in four departments, including -cutting, reported to him, and that he checked with them several times a day on his routine tours through the departments. Insofar as that testimony concerned the cutting department, however, its effect was sharply diminished by testimony at the present hearing which showed that Wilburn's supervision of that department was of a limited type. Thus Taylor testified that the cutting department was only partly under Wilburn, that it was partly under Taylor, and that Bales reported partly to him and partly to Wilburn. Wilburn's partial connection with cutting was explained by Taylor as resulting from Wilburn's limited knowledge of its operations, less than either Bales or Harrison's because of the special training they had received and in which Wilburn did not participate. Thus Taylor testified Wilburn's connection with the department was limited to an occasional check of the quality of the stock and to helping supply men when needed. Indeed, Taylor's testimony to the foregoing effect was in full accord with Har- rison's testimony at the representation hearing that Wilburn, being untrained in the cutting department, knew nothing about the quality of the work or about certain operations and that Harrison therefore knew more about the department than Wil- burn, who relied on Harrison's judgment concerning problems which arose Also relevant under the General Counsel's contentions are the facts that Harrison's benefits, such as vacations and sick leave, were the same as those given to the employ- ees, that he punched a timeclock as they did, and was paid an hourly rate instead of a salary. His rate of $1.80, which was also received by 2 other of 24 employees, com- pared with a low of $1.35 and with an average rate of approximately $1 63. Har- rison's rate, compared with Bales' pay in turn, would result in weekly compensation of $72 for 40 hours (without regard to overtime work or pay) while Bales' salary reduced to a weekly basis amounted to about $83. However, as a salaried supervisor, Bales presumably received no extra compensation for overtime work. Other evidence concerning the duties of leadmen and their assistants in other departments (with whom the General Counsel suggests comparisons) is of little significance in view of the origin of the cutting department, its location and physical separation from most of the plant, and the unique position which it occupied, uncon- nected with the plant operations. Furthermore there was not as to other departments any such showing of supervisory authority as Harrison made out for himself and which the evidence confirmed. Concluding Findings This is not a case where an employee substituted for his supervisor on sporadic ,or infrequent occasions. To the contrary Harrison served regularly not only during LEAS & McVITTY, INCORPORATED 395 substantial periods of illness and vacation but also during Bales' brief and temporary absences from the department. Such regular performance of supervisory functions and exercise of supervisory authority plainly qualified Harrison as a supervisor within the definition of Section 2(11) of the Act. The Board has frequently held that a substitute for a supervisor during vacations or absences from the plant is a supervisor and that an individual is a supervisor although lie does not assign work, if he is solely responsible for the production of employees under him at a time when no other supervisors are present in the department. Phalo Plastics Corporation, 127 NLRB 1511, 1513; The Bama Company, 1145 NLRB 1141, 1143. Cases cited by the General Counsel are not in point for none of them involved a supervisor like Harrison who regularly exercised his supervisory powers and respon- sibly directed the employees during substantial periods. In Frederick Steel Company, 149 NLRB 5, for example, the Board held an employee not to be a supervisory although he had a key to the plant, substituted for the supervisor in the supervisor's absence, could direct and fire employees when acting as substitute supervisor, and was referred to as "boss" by the employer, because the employee merely substituted sporadically for the supervisor and his authority during the supervisor's absence was limited to the handling of routine matters in carrying out the supervisor's orders. See 57 IRRM 1285, 1286. Other cases are wider of the mark and need not be reviewed seriatim . Indeed in citing them, despite their obvious factual distinctions, the General Counsel seems to assume that Harrison's testimony at the representation hearing, though now fully confirmed, is not to be credited. The General Counsel also points to the fact that Respondent's initial position at the representation hearing was that not even Bales (or any other leadman) was a supervisor. But the record in that case showed that Respondent promptly abandoned its claim after Harrison testified, stipulated that Bales was a supervisor, and announced its contention that Harrison, as an assistant foreman, was also a supervisor. So to conform one's legal position to the evidence cannot be regarded as diminishing the force or weight of the evidence which impelled the amendment, though Respondent's change of position at the time bears significantly on the motive for Harrison's dis- charge as will later be seen . Section C, infra. I therefore conclude and find on the entire evidence that Harrison was a supervisor within the meaning of Section 2(11) of the Act. C. Harrison's discharge The evidence is undisputed that Harrison was the leader and the central figure in the early stages of the Union's campaign. Thus, on September 12 Harrison made the initial contact with Harry Duncan, the Union's representative; he formed the organizing committee of 8 persons at Duncan's request; he solicited and obtained the signatures of some 23 employees both in his own department and in others; and he acted as a "central drop" or "contact man" for the other employees who were engaged in solicitation. The foregoing activities ended, however, on September 23, Harrison's last work- day, for he went to the hospital for an operation on September 24 and was thereafter on (compensable) sick leave until his discharge. During the latter period he visited the plant on October 7, 9, 16, 28, and 29 and November 11, and he attended the representation hearing on October 15, 27, and 28 and November 16, testifying on October 15 and 28. Harrison attempted unsuccessfully to return to work on Novem- ber 16 and 17 and was terminated by Taylor on November 19 by a separation notice in which Taylor stated as the reason: SUPERVISOR WHO DID NOT PERFORM HIS SUPERVISORY DUTIES, SATISFACTORILY .... Taylor testified at one point that his reasons included certain incidents of solicitation (and one alleged threat) which occurred both before September 23 and during. Harrison's later visits to the plant and his alleged insubordination on November 16 when he reported for work. Such conduct was claimed to be violative of Respondent's posted rules, one of which prohibited insubordination in terms and another the dis- tributing of written or printed matter unless approved by the manager. Except for the alleged insubordination, the incidents directly involved Harrison's union activities and two of them concerned the period prior to September 23, with which we begin. After Bales returned from his illness on September 21, Perry Farewell, Jr., an, employee in the cutting department, reported to Bales that Harrison had solicited him to sign a union card on the job on Friday, September 18. Bales testified that he delayed reporting the matter to Taylor for several days because he was concerned that Harrison could possibly lose his job over it. Thereafter Taylor investigated by calling in Farewell and taking a written statement from him. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Bales and Taylor testified that Farewell reported that Harrison threatened to "get even" with Farewell if he did not sign a card , but Farewell was less explicit. Thus, the latter testified that what Harrison did was remind him of occasions when Harrison had let him off early (another significant factor concerning Harrison's supervisory status ) and to suggest that Harrison might "stop all that " if Farewell did not sign . Pressed further by leading questions , Farewell testified he understood Harrison to mean that Harrison would "get even " with him, which in turn he under- stood to be a threat. Taylor's testimony also showed that he mistakenly assumed that Harrison 's solicita- tion of Farewell had occurred in the rolling department , some 900 feet from the cutting department , but Respondent 's counsel later conceded that that was an error. Taylor also testified that around October 1 , Robert R. Stafford , Sr., leadman in the loft and rolling department , reported that Harrison solicited Oran Pennington and Emmett Fleeman on September 18, while they were operating their machines. Taylor testified that he "completed " his investigation of that incident around Novem- ber 12 to 14 by calling in the men, who verified those facts. Pennington , called as Respondent's witness , affirmed the occurrence of the solicitation , his report to Stafford, and the subsequent questioning by Taylor. Neither Stafford nor Fleeman was called. Though Taylor also testified to receiving information that Harrison solicited or distributed literature in various parts of the plant during his visits while on sick leave, Respondent did not establish by credible evidence that any such conduct -occurred or that the information concerning it reached Respondent prior to Har- rison 's discharge . Thus the only direct evidence concerning such activity was given by Oakley Ratcliffe , who testified that on Friday, October 9, he saw Harrison pass out papers or material to Billy Harry in the oil room , but that he reported that fact to no one except his cousin Lacey. Lacey affirmed that Oakley told him of the alleged incident but he testified in turn that he reported the matter to no one. Both Harrison and Harry denied that the incident occurred , and I credit their mutually corroborative testimony since Oakley Ratcliffe was corroborated only on the collateral point that he informed his cousin of the alleged incident . Aside from the foregoing it is apparent from the testimony of both Ratcliffes that such knowledge as Respondent gained would have reached it during its trial preparations , and it therefore could have formed no part of the alleged basis for Harrison's discharge. Furthermore it is undisputed that from September 21, when Bales got the first report from Farewell , until Harrison 's discharge Respondent did not confront Har- rison with any of the foregoing matters despite frequent opportunities to do so during his visits to the plant and his attendance at the representation hearing. In partial -explanation Taylor testified that his investigation of Stafford's report was not com- pleted until the second week in November (which was after Harrison 's two appear- ances as a witness ) and that "during that time" he did not recall seeing Harrison on the premises . But it was at that time , Taylor continued , that he discussed with 'General Manager Souder the results of his investigation and they reached the conclu- sion that they should terminate Harrison "due to him being a supervisor and not doing his supervisory duties satisfactorily." At another point, however , Taylor testified that he ultimately decided to discharge Harrison "several days" after Harrison failed to report to him as directed on Novem- ber 16 , and that a part of the conduct which he considered to be unsatisfactory was Harrison 's alleged insubordination on the latter date. We therefore turn to the events surrounding Harrison's attempts to report to work. On November 10 Harrison 's doctor notified Taylor that Harrison should be able to return to work on November 16 but that neither strenuous physical exertion should be required nor outside work involving prolonged exposure to cold. Harrison testified that on November 11 and 12 he had discussions with Taylor concerning the qualifica- tions contained in the doctor 's report and Taylor stated he would have to take the matter up with Souder and would let Harrison know; that not having heard from Taylor, he went to the plant on November 16, clocked in his card which was in the rack, and went back to his department . Wilburn informed him that Taylor bad -called in and left instructions that Harrison was to go home and wait until Taylor notified him when to return to work. Wilburn testified that pursuant to Taylor's instructions he informed Harrison, before Harrison started to work, that Harrison should see Taylor first and that he should not punch in his timecard Harrison replied , however, that he was going to punch in anyway because he wanted to be sure that he had a record that he came in to work and also commented that he did not see why he could not go back to work like anyone else who came back off of sick leave . An employee, Thompson L. Pfaff, ',corroborated Wilburn's testimony. LEAS & McVITTY, INCORPORATED 397 Narvell Raines, an office employee, testified in turn that he relayed to Wilburn Taylor's instruction to inform Harrison not to punch in or go to work until he saw Taylor. Shortly thereafter Harrison came to the office and sought a written statement from Raines concerning the contents of the message to Wilburn. Raines repeated Taylor's message orally but refused to put it in writing. He did not ask Harrison to wait for Taylor because he assumed Wilburn had already done that. Harrison testified that after he left the plant he went to the representation hearing, that he saw Taylor there, and that he reported to Duncan (the Union's representative) that Taylor would not let him start to work. Duncan then talked with Taylor and reported back to Harrison, who went immediately to Pulaski and obtained from his doctor a signed certificate that he had recovered from his surgery and might return to any work he was doing before September 28 Harrison testified that on Novem- ber 17 he took the certificate to Taylor and that Taylor stated he would have to look into it and would let Harrison know later. On November 18, Harrison wrote Taylor as follows: I reported to work on November 17, 1964, with a statement from my doctor dated November 16, 1964, releasing me from his care. You refused to allow me to return to work on November 17 or give me a satisfactory reason as to why I could not return to work. Therefore, through this letter, I am requesting an answer from you returning me to work immediately, `or giving me a written reason as to why. I shall be awaiting your prompt reply in this matter. Testifying as a witness, Taylor acknowledged receipt of both the doctor' s release and of Harrison's letter , and he made no direct denial of Harrison's visit on the 17th or of the statements contained in the letter concerning what occurred at the time. He did, however, make a general denial that Harrison ever came into talk with him about the reason why Harrison was not returned to work and testified that he was prepared to tell Harrison why he was to be discharged but had no opportunity to do so because Harrison did not come in to see him as requested. Without acknowledging Harrison's letter of the 18th, however, and without taking issue with the statements contained in it, Taylor issued the separation notice on November 19. Taylor explained his failure to discuss with Harrison the latter's violation of company rules prior to November 16 on the ground that he was investigating Harrison's activities and that normally such discussions would await the employee's return to work from sick leave. Taylor admitted that Respondent did not pay Harrison for the 3 days of sick leave during which he was in attendance at the representation hearing. He testified that it was not the usual procedure to pay other men for time off when they were actively engaged on union matters and that on past occasions when the employees served as union observers, they were not paid. That practice was followed specifically on the date of the election in the case of three employees who had attended a preelection conference and later served as ushers or observers in the election.' Bearing further on the issue of motivation was the following notice to employees, over Taylor's name, which was posted on Respondent's bulletin board in January: We understand that an agent of the NLRB will be in town the first of the week to investigate the Luther Harrison case. No employee has to make a state- ment but if you do make a statement it does not have to be put in writing and if you do put it in writing you do not have to swear to it, however, if you do make a statement to the investigator, be certain that you tell the absolute truth because the Company will have to see it in order to cross-examine the person who made the statement if the case should go to court. Concluding Findings It was plain from all the evidence that though Respondent was aware by October 1 of Harrison's earlier organizational activities in the plant (and his violation of rules), it did not consider discharging him until after he testified in the representation hearing. Taylor then set about confirming what he already knew through Bales and Stafford and what he had previously confirmed through Farewell; i.e., that Harrison had 'I do not credit testimony by Carroll Lucas, denied by Bales, concerning an alleged conversation in which Bales conceded or inferred that the reason assigned for Harrison's discharge on the termination slip was trumped up or a sham. Lucas' testimony was sub- stantially qualified and weakened on cross-examination, and he admitted further that Bales knew of his long-standing friendship with Harrison. I consider it most unlikely under the circumstances that Bales would concede to Lucas that Respondent's case against Harrison was false. Furthermore, under Lucas' testimony it was he who referred to the reason stated on the termination slip ; Bales testified he never saw the slip. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solicited employees while at work on September 18. It was then for the first time that Harrison's conduct became sufficiently serious in Respondent 's eyes to warrant dis- charge, but what made it so , by Taylor's explicit statement , was that it established that Harrison was not performing his supervisory duties properly at the time. Yet Respondent had at no time considered Harrison to be a supervisor until he testified, contending previously that not even Bales was a supervisor. Thus was Taylor shown to have set about building up reasons to support a discharge inspired directly by Harrison 's testimony concerning the supervisory status of Bales and himself . Viewed timewise , the assertion of such a cause was purely anachronistic for Respondent thus claimed that it discharged Harrison for improper conduct engaged in as a supervisor at a time when Respondent did not regard either him or his superior to be a supervisor. The remaining evidence , including particularly the inconsistencies and contradic- tions in Taylor's own testimony , served but to buttress the conclusion , justified by the foregoing , that the asserted grounds were mere pretexts and that Respondent was. motivated in fact by Harrison 's open espousal of the Union's cause at the representa- tion hearing. Thus it is to be noted that Taylor attributed the first decision to dis- charge Harrison to himself and Souder around November 12-14, "due to him being a supervisor and not doing his supervisory duties properly" ( i.e , his conduct in solicit- ing for the Union ). At another point Taylor testified that he himself made the deci- sion and that he did so several days after Harrison failed to report to him as directed and that his reasons then included Harrison 's alleged insubordination in punching in his timecard on November 16 and his failure to report. We consider the latter grounds before turning to those which were related to Harrison 's union activities. Though I credit Wilburn 's testimony that Harrison insisted on punching in his timecard , Harrison advanced a legitimate reason for doing so as Wilburn testified; i.e., to have a record that he had reported for work. Such action was plainly not insubor- dinate nor could it have been viewed as of any consequence , for if Taylor had har- bored any real concern about the matter , he needed only to have Harrison's card "pulled" from the rack , a common industrial practice where it is desired that am employee check with superiors before going to work. Nor did Harrison 's failure to report give Taylor any concern. In the first place it is noted that Taylor called in from outside and that he was not at the office when, Harrison sought there to have Raines put in writing the message from Taylor. Secondly, Taylor saw Harrison at the representation hearing within a short time (the hearing reconvened at 9 a.m. on the 16th ) but said nothing to Harrison; and when Duncan spoke to him and reported back to Harrison , the result was only that Harrison immediately sought out his doctor and obtained an unqualified release which he- delivered to Taylor at the plant on the 17th .2 Again Taylor made no attempt to) inform Harrison of the decision which he and Souder had made, and indeed left unanswered Harrison 's letter that he had refused to give Harrison on the 17th a satisfactory reason why he could not return to work. Turning now to the matter of Harrison 's union activities , Respondent was not required to countenance Harrison's misconduct in connection with his solicitations for the Union. Indeed it could require him as a supervisor to abstain from engaging in union activities and it could discharge him for engaging in them . N.L.R.B. v. Talladega Cotton Factory, Inc., 213 F. 2d 209, 217 (C.A. 5), enfg. 106 NLRB 295. The issue is thus not whether there existed lawful grounds for Harrison 's discharge but whether Respondent was in fact motivated by those grounds . I am convinced that it was not. It is again to be noted that despite frequent opportunities Respondent at no time informed Harrison that he was not permitted to engage in union activities and at no time warned him concerning his misconduct in connection therewith though Taylor knew the facts no later than October 1 . It was plainly Harrison 's open alignment with the Union at the representation hearing which aroused Respondent 's ire and it was Harrison 's testimony concerning his supervisory status which furnished both the inspiration and the opportunity for the action which Respondent took against him. Plainly the net effect of Harrison 's discharge immediately after the conclusion of the representation hearing was to cause nonsupervisory employees reasonably to fear that Respondent would take the same action against them if they testified against Respondent in a Board proceeding to enforce their guaranteed rights under the Act. Better Monkey Grip Company, 115 NLRB 1170 , 1171, enfd . 243 F. 2d 836 (C.A. 5), cert . denied 353 U.S. 864. As the Board held, it is clearly inherent in employee 2 Respondent would seem within its legal rights in not permitting Harrison ' s return to^ work on November 16 under the limitations stated in the former certificate , and it was- plainly to meet Taylor 's former objections on that score as Harrison testified to them that Harrison procured the unconditional release. LEAS & McVITTY , INCORPORATED 399 statutory rights to seek their vindication in Board proceedings , and rank-and-file employees are entitled to vindicate those rights through the testimony of supervisors who have knowledge of the facts without the supervisors risking discharge or other penalty for giving testimony under the Act adverse to their employer . Id. and see - Oil City Brass Works, 147 NLRB 627. Indeed, Respondent here brought home directly to the employees the fear of similar reprisals if they should give evidence against it in Board proceedings . Thus the posted notice , which related directly to Harrison 's discharge and the Board 's investiga- tion of it , expressly informed the employees that they need not make a statement to the Board 's agent and warned them that if they did so, Respondent would have access to the statement to cross-examine the affiant at the hearing . Thus Respondent gave warning to rank-and-file employees of the measures to which it might resort in event they should give evidence in support of the unfair labor practice charge arising from Harrison 's discharge .3 I therefore conclude and find on the entire evidence that Respondent discharged Harrison because he gave testimony at the representation hearing and that it thereby interfered with the employees ' rights to seek vindication of their own statutory rights in Board proceedings . Better Monkey Grip Company , supra. I therefore conclude and find that Harrison 's discharge violated Section 8(a)(1) of the Act. In view of that determination and as the section entitled "The Remedy" will be the same, I find it unnecessary to consider whether the discharge also violated Section 8 ( a) (4) of the Act. Better Monkey Grip Company , supra. But see Modern Linen & Laundry Serv- ice, Inc. ( on remand ), 116 NLRB 1974 , concurring opinion at 1976-1977, and Eugene Pedersen v. N.L.R .B., 234 F. 2d 417 , 420-421 ( C.A. 2). I conclude and find that the evidence does not establish that Respondent discrimi- nated against Harrison by failing to pay him for sick leave on the days on which he attended the representation hearing. D. The refusal to bargain; the majority issue The General Counsel offered in evidence a total of 100 authorization cards. Of those, Luther Harrison admittedly obtained signatures on 23 by active solicitations both within and without his own department . If those cards are to be excluded in determining the Union's majority , there will remain at best some 77 designations. In that event the Union would not represent a majority of the employees in the unit, for the General Counsel claims a unit of 178 employees and Respondent claims a larger one. We turn therefore to the question whether the validity of the 23 cards in question was impaired by the fact that Harrison procured the signatures . The Board law on this question is well stated in Insular Chemical Corporation and Rubber Corporation of America (Insular Division), 128 NLRB 93, 98, where the Trial Examiner 's holding that "such cards have been preemptorily discarded " was affirmed by the Board. Pointing out that the Board has adopted a "strict approach" to the question in repre- sentation proceedings for the purpose of merely determining whether a secret ballot election should be held, the Trial Examiner held that the rule should apply a fortiori where the cards alone were being relied on to establish the union's representative status. The Board , affirming the Trial Examiner , rejected the General Counsel's conten- tion that the Trial Examiner mistakenly relied on Desilu Productions, Inc., 106 NLRB 179, and The Wolfe Metal Products Corporation , 119 NLRB 659 , in both of which the Board summarily dismissed representation petitions because the petitioner 's show- ing of interest was impaired by a supervisor 's activities or solicitation. The General Counsel cites no cases in point to support his position that if Harrison be found to be a supervisor the cards he obtained constitute nonetheless valid designations ; the cases which he cites are wide of the mark. For example , in Hadley Manufacturing Corp., 106 NLRB 620, 621 , the employer filed objections to the con- duct of an election which it lost but which it had allowed to proceed with full knowledge that one of its supervisors had solicited membership and votes for the Union. The Board held that since the employer did not disavow the supervisor's mis- conduct prior to the election , it could not upset the election results because thereof. Talledega Cotton Factory, Inc., 91 NLRB 470, 472 , involved a similar situation and a similar result. 3 As the complaint does not allege and as the General Counsel does not contend that the posted notice was itself a violation of Section 8(a) (1), I make no finding on the question But see Jackson Tile Manufacturing Co, 122 NLRB 764, at 766 , enfd 272 F 2d 181 (CA 5) 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Purity Food Stores, Inc. (Sav-More Food Stores), 150 NLRB 1523, the Trial Examiner upheld the Company's contention that the leader of the union movement who procured signed authorization cards was a supervisor. In deciding that the Union in fact represented an uncoerced majority, the Board did so by reversing the Trial Examiner's holding that the solicitor of the cards was a supervisor. Aero Corpo- ration, 149 NLRB 1283, is also distinguishable, for there the Board found that the participation of the "leadwomen" (supervisors) in question was limited to relaying a small number of cards from one employee to another and that the evidence failed to show that they obtained signatures on the cards. Similarly in The Hamilton Plastic Molding Company, 135 NLRB 371, 373, the Board held that the validity of two authorization cards was not destroyed merely because they were signed in the presence of a supervisor; but what is more significant the Board there recognized the precedent set by Insular, supra, by citing it for com- parison with its holding. The Insular case is plainly controlling under the facts here, for Harrison was not only the leader and the moving force in the earlier stages of the campaign, but himself actively solicited signatures on some 23 of the cards which are offered in proof of majority. I conclude and find that those cards cannot be counted toward a majority and that the Union therefore at no time material herein represented a majority of the employ- ees in the unit.4 I conclude and find further that Respondent did not, as alleged in the complaint, refuse to bargain with the Union within the meaning of Section 8(a)(5) of the Act. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action which is conventionally ordered in such cases as provided in the Recommended Order below which I find to be necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. In order to restore to the employees their full freedom to exercise their statutory rights, I shall make the usual recommendation for Harrison's reinstatement with backpay. Better Monkey Grip Company, supra; Talledega Cotton Factory, Inc, supra. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. By discharging Luther Harrison because he gave testimony under the Act, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices proscribed by Section 8 (a) (1) . 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) or (4) of the Act. 4. Respondent did not refuse to bargain within the meaning of Section 8(a)(5) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, Leas & McVitty, Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Discharging or in any other manner discriminating against any witness with respect to his hire or tenure of employment or any term or condition of employment because he has given testimony under the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist International Union of District 50, United Mine Workers of America, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 4 That conclusion makes it unnecessary to reach or to consider other issues surrounding the refusal-to-bargain allegations It also renders moot the General Counsel's motion received June 4, and opposed by Respondent, to supply a copy of an authorization card the original of which was not contained In the exhibits. LEAS & McVITTY, INCORPORATED 401 2. Take the following affirmative action which it is found will effectuate the pur- poses of the Act: (a) Offer to Luther Harrison immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his discharge by payment to him of a sum of money equal to that which he, would normally have earned from the date of discharge to the date of the offer of reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 240), said backpay to be computed on a quarterly basis in the manner estab- hshed by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 516. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under this Recommended Order. (c) Post at its offices and plant at Pearisburg, Virginia, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for Region 5, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.C It is further recommended that the complaint be dismissed insofar as it alleges that Respondent engaged in unfair labor practices within the meaning of Section 8(a) (3), (4), and (5) of the Act and that the objection to the election in Case No. 5-RC-4873 be overruled. G If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order " e If this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or in any other manner discriminate against any witness with respect to his hire or tenure of employment or any term or condi- tion of employment because he has given testimony under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist Interna- tional Union of District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Luther Harrison immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner provided in the Trial Examiner's Decision for any loss of pay for which he may have suffered as a result of his discharge. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above named or any other labor organization. LEAS & MCVITTY, INCORPORATED, Employer Dated- ------------------ By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore , Maryland, Telephone No. 752-8460, Extension 2100. Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Association , Local 418, AFL-CIO i and Conti- nental Grain Company 2 Seafarers ' International Union of North America 3 and Continen- tal Grain Company . Cases Nos. 13-CC-350 and 13-CC-351. October 29, 1965 DECISION AND ORDER On November 13, 1963, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that Respondent ILA, Local 418, had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Additionally, the Trial Examiner found that Respondent SIUNA had not committed any unfair labor practices and recommended dismissal of the complaint insofar as it alleged viola- tions by SIUNA. Thereafter, the General Counsel and both Respond- ents Local 418 and SIUNA filed exceptions and supporting briefs.4 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the fhidings, conclusions, and recommendations of the Trial Examiner to the extent that they are consistent with this Decision and Order. ' Hereinafter referred to as ILA, Local 418, or Local 418. ' Hereinafter referred to as Continental. ' Hereinafter referred to as SIUNA. 4 As the record, exceptions , and briefs adequately present the issues and the positions ,of the parties , Respondents' requests for oral argument are hereby denied. 155 NLRB No. 45.