GTE Lenkurt, Inc.Download PDFNational Labor Relations Board - Board DecisionsJul 11, 1973204 N.L.R.B. 921 (N.L.R.B. 1973) Copy Citation GTE LENKURT, INCORPORATED GTE Lenkurt, Incorporated and Barbara L. Gleicher and International Brotherhood of Electrical Work- ers, AFL-CIO and Rose Marie Quintana . Cases 28- CA-2495, 28-CA-2506, 28-CA-2613, and 28- CA-2670-2 July 11, 1973 DECISION AND ORDER On November 22, 1972, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel filed cross-exceptions and an answering brief, and Respondent filed a reply brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs 1 and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,' except as modified herein. As fully described in the Administrative Law Judge's Decision, in August 1971, prior to the advent of the Union's organizing campaign, Respondent pro- mulgated a number of work rules which, if violated, could result in a disciplinary action. These rules were set forth in an employee handbook, which was distrib- uted to all employees. One of these rules, designated by the Administrative Law Judge as rule D, reads, "An employee is not to enter the plant or remain on the premises unless he is on duty or scheduled for work." The Administrative Law Judge found that Respon- dent had shown no justification for prohibiting off- duty employees from returning to, or remaining on, the premises during their nonworking hours to solicit union support or to distribute union literature in non- working areas. Accordingly, he concluded that rule D, insofar as it contained such a prohibition, was viola- 1 As the record , exceptions , and briefs adequately present the issues and the positions of the parties , Respondent 's request for oral argument is hereby denied. 2 Respondent and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 3 Chairman Miller concurs in the finding that the communication to em- ployees of Respondent 's instructions to its supervisors to report the names of prounion employees was violative of Sec. 8(axl). However , in adopting this finding , Chairman Miller does not rely on the general principle set forth in Cannon Electric Company, 151 NLRB 1465, with which Chairman Miller disagrees He would therefore not adopt the broader findings or conclusions of the Administrative Law Judge in this connection and would limit his holding to the communication to employees of the instructions to the supervi- sors. 921 tive of Section 8(a)(1) of the Act. We do not agree. Rule D, unlike some of Respondent's other rules,4 does not mention employee solicitation or distribu- tion. Rather, it prohibits off-duty employees from en- tering or remaining on the premises for any purpose. There is no evidence that off-duty employees have, in fact, been allowed on the premises for purposes other than union solicitation or distribution of union litera- ture, and hence there is no indication it has been disparately applied. This case thus differs from those in which no-solicitation or no-distribution rules, either on their face or as applied, limited the activities of employees lawfully on the premises. Under well-settled principles applicable to employ- ee activities-principles which we are applying in this very cases-an employer may not, absent special circumstances, prohibit employees lawfully on the premises from engaging in union solicitation on their own time. However, it is also well settled that nonem- ployees are not entitled to enter an employer's prem- ises to engage in union activity there .6 Accordingly, to dispose of the issue here, we must determine which of these principles applies to an off-duty employee, i.e., whether, notwithstanding an employer rule to the contrary, he has a right to enter or remain on an employer's premises if he wishes to do so for this purpose. In our view he does not, for his status is more nearly analogous to that of a nonemployee, and he is subject to the principles applicable to nonemployees. This is so because the interests to be balanced in determining the validity of such a rule are very different as be- tween an employee on the premises in connection with his work and an off-duty employee who seeks to enter. The former involves a balancing of statutory rights of self-organization against the employer's in- terests in production, safety, or discipline, and in this situation the statutory rights prevail (unless it can be shown that interference with those rights is essential) because an employer may not close off this normal channel of communication among the workers with- out proper justification.' The latter situation, howev- er, requires a balancing of the employees' Section 7 rights against the employer's private property rights.8 We affirm the Administrative Law Judge 's finding that rule C, which prohibits solicitation by employees on plant premises during nonworking time , is violative of Sec. 8(a)(1) of the Act. We likewise affirm his finding that Respondent violated Sec . 8(a)(1) by promulgating , maintaining , and enforc- ing an unwritten rule prohibiting employee distribution of literature in the parking lot during nonworking time . As this rule was applied to employees lawfully on Respondent 's premises, and as there is no showing that the rule was necessary to maintain safety, discipline , or production, it was unlawful irrespective of the availability of other means of communication 3 See fn . 4, supra. 6 N L.R.B v The Babcock & Wilcox Company, 351 U S 105, 113. r N.L R.B. v The Babcock & Wilcox Company , supra at 112 ; Republic Aviation Corporation v. N L R B, 324 U S. 793, 804. 8 See Diamond Shamrock Co v. N L R B, 443 F 2d 52 (C.A. 3, 1971) 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It seems apparent that for purposes not protected by this Act off-duty employees and nonemployees would be invitees to the same extent, and one is no more entitled than the other to admission to the prem- ises. We are unable to conclude that a different rule is required where union organization is involved, and, absent a showing of inability to reach the employees otherwise, we see no justification for holding that an employer's right to control ingress to his property must give way for that purpose. Rather, to require an employer to open his premises for union activities to off-duty employees is, in fact, to compel him to make available an additional means of communication, one which we believe he need not afford them. For, in our view, there is no significant diminution of the employ- ee rights by such a no-access rule, inasmuch as the Board and courts protect the right to engage in union activities during the normal period of employee asso- ciation and communication; i.e., during nonwork pe- riods when employees are on the premises in connection with their jobs. In view of the above, we find that the balance be- tween the competing interests in this situation is prop- erly struck by holding that, where an employer's no-access rule is nondiscriminatory, i.e., it denies off- duty employees access to the premises for any pur- pose and is not disparately applied against union ac- tivities, it is presumptively valid absent a showing that no adequate alternative means of communication are available.9 As there is no such showing here, and no evidence that rule D was discriminatorily enforced, we conclude that Respondent did not violate the Act by promulgating or maintaining this rule . According- ly, we shall dismiss this aspect of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, GTE Lenkurt, Incorporated, Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(m) and renumber paragraph 1(n) as 1(m). 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. ' Prior cases , particularly McDonnell Douglas Corporation, 194 NLRB 514, are distinguishable on their facts However, to the extent McDonnell Douglas Corporation, supra, remanded 472 F 2d 539 (C A 8), and Diamond Shamrock IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. MEMBERS FANNING AND JENKINS , concurring in part and dissenting in part: We agree with our colleagues to the extent that they affirm the Administrative Law Judge's findings as to Respondent's 8(a)(1) and 8(a)(3) conduct. However, for reasons given below, we disagree with their rever- sal of his findings that Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining rule D which totally prohibits off-duty employees from entering or remaining on any portion of Respondent's premises. The Administrative Law Judge correctly reasoned as follows in holding the rule to be unlawful: It is well settled that the Act guarantees an employ- ee the right to solicit union support during nonwork time while on his employer's premises. It also guaran- tees an employee the right to distribute union litera- ture in the nonwork areas of the employer' s premises. An employer's promulgation or maintenance of a rule which interferes with the exercise of protected em- ployee rights is presumptively an unreasonable impediment to such rights and therefore comes within the proscription of Section 8(a)(1) of the Act. Rule D in substance denies access to the plant to off-duty employees and prohibits employees going off duty from remaining on the premises. While this rule does not contain a specific ban on union solicitation or distribution, its maintenance has the effect of for- bidding employees on Respondent's three shifts to engage in such activity in nonwork areas at any time except during their own "breaks" and immediately before and after their own shifts. The solicitation rights of both off-duty and on-duty employees are equally affected by the considerations which underlie the presumptive invalidity of no-solici- tation rules; namely, (1) "time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employ- ee is on company property";10 (2) the plant and its premises are normally the only places where all em- ployees congregate and may afford the only practica- ble opportunity for discussing self-organization; and (3) solicitation in nonworking time and places could not normally affect safety and production. The pre- sumption was not overcome in the instant proceeding as Respondent neither claimed nor proved any legiti- mate justification for its broad nonaccess rule. While our colleagues appear to subscribe to the Co., 181 NLRB 261, enforcement denied 443 F 2d 52 (C A 3), are inconsis- iU Republic Aviation v N L R B, supra See also N L R B v. Babcock & tent with the holding herein , they are hereby overruled Wilcox, supra , and other cases cited by the Administrative Law Judge GTE LENKURT, INCORPORATED foregoing well-established principles insofar as they apply to on-duty employees, they depart therefrom in holding that off-duty employees are "more nearly an- alogous" to nonemployees. By arbitrarily finding that off-duty employees "are subject to the principles ap- plicable to nonemployees," they fall into the error of concluding that off-duty employees have no greater rights than nonemployees, thus completely obliterat- ing any distinction in their status under the Act. Our colleagues furnish no factual basis for their unwar- ranted and unrealistic conversion of off-duty employ- ees to nonemployees. Nor do they invoke any statutory or judicial sanction for so doing. In N.L.R.B. v. Babcock & Wilcox, supra, the Supreme Court, reiterating its earlier decision in N.L.R.B. v. Republic Aviation, supra, held that "No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline." In view of this guiding principle enunciated by the Su- preme Court and followed in a recent decision of the Board," it is clear that off-duty employees who wish to remain on the premises or enter the plant for pur- poses of solicitation or distribution of union literature may do so subject to the employer's need to maintain production, discipline, or security." Our colleagues fail to take cognizance of the Su- preme Court's affirmation of long-established princi- ples by endorsing a sweeping nonaccess rule which runs afoul of the Act because it thwarts the right of employees on the three shifts to communicate with each other on their Employer's premises during their nonworking time for the purpose of discussing self- organization among themselves. The most serious de- fect of this rule, which is destructive of the employees' protected right to promote self-organization, is that it compartmentalizes the employees in each shift and completely isolates them from their fellow employees on other shifts. The rule also possesses a further legal- ly undesirable shortcoming in that it renders difficult, if not impossible, any discussion before or after work between employees on a particular shift as the rule appears to limit the employees' presence at the plant and premises to the brief time necessary to prepare for or leave work. In view of the foregoing, we would affirm the Ad- ministrative Law Judge's finding that rule D violates 11 See Westinghouse Electric Corporation, Tampa Division, 199 NLRB No. 101, wherein the Board found unlawful a broad nonaccess rule which pre- cluded off-duty employees from ever distributing union literature on any part of the employer's property i2 The Administrative Law Judge in paragraph 1(m) of his recommended cease-and-desist order properly stated that any limitations imposed by Re- spondent must be "clearly defined as to times and areas" and must be "demonstrably necessary to maintain productions , discipline , or security" 923 Section 8(a)(1) of the Act. We would also adopt his cease-and-desist order pertaining thereto as it affords adequate safeguards whereby Respondent may im- pose limitations which are "clearly defined as to times and areas and are demonstrably necessary to main- tain production, discipline, or security." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, GTE Lenkurt, Incorporated, violated the Na- tional Labor Relations Act, and ordered us to post this notice, and we intend to carry out the Order of the Board, the judgment of any court, and abide by the following: The law gives you the right To form, join, or help unions To choose a union to represent you in bar- gaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. The Board has ordered us to promise you that: WE WILL NOT interfere with your rights. WE WILL NOT ask you whether you are a union member or are helping International Brother- hood of Electrical Workers, AFL-CIO, or any other union. WE WILL NOT ask you whether other employees are members of, or are helping, the IBEW. WE WILL NOT question you concerning matters which permit conclusions to be drawn with re- spect to your union sympathies or attitudes. WE WILL NOT direct that applicants for employ- ment be questioned for the purpose of finding out their union sympathies or attitudes. WE WILL NOT direct that lists be compiled of union activists or sympathizers. - WE WILL NOT create the impression that we are keeping your union activities under surveillance. WE WILL NOT ask you to revoke the card you signed for the IBEW or to use your influence to convince other employees from joining or help- ing the IBEW. WE WILL NOT threaten you with unpleasant working conditions, the loss of existing benefits, 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge, layoff, or plant removal because you are a union member or are helping the IBEW, or any other union. WE WILL NOT give you the impression that you have been denied a job transfer or granted a promotion for the purpose of dissuading you from supporting the IBEW, or any other union. WE WILL NOT grant you improved terms and conditions of employment for the purpose of dis- suading you from helping or joining the IBEW, or any other union. WE WILL NOT put into effect or maintain in ef- fect any rules which prohibit you from distribut- ing union literature in our parking lot during nonworking time or from soliciting funds in the plant in support of a union during your nonwork- ing time. WE WILL NOT discharge you, refuse to transfer or promote you, issue you written reprimands, or otherwise discriminate against you because you are a member of or have helped the IBEW, or any other union. WE WILL NOT refuse to hire applicants for em- ployment because they are members of the IBEW, or any other union. WE WILL NOT in any other way interfere with, restrain , or coerce you in exercising the rights guaranteed to you by the National Labor Rela- tions Act. The National Labor Relations Board found that we violated the law by discharging the following employ- ees: Aura Adams Lorenzo Carabajal Phillip Gabaldon Barbara Gleicher Gail Griffin Steve Lucero Anthony Maez Jacob Martinez Anthony Montoya Richard Romero Theresa Romero Stella Sena Blackstone Joe Terrazas Richard Thompson Corliss Sue Thompson Marla Work WE WILL offer to reinstate the above-named employees to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without any loss of seniority or other rights and WE WILL reimburse them for any loss of earnings they may have suffered because we discharged them, together with 6 percent interest. The National Labor Relations Board found that we violated the law by refusing to continue in our employ Edward Brittenham, by refusing to transfer Carlos Salazar, by refusing to promote Marla Work, and by refusing to hire Virginia Maes. WE WILL offer to employ Edward Brittenham and Virginia Maes, offer to transfer Carlos Sala- zar to the stockroom department, and offer to promote Marla Work to the position of quality control inspector, all without any loss of seniority or other rights and privileges, and WE WILL reim- burse each of them for any loss of earnings they may have suffered together with 6 percent inter- est. WE WILL rescind and delete from the personnel files of Joy Bishop, Lorenzo Carabajal, Marilyn Hengst , Jacob Martinez, and Anthony Montoya written reprimands which the National Labor Relations Board found were issued to them be- cause of their union sympathies and activities. GTE LENKURT, INCORPO- RATED (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 7011 Federal Building and U.S. Courthouse, P. O. Box 2146, 500 Gold Avenue, S.W., Albuquerque, New Mexico 87101, Telephone 505- 843-2508. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO , Administrative Law Judge: Upon a charge filed by Barbara L. Gleicher in Case 28-CA-2495 on December 14, 1971, and a charge filed by International Brotherhood of Electrical Workers, AFL-CIO, in Case 28- CA-2506 on January 6, 1972, the General Counsel of the National Labor Relations Board, herein called the Board, by the Acting Regional Director for Region 28, in these cases issued an order consolidating cases , complaint, and notice of hearing dated April 21, 1972, against GTE Len- kurt, Incorporated, herein called Respondent, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. Respondent filed an answer denying the commission of the alleged unfair labor practices. Thereafter, upon a charge filed by the above- named Union in Case 28-CA-2613 on April 26, 1972, and amended on May 26 and July 6, 1972, the General Counsel GTE LENKURT, INCORPORATED of the Board by the aforesaid Acting Regional Director issued a complaint dated July 7, 1972, against the Respon- dent alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The Respondent filed an answer denying the commission of the alleged unfair labor practices. On July 7, 1972, the aforesaid Acting Regional Director issued an amended order consolidating for hearing all of the previous- ly described cases . A hearing was held in Albuquerque, New Mexico, starting on July 24, 1972, and ending on August 11, 1972. Thereafter, upon a charge filed by Rose Marie Quin- tana in Case 28-CA-2670-2 on July 13, 1972, the aforesaid Acting Regional Director issued a complaint dated Septem- ber 13, 1972, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. On September 28, 1972, I granted the unopposed motion of the General Counsel that the com- plaint in Case 28-CA-2670-2 be consolidated with the pre- viously described cases and that the hearing be reopened to take evidence in connection with the newly issued com- plaint. A hearing was held in Albuquerque, New Mexico, on October 24, 1972. Upon the entire record I in the case and from my observa- tion of the demeanor of the witnesses, and having consid- ered the posthearing briefs submitted by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT GTE Lenkurt, Incorporated, the Respondent, is a corpo- ration organized under the laws of the State of Delaware with its principal office and place of business in San Carlos, California, and a plant in Albuquerque, New Mexico, the plant involved in this proceeding, where it is engaged in the design, development, engineering, manufacturing, and dis- tributing of telecommunications equipment. During the last calendar year GTE Lenkurt, Incorporated, in its normal course of business sold and shipped goods and materials valued in excess of $50,000 directly to customers across state lines and purchased and received goods and materials val- ued in excess of $50,000, transported directly across state lines . It is not disputed and I find that Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 1 The complaints upon which this proceeding is based will hereafter be referred to as the consolidated complaint. During the course of the hearing I granted the motion of the General Counsel to amend the consolidated complaint to include additional allegations that the Respondent had violated Sec 8(a)(I) and (3) of the Act. III THE ISSUES AND THE SETTING 925 Respondent for approximately 25 years has operated a plant in the northern part of California, herein called the San Carlos plant. About August 30, 1971, Respondent com- menced to operate a new plant in Albuquerque, New Mexi- co. This plant is an extension of the San Carlos plant. The Union represents a substantial number of the hourly production employees at the San Carlos plant and has a contract with the Respondent covering these employees. Prior to the opening of the San Carlos plant the Company's management informed supervision that the Union would attempt to organize the employees at Albuquerque and Re- spondent was against the unionization of this plant. Re- spondent was correct; the Union in September 1971 commenced to organize the hourly employees employed at the Albuquerque plant. Respondent opposed the Union. General Counsel, as alleged in the consolidated complaint and litigated at the hearing, charges that Respondent in opposing the Union violated Section 8(a)(3) and (1) of the Act by doing the following: (a) Because of their union activ- ities or sympathies: discharged 24 employees, refused to hire 2 employees, refused to promote 2 employees, required an employee to work excessive overtime, reassigned 3 em- ployees to less desirable work, and issued written repri- mands to employees; and (b) interfered with the statutory right of employees to join or support the Union by: direct- ing supervision to question employees to determine their union sentiments, questioning employees about their union activities and sympathies and the activities and sympathies of other employees, threatening employees with reprisals if they supported the Union, promising and granting im- proved employment benefits to employees to discourage them from supporting the Union, soliciting an employee to withdraw from the Union, placing employees' union activi- ties under surveillance and giving employees the impression that it was engaging in such surveillance, imposing more restrictive work rules because of the employees' union activ- ities, maintaining a policy of not employing job applicants if they were union sympathizers; and promulgating, main- taining, and enforcing unlawful rules directed against union solicitation by employees and against the distribution of union literature by employees. IV THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. Respondent instructs its supervisors to report the names of employees they believe are prounion In late November 1971 Respondent hired a management consultant firm, John Sheridan Associates Inc., located in Chicago, Illinois, herein referred to as Sheridan. From ap- proximately late November 1971 through at least J ne 1972 Sheridan conducted a series of meetings, group and individ- ual, among Respondent's supervisors. I find at all times during these meetings that Sheridan was acting at the re- quest of Respondent's management who were aware of what went on at these meetings and who received from Sheridan information which supervisors turned in to Sheri- 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dan about employees ' union sympathies . Personnel Manag- er Charles Zeleny in this regard testified that the informa- tion collected by Sheridan to be meaningful had to be communicated to someone from the Company and, quoting Zeleny, "I presume they [Sheridan ] reported on a regular basis to Tom Wortman [referring to the top management official , the general manager and vice president over the Albuquerque plant]." At the first group meeting held late in November 1971 attended by the supervisors, conducted by Sheridan, the Company's general manager and vice president, Thomas Wortman, introduced the Sheridan representatives with the comment , "they were here to help us . . . help us in any way." After this introduction, Supervisor Gerald Beall testi- fied, the Sheridan representative told the group "they were going to come in as management consultants and they were going to instruct us on what our legal rights were as far as the Union organizing drive ." I find that thereafter Sheridan conducted a series of meetings at which initially it advised supervisors of their legal rights in the Union's organiza- tional drive and directed them to determine whether each employee under their supervision was prounion . I further find that the Company's primary purpose in hiring Sheridan was the Union 's organizational campaign , and that only at later meetings did Sheridan instruct supervisors in person- nel matters not related to the Union 's organizational cam- paign . I realize that Vice President Wortman testified that he employed Sheridan for the purpose of training the Company's inexperienced supervisors to be better supervi- sors and testified that it was only at a later date when the Company decided it had a "real " union campaign on its hands that Sheridan was used to instruct supervisors about the Union's campaign . I reject this uncorroborated testimo- ny (no one from Sheridan testified ) which is completely at odds with what took place at the initial meetings conducted by Sheridan, and completely at odds with facts which estab- lish, beyond any doubt, that Wortman as early as the first week of October 1971 or no later than the first week of November 1971 knew that he had a "real" union campaign on his hands . As set out in detail later in the decision, Personnel Manager Levegood as early as October 1971 was directing supervisors to warn employees that they were not to talk about the Union or solicit for the Union in the plant on company time . During the first week of November 1971 the Company issued a policy statement to First Line Super- visor Sanchez (and presumably to other supervisors) stating, in substance , that it knew of the Union's organizational drive and was opposed to the Union. At this time (first week in November), Sanchez informed the employees that the Company was having supervisors' meetings at which the Union was discussed , that the names of the prounion em- ployees were discussed at these meetings , that the supervi- sors were supposed to find out the names of the employees who supported the Union, and that the Company had given its supervisors papers explaining why the Union was not any good. Also, as found below, the Respondent on November 4, 1971, discharged employee Carabajal because of his union activities . In short , Wortman 's testimony that in late November, when he hired Sheridan, that Respondent did not believe it had a "real" union campaign on its hands cannot be reconciled with the objective facts. That the Re- spondent initially and primarily hired Sheridan to assist it in connection with the Union' s organizational campaign as distinct from training supervisors on how to be good super- visors is established by the testimony of Supervisors Beall and Holmes for Respondent and Supervisor Blackstone for the General Counsel. In effect, they testified that at the initial Sheridan meetings the sole topic of conversation was the Union's campaign. Also, another supervisor who testi- fied for Respondent, Donald Bennett, says that in November 1971 at a Sheridan meeting Wortman told the assembled supervisors that the Company did not want to deal with the Union, after which the Sheridan representative, quoting Bennett, told the supervisors about "the Union's rights and our rights." In addition to telling the supervisors what they could legally do during the Union's campaign and what type of conduct would violate the Act, Sheridan instructed them, with respect to each employee they supervised, to learn the employee's attitude toward the Union, whether the employ- ee was prounion or against the Union. Second Level Super- visor Beall testified that Sheridan Representative Alex Hornkohl asked him to determine whether the employees in his department were prounion or procompany and to do this by talking to the employees. First Level Supervisor Jean Hardy testified that Sheridan Representative George Edgar asked her if she knew whether her employees were Union or nonunion and asked her to "attempt to determine that," explaining to Hardy that she could tell whether an employee was prounion by their "attitude." First Line Supervisor Mary Ann Montoya testified that Hornkohl and Edgar asked her to determine who among her employees were for the Union. Second Level Supervisor Stanley Morgan testi- fied that Sheridan told the supervisors to evaluate whether employees under their supervision were prounion or pro- company. First Line Supervisor Bennett testified that at two meetings Sheridan told the supervisors to determine if their employees were "for the company or against the company." First Line Supervisor Michael Blackstone testified that Hornkohl told them to submit weekly reports about the employees they supervised which, among other things, should indicate whether the employees were prounion. The supervisors according to Blackstone's credible testimony were instructed not to question the employees directly about their union sentiments but to get the employees' reaction to newspaper clippings dealing with union strikes, to the Company's letters issued to the employees during the Union's campaign, and to questions such as how they felt about the Company's wage increase. Supervision followed the instructions given them by Sher- idan and systematically and continuously went about the task of determining how each employee felt about the Union. They conscientiously compiled and reported the names of union adherents or of those employees who they believed were union adherents , and submitted this informa- tion to Sheridan. Second Level Supervisor Beall testified he talked to the employees and if the subject of the Union was not brought up by employees he would discuss their jobs, rates of pay, and feeling toward the Company and testified that based on this type of conversation he assessed employ- ees' attitudes toward the Union. Each month, according to Beall, from October 1971 to April 1972 he reported to Sheri- GTE LENKURT, INCORPORATED dan about the union sympathies of each employee in his department . First Line Supervisor Bennett testified he took a poll of every employee in his department to determine if they were for or against the Company. He asked the em- ployees what they thought about the Company and "things like that," and for each employee indicated on paper wheth- er they were for or against the Company . Bennett turned this listing into his supervisor , Joseph Campagnone. First Line Supervisor Mary Ann Montoya testified she compiled a list of the employees under her supervision and indicated whether they were for the Union and gave this list to her boss . Montoya 's report was based , as she testified , "on what people had mentioned to me or what I heard just from the people on the line [referring to the assembly line]." Supervi- sor Michael Blackstone testified that from late November or early December 1971 up to the time he left the Company's employ in March 1972 he met about six or seven times with either Hornkohl or Edgar (the Sheridan represen- tatives) and orally told them whether or not each employee under his supervision was prounion or procompany and they marked this information down on index cards. Also, Blackstone filled out written reports about the union sym- pathies of the employees which he turned in to his immedi- ate supervisor and at times to Personnel Manager Levegood, to Production Foreman Van Druff, and to Man- ufacturing Manager Zimmerman . Blackstone determined how employees felt about the Union by having them read in his presence letters issued to the employees by the Com- pany. He asked them what they thought about the thoughts expressed in the letters , a technique almost identical to the one used by Supervisor Ken Thompson which is discussed in detail later in the Decision. Blackstone also determined how the employees felt about the Union by asking them their opinion about company policies ; for example , its wage increase . Finally, not only did supervision use the above indirect methods to determine how the employees felt about the Union but it is clear that, as described in detail later, they directly without any subtlety interrogated employees about their union activities and sympathies. In addition to submitting the names of union adherents to Sheridan , the Company 's supervisors submitted similar information directly to top management officials . Factory Forewomen Nada Holmes testified that every supervisor in the plant was compiling lists of employees they believed to favor the Union and that in particular when the first line supervisors that were under her supervision submitted their lists to her , she in turn gave the lists to Manufacturing Manager Zimmerman . Holmes testified that one of the pur- poses of the lists submitted to Zimmerman was to identify union sympathizers . Holmes testified that she started to submit what I will call the "Zimmerman lists" during the latter part of 1971 immediately following a Sheridan meet- ing where for the first time a list of prounion employees was publicly shown to the supervisors. This meeting as discussed later in the decision was held on or about December 1, 1971. Holmes' testimony regarding the lists she gave directly to top management is corroborated by the testimony of Super- visors Beall and Blackstone . Second Level Supervisor Beall testified that his first line supervisors , besides giving infor- mation to Sheridan, compiled lists of employees which, among other things, indicated their union sentiments, that 927 they gave these lists to Beall who in turn submitted them to Production Foreman Van Druff who passed them along to Zimmerman . Finally, as described above, Blackstone turned in similar lists directly to Personnel Manager Leve- good and Van Druff and Zimmerman. In sum, based upon the foregoing, I find that Respondent commencing on or about December 1, 1971, and continuing thereafter instructed its supervisors to report the names of union adherents and sympathizers and that the supervisors complied with these instructions and I further find that by engaging in this course of conduct Respondent thereby vio- lated Section 8(a)(1) of the Act. Cannon Electric Company, 151 NLRB 1465. For, as the Board pointed out in the Can- non Electric case, where a number of supervisors are in- volved and they have not been adjured to keep their instructions a secret , it is reasonable to infer that at least some of them "would have divulged to some employees the instructions which could vitally affect their interests." Id. at 1468. No such presumption is needed in the instant case for, as shown later in the decision, employees were in fact told by supervisors that the Company was compiling a list of employees who sympathized with the Union. Regarding the motive of Respondent in systematically discovering and listing the names of prounion employees, there is no credible evidence of any legitimate purpose for ascertaining and recording the union sentiments of employ- ees. Neither General Manager Wortman or Manufacturing Manager Zimmerman or representatives of Sheridan of- fered either explanation or justification. The supervisors' testimony as to what they were told by Sheridan is vague, evasive, contradictory, or incomprehensible. Supervisor Bennett , when asked for the explanation given by Sheridan for asking the supervisors to get this information, testified incomprehensively as follows: I believe I stated the theory of what the company want- ed, we did not have to have a union to do the things that these people wanted. They wanted all of these benefits but they are talking about, they are going to get what the union. Well, we wanted to do that without a union. That was the whole theory I got given to me. Supervisor Beall testified he asked Sheridan Representative Hornkohl "what was the point" of the supervisors determin- ing whether employees were prounion or procompany and Hornkohl answered, quoting Beall: "It was so the company could evaluate their position with the employees, so the company know where they stood on the question of the Union, as well as on the question if they were doing what they should by us, by the people, by the whole smear. Just the basic evaluation of how, not only how people were standing, but how we were doing in supervision." Finally, Supervisor Morgan testified that Sheridan Representative Edgar gave him a different reason than the one given Beall. Edgar told Morgan that the reason for compiling a list of prounion employees was to find out "where we stood in case of a Union vote, did they have the 30% required to get a Union vote." In sum, Bennett's testimony which is virtually unintelligible sheds no light on the reason for the Company's motive in compiling a listing of prounion em- ployees and the testimony of Beall and Morgan does not explain why it was necessary, as described below, for the Company to identify publicly to its supervisors the union 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentiments of named employees to gauge the success of the Union's organizational drive. Regarding the motive of the Respondent for having its supervisors compile a list of the prounion employees in their departments for Manufacturing Manager Zimmerman, the only competent testimony about the reason for this list was Supervisor Beall's testimony that Zimmerman instructed him to submit such a list because , quoting Beall, "the com- pany wanted to know where they stood with the people we had, as far as work performance ." How the union senti- ments of an employee is relevant to an evaluation of job performance is not explained . If anything , it indicates Re- spondent equated prounion sentiments with unsatisfactory work performance. The testimony of Charles Zeleny, Respondent's person- nel manager , and Supervisors Holmes and Blackstone indi- cates that the Company had no legitimate purpose in determining the union sentiments of its employees. Zeleny who took over the position of personnel adminis- trator from Levegood on February 1, 1972, testified he has never seen any of the lists of prounion employees that super- visors were compiling. Then the following exchange took place between Zeleny and counsel: Q. Do you know what happened to those lists that they made out? A. No, I do not. Q. As the personnel director, you never inquired, did you know that it was going on at the time? A. I knew that the Sheridan people were talking to our first line supervisors. I talked to the Sheridan peo- ple after I had been in the operation for about two months because I felt, I really did not know what they were there for. I would say that in my kind of position, the initial procedure is to acclimate oneself and then start trying to find out what is going on. So I talked to the Sheridan people and I asked them what their func- tion was. I would have to say that their communica- tions were not very good, I really did not understand after they talked to me what they were there for. I knew they were there to conduct a training program, I think it was my understanding that they were there to find out how many union people there were, what kind of progress the union was making in obtaining the num- ber of people that they needed to have an election... . That was my understanding of their purpose in being there, they were conducting that part of the program, so that took that load off of me, and I voided myself from that area. Q. Let me see if I understand you, absent the Sheri- dan people, this would normally be your province is that correct? A. Yes, that's correct. I cannot believe Zeleny. That a man with his impressive background in the area of industrial relations would on February 1, 1972, move into Respondent's top industrial relations job, the position of manager of personnel, find that an outside firm is performing duties in connection with a current union organizational campaign which his depart- ment would normally handle, further find that unfair labor practice charges had been filed against the Company by the Union, and yet wait 2 months until about April 1, 1972, to ask Sheridan "what their function was" is incredible. Also not believable is his further testimony that when he finally did ask Sheridan what they were there for, and it was ex- plained to him, that he "really did not understand" Sheridan's explanation. At this point it would seem that Zeleny out of sheer curiosity about Sheridan's status in the plant would have asked his boss, Vice President Wortman, a question or two about the matter, that is if he had not questioned Wortman earlier. When asked at the hearing if he ever talked with Wortman about Sheridan's function in the plant Zeleny evaded the question answering that Wort- man was present, as described above, when on or about April 1 the Sheridan representative explained to Zeleny their function in the plant and that at that meeting, to quote Zeleny, "[Wortman] agreed with [what the Sheridan people] said or something roughly approximating that " In short, Wortman agreed to an explanation given by the Sheridan representative, which Zeleny testified he did not under- stand. Respondent called neither Wortman nor anyone else from Sheridan to clear up this mystery. I am convinced and find that the Company's failure to call Wortman or some- one from Sheridan to testify on this matter is that their testimony would have been favorable. I further find that the ambiguity and lack of substance to the testimony of Zeleny is not because Zeleny did not understand the explanation given to him by the Sheridan people when they explained to him what they were doing in connection with the Union's campaign , but that he only understood too well that Sheridan's real purpose was to determine the names of prounion employees, that Respondent's supervisors had been instructed to watch the identified prounion employees and in evaluating their performance to discriminate against them, particularly to discriminate against the known union sympathizers who were in their probationary period since it was easier to discharge an employee during the probation- ary period. Thus, Factory Foreman Nada Holmes, at the hearing, admitted that at a meeting of supervisors held be- tween late November 1971 and December 13 attended by Manufacturing Manager Zimmerman that Sheridan Repre- sentative Edgar showed them a list of names of employees stating that these people were all prounion (there were ap- proximately 13 names on the list), asked them if they recog- nized any of the names at which point the supervisors, to quote Holmes, "gasped" as they were "shocked" at the number of union supporters and discussed why these people would have supported the Union. Continuing, Holmes tes- tified, "I know we were told to make sure these people were not causing any problems" and that Edgar in explaining this instruction said, "to make sure [these employees] were at their positions doing their job during working hours, things of that nature," and instructed the supervisors that "if they were problem employees that we could get rid of them within their 90 days, with no difficulty." Regarding this last 2 Holmes was not sure of the date on which this meeting was held. One of the employees on the prounion list exhibited to the supervisors, says Holmes, was Barbara Gleicher discharged on December 13, 1971. Clearly, this meet- ing must have occurred prior to December 13 Based on the record as a whole I find that this was one of the first group supervisor meetings conducted by Sheridan and was held on or about December 1, 1971 GTE LENKURT, INCORPORATED remark Holmes at the hearing commented, "of course this we already knew, because it had been our policy in the past [getting rid of problem employees during their probationary period]." Holmes' testimony is substantially corroborated by the credible testimony of former First Line Supervisor Blackstone that the Sheridan representatives at a meeting of supervisors showed them a list of prounion employees, in- formed the supervisors which employees listed were still within their 90-day probationary period, and told the super- visors "it was easier to get people out prior to 90 days than it was to wait until after they were over 90 days because after 90 days you had to justify the termination and prior to you did not." In crediting Blackstone I have considered his felo- ny convictions, the fact that he lied when he filled out his employment application for the Company, the fact that about the same time he went to the Board with his story the Union gave him the sum of $200, and the fact that he is hostile toward the Company because they fired employee Stella Sena who is now his wife. Blackstone, when he gave the above testimony as well as when he testified about other matters during the course of the hearing, impressed me as an honest witness who was making a sincere effort to accu- rately recollect the events that had taken place. In addition, in regard to this testimony it is substantially corroborated by Holmes' testimony. About 2 to 3 weeks after the first meeting at which the list of prounion employees was publicly displayed, another list of prounion employees was shown to supervisors at a meet- ing conducted by Sheridan Representatives Hornkohl and Edgar. Holmes testified that at this time they told the super- visors "things were getting worse that there were more peo- ple who were for the Union," and showed the supervisors another list of prounion employees, presumably containing more names than the first list, and instructed the supervisors to talk with the employees and find out why they were not satisfied, and to watch the employees that they knew were prounion.3 Then, referring to the known union sympathizers the Sheridan representatives named those still within their 90-day probationary period and told the supervisors, quot- ing Holmes, "if there were problems, now was the time to get rid of them, within their 90 days." Other than Holmes and Blackstone the only supervisors who testified in any detail on the subject of what was said about the probationary employees by Sheridan representa- tives were Supervisors Beall and Bennett. Their testimony on this matter was marred by an inability to remember either the content or the context in which the discussion of the probationary employees arose. I received the distinct impression from my observation of both witnesses that their lack of memory was not due to an inability to recall but because of an unwillingness to explain what actually took place. Beall testified that at one of the group meetings the 3 Later in her testimony Holmes appears to explain that the reference by the Sheridan representatives to watching union supporters was occasioned by incidents of sabotage which occurred at the plant necessitating the close observation of employees, especially when they were out of their own work areas This testimony is not trustworthy. The alleged acts of sabotage accord- ing to Personnel Manager Zeleny did not take place until March and April 1972. Sheridan instructed the supervisors to watch the union sympathizers in November or December 1971. 929 supervisors were shown a list of the probationary employees and told to take a good look at them and to make sure they would make good employees because the supervisors would have to be the ones who put up with them. Beall admitted that when these probationary employees were discussed that at the same time "there may have been" a mention of the Union but professed an inability to recall anything more about what was said for the reason that he was not paying attention since there was only one employee under his su- pervision on the list of employees and that employee had been promoted to a supervisor. Bennett generally had no recollection of what took place at the group supervisory meetings held by Sheridan. His testimony on these meetings is evasive as well as vague. At first he testified the subject of "the 90 day probationary period" was discussed during a Sheridan meeting which was devoted to the Union's cam- paign, but when asked what was said on the subject testified, "I remember the 90 day probationary thing did come up and we were told people who were not performing their jobs satisfactorily in the probationary period were not to be kept. That was the gist of the whole meeting, if I remember right." He further testified that, in effect, he did not know whether anything was said about the Union at this meeting. I specifi- cally reject the testimony of Beall and Bennett insofar as it conflicts with the above testimony of Holmes and Black- stone on this matter. In saying that instructions to supervisors to ascertain the names of union adherents "constitute an attempt to obtain the kind of information which can be used by the employer for no other purpose than to interfere with employees' right to self-organization" the Board in the Cannon Electric case explained, "[t]he Board is continually confronted with cases involving unlawful discrimination against employees where the prelude to the discrimination was the employer's at- tempt systematically to investigate the sympathies of his employees' id. at 1468-69. In Cannon Electric, where the employer sought supervisory reports in order to assess the tactics it had employed in a recent successful effort to com- bat unionization, the Board pointed out that the names of the union activists and sympathizers were not necessary or relevant to that end. In the instant case the Company had no proper need for the names of individual employees in order to assess the strength of the Union's organizational drive. It had no legitimate need to accomplish this object by publicly labeling before its supervisors the names of the prounion employees. But not only did the Company have no legitimate interest in the names of prounion employees, the record establishes by a preponderance of the evidence that this information was secured for the purpose of alerting the Company's supervisors to the names of those prounion employees under their supervision so that the supervisors would give them special attention and in particular to give special attention to the prounion probationary employees whose discharge is easier to justify because of their proba- tionary status. I further find that taken in the context of the instructions to supervisors to learn the names of the proun- ion employees under their supervision that the statements made to the supervisors by the Sheridan representatives, described by Blackstone and Holmes, were calculated, and would be reasonably so interpreted by the supervisors, as an 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD invitation to discriminate against the prounion employees, in particular those still within their probationary period; to be less objective toward the prounion employees when eval- uating their work performance . In this regard , unexplained is the Company's purpose in publicly identifying the union adherents to its supervisors and at the same time telling them to "make sure that these people were not causing any problems ," to "watch" them , and to discharge them within their probationary period if they were not satisfactory em- ployees . Respondent before the Union ever came on the scene had a policy of closely evaluating probationary em- ployees during their 90-day probationary period. Respondent's employee handbook well known to both su- pervision and employees sets out this policy clearly and unequivocally . Supervisors were told by Personnel Manager Levegood from the first supervisory meeting at the new plant-prior to the Union's campaign-according to the undenied and credible testimony of Blackstone that the Company was interested in getting rid of poor workers. It was not necessary for Sheridan to tell the Company's super- visors to discharge probationary employees during their probationary period if their work was not satisfactory. As Holmes testified "of course this we already knew because it had been our policy in the past [firing problem employees during their probationary period] ." Under the circumstanc- es, I find that Sheridan in telling the supervisors to watch the known union probationary employees and to fire them during their probationary period if their work was not satis- factory was inviting supervision to discriminate against the prounion employees. That the supervisors understood this to be the case is supported by Blackstone's undenied and credible testimony that at one of the supervisory meetings (the supervisors were divided into groups ) a supervisor told Sheridan Representative Hornkohl that he did not think it was right that the supervisors should take employees that were doing their job and terminate them just because they were prounion. Hornkohl replied, "If they are not loyal to the company then you don 't need them ." In making the above findings I am not unaware of Holmes' testimony that supervisors had been lax in rating probationary employees and that the Sheridan representatives were emphatic that the supervisors should rate all employees , and her testimony that it was not suggested that only union sympathizers be rated or that supervisors were to rate prounion employees differently than other employees. This testimony is based on three "no" answers to leading questions on redirect exami- nation . Her detailed testimony given on cross -examination, previously described, speaks much more convincingly. That Sheridan in haec verba did not say "supervisors discriminate against Union employees" does not end the matter for Sheridan 's message in the context it was made was calculat- ed to cause the supervisors to discriminate . That Holmes so understood that she was expected to discriminate against prounion employees is demonstrated by the undenied and credible testimony of Blackstone that with respect to sus- pected prounion probationary employees, Holmes told him not to evaluate them real good so if the Company fired them within their probationary period there would be no com- plaints, and with respect to prounion employees already past their probationary period Holmes told him to try to "get little things on them" so they could be discharged. 2. Respondent instructs its supervisors to learn the attitude of applicants for employment toward the Union Al Stun is Respondent's personnel administrator and the person in charge of recruiting and hiring employees . Before March 1972 Respondent's first line supervisors were not involved in the process of hiring employees. In late Febru- ary 1972, however, Sturr told the supervisors they would now interview applicants. The supervisors were divided into, two groups-Sturr spoke to each group and explained the new hiring procedure. He told them they would have au- thority to interview applicants for their departments but only after the personnel department interviewed the appli- cant. An applicant approved by personnel would then be sent to a department in which there was an opening to be interviewed by the first line supervisor in charge of that department who had the power to veto the employment of the applicant. Sturr told the supervisors that at a later time they would sit in on job interviews conducted by the person- nel department in order to get an idea of how to conduct such an interview . But, Sturr did at this time explain to the supervisors , in brief, how the personnel department con- ducted an interview and also explained , quoting Sturr, "[what ] we were looking for as far as employees were con- cerned." Sturr testified further that he told the supervisors what types of questions they should pose to the applicant, explaining at the hearing that the purpose of the questions asked by the supervisors would be "to have some knowledge of the individual, how he would fit into your group," person- alitywise or adaptabilitywise. First Line Supervisor Black- stone testified Sturr also told the supervisors that they should try to determine how an applicant fit into the group unionwise . Specifically , Sturr told them that in the course of their interviews they could indirectly find out the union sympathies of employees by asking where the applicant's father was working or where the applicant had previously worked for if it was in a union shop the applicant was probably sympathetic toward unions, and told the supervi- sors that the Company did not want to employ "union people." This testimony, reaffirmed by Blackstone on cross- examination , was given by Blackstone in a manner which convinced me that he was telling the truth and had an accurate recollection of Sturr's talk. Also, the conduct at- tributable to Sturr is consistent with Respondent 's policy, described earlier in this Decision, of determining the union sentiments of its employees by systematic indirect interro- gation by first line supervisors. I cannot believe that the Company would feel constrained not to engage in similar conduct in interviewing a prospective employee yet as soon as the applicant was hired and punched his timecard to systematically through its first line supervisors go about trying to find out his union sympathies. I am convinced and find, as Blackstone credibly testified, the Company did not draw this fine line. In crediting Blackstone I have considered the testimony of the three witnesses-Sturr, Jean Hardy, and John Cook-who testified for the Respondent about this portion of the case. All denied the testimony of Blackstone. I was not impressed with their demeanor when they testified about this subject. Hardy, a first line supervisor, as ex- GTE LENKURT, INCORPORATED 931 plained on a number of occasions in this Decision, was in general an unreliable and incredible witness . She appeared no different when she gave her testimony on this subject. She remembered virtually nothing about Sturr 's remarks. Not only did she deny that Sturr told the supervisors to determine the applicant 's union sentiments but also denied Stun either gave the supervisors guidelines or a check list to follow in conducting an interview . Sturr , to the contrary, admitted he told the supervisors "the types of questions that would be asked ." Cook, the production foreman , did not have an independent recollection of this meeting . He testi- fied that the only remark made by Sturr was "in the future we would have the responsibility of interviewing the people who worked in our department " and, testified Sturr , did not tell them how to go about interviewing the employees. Even Hardy conceded that Sturr discussed how the supervisors should conduct themselves during the interview (let the ap- plicant do most of the talking) and, as described earlier, Stun admits he illustrated the kinds of questions the super- visors should put to the applicant . Sturr when he testified about this matter and the closely related one of Respondent's policy of having supervisors turn in lists of prounion employees did so in a manner and with the de- meanor of an untrustworthy witness . In addition , his testi- mony on its face is incredible when viewed in the context of the record as a whole . In charge of the Company's hiring, Stun admitted having attended supervisory meetings at which the subject of the Union came up, admitted having talked with a representative of Sheridan , but denied any knowledge before this hearing that the Company 's supervi- sors had been instructed to report and in fact did report about the union sympathies of their employees. This is in- credible considering the fact that virtually all of the Company's first line supervisors as well as higher ranking supervisors were systematically doing this , submitting oral reports to Sheridan as well as written reports to the Company's manufacturing manager , Zimmerman. While giving this testimony Sturr was obviously not comfortable and hesitated for long periods of time before answering unambiguous questions on this subject . His testimony con- cerning the meetings conducted by Sheridan which he at- tended was vague and evasive . While admitting having talked with a representative of Sheridan his testimony about the discussion was unintelligible . At one point he testified, "The only meeting I had with Alex Hornkohl [the Sheridan representative ] was with regard to different theories," but then admitted that he was in fact present when Hornkohl spoke about the Union explaining "this was primarily to find what can be done and what cannot be done with union organization as far as the NLRB is concerned ." Finally, the unreliable and untrustworthy nature of Sturr 's testimony is illustrated by the following exchange: Q. Now, is there any procedure, to your knowledge, established by the supervision of the company to de- termine the union membership or sympathies of the employees in the plant? A. [Sturr] Probably, there probably was. I was not aware of what it was. Q. You said there probably was. What do you base that on? A. I would have to base it on, if we were aware there were union activities, that the supervisors were proba- bly finding out who the people were in the union. TRIAL ExAMINER• I want the court reporter to read back the initial question to the witness. (question read) THE WITNESS No, I'm sorry, I probably misunder- stood the question. Based upon my observation of Sturr I am convinced and find that he did not misunderstand the initial question, that his testimony on this matter is incredible, that he did know of the Company's policy of having supervisors determine the union sympathies of employees , and, as Blackstone credibly testified, consistent with that policy Sturr, I find, directed the first line supervisors to also determine the union sympathies of job applicants. Respondent offers no legitimate reason for issuing such instructions. In these circumstances, and in the light of the Respondent's previously described practice of bringing to the attention of its first line supervisors the names of pro- union employees for the purpose of having the supervisors discriminate against them , it is clear that Stuff's instructions issued to first .line supervisors to determine the union senti- ments of prospective employees was motivated, and so un- derstood by the supervisors, by the Respondent's desire, to have the first line supervisors discriminate against (not hire) applicants who indicated they were prounion. Accordingly, I find that the Respondent's instructions to its supervisors to interrogate prospective employees for the purpose of learning their attitude toward the Union interfered with the rights of employees guaranteed by Section 7 of the Act, and was violative of Section 8(a)(1) of the Act. This is true even though there is no direct evidence that the supervisors com- plied with or that employees were informed of Stun's in- structions. Cannon Electric Company, 151 NLRB 1465, 1468-69 . But, it is not necessary for me to decide this issue where, as here, Sturr's instructions were enforced, as de- scribed later in this Decision, by a refusal to hire at least one applicant, Virginia Maes. Also, Sturr's instructions were an integral part of a plan to discover the identity of prounion employees currently employed as well as prospective em- ployees. It is clear as already discussed that the supervisors executed the portion of the plan which related to employees already in the Company's employ and, as will be set out later in this Decision, employees were told by supervisors about this part of the Company's unlawful policy. In these circumstances, Sturr's instructions to supervisors to interro- gate job applicants violated the Act even absent direct evi- dence of compliance 4 or that employees learned of such instructions. 3. Respondent improves its employees' terms and conditions of employment and grants additional benefits a. Respondent grants employees a general wage increase and makes other changes which increase wages In early October and November 1971 in response to ques- 4 I note that Blackstone quit the Company 's employ before the first line supervisors actually began to conduct employment interviews. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions from employees about their rates of pay and about wages in general the Company's personnel manager, Leve- good , at meetings with the employees and in letters to em- ployees informed them in substance that their rates of pay were subject to change because they were reviewed periodi- cally and were being reviewed at that time to see if the Company's wages were in line with comparable jobs in the area. Levegood stated that changes would be made if the survey indicated the need for change. The employees were also informed that the Company was conducting studies for incentive rates and that when incentive rates were initiated the employees would have an opportunity to earn more money. On February 8, 1972, Thomas Wortman, Respondent's vice president and general manager, made the following written announcement to the Company's employees: When we began our operations in Albuquerque, we announced to all employees that we would continuous- ly survey wages in the area. We have been conducting these surveys in order to keep our commitment to im- prove the wage structure as needed. As a result of our thorough reviews, we are putting the following wage improvements into effect on February 28, 1972. You will see the results in your March 10 paycheck. The letter then went on to list the wage improvements that would go into effect on February 28: (1) A general wage increase of 11 cents per hour; (2) a new wage progression schedule with improved starting wages; (3) a change in certain jobs to higher paying wage grades; and (4) the intro- duction of incentive rates for certain jobs and the promise that the Company would continue to increase the number of incentive jobs so that the employees would have a better opportunity to earn more money. Wortman concluded by telling the employees that "We are very pleased to fulfill our promise to you and put this completely improved wage program into effect. We plan to continue providing you with the finest working place to work in Albuquerque." Thereafter, on March 3, 1972, Wortman by letter notified the employees that their paycheck issued on that date con- tained the increase in their wages previously announced which had not been scheduled to show up in their paychecks until March 10. He explained that the increase was pro- cessed quicker than anticipated. On March 27, 1972, Wortman by letter announced to the employees that the Company was immediately starting new increased shift differentials for the swing and graveyard shifts explaining to the employees, "As we indicated previ- ously, we are continually surveying area wage practices to keep our pay current with the area." There is no evidence that the Respondent, when it grant- ed the wage increases and made the other changes described above, made any reference whatever to the Union's organi- zational effort or attempted, during the campaign, to capi- talize on the improved changes by, for example, suggesting in any way that they should be considered by employees in deciding whether or not to support the Union. To the con- trary, Supervisor Blackstone, a witness called by the Gener- al Counsel, credibly testified that when management in- formed the supervisors about the increase in wages that they instructed them to tell the employees the increases were "part of what the company promised they were going to do in the very beginning, to show the company was following up with what they said they were going to do." The Company's principal witness on the subject of its motivation for instituting the above-described changes was Wortman, who I have already found was an incredible wit- ness when he testified about his knowledge of the Union's organizational campaign and the reason he employed Sheri- dan. On the subject of the changes in the Company's bene- fits of employment his demeanor likewise was not impressive. And as in the case of his other testimony this testimony was vague and evasive. Asked if the Company told the employees when it started operations in August 1971 about its policy of basing rates of pay and labor grades on the area pattern and that it was in fact conducting such a survey, Wortman's response was equivocal. "Yes, I think everyone was told, at least we intended to tell everyone ...." I do not feel this answer establishes that the employ- ees prior to the Union's organizational campaign were told of this policy. The only competent evidence in this record showing the dates when employees were first told of this policy are various memos issued by Levegood to the em- ployees, the first one issued on October 4, 1971, shortly after the start of the Union's drive. I am unable to conclude that the Respondent prior to the Union's campaign notified the employees it had a practice of conducting wage surveys or was in the process of conducting such a survey. However, based on Wortman's uncontradicted testimony I find that the Company at the time it commenced operations in Albu- querque and before the commencement of the Union's cam- paign did in fact have a policy of basing its rates of pay and labor grades upon the pattern in the area and that at the beginning of its operation a continuing survey was institut- ed pursuant to this policy. Wortman's testimony in this respect was not shaken by cross-examination, nor was its accuracy controverted by other evidence, nor is it inherently improbably or incredible when considered against the rec- ord as a whole. Under the circumstances I have not rejected this portion of Wortman's testimony. Likewise, I credit Wortman's uncontroverted testimony substantially corrob- orated by Zeleny that changes in wage rates and labor grades described above were put into effect based on the results of this continuing survey. Finally, I find that when Respondent opened its Albuquerque plant that before it could institute incentive rates of pay for certain operations that it was forced to time the operations-conduct time studies-and that these studies were conducted and contin- ue to be conducted and are part of Respondent's normal method of doing business. There is no showing that the institution of incentive rates on certain jobs and the promise to increase the number of incentive jobs was based on anything but Respondent's normal business practice of con- tinuously developing incentive rates on operations as soon as incentive studies were complete. Based on the foregoing, and the record as a whole, I find that the changes in terms of employment described above, which resulted in more money for the employees were not motivated by Respondent's animus toward the Union but GTE LENKURT, INCORPORATED rather were undertaken during the normal course of busi- ness and in certain cases consistent with Respondent 's usual policy of keeping up with the area pattern in matters relat- ing to employees' earnings. Accordingly, Respondent by making these changes in its employees ' terms and condi- tions of employment did not violate the Act. In reaching this conclusion I have considered the fact that Factory Fore- woman Nada Holmes told Supervisor Blackstone that the wage increase " in a sense" would have the effect of keeping the Union out because employees were unhappy about their wages . While this may be the effect of the wage increase it sheds no light on the Company 's motive for granting the increase . Also, the General Counsel is not aided by the testimony of Sturr , Respondent 's personnel administrator, that "the only effort made by Lenkurt to stop the Union from organizing their plant was to increase benefits and to upgrade employees." When this bit of testimony is consid- ered in the context of Sturr 's entire testimony on the subject it is plain that he in fact testified that insofar as the Compa- ny kept the employees ' benefits competitive this would tend to make the employees happy and to feel they did not need the Union . His testimony in its entirety cannot be viewed as an admission that the Company in granting the increases in wages was motivated by an unlawful purpose. b. Respondent changes its policies on Thanksgiving and vacation pay In addition to changing its policies regarding Thanksgiv- ing and vacation pay, as described below , Respondent also granted probationary employees Christmas and New Year's off with pay contrary to company policy. General Counsel urges that by this conduct Respondent violated the Act. The consolidated complaint does not allege that by this specific conduct Respondent violated the Act but generally alleges that the Respondent in about the middle of February 1972 offered , promised , and granted employees wage increases and other benefits and improvements in their working con- ditions . At the close of the General Counsel's case because of the ambiguity of the allegation and in view of the volumi- nous record I required the General Counsel to supply a bill of particulars for this allegation so that Respondent would know what to defend against . While listing the Thanksgiv- ing paid holiday as encompassed by this allegation General Counsel did not list either Christmas or New Year's day. Respondent relying upon the General Counsel's representa- tion adduced testimony only on the Thanksgiving holiday. Under the circumstances , I have not considered whether Respondent violated the Act by giving its probationary em- ployees Christmas and New Year's off with pay. (1) The change in policy for Thanksgiving holiday pay The Company's handbook clearly states and it was com- mon knowledge that employees were regarded as probation- ary during their first 90 calendar days of employment and with respect to paid holidays, to quote the handbook: "When [employees] have completed 90 calendar days of service [employees] are entitled to receive a regular day's pay, at [their] current rate of pay, for the following holidays 933 ... " and lists a number of holidays including Thanksgiving and the day after Thanksgiving. In November 1971 Respon- dent contrary to this rule granted the probationary employ- ees Thanksgiving and the day after off with pay. Since the plant was newly opened probationary employees constitut- ed the bulk if not all of the hourly employees employed by Respondent. By notices posted on the company bulletin boards on November 24, 1971, Wortman made the an- nouncement to the employees that they had been granted Thanksgiving and the following day off with pay explaining that it was an exception to "the company wide policy which is to pay holidays after you have completed the 90-day probationary period." In another portion of this announce- ment Wortman specifically explained the reason for this exception to companywide policy: "The special efforts ev- eryone is extending at this start up time to make this plant a success here in Albuquerque." Wortman at the hearing when asked on direct examina- tion the reason for granting to probationary employees this paid holiday testified, "It was motivated by the same kind of thinking we had from the onset. We wanted to treat the employees as fairly and openly as possible. We felt they had done a very good job in the start up situation and we felt this was the fair thing to do." On cross-examination Wort- man admitted that the grant of the paid Thanksgiving holi- day was an exception to the Company's policy whereupon the following colloquy took place between Wortman and Respondent's counsel on redirect examination. Q. The day after Thanksgiving is a normal holiday, from the book [referring to the company's handbook]. A. Yes. Q. The only exception you were making was the 90 day rule? A. Yes. Q. And the fact the plant hadjust cranked up, really almost less than 90 days before had some bearing on that waiver at that particular time? [Emphasis mine.] A. Yes, it did. Q. That was the major factor? [Emphasis mine.] A. Yes. As I have stated previously Wortman did not impress me as being a trustworthy witness. His lack of candor was marked. He also impressed me as a person of unusual intelligence, capable of effectively expressing himself. If the real reason for his granting the exception to normal policy was that the plant opened almost less than 90 days before Thanksgiving I am certain that Wortman would have in substance given that as the reason in his announcement to the employees or at the very least would have given it as the reason when questioned about his motivation on direct examination. He did not. It remained for Respondent's counsel in effect to testify for Wortman with Wortman blindly answering "yes" to leading questions. First testifying that the fact the plant had opened less than 90 days before had "some bearing" on his decision to create an exception to the Company's policy. Then testifying that it was the "major factor" rather than just having "some bearing" on his decision. Based on the foregoing, including Wortman's inability to settle on a rea- son for granting Thanksgiving off with pay to the proba- tionary employees contrary to company policy, I find that the reason given to the employees and the ones advanced 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the hearing are not the real reasons for the Respondent's conduct. 2. The change in policy for paid vacations Respondent's handbook on the subject of vacations states in pertinent part: ". . . the following paid vacations have been scheduled: 6 months [service] but less than I year-1/2 week's paid vacation," and with respect to the eligibility of an employee to receive a paid vacation states, "employees will gain eligibility based on their total service as of July 1 of the current vacation year and will accrue, for actual vacation pay purposes, 1/52 of their total eligibility for each week they are on the payroll from the previous July 1." The vacation year is defined as "January through No- vember." By letter dated May 9, 1972, Wortman changed the Company's policy on vacations as set out in its handbook. The letter states: There is an apparent misunderstanding concerning our vacation policy. The wording of the Employee Hand- book was intended to mean that in order to qualify for any vacation in the vacation period July 1, 1972 to July 1, 1973, an employee would be required to meet the minimum service requirement of six months before July 1, 1972. However, since the Employee Handbook is not completely clear on this subject, and since in some of the orientation programs conducted early this year employees were not told that the minimum service to qualify for vacation had to be served before July 1, a special arrangement will be made for this year to carry out what many employees understood from these orientation programs. Here's how it will work: 1. July 1 will remain the cutoff date for computing vacation time. 2. Minimum service to qualify for any 1972-73 vaca- tion will be three months by July 1, 1972 and will qualify an employee for 10 hours of vacation which may be taken in any one of three ways: a. 2 days of vacation time-off with 10 hours of pay. b. I day of vacation time-off with 10 hours of pay. c. No vacation time-off: the employee receives pay for the day worked and 10 hours of vacation pay also. s These special arrangements will, of course, apply only to the 1972-73 vacation period. We trust this will clear up much of the misunderstanding, but see your super- visor if you have any other questions. Wortman's entire testimony with regard to his motive in issuing this letter follows: Q. On May 9, 1972, you wrote a letter to the employ- ees relating to a vacation policy. Can you explain what had happened with regard to the orientation sessions with regard to vacations? A. There was an ambiguity between the employee handbook and what many employees were told at their orientation session prior to starting work. Now, we knew about this, or we found out about it because our supervisors told us there was misunderstanding about this so we made the decision that we would settle it in this way, so we would be staying with our word as we outlined in the orientation sessions. Q. And was this a change in policy or was it a clarifi- cation of policy, this May 9 letter? A. Well, I'm not sure what you mean by policy. As I said there was an ambiguity here, as a matter having told the people one thing, at one time, and one thing at another. It was a clarification of policy, I think. Q. And was that particular letter and policy enunci- ated in it for what happened on vacations motivated in anyway by the Union organizational campaign? A. It was motivated by the same thing that motivat- ed us from the beginning. That is to try to treat people fairly. It is clear and I find that the plain meaning of Respondent's vacation policy as set out in its handbook is that in order to qualify for any vacation employees would be required to meet the minimum service requirement of 6 months' employment before July 1972. I further find that Wortman's testimony that employees had been given a dif- ferent version of the Company's vacation policy at orienta- tion sessions which created a misunderstanding is not credible.5 His testimony is completely lacking in substance or corroboration. He did not say when these orientation meetings were held, nor give the names of the employees that allegedly complained, nor the names of the supervisors who allegedly received the complaints or the supervisors who allegedly relayed the complaints to management, nor did he say when they relayed the employees' complaints. Not one of the supervisors was called by the Respondent to corroborate or put some life into Wortman 's vague asser- tions. Moreover, the only evidence in the record flatly con- tradicts Wortman for it indicates that Respondent in explaining to employees its policy on vacations was very careful to quote verbatim from its handbook. Thus, on No- vember 17, 1971, Personnel Manager Levegood distributed to all of the Company's employees a written announcement stating in pertinent part that on November 1, 1971, there was a meeting of employees with Wortman and Levegood at which time either Levegood or Wortman was asked and answered: Q. When will people get vacations? A. Our policy on vacations as outlined on pages 20 and 21 of the Employee Handbook is: [At this point in the written announcement the Company's rules on va- cations is set out as it appears in the Company's hand- book in haec verba including the portions I have described earlier in the Decision]. There is no evidence in the record other than Wortman's incompetent and uncorroborated testimony that a supervi- sor of the Company misrepresented the Company's vaca- tion policy. It would have been easy for the Respondent to 5 The alleged basis for the misunderstanding as explained in Wortman's letter of May 9 to the employees was that early in 1972 in some orientation meetings employees were not told the minimum service to qualify for vaca- tions had to be served before July 1. GTE LENKURT, INCORPORATED 935 establish the fact by competent testimony, either by calling a supervisor or a complaining employee. It did not. Based upon the foregoing and my impression that Wortman was not a credible witness on this matter, I find that the reason advanced by him at the hearing and in his letter to the employees to justify the change in the Company's vacation policy was not the real reason for the change. 3. Conclusions Respondent's reasons advanced at the hearing and to the employees for changing its policies with respect to holiday pay and paid vacations are not, as I have found earlier, its real reasons for this conduct. The evidence establishes that the real reason is Respondent's hostility toward the Union and its organizational campaign. These changes in known company policies which resulted in a substantial number of employees receiving increased benefits were made abruptly in the midst of the Union's organizational campaign. In addition, Respondent did not express its hostility toward the Union's organizational campaign in a lawful fashion but engaged in unfair labor practices designed to discourage its employees from supporting the Union. Based upon the fore- going, I am of the opinion and find that the abrupt change in policy regarding Thanksgiving holiday pay and vacation pay was part and parcel of the Respondent's entire course of illegal conduct and was undertaken with the purpose of discouraging employees from supporting the Union and was calculated to have that effect, N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964); cf. N.L.R.B. v. Dothan Eagle, Inc., 434 F.2d 93 (C.A. 5, 1970) (". . . when- ever the employer . . . has made a particular benefit part of the established wage or compensation system, then he is not at liberty unilaterally to change this benefit for better or worse during the union campaign. . . . Both unprecedent- ed parsimony and deviational largess are viewed with a skeptic's eye during the tensions of organization. . . .") Ac- cordingly, I find that Respondent violated Section 8(a)(1) of the Act by granting to probationary employees in Novem- ber 1971 Thanksgiving holiday pay and by granting to em- ployees in 1972 vacation pay who under the Company's normal policy were not entitled to such pay. 4. Respondent's rules prohibiting solicitation and the distribution of literature a. Respondent prohibits employees from distributing literature in the Company's parking lot Respondent's employees in support of the Union's orga- nizational campaign hand out literature at the entrances to the Company's parking lot. Respondent has a rule against distributing literature in the Company's parking lot. This rule is directed against and has been enforced against all kinds of distribution: Union, charitable, or commercial. 6 As discussed in other portion of this Decision Respondent knew of the Union's organization drive as early as October 1971 and in late November 1971 simultaneous with its change in Thanksgiving holiday policy for proba- tionary employees hired Sheridan to advise supervision how to conduct themselves in campaigning against the Union. Chief Security Officer John Vance, the person in charge of the parking lot, testified that since the opening of the lot, September 1971, the guards have enforced this rule. Quoting Vance, "I have enforced the rules as outlined in the employ- ee handbook, relative to solicitation." When asked, "What is the rule," Vance testified, "There would be no solicitation of any materials on the premises." There is no such rule or one like it in the company's handbook. There is no evidence that the rule quoted by Vance was ever communicated to employees orally or in writing. Employees orally openly solicited for the Union in the plant during nonworking time. There is no evidence or contention that employees were not allowed to distribute union literature inside the plant during nonworking time in nonworking areas. Under the circum- stances I find that the rule which the Company applied to the distribution in its parking lot was an unwritten one limited to the distribution of literature in the Company's parking lot. On April 26, 1972, several of the Company's employees attempted to distribute union literature on the Company's parking lot at the guard shack which is the main entrance to the plant used by substantially all of the hourly employ- ees. The guards pursuant to the above-described rule re- fused to allow the employees to pass out literature to other employees, and directed the handbillers to leave the parking lot. Since then the Respondent acting on the advice of its lawyers has allowed employees to distribute union literature at this location pending the disposition of the issue in this case . The Company, however, has made it known to the employees that it considers the handing out of union litera- ture by employees on the company parking lot at the guard- house to be against the Company's rules. The record does not establish and Respondent made no effort at the hearing to establish that this rule was necessary in order to maintain safety, discipline, or production. b. Respondent's written rules Respondent when it opened the plant in late August 1971 issued and continues to issue to each employee and supervi- sor a company handbook which, among other things, con- tains a list of company rules which if violated may result in discipline including discharge. It is undisputed and I find that these rules were promulgated in late August 1971 prior to the Union's organizational campaign. General Counsel contends that several of these rules are unlawful. I have set out these rules in their entirety below, and for the sake of convenience have labeled them "A" through "G". "A" Unauthorized solicitation or distribution of litera- ture of any kind during an employee's working time. "B" Unauthorized distribution of literature of any kind in working areas of the plant. "C" An employee may not engage in selling merchan- dise or soliciting funds or property during working hours or on plant premises. "D" An employee is not to enter the plant or remain on the premises unless he is on duty or scheduled for work. "E" Misusing or removing from the premises without proper written authorization Company property, rec- ords or other materials. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "F" An employee will not be permitted to bung pack- ages , luggage , or non-related work items into the build- ing. Any such property left in the gatehouse will be at the owner's risk. "G" Employees are not to gather on the plant premises for non-Company sponsored or sanctioned activities, or conduct any personal business during the working hours. c. Conclusions It is settled law that the Act guarantees an employee the right to solicit union support during nonwork time while on his employer's premises . It also guarantees an employee the right to distribute union literature during nonwork time in the nonwork area of the employer's premises. An employer's promulgation or maintenance of a rule or his application of an otherwise valid rule which interferes with the exercise of these protected employee rights is presump- tively an unreasonable impediment to such rights and, therefore, falls within the statutory proscription of Section 8(a)(1). This presumption derives from the fact that "time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee 's time to use as he wishes without unreasonable restraint, although the employee is on company property," Republic Aviation Cor- poration v. N.L.R.B., 324 U.S. 793, 803, fn. 10; from the fact that "normally the plant and its premises are the only place in which all employees congregate, and hence may afford the only practicable opportunity for the initial steps by which self-organization is affected," Tomlinson of High Point, Inc., 58 NLRB 982, 985-986; and from the fact that union activity at such time and places could not normally affect safety or production. United States Cartridge Compa- ny, 47 NLRB 896, 897-898, cited with approval in Republic Aviation, supra, 324 U.S. at 804, fn. 13. This presumption, however, may be overcome by a showing of "unusual cir- cumstances" necessitating the promulgation and applica- tion of the particular rule in order to maintain production or discipline. Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 795-797, 803-804, fn. 10; N. L. R. B. v. Babcock & Wil- cox Company, 351 U.S. 105, 113. Applying these principles of law to Respondent's written rules set out above and to its unwritten rule against distribution in the company park- ing lot, I conclude: 1. Respondent's rule prohibiting its employees from distrib- uting union materials in its parking lot and in particular in front of the guardhouse was not demonstrated to be neces- sary in order to maintain plant production, discipline, or safety. This rule reasonably tends to interfere with, restrain, and coerce employees in the exercise of their rights guaran- teed under Section 7 of the Act. Accordingly, by promulgat- ing, maintaining, and enforcing this rule Respondent viola- ted Section 8(a)(1) of the Act. Cone Mills Corporation, 174 NLRB 1015. The fact that the Union has other means of communicating to Respondent's employees-the entrance to the parking lot, homes, in-plant solicitation by employees during nonwork time-does not justify the Respondent's prohibition . See Cone Mills Corp., supra at 1020-21, and National Steel Corp., Great Lakes Steel Division v. N.L.R.B., F.2d 1231, 1233-34 (C.A. 6, 1969). II. It is well settled that no-solicitation and no-distribution rules which, like the Company's rules "A" and "B;" prohibit solicitation by employees during working time and prohibit distribution in work areas or on working time will be pre- sumed valid, absent evidence that the rules were discrimina- torily applied. See Stoddard-Quirk Manufacturing Co., 138 NLRB 615; Peyton Packing Company, Inc., 49 NLRB 828, 843, 844, and Gooch Packing, Inc., 187 NLRB 351. There is insufficient evidence to demonstrate that these rules were discriminatorily applied. Moreover, it is clear from the rec- ord that the employees did not view the rules as limiting solicitation dunng nonwork time . They freely and openly engaged in nonwork time solicitation on company property. Accordingly, under the circumstances of this case I do not find the promulgation, maintenance, or enforcement of these rules was in violation of the Act. Respondent's rule "C" above, is unlawfully broad insofar as it forbids employees from ". . . soliciting funds .. . dunng working hours or on plant premises." Employees have a right protected by Section 7 of the statute to solicit moneys during nonworking time on company property in connection with union activities or in connection with activ- ities related to employees' mutual aid or protection. General Electric Company, 169 NLRB 1101; cf. General Electric Company, 163 NLRB 253, 257, cases cited fn. 13. When informed by the company's rules that they cannot engage in this type of solicitation "during working hours" employ- ees may readily understand the rule as prohibiting solicita- tion on their own time, lunch or breaks, during working hours. This is especially true here because the rule which is worded in the disjunctive unequivocally forbids this type of solicitation "on plant premises" as well as "during working hours ." No justification for so broad a restriction on the employees' statutory rights was claimed or proved. Accord- ingly, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaran- teed in Section 7 of the Act, and has violated Section 8(a)(1) of the Act by promulgating and maintaining a rule which prohibits employees on their nonworking time on the Company's premises from soliciting for funds in connection with activities protected under Section 7 of the Act. As the mere maintenance of the rule itself serves to inhibit the employees engaging in otherwise protected activity, the finding of a violation is not precluded by the absence of specific evidence that the rule was invoked on any particular date against any particular employee. Farah Manufacturing Company, 187 NLRB 601. The Great Atlantic & Pacific Tea Co., Inc., 162 NLRB 1182, 1184. IV. Respondent 's rule "D" above, in substance, denies access GTE LENKURT, INCORPORATED 937 to the plant to off-duty employees and prohibits employees going off duty from remaining in the plant . While this rule does not in terms prohibit union solicitation or distribution, its maintenance has the natural effect of forbidding employ- ees to engage in union solicitation or distribution in non- work areas at any time except during "breaks" and the periods immediately before and after their own shifts. Re- spondent operates more than one shift . By its own terms this rule is unlawful in that on its face it applies to employees seeking to reenter or remain in the Company 's premises for whatever reasons , including union activity . It is too late in the day for Respondent to successfully urge that the legal principles governing employees ' in-plant union solicitation and distribution are not applicable to off-duty employees. The Board has ruled otherwise . See Diamond Shamrock Co., 181 NLRB 261, and McDonnell Douglas Corporation, 194 NLRB 514. Clearly the solicitation rights of both off-duty and on-duty employees are equally affected by the consider- ations which underly the presumptive invalidity of no-soli- citation rules ; namely , that nonworking time is the employees ' own, that the plant is normally the only place where all employees congregate , and that solicitation in nonworking time and places could not normally affect safe- ty or production . Respondent neither claimed nor proved any justification for forbidding off-duty employees from entering or remaining in the plant to engage in solicitation or distribution in nonwork areas . Accordingly, I find that the Respondent has violated Section 8(a)(1) of the Act by promulgating and maintaining a rule which prohibits em- ployees from remaining or returning to the premises of the plant during their nonworking time to solicit union support or distribute union literature in nonworking areas . Diamond Shamrock Co., supra, cf. Farah Manufacturing Co., 187 NLRB 601 (rule denying employees access to any work areas other than their own during break periods ). In arriving at this conclusion I have considered and as a matter of law rejected the defenses that there is no evidence the rule was enforced in an unlawful manner , that the Union had ade- quate alternate means of communications , and that on-duty employees have been allowed without limitation to solicit for the Union inside the plant during their nonworking time. See Diamond Shamrock Co., supra at 262; Farah Manufac- turing Co ., supra ; Cone Milles Corp., supra at 1020-21. V. Rules "E," "F," and "G," above , are not directed against either employee solicitation or distribution and unlike the Company's no-access rule ("D") these rules by their terms do not reasonably tend to interfere with , restrain , or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. Moreover, with respect to "G" it appears the employees have openly "gathered" on the plant premises during nonworking time to discuss the Union and with re- gard to "F" it appears that employees have openly brought various union materials into the plant; i.e., contracts and pamphlets . Accordingly, and since there is no evidence that these rules were promulgated for an unlawful reason or were enforced in a discriminatory fashion, I find that the Respon- dent by promulgating and maintaining and enforcing rules "E," "F," and "G" did not violate the Act. 5. Interference, restraint, and coercion attributed to spe- cific statutory supervisors All the Company's supervisors named in this portion of the Decision are admittedly statutory supervisors whose conduct is attributable to the Respondent. At the conclusion of the General Counsel's case-in-chief I granted the Respondent's motion to dismiss the consoli- dated complaint insofar as it alleged that the Respondent violated Section 8(a)(1) of the Act by virtue of conduct engaged in by five industrial engineers (Ben Chin, John Gardner, Gary Hercules, Kenneth Major, and J. M. Mallo- ry) and by Technologist Quinten Glasco. The General Counsel had not shown by a preponderance of the evidence that these persons were statutory supervisors. I denied Respondent's motion, however, insofar as the evidence es- tablished that any of these persons had been designated as agents of the Company by virtue of their attendance at meetings conducted by Sheridan and had thereafter within the scope of their agency engaged in unlawful conduct. I now find that the record does not establish by a preponder- ance of the evidence that any of these persons were desig- nated by Respondent to interrogate or keep its employees' activities under surveillance . Under the circumstances, I shall recommend that the portions of the consolidated com- plaint, alleging that Respondent has violated the Act be- cause of conduct engaged in by these individuals be dismissed. a. Gerald Beall Employee Steve Maldonado testified that in November 1971 in the plant's drilling room, Second Level Supervisor Gerald Beall in the presence of First Line Supervisors Mike Blackstone and Natividad Salas during a conversation in which Beall was trying to persuade Maldonado that the Union was no good told him "they might close down Len- kurt if the Union comes in." On cross-examination Maldo- nado changed his testimony. He testified Blackstone was not present and that Salas during the conversation asked him if he was for the Union and tried to convince him not to support the Union. While I am sure there was a conversa- tion between Beall and Maldonado about the Union I was not impressed by Maldonado when he testified about this conversation. His memory of what took place and what was said appeared hazy. Beall specifically denied making the threat of plant closure. Accordingly, I shall recommend that this portion of the consolidated complaint be dismissed. B. Donald Bennett Employee Carlos Salazar who at the time of thearing was still employed by the Company credibly testified that in December 1971 First Line Supervisor Donald Bennett stated that he understood Salazar wanted to transfer into his department. Salazar replied that this was correct and Ben- nett abruptly changed the subject asking, "if [Salazar] had any interest in outside organizations." Salazar who had pre- viously signed a card authorizing the Union to represent him, answered that he was neutral. The discussion then returned to the subject of Salazar's application to transfer 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into Bennett 's department . Bennett specifically denied ask- ing Salazar about "outside organizations ." When asked what he said to Salazar during conversations about Salazar's transfer , Bennett's testimony was evasive. To quote Bennett : "They are vague . . . and I don't remember exactly . I know I told him , I don't remember what I told him but I told him most of the time that maybe later we could consider it but at this time we couldn 't consider it because that is what I was told to tell him from my boss ." I do not credit Bennett . Bennett from his demeanor and the manner in which he presented his testimony generally did not give me the impression that his denial was credible . I also find from the context in which it was made that the term "out- side organizations" was meant and understood by Salazar and Bennett to be synonymous with "Union." Employee Barbara Gleicher was discharged on Decem- ber 13 , 1971. Gleicher who was a member of Bennett's bowling team which bowled in the Company 's league was scheduled to bowl that evening . Upon arrival she was told by Bennett that since she had already been replaced she could not bowl. Later while Gleicher was watching the bowling Bennett came over and expressed sympathy about her discharge and then asked , "What are you doing mon- keying around with the Union anyway?" Gleicher explained why she favored the Union to which Bennett replied, "Who pays your wages , Lenkurt or the Union ?" The foregoing is based on Gleicher 's credible testimony . Bennett admitted to a conversation at the bowling alley, but specifically denied Gleicher 's version . Bennett , as I have earlier observed, did not impress me as a trustworthy witness. Based on the foregoing , and the record as a whole, I find that Bennett's interrogation of Salazar and Gleicher about their union sentiments reasonably tended to interfere with, restrain , and coerce employees in the exercise of their rights under Section 7 of the Act. Accordingly , by engaging in this conduct Respondent violated Section 8(a)(1) of the Act. In this connection I note that in considering throughout this Decision whether or not the acts of interrogation attributed to Respondent 's supervisors violate the Act, I have been guided by the principles set forth in the Board's decision in Blue Flash Express, Inc., 109 NLRB 591. Employee Dorothy Sona , as described in detail later in this Decision , credibly testified that in late December 1971 or early January 1972 her supervisor , Camy Wright, asked if she wanted to get her union card back from the Union and if she wanted to campaign for the Company . Sona , after this conversation with Wright , spoke about the matter with Ben- nett in the Company's cafeteria . Sona credibly testified that because of Wright 's remarks she was scared and since she bowled with Bennett , who seemed like the type of person she could talk to, she spoke to him about Wright 's remarks. In response to Sona 's request for advice about what she should do about Wright in effect asking her to withdraw from the Union and campaign for the Company, to quote Sona , Bennett answered : "There was a good possibility that I could get fired because the supervisors kept records, you know of all of the employees who worked for them and if they were for the Union , they put a minus behind their name, and if they were against the Union, they put a plus behind their name and if you had minus behind your name you could get fired ." Bennett testified he never had a con- versation with Sona about the Union and that the only time he ever had any type of a conversation with Sona was once when she came to his office and told him Wright was going to fire her as Wright thought she was off the job excessively. Bennett told her that since she did not work for him he could not help her but she would have to speak with Wright about the matter . Bennett did not impress me as a trustwor- thy witness whereas Sona was a most impressive witness who it was evident was making a sincere effort to accurately recall the conversations and events she was testifying about. Based upon the foregoing , I find that Respondent through Bennett threatened employee Sona with discharge if she supported the Union and further find that by telling Sona Respondent was keeping a record of those employees who supported the Union , which support could result in their discharge , that Bennett created the impression that Respon- dent was keeping under surveillance its employees' union activities with the intent of firing those employees who sup- ported the Union . By engaging in this conduct Respondent violated Section 8 (a)(1) of the Act. The Union's hall and office is located on a main thoroughfare about one -half mile from Respondent's plant. Across the street from the Union 's hall is a restaurant, Un- cle John's . On April 18, 1972, Bennett was working late and about 6 p.m. decided to take a break and get something to eat, and drove to Uncle John's for pancakes (Uncle John's specializes in pancakes ). He drove into the parking lot and parked a short distance away from the rest of the cars in order to make sure that no one would dent his auto. Howev- er, prior to going into Uncle John's he observed employees Ron Johnson and his wife outside of the union hall; they also observed him and Bennett , realizing they saw him, left not wanting to be accused of spying on the employees' union activities. Other than the Johnsons there were no other employees present at the union hall and there was no meeting of employees scheduled for that night . Meetings normally were scheduled for Thursday nights . General Counsel contends that by the conduct described above, Bennett engaged in the surveillance of employees' union activities . I disagree . A union which chooses to locate its union hall on a main thoroughfare across from a restaurant which specializes in pancakes and which is located only one-half mile from the plant of an employer has no cause to complain when members of management in order to satisfy their desire for pancakes choose to eat at such a restaurant. Based on the foregoing and the record as a whole , I find that the General Counsel has not established by a preponderance of the evidence that Bennett went to Uncle John 's with the intent and purpose of observing Em- ployees' union activities . Accordingly, I shall recommend that this allegation of the consolidated complaint be dis- missed. c. Robert Clark Robert Clark was plant engineer in charge of Respondent's maintenance department from the time the plant began operations . Respondent in its answer admitted that Clark was a statutory supervisor only from January 20, GTE LENKURT, INCORPORATED 939 1972. Carlos Bofill, the Respondent's chief engineer, howev- er, testified that Clark was the plant engineer in charge of the maintenance department from the start of operations, August 1971. Accordingly, I find that Clark was a statutory supervisor during the entire time he was employed by the Company. Respondent subcontracted the major part of its mainte- nance work out to contractors, one of whom was Bomur Electric. Jack Mapes, an employee of Bomur Electric, com- menced to work on the Company's premises pursuant to Respondent's contract with Bomur about October 15, 1971. General Counsel contends that Mapes in effect exercised the duties of a statutory supervisor for Respondent. I dis- agree. Mapes testified "he sort of supervised what they [re- ferring to the Company' s maintenance employees] were doing, by authority, details given to me by Bob Clark. Sometimes he [Clark] would do it and sometimes he [Clark] would just tell me, Jack [Mapes] you see that this gets done." Employee Brittenham, a maintenance employee of Respon- dent, testified that Mapes assigned 95 percent of his work to him but did this many times in the presence of Clark and explained that Mapes "was taking orders from Clark and giving them to me." Based on the foregoing, I find that Mapes in the assignment of work to the Respondent's main- tenance employees exercised no independent judgment and acted as a conduit from Clark to the employees. It is undis- puted that Mapes other than assigning work exercised none of the other indicia enumerated in Section 2(11) of the Act, the section which defines a statutory supervisor. Although Mapes on a few occasions during lunchtime when Clark was out to lunch granted employees permission to leave when an emergency arose-sickness in family-this limited authori- ty exercised in a sporadic manner, does not, in my opinion, establish that he is a statutory supervisor. Accordingly, I find that the evidence does not establish that Mapes was acting in the interest of the Respondent as a supervisor within the meaning of the Act. Edward Brittenham, an alleged discriminatee, who began work on October 25, 1971, almost immediately joined the Union and attended union meetings. Brittenham credibly testified that based on information given to him by another employee, he went into Clark's office on December 11 and in the presence of Clark spoke to Mapes. I note that it is clear that Brittenham regarded Mapes as his immediate supervisor since it was Mapes that assigned him 95 percent of his work. Brittenham told Mapes at this time in Clark's office that he understood he was going to be fired for union activity. Clark smiled and made no comment. Mapes did not specifically deny the truth of the matter but told Britten- ham not to worry. In fact, as Mapes credibly testified, Clark during December 1971 had told him that there was quite a little pressure being put on him by Personnel Manager Levegood because of Brittenham's activity "in the Union hall." A few days following the December I1 conversation in Clark's office Mapes, as Brittenham credibly testified, told Brittenham in Clark's office in the presence of Clark, that Clark was under tremendous pressure to get rid of him because of his union activity, explaining that the Company was hostile toward Brittenham because of his outspoken attitude at union meetings and concluded by stating, "You know, they have their spies within your own organization down there don't you." 7 There is no evidence that Clark disavowed any of these comments. In summation, Brittenham in Clark's office (the plant maintenance office) in December 1971 stated he understood he was going to be fired for union activity, and then later in the same office Mapes told Brittenham that Clark was under pressure to discharge him because of his union activi- ties , particularly his outspoken attitude at union meetings, explaining that the Company had spies within the Union. Clark was present both times. Clark did not correct, repudi- ate, or disavow these statements. By his conduct I find that Clark gave Brittenham the impression that what Brittenham and Mapes stated was true insofar as Respondent was con- cerned, and thereby ratified their statements as voicing the position of management. Cf. Viking of Minneapolis, Division of the Telex Corporation, 171 NLRB 1155, and cases cited in fn . 5. This is especially true where as here the bulk of the coercive remarks involved conduct which was within the special knowledge of Clark who was in fact Brittenham's supervisor having the power to discharge him. Accordingly, I find that based on the foregoing, Respondent violated Section 8(a)(1) of the Act by threatening employee Britten- ham with discharge because of his union activities and creating the impression that it was keeping its employees' union activities under surveillance by inferring that the Company knew of Brittenham's union activities because it had spies within the Union. d. Cora Cody The undenied and credible testimony of Corliss Sue Thompson, an alleged discriminatee, follows. On December 10, 1971, Thompson's supervisor directed her to help out in the department supervised by First Line Supervisor Cora Cody. Soon after, on December 10, Cody came to where Thompson was working and stated, "I hear they had a good Union meeting last night." Thompson expressed a lack of knowledge. Cody ended the conversation by saying that in her opinion the employees did not really need a union inas- much as she had been promoted to a supervisor in 2 months. Later the same day while Thompson was at Cody's desk, Cody again brought up the subject of the Union and asked Thompson to keep her "ears open" and to let Cody know anything that was going on about the Union. Based upon 7 In placing this conversation in December 1971 1 have considered Brittenham's later testimony that it occurred "the latter part of March some- time or the early part of February, I don't recall at this moment, after my conversation with Jim Gearhart " Gearhart, an employee, spoke to him about joining the Union in late October 1971. 1 am convinced that Bnttenham either misunderstood the question or at that moment had no independent recollection of when the conversation took place. In any event, I credit his undenied testimony that there was such a conversation and further find in accordance with his initial testimony given on direct examination that it took place in December 1971 Brittenham, a retired United States Army officer was a most impressive witness who despite his hostility toward the Company for what he considered his unjust treatment testified in a straightforward, candid fashion Based on my observation of him I am convinced he was making a sincere effort to accurately recall events and conversations. That his initial testimony that this conversation took place in December 1971 is credible is supported by the testimony of Mapes that it was in December when Clark told him he was being pressured by Personnel Manager Leve- good because of Brittenham 's union activity 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foregoing, I find that Cody created the impression that Respondent was keeping its employees' union activities un- der surveillance and solicited employee Thompson to in- form on the union sympathies and activities of other em- ployees and that by engaging in this conduct Respondent violated Section 8(a)(1) of the Act. The undenied and credible testimony of employee Ron Johnson employed by the Company at the time of the hear- ing is that on May 11, 1972, Cody came over to his work table and asked if an employee by the name of Bill Stacy had ever been to a union meeting. Johnson told her "no." By Cody's interrogation of Johnson about another employee's union activity, I find that Respondent violated Section 8(axl) of the Act. The undenied and credible testimony of employee Tena Sacco who at the time of the hearing was employed by the Company follows. In February 1972 she received handbills that had been passed out by the Union and the next day her supervisor, Cody, at Sacco's work station, asked her if she had received a union handbill. Sacco replied "yes." Cody asked if Sacco had it with her or whether she knew the contents. Sacco neither had it with her nor could she re- member the contents, so she told Cody. In April 1972 Sacco was walking between departments with Cody when Cody brought up the subject of what had happened at work to an employee named Rose Marie Quintana, and asked Sacco "she [Rose Marie] didn't sign a card, did she." Sacco said no and Cody remarked that she did not think any of her girls would sign a card. Based upon the foregoing, I find that Cody's interrogation of Sacco about the union handbill in the circumstances of this case was a none too subtle type of interrogation aimed at determining her union sentiments and Cody's subsequent interrogation of Sacco about Rose Marie Quintana was interrogation aimed at discovering the union sympathies and activities of Quintana. By engaging in this conduct Respondent violated Section 8(a)(1) of the Act. The credible undenied testimony of employee Rose Ma- rie Quintana follows. In late February 1972 Cody, Quintana's supervisor, came to where she was working with employee Tena Sacco and stated that she had heard that the Union had passed out handbills with authorization cards attached, and asked them if they "had done anything about it." When they did not answer Cody asked specifically, "Did you sign a card" and both replied they had not signed a card. Quintana asked whether or not she should sign a card or wait for an election. Cody stated that the Company did not want the Union but that it was the employee's decision to make. Thereafter, during April 1972, between April 17 and 21, at Cody's desk, Quintana was informed by Cody that Cody heard she had done "something wrong," she had signed a union card and gone to a union meeting. Quintana denied the accusations. Cody asked if she was telling the truth. Quintana replied "yes," stating that an employee whose name she did not know had simply talked to her about the Union. Cody dropped the subject with the admonition to Quintana not to tell anyone about the con- versation . But, the next day Cody pressed the matter once again. She asked Quintana if she had signed a union card and again Quintana denied the accusation. Cody informed her that she knew the name of the employee who had been talking to her about the Union and asked if it was employee Lorraine Miera . Quintana admitted this was correct at which point Cody said that it was Supervisor Vera Montoya who had told Cody that Quintana had signed a union card. Finally, in May 1972 at the time Quintana was being evalu- ated by Cody she was asked by Cody, once again , if she had signed a card for the Union and again Quintana said "no," this time explaining that she did not intend signing one because she was in enough trouble with the Company think- ing that she had signed . Cody told her it was her decision but it was better to wait for the election . Based upon the foregoing , I find that Respondent through the conduct of Supervisor Cody violated Section 8(a)(1) of the Act in the following respects : (1) Interrogating employees Quintana and Sacco about their union activities and sympathies; (2) continually interrogating employee Quintana about her union activities and sympathies ; (3) deliberately creating the impression that Respondent was keeping its employees' union activities under surveillance by telling Quintana that she had heard Quintana had engaged in activities on behalf of the Union , that she knew the name of the employee who had spoken to Quintana about the Union, and that fellow supervisor , Vera Montoya , knew that Quintana had signed a union card ; and (4) interrogating Quintana about the identify of the employee who had spoken to her about the Union. e. John Cook John Cook, a production foreman and a second level supervisor, on May 11, 1972, according to the undenied and credible testimony of employee Ron Johnson, called John- son into his office and during their conversation asked what Johnson thought of the Union and had he heard anything about a union. Johnson stated he favored the Union where- upon Cook told him that the Company was new and to give it a couple of years to make it, that for some companies a union was good but did not think Lenkurt would need one, explaining "they were going to take care of their employ- ees." Based on the foregoing, I find that Cook interrogated employee Johnson about his union sympathies and that Respondent by virtue of this conduct violated Section 8(a)(1) of the Act. Employee Al Candelaria began work as an assembler for the Company in September 1971. In either late November or early December 1971, he complained to Supervisors Bob Harrison and Cook about the fact that he was working in assembly despite the fact he was qualified to perform a testing job. When they told him there was no need for testers Candelaria went to another supervisor, Nada Holmes, and complained about the refusal to transfer him to the job of inspector. About 2 weeks later, in December 1971, he was transferred to the position of inspector without any change in his rate of pay. It is not disputed, however, that Candela- ria at no time asked for more money. His complaint was limited to the fact he was not doing the work he was quali- fied to perform. As an assembler, Candelaria's labor grade was a grade 1, and it appears it became labor grade 3 at the time he became a tester . Early in January 1972 he took a 4-hour technician's test to qualify for the position of modu- lar tester. It is undisputed and I find that Candelaria passed the test and that in late January or the first week in Febru- ary 1972 Ken Pearsall, a senior technologist, informed him GTE LENKURT, INCORPORATED 941 he had passed the test and was a modular tester , a position which carried a higher rate of pay than his present classifica- tion. Later the same day Cook called Candelaria into his office and as was his normal practice when talking to em- ployees asked him if had any complaints about the Compa- ny and if so to speak out as it was going to be off the record. Candelaria complained about his wages and stated that he felt that a tester, the job he was performing, should be paid more money than an assembler . Whereupon Cook informed him that the testers were all scheduled to receive promotions and that he had the papers on his desk which indicated the increases which testers would receive , apparently referring to the wage increases and change in labor grades which were the result of the Company 's area survey . But, then, Cook told Candelaria that he had just been promoted to a labor grade 7 classification with an immediate substantial in- crease in pay. Cook asked Candelaria if he needed any "outside help" to better himself , asked him if he still had more complaints about the Company or its supervisors, and to quote Candelaria , "he started asking me about other employees, if they were doing okay, if they liked their job, or had been complaining." Candelaria pleaded a lack of knowledge. Finally, at the end of the conversation Cook, quoting Candelaria, "asked [Candelaria] if [he] would back the company up, if [he] would back them up all the way, if [he] would stick to the company." Candelaria told him "yes [he] would." The conversation concluded with Cook stating that "if you bring this conversation out again , I'll just call you a liar, it never happened ." It is undisputed that on the date of this meeting Cook knew that Candelaria was a union sympathizer. The foregoing was based upon the credible testimony of employee Candelaria who at the time of the hearing was still employed by the Company and still under the supervision of Cook. Although he had difficulty in placing the topics mentioned during the conversation in the sequence in which they occurred , I am convinced that he was making an hon- est effort to tell the truth and that his recollection as to what was stated by Cook was accurate. Cook testified that upon learning that Candelaria had passed the test he called him into his office and asked him if he had anything to say or any complaints he wanted to get off his mind . Candelaria said no, at which time Cook asked if he had any complaints off the record whereupon Candelaria complained that he felt he was underpaid. Cook then told him he had passed the test and was now a modular tester with a substantial in- crease in pay. Cook testified in effect that this was the extent of their conversation . He did not explain why he felt com- pelled to play the above game with Candelaria before telling him about the increase . He testified that he was unable to remember one way or another what was said during the latter part of the conversation . He was not able to specifical- ly deny Candelaria's testimony set out above. Based upon the foregoing , I find that the evidence does not preponderate in favor of a finding that in granting Candelaria the higher labor grade and promotion to the position of modular tester that the Respondent was motivat- ed by any consideration other than by the fact that during the normal course of business he had passed the test given for this position and that a vacancy existed for this position. But I find that a preponderance of the evidence establishes that the announcement of the promotion to Candelaria was deliberately designed and staged by Cook so as to cause Candelaria to believe that the promotion was a special favor given as an inducement to get him to withdraw his support from the Union. Thus, after the exam there was approxi- mately 1 month of unexplained silence, then Candelaria was called into Cook's office who after inviting Candelaria to complain about his wages announced the promotion. Cou- pled with this announcement was Cook's inquiry as to whether Candelaria still had complaints or needed "outside help" to better himself and the plea that Candelaria "back the company"-"back them up all the way"-"stick to the company." If there was any doubt left in Candelaria's mind that his promotion was given out of the usual and as a favor to get him to support the Company against the Union,8 it was removed by the manner Cook used to end the conversa- tion, the unexplained veil of secrecy he placed over the conversation . Based on these circumstances and in the con- text of Respondent's other unfair labor practices, I find that in late January or early February 1972, by virtue of Cook's announcement to employee Candelaria of his promotion, Respondent violated Section 8(a)(1) of the Act. Cf. N.L.R. B. v. West Coast Casket Company, Inc., 205 F.2d 902, 905 (C.A. 9). I further find that the questioning of Candelaria by Cook as to whether he thought he needed "outside help" to better himself and whether he would "back the company up" constituted a none too subtle form of interrogation about his union sympathies and as such constituted a viola- tion of Section 8(a)(1) of the Act on the part of Respondent. In addition, when considered in the light of the Respondent's policy of having its supervisors determine their employees' attitude towards the Union, I cannot re- gard as innocuous the unexplained questioning of Candela- na by Cook about the attitudes of the other employees in the department-"if they liked their job or had been com- plaining." In the factual circumstances in this case I find that Cook's purpose in this unexplained questioning was to learn the employees' attitude towards the Union and as such constituted a violation of Section 8(a)(1) of the Act by Re- spondent. I realize that on cross-examination Candelaria in effect testified that it was his opinion Cook in questioning him was "trying to get some idea of what [Candelaria] thought of [their] work performance." However, the specific questions asked by Cook about the other employees speak for themselves. These questions, unexplained by Cook when viewed in the light of the record as a whole [particularly the supervisors' efforts by indirect interrogation to learn the union sentiments of employees] along with the veil of secre- cy thrown over the conversation by Cook establishes the unlawful motive behind the questioning. f. Jean Hardy Four different employees charge that Jean Hardy, a first line supervisor, interrogated them about the Union. The testimony of two, Denise Daum and 'Cecilia Rose, was not denied by Hardy who specifically denied the testimony of the other two, Steve and Richard Lucero. All four employ- 8 I note that Candelaria testified that he was of the opinion that he had failed the written part of the examination 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees appeared credible. Hardy did not. Upon their credible testimony I find as follows. On either December 13 or 14, 1971, Hardy while giving employee Denise Daum her 30- day probationary evaluation asked her "what [she] knew about the Union ." Daum expressed ignorance , stating she had only gone to one meeting. Hardy in substance then stated unions were bad, that the Company did not need a union, and that the employees should give the Company a chance to prove itself and sooner or later Daum would get tired of the Union and get nd of it. About the middle of November 1971, employee Steve Lucero while at Hardy's desk was asked by her to quote Lucero, "what I thought of the Union." Lucero stated the employees should give the Company a chance but if the Company did not come through the employees had no choice but to have a union. Hardy stated that in her opinion unions were no good. During the week of January 10, 1972, Hardy came over to where employee Richard Lucero and Pablo Mirabal, Jr., a statutory supervisor, were working and, during the course of the conversation which took place, asked Lucero, to quote Lucero, "if I signed a card , an authorization card , and if I had been talked to about the Union." Lucero answered that he had been "talked to" but had not signed a card. In crediting Lucero's testimony I have carefully weighed the fact that initially and in great detail he positively testified that this conversation took place on Monday, January 10, 1972, a date he was absent from work. However, based upon my impression of the witness when he was testifying as to this conversation I am convinced that although his memory was not clear as to the exact date of the conversation, his testimony was truthful concerning the content of the con- versation . In addition , I also note that in a signed, sworn affidavit given to the Board on January 20 shortly after the alleged act of interrogation Lucero apparently recited the interrogation as testified and placed it as having taken place "at the beginning of the week ." Finally, sometime during February 1972 employee Cecilia Rose was returning from lunch when Hardy asked her "if there was anyone that was talking to [her] about the Union ." Rose answered "no," whereupon Hardy stated , "if there is would you please tell me." Based on the foregoing , I find that Hardy interrogated employees Daum, Rose, and Steven and Richard Lucero about their union activities and sympathies and suggested to employee Rose that she inform Respondent about the union sympathies and activities of other employees. By this conduct Respondent violated Section 8(a)(1) of the Act. g. Annabelle Humphries Annabelle Humphries is a first line supervisor . Employee Maxine Uribarn testified in substance that on three sepa- rate occasions she was questioned by Humphries about her union activities or sympathies . Humphries either generally or specifically denied each of the alleged interrogations. Uribarn, not an alleged discriminatee, who was fired by Humphries, exhibited a marked hostility toward both the company and in particular Humphries because of the dis- charge. At least one of the alleged acts of interrogation was not included in the signed , sworn affidavit which she gave to the Board. While testifying her demeanor gave me the impression that her anger toward the Company was col- oring her testimony and that she was not a reliable witness. Under the circumstances, I do not credit her testimony described above, and shall recommend that the portions of the consolidated complaint which are based upon this testi- mony be dismissed. h. Barbara Johnson Barbara Johnson is a first line supervisor. Employee Den- ise Daum credibly testified that on January 13, 1972, she was receiving her 60-day probationary employee evaluation at Johnson's desk when she was asked by Johnson if she had been asked to join the Union and if she had signed a union card. Daum admitted she had signed a union card and Johnson asked if she regretted it and if she wanted to get it back. Daum said "no." Johnson testified she did talk to Daum about the question of union organization because to quote Johnson "she seemed unhappy so I wanted to talk to her," and that Johnson asked how Daum liked the plant, how she liked the benefits , pointed out she was getting hospitalization, and that in the course of the conversation the subject of Union did come up but, Johnson testified, "I didn't bring it up directly, [a]nd at this time [Daum] admit- ted that she had attended a meeting and had signed a card. I remember her being rather scared that she might get fired if they knew she signed a card...." Johnson then testified in response to a leading question that Daum gratuitously volunteered she had signed a union card. Johnson did not impress me as a candid witness. Based on the foregoing, I find that Johnson interrogated employee Daum about her union activities and sympathies and that by this conduct Respondent violated Section 8(a)(1) of the Act. i. Freda Martindale The undenied testimony of Lorraine Miera is that on or about January 17, 1972, First Line Supervisor Freda Mar- tindale issued her a written reprimand at which time Miera accused Martindale of discriminating against her because she supported the Union. Martindale answered: "Why would you say that thing, why would you want a Union." Miera explained her reasons for supporting the Union and Martindale asked that Miera give the Company a chance. I find that Martindale's attempt to discover the reason for Miera's dissatisfaction with the Company which had caused her to support the Union is insufficient to establish a viola- tion of the Act, absent any evidence of a promise of benefits or a threat of reprisal, and shall recommend that the allega- tion of the consolidated complaint upon which this testimo- ny is based be dismissed. General Counsel contends that by issuing written repn- mands to Miera in January and April 1972 the Company has violated the Act. The gravamen of the January repri- mand issued by Martindale was that Miera who had gotten permission during working time to leave her work station and go to the coatrack, apparently to get something from her coat, did not come right back to her work station but visited with another employee. According to Miera she did visit on the way back at the invitation of the other employee and that their conversation lasted a matter of seconds. The gravamen of the April reprimand was that Miera was work- GTE LENKURT , INCORPORATED 943 ing in slow motion , leaning through the rack which separat- ed her work station from the one across the way , and was talking to another employee . It is undisputed that employee Ruth Sierra , across from Miera is about 25 feet away, sepa- rated from Miera's work station by a rack of shelves which is adjacent to Miera 's work station . Miera testified that she would normally not talk to Sierra through the shelf racks but would "whisper" explaining that Sierra could at a dis- tance of 25 feet read her lips , and that it was not necessary for her to lean forward through the rack to effectively make herself understood by Sierra . Initially, Miera testified that on the day involved in the reprimand she did not talk or whisper through the rack but then testified that right after lunch she did have a brief conversation with Sierra which took a matter of seconds and that it was done by "lip read- ing." Second Level Supervisor Stanley Morgan testified he observed Miera on this particular day leaning on the rack in order to talk to Sierra , and that she talked for 10 to 15 minutes during which time Miera was working only in slow motion . I reject the testimony of Miera whose demeanor when testifying on her alleged talking instead of working did not impress me. Her testimony concerning the alleged lip reading between herself and Sierra through a rack of shelves at a distance of 25 feet is incredible , and I find that as Morgan testified she was in fact talking and that because it was necessary for her to talk through the dividing rack it slowed down her work . I realize that Martindale did not testify, that Morgan's testimony on this matter is at times contradictory , and that the circumstances surrounding the issuance of the April reprimand suggest that the Company welcomed the opportunity to give Miera the reprimand be- cause she was a known union adherent . But the fact of the matter is that Miera , as I find , did talk during working time and did so in a manner which interfered with her work. There is no evidence that the Company allows employees to engage in this sort of conduct as distinguished from simply talking during worktime . Under the circumstance , while the Company may have welcomed the opportunity to repri- mand Miera , I find , although not free from doubt , that her misconduct was the controlling reason for the reprimands. j. Mary Ann Montoya Mary Ann Montoya is a first line supervisor . Estelle Yeat- man at the time of the hearing was employed by Respon- dent . She credibly testified that during November 1971, while sitting with Montoya and employee Cunningham in the cafeteria , Montoya stated the employees trying to get the Union organized "are going to find themselves in a lot of trouble ," to which both employees responded affirma- tively , and on another occasion when Yeatman asked if an employee in the department named Ellana Cady had been demoted because she was for the Union , Montoya an- swered , "Yes, I suppose so." It is undisputed that at this time Ellana Cady, an employee in the department , had been moved by Montoya from the job of inspector to the produc- tion line . Montoya who testified that she ate lunch occasion- ally with Yeatman and Cunningham specifically denied the first of the above two conversations and testified that she could not "remember" having the second. Yeatman also credibly testified that in December 1971, shortly after being promoted out of Montoya's department to the job of material handler which required that she circu- late around the plant , she was called over to Montoya's desk , asked about the new job , and then asked by Montoya, "Have you heard anybody talking about the Union or any Union meetings ." Yeatman said no. Montoya then suggest- ed, "You know with your fob . . . it is very convenient for you to walk around and not being noticed listen in on people's conversations ." Yeatman agreed . Montoya then asked , "It would help the company a lot if you could hear anything and report it to me and then I will report it." Yeatman agreed to engage in this surveillance . Montoya specifically denied having this conversation . I do not believe Montoya . Generally, she was an unimpressive witness. In addition , her testimony in certain major respects did not ring true . For example , during cross-examination she testi- fied that she left union handbills lying on her desk in full view for employees to see , unusual conduct for a supervisor employed by an employer that opposes the Union . She dis- cussed these handbills with her employees. This conduct is explained however , by Montoya' s reluctant admission upon further examination that pursuant to instructions from Sheridan she compiled a list of employees under her super- vision and indicated whether they were for or against the Union and turned it into Second Level Supervisor Harrison. When asked how she went about compiling this list, her testimony was evasive. It was a mass of rambling generaliza- tions which can be grouped into three categories . ( 1) Em- ployees would voluntarily report to her that other employees were supporting the Union ; (2) employees would voluntarily tell her other employees had mentioned the Union to them; and (3) Montoya's own personal feelings. I find , however , that Montoya left out one method which employee Yeatman described in a straightforward candid manner ; namely, asking other employees to spy. Based upon the foregoing , I find that Respondent violated Section 8(a)(1) of the Act by the following conduct engaged in by Mary Ann Montoya : (1) Telling employees Yeatman and Cunningham that employees trying to get the Union organ- ized "are going to get themselves in a lot of trouble," and that an employee was demoted because she supported the Union ; and (2) by interrogating employee Yeatman about the union activities and sympathies of her fellow employees and suggesting to Yeatman that she inform the Company about the union activities and sympathies of other employ- ees. k. Vera Montoya Vera Montoya is a first line supervisor . Caroline Piro, who at the time of the hearing was employed by Respon- dent , testified on direct examination that in November 1971, her supervisor , Montoya, came over to where she and employee Billie Adams were working and asked , to quote Piro, "if I had attended a Union meeting , and I told her I would if she would sign an authorization card ." On cross- examination Piro's testimony changed . She testified that Montoya asked Piro "if [she] would take [Montoya] to a meeting." Adams who testified on other matters for the General Counsel, was not questioned about this matter. Montoya generally denied making the remarks attributed to 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her by Piro on direct examination. Under the circumstanc- es, including the ambiguity in the testimony of Piro and the General Counsel's failure to clear up this ambiguity by call- ing Adams to testify on this matter, I find that the evidence as set forth above does not preponderate in favor of a find- ing that Respondent through Vera Montoya interrogated an employee about her union activity and accordingly shall recommend that this allegation in the consolidated com- plaint be dismissed. Ruth Sierra who at the time of the hearing was employed by Respondent testified that on December 15, 1971, at her work station her supervisor, Vera Montoya, asked her "if [she] was for the Union." Sierra answered "yes." Montoya asked why Sierra went to union meetings where they could brainwash her to sign cards. Sierra responded in kind, ask- ing why Montoya attended supervisory meetings . Montoya said the Union just made promises and the argument went on in this fashion, after which Montoya told Sierra that the Company needed "girls" like her, and that in time she could be a supervisor because she had hardly missed work. At this point the conversation ended with Montoya asking if em- ployee Nellie Chavez "was for the Union" with Sierra an- swering, "you should ask her." Vera Montoya testified that a conversation did take place between herself and Sierra but in general denied ever asking Sierra if she was for the Union but testified that it was Sierra who volunteered that fact during a conversation they had at Sierra's work station. Montoya's version of the conversation was that Sierra start- ed it off by saying that Montoya had been brainwashed about the Union at supervisory meetings, that Sierra volun- teered the fact that she thought the Union was good, that Montoya denied she was brainwashed about unions at su- pervisory meetings, and explained why the Company did not need a union. Based upon my observation of them while testifying, I am of the opinion that Sierra's version of this conversation is the more reliable, that Sierra did not volun- teer to Montoya that she was for the Union, but that Mon- toya in violation of Section 8(a)(1) of the Act interrogated Sierra about her union sympathies and activities. I further find, based upon the credible and undenied testimony of Sierra, that during this same conversation, Montoya interro- gated her about the union sympathies of another employee, Nellie Chavez, and that by engaging in this conduct Re- spondent further violated Section 8(a)(1) of the Act. It is undisputed that on Friday, October 29, 1971, the day after a union meeting had been held, Montoya, in the pres- ence of employee Marla Work, approached employee Glo- ria Dine at her work station and declared: "I heard you were a big smash at the meeting last night." Dine replied she did not know what Montoya was referring to. Montoya testified that she was just joking with Dine. I find that it was com- mon knowledge in the plant, as Supervisor Bennett testified, that union meetings were held on Thursday evenings. Un- der these circumstances there can be no mistake that ev- eryone understood that the meeting in question was a union meeting. Regarding Montoya's testimony that this state- ment was made in jest there is no evidence that any of the employees, including Dine, regarded it as a joke, and when the statement is viewed in the factual circumstances of this case, including the Respondent's extensive course of unlaw- ful conduct directed against employees who support the Union, it cannot be presumed that employees would regard the comment as a joke. To the contrary, I find that in the circumstances of this case, the remark, ("I heard you were a big smash at the meeting last night") had a reasonable tendency to create the impression that the Respondent was keeping the union activities of its employees under surveil- lance, and that by engaging in this conduct Respondent violated Section 8(a)(1) of the Act. 1. Stanley Morgan Stanley Morgan is a second level supervisor. Employee Marilyn Hengst, who at the time of the hearing was still employed by Respondent, credibly testified that in Febru- ary or March 1972 Morgan called her aside and asked if she knew whether employee Carol Mulhern, an employee in his department, was for or against the Union, and if there was any way Hengst could find out, explaining that he had heard rumors she was in favor of the Union. Hengst stated that she did not believe the rumors were true. Two or three weeks later, Morgan, according to Hengst's credible testi- mony, asked her if she had "found out anything about [Mulhern]." Hengst answered no. Morgan, when questioned about the conduct above described, was not able to un- equivocably deny it. He answered that he "does not recall" engaging in such conduct, which he later defined to mean, "I really can't just say. It doesn't strike a bell with me." Based on the foregoing, I find that Stanley Morgan interro- gated employee Hengst about the union activities and sym- pathies of other employees and suggested to Hengst that she inform the Company about the union sympathies of other employees, and that by this conduct Respondent violated Section 8(a)(1) of the Act. Employee Lorraine Miera testified that on April 11, 1972, she was issued a written reprimand, as discussed earlier in the Decision, by her supervisor, Freda Martindale, in the presence of Morgan. She protested and accused the Compa- ny of discriminating against her because she supported the Union whereupon, to quote Miera's testimony, Morgan an- swered: "Oh, come on, this company doesn't work like that ... in fact, I know who is Union in my department and who isn't Union, and otherwise I couldn't care less what they are." First Line Supervisor Martindale was not ques- tioned by Respondent about this matter and Morgan, as in the case of his conversation with employee Hengst de- scribed above, was unable to unequivocably deny the above remarks attributable to him. Based on the foregoing, I find that Morgan informed Miera that he knew who in his de- partment was for the Union and that by making such a statement created the impression that Respondent was keeping the union activities of its employees under surveil- lance, and further find that by this conduct Respondent violated Section 8(a)(1) of the Act. While Morgan's state- ment that "he could not care less" whether his employees favored the Union might, in some circumstances would neu- tralize the inherently unlawful nature of this remark, it cer- tainly does not do so in the instant case, where Respondent is engaged in numerous other violations of the Act including the systematic polling of employees to determine whether they are for or against the Union. Respondent's conduct speaks much louder than Morgan's, "I couldn' t care less." GTE LENKURT, INCORPORATED Casandra Cochran, a former employee of the Company (not an alleged discriminatee ), who was discharged on March 21, 1972, testified that in March, prior to her dis- charge , she was on the way into a meeting of employees at the plant and observed Morgan talking to a group of "about" three people, one of whom was employee Vanessa Robards. When she walked into the room, she "heard them mention the Union" which caused her to go over and stand by Morgan at which time Morgan made the following re- mark: "If anyone joins that Union, they will be fired on the spot. They're making enough money as it is." This is all Cochran heard , it was the end of Morgan's conversation, and the general meeting which they had assembled for com- menced. Morgan specifically and unequivocally denied making this remark. The General Counsel did not call em- ployee Robards or anyone else to corroborate Cochran's story. Finally, it appears that when Cochran initially gave this story to the Board in the form of a signed sworn state- ment she specifically identified all the persons who were present when the alleged threat was made by Morgan but admitted at the hearing that she had made these names up, they were fictitious, explaining, "I didn't want to get any names of the people I'm involved with." I do not believe that Cochran is a credible witness and will recommend that the complaint be dismissed insofar as it is based upon the testimony described above. in. Octa "Doc" Morgan Octa "Doc" Morgan was a second level supervisor for Respondent until April 14, 1972. Based upon the undenied and credible testimony of employees Carlos Salazar, James Gearhart , and Mike Benally , I find that Morgan engaged in the following conduct . Sometime during November or De- cember 1971 , Morgan called employee Benally to her desk and asked him if he was for or against the Union , told him in substance that the Union was no good and advised him not to sign a union card , and concluded the conversation by advising him to think about what she had told him. Also in December 1971, Morgan approached employee Gearhart in the toolcrib and asked "if [Gearhart] had heard about a Union in the plant." Gearhart said he had and the subject was changed . Finally, in December 1971, after being noti- fied for the first time that his transfer to the stockroom had not been approved , employee Salazar went to Morgan and asked her if she knew why he had not received the transfer. Morgan replied with a question , "Let me ask you something first . How do you feel about outside interests?" Salazar asked if she meant that the stockroom supervisor did not want him in the department because he did not trust his loyalty to the Company. Morgan nodded her head affirma- tively. The phrases "outside interests" and "loyalty to the Company" when placed in the factual circumstances of the case could have only referred, and I find Morgan and Sala- zar understood that the phrases referred, to the Union and its organizational campaign. Based on the foregoing , I find that Respondent through the conduct of Octa "Doc" Morgan violated Section 8(a)(1) of the Act by interrogating employees Salazar , Gearhart, and Benally about their union activities and sympathies and by informing Salazar that the Company had not promoted him because of his union sympathies or activities. n. Jim Murray 945 Jim Murray is a first line supervisor. During February 1972 Richard Romero, an alleged discrimmatee, was trans- ferred from Camy Wright's department into Murray's. On his first day in Murray's department, according to the credi- ble and undenied testimony of Romero, after congratulat- ing him on his new job Murray asked "if anyone had talked to me about the Union," whereupon Romero recited to Murray an earlier conversation he had with his former su- pervisor, Camy Wright, where Wright had spoken out strongly against the Union. Romero told Murray that he believed he should be allowed to make his own decision about the Union without pressure from the Company. Mur- ray agreed, but told Romero the following story concerning either Murray's father or father-in-law; "[he] had worked for a company for so many years, and now all of a sudden he was out of a job because of the Union." Based on the foregoing, I find that Respondent violated Section 8(a)(1) of the Act based on Murray's questioning of Romero about whether anyone had spoken to him about the Union, but do not find that the evidence establishes a threat to be under- taken by Respondent to discharge employees because of their union sympathies or activities and insofar as the com- plaint alleges that as a violation of 8(a)(1) I shall recom- mend that it be dismissed. o. Nick Pavlakovich Marilyn Hengst, employed by the Company, credibly tes- tified without denial that First Line Supervisor Nick Pavla- kovich in late January or early February 1972 telephoned her at home and, quoting Hengst, told her, "He had been to a meeting with the company and for me to watch it because they had my name down to watch me for my Union activities . . . he said they had mentioned my name and for the supervisors to watch me." Based on the foregoing, I find that Respondent through the conduct of Nick Pavlakovich violated Section 8(a)(1) of the Act by making the above- described statement to Hengst, which was calculated to create the impression that the Respondent was keeping its employees' union activities under surveillance. p. Kenneth Pearsall, Jr. Kenneth Pearsall, Jr., is a first line supervisor. Based on the credible and undemed testimony of employees Philip Romero and Wallace Hanes, I find the following. In the middle of December 1971 Pearsall called employee Philip Romero over to his desk and to quote Romero, "He asked me, that he was taking a survey of how people felt about the Union and he asked me how I felt about it." Romero stated he felt the Company needed a union. Pearsall asked him "why." Romero explained the reason for his proumon atti- tude. Also during April 1972 in the plant cafeteria during a break in work, employee Wallace Hanes was talking with other employees about unions when Pearsall, who was ap- parently sitting at the table, asked Hanes how he felt about unions. Hanes indicated he favored them. Based on the 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing, I find that Respondent through the conduct of Kenneth Pearsall , Jr., violated Section 8(a)(1) of the Act by interrogating employees Romero and Hanes about their union activities and sympathies. q. Joe Petranovich Ron Johnson, who at the time of the hearing was still employed by the Company, without denial credibly testified that Joe Petranovich, a first line supervisor, on two separate occasions on November 26 and in December 1971 ques- tioned him about the Union. On November 26, Petranovich, during the course of a conversation about the Union which Johnson openly favored, "asked [Johnson] had anyone said anything to [Johnson] about a union or asked (Johnson) to sign a card," and during a conversation in December asked Johnson, "had [he] seen any cards with a little stamp in the comer [referring to a union card] and had [he] signed one." Johnson told him he had signed a card. Based on the fore- going, I find that Respondent through Joe Petranovich by interrogating employee Johnson about his union activities and sympathies violated Section 8(a)(1) of the Act. r. Carmen Romero Carmen Romero is employed by Respondent as a first line supervisor. Based upon the credible and undenied testi- mony of employees Theodorita Aragon , Susan Miller, and Mary Cordova, I find Romero engaged in the following conduct. Romero, in the middle of December 1971 in Aragon's department, asked Aragon if her husband "worked" for a union [apparently meaning whether he worked for a compa- ny that had a union] and asked "what [Aragon] thought of unions ." Aragon stated she was ignorant about unions and Romero in substance stated they were undesirable. During this period of time (mid-December), during a "break" at work, Romero asked employee Miller "if [Miller] had been attending Union meetings ." Miller said no. Then during January 1972 Romero at Aragon's work station, without any explanation, asked Aragon if the husbands of two of her friends who worked for the company belonged to the Union and asked where they worked. Aragon informed Romero where the husbands worked but stated Romero would have to find out for herself if they belonged to the Union. Based on the foregoing, I find that Respondent, through the con- duct of Carmen Romero, violated Section 8(a)(1) of the Act by the interrogation of employee Susan Miller about her union membership and activities, and by the interrogation of employee Theodorita Aragon about her union sympa- thies and activities, and the union sympathies and activities of other employees. In December 1971, about a week before Christmas, while sitting at a table in the break area of the plant with employ- ees Aragon, Miller, Larry Gilmer, and perhaps one other employee, Romero, speaking to Aragon and Miller, asked them "what [they] thought about the Union." And during the same month Romero, while sitting at a table in the cafeteria having lunch with employees Cordova and Josi Aguilar and Aragon, asked where their husbands worked and asked the employees who were at the table, "if [they] [referring to the employees, not their husbands] were pro- Union." Based on the foregoing, I find that Respondent through the conduct of Carmen Romero violated Section 8(a)(I) of the Act by the interrogation. of employees Aragon, Miller, Gilmer, Cordova, and Aguilar about their union sympathies and activities. On or about January 21, 1972, Respondent through its general manager and vice president, Tom Wortman, issued to the employees a letter devoted exclusively to the subject of the Union's solicitation of the company's employees to sign union authorization cards, suggested they not sign such cards, and ended with the comment that, "an outside party [the Union] . . . has no place in our personal relationship." Employee Aragon was absent on the date it was issued and was given a copy later, during January or early in February 1972 by Romero, who several days later approached Ara- gon at work and asked what she had thought about the letter . Aragon stated she had no knowledge about the con- tents of the letter and walked off, whereupon Romero got very angry and stated, "what do you mean, you don't know about the letter? Your husband works for unions ." 9 Aragon tried to calm Romero down, but continuing, Romero stated, "what do you mean, you don't know about unions? You sit with Sue Miller at lunch every day, and everyone knows that is all Sue is doing, throwing junk about the Union all over the place." Aragon stated that while this might be true, that Miller was just a friend who had not told her anything about the Union. At this point, to quote Aragon, "then ,[Romero] told me that if the Union came in , like, I was a material handler, if I should finish my work early, I would have to go home because I wouldn't be able to do any other work." Based upon the foregoing, I find that through the conduct of Carmen Romero, Respondent violated Section 8(a)(1) of the Act by interrogating employee Aragon about her union activities, creating in the eyes of Aragon the impression that the company was keeping the union activities of its employ- ees under surveillance , and threatening Aragon with eco- nomic reprisals if she supported the Union. s. Natividad Salas Respondent admitted that Natividad Salas became a stat- utory supervisor on November 13, 1971. There is no evi- dence that prior to that date he was a statutory supervisor. Employee Steve Maldonado, an alleged discriminatee, testi- fied that "around" the month of November 1971 Salas in the punch press room asked him "who in [the] department was in the Union. Who went to the Union meetings" and Salas stated that he would have joined the Union if he had not become a supervisor. Maldonado testified that when he spoke to him, Salas was wearing a shirt and a tie which he only commenced wearing after he became a supervisor. Consistent with this testimony , Maldonado in connection with asking Salas to leave work early in November 1971 testified that Salas was a supervisor at that time because he was wearing a shirt and tie. However, on cross-examination, he admitted that he asked Salas for permission to leave early 9 The above incident vividly demonstrates that the purpose and intent of the Company's supervisors in getting the employees ' reaction to company letters and union bulletins was to learn their attitude toward the Union. GTE LENKURT, INCORPORATED on November 5, 1971. In these circumstances the fact that Salas wore a shirt and tie when he spoke to Maldonado does not indicate that he was a supervisor within the meaning of the Act . I find that General Counsel did not establish that when Salas spoke to Maldonado he was a statutory supervi- sor and for this reason shall recommend that this portion of the consolidated complaint be dismissed. t. Tom Sanchez Tom Sanchez is a first-line supervisor . Lorenzo Caraba- jal, an alleged discriminatee , testified that on November 2, 1971, in Sanchez' department, employees Joe Terrazas and Leroy Chavez showed him a company memo issued appar- ently only to supervisors which they had gotten from San- chez . This memo according to Carabajal's undenied testimony, in substance stated , "Lenkurt was aware of the Union trying to come in and they didn' t want it in." Present when Carabajal read this memo was supervisor Sanchez who at this time (November 2) told Carabajal about what was going on at company meetings . Sanchez , to quote Cara- bajal, "told me they were having these meetings in the morning and that they knew who was supporting the Union and who wasn 't and he said , `your name [Carabajal's] was mentioned ' . . . you had better watch your step because they know you are supporting the Union." On the next day, November 3, 1971, Sanchez again told Carabajal that his name had been mentioned at meetings of the company and warned him he had "better watch out" and would keep him advised about what was going on. Carabajal as will be de- scribed later in this decision was an active union adherent. Joe Terrazas testified that on more than one occasion Sanchez told him and employee Chavez about the classes conducted by the Company that Sanchez was attending. Quoting Terrazas, "Saanchez] said that they [supervisors] were supposed to go around listening and taking names of people who were for the Union and stuff like this and report them and they gave them a lot of papers and stuff why the Union wasn 't any good." Terrazas was unable to date the conversations with Sanchez when he spoke about the super- visory meetings other than as starting sometime after the first week in October 1971, he was fired December 17, 1971. Carabajal's notes which he made contemporaneously with his above-two conversations with Sanchez reveal that San- chez spoke to him , as described above, about the superviso- ry meetings in the first week of November 1971. Under the circumstances and since Sanchez testified that supervisors started having training classes with personnel manager•Le- vegood in November 1971, I find that the above-described comments attributed to Sanchez by employees Terrazas and Carabajal about these classes were made during the first part of November 1971. Regarding these conversations I was impressed by both the testimony of Carabajal and Ter- razas who both impressed me as making a sincere effort to tell the truth . Sanchez did not impress me when he gave his testimony on this matter. Moreover , he did not either gener- ally or specifically deny the remarks attributed to him. He admitted discussing the Union with both Terrazas and Ca- rabajal on more than one occasion, admitted that at a super- visory meeting the supervisors including himself "were issued a policy statement" which Sanchez took to his desk 947 and which Terrazas picked up and read , and that Terrazas made a statement which indicated he thought the supervi- sors had nothing to do but go after the Union , whereupon, Sanchez told Terrazas , in substance , that he was correct, that the supervisors had nothing else to do but to fire the employees . Finally, Sanchez testified that on between two and five occasions he discussed the supervisory meetings with Terrazas , that he believed on some occasions Carabajal was present, but did not testify what he told the employees. Based on the foregoing, I find that by the conduct of Tom Sanchez, Respondent violated Section 8(a)(1) of the Act in the following respects : ( 1) creating the impression that Re- spondent was keeping its employees ' union activities under surveillance by Sanchez ' statement to Carabajal that the Company knew the names of the employees who were sup- porting the Union, and by Sanchez' statement to Terrazas that the company 's supervisors were taking the names of employees who were union sympathizers and reporting them to the Company ; (2) threatening Carabajal with eco- nomic reprisals because of his union activity and sympa- thies by Sanchez' warning that "you had better watch your step because they know you are supporting the Union." In crediting Terrazas ' above testimony, I do so noting that this is not to say he was completely candid in all parts of his testimony . Thus, at the hearing , he testified in sub- stance that on September 27, 1971, Personnel Manager Levegood while walking by a group of new hires, which included Terrazas , told them that talking about the Union could get them into trouble . When he initially gave the Board a written affidavit about this incident he was not able to identify the person who made this remark . He said it was "somebody in the front office ." I am convinced that when Terrazas testified about this conversation at the hearing his memory did not improve but rather he stretched the truth and in fact guessed that it was Levegood who made the remark . His explanation for being able to now identify Levegood was vague , contradictory and did not ring true. In short , I credit Terrazas ' testimony about Sanchez' re- marks based upon his demeanor when he testified on this subject . Also, my initial belief that he was telling the truth was reinforced when later during the hearing Sanchez did not deny the remarks attributable to him. u. Donald Storm and Alfred Sturr Marilyn Hengst , an employee, credibly testified that dur- ing the month of December 1971 Donald Storm, her imme- diate supervisor, at Hengst 's work station "asked [her] had [she] heard about the Union trying to come in." Hengst told him that she had been to union meetings . This question in the factual circumstances of this case can not be regarded as innocuous and I find that Hengst's understanding of the question's purpose , demonstrated by her answer , was cor- rect; namely, to learn Hengst 's attitude toward the Union. Accordingly, by Storm's interrogation of Hengst about her union sympathies and activities, Respondent violated Sec- tion 8(a)(1) of the Act. Alfred Stuff is Respondent's personnel administrator. General Counsel has alleged that during February 1972 Stun interrogated an employee about her union sympathies. In support of this allegation , Cecilia Rose who was em- 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployed by the Company until March 7, 1972, testified that in February 1972 when leaving work she accepted a union handbill, read it, did not understand it, and telephoned the plant to find out more about the handbill. She asked to talk with the Company's general manager , Wortman , and was told he was busy and was switched to Stuff. She gave Stuff her name and asked him what the handbill meant and Stuff stated it meant that a Union was trying to organize and asked whether Rose was "for the Union or against it." Rose refused to answer this question . Stuff testified he never had such a conversation and it is clear from the description of the man Rose gave at the hearing that it was not Stuff she spoke to . Initially in an affidavit Rose told the Board that this alleged conversation was with Wortman. Charles Zele- ny, Respondent's manager of personnel testified that Rose did call the plant, that she spoke with him, that she did ask about a union leaflet which apparently had an attached union authorization card but that at no time during their short conversation did Zeleny question Rose about her union sentiments. Based upon the foregoing, I find that Rose did not have any conversation with Alfred Stuff and further find that she was not interrogated by Sturr and shall recommend that portion of the consolidated complaint be dismissed. I fur- ther find with respect to her conversation with Zeleny that based upon her testimony itself and my impression of her when she was testifying that she had no accurate recollec- tion of what was said during the conversation . Zeleny's recollection appears to be the more accurate . Accordingly, the evidence does not establish that Zeleny interrogated Rose about her union activities. v. Ken Thompson Ken Thompson has been employed by the Company as a first-line supervisor since January 1, 1972. Carlos Salazar testified on about February 2, 1972, when Thompson gave him his final evaluation as a probationary employee that Thompson asked him how he felt about the Union and whether he had signed a union card. Salazar answered that he had not signed one and Thompson stated that it did not matter whether he did sign one, explaining that he knew that employee Tony Montoya had signed a card and he was still working for the Company. Thompson specifically denied questioning Salazar about his union sympathies or whether he signed a union card or that he told him he knew Montoya had signed a card. Anthony Montoya testified that early during the month of February 1972 Thompson called him into an office in the department and asked him "are you for the Union." When Montoya expressed a reluctance to answer this question, Thompson, to quote Montoya, said, "they've got lists of names who signed cards in the office . . . all I'll have to do is check in there and see if your name is on it so you might as well tell me ." Montoya then admitted he was for the Union. Thompson then told Montoya the Union was no good and would just cause trouble to the Company and that the employees should give the Company a chance . Thereaf- ter, on two or three different occasions , Thompson, accord- ing to Montoya, asked him if he was still in favor of the Union. Montoya said yes and Thompson tried to persuade him to give the Company a chance, explaining why the Union was no good . The last conversation of this nature occurred in March 1972 at Thompson's desk. After Monto- ya, in response to Thompson 's inquiry , had indicated he still favored the Union and Thompson had argued on behalf of the Company, Montoya asked, as he testified, "what if the Union does come in ." Thompson replied "if the Union does come in, all we have to do is move out," explaining the Company could move to another location where wages were low. Thompson specifically denied ever directly asking Montoya about his union sympathies or activities , and spe- cifically denied he told him the Company had a list of the employees who signed union cards . One time , however, Thompson testified , Montoya volunteered the fact he had signed a union card . Regarding this confession , Thompson says that following his normal procedure , described later in the Decision, he had called Montoya over to his desk to get his opinion about a letter issued by the Company in re- sponse to the Union 's handbills at which time Montoya suddenly said, "you know I joined the Union" and volun- teered an explanation for this conduct. Employee Estelle Yeatman, who at the time of the hear- ing was employed by the Company, testified that either in late January or early February 1972, Thompson called her over to his desk and asked "what [she] thought about the Union," and warned, "you know if you want to stay in good with the company you'd better not go to any unnecessary meetings or sign any cards." Yeatman asked what he was talking about. Thompson said, "the Union, of course" and Yeatman observed that it was her understanding that he could not talk to her about the subject. Thompson informed her that since the subject had been brought into the open he had the right to speak to her and , quoting Yeatman, ended with this word of advice: "I thought I would tell you for your own good." At some point during the conversation, Thompson, according to Yeatman, said, "I know you want to be a supervisor ." Thompson testified that this conversa- tion never took place. In summation , Salazar, Montoya , and Yeatman each tes- tified that Thompson expressly questioned them about their union sympathies in addition to engaging in other conduct. Thompson , however, testified he never questioned any of the employees under his supervision about their union sym- pathies , and further testified he only spoke to the employees about the Union when the Company or the Union handed out campaign literature or letters which he said was on at least seven or eight occasions between January 1 to May 1, 1972. Explaining, he testified that each time such a piece of literature was issued by either party (Company or Union) on the seven or eight or more occasions during this 5-month period, he would call each 1 of the 22 employees under his supervision individually to his desk , show them the liter- ature , and ask them how they felt about it, that his intent was not to determine their attitude toward the Union but as a pretext, "to get to know them better," that it was as put by Thompson, "a good door opener [to] explore the inner recesses of their minds , to find out what made them con- tent ." I do not believe Thompson . Based upon his demeanor and the record as a whole, I am convinced that with respect to his testimony concerning his conversations with employ- ees on the subject of the Union that he was being less than GTE LENKURT, INCORPORATED candid and specifically find that when viewed in the context of the facts in this case , his procedure of calling approxi- mately 22 employees away from their work to interrogate them individually at his desk each time a piece of campaign literature issued , was done with the intent and purpose of learning the employees ' attitudes toward the Union and to report his findings back to the Respondent. Finally, I con- clude that, based upon my observation of their demeanor, Salazar , Yeatman , and Montoya in describing their conver- sations with Thompson were each making a sincere effort to tell the truth and accurately portray what took place. Based upon the foregoing, I find that Respondent by virtue of the conduct of Ken Thompson violated Section 8(a)(1) of the Act in the following respects : ( 1) interrogating all of the employees employed in his department , including Sala- zar, Montoya, and Yeatman about their union sympathies and activities ; (2) creating the impression that Respondent was keeping its employees ' union activities under surveil- lance by telling Salazar he knew employee Montoya had signed a union card and telling Montoya the Company had the names of the employees who had signed union cards; (3) threatening employee Montoya that the Company would move the plant if the Union were successful ; and (4) threatening employee Yeatman with economic reprisals to discourage her from supporting the Union by stating to her that to stay in good with the Company she had better not go to union meetings or sign a union card . Regarding the fact that Thompson told Yeatman at some point in their discussion that he knew she wanted to be a supervisor does not, without a showing as to the context in which the remark was made, establish as contended by the General Counsel that it was a veiled promise of benefits designed to discour- age her from supporting the Union , and I will recommend that this portion of the consolidated complaint be dis- missed. w. Camy Wright Camy Wright is a first-line supervisor. Three employees claim Wright interrogated them about the Union , another claims she solicited her to withdraw from the Union and another that Wright threatened reprisals by Respondent if the Union succeeded in organizing the plant . Wright either specifically denied , generally denied, or did not recall en- gaging in the conduct attributed to her . I was not impressed by her demeanor when she testified about these alleged conversations and do not credit her denials. In addition, her testimony on a closely related matter does not ring true and casts a shadow over her entire testimony on the subject of Unions . Thus, she testified on cross-examination she at- tended supervisory meetings where supervisors were given instructions "on how to handle the Union properly" but denied that at these meetings or at Sheridan meetings was she ever told as part of a group or separately to determine who among her employees was prounion . She also testified that she never reported to the Company the names of the employees who she believed were union sympathizers, ex- plaining that she maintained "a strictly neutral position." As described in detail earlier in this decision , it is plain that pursuant to a company policy, first- line supervisors as well as second -line supervisors were instructed to, and did, de- 949 termine and report the names of prounion employees. As Factory Foreman Naida Holmes testified , "if any supervi- sors were doing it [compiling lists of prounion employees], all of them were ." There is no explanation why Wright who was the immediate supervisor over not one or two employ- ees but of a substantial number of employees was exempt from this requirement . I can not believe that the Company would allow a supervisor , as Wright testified she did, to "maintain a strictly neutral position ." Moreover , it is even more incredible that Wright remained neutral when in fact Wright's own personal opinion of the Union was identical with the Company 's official antiunion position . For, as Wright testified , "I don't really feel that Lenkurt is one of the plants that need a Union ." I find Wright an incredible witness regarding the following conversations attributed to her and set out below. Employee Susan Chavez , who at the time of the hearing was employed by the Company under the supervision of Wright , credibly testified that on December 17, 1971, she had a conversation at Wright 's desk about her work at which time Wright was critical about Chavez ' attitude to- ward her work , people , and "towards the company." Cha- vez, who was at the time an outspoken supporter of the Union replied she loved her work , liked the people she worked with , and was trying her best on thejob because she wanted to get a better paying job with the Company . Wright replied , "you know the way you act now affects the way things happen later," and asked Chavez whether she liked the letter issued that day by Wortman announcing among other things that all employees had Christmas and New Years off with pay (this included probationary employees which was contrary to Company rules), and told Chavez that the Company treated its employees with "human digni- ty." Wright further stated that some of the younger employ- ees were not satisfied with their wages and "there were rumors about outside intruders " and stated that the outside intruders were making wild promises they could not keep. Wright then went over the Company's benefits and said, quoting Chavez , "I have worked in electronic plants for 17 years and you younger people just don't seem to realize the good benefits that we have here . I want you to think about this carefully , that if these outside forces come in, we can lose these benefits. The benefits will change." I find that the term "outside forces" was intended to and understood to refer to the "Union," the Company in its official literature referred to the Union as an "outside party." I also find that Wright's warning to Chavez that , if the Union organized the plant , the employees could lose their existing benefits, constituted a threat of adverse economic action to be under- taken by Respondent if the employees continued to support the Union , and that by engaging in this conduct Respon- dent violated Section 8 (a)(1) of the Act. Carlos Salazar who at the time he testified was employed by the Company credibly testified that in mid-December 1971, when being given his 30-day probationary review, Wright asked him whether he had been "confronted by Union employees" and again in January 1972, when given his 60-day review, Wright asked him about his union sym- pathies . Salazar told her he had not been approached by union employees and that he was neutral about the Union. I find that the Respondent through Wright violated Section 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) of the Act by interrogating Salazar about his union sympathies and activities. Richard Romero credibly testified that in the month of January 1972 he was called to Wright's desk to discuss business and that at the end of their conversation Wright asked him "if [he] had heard anything about the Union." Romero said yes. Wright proceeded to tell him that unions were no good, giving her experiences with unions. Then Romero asked Wright if he should go to a union meeting, whereupon Wright made a statement which gave Romero the impression that if he did go to the meeting it would be harmful to him. Romero, however, cannot recall the words used by Wright. I find that by Wright's interrogation of Romero about his union sympathies that Respondent vio- lated Section 8(a)(1) of the Act and further find that the evidence does not establish that Respondent through Wright threatened Romero with reprisals if he went to union meetings and shall recommend that this portion of the consolidated complaint be dismissed. Employee James Gearhart credibly testified that on or about December 20, 1971, while being given a probationary review by Wright at her desk, that she asked "what was this stuff about a union." Gearhart asked her what she meant. Wright repeated the identical question and Gearhart said he still was not sure of what she meant. Wright dropped the matter at this point. I find that by Wright's interrogation of Gearhart about his union sympathies Respondent violated Section 8(a)(1) of the Act. Ordinarily I might view the last two bits of interrogation directed against Romero and Ger- hart as innocuous. But I cannot shut my eyes to the context in which it occurred-the Respondent's other unfair labor practices and its systematic and continuous efforts to de- termine the feelings of each one of its employees toward the Union. In this context the questioning was not innocuous. Dorothy Sona credibly testified that at some unspecified time she had informed Wright that she had signed a card for the Union. Thereafter, during the very end of December 1971, she went to Wright and asked why all of the employees had been fired that month-about 29 employees were fired that month--stating she had heard that some were fired because they signed union cards. Wright denied this accusa- tion and stated the employees were fired because of legiti- mate business conditions which a new company expects. Continuing, she told Sona that the Company was fair and did not need the Union and abruptly brought up the name of employee Susan Chavez, an outspoken advocate for the Union, stating that since Chavez had gotten involved in "outside activities" that her attitude had changed, her work was not as good, and her overall attitude toward everyone had changed and that Sona's attitude would also change, at which point, quoting Sona, "[Wright] asked me if I wanted to get my card back, and I told her no, I couldn't even if I wanted to. She said she could get it back for me, or that the company could, and I just told her that the company or her couldn't do that." Finally, Wright told Sona that "if [Sona] had talked to anybody, that [she] should go back and talk to them and tell them the company was being fair, that the Union wasn't right and that it shouldn't be trying to come in here." I find Wright's solicitation and offer of aid and assistance to Sona to revoke her union authorization card when viewed in the context of Respondent's other unfair labor practices constituted interference, restraint, and coercion within the meaning of Section 7 of the Act, and by engaging in this conduct Respondent violated Sec- tion 8(a)(1) of the Act. I further find that by Wright's solici- tation of employee Sona to talk to employees and persuade them not to support the Union Respondent also violated Section 8(a)(1) of the Act. (Peerless of America, Inc., 198 NLRB No. 138, fn. 4.) 6. The discrimination a. Introduction and legal principles Respondent on or about August 30, 1971, began hiring employees at its Albuquerque plant and commenced opera- tions . At that time Respondent had in effect a clearly de- fined policy of treating new hires as probationary employees for the first 90 days. This policy which at all times was known to supervisors and employees was set out unambiguously in the Company's employee handbook which in pertinent part provided, "During this period [refer- ring to the 90-day probationary period] your performance on the job, your attitude, and your potential abilities will be carefully weighed in determining your qualifications to be- come a regular employee. Periodically your supervisor will review your progress with you." General Counsel contends that Respondent violated Section 8(a)(3) and (1) of the Act by discharging 24 employees, the majority during their pro- bationary period, and discriminated in other respects against employees because of their union sympathies or activities. During the period when the alleged unlawful dis- charges were taking place the Respondent also discharged a substantial number of other employees, including proba- tionary employees, not contended to be unlawfully motivat- ed. Also, a number of known union adherents were not discharged by the Respondent. The general principles governing the disposition of dis- criminatory discharges and related discriminatory conduct are well settled . An employee may be discharged for any reason, good or bad, so long as union activity is not the basis of the discharge. Under Section 8(a)(3), an employer is pro- hibited from discharging or otherwise discriminating against an employee because of the employee's union activi- ties or sympathies. The determination which I must make is one of fact-what was the actual motive for the dis- charge? A tendered cause for the discharge will be rejected if it is found to be a mere pretext for the actual antiunion motive. "It seems settled, however, that the Act may be violated if union discrimination is but a partial motive for the discharge." Betts Baking Co. v. N.L.R.B., 380 F.2d 199, 203 (C.A. 10). The tenor of the law is: The concurrent existence of an otherwise valid reason for the discharge of an employee does not preclude a factual determination that his discharge was discrimi- natory if it appears from a preponderance of the evi- dence . . . that the discharge was in fact motivated by the employer's opposition to the employee' s union ac- tivities. N.L.R.B. v. Builoni Foods Corp., 298 F.2d 169, 174 (C.A. 3) The determination of actual motive is, of course, a difficult task. It depends principally upon inferences drawn from the GTE LENKURT, INCORPORATED entire web of circumstances presented by the evidence. As the Court in Betts Baking Co. v. N. L. R. B., 380 F.2d 199, 204 (C.A. 10) observed, "[r]arely, if ever, does an employer ad- mit that an employee has been discharged for participation in union activities . Discrimination must , therefore, usually be proved by circumstantial evidence, and properly so." This case is no exception . And, in listening to and evaluat- ing the testimony of the Company' s witness who explained the Company 's motivation in discharging , failing to hire, failing to promote , or for reprimanding employees I have kept in mind the following: ... the trier of fact may infer motive from total cir- cumstances proved . Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact . . . required to be any more naif than is a judge. If he finds that the stated motive for the discharge is false , he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive- at least where, as in this case , the surrounding facts tend to reinforce that inference... . Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). Finally, the law is settled that the fact that an employer does not discharge all known union adherents is no defense, because the discharge of less than all union sympathizers may well have an in terrorem effect on others and, "the Board need not wait until a party commits a gross violation before it may find any violation at all." Rust Engineering Company v. N.L.R.B., 445 F.2d 172, 174 (C.A. 6). See also Nachman Corp. v. N.L.R.B., 337 F.2d 421, 424 (C.A. 7). With these principles in mind , I review seriatim the testi- mony as to each of the employees whom the General Coun- sel has alleged discrimination. b. The discharge of Aura Adams Aura Adams began work for the Company September 27, 1971, was discharged on December 17, 1971, and at the time she was discharged worked under the immediate supervi- sion of First Line Supervisor Freda Martindale. During the early part of her employment Adams was under the joint supervision of Martindale and First Line Supervisor Vera Montoya but at some date not exactly specified in the rec- ord the department was divided in two with Martindale taking over the coil winding operation and Montoya the remainder. Adams attended a union organizational meeting on Octo- ber 15 , 1971, at which time she signed a card authorizing the Union to be her bargaining representative. At a union meet- ing during November 1971 the Union distributed to em- ployees pocket union calendars-calendars with the name of the Union printed on both sides. Adams the next morn- ing at work handed Montoya one of these calendars stating it was a gift . It is undisputed that Respondent knew that Adams was sympathetic toward the Union and its organiza- tional campaign . Her name was included among the names of prounion employees shown supervisors at the meetings conducted by Sheridan described earlier. On November 8, 1971, Adams received her 30-day proba- 951 tionary review from Martindale and Montoya. They stated her efficiency was over 100 percent, that they were pleased with Adams' work, and on the review form marked that she was "doing very well" and "should be allowed to continue employment." Adams was rated as a satisfactory employee in all respects except, "safety and housekeeping"-referring to keeping an unclean work area-in which category she was rated, "improvement needed and possible." On December 16, 1971, Adams was apparently scheduled to receive her second 30-day probationary review, for on that date the portion of the review covering this period of time was completed and signed by Montoya and in the remarks column Adams was rated as an "above average" employee, who "should be allowed to continue employ- ment." That same day, Thursday, December 16, 1971, ap- parently due to the fact that supervision was evaluating Adams, First Line Supervisor Montoya called Adams to her desk at about 9:30 a.m. and told her she was performing "good work" that she had an excellent chance for promo- tion with the Company and then asked, "why don't you give the company a chance to be fair to you, and do what is right by you, without all of this union" explaining to Adams, "I know you are Union." Adams admitted she supported the Union and attempted to leave the desk and go back to her work station but Montoya detained her reiterating that Ad- ams should give the Company a chance as it did not want the Union. Adams at this point stated her father had been a railroad man and she had been raised "with the Union" and firmly believed in unions. This conversation is based on the credible testimony of Adams who generally impressed me as a sincere witness with an accurate recollection of the events. Montoya impressed me as an untrustworthy witness while giving her testimony concerning events relating to Adams. For example, in denying the above conversation and in particular that she had told Adams "I know you are Union," Montoya testified she did not tell Adams this "be- cause I didn't know." But from Montoya's prior testimony it is plain that she did know that Adams was a strong union supporter for not only did Montoya admit Adams had given her a union calendar but testified that Adams had told her she thought the employees needed a Union explaining to Montoya that she thought the employees were all under- paid. Moreover, Adams' name had been on the list of prounion employees previously shown supervisors. The next day, Friday, December 17, 1971, at the end of the workday Adams was notified by forewoman Nada Holmes that she was discharged. Holmes at the time was the second-line supervisor to whom Montoya and Martindale reported. According to Adams' credible testimony, Holmes explained the discharge in the following manner. The Com- pany did not feel it would be happy with Adams over a period of time, that Adams liked to do a variety of work, she became too involved in her work and would be happier working for another employer and might perhaps even be better off working at home for in this manner she could take care of her sick child. Also, during the conversation Holmes stated that Martindale had told Adams to stay at her work table and not to get up and go over to the testing table. Adams told Holmes that Martindale had never spoken to her about this matter. At the hearing Nada Holmes testified that she made the 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision to discharge Adams . She testified that Adams was "a fast winder, her efficiency was high, but she could have done a great deal more because she was capable of doing more, because she did quite a bit of wandering around, she was not satisfied to sit still ." Specifically , Holmes testified she decided to fire Adams because Adams (1) had not fol- lowed instructions to stop wandering around ; (2) had a greater potential than she was giving the Company; (3) did not seem interested in her work , or as put by Holmes, "I don't know whether she was under classified . . . or what it was, because I know she did not have to try to do what she did." Finally, Holmes, when asked "what did you feel was the main problem with Adams," answered "I felt that she wasn't happy with the job she was doing." Holmes admitted that Adams was an "above average" employee. Regarding the contention that Adams "wandered" around too much Holmes testified that from her office she observed Adams on two different occasions wind a few coils and take them over to the test area and wait for the testers to test them to make sure they were good before she went back to her work station to continue to work. Holmes did not speak to Adams about the matter but she instructed First Line Supervisor Martindale to tell Adams she was walking around too much . Martindale was not called upon by the Respondent to corroborate Holmes' story. Her fail- ure to testify was not explained . Montoya's generalized tes- timony, which lacked any kind of specificity, that she observed Adams wandering around a lot and her further testimony that she overheard Martindale instruct Adams "not to get up from her chair any more" is not credited. Montoya one of Adams two supervisors for a period of time testified she never spoke to Adams about this alleged mis- conduct . Montoya did not impress me as being an honest witness in testifying on this point. Adams credibly denied engaging in the type of conduct attributed to her by both Holmes and Montoya, credibly testified she had never been spoken to by supervision about this conduct and that her trips to the testing table were made during the normal course of business . In rejecting Holmes' testimony, in addition to the failure of the Respondent to supply corroboration where corroboration was easily avail- able, I note that Holmes did not favorably impress me as being an honest witness when she testified about her reason for firing Adams. Holmes' testimony on its face smacks of exaggeration . On two occasions over a period of almost 3 months Holmes observed Adams away from her work table at the test table waiting for the testers to test her work. Plainly, this does not equal "quite a bit of wandering around" by Adams as Holmes testified. I find that Adams did not walk or wander around excessively without working, that neither Holmes nor anyone from the Company ever believed that she was engaging in this type of conduct and that prior to Adams' discharge no one from the Company ever talked to or criticized Adams on this matter. I further find that this alleged conduct played no part in the decision of Holmes to discharge Adams. Regarding the claim by Holmes that Adams was not hap- py or interested in her work Respondent did not have either of the two supervisors who Adams worked for during her employment corroborate this claim. The sole evidence to support this vague contention was the testimony of Holmes that she believed this was so because Adams wandered around quite a bit-a claim which is not true-and that while discussing incentive jobs that Adams on one occasion told Holmes she preferred to do a variety of jobs rather than to work on one job. There is no showing when this conversa- tion took place or what occasioned the conversation. There is no evidence whatsoever that prior to her discharge Adams had informed the Company that she was dissatisfied or not happy with her work. To the contrary, Holmes on the day of the discharge rated Adams as either average or above average in all categories of work. Average in "attitude and cooperation ," "adaptability," and "dependability." Above average in both "quality and quantity of work." If the Com- pany was truly concerned with any alleged lack of interest in Adams' work it would have expressed this concern in Adams' evaluations, particularly the rating given in atti- tude, cooperation, adaptability, and dependability. More- over, there is no evidence that this alleged unhappiness or lack of interest effected Adams' work performance. Based on the foregoing and upon my observation that Holmes was not a candid witness on this matter I find that Holmes' decision to discharge Adams was not motivated by a lack of interest or unhappiness on the part of Adams toward the job. Finally, in explaining Adams' discharge Holmes was not able to explain why on December 16 Adams' second 30-day probationary review rated her as an above-average employ- ee who "should be allowed to continue employment" yet Holmes discharged Adams the next day. Holmes did not point to any act of misconduct which occurred on Decem- ber 16 or 17 which triggered the discharge. Based upon the foregoing, I find that the grounds ad- vanced by Respondent to justify Adams' discharge consid- ered separately or together do not withstand scrutiny and are not the real reasons for the discharge. I am of the opin- ion that the real reason for the discharge was the Company's knowledge that Adams was sympathetic toward the Union and its organizational drive. Respondent was hostile toward the Union and its organizational campaign, knew that Ad- ams supported the Union, discharged her the day after she had refused to abandon the Union and the day after she had been rated as an above average probationary employee who should be retained by the Company, and to justify the dis- charge advanced reasons entirely lacking in substance. Un- der these circumstances, I find that Adams' discharge on December 17, 1971, was motivated by her activities and sympathies for the Union and by a desire to discourage activities by employees on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. c. The discharge of Lucille Atencio Lucille Atencio was employed by the Company as an assembler from November 15 to December 13, 1971, the date she was discharged. Atencio's first-line supervisor was Jean Hardy. Atencio did not impress me as a sincere witness with an accurate recollection of past conversations and events. For example, I received the impression that her testimony was not reliable when she at first testified that in her probation- ary review given by Hardy that she was rated satisfactory GTE LENKURT, INCORPORATED 953 in every category except quality and attitude toward fellow employees. The review which was initialed by Atencio shows clearly that she was rated less than satisfactory for quantity and quality of work, versatility, and attitude to- ward supervision and fellow employees. Upon seeing the review form Atencio testified that the rating for quality of work and for versatility had been changed. There is no indication of any alteration on these portions of the review. Then she admitted, as she had initially testified on direct examination, that the quality of her work had been rated less than satisfactory, but apparently still maintains that the versatility section had been changed. Further, Atencio at one point testified that Hardy said nothing at the time of the review about the quality and quantity of her work but sim- ply handed her the review, told her to read it, and asked if there were any questions. At another point however, Aten- cio admitted that during the review Hardy did in fact tell her she needed to improve her work. I am convinced that Atencio generally speaking in connection with matters re- lating to her discharge and her union activity is not a relia- ble witness and have rejected her testimony where it con- flicts with Hardy's or where it is not in conflict with Hardy's but not corroborated where corroboration would presuma- bly be available. Atencio worked on that part of the assembly operation known as the walk-around board. Teams of three employees work at one table walking around the table placing compo- nents into printed circuit boards. Respondent during this time used about six tables with teams of three employees installing the components. Hardy credibly testified that Atencio was a slow worker and that she did not get along with other employees 10 and that Hardy had spoken to her about being slow prior to her 30-day probationary review given on December 13, 1971. This review made out by Hardy in front of Atencio and initialed by Atencio indicates that she was regarded by Har- dy as a less than satisfactory employee in quantity and quality of work, versatility, and attitude towards supervi- sion and fellow employees. Hardy credibly testified she ex- plained in detail the reasons to Atencio for the less than satisfactory evaluations but that Atencio did not answer and just "shrugged." Atencio although she states the quality and quantity of her work was not inferior to other employ- ees admitted that she did not question Hardy's evaluation on December 13 upon reading it. Hardy who had marked on the review that Atencio should be allowed to continue working for the Company when she noticed Atencio's indif- ference to the criticism of her work changed this to read that Atencio's employment was conditional. Hardy explained to Atencio that she wanted her to demonstrate she had a desire to work for the Company and to show some improvement. Following this evaluation which was held during the morning Atencio went back to work and immediately was observed by Hardy talking to employees rather than work- ing. Hardy told her to turn around and go to work. Hardy also observed that Atencio's pace on the walk-around in- stead of improving became slower. Hardy's credible de- 10 Atencto admitted that on one occasion a fellow employee whose work was apparently being disturbed by Atencio's talking asked her to be quiet. Atencto refused stated the objecting employee was not a supervisor scription of Atencio's post interview conduct was not specifically denied by Atencio. After lunch on the same day, December 13, Hardy decided to fire Atencio and informed foreman Frank Smalley who went along with the recom- mendation. Later that day just before the normal quitting time Atencio was called into the office of Smalley where Hardy in the presence of Smalley told Atencio she was discharged because her work was too slow and because her attitude had not improved after the evaluation. At the time of the discharge Atencio who the General Counsel claims was fired because of union sympathies or activities had not attended one union organizational meet- ing and had not signed a card authorizing the Union to represent her. There is no evidence that Atencio ever direct- ly indicated to any supervisor that she favored or was sym- pathetic to the Union nor does the credible evidence show that Atencio even openly expressed sympathy for the Union or its campaign to other employees. Atencio claims that with other employees she often talked about the Union during lunch time while eating and that during these con- versations she said she would "probably" sign a union card if solicited. This testimony is not corroborated by any of the employees who were present during these "talks" about the Union, even though one of them Barbara Gleicher and possibly another Jacob Martinez testified for the General Counsel. As noted earlier, I was not impressed by Atencio's demeanor and find that the evidence does not establish that Atencio spoke out at any time to her fellow employees in favor of the Union. In view of the existence of a valid reason for Atencio's discharge, the fact that she did not engage in any activity on behalf of the Union, and the fact that she did not engage in any conduct which might have led Respondent to suspect that she was sympathetic toward the Union, I find that General Counsel has failed to sustain the burden of proof that Respondent believed that Atencio was for the Union or that Atencio's discharge was the result of union activity or Respondent's belief that she was prounion. Accordingly, I shall recommend that this portion of the consolidated complaint be dismissed. d. The written reprimand issued to Joy Bishop General Counsel contends that on May 10, 1972, Respon- dent issued to Joy Bishop a written reprimand and that in issuing this reprimand the Respondent was motivated in substantial part by Bishop's union activities. Bishop began work for the Company on October 18, 1971. During her probationary period which ended January 17, 1972, supervision regarded her as a satisfactory employ- ee in all respects . Her probationary reviews so indicated, and there is no evidence to the contrary. During the month of February 1972 Bishop signed a card authorizing the Union to represent her, attended her first union meeting, and from that time on regularly attended union meetings and passed out union literature to employ- ees at the entrances to the Company. Her credible testimony which is undenied is that a number of statutory supervisors during this period observed her distributing the union litera- ture. I find during February or March 1972 Respondent learned that Bishop was an active adherent for the Union. Hazel Lopez, previously a rank-and-file employee, was 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promoted to first-line supervisor on March 6, 1972. Bishop worked in Lopez' department but apparently a substantial part of her work during at least about May 1972 was for First Line Supervisor Camy Wright. Lopez knew little if anything about Bishop's performance on this job. On May 10, 1972, Lopez gave Bishop a written reprimand signed by Lopez which read: In accordance with Lenkurt procedures this memo is to record that Joy Bishop's performance has been noted unsatisfactory. She has also been absent excessively during the period March thru May 4. Joy has been observed on numerous occasions returning late from break which hinders production. Joy has been informed that unless immediate improve- ment in her work performance is noted further discipli- nary action will be taken. Bishop credibly testified that after reading the reprimand she refused to sign it telling Lopez that although she agreed that she had been absent too many times and that she was late getting back from the cafeteria that she did not agree that her job performance was unsatisfactory, as stated in the reprimand, explaining that there was never any criticism of her work, quality or quantity. Lopez replied that she did not know that much about the work Bishop was doing and that she would check with the first line supervisor that was di- recting her, Camy Wright, and let her know the next day. Next day, May 11, Lopez returned with the reprimand and told Bishop that her job performance was not being crit- icized but that it was her attitude that was being criticized; namely, that Bishop did not smile enough and had been accused by someone of giving them the "evil eye." Bishop asked for the name of the person who made the accusation and Lopez said she did not know. At the time she signed the reprimand Bishop marked on its face, the following com- ment : "I believe my job performance is satisfactory as far as production and quality." The foregoing is based upon Bishop's credible testimony. Lopez was an incredible witness who appeared to be insin- cere and to have a poor memory. On direct examination she stated that when Bishop refused to sign the warning because she thought it was critical of her quality and quantity that Lopez told her "I had given it on the way she was acting on the job, the way she didn't take what I thought was care in her job, to be interested in it , yet she still came back with quality and quantity. So I told her I would go check with Camy Wright, who was her supervisor as far as directing her, and I would let her know about her quality and quanti- ty." It was only in response to leading questions that Lopez answered "yes" that at this time she also told Bishop about tardiness , absenteeism , and about an alleged time when Lopez had observed her smoking a cigarette on the job. If Lopez had made out this reprimand and had no criticism of the quality or quantity of Bishop's work she could have right then and there satisfied Lopez by redoing the reprimand or interlineating on the reprimand. She did not have to check with Camy Wright who had nothing to do with the repri- mand. Lopez failed to explain her reason for checking with Camy Wright. Not only does this lend suspicion to the bona fides of the reprimand but also makes it questionable wheth- er Lopez was the person really responsible for initiating or writing up the reprimand. Regarding the circumstances that prompted her on May 11 to issue this reprimand Lopez testified that the triggering event was that on May 10 she had loaned Bishop out to another supervisor, Barbara Johnson, and during the day Johnson came to Lopez and took her to Johnson's depart- ment for the purpose of observing Bishop who ws just sitting at her work station, not working, looking off into space, and smoking a cigarette. Neither supervisor spoke to Bishop, just let her sit daydreaming and Lopez issued the reprimand thereafter. Johnson who testified in this proceeding for Re- spondent was not called upon to corroborate Lopez. Under these circumstances and in view of my lack of confidence in the reliability and trustworthiness of Lopez I find this incident never took place and further find that Lopez never told Bishop it was a reason for the reprimand. If this inci- dent did take place and it was the type of misconduct so serious as to trigger the reprimand, it would seem that the incident would have been set out in the reprimand especial- ly since there is no evidence that Lopez was relying on other incidents of a similar nature. This was the only one she testified to. The reprimand form directs the supervisor, "make a complete report of the occurrence that you are recording and include such details as time, place, circum- stances, effect of incident on employee's work or fellow employees ..." Clearly, the reprimand does not refer to the alleged triggering incident. Regarding the question of whether oral warnings were given by Lopez to Bishop prior to the May 10 written repri- mand. Bishop testified that prior to the May 10 written reprimand other than one verbal warning she got from first line supervisor Hardy when under Hardy's supervision she received no complaints. On direct examination in response to a leading question Lopez testified "yes" she had spoken to Bishop prior to May 10 about her absences and tardiness from breaks and lunch. On cross-examination she reaf- firmed her previous testimony that she had spoken to Bish- op about tardiness from breaks but testified that "I might have, but I don't recall" ever giving verbal warnings on absenteeism to Bishop. Finally, with respect to whether or not she ever notified the department foreman's secretary of any verbal warnings she had given to Bishop so as to have them listed in Bishop's personnel file Lopez testified "I don't recall going to [the secretary]. I might have, but I don't recall." I i Under all the circumstances, including Lopez' eva- siveness when answering questions on this subject matter and her generally unimpressive demeanor, I find that at no time prior to May 11 did she ever speak to Bishop in a critical manner about any aspect of her work including absenteeism and tardiness. I also find that it is clear from the testimony of Personnel Manager Zeleny, foreman Holmes, and First Line Supervisor Wright that the Compa- ny has a policy of giving employees oral warnings prior to issuing a written reprimand involving the types of miscon- duct Lopez was accusing Bishop of engaging in. As Zeleny 11 It is undisputed and I find that Respondent has a policy of having its supervisors keep a written record of verbal warnings given employees by having notations of such warnings marked in the employees' personnel file. GTE LENKURT , INCORPORATED testified , "For something of a relatively minor nature .. . absenteeism , poor quality of work or poor quantity of work that sort of thing , the initial procedure is for the supervisor to verbally warn the individual and the next step would be a written file memo [referring to written reprimand]." Holmes testified , "the company policy would be more than 16 hours absent in one month . . . should be handled by verbal warning initially ...." The testimony of Lopez who at the time she testified had been a supervisor almost 5 months that it was discretionary as to whether a supervisor should issue a written reprimand instead of a verbal warn- ing did not impress me as trustworthy . Also, incredible was her testimony that she had no idea at all as to what the policy on excessive absenteeism was, that she had no idea on how to compute excessive absenteeism , that she had no idea as to the number of times Bishop was absent but just acted on instructions of the secretary to the department foreman Frank Smalley who orally told her that Bishop was absent excessively and to give her a verbal warning or a file memo . Lopez did not say when she received this instruction. As noted above she testified that the thing which triggered the written reprimand was the smoking-at-work-while-day- dreaming incident . Did this instruction from Smalley's sec- retary about excessive absenteeism coincidentally come at the same time? Smalley's secretary did not testify. Finally on the subject of absences Foreman Holmes testi- fied that it is Company policy that 16 hours' absence a month is considered excessive and that initially the offender would be warned orally and then given a written reprimand. Unexplained is why Bishop was not warned orally prior to receiving this reprimand . Also unexplained is why employee Francis Tinnin , an employee known by the Company not to have supported the Union , while under the supervision of Lopez with a terrible record of absenteeism , has never been warned either verbally or in writing by Lopez. Tinnin began work in October 18, 1971, and at time of her 90 -day review (January 18, 1972) the Company regarded her absen- teeism as so bad that she was warned about the matter. After coming under Lopez ' supervision in March 1972 her absences got worse . In April she was absent 23 hours, May absent 16 hours , June absent 25 hours and July 32 hours. Lopez did not explain why Tinnin was not warned by Lopez about her absences . Assuming that Lopez is telling the truth when she states she has no conception of what the policy is on excessive absenteeism and just obeys the front office secretary 's instructions on this matter, the person in the front office who allegedly makes the decisions on this mat- ter did not explain the disparate treatment given Bishop. Briefly stated , I find that Respondent knew that Bishop actively supported the Union, that the written reprimand issued on May 10 was in substantial part completely without substance regarding Bishop 's "performance ," that the writ- ten reprimand deviated from Respondent 's procedure of first orally warning employees , that another employee in the same department as Bishop who was also absent excessively was not either verbally or in writing warned by supervision, and that the supervisor who issued the reprimand was un- able to credibly explain why she issued the reprimand at the time she did . Based on the foregoing and in the context of Respondent 's extreme hostility toward the Union exhibited by its unlawful course of conduct described earlier, I find 955 that, in issuing the reprimand of May 10, 1972, to Joy Bish- op, Respondent was motivated in substantial part by its animus toward the Union. Accordingly, I find that by issu- ing this reprimand Respondent violated Section 8(a)(3) and (1) of the Act. e. The discharge of, refusal to transfer, and refusal to employ Edward Brittenham Respondent as early as 1970 when it was engaged in planning the nature of its new operation, based on legiti- mate business considerations , decided that the maintenance work performed at this plant from the janitorial to the more skilled work such as plumbing, electrical, etc., would be contracted out to contractors. However, when the plant commenced operations it became obvious that there was varying amounts of unskilled maintenance work necessitat- ed by the fact that the plant was just opening, namely, moving equipment from the shipping dock , uncrating it, assembling work benches and stools, moving material which had been temporarily stored, moving shipping con- tainers , picking up the remains of small items , making sure rugs were glued to floors, erecting partitions for the office, and doing outside maintenance work, prior to the hiring of an outside maintenance contractor , such as policing the area for trash . It was not practical to subcontract this type of work out so from August through October 1971 Respon- dent at various times hired a total of about 12 temporary full and part-time maintenance employees to perform these types of work. It was made clear to all of the individuals hired that they were only hired on a temporary basis. By April 1972 only three of these hires were still working for the Company, Ed Brittenham, Tom Quirk, and Chris Smith. Brittenham began work on October 25, 1972. He was hired by Robert Clark the plant engineer who was in charge of the temporary maintenance employees and the outside contractors . The "employee requisition" used by Clark to secure Brittenham reads: "temporary full time for 90 day period . Perform miscellaneous tasks associated with main- tenance and repair function of building services, and equip- ment . Must be physically capable of performing strenuous tasks and should have some knowledge of construction crafts ." Brittenham testified that the actual work he per- formed for the Company was general building maintenance repair, such as installing electrical outlets, grounding trans- formers , plumbing work, carpentry work, locksmith work and all types of work of a general maintenance nature with- in the building . Although it appears that the plant engineer Robert Clark was of the opinion that the Company should retain some of the temporary maintenance employees on a permanent basis doing this type of work it is undisputed that the company continually remained adamant that eventually all of its maintenance work would be contracted out and that the maintenance employees including Bnttenham were only employed in a temporary capacity. Although Britten- ham worked beyond his 90 days it was at all times made clear to him that his employment as a maintenance man was only temporary. As noted earlier, by April 1972 almost all of the maintenance work had been gradually contracted out so that only Brittenham and two other temporary mainte- nance employees-one part- and one full- time-were still 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed. The reason why Brittenham and others worked longer than the expected 90 days was that some of the equipment deliveries were not made on schedule and that much of the miscellaneous maintenance work took longer to do than the estimated 90 days. Finally on April 7 Respon- dent decided to fully implement its original plan of using outside contractors to perform virtually all of its mainte- nance work and discharged the three remaining temporary maintenance employees including Brittenham . Brittenham on April 7 was given this as the reasons for this discharge. The Company since that date has used outside contractors to perform the work previously done by Brittenham and the other two discharged maintenance employees. The evidence is not sufficient to establish that any of this work is being performed by the Company's employees. Based upon the foregoing I find that even though the Company knew of Brittenham's union sympathies and activities and may have even welcomed an opportunity to terminate him that the evidence is insufficient to establish that in terminating Brit- tenham and the other two maintenance employees on April 7, 1972, that Respondent was motivated by anything other than legitimate business considerations , the final implemen- tation of a decision to contract out all maintenance work, a decision arrived at long before the Union appeared on the scene. Accordingly, I shall recommend that this allegation of the consolidated complaint be dismissed. This does not end the matter , for the General Counsel as alleged in the consolidated complaint and litigated at the hearing con- tends that Respondent further violated the Act by, prior to his discharge , failing and refusing to transfer Brittenham to another job, and by refusing to offer him a new job at the time of his discharge and continuing thereafter. I will now deal with these contentions. It is uncontroverted and I find that Respondent as early as December 1971 knew that Brittenham was an active supporter of the Union and that Respondent was hostile toward Brittenham because of his prounion attitude. Brit- tenham almost immediately upon starting to work (late Oc- tober 1971) had signed a card authorizing the Union to represent him and thereafter attended almost every union organizational meeting , and solicited others to sign union cards. In the month of December Clark, the immediate supervisor of Brittenham, told Jack Mapes an outside elec- trician that personnel manager Levegood was putting quite a bit of pressure on him because of Brittenham 's union activity . Then as discussed earlier in this Decision Mapes in Clark's office and in the presence of Clark informed Britten- ham that he understood Brittenham was going to be fired for his union activity, that Clark was under extreme pressure to fire Brittenham because of this activity and that what the Company had against Brittenham was his outspoken atti- tude at the union meetings . Clark did not disavow these comments , and I find in effect that his silence was calculat- ed to lead Brittenham to believe that what Mapes was accu- rately presenting the Company's feeling about Brittenham's union activities. Respondent as described above is an electronics manu- facturer which had opened a new plant in Albuquerque, New Mexico. Respondent hired almost all of its employees including supervisors from the Albuquerque area which al- legedly caused a problem with respect to supervisory per- sonnel . Throughout the hearing Respondent through a number of witnesses including its general manager, Wort- man, stressed the fact that Respondent because of its policy of hiring from Albuquerque had problems with finding peo- ple with supervisory experience and was forced to promote rank and file employees without any such experience and train them on the job. Brittenham a retired major from the United States Army had an electrical background inasmuch as he was in the signal corps and was qualified according to the testimony of Respondent's personnel administrator, Sturr, for a management position in the electronics field. With regard to Brittenham's actual work record for the Company during his 5 months of employment, it is admitted that his work record was superlative. He was rated "out- standing" in all aspects of his work-Quality, Quantity, Adaptability, Attitude and Cooperation, Tardiness and Ab- senteeism, and Dependability. Personnel Administrator Stuff testified that he has seen "very few" records as out- standing as Brittenham's. Despite Brittenham's back- ground, his outstanding work record compiled with Respondent, the Respondent made no effort to retain Brit- tenham in its employ. Plant Engineer Clark during January and February 1972 made it clear to Brittenham that management would not change its original decision about contracting out the main- tenance work. That Brittenham's job was only temporary, even though Clark had made it known to management that Brittenham desired to remain with the Company. Britten- ham previously had informed Clark he desired to become a permanent employee. Thereafter, during February or March 1972 Clark told Brittenham that there was a strong rumor that the maintenance department was going to be phased out completely and all work done by outside con- tractors, thanked Brittenham for the good work he had done for him and told him to get another job if he could find one, that he would not think badly of Brittenham if he left abruptly for another job. Also, at about this time in March 1972, the early part, one of the employees Bob Floyd who had received a temporary maintenance job with Brittenham had been transferred from maintenance into the shipping and receiving department. So, Brittenham in early March 1972 in the presence of Jack Mapes asked Clark "what are the chances of my getting a transfer." Clark did not answer but just laughed at Brittenham for asking such a question and Mapes stated "you don't think that they would transfer you to another department when they are trying so hard to get rid of you." Clark made no reply. I find that in the factual circumstances of this case-the prior conversations between Mapes and Brittenham and Clark's conduct at those conversations , Clark' s statement to Mapes about Brittenham's union activity, and Brittenham's exemplary employment record-that by his laughter and failure to respond to Mapes' statement Clark in effect was unambigu- ously telling Brittenham that it would be futile to attempt to transfer to another department because of the Company's animus toward him because he was actively supporting the Union. Brittenham did not however, drop the matter but about two weeks later again asked Clark "what do you think of the chances now of a transfer" and once again Clark just laughed. On April 7, 1972, as described above Brittenham was GTE LENKURT, INCORPORATED fired . On that date the Company 's personnel administrator responsible for the hiring of employees , Al Stuff , signed Brittenham 's separation notice which as described above rated him "outstanding" in every category. As defined on the notice an outstanding rating means the employee "is one of your very best [top 10 percent]." On April 26, 1972, the Union filed a charge alleging that the Company violated the Act by discriminating against several named employees one of whom was Brittenham. On about May 21, 1972, Brittenham by regular mail sub- mitted an employment application to Respondent asking for a job in any vacancy. The application was never re- turned to Brittenham , but Brittenham never received an answer from Respondent . Sturr testified that the first time the Company received any application from Brittenham was the July 1972 application described below. Sturr a staff managerial official is not the sole person to receive and file such an application . He has people working under his super- vision that presumably handle these matters . No one was called to corroborate Sturr . When Sturr testified concerning Brittenham he did not impress me as being a sincere forth- right witness . Brittenham on the other hand was a very impressive witness . I find that on or about May 22 , 1972, the Respondent received an application from Brittenham ask- ing for any position that was available and that Respondent did not reply. After receiving no reply Brittenham sent a second appli- cation this time accompanying the application with docu- mentary evidence of his extensive electrical background which indicated he was capable of performing a number of different jobs within the plant and again asked for employ- ment in any vacancy that existed . This time Brittenham sent the letter by registered mail and by return receipt was noti- fied the Company received said letter on July 14, 1972. Receiving no response to this application Brittenham went to the plant on July 21, 1972, in the morning at 8 a.m. and inquired about his application but because of the fact that his personnel files had been turned over the Respondent's attorneys who were preparing the case for trial scheduled to commence the next week the personnel people were unable to find his application . After waiting for a substantial period of time Brittenham left feeling he was being given the run- around. At the time Sturr was out of the plant. Stun testified that in any event that at the time he had already made a decision to turn Brittenham down and would have told him so if he had spoken to him on July 21. Brittenham , thereaf- ter, received one of the form letters Respondent uses to reply to applicants, this one informed Brittenham "we do not have a position available suitable to your experience." It is undisputed that at the time he was turned down the Company had openings for production jobs. Stuff at the hearing in explaining why he turned down Brittenham 's application testified : "The man is qualified for something in management or electronics but not as a pro- duction worker doing a repetitive job and in my background this just does not fit. This man wouldn't make a production worker." Explaining further, Sturr testified he thought that Brittenham would be "bored" with production work be- cause it was too "repetitive ." Sturr , however, testified that Brittenham in his opinion was qualified to perform such nonrepetitive jobs as material handler , stockroom work, 957 testers' work, technologist's work. It is clear that there was such work available but according to Sturr these jobs are all filled by promoting production people. For example, one of the temporary maintenance employees was apparently in March transferred into the stockroom and as late as the latter part of July 1972 the stockroom added three addition- al employees. Only when there is no one to promote would the Company hire from the outside. And, Sturr admitted that on or about the very same time as Brittenham's termi- nation (April 7) that the Company had gone to the outside to hire technologists, a position that Brittenham would probably qualify for by virtue of his experience in the Unit- ed States Army Signal Corps. To recapitulate, Brittenham employed by Respondent as a temporary employee was a retired Army Signal Corps officer with a substantial background in electronics. During the 5 months he worked for Respondent he was regarded as an outstanding employee. He clearly indicated through his immediate supervisor, Clark, that he desired to remain with the Company as a permanent employee. However, Respon- dent had learned that Bnttenham was a union adherent and through Clark expressed a desire to fire him because of this, told him it would be futile to try to transfer to another department because of the Company's animus toward him because of his union sympathies. At the time of his dis- charge the Company despite his extraordinary employment record made no effort to retain him as an employee. This despite the fact that Respondent admittedly was having a difficult time finding employees qualified to assume super- visory positions. Clearly Brittenham , a former Army officer with experience in the field of electronics and an excellent employment record for Respondent, objectively speaking, would have been excellent supervisory material. Unex- plained is Respondent's failure to consider Brittenham for employment within another department at the time of the phasing out of the maintenance department . Respondent terminated Brittenham without any effort to find a way to utilize the services of this outstanding employee. Thereafter, in May 1972 Brittenham sent Respondent an employment application asking for work in any capacity. Respondent ignored this application. Finally, upon receipt of Brittenham's second application which it received after the consolidated complaint had issued involving Brittenham, Respondent replied. It turned him down for the reason that he was not qualified for production work since he would be bored by this work, that he could not be hired for those positions which would not bore him because Respondent's policy was not to hire people from the outside but to pro- mote from within and finally that the reason he was not considered while still employed for a transfer into one of the jobs he would be qualified to perform was that he did not follow company rules and apply to personnel for a transfer. However the law is well settled that an employee need not follow the employer's hiring procedures where the circum- stances make it clear that a rebuff based on his union activi- ty would result. See Sterling Aluminum Company, 163 NLRB 302, 333-334, enfd. on this point 391 F.2d 713 (C.A. 8, 1968). Here Respondent, through Clark, specifically noti- fied Brittenham that because of his union activity his re- quest for transfer would be denied. That Clark was not talking nonsense is indicated by Respondent's subsequent 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct. It made no effort to consider whether it had other work for Brittenham when his maintenance work was con- tracted out. (See Sterling Aluminum v. N. L. R. B., supra, "An inference of discrimination may be drawn from the company's failure to consider whether it had other work for this employee.") 12 Respondent also ignored his May 1972 application for employment, and when it finally did reply to his second application turned him down for the reason that he would be bored doing production work.13 Sturr was sure Brittenham would be bored even though Brittenham did not tell Stun this. To the contrary, Brittenham specifi- cally stated he would take any job. Yet Sturr did not even take the time to talk with him to discuss the question of whether he would be bored with the available production work. Everything in the record indicates that Brittenham would not have been bored, would have performed the pro- duction work in the same diligent fashion as the mainte- nance work and that Respondent knew that this was so. Thus, the maintenance work that Brittenham performed while employed by Respondent was the type of work that as a retired Army major he was to use Sturr's phrase, "over- qualified" for. It was unskilled maintenance work to quote Carlos Bofill , the Company's chief engineer, "any other male in the plant could do." Based on the foregoing and my impression that Stun was not candid when he testified as to his reason for not offering Brittenham a production job I find that the real reason that Respondent did not transfer Brittenham to another job when his temporary maintenance job ended'on April 7, 1972, or hire him thereafter was be- cause of Respondent's animus toward Brittenham based upon his union activities. Accordingly, I find that Respon- dent since April 7, 1972, by failing and refusing to employ Brittenham has violated Section 8(a)(3) and (1) of the Act. Insofar as the consolidated complaint alleges that Respon- dent discriminated against Brittenham because he filed charges against Respondent, I find that it is not supported by a preponderance of the evidence and shall recommend that this portion of the consolidated complaint be dis- missed. f. The discharge of Daniel Burbach Burbach began work for the company as an assembler on September 7, 1971, and on December 10, 1971, was given his final 30-day probationary review which he passed. His immediate supervisor was Annabelle Humphries who in 12 Sturr did not specifically testify why the Company did not consider Brittenham for employment in another department when his temporary maintenance work ended . There is no evidence that Respondent did not ask because it believed Brittenham was not interested , nor is there anything in the record which indicates that Bnttenham had led the Company to believe he would not be interested in doing whatever was available especially since the record shows that there was an excellent opportunity for an employee with the background and skills and incentive as Brittenham to rapidly ad- vance in Respondent 's new operation 13 By the advice of not hiring Brttenham for the "boring" production work Respondent in effect precluded him from ever being hired for the "non- bonng"fobs for which it only promoted from within. If however, Respondent had hired Bnttenham for a production job it is plain from the record as a whole that due to the large turnover and the increase in the Company's employment force that it would have been only a matter of time before Brttenham would have been able to qualify for one of these nonbonng jobs turn reported to Second Line Supervisor Bob Harrison. Burbach commencing early in November and continuing until his discharge on December 15, 1971, openly solicited numerous employees to support the Union and sign union authorization cards. He engaged in this conduct, among other places, on the Company' s premises during lunch and break periods. In these circumstances, and in view of the Respondent's widespread and systematic attempt to de- termine the union sympathies of its employees described earlier in this Decision, I find that Respondent did in fact learn that Burbach was sympathetic to and actively support- ed the Union. The facts surrounding his discharge are for the most part not in dispute. Unexpectedly Burbach late on the evening of Friday, December 10, was called out of town. A friend of his had gotten hurt in an accident. Before leaving Albu- querque Burbach stopped at the home of employee Sue Chavez and asked her to tell supervision on Monday that he would be gone for 2 or 3 days. Burbach remained out of town and absent from work Monday, Tuesday, and Wed- nesday. Believing that Chavez had called, Burbach did not call to tell the Company that he would not be at work. Chavez failed to notify the Company that Burbach would be absent. When Burbach was absent without calling in, Humphries, his supervisor, without success tried to find out from a number of his friends where he was and finally on Wednesday she informed her superior, Harrison, that Bur- bach had been absent for the past 3 days without calling in. Harrison replied that company policy was to terminate em- ployees who do not call in after 3 days. The company's rule on this matter which Burbach was aware of stated: Unless previously excused, an employee absent for a period of three (3) consecutive work days, without noti- fication to his supervisor will be considered to have resigned and will be separated from the payroll. Also, the employee will not be considered for rehire. On Wednesday, December 15, after work Respondent by telegram notified Burbach that he was "being terminated for excessive unexcused absence" and that a check contain- ing his owed wages would be forwarded shortly and for him to return his badge. The next morning Burbach came to the plant and with Chavez explained what had happened and that Chavez had negligently failed to notify the Company of his absence. Humphries in effect told him it was out of her hands at that point and referred him to Harrison, who listened to his story and told him he had been fired the day before for being absent for 3 consecutive days without call- ing in which was a violation of company policy. The evi- dence is uncontroverted that the Company's rule means what it says, termination from employment for 3 consecu- tive unexcused absences. Other than in a situation where an employee can show he was physically unable to contact the Company there is no evidence that the Company has not applied this rule as written. In my view, Burbach's failure to call in for 3 consecutive days when coupled with the clear language of the Company's rule and the lack of evidence that the rule was applied in a disparate manner to Burbach establish ample GTE LENKURT, INCORPORATED justification for his discharge . While I recognize that Bur- bach was known to have been active in the Union and that the Respondent may well have welcomed the opportunity of dispensing with his services , I concluded that Burbach's objectionable conduct caused his discharge , and would have done so in the absence of any union activity . Accord- ingly, I shall recommend that this allegation of the consoli- dated complaint be dismissed. g. The issuance of a written reprimand, the assignment of more arduous work, and the discharge of Lorenzo Carabajal Lorenzo Carabajal began work for the Company on Au- gust 31 , 1971, as a stockclerk under the immediate supervi- sion of First Line Supervisor Donald Bennett. He was discharged on November 4, 1971. General Counsel con- tends that in discharging him and in allegedly reassigning him to more arduous and less desirable work during Octo- ber 1971 Respondent was motivated by its hostility toward Carabajal for supporting the Union. Carabajal early in the Union's campaign actively cam- paigned for the Union . He signed a card authorizing the Union to represent him on September 16, 1971, attended the Union' s organizational meetings , and starting about the middle of September until his discharge actively and openly in the plant and elsewhere solicited employees to support the Union . It is undisputed that Respondent learned early in September 1971 that Carabajal was actively soliciting employees to support the Union . As described later in this section during early October 1971 personnel manager Leve- good informed store manager Compagnone that Carabajal was talking to employees about the Union on company time , and First Line Supervisor Humphries on October 16, 1971, told Second Level Supervisor Harrison that when she was an employee in September 1971, Carabajal solicited her for the Union during working time. Then, on November 2, 1971, as described earlier in this Decision First Line Super- visor Sanchez told Carabajal that his name was mentioned during a supervisors ' meeting and warned Carabajal to watch his step because "they know you are supporting the Union." (1) The reprimands Carabajal in the course of his work as a stockclerk would distribute parts to the various departments throughout the plant . There is no company rule against employees talking during working time . It is undisputed that the Company allows this conduct so long as the talking does not interfere with anyone's work. As First Line Supervisor Camy Wright put it, "[employees ] could visit with each other or chat with each other and continue working." Consistent with this rule Carabajal in distributing parts in addition to asking where the parts belong would greet employees and engage in other types of small talk common in the plant. During October 1971 Carabajal received an oral warning from stores man- ager Joe Compagnone and a written reprimand from First Line Supervisor Donald Bennett for talking. Regarding the oral warning issued by Compagnone, first I note that Compagnone on almost every relevant matter 959 testified in a vague and evasive manner . I got the impression from observing him that the reason for his poor memory was not based on the lapse of time but upon a desire not to give testimony which might injure the Company. I have not credited his testimony where it conflicts with other credible testimony or where it is contradicted by the record as a whole. Carabajal credibly testified that on October 19, 1971, Compagnone came to him at work and told him he had been advised he was talking to employees about the Union. Carabajal admitted that this was correct but stated he had been doing so only during nonworking time. Compagnone stated that the Company did not want the Union and was just advising Carabajal of his rights. According to Compa- gnone twice-on dates unknown-the Company's person- nel manager Levegood, reported to Compagnone that Cara- bajal was, as Compagnone testified, "talking to people on the assembly line, I guess, while he was out delivering parts." Levegood did not tell Compagnone whether he had observed this or the name or names of employees who told him this. Compagnone conducted no investigation. Compa- gnone testified he reprimanded Carabajal for talking to peo- ple on the assembly line while delivering parts and Caraba- jal promised he would not engage in this conduct again. Thereafter, according to Compagnone, Levegood told Compagnone that "Carabajal was talking to people about the Union on company time and to go out and tell him to stop it." This apparently resulted in the conversation of October 19 at which time Compagnone testified that he told Carabajal to stop talking to employees during working time and that Carabajal denied engaging in this conduct, at- tempted to explain, but that Compagnone abruptly walked off for the reason, to quote Compagnone, "I did not see any point in arguing." A strange reaction, for, as in the case of the first alleged warning Compagnone admittedly had no idea of the basis for Levegood's complaint against Caraba- jal and Compagnone had conducted no investigation of his own. At the hearing the company offered no evidence to explain the basis for Levegood's complaint against Carabajal's talking. Respondent's failure to call Levegood is not explained. Regarding the written warning for talking received by Carabajal in October 1971, he testified that Bennett handed him this reprimand which stated that he was being repri- manded for disturbing employees on the assembly line. Af- ter reading it Carabajal told Bennett that it was very unfair because the reprimand did not explain and he did not know who he was supposed to have been disturbing. Bennett an- swered, "the company does not care if its unfair or not." Bennett testified that the reprimand was issued by him be- cause Carabajal in carrying parts to the assembly line would stand around and talk to employees and a "couple" of supervisors complained he was disrupting work. Bennett admitted that Carabajal questioned the fairness of the repri- mand stating it did not tell him who the people were who he was accused of disturbing. Bennett at the hearing ex- plained, "but it wasn't a question of who he was talking to, it was a question that he was talking to assembly people and this disturbed them on the assembly line. Who, didn't mat- ter." Carabajal's credible and undenied testimony is that he never disturbed employees on the assembly line and was never informed by any supervisors that he was disturbing 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their employees. Respondent did not produce a single su- pervisor who claimed to have complained to anyone about Carabajal. Compagnone's testimony to this effect was ad- mittedly not based on his own observations but on the representations made by Personnel Manager Levegood. Compagnone conducted no investigation of his own. It also appears that what Levegood allegedly told Compagnone was not first hand but based on what some one allegedly told him . Bennett in turn relied upon Compagnone's sec- ondhand information. As Bennett testified: Q. What was Carabajal talking about to these other employees that you gave him a reprimand for? A. I don't know. q Q. It could have been something related to work, is that correct? A. Yes. Q. Did you investigate before you gave him the rep- rimand? A. The reprimand was given on the recommenda- tion of [Compagnone]. Q. The reprimand? A. These are file memos. I gave him a file memo because my boss, Joe Compagnone told me that that was the action I had to do because it was reported to him and it was reported to me. Finally, the sole competent testimony in the record that an employee told the Company that Carabajal was doing any- thing which interfered with employees' work was supervisor Humphries' testimony that in mid-October 1971 when she became a supervisor she told Second Level Supervisor Rob- ert Harrison that on about September 1, 1971, while she was an employee Carabajal solicited her to join the Union while she was in the stockroom getting some parts. Whether Har- rison notified Levegood about this and whether this is what prompted the reprimands is sheer speculation. To sum up, in October 1971 Respondent knew that Cara- bajal was actively supporting the Union, it was hostile to the Union, through supervisor Sanchez told Carabajal it knew he was supporting the Union and to watch his step, and reprimanded him for talking to and allegedly disturbing employees on the assembly line even though the Company's policy is to allow employees to talk on the assembly line and elsewhere during working time so long as the talk did not interfere with employees' work. There is no evidence to show that Carabajal while distributing parts talked to em- ployees on the assembly line so as to interfere with work, their work or his work. Not one employee or one supervisor was called by the Respondent to back up its claim that he had disturbed employees on the assembly line. Levegood, the management official who made the decision to issue the warnings to Carabajal, did not explain the basis for the warnings. Moreover, Respondent adduced no competent evidence that in issuing him the warnings it acted on a good-faith belief that he had engaged in the misconduct attributed to him. Thus, the employees who Carabajal alleg- edly disturbed which caused the issuance of the warnings were never even identified. In addition, the failure of either Bennett or Compagnone to investigate the charges against Carabajal indicates Respondent was not interested in get- ting to the truth of the matter. I find that in warning Caraba- jal, particularly in issuing him the written reprimand, Respondent was motivated by its belief that Carabajal was talking to employees about the Union rather than by a belief that he was interfering with their production or disturbing them. I also find that Respondent discriminated against Carabajal in applying its normal rules concerning talking in the plant, it imposed a more stringent rule for Carabajal, and it did this for the reason that he was a union adherent. Accordingly, I find that during the month of October 1971 by reprimanding Carabajal for talking in the plant and dis- turbing employees the Respondent violated Section 8(a)(3) and (1) of the Act. Although the consolidated complaint does not specifically allege this conduct as a violation of the Act the matter was fully litigated. (2) The assignment of more arduous work General Counsel contends that during the latter part of October 1971 Respondent assigned Carabajal more arduous and less desirable work and that the assignment of such work to Carabajal was motivated by Respondent' s animus toward him because of his union activities. The work in question consists of cleaning a backyard at the Company (picking up pallets, lumber, skids, barrels, etc.), cleaning the chemical storage area of trash, washing it down and setting it up for the purpose of dispensing chemicals, and assigning him the job of dispensing chemicals.14 The cleanup work took a total of about 3 days. There is no showing that another employee should have been assigned this work dur- ing the normal course of business or that it would not nor- mally have been assigned to Carabajal. The dispensing of the chemicals took Carabajal approximately 1-1/2 hours at the most a day. He would also have the incidental task of keeping this working area clean. In short, only a small por- tion of his time was spent dispensing chemicals and the majority of his time was spent performing other work such as distributing and shelving parts in the stockroom. At no time did Carabajal object to supervision or question super- vision about being assigned the cleanup work or the dis- pensing of chemicals. At no time did anyone ever indicate that these assignments were motivated by his union activi- ties . Based on the foregoing, I find that the General Counsel did not establish by a preponderance of the evidence that Respondent in assigning the aforesaid work to Carabajal was motivated by a desire to discriminate against or punish Carabajal because of his union activities and shall recom- 14 The cleaning up of the yard and chemical area was work not regularly done by anyone , it was a one-time job caused by an accumulation of trash which had to be cleaned up for reasons of safety and appearance. The distribution of chemicals previously was not done by anyone. Each depart- ment would come and help themselves Respondent decided that it was more feasible for safety reasons to have one person in the stockroom department permanently assigned to the chemical room to dispense chemicals and keep the area clean. GTE LENKURT, INCORPORATED mend this portion of the consolidated complaint be dis- missed. (3) The discharge Carabajal spent his first 3 weeks as a stockclerk virtually doing nothing inasmuch as the Company did not start to receive shipments of parts until later . During this initial period he spent the time mainly dusting shelves. When he did commence to work at the job he was hired for, his work was subject to legitimate criticism on a number of occa-. sions : ( 1) Bennett reprimanded Carabajal a number of times for not shelving parts in the right locations ; (2) because he misunderstood the instructions of Bennett regarding the taking of a stock inventory, Carabajal did not make a cor- rect inventory making it necessary for the inventory to be taken over ; (3) when Carabajal was assigned to operate the wire stripping machine (an operation in Bennett 's depart- ment) he was not able to satisfactorily set up and operate the machine ; (4) Compagnone twice observed and once reprimanded Carabajal for the haphazard manner in which he was checking and shelving incoming parts ; (5) Compa- gnone reprimanded him on one occasion for stacking the drums of chemicals in an unsafe manner . Of the foregoing complaints regarding Carabajal 's work ( 1) and (3) are based on Bennett 's undenied testimony, (4) on Compagnone's un- denied testimony, and (2) and (5) on Carabajal's credible testimony. All of the above incidents took place prior to November 1. However , there is no evidence that Respondent ever indi- cated to Carabajal that his job was in jeopardy because of any of this conduct. There is no evidence that other than the written reprimand over his allegedly disturbing employees that he was ever issued a written reprimand . That Respon- dent did have a policy of issuing written reprimands to employees is established by their use by Respondent in cases involving other employees and by the one issued in October to Carabajal for talking. Under the circumstances, I do not credit Compagnone 's testimony in response to a leading question that "yes ," Bennett and he had discussions from time to time about whether Carabajal should be re- tained. Nor, do I credit his further testimony that the first time they decided to fire Carabajal was "about a week or two before he was fired , I guess," and that Bennett had wanted to discharge Carabajal all along and had so indi- cated to Compagnone but that Compagnone told him to hold it off. Compagnone could supply no particulars about these discussions with Bennett , was not corroborated by Bennett , and when giving the testimony did not appear to be telling the truth. Finally , it is not credible that if Bennett was so incensed over Carabajal 's work as to recommend that he be fired that he would not have specifically warned Carabajal in writing that his job was in jeopardy because of certain acts of misconduct or at least told him this orally. Carabajal was discharged on November 4, 1971. The events leading up to and triggering his discharge are as follows. The procedure used in delivering parts ordered by the various departments is to place a card, the white one, with the part and to leave a duplicate card, the pink one, on Bennett 's desk . The white card is used to control inventory. The stockclerk initials both cards. Carabajal had never been 961 spoken to, or warned or accused of, violating this procedure. I find that he in fact at all times prior to November 4 used this procedure. On November 3 Bennett called the employees in his de- partment together and stated that he knew there were some new employees in the department and explained in deliver- ing parts one card was supposed to go to his desk and the other card with the parts, and that the previous day a ship- ment had been left in a department with both cards. Bennett warned that he did not want this to happen again and if someone did it again the person would be fired. That eve- ning Carabajal with the rest of the department worked over- time and during this time he delivered a bag of parts, per request, to the department of Nada Holmes. He followed the procedure he had always followed, initialed the cards, stuck the white card with the parts, and left the red card on Bennett 's desk. The next day, November 4, immediately upon reporting for work, Bennett called Carabajal over to his desk and showed him this bag of parts which now had the red card initialed by Carabajal stapled prominently on the bag. Bennett stated that he just told Carabajal the day before that the pink card was supposed to stay on Bennett's desk and the other white card was to go with the parts. Carabajal denied doing this and further explained that he never stapled the card on the bag but just placed the white card with the parts. Bennett replied that he was going to write out a report on Carabajal and send it to Compagnone and that perhaps they could find a job for Carabajal over in the plastics department. Later that day just before quit- ting time Bennett took Carabajal over to Compagnone who told Carabajal that the Company could not "keep people like you" and took him to personnel administrator Sturr who apparently reading from a paper told Carabajal that he was not qualified for his job, he could not take orders and was being terminated , and told Bennett to escort him from the plant. On the way out Carabajal asked Bennett why Stun had not mentioned the earlier written reprimand he had gotten for disturbing employees, and told Bennett that he did not feel that the reprimand was fair. Bennett replied "they knew what you were up to, I can't put it any clearer than that." Finally, Bennett stated that he did not like to fire anyone and that he would be willing to give Carabajal a recommendation and would tell the prospective employer "what happened here, why you couldn't make it here." The foregoing events and conversations relating to what took place on November 3 and 4 is based on the credible testimony of Carabajal who when testifying about these matters impressed me with his sincerity. I specifically credit his testimony that he did not leave the incorrect card in the bag of parts delivered to Holmes on the eve of November 3 and specifically discredit Bennett's assertion that on the night of November 3 when apparently there was no one else around to corroborate his story he found bag of parts delivered by Carabajal with the incorrect card stapled in full view. Clearly, this alleged conduct by Carabajal viewed in the context of Bennett's earlier threat to discharge employ- ees for doing this could only be viewed as a deliberate request by Carabajal for the company to fire him. I received the impression from my observation of Bennett when he gave this testimony that he was not telling the truth. I also note that coincidentally Bennett discovered this bag of parts 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at a time in the evening when apparently everyone had gone home. There was no one to corroborate his story, which does not on its face ring true . I presume that if Nada Holmes had been present or anyone else was with Bennett when he found the bag of parts on Holmes' desk that Respondent would have called such person or persons to corroborate Bennett. It is not probable that an employee without a history of failing to comply with the company's procedures in this area will fail for the first time to comply with the procedure immediately after being told that such a failure is grounds for discharge. Bennett on the question of who was the person who made the decision to discharge Carabajal testified he made this decision on November 4 after talking to him about the incorrect card . Bennett went to Compagnone , and quoting Bennett, "I told [Compagnone] about what happened about having a meeting the day before informing the people of the proper method of issuing stock on the IBM cards . I told him Carabajal was at that meeting and the very next day it was done wrong again and this had not been the first time 15 and my recommendation was that we not keep him. I could not afford to be traipsing around correcting his errors," and that Compagnone "agreed with me and discharged him there." In short, the item which triggered the discharge and which Bennett brought to Compagnone's attention was using an improper method in issuing stock . Compagnone, however, failed to corroborate Bennett. When asked, "can you tell us what was said by you and Bennett," answered , "Bennett came in one day with the problem , like I said , he was having with Carabajal and he recommended that we discharge him and with what I witnessed and the reports I had heard about him I agreed with him." This answer is entirely consistent with the vague and evasive answers given by Compagnone in general on most matters . But, I find it difficult to believe that in this case if Bennett had in fact as he claims told Compagnone about this misconduct that Compagnone would not have at the hearing specifically attributed this as a reason which Bennett gave him for wanting to discharge Carabajal. Especially, since it was the conduct which trig- gered the discharge. I find Bennett was not telling the truth when he testified that on November 3 he discovered that Carabajal had used an improper IBM card on issuing stock. I find that Carabajal used the proper card and that the reason for Bennett's deceit is Respondent's hostility toward the Union's organizational drive and its knowledge that Carabajal was an active union adherent. In arriving at this conclusion I have considered the timing of the discharge (2 days after Sanchez' warning to Carabajal that his name was mentioned at a supervisors ' meeting and for him to watch out because the Company knew he was supporting the Union), and considered the Company's intense hostility to- ward Carabajal because of his union activity which hostility was earlier demonstrated by the Company's discriminatory warnings issued because he was talking to employees. Based on the foregoing, I find that in discharging Carabajal on November 4, 1971, Respondent was motivated by his union sympathies and activities and by a desire to discourage union activities and sympathies on the part of other employ- 15 Insofar as this infers Carabajal had previously engaged in this conduct there is not a scintilla of evidence to support it. ees, and that by engaging in this conduct Respondent violat- ed Section 8(a)(1) and (3) of the Act. In arriving at my findings in this portion of the Decision I have carefully considered in its entirety the testimony of Carabajal's immediate supervisor Bennett and have rejected this testimony where it conflicts with other credible testimo- ny. The impression Bennett left with me from my observa- tion of him while testifying was that he was not a reliable or a trustworthy witness . For example, he testified that he knew that Carabajal was openly assisting the Union, but when asked if he reported this to Storage Manager Compa- gnone, evaded answering this question testifying that Com- pagnone knew how Carabajal felt already and did not need to be told. Upon further questioning he testified that he only assumed Compagnone knew of Carabajal's prounion sym- pathies and did not discuss the matter with Compagnone. Compagnone testified that he became aware of Carabajal's membership in the Union for the first time when Bennett told him. Also illustrative of Bennett's tendency to color his testimony to favor Respondent is his testimony regarding the polling of employees to determine their union sympa- thies. Only reluctantly and evasively did Bennett admit un- der cross-examination that supervisors were asked to determine if the employees under their supervision were for the Company or for the Union. But, then insisted the super- visors were told to question employees only to find if the employees were "for the company or against the company." Supervisors Hardy, Morgan, Blackstone, Montoya, and Beall in effect all admitted that the supervisors were told to determine whether an employee was "Union" or "Pro- Union." h. The Respondent requires Susan Chavez to work excessive overtime, assigns her undesirable work, and issues her a written reprimand It is undisputed that Susan Chavez at all times material has been an active supporter of the Union and that Respon- dent including Chavez's immediate supervisor, Camy Wright, knew of her union sympathies. Chavez was one of the prounion employees on the list shown to the Respondent's supervisors about December 1, 1971. General Counsel contends, as alleged in the consolidated complaint, that Respondent has discriminated against Cha- vez, who is still employed by the Company, by engaging in the following conduct: (1) since January 1972 requiring her to work excessive overtime; (2) reprimanding her on Janu- ary 14, 1972; and (3) reassigning her to less desirable and more arduous jobs since January 1972. I will discuss these contentions but before doing so note that in connection with the alleged discriminatory reprimand and discrimina- tory job assignment Chavez gave me the impression that she was so hostile toward the Company that it was coloring her testimony. This was in sharp contrast to her straightforward and candid manner when she testified about her December 17 conversation with Wright which is set out earlier in this Decision and which I credit. Wright who was not ques- tioned on direct examination about the threats attributed to her during the December 17 conversation did not impress me with her reply on cross-examination that she did not "recall" making the threats attributed to her by Chavez. On GTE LENKURT, INCORPORATED other matters , however, I have rejected Chavez's testimony where it conflicts with the testimony of Wright. Regarding the claim that the Company has required Cha- vez to work excessive overtime , it is undisputed that all employees as a condition of employment with the Company sign an agreement that they will work scheduled overtime, and that the Respondent has never forced Chavez to work overtime when she refused . Nor, does the record show that Chavez was required to work more overtime than other employees . Based on the foregoing I find that the evidence does not establish that Chavez was required to work exces- sive overtime or that in assigning her overtime that Respon- dent was motivated by Chavez's union activities or sympathies . Accordingly , I shall recommend that this por- tion of the consolidated complaint be dismissed. Regarding the reprimand issued to Chavez by Camy Wright on January 14, 1972 , the reprimand reads as follows: January 14, 1972 Susan was observed talking with fel- low employees which stopped workers from continuing their normal work . Susan 's work also was stopped at this time . Susan has had verbal warning twice previous- ly regarding interference of fellow employees work. Wright on January 14, 1972, and on other occasions had previously personally observed Chavez talking so as to in- terfere with her own work and other employees' work. Prior to January 14 Wright had spoken to Chavez about this conduct. While the Company has a policy of allowing em- ployees to talk, visit, and chat with one another during working time , provided they do not stop working , there is no showing that the Company allows employees to stop working while engaged in this conduct. In addition , not only did Wright issue a written reprimand to Chavez for her conduct on January 14 but issued a verbal reprimand to employee Bobby Toledo who had stopped work and was talking with Chavez . Apparently since this was Toledo's first offense he was only given a verbal warning , consistent with company policy. Based on the foregoing I find that the preponderance of the evidence does not establish that the issuance of the January 14 reprimand to Chavez was moti- vated by her union activities or sympathies. Accordingly, I shall recommend that this portion of the consolidated com- plaint be dismissed. Regarding the allegation that Respondent assigned Cha- vez to more arduous and less desirable jobs , Chavez some- time during December 1971 or January 1972 for the first time was assigned to work on what is known as the braid and buss operation in department 350, Camy Wright's de- partment. Chavez objects to the heavy lifting on this job, the lifting on this job is too heavy for a female . Other female employees other than Chavez had worked on this operation, although not as frequently. Although the female employees do lift boxes of materials on this job , it is common for female employees to do this in connection with almost all operations . They do it on their own , for Respondent em- ploys material handlers whose job is to do such lifting in- cluding the lifting connected with the braid and buss operation . Chavez at no time ever complained that the ma- terial handlers were refusing to assist her. In assigning Cha- vez to this operation, Wright was motivated by the fact that 963 soldering is an essential part of the job and Chavez was a good solderer. At first Chavez did not work full time on the job but as she gained experience she became very good at it and as a result has worked on it more than other female employees. At no time did Chavez ever object to the Com- pany about this particular job assignment. At the hearing while at first indicating that she objected to the braid and buss assignment she later indicated that her main complaint was being reassigned different jobs; namely, "moved around from job to job like a yo-yo." In fact she has voiced this last objection to Wright. However, the Company in this department tries to train employees on a number of jobs to provide the maximum amount of flexibility in case of absen- teeism and it is not unusual for an employee to perform four different operations off and on. The evidence is not suffi- cient to establish that Chavez has been treated differently than other employees in this respect. Based on the fore- going, I find that a preponderance of the evidence does not prove that the Company in assigning work to Chavez has been motivated by her union activities or sympathies. Ac- cordingly, I shall recommend that this portion of the consol- idated complaint be dismissed. (i) The discharge of Phillip Gabaldon Gabaldon began work for the Company on October 18, 1971, and worked under the direct supervision of First Line Supervisor Mike Blackstone doing plating work. Blackstone in turn reported to Second Line Supervisor Gerald Beall. Gabaldon was discharged on December 10, 1971. General Counsel contends the discharge was motivated by his union activities and sympathies. Gabaldon during the month of October signed a card authorizing the Union to represent him. He attended a union organizational meeting held in November 1971. Ga- baldon voiced his prounion sentiments to other employees including one by the name of Jack Murray who was op- posed to the Union. Blackstone credibly testified that by talking to Gabaldon, listening to his questions and argu- ments , and based on conversations Blackstone had with other employees that Blackstone got the impression that Gabaldon was prounion. As described earlier in this Deci- sion, Beall at the hearing testified that the supervisors under him turned in lists to Beall indicating the union sympathies of their employees. Beall, in turn, passed the information along to plant manager Zimmerman. Blackstone credibly testified that he in fact did pass along such information to Beall and specifically told Beall on or about November 30, 1971, that his "impression" of Gabaldon was he was a bor- derline case, not sure which side he was on. And then, on or about December 8, 1971, told Beall that Gabaldon was leaning toward the Union and told Beall that after talking with him Gabaldon still had union leanings and was a friend of two union sympathizers. Beall did not deny receiving this information from Blackstone. Beall's sole testimony related to this question was vague and evasive. Regarding whether he observed Gabaldon's name on the list of prounion em- ployees shown supervisors he testified, "I don' t recall seeing it" but then added that for that matter he also did not recall seeing his name on the list of employees shown the supervi- sors who were named in the Union's unfair labor practice 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge against the Company. Gabaldon's name was in fact included in this charge and it presumably also was included on this list shown the supervisors. Then in response to the question "did you ever tell [the Sheridan representative] that Gabaldon was union," Beall answered , "I never really eval- uated Gabaldon he was a marginal employee. Gabaldon was willing to talk about the union, but he never committed himself one way or the other." In short, Beall, although corroborating Blackstone that Gabaldon was willing to talk about the Union with him, claims he did not indicate to Beall he was prounion . I was not impressed by Beall 's testi- mony on this matter and I credit the undenied credible testimony of Blackstone that pursuant to the Company's instruction that supervisors were to determine the union attitude of employees that Blackstone determined that Ga- baldon was prounion and on or about December 8, 1971, transmitted this information to Second Line Supervisor Beall. On December 1, 1971, Gabaldon was given his first 30- day probationary review by Blackstone. His work was rated satisfactory as follows: quality and quantity of work, versa- tility in being able to perform more than one job, ability and willingness to follow instructions , and attendance. On the remaining two categories set out in the review form-safety and housekeeping, adherence to Company's standards of conduct (good grooming etc.) -he was rated as needing improvement . In the remark column Blackstone made the following comments: "Follows instructions well, Can use improvement in cleaning up at night . Has tendency to talk to other workers little too much." On the portion of the review form asking "should employee be allowed to contin- ue employment?" Blackstone checked "yes." On December 10, 9 days later, Gabaldon was discharged. On that day, at the end of the day, Gabaldon credibly testified that Black- stone took him to see Second Line Supervisor Beall who told him he was discharged, that he was not qualified for his work. Gabaldon asked if the Company was prejudiced against him because he was Spanish , and was told they were not, and Beall stated they hated to see him go but that he was not the first one, there were others in mind like employ- ee Steve Maldonado who Beall stated "we don't like him, we would like to let him go." Blackstone at the end of the interview told Gabaldon if he needed a reference when looking for work to tell the employer to call him and Black- stone would give him a reference. Beall testified that the decision to discharge Gabaldon was made by Blackstone and that Beall simply gave it his approval. Blackstone testified that the discharge of Gabal- don was motivated by two things, he was not a very good worker and the belief he was prounion. Blackstone stood by this testimony when cross-examined on this matter. I was impressed by his demeanor when he gave this testimony, he appeared to be sincerely trying to explain what motivated him in deciding to discharge Gabaldon. In addition, the only factor in the record to explain Blackstone's abrupt reversal on December 10 of his December 1 decision to continue to employ Gabaldon is his discovery on or about December 8 that Gabaldon was sympathetic to the Union. Admittedly, Gabaldon on occasions when he ran out of work would be standing doing nothing , talking with em- ployees, but as both Blackstone and Gabaldon credibly testified, for the most part, these were times when there was just no work available in the department and Blackstone did not criticize him for not working but just told him to look busy and would usually have him redo some work he had already done so he would have something to do, or he would go see if any other employee needed help on something. While not a model employee, the Company, as demonstrat- ed by Blackstone's December 1 review of Gabaldon, did not regard his failings as serious enough to terminate him. Beall portrayed Gabaldon as an employee who was a serious problem since at least the middle of November, who had been talked to by both Beall and Blackstone every time he did something wrong which was "quite a bit," who was warned both in writing and verbally a number of times that he would "have to straighten up," and that he "never" stayed in one given area and Beall would have to seek him out. I reject this testimony in its entirety. Beall did not appear to be telling the truth when he gave this testimony. The testimony consists of vague generalizations lacking in any kind of specificity, and is essentially contrary to the credible testimony of Blackstone and Gabaldon. Moreover, it smacks of gross exaggeration . If Gabaldon were such a bad employee who continually ignored the warnings of Blackstone and Beall it would have shown up on his Decem- ber 1 evaluation. Also unexplained is the Company's failure to put into evidence any of the alleged written warnings that Beall asserted were given Gabaldon warning him, as put by Beall, "straighten out." The December 1 evaluation is not that type of a warning. To the contrary, in most respects it indicates the Company had no complaints about Gabaldon. In the light of Respondent's animosity toward the Union and its organizational drive, its belief that Gabaldon was sympathetic toward the Union, the timing and abruptness of the discharge (coming 2 days after Respondent learned of Gabaldon's union sympathies and 9 days after Gabaldon has passed his initial probationary employee review), and the admission by First Line Supervisor Blackstone that in part the decision to discharge was motivated by Gabaldon's union sympathies, I find that in discharging Gabaldon on December 10, 1971, Respondent was motivated by his union sympathies and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act. (j) The discharge of Barbara Gleicher Barbara Gleicher began work for the Company on Sep- tember 27, 1971, and was discharged on December 13, 1971. General Counsel contends she was discharged because of her union activity. Jean Hardy was Gleicher's immediate supervisor during her entire term of employment. Gleicher performed touch up work, using a hand soldering iron she touched up printed circuit boards that lacked solder. Gleicher impressed me as being an honest witness with, in most instances, an accurate recollection of conversations and events. Hardy on the other hand left me with the impression that she was not a trustworthy witness. Where their testimony conflicts I have credited Gleicher except in one instance; namely, the date of her review. I am convinced that Gleicher's memory failed when she placed the date of the review as December 13. I find that the review was conducted on December 9 the date GTE LENKURT, INCORPORATED 965 it bears . The facts leading up to and surrounding Gleicher's discharge follow. It is undisputed that Gleicher supported the Union and that Respondent knew of her union sympathies . Her name was included on the list of prounion employees displayed to Respondent 's supervisors on about December 1, 1971. Gleicher's 90-day probationary period was scheduled to end December 27, 1971, but as of December 1 she had not received a probationary review. However, on December 9, 1971, supervisor Hardy made out Gleicher's entire hourly employee probationary review-for the 1st, 2d, and 3d 30 days-and showed the completed form to Gleicher. Both initialed the review and Hardy stated "I hope you will be working her for awhile." For the 1st and 2d 30-day periods Hardy rated Gleicher as satisfactory in all respects except for "quantity of work" which was rated, "improvement needed and possible." For the last 30-day period-the end of the probationary period-Hardy rated Gleicher as satis- factory in all categories including quantity of work and noted that Gleicher "should be allowed to continue employ- ment." Despite the fact that she had marked the quantity of Gleicher's work as satisfactory Hardy at the hearing testi- fied that when she showed Gleicher the review form she told her that she needed to pick up her quantity , that she was dragging behind the other girls . Gleicher credibly testified that at no time during her employment did Hardy ever criticize her work , specifically the quantity of her work, and that to the contrary Hardy told her a couple of times she was doing good work . As I noted earlier , I was impressed by Gleicher and not by Hardy when they gave their testimony. But because this issue arises later in the decision involving Hardy's evaluation sessions with other employees I will dis- cuss the matter further . Hardy testified that when she first started to evaluate on December 8 and 9 , 1971, that she would mark employees satisfactory even though they were not in fact satisfactory in a particular category , but would criticize them orally. Her explanation for this was , "I feel a word to the wise is better than putting something on paper," and testified that she also did not really understand the evaluation system . She testified that on December 8 and 9 she could have easily marked every employee she reviewed as satisfactory but became more discriminating thereafter. When asked what caused her to become more discriminat- ing she first replied "something did happen but I can't re- member just what it was ," and then said that in effect Second Level Supervisor Harrison criticized her for mark- ing everyone satisfactory . Harrison was not called by Re- spondent to corroborate Hardy's story and the evidence reveals that Hardy as early as December 9, in fact, had no compunction about rating an employee adversely on paper if she felt they were not satisfactory . Thus , her review of Jo Ann Barbero who worked in the same area as Gleicher and who was also rated on December 9, shows Hardy rating Barbero as less than satisfactory in both the quantity and the quality of her work . Under the circumstances and be- cause of Hardy's generally unfavorable demeanor when tes- tifying, I have rejected her testimony given in connection with hourly employee probationary reviews whenever her testimony conflicts with her written review and is contra- dicted by the testimony of the employee. On Monday, December 13, the start of the work week, not a payday, at 2 p.m. in the middle of the workday, Gleicher was discharged and escorted out of the plant. At this time Second Level Supervisor Harrison in the presence of Hardy gave Gleicher her two paychecks and told her she was fired stating "its best for you and the company if you don't work here anymore" and walked her to the gate. That evening as, described earlier in the decision, First Line Su- pervisor Bennett told Gleicher he was sorry about her dis- charge and then volunteered, "what are you doing monkeying around with the Union anyway." To sum up, Gleicher had never been criticized about her work, had been complimented about her work, was in effect told by her immediate supervisor on Thursday, December 9, that she had passed her final probationary review and could expect to continue on as a permanent employee and 2 working days later in the middle of the workday was abruptly notified she was fired without any explanation and escorted from the plant. These circumstances when viewed in the light of Respondent's extreme hostility toward the Union and its organizational campaign and the fact that in early December Respondent had announced to its supervi- sors that Gleicher was one of the prounion employees to be watched, I find established a strong prima facie case that Gleicher's discharge was motivated by her prounion senti- ments and support for the Union. In these circumstances, it was incumbent upon Respondent, if it would rebut the General Counsel's prima facie case, to come forward with evidence explaining the discharge on other grounds, for the "real reason lay exclusively within its knowledge." Miller Redwood Company, 164 NLRB 389, enfd. 407 F.2d 1366 (C.A. 9, 1969). First Line Supervisor Hardy testified that she made the decision to fire Gleicher on December 13 and that her rea- sons for firing Gleicher were "lack of quality and quantity in her work, mostly quantity," and "for soliciting on the job [referring to soliciting for the Union]." Each one of these reasons is now discussed. Regarding Hardy's reference to the quality of Gleicher's work there is no evidence that at any time during her em- ployment that anyone had found fault with the quality of Gleicher's work. Not only was no such notation made on her probationary review, but Hardy at the hearing testified that her satisfactory rating of Gleicher's quality in the pro- bationary review was in fact an accurate evaluation. The sole derogatory remark about the quality of Gleicher's work in this record occurs for the first time in Hardy's justifica- tion for the discharge advanced at the hearing. This reason is completely lacking in substance. Regarding the quantity of Gleicher's work it is undisput- ed that Hardy in order to get the employees to strive for excellence had set a quota of 40 circuit boards a day. This was not a mandatory quota, it was not a company policy. For the 30-day period from October 8 to December 11 Gleicher only met this quota once in an 8-hour day. She was neither warned or reprimanded about this, indeed Hardy on December 9 when evaluating her rated her as satisfactory in quantity of work. As noted earlier I have rejected Hardy's version of the evaluation interview but it is interesting to note that even Hardy's version given at the hearing, "I told her that she knew she needed to pick up her quantity and that she was dragging behind the other girls," can hardly be 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construed in the context in which it was given, the review itself had been marked satisfactory in the quantity slot, as a threat of discipline if Gleicher did not immediately im- prove. The fact of the matter is that Hardy's own high standards of excellence were not those demanded by the Company as is shown by the fact that on Gleicher' s separa- tion notice made out on the date of her discharge and signed by Second Level Supervisor Harrison her quantity of work was rated as "generally acceptable." No one from the Com- pany explained the reason for giving Gleicher this separa- tion rating if in fact the quantity of her work while employed was not acceptable. I find that Respondent did not regard the quantity of Gleicher's work as unsatisfactory. Regarding Gleicher's alleged solicitation for the Union on the job, Hardy testified that on either December 11 or 13, but she is almost sure it was December 13, the day of Gleicher's termination, that employees Marcie Makarski and Frances Janes on separate occasions came to her that day and told Hardy that Gleicher was bothering all of the employees on the assembly line by trying to get them to sign union cards and to go to union meetings . Both employees appeared to be very upset. Hardy did not speak with Gleich- er about the matter nor did she even go over to the assembly line to see if in fact Gleicher was interfering with produc- tion. Eventually she went to Harrison, told him what the employees had told her, commenting to Harrison that maybe this was one reason why Gleicher was not getting her work done because she was spending too much time talking to employees and stopping their work. The foregong is the first version given by Hardy at the hearing. At the very end of her testimony she was again asked about this matter and added one or two details: (1) after it had come to her atten- tion that Gleicher was soliciting for the Union on company time she checked into the quantity of her work and as put by Hardy "I finally started compiling some of her records and I was looking at her over-all work picture," and that she had done this on Saturday, December 11; and (2) then on Monday , December 13 she went to Harrison and told him that if Gleicher had been a really good worker maybe it would have been worth it to talk to her about soliciting to get union cards signed on the assembly line but she was not even a good worker and if she felt "she could spend her eight hour day, soliciting cards when she should have been work- ing, then I really didn't feel like I wanted her as an employ- ee," Harrison agreed and the result was Gleicher's discharge. I do not believe Hardy was telling the truth. Unexplained is the Company's failure to call even one per- son to corroborate this story.l6 Neither employees Markow- ski, Janes or Second Level Supervisor Harrison testified. Gleicher credibly denied that on Friday, December 10, she solicited either Janes or Markowski to join the Union. I find that there is not any evidence to establish that Gleicher was soliciting on company time, let alone spending 8 hours a day, as Hardy characterized it, soliciting for the Union. I further find that the Company at no time believed that Gleicher was engaged in such conduct. In short, I am find- 16 On December 30, 1971, Hardy apparently in response to the unfair labor practice charge filed by Gleicher with the Board gave a written report about the reason for the discharge to officials of Respondent This report omits any mention of this alleged solicitation by Gleicher of employees on company time. ing Hardy's story a complete fabrication. But, assuming that, as Hardy's story indicates, Gleicher was discharged because she had been soliciting on company time, the Re- spondent, in the circumstances of this case, has in effect admitted a violation of the Act. For Gleicher, as I have found, clearly did not engage in this conduct. Therefore, her discharge was unlawful regardless of what the employer thought when it discharged her. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21. Based upon the foregoing, I am of the opinion, and find, that the grounds advanced by Respondent to justify Gleicher's discharge considered either separately or togeth- er do not withstand scrutiny and are not the real reasons for the discharge. In sum , for all of the reasons set out above including the Company's hostility toward the Union, its knowledge of Gleicher's union sympathies, the lack of satisfactory expla- nation for her dismissal, coming as it did shortly after Gleicher's name had been pointed out to supervisors as being prounion and immediately after Respondent had in- dicated that Gleicher was a satisfactory employee who would be retained past her probationary period, I am of the opinion, and find, that Gleicher's discharge was motivated by his union activities and sympathies and by a desire to discourage activities by employees on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. In reaching this conclusion I have considered the fact that Hardy at the same time she discharged Gleicher discharged employee Jo Ann Barbero who did the same work as Gleicher. There is no contention that Barbero's discharge was motivated by anything other than legitimate business considerations. However, the two situations are clearly distinguishable. Barbero, as Hardy testified, was the "worst" employee in the touch department. On December 9 Hardy, when giving a 60-day probationary review to Barbero, had noted on the review form that she needed to show improvement in both quantity and quality of work. (k) The discharge of Gail Griffin Griffin began work for Respondent on October 6, 1971, and was discharged on December 10, 1971. She attended a union organizational meeting in November 1971. Her best friend , Susan Chavez , is one of the most outspoken of the employees who support the Union . Respondent by early December 1971 prior to Griffin 's discharge knew Chavez was a union adherent and had pointed this out to its supervi- sors . They ate lunch together frequently, bowled together, Griffin drove Chavez home from work frequently , and they socialized together outside of work . Also, they worked at the same table. Griffin at times accompanied Chavez when she was soliciting employees to join the Union during break periods and told employees who expressed doubts about the wisdom of supporting the Union that they should at least go to a union meeting and listen . In November 1971 she told inspector Pablo Mirabal, Jr., that she was going to sign a union card . Mirabal became a first line supervisor on No- vember 27 , 1971, a statutory supervisor. Under all of these circumstances and in view of Respondent's policy of having its supervisors systematically determine whether employees under their supervision were union sympathizers, I am of GTE LENKURT, INCORPORATED the opinion , and find, that Respondent learned and believed that Griffin was in favor of the Union . This inference is given further support from the circumstances , described below , surrounding Griffin's discharge. Griffin for her entire employment worked under the di- rect supervision of Camy Wright . She was trained at the technical school to perform installation assembly . However, for her first 3 weeks of employment she performed wire wrapping which she learned to do while on the job. After that she was assigned to perform co-ax installation , the work she had been trained for . But, during the last 3 weeks of employment the regular work had slacked off and Griffin and the other employees in the department spent virtually all of their time stripping wires. On December 10 Camy Wright told Griffin to see Second Level Supervisor Harrison who told her that she was dis- charged . Griffin told him she did not understand why she was fired as no one had ever told her that her work was not satisfactory and that she could not believe Harrison. Harri- son told her that Supervisor Holmes had informed him that she was disturbing the girls in Holmes' department from working and was not doing her work. Griffin stated that there had not been any work in the department for at least 3 weeks . Harrison replied that he knew that but that Griffin 's talking had disturbed other employees. Griffin credibly testified that she had not been given a probationary review even though at the time she was fired she had been employed approximately 2 months , credibly testified that she received no complaints or warnings about her work , and was never criticized for talking. I shall now set out Wright 's testimony-Respondent's sole witness in Griffin 's case-on this matter . Griffin ac- cording to Wright was a very nervous person , who could not sit still for long periods of time and concentrate , she giggled a lot and talked a lot. When asked if when talking Griffin stopped working Wright replied "from time to time." She further testified that Griffin normally talked in a loud voice and that some coworkers complained that she was cutting in on their concentration . Wright testified that she spoke to Griffin about this and Griffin told her that she would try to keep more quiet . When asked to name some employees who complained , Wright answered "I believe probably Ginny Thomas and I believe Dorothy Sona was one who came to me." I was not impressed by Wright 's testimony that she talked to Griffin about talking . I credit Griffin's testimony that she never had any complaints about her talking. On the matter of talking while working it is plain that this was permissible . To quote Wright , "they [employees in her de- partment] could visit with each other or chat with each other and continue working ." Dorothy Sona , one of the employ- ees who allegedly is supposed to have complained to Wright that Griffin by talking loudly was spoiling her concentra- tion , testified that during the winter of 1971 at the time Griffin was still employed that the employees , as Griffin testified, were out of work for about 3 weeks so they had to strip wire . She testified that the employees were talking in the department and that Wright "did not seem to mind it because that 's all we had to do was strip wires so she never said anything ." Indeed Griffin testified to that herself and a number of other employees whom she named would sing 967 while performing their job-Christmas songs since it was the Christmas season-without any objection from supervi- sion. To sum up , it appears the Wright's complaints about Griffin's talking are twofold : ( 1) she stopped work from "time to time" when talking which is not supported by any evidence other than another generalization made by Wright at another point in her testimony , namely , that "[Griffin] occasionally jumped up and moved around talking to other people"; and (2) she talked too loudly and other employees complained . This was made a little more specific by Wright later on in her testimony when she testified "[Griffin] got rather loud a few times ." No witnesses either supervisory or nonsupervisory were offered to substantiate either one of these contentions nor did Wright give any specifics. There is no evidence that anyone had any objection to the Christ- mas carol singing of employees while stripping wires which is a pretty routine job . That is basically all that Griffin had been doing for her last 3 weeks of employment . Also while Harrison when he discharged her told Griffin that Supervi- sor Holmes had complained that she was disturbing her employees located across the aisle, no evidence was ad- duced to support this claim. I find based upon my observa- tions of the witnesses (Wright and Griffin) that Griffin is the more credible and that, as she testified , Wright never crit- icized her about her talking and further find that the evi- dence does not establish that while talking during working time, a common practice , that Griffin stopped working or interfered with the work of other employees. Regarding Griffin 's work performance , Wright testified that Griffin was assigned wire wrap work for her first 3 weeks but that she reassigned Griffin to do the work she had been trained for, co -ax installation, explaining to Griffin that she seemed to be nervous, not to be able to concentrate on putting this wire on this particular pin and Griffin agreed . After being assigned to co-ax installation which would have been about November 1, 1971, until she was terminated , according to Wright, "she did better . . . her quality did improve . Her quantity didn 't improve very much . From time to time it varied. One day she would do real good , the next day she would not do hardly anything." Like the rest of Wright 's testimony concerning Griffin the above is general and vague and I received the impression that it was not reliable . There is no evidence other than the one conversation with Griffin about her work on about November 1, described above , that Wright ever repri- manded or criticized Griffin 's work. Regarding Griffin's attitude toward taking instructions Wright testified she "tried to take instructions but there were other things on her mind and she just disregarded it." Wright offered no specific incidents to support this generali- zation . Griffin credibly denied that she had ever refused to follow instructions. I have set out Wright 's testimony almost in its entirety so it can be viewed against her recommendation on December 10, 1971, made to Second Level Supervisor Harrison that Griffin be discharged. Harrison who did not testify, accord- ing to Wright , was the man who she "believed " made the decision to terminate Griffin. Set out now are Wright's rec- ommendations which Harrison relied upon: 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I explained to him that her work wasn't up to par and because she just wasn 't able to be still and sit in her work area and do one particular job. She occasionally jumped up and moved around talking to other people and she was disturbing people in the coil winding de- partment. She got rather loud a few times. Wright during the later part of her testimony further defined the reasons Griffin was fired by testifying , "she was termi- nated because we felt she was unsuited to having to sit at a given station over a long period of time and she would like to move." As described in detail above, the reasons for Griffin's discharge given by Wright at the hearing and given by Har- rison to Griffin are completely lacking in any kind of evi- dentiary support. They consist of Wright's vague generalizations devoid of substance , and I find they are not the real reasons for the discharge . It appears that Wright herself did not desire to discharge Griffin. Thus, Griffin was a probationary employee with 30 more days of her proba- tionary period yet to go. Wright, due to the late arrival of the probationary review forms, had not even gotten around to reviewing and going over with Griffin her work. When asked, "did you recommend [to Harrison] whether [Griffin] should be kept or terminated," Wright answered, "well, I felt if I had a little bit more time I might have worked with her a little bit. I felt since she hadn't been there 90 days it might be kinder to her to let her go." Wright did have 30 more days to work with Griffin, clearly "a little bit more time." If as Wright's answer indicates there was a chance she could have helped Griffin become a permanent employ- ee it was not kinder to let her go, as Wright testified, without further training . In short , unexplained is the sudden deci- sion on December 10, 1971, that Griffin had to be fired. There is no evidence of any specific acts of misconduct engaged in by Griffin immediately prior to that date which would warrant such abrupt action. To recapitulate, Griffin was prounion, Respondent knew she was prounion, she was discharged abruptly within her probationary period which still had 30 days to go, her work had never been given the customary probationary employee review by her immediate supervisor, her work or work con- duct had never been criticized or reprimanded, and the reasons given to her and advanced at the hearing for her discharge are lacking in substance . When these circum- stances are viewed in the context of Respondent 's extreme hostility to the Union, the instructions given to its supervi- sors shortly before Griffin's discharge to watch the pro- union probationary employees and to discriminate against them, they establish that in abruptly discharging Griffin Respondent was motivated in substantial part by Griffin's union sympathies and activities and her discharge was de- signed to discourage union membership and activity on the part of employees in violation of Section 8(a)(3) and (1) of the Act. (1) The issuance of a written reprimand to Marilyn Hengst Marilyn Hengst was still employed by the Company at the time of the hearing. She began work on September 13, 1971, and sometime in October 1971 was assigned the job as an inspector on the portion of the assembly line known as the walk-around line. She inspects the work of between 30 to 40 employees. She attended union meetings and signed a card authoriz- ing the Union to represent her, and as described earlier, in response to an inquiry from her immediate supervisor, Don- ald Storm, in December 1971, Hengst informed him that she had attended union meetings. Also as described earlier, in late January or early February 1972 First Line Supervisor Nick Pavlakovich told her that at a company meeting super- visors had been told to watch her because of her union activities. On January 6, 1972, Hengst was given a written repri- mand by her immediate supervisor, Donald Storm. The General Counsel contends that Respondent in giving this reprimand to Hengst was motivated by her union activities and sympathies. The facts surrounding its issuance are un- disputed and are as follows. First line supervisors, Storm and Hardy, instructed Hengst when she became an inspector in October 1971 that when she discovered problems with employees' work that she should discuss them with the supervisors rather than the employees. But, after that and before the reprimand in- volved in this proceeding these directions were rescinded and Hengst was told by Storm and Hardy that when she found faulty work to discuss the problem directly with the employees involved rather than go to a supervisor. Accord- ingly, on January 6, 1972, it was Hengst's practice as part of her job to talk with employees on the assembly line. Indeed as noted earlier in this Decision employees are nor- mally allowed to talk while working so long as it does not interfere with anyone's work. On January 6, 1972, Hengst received a written reprimand signed by Storm which read: Frank Smalley and Jean Hardy reported they had ob- served Marilyn Hengst engaged in conversation with production workers during working hours. At this time Marilyn is being directed that she report all problems to either the line supervisor or to myself [referring to Storm] and that she is not to engage production work- ers in conversation. Storm when he showed the reprimand to Hengst informed her that the named supervisors (Smalley and Hardy) had either overheard or seen her talking to other employees about things other than production work. Hengst stated this was not true. In response to Storm's assertion that it was the word of two against one, Hengst pointed out that since the two supervisors who claimed to have overheard this conver- sation were not around at the time they could not have overheard her talking. Hengst asked to discuss the matter with someone else and a meeting was arranged between her and Storm's boss, Irv Whalley. Hengst repeated to Whalley what she had said to Storm and Whalley said he would check into the matter. The next day Whalley informed Hengst that he had checked and that in fact the two supervi- sors, Smalley and Hardy, had not observed or heard her talking but that she had been turned in by a fellow employ- ee. Since this reprimand Hengst, consistent with her past GTE LENKURT, INCORPORATED procedure , has continued to engage the production employ- ees in conversation . It is plain that if she did not , she could not efficiently perform her job. To recapitulate , Respondent reprimanded Hengst for en- gaging production workers in conversation during working hours even though this was part of Hengst's job as an in- spector, and even though Respondent 's own rules allow employees to talk with fellow employees during work time as long as it does not interfere with anyone 's work. There is no evidence that Hengst in talking with other employees either was not talking about work related matters or, if she was not , was interfering with her own or other employees' work . Nor is there evidence that the company in good faith ever believed that this was the case . The alleged unidentified employee who reported Hengst did not testify for Respon- dent, nor did the supervisor testify to whom this employee reported the matter . Viewed in the context of its hostility toward the Union and its knowledge of Hengst 's union sympathies this inability on the part of the Company to substantiate the issuance of the reprimand indicates that the real reason for its issuance was Respondent 's animus to- ward the Union and was motivated by a desire to discrimi- nate against Hengst because of her union sympathies. Further support is provided for this inference by other cir- cumstances ; namely, the failure of the Company to get Hengst's explanation before issuing the reprimand and the different explanations given to Hengst by the Company to justify the reprimand . Initially , as written , it was based on what two named supervisors had observed . Later Respon- dent acknowledged this was not correct and justified the reprimand upon the report of an unidentified employee. The reason for this confusion was not explained by Respon- dent . Based on the foregoing I find that the issuance by Respondent of the January 6, 1972 , reprimand to Hengst was motivated because of her union activities and sympa- thies and was designed to discourage union membership and activities on the part of the employees in violation of Section 8(a)(1) and (3) of the Act. (m) The discharge of Jack Holmes Jack Holmes began work for the Company on November 15, 1971, as an electrical assembler in department 350. His immediate supervisor was Annabelle Humphries , whose su- pervisor was second level supervisor, Bob Harrison . Holmes was fired on December 16, 1971. Holmes credibly testified that prior to the day of his discharge his work had never been criticized by supervision, specifically that Humphries had not criticized his work and never indicated he was not doing his work correctly. As a matter of fact , because of a lack of work in Humphries' department Holmes testified without contradiction that he spent only about 10 percent of his time working under Humphries ' supervision. The only criticism of Holmes' work as he credibly testi- fied occurred about I week before he was terminated when an inspector brought back to him about 10 circuit boards in which the "wire stripping gap was too long." Of the approximately 10 boards Holmes told the inspector only about 5 were his work and the rest had been done by others. Holmes ' credible and undenied testimony is that almost all 969 the employees occasionally have work returned. On December 16, 1971, about 1 p.m., Holmes received his first 30-day probationary review from Humphries. Based upon Holmes' credible and undenied testimony, I find that at this time Humphries showed him the review, which she signed and Holmes initialed and which indicated that his work was satisfactory in all categories except quantity and quality of work for which Humphries marked on the review "Improvement needed and possible." Humphries told Holmes he had made a "few errors" in the wiring in the project, as described above, that the wire gapping was too long, but that everyone makes a few mistakes, that Holmes seemed to get along with all of the employees, was never late, never missed a day's work, and that his work "seems to be on the average pretty good." She told him she did not see any real reason for terminating his employment as his work was not any different from other employees who had just started working for the Company, and marked on the review that Holmes, "should be allowed to continue em- ployment." After this interview Holmes returned to work and later that same day (December 16) at quitting time he was in- structed by Humphries to see Second Level Supervisor Har- rison: Harrison spoke to Holmes alone and told him he was discharged. Holmes' testimony regarding the exit interview was uncontroverted and was credible. Holmes asked for the reason for his discharge and Harrison told him his work was not up to the Company's standards. Holmes asked why he had not been told about this previously. Harrison stated the Holmes' work had been corrected wherever it happened to be found and just sent along. In support of its case in chief involving the discharge of Holmes , Respondent offered one witness, Humphries. Her testimony is as follows. She tried to work with Holmes to improve the quality of his work thinking that later his quan- tity would improve. She first testified she had to talk to him about his work "many times" which she changed later to she criticized his work "at times." That, in particular, his wire stripping gap was too long, that she showed him what he was doing wrong, told him she would like to see improvement but that 2 days later he made the same mistake. He made no improvement, she testified, but made the same error over and over again. In Humphries' opinion Holmes could have improved his work if he tried. Humphries, continuing her testimony, admitted that on December 16 she reviewed Holmes and indicated that he would be allowed to continue working for the Company. She in no way contradicted his credible version of the interview. Humphries' explanation for the discharge 3 hours later follows. Humphries testified that after reviewing Holmes she went to talk to her supervi- sor Harrison, quoting Humphries, "I thought at the time that maybe working with [Holmes] another 30 days, maybe he would try to show some improvement in his work. After I talked to Harrison, I finally decided that we shouldn't keep him." Regarding her conversation with Harrison on the afternoon of December 16 Humphries testified: Q. What did Harrison tell you that led you to change your decision and led to the firing of Holmes? A. We talked to him and after explaining he asked me why, first, was I having trouble and I had said on the line there I had tried to train (Holmes) and he was 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making the same type of errors. After listening to that he did not improve and was not trying to improve I made my own decision not to keep him. Q. What did Harrison say when you went through these mental gymnastics? Did he say anything to help you? A. He really didn't have to because after I listened to myself I could hear what I was saying and I was saying over and over he had not shown any improve- ment. First I asked the question will he improve in the next 30 days if he showed no improvement in the first. Harrison who was still employed by the Company at the time of the hearing did not testify. Humphries admitted that usually the first time she submits a probationary employee's review to Harrison is at the end of 90 days. This is in fact what the review says on its face, and in the case of every review prior to and after Holmes' this was the procedure Humphries followed. She explained she went to Harrison about Holmes because she needed "an opinion on Jack Holmes." Finally, she testified that at least 1 or 2 days prior to December 16 she had been thinking about and had ar- rived at her decision as to how she would evaluate Holmes, and was not able to explain why she waited until after the evaluation to speak to Harrison. I do not believe that the testimony of Humphries as set out above is credible . Her demeanor did not impress me when she gave this testimony . The testimony was general, vague, and wholly uncorroborated even where corrobora- tion should have been available. Unexplained is the Company's failure to call Harrison to corroborate Hum- phries' story regarding the decision to discharge as is the failure to call any inspector or other employee to corrobo- rate Humphries' claim that Holmes was continually making mistakes. Also, not explained is the failure of Humphries at the time she reviewed Holmes to criticize anything other than the one job done by Holmes. I find that Holmes prior to December 16 had not been criticized about his work, that the uncorroborated description of Holmes' work by Hum- phries at the hearing was not true, and that Respondent on December 16 through Humphries had decided to retain Holmes in its employ for at least another 30 days . I also find that the decision of December 16 to discharge Holmes was not made by Humphries, as she testified, but was in fact made by Harrison, who for reasons not explained by either Humphries or Harrison rescinded Humphries' decision to continue Holmes' employment. In N.L.R.B. v. Walton Man- ufacturing Company, 369 U.S. 404, 408, the Supreme Court, in commenting on the right of a trier of fact to believe the contrary of what an uncontradicted but discredited witness testified to, quoted with approval from the opinion of Judge Learned Hand in Dyer v. McDougall, 201 F.2d 265, 269, stating that demeanor of the witness: ... may satisfy the tribunal, not only that the story is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies. That Harrison was the moving cause in Holmes' discharge not only is established by Humphries' lack of candor, but all of the circumstances strongly indicate that it was Harri- son who was the moving cause in Holmes' discharge. In short, I find, Respondent discharged Holmes on De- cember 16 within three hours after it had notified him of his continued employment for at least 30 more days, and that the reasons given to Holmes and advanced by the Respon- dent at the hearing to justify the discharge are false. General Counsel, as alleged in the consolidated complaint, argues that the real reason for the discharge lies in Holmes' union sympathies or activities. The only evidence in the record of Holmes' union activities or sympathies is that some time in November he signed a union authorization card which he misplaced and then signed a second card in December which he filled out and gave to an employee. Where he was given or signed the cards is not shown. Also Holmes testi- fied that at lunchtime he discussed the Union with other employees. What he said about the Union he did not say. I will not speculate that he indicated he supported or sym- pathized with the Union. Other than to the one employee who solicited Holmes to sign a union card there is no evi- dence that he indicated to any employee that he favored the Union. There is also no evidence that he ever indicated to any supervisor that he favored the Union. Nor is there evidence that he ever went to a union meeting. Under these circumstances, I am of the opinion, and I find, that the key element for unlawful motive-company knowledge of Holmes' prounion sentiments-is lacking. There is no direct evidence of company knowledge. I am unable to infer knowledge of Holmes' union sentiments whereas here it was limited to indicating to one employee the one who solicited him to sign a card, that he supported the union, and there is no evidence that he ever expressed his prounion sympathies to other employees or supervisors. There is simply no basis for inferring the actual communica- tion of information about Holmes' union sentiments to the Company. In reaching this conclusion I realize that an employer's knowledge of union activities may be inferred in appropriate circumstances. In this connection I have con- sidered Respondent's policy of ascertaining the union senti- ments of its employees and that in furtherance of this policy supervision took various steps to ascertain employees' union sentiments including widespread and systematic interroga- tion of employees. But, I am convinced that such a cam- paign to discover the identity of union adherents is material to the company's knowledge of a particular employee's union sentiments only to the extent that it may be shown to have made it likely that the employer had learned of the employee's prounion sentiments. This can have no applica- tion to the case of an employee who silently sympathizes with the union or who in this case has revealed his prounion sentiments to only one person, the person who solicited his union card. I have carefully considered Rust Sales Company, 157 NLRB 1681, where the Board stated: "We would con- sider the Respondent's extensive interrogation and surveil- lance as a completely sufficient basis for inferring that it was successful in ascertaining the identity of prounion employ- ees." This language was purely dictum not essential to the Board's holding. The Board was not forced to consider the issue posed by the instant case, namely whether extensive GTE LENKURT, INCORPORATED 971 interrogation and surveillance is a completely sufficient ba- sis for inferring company knowledge of the union senti- ments of an employee who is not shown to have openly voiced such sentiments. Accordingly, in these circumstances , for the reasons set out above I shall recommend that the portion of the consoli- dated complaint alleging that Holmes was unlawfully dis- charged be dismissed. n. The assignment of less desirable work and the issuance of written reprimands to Richard Lucero and his discharge Richard Lucero began work for the company on Novem- ber 22, 1971. He was discharged on March 7, 1972. From early December until his discharge his immediate supervisor was Jean Hardy. Early in December 1971 he started to attend the Union's organizational meetings and in the plant during break and lunch times solicited employees to sign cards for the Union and attend union meetings . It is undisputed that on January 14, 1972, Lucero and employee David Paul told supervisor Hardy they had signed cards for the Union. The General Counsel claims that motivated by its knowledge of Lucero's union sympathies Respondent reassigned Lucero to a less desirable job, issued him written reprimands and discharged him. Each contention is discussed one after another. (1) The assignment of less desirable work Briefly stated here is a description of what is known as the wave solder operation. Production line employees working on what is known as the walk around insert components into printed circuit boards which are sent through the wave solder machine which solders them in place. Prior to going through this machine the boards are taped to protect certain areas from the solder and sent via conveyor through a ma- chine known as the precleaner which cleans the boards. Then they are conveyed through the wave solder machine and through what is known as a post cleaner operation and finally taken off the conveyor belt and untaped. The tapes protecting certain areas of the board from the solder are removed by hand. From early December 1971 through Jan- uary 14, 1972, employees Richard Lucero and David Paul together were assigned the portion of this operation com- mencing at the precleaner and ending when the boards went through the post cleaner. They did not do the untaping which was done by other employees. Also, other employees helped them push the boards into the wave solder machine from the precleaner. Other than this Paul and Lucero start- ing in early December 1971 had rotated the work at this operation. However, on Saturday, January 15, 1972, em- ployee Frances Tinnin Hodge began to work at this opera- tion. Tinnin had previous experience with other employers on a similar machine and between October 18, 1971, the time she started to work for the company and early Decem- ber 1971 she had worked intermittently on the wave solder machine with the employees who operated the machine prior to Paul and Romero. On January 15 Hardy assigned Tinnin who was working in Hardy's department at another operation to the wave solder operation. She testified that she did this to train Tinnin for the job because of the fear that Paul and Lucero who were good friends might be absent together. Believing she needed another person at the wave solder operation she had discussed the matter with Foreman Smalley 2 weeks previously. As employee Paul credibly testified, on the morning of January 15 Hardy with Tinnin came to the wave solder machine and stated that Tinnin with other employers had worked on a similar operation and that she wanted to train Tinnin on the operation. Hardy for that day replaced Paul on the wave solder operation with Tinnin, Paul being assigned to the touch-up table another operation in Hardy's department. Paul credibly testified he stayed at touch-up for 1 week at which time he was brought back to the wave solder operation and told by Hardy that the three of them (Lucero, Tinnin, and Paul) were to rotate on the operation. Thereafter, as Paul credibly testified, the three did not in fact strictly rotate but that Tinnin "pretty much" operated the wave solder machine with Paul and Lucero rotating between themselves the more undesirable aspects of the operation, pushing the boards and untaping. Hardy admit- ted and I find that the employees regarded untaping as an undesirable job because of its monotony. Neither Paul nor Lucero complained that Tinnin was violating Hardy's in- structions that they rotate the work. The three worked on this operation for 3 or 4 weeks at which time Paul was transferred to another operation and shortly thereafter a new employee took his place in the rotation. Finally, going back in time, I find that during the interim of 1 week before Paul came back to this operation from the touch-up table that Lucero did only untaping. Insofar as Lucero testified he did untaping for 2 weeks I reject his testimony as it was based on his recollection of the length of time Paul was away from the operation. Paul's recollection was more accu- rate. I also find that Lucero did the untaping during this period not because of any instructions by Hardy but that Tinnin on her own succeeded in taking over the more desir- able portion of the job and that Lucero did not complain. General Counsel contends that the change in Lucero's assigned job duties was discriminatorily motivated. While I agree that the timing of the change in assignment makes it suspect, more than suspicion is required to make out a violation. The assignment of Tinnin to this operation was based on business considerations and I can find no persua- sive evidence establishing that Hardy's professed reason for transferring Tinnin was not the real reason. Insofar as either Lucero's working conditions or for that matter Paul's were made more arduous by the addition of Tinnin there is no evidence that it was the intent of Hardy that this would occur but resulted from Tinnin assuming the easiest por- tions of the job and Lucero and Paul not complaining. General Counsel also apparently contends that Respon- dent made Lucero's job undesirable and more arduous by having him clean up an oil leak. It is undisputed that all employees as part of their job keep their areas clean. At some point of time in late 1971 an oil leak developed in the area of the wave solder machine. Hardy credibly testified that all the employees on their own cleaned the oil up, Paul, Lucero, and even Hardy. However, subsequent to the mid- dle of January the leak got worse and someone slipped on the oil, at which point Hardy on a number of occasions told 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lucero to clean it up. After being told this a number of times Lucero cleaned the slick up automatically. It took him a matter of minutes to wipe up the oil with a piece of rag, and he testified he did not consider it "much trouble." There is no evidence that he ever objected to doing this. It is undisputed that an employee had to take care of this safety hazard. There is no showing during the normal course of business that Lucero who was one of three employees work- ing in this area would not have been told to do this as part of his normal duty to keep the area clean. In short, I find there is no evidence that in telling Lucero to clean up the oil slick that Hardy was motivated by his union activities. Based on the foregoing I find that the General Counsel has not proven by a preponderance of the evidence that in violation of Section 8(a)(1) and (3) of the Act Respondent assigned Lucero to less desirable and more arduous work or made such an assignment for unlawful reasons , and will recommend that this portion of the consolidated complaint be dismissed. (2) The written reprimands The General Counsel contends that when Respondent on February 10, 1972, and on February 16, 1972, issued to Lucero written reprimands for returning to his work station late from breaks and for not wearing his safety glasses that the Respondent was motivated by a desire to discriminate against Lucero because of his union activities . I will discuss each of the reprimands in order. It is undisputed that Hardy had warned all of the employ- ees under her supervision at a group meeting that too many employees were coming back to their work stations late from breaks and that this practice would have to stop. She credibly testified that on February 2, 1972, she observed Lucero coming back from break about 2 to 3 minutes late at which time she warned him that he was supposed to be back to work at the end of his break. Lucero denied receiv- ing this oral warning but did not explain why he failed to question this reprimand when it was brought to his attention in the subsequent written reprimand issued to him by Hardy for being tardy from breaks. His demeanor when he testified on the subject of tardiness from breaks did not impress me and I have rejected this portion of his testimony when it conflicts with Hardy's. About 1 week after this oral repri- mand, on February 10, Hardy observed Lucero return late to his work station from both lunch and his afternoon break at which point Hardy handed Lucero a written reprimand setting out his previous tardiness of February 2 and his conduct of that day (February 10), and threatened him with discharge if he kept up this type of conduct. At the same time Hardy also issued an oral warning to another employee in the department, Frances Tinnin, who worked with Luce- ro on the wave solder operation. Tinnin had also come back late, apparently with Lucero. Under the Company's policy an employee is warned in writing only after an oral repri- mand is issued. It does not appear that Tinnin had been warned previously for engaging in this type of conduct. It was the policy of the Company known by the employ- ees in Hardy's department that the operators of the wave solder machine were required as a safety precaution to wear safety glasses when looking into the machine . Sometime during the month of January 1972 Hardy observed Lucero with his head in the wave solder machine and that he was not wearing safety glasses. She verbally warned him for doing this. Then on February 16, 1972, Hardy with two other supervisors observed Lucero without safety glasses, head inside the wave solder machine. The result was a writ- ten reprimand issued by Hardy stating Lucero, "has been told repeatedly about wearing safety glasses," "on February 16 [Lucero] was seen with his head in the wave solder ma- chine and no safety glasses," and the reprimand pointed out this is a safety violation which is a serious offense and if continued would lead to termination. The reprimand was handed to Lucero in the office of Personnel Manager Zele- ny in the presence of Zeleny and Foreman Smalley. At this time according to Lucero's undenied and credible testimony he denied engaging in this act of misconduct and asked Zeleny who had observed him; and Zeleny refused to reveal the name of the informant and told Lucero that his proba- tionary period which was scheduled to end the next week was extended for another 30 days. The above findings of fact regarding Lucero's misconduct (not wearing safety glasses) unless otherwise specified are based on Hardy's testimony which was specifically denied by Lucero. As was the case with a substantial portion of her testimony Hardy's manner and demeanor when she testified about this conduct of Lucero was not impressive. In addi- tion, Respondent without explanation failed to produce the supervisors who allegedly observed Lucero without safety glasses on February 16 and failed to explain why Zeleny refused to tell Lucero who had seen him. Under these cir- cumstances ordinarily I would have concluded that the act of misconduct did not occur. But when Lucero testified about this matter and about other acts of misconduct attrib- uted to him-in particular about his alleged tardiness and his action in leaving work early discussed later-I was not impressed by his manner and demeanor. It appeared to me that he was not telling the truth. Accordingly, with some reluctance I have credited the testimony of Hardy that on two occasions she observed Lucero without safety glasses while peering into the wave solder machine. In short, I am convinced that Hardy was the more trustworthy of the two witnesses on this matter. Based on the foregoing I find that Lucero was in fact tardy coming back to work from breaks and lunch on three separate occasions, and was in fact not wearing his safety glasses on two occasions while looking into the wave solder machine and that these acts of misconduct violated well known company rules and regulations. The General Coun- sel has not shown that in disciplining Lucero for engaging in this misconduct Respondent treated him different than other employees. In these circumstances, the evidence does not preponderate in favor of a showing that in issuing the written reprimands to Lucero during the month of February 1972 that Respondent was motivated by his union sympa- thies and activities and I shall recommend that these por- tions of the consolidated complaint be dismissed. (3) The discharge Lucero's probationary period was due to end on or about February 22, 1972. As described above , he was given written GTE LENKURT, INCORPORATED reprimands for tardiness and not wearing safety glasses on February 10 and February 16, 1972. After the last repri- mand he was notified that his probationary period would be extended for 30 more days. Thereafter, apparently during the third week in February Lucero was given a verbal warn- ing by Supervisor Octa Morgan under the following circum- stances . At the start of February employee Paul had been taken off the wave solder machine and new inexperienced employee named "Ray" had taken his position. When "Ray" began work Lucero was informed by supervision that "Ray" was to be trained on the machine and although Luce- ro was not specifically told that he was the one to train "Ray" it is clear that in fact it was understood that Lucero was to train and in fact did train Ray. On or about February 23, 1972, Ray was running gold-plated printed circuit boards through the wave solder machine and Lucero was helping him. The gold plating on these boards is not sup- posed to be soldered but Ray , because of his inexperience, did not realize this and at the exact moment he started to run them through the machine , Lucero left momentarily to help some employees lift a heavy can of cleaner. The result was that three of the boards were damaged before Lucero returned to give Ray proper instructions, and supervisor Morgan lost his temper and threatened both "Ray" and Lucero with discharge if it happened again despite the fact that both parties explained that "Ray" was the one who was at fault. Hardy testified that in late February 1972 second level supervision had observed the employees in her department leave the work area for the coat rack 1 minute before punch- out time and told Hardy that she should not allow them to do this. The next day February 28, 1972, Hardy informed her employees at a group meeting that they were not to leave their work area until punchout time, that even if they had already finished cleaning up their work area-the employ- ees cleaned up for the last 5 minutes-they were to wait there. That evening the whole department which had worked overtime started to leave the work area about 2 minutes before punch out time and Hardy reprimanded them. The next day, March i about 4 minutes to punch out time she observed Lucero leave his work area and in full view of Hardy walk over to the coat rack, talk to another employee , and then stand in front of the timeclock waiting for punchout time . Lucero who did not appear to be a trustworthy witness on this matter denied ever leaving his work station early . I have rejected his testimony. On March 7 a realignment of supervisors was to take place with Hazel Lopez taking over Hardy's department with Hardy being shifted to some other department. Since Lopez was not familiar with the wave solder machine Hardy took her over to the machine where employee Tinnin was standing, and asked Tinnin to explain the operation to Lo- pez. Tinnin explained the front part of the machine and then suggested to Lopez that they go to the back of the machine where Lucero was working and that he would explain that part . Tinnin introduced Lopez to Lucero as the new supervi- sor and explained that Lopez would like to have Lucero explain this part of the machine . Lucero who was working on the machine looked up, did not say anything for a few seconds , and then said "not now" stating he was tired and sleepy. The foregoing is based on Lopez' credible testimony. 973 Lucero who did not appear to be entirely candid when testifying about this episode claims that when asked to ex- plain the operation to Lopez he started to, then stopped and jokingly said to Tinnm, "I don't feel like doing it, I don't feel up to it" and then went ahead and finished explaining the operation to Lopez. I find he did not explain the operation. Lopez, a brand new supervisor, very upset about Lucero's refusal, went to Hardy and according to Lopez' credible testimony corroborated by Hardy told Hardy what had taken place and complained about Lucero's conduct. Hardy immediately went to her boss Frank Smalley told him what had happened and that she felt this was insubordination and that Lucero should be fired. Smalley agreed. At the end of the work day on March 7 Hardy with a prepared text in front of her explained to Lucero that he was discharged and gave him the reasons. In substance, as set out in the prepared statement, she said he had been issued written warnings in February 1972 for tardiness and for failure to wear safety glasses, that he was given a verbal warning for being careless in the case of the soldering of the gold printed circuit boards, that he left his work station early on March 1, 1972, after being warned not to engage in this conduct, and that finally he had refused to explain the operation of the wave solder machine to his new supervi- sor. I reach the conclusion that the discharge was not unlaw- ful. In my view, the insubordination manifested by Lucero, when coupled with the previous written and oral warnings, and the fact that Lucero was a probationary employee, provided ample justification for his discharge. While I rec- ognize that Lucero was a known union adherent, that Hardy may well have resented the fact that he had publicly an- nounced she had interrogated him and that the Respondent may well have welcomed the opportunity of dispensing with his services , neither Lucero's activities nor Respondent's attitude toward him justified Lucero's misconduct, which I am convinced was the controlling reason for his discharge. Accordingly, I find that Lucero's discharge was for cause and will recommend the dismissal of the allegation of the consolidated complaint related thereto. o. The discharge of Steve Lucero The findings of fact relating to the case of Steve Lucero are in large part based upon the credited testimony of Luce- ro whose demeanor while testifying impressed me favora- bly. Hardy on the other hand from her demeanor gave me the impression that she was not a trustworthy or reliable witness . I have rejected Hardy's testimony whenever it con- flicts with Lucero's. Steve Lucero began work for the company on September 13, 1971. On or about October 1, 1971, he transferred into the department of First Line Supervisor Jean Hardy who remained his immediate supervisor until his discharge on December 10, 1971. He operated the wave solder machine. General Counsel contends his discharge was unlawfully mo- tivated. About October 1, 1971, employee Lorenzo Carabajal asked Lucero how he felt about the Union; Lucero told him he was prounion. Thereafter, Lucero would discuss the Union during lunch and breaktime with Carabajal and 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees, and signed a union card apparently some- time early in November 1971. As discussed earlier in the Decision, during the middle of November 1971 Lucero was questioned by Hardy about his union sympathies and told her the employees should give the Company a chance but if it did not come through the employees had no choice but to support a Union. Mike Blackstone's undenied and credi- ble testimony is that Steve Lucero's name was on the list of prounion employees showed supervisors whom the supervi- sors were to watch. Forewoman Holmes who also testified as to the names on this list testified, "I don't recall that one," referring to Lucero. Not an unequivocal denial that Lucero's name was not listed. On Wednesday, December 8, 1971, Lucero was given his probationary review for his entire probationary period. He was rated satisfactory, the highest rating , in all categories (quality and quantity of work, versatility, ability and will- ingness to follow instructions, attitude toward supervisors and fellow employees , attendance , safety and housekeeping, adherence to company's standards of conduct) and Hardy told him he was doing "good work" that she was "complete- ly satisfied" and that Lucero would continue on in the Company's employ. Hardy, who I have found to be an untrustworthy witness, testified that at this time she spoke to Lucero about leaving his work area. The ratings on the review do not indicate any concern by Hardy about this matter. She was unable to explain why the review form itself did not reflect this alleged misconduct. It is undisputed that the company was of the opinion that Lucero's work was, to quote Hardy, "real good." It is also undisputed that Frank Smalley the supervisor over Hardy on December 9 the day after Lucero's review and the day before his discharge told Lucero "you're doing very good work" and that Smalley previously had praised Lucero's work. On Friday, December 10, Lucero was discharged at the end of the workday. His testimony concerning the manner in which he was discharged and told of his discharge in undenied. John Cook, supervisor over the manufacturing section, at the end of work told Lucero that Hardy, Smalley (Hardy's boss) and himself had decided to fire him. Lucero asked for the reason he was being discharged. Cook an- swered, "I'm sorry I can't tell you." Lucero again asked for the reason and Cook again refused to give him the reason. At this point Lucero left Cook and went over to Hardy's desk where she was sitting and asked Hardy for the reason that he was being discharged. Hardy lowered her head and just ignored the question. Lucero asked the question two or three times. Hardy, head lowered, remained mute. Lucero left Hardy and walked over to Smalley's desk and asked Smalley the reason for his discharge. Smalley refused to give him the reason stating he could not tell him. The next morn- ing, December 11, Lucero called the company and spoke to personnel administrator Al Sturr and asked him what the reason was for his discharge. Stun stated that Smalley said he was not doing a good job. Lucero denied this and pointed out to Sturr that Smalley the day before his discharge had told him he was doing good work. Sturr replied he would look into the matter. Lucero never heard anything further from Sturr or anyone from the Company about the reason for his discharge. To recapitulate, the Company regarded Lucero as a good employee; on December 8 he passed his final review as a probationary employee and was informed in effect that he was being retained as a temporary employee; on December 9 he was complimented about his work by an upper echelon supervisor, and on December 10 he was abruptly discharged with the officials of the Company refusing to tell him the reason for his discharge. The foregoing evidence viewed in the context of Respondent's hostility to the Union, its knowledge that Lucero was sympathetic toward the Union, and its instructions early in December to its supervisors to watch Lucero and other named employees because they were prounion, establish a strong prima facie case that Lucero's discharge was motivated by his prounion senti- ment and support for the Union. Hence, it became incum- bent upon the Respondent, if it would avoid that result, to come forward with a valid explanation for its conduct. The real reason lay exclusively within its knowledge. N.L.R.B. v. Miller Redwood Company, 407 F.2d 1366, 1370 (C.A. 9, 1969). Jean Hardy was the sole witness offered by Respondent to shed light on its reasons for discharging Steve Lucero. Her testimony must however be viewed in the context of the nature of Lucero's job. He was an operator on the wave solder machine which solders the various components on the printed circuit boards. It is clear from Hardy's testimony and from the record as a whole that the wave solder ma- chine did not operate continually. It might run all day, or for only 2, 4, or 6 hours a day. When it was not operating Lucero helped other employees and when work became available on the machine he would be called back to the machine. Hardy testified that she made the decision to fire Lucero and that he was discharged "because he would not stay on the job"-"he just was not reliable and every time someone came up to the wave solder machine, I had to send people out to look for him or I had to go look for him. He just would not you know-he was a real good worker when he was there , but it was just keeping him there." When asked how frequently she had this problem with Lucero, Hardy testified she did not remember the number of times but "it was constant" that on the average she had to hunt for him once or twice a week. When asked how frequently she had to talk to Lucero about being away an excessive time from the work area , she was unable to recall, but then testified it seemed like she spoke to him once a week during the entire 2-1/2-month period he worked. Lucero at the hearing in general denied these accusations. Hardy testified that other members of supervision including her boss Frank Smalley were aware of the problem she was having with Lucero and that in fact other supervisors including Second Level Super- visors Smalley and Harrison would bawl her out because they wanted to use the wave solder machine and Lucero was not there. When testifying as to the frequency with which Lucero was away from the wave solder machine, the diffi- culty in finding him when she needed a machine operator, and the frequency with which she spoke to Lucero about not being at the machine or not telling her where he was, I got the impression from Hardy's demeanor that she was not telling the truth. In addition, her testimony was general, vague, and wholly uncorroborated even where corrobora- GTE LENKURT, INCORPORATED lion was available . Also, Hardy's testimony is not consistent with a written statement which she made out at the time of Lucero's termination explaining the reasons for the termina- tion . She testified at the hearing that she spoke to Lucero about leaving his work station each week during his entire period under her supervision . In her earlier written state- ment Hardy in explaining her reason for firing Lucero said that while working under her supervision "from the period of September 30 to November 15 Steve Lucero . . . did not wander from his work area without authorization from his supervisor." (Emphasis supplied .) Hardy, at the hearing, as described above, testified that Lucero was constantly away from his work area without permission for excessive peri- ods, on the average of once or twice a week . At one point Hardy testified that "everytime" he was needed at the ma- chine he could not be located . In her written statement however , Hardy could only describe two occasions on which Lucero was away without permission from his work station . This is equally true of her testimony on this matter given at the hearing . When all of Hardy's generalizations are weeded out all that is left is that Lucero was away from his position two or three times without permission. I will now describe these three occasions. (1) Sometime in late November or early December 1971 prior to Lucero 's review Foreman Smalley directed Lucero to go to the back of the plant and help other employees put together and distribute office desks. Hardy who apparently was looking for Lucero asked him where he had been. Luce- ro told her that he was helping with the desks as instructed by Smalley and Hardy told him if he had to leave the area and she was not around he should leave a note saying where he had gone. (2) Steve Lucero , according to his undenied testimony corroborated by Richard Lucero, during the normal course of his job as wave solder operator was responsible for taking care of and straightening out the feron barrels located in the back of the plant. Feron is a cleaner used to clean the printed circuit boards . On December 1 Lucero left his work area for about 1-1/2 hours during which time he was straightening out the feron barrels . He did not notify Hardy when he had gone and Hardy who apparently needed Luce- ro to operate the wave solder machine could not find him. Upon his return Lucero was asked by Hardy where he had gone and he told her that he had been moving barrels and had gone to the bathroom . Hardy told Lucero if she was not in the area when he left to make sure and leave her a note. I do not credit Hardy's testimony that on December 1 Luce- ro did not tell her he had been moving barrels or that at that time she told Lucero, "I just couldn't take it everytime I turned my back it seemed like he would take off . I told him I just couldn't put up with it." Clearly if Lucero had told Hardy he was not working but loafing in the rest room for the entire 1-1/2 hours and if in fact Hardy had expressed herself as she claims the matter would not have ended. Hardy would have either issued Lucero a written reprimand (she testified she orally warned him previously) which she did not , or at the very least express her concern over this misconduct at the time she reviewed him on December 8. Not only does Hardy's testimony on its face not ring true, but as noted earlier her demeanor when she gave this testi- mony was not impressive. 975 (3) On either December 8 or 9 Lucero again was away from his work station for about one-half hour. The event could not have been viewed with great importance by either Lucero or Hardy as both only vaguely remembered what took place. Hardy testified that on December 9 someone wanted to run some work through the wave solder machine and when Hardy went over to the machine she found that Lucero was not there and went and found him. Hardy was then asked "what did you do then" and answered "Usually I would talk to him about it." Counsel then asked, "can you recall what you did after you found him," and Hardy an- swered, "no I don't." She testified that Lucero explained that he left because somebody came by "with a desk or something" and he decided to help them. Lucero testified that he was away from his work station a couple of days before he was terminated and that he was working some- place else. When asked what Hardy said to him in that conversation Lucero answered , "I can 't remember. She just asked me where I was, I guess, and I told her where I was working." In short, Lucero was absent from his work station three times without getting permission from Hardy. Once during the middle of November when he left with the permission of Foreman Smalley; once on December 1 to perform his regular work of moving barrels of feron; and, finally, on either December 8 or 9 to help another employee. There is no credible evidence that on any of these occasions Hardy threatened him with discipline. Nothing was mentioned about this matter on December 8 when Hardy reviewed Lucero's work performance and informed him he would be retained as a permanent employee. Finally, with respect to Lucero's absences from his work area on December 8 or 9 Hardy could not even remember what she said to him. In this connection I note that Hardy did not testify that the specific incident that caused her to decide on December 10 to fire Lucero was the December 9 absence. Her testimony in fact establishes that this was not the triggering incident. Based on the foregoing I find that on the few occasions Lucero was absent from his work station without the per- mission of Hardy that Hardy did not regard the occurrences separately or together as acts of misconduct serious enough to warrant disciplinary action, and I further find that the reason advanced by Hardy at the hearing for the discharge of Lucero, continually leaving his work station without per- mission, is completely lacking in substance and is not the real reason for the discharge. That it is not the real reason for the discharge is further established by the unexplained refusal of the Respondent to explain to Lucero that this was in fact the reason for his discharge. Smalley and Cook did not explain their refusal to tell Lucero the reason for his discharge. The testimony of Hardy, who made the decision to discharge, is incredible. She testified, "I did not know who (he?) was discharged when he came to my desk. He was shaking and crying, and it upset me." Moreover, the expla- nation finally given to Lucero by Personnel Administrator Stun, that he had been fired because he "wasn't doing a good job," is patently false and is another indication that the Company itself could not even settle on a reason to justify the discharge. This conduct itself lends support to the inference that Lucero's union support was the real reason for his discharge. See A. J. Krajewski Manufacturing Co., 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc. v. N.L.R.B., 413 F.2d 673, fn. 2 (1969), where the First Circuit Court of Appeals in a similar situation stated, "re- fusal by the employer to give a reason for firing an employee may itself be a reason for inferring a discriminatory dis- charge." In sum, for all of the reasons set out above, including the Company's hostility toward the Union, its knowledge of Lucero's union sympathies, its refusal to tell Lucero why he was fired, and the lack of satisfactory reasons for his dis- missal, coming as it did 2 days after he had been informed he had successfully passed his probationary review and shortly after the supervisors were instructed to watch Luce- ro because he was prounion, I am of the opinion, and find, that Lucero's discharge on December 10, 1971, was motivat- ed by his union sympathies and activities and by a desire to discourage union sympathies and activities by employees, in violation of Section 8(a)(3) and (1) of the Act. p. The refusal to hire Virginia Maes The General Counsel contends that Respondent since August 1971 has refused to employ applicant Virginia Maes because it suspected her of being a union sympathizer. Until about January 1, 1972, applicants interested in ap- plying for jobs with Respondent went to the State of New Mexico office of employment in Albuquerque where they filled out a job application and took a general aptitude test which tested their aptitude generally to perform the work of an electronic assembler . After about January 1, 1972, appli- cants came directly to the company's plant to apply for work . In charge of hiring for the Respondent is Albert Stun, its personnel administrator . Employed in Sturr's depart- ment was Donna Graham, classified as a senior clerk, who, on behalf of the Company, spoke to employees who were applying for work. Also involved in the events relating to Maes' case is Nada Holmes, who at the time of the hearing was a plant forewoman in charge of all the production workers on second shift . Holmes had previously been em- ployed by the Company at its San Carlos plant for about 24 years . She was a supervisor for the last 17 years . Early in 1970, while still at San Carlos , Holmes was assigned various tasks connected with setting up the new plant in Albuquer- que. Then in June 1971 she was sent to Albuquerque by the Company to oversee the training of prospective employees at the Technical Vocational Institute (TVI). From June 28 until October 1971 she was the sole company representative at TVI where she observed the training of applicants , helped in training them , rated them, and was the person who told them whether or not they had been hired by the Company. I find that , under all of the circumstances , it is a fair infer- ence that Holmes was privy to the Company's hiring poli- cies. Maes was employed by Respondent at its San Carlos plant as an hourly production employee from December 1966 until July 1971 when she voluntarily quit her employ- ment because she was moving to Albuquerque. She told her foreman, Ray Rosa, on or about July 10, 1971, that she was quitting and the reason . In addition, she asked how he would rate her work record if another employer inquired. Rosa stated that it was "quite satisfactory ." Maes at the time she quit her employment at San Carlos was a member of the Union pursuant to the standard union-security clause contained in the Company' s contract with the Union, which required membership in the Union after 30 days of employ- ment. Maes arrived in Albuquerque in August 1971, went to the State of New Mexico employment office where she filled out a job application for the Company, and took the general aptitude test, a 3-hour examination . The gentleman who gave the test told her that he worked for the Respondent and that because there was a number of applicants that it would be about 60 days before Maes heard from the Company about her application . The job application filled out by Maes asks for the applicant's employment history and spe- cifically asks whether or not the applicant had been em- ployed by the Company. I find that anyone looking at Maes' completed application would readily observe that she was a former hourly production employee at the Company's San Carlos plant. In late August or early September 1971, after she had filled out the job application and taken the aptitude test, Maes telephoned Nada Holmes . Maes did not know Holmes personally ; she had not worked under her, but knew that she had been a supervisor at the San Carlos plant who had transferred to Albuquerque. Maes introduced her- self to Holmes and asked about her chances of getting hired by the Company. Holmes stated that Maes had "no chance" of being hired . Maes asked for an explanation . Holmes replied that she was not able to give her the reason but that Maes would have to speak with Al Sturr since he was the person who did the hiring. That same day, Maes phoned Sturr and asked about her chances of getting hired. Sturr informed her that he was going to look up her application and test materials and that when he did this he would notify her whether or not to come to the plant. When Maes did not hear anything from Sturr she phoned the Company's em- ployment office and stated that she wanted to make an appointment to come to the plant and talk with Sturr, and was told she would be called right back and told whether or not such an appointment could be arranged. No one ever returned this call. Then when over 60 days had gone by and she had not heard from the Company about her application , Maes late in October 1971 went to the employment office located at the Company and spoke to Donna Graham , the senior clerk who spoke to job applicants. She informed Graham she had filled out an employment application and had taken the aptitude test and had not heard a thing. Graham stated she would check on her papers, left, and when she returned told Maes that she could not locate her papers but that as soon as she did that Maes would be called by the Company. However, Maes heard nothing from the Company which led her to believe they had made up their minds not to hire her and she made no further effort to contact the Company at that time. However, late in January or early February 1972, Maes , still unable to find a job in the Albuquerque area, made another effort to find out the status of her application. She went to the Company's employment office and again spoke to Donna Graham. Graham told her the company was hiring employees, stated that perhaps her application had been lost and told Maes to fill out another employment application . Maes at this time filled out another application, GTE LENKURT, INCORPORATED gave it to Donna Graham and was told by Graham that "they would call her." Maes was never contacted by the company. The foregoing facts regarding Maes ' employment at San Carlos and her efforts to obtain employment at the Company's Albuquerque plant are based on the testimony of Maes whose demeanor gave me the impression that she was making a sincere effort to accurately present the facts as they took place . Her testimony is undenied in all but two respects , namely , Holmes testified that when Maes phoned her about employment that she did not state unequivocally that Maes had no chance of employment but only told her she would have to talk to Sturr about the matter . I find that Maes ' testimony is the more trustworthy of the two. Also, Sturr denied that Maes spoke to him over the phone. As discussed later I do not credit Sturr 's denial. To sum up , Maes , an employee with 5 years ' experience at Respondent 's San Carlos plant , in August 1971 filed an application for employment at the Company's Albuquerque plant . In late August or early September she questioned Supervisor Holmes and Personnel Administrator Sturr about employment at the new plant and made it plain that she had filed an application for employment . Hearing noth- ing about her application Maes tried to arrange a meeting with Sturr but her call was not returned. Then in late Octo- ber, still having heard nothing, she was told by Graham, the senior clerk responsible for speaking to job applicants, that her application could not be located but she would be con- taced by the Company when it was located. Maes never heard from the Company, so in late January or early Febru- ary 1972 again questioned Graham about the matter who stated she was unable to find Maes ' application and had her fill out a new one, once again stating that the Company would contact Maes . Once again the Company did not con- tact Maes. In short , for all her efforts , over a 6-month peri- od, to get a job at the new plant , the only response other than silence or evasion was Holmes' unequivocal, unex- plained statement that Maes had no chance of being em- ployed. By itself this bizarre set of events does not make sense . I must however view these circumstances in the fol- lowing context: Respondent's hostility toward the Union; its instructions to supervisors to determine the union sym- pathies of employees for the purpose of discrimination against such employee; its instructions to supervisors to find out the union sympathies of job applicants by asking them about their past employer for if it was a union shop presum- ably the applicant would be sympathetic to the Union; and the fact that from the face of Maes ' application Respondent knew that Maes previously had worked at the San Carlos plant represented by the Union, and was a member of the Union by virtue of the contractual union-security clause. The foregoing establishes prima facie that Respondent's re- fusal to consider Maes for employment or employ Maes was attributable to its belief that she was prounion . Hence, it became incumbent upon Respondent , if it would avoid that result , to come forward with a valid explanation for its conduct. The real reason lay exclusively within its knowl- edge. N.L.R.B. v. Miller Redwood Company, supra at 1370. Respondent in support of its case -in-chief called only one witness, Al Sturr, who in effect said the Company never knew that Maes had applied for a job. Specifically, he testi- 977 fied he never spoke to Maes about her application for em- ployment and further testified that the name of Virginia Maes was brought to his attention for the first time in March 1972 when the Company's attorney asked him about Maes at which time he checked the Company's computer card system which indicated that it had no application on file from Maes. Respondent apparently takes the position that one of two things happened: (1) Maes has concocted a major part of her story, or (2) Maes'job applications were lost during the normal course of business. I have found, however, that Maes was a completely credi- ble witness . Sturr was not. Already discussed is Sturr 's unre- liability when he testified about his knowledge of whether the supervisors were determining how employees under their supervision felt about the Union and his lack of candor when he denied telling supervisors to determine the union sympathies of job applicants. His demeanor was also not impressive when he testified on the issue of why the Compa- ny did not consider Maes' application. This lack of candor is illustrated by his testimony that the first time the name of Virginia Maes came to his attention was some time in March 1972 when the Company's attorney asked him to check to see whether or not she filed an application at which time , as described above, he checked and found that the records of the Company indicated Maes had not. On Janu- ary 6, 1972, the unfair labor practice charge by the Union against the Company in Case 28-CA-2506 was filed with the Board and served on the Company. The charge in its first full paragraph names about 18 employees as having been discharged because of their union activities and sym- pathies and in a separate paragraph states, "Since May 1971 and continuing to date the above named employer has re- fused, and continues to refuse to hire Virginia Maes, and others, because of their association with the [Union]." That Sturr the man in charge of the hiring of employees was not informed of this charge for about 2 months is absurd. Out of sheer curiosity the people in the Company who received this charge would have asked Sturr about the person named, Virginia Maes, whom the Company was supposed to have refused to hire. In fact, the Company immediately upon the filing of this charge notified the production supervisors about the filing of the charge and the names of the employ- ees whom the Union claimed had been discriminatonly terminated. As was the case with his claim of lack of knowl- edge that production supervisors were determining whether employees were sympathetic to the Union, Sturr's claim that he was kept in the dark about the Maes charge for 2 months does not ring true. In short, I discredit Sturr's denial that Maes did not, as she testified, speak with him and further find that Sturr's explanation for the Respondent's failure to act on Maes' application for employment is completely lacking in substance. I specifically find Respondent did in fact receive Maes' applications. In making this finding I have noted Sturr's testimony that when applications were being filed with the state employment office there were times when applications were lost in transit but that since January 1, 1972, when applications were filed directly with the Company's employment office, this is the first time that it has ever come to his attention of any application ever being lost. This is not entirely accurate for, as discussed earlier in connection with the Respondent's refusal to em- 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ploy Edward Brittenham, Sturr testified that the Company never received his initial application mailed to the Company in May 1972. I have found that Respondent did in fact receive this application and ignored the application because of Brittenham's union sympathies. Finally, I note that the Company failed to call senior clerk Donna Graham whom Maes spoke to on two occasions and to whom Maes gave her second application. Respondent did not explain why Graham was not called to corroborate Stun. Under the circumstances I presume that Graham's testimony would have been unfavorable to the Respondent. While any ad- verse inference drawn from the failure to have Graham testify was not crucial to the General Counsel's case. I find that the absence of this witness from Respondent's case in chief weighs heavily in favor of the General Counsel's case. For it is a well established rule "that failure to produce evidence which under the circumstances would be expected, gives rise to a presumption against the party failing to pro- duce it." P. R. Mallory & Co., Inc. v. N.L.R.B., 400 F.2d 956,959 (C.A. 7, 1968); United Automobile, Aerospace Work- ers v. N.L.R.B. [Gyrodyne Co.], 459 F.2d 1329 (C.A.D.C., 1972). In view of the foregoing, I conclude that the Respondent did not consider Maes for employment or employ her be- cause of her union membership. t Accordingly, I find that Respondent in violation of Section 8(aX3) and (1) of the Act discriminated in regard to the hire of Virginia Maes when it failed to give nondiscriminatory consideration to her ap- plication of August 1971. In reaching this conclusion I have considered Sturr's testimony that based upon the fact that in March 1972, after learning that Maes had claimed she had applied for a job, he checked with the San Carlos plant and learned that she had a record of absenteeism and that because he needed dependable and reliable employees would not have hired her even if she had applied for a job. In short, even though he refused for unlawful reasons to consider Maes' application for employment, Sturr now says that if he had considered it on its merits he would have turned Maes down based upon legitimate business consid- erations. I cannot accept this. The question of whether Maes would not have been hired for lawful reasons is highly con- jectural, and there is no way to establish that this would clearly have occurred. In these circumstances, I am of the opinion that the Respondent, rather than Maes, must as- sume the risk of any uncertainty. For it is the Respondent, by its unlawful conduct, that created the uncertainty. q. The discharge of Anthony Maez General Counsel contends that Respondent discharged 17 In addition to the factors set out previously there is one other factor which, although not necessary, bolsters the inference that the Company in refusing to consider Maes' application believed that since she worked at San Carlos she would sympathize with the Union. Thus, in December 1971 the Company was having difficulty with certain test equipment received from the San Carlos plant . Senior technologist Alfred Bye, a statutory supervisor, in this connection asked industrial engineer Malloy why they could not bring to Albuquerque the employee from San Carlos who was familiar with the equipment to fix it . Malloy replied there was "a very good reason" why they could not bung the San Carlos employee to Alburquerque Bye stated "oh, yes," and Malloy declared , "yes he's union " Anthony Maez on April 4, 1972, because of his union activi- ties and sympathies. Maez one of the first employees hired by the company began work on August 30, 1971. At the end of this proba- tionary period his supervisor at that time who was "Doc" Morgan rated him satisfactory in every category-the high- est rating-and in the remarks column of the review marked "work good." At the time of his discharge he had been working as an electronic assembler under Jean Hardy for 30 days. Hardy regarding Maez' work testified "he was really good," that she had no problems at all concerning his work, and in fact complimented Maez. In October 1971 Maez signed a union card and attended a union organizational meeting. Thereafter in the plant at breaks and lunch, he spoke to employees in favor of the Union, solicited employees to sign union cards, and showed employees a copy of the Union's contract with the Compa- ny covering the San Carlos plant. Also, he continued to attend union meetings. It is undenied that early during the Union's organizational campaign Maez tried to persuade employee Ken Thompson to attend a union meeting. At a later date, January 1, 1972, Thompson became a first line supervisor, a statutory supervisor. It is also undenied that around the month of March 1972 Maez while discussing the existing benefits of employment at the Company with First Line Supervisor Pablo Mirabal, Jr., a statutory supervisor, told him he thought the employees needed a union. Under these circumstances, including Maez' open and continuous support of the Union and the Respondent's continuous and systematic efforts to learn the employees' attitude towards the Union I find that at all times material the Respondent knew that Maez was actively supporting the Union. Maez was discharged on April 4, 1972. Maez' driver's license was up for renewal. On April 3 he asked his supervi- sor, Hardy, if he could take more time off than the usual half hour for lunch in order to renew his license. Hardy agreed. Respondent's policy in effect since at least January 1, 1972, was that when employees left the plant during working hours including lunch break, they were required to leave their timecard with the guard and upon their return get the card, clock in on the back of it, have the supervisor sign the card, and then return to work. Maez, contrary to this policy, left the plant taking his timecard with him, and when he returned clocked back in and returned to work without having Hardy initial the time card. Maez also failed to follow company procedure in other respects. Maez clocked out on the back of the time card at 11:37 a.m., went to the motor vehicle department, and clocked back in at 12:43 p.m., an elapsed time of 66 minutes. Since lunch break was 30 minutes Maez had missed 36 minutes of work .time, and was only entitled to receive pay for 7 hours and 24 minutes that day. The back of the time card which Maez had punched so indicated. But, in addition to clocking in and out on the back of the timecard, employees are also required by the Company to mark in pencil on the front of the timecard such things as the times they start and stop work, the work they are doing, indicate when they take lunch, indicate if they leave the plant during working hours, and total up the number of actual hours of working time spent that day. Maez failed to mark on the front of the card the fact that he had left the plant during lunch on business, GTE LENKURT, INCORPORATED marked that he only took the usual one half hour for lunch, and marked 8 hours for the total number of hours worked that day . Maez credibly testified that the reason he marked 8 hours rather than the 7 hours and 24 minutes he had actually worked was that at the end of the day he was in a hurry to leave work and "it just completely slipped my mind that I had stayed a little extra for lunch." The next day April 4 just before lunch time Maez was told by Hardy he was discharged. Hardy told him he was dis- charged "for falsifying company records ." Maez asked to see the termination papers which Hardy showed him. This document, which is entitled "Leave of Absence or Separa- tion Notice," stated , among other things , that Maez was discharged for misconduct with the following explanation: On April 3, 1972, punched out for lunch at 11:37 and punched back in at 12:43; 38 minutes over his alloted lunch period. Not only did he neglect to have his time card signed by his supervisor but he also falsified the front of the card by recording his lunch break from 11:35 to 12:05 and showing an eight hour work day when, in fact, he only worked 7 hours 22 minutes. This is in direct violation of Company policy on falsifying reports or records. The form on its face has signature spaces for the supervisors who made the first and second recommendation to dis- charge Maez and these spaces are signed respectively by Frank Smalley and B. L. Zimmerman . The space provided for the Company's industrial relations man is signed by Al Stun. All signatures are dated as of April 4, 1972, and I find were on the document at the time it was shown to Maez shortly before lunch on that date. After reading the above language on the separation notice Maez told Hardy that his action had been a mistake as he was in a hurry at the end of the day and he had just forgot- ten he had stayed out a little late during the lunch break. Hardy stated there was nothing she could do since the sepa- ration notice already had been signed . He then went to see Second Level Supervisors Doc Morgan and Bob Harrison and asked for a second chance as it was the first time he had ever engaged in this type of misconduct. They informed him that it was too late for them to help him inasmuch as the separation notice had already been signed. The company policy on falsification which Maez violated is set out in the Company's handbook for employees and reads : "The following . . . may lead to immediate dis- charge : Falsifying any reports or records including person- nel, absence , sickness, and production records ." [Emphasis supplied.] To sum up , essentially the Company discharged Maez because in the process of leaving and returning to the plant during working hours , ( 1) Maez failed to have his supervisor initial his timecard ; (2) Maez marked on the front of the timecard that he had taken the usual 30-minute lunch break when in fact he had taken a 68-minute break ; and (3) Maez marked on the front of the timecard that he had worked the usual 8-hour day when in fact he had only worked 7 hours and 22 minutes. This conduct violated company policy. And, clearly, the Company has a right to discharge employ- ees for violating company policy. But, in determining whether the Company discharged Maez for the above con- duct I am obligated to look at all of the facts. For the law 979 is well settled that a determination of whether a violation of Section 8(a)(3) of the Act has occurred is not predicated on the presence of valid grounds for discharge, but rather on the presence of evidence showing that the discharge was based, in whole or in part, on union considerations. My review of the record convinces me that the Respondent's assigned reasons for the discharge were wholly pretextual and that it discharged Maez because of his union sympa- thies and activities . In reaching this conclusion I was influ- enced by the following: (1) Respondent's witnesses were unable to produce con- sistent explanations regarding the decision to discharge Maez. It would seem that if the discharge was predicated on bona fide grounds Respondent's witnesses would be able to agree upon the name of the person or persons who made the decision, and would be able to describe with some degree of clarity the manner in which the decision was arrived. They were not able to do this. First Line Supervisor Hardy, who told Maez he was discharged, testified that on the morning of the day of the discharge she took Maez' time card to Foreman Frank Smalley, showed him the card, and said that Smalley made the decision to discharge Maez. Hardy at first testified unequivocably that Smalley made the decision right then while she was in the office with him but later testified "I can't remember if it was that time I was told." Frank Smalley's direct testimony regarding the deci- sion to discharge Maez is now set out in its entirety. Q. Did you make this decision to terminate [Maez], you, yourself personally? A. No. Any decision of this nature is taken up with personnel. Q. Did you take it up with someone in personnel? A. Yes I did. Q. Who? A. I believe it was Mr. Zeleny. Again, I might not be certain about that, but all terminations are taken up through personnel. Q. You think it may have been Mr. Zeleny. A. I feel that it was, yes. Q. Did you make a recommendation to him on the question? A. Yes, I probably did. Upon cross-examination Smalley testified he had absolutely no recollection of his conversations with Hardy or with Zeleny which led up to the discharge of Maez. Regarding his conversation with Zeleny he testified, "I really wouldn't, I couldn't recollect, I couldn't say for sure what [Zeleny] did say. All I can say is, I probably did make a recommendation from the standpoint it was falsification of records...." Regarding whether it was he or Zeleny who made the deci- sion to fire, Smalley testified that in effect he was not sure: "It was probably my decision or again, through the help or through the personnel department." Finally, he testified that Hardy was present when he spoke to Zeleny about Maez. Hardy did not corroborate this, and from her entire testimony on this matter it is quite clear that she attended no such meeting. Not only was the testimony of Hardy and Smalley vague, evasive, and inconsistent, but I got the dis- tinct impression from both of them while testifying that their testimony was contrived, that they were withholding something. Zeleny with great specificity testified about a 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting he had with Smalley , (he did not place Hardy there), on the day of the discharge at which time Smalley told him what Maez had done and recommended termina- tion and Zeleny agreed . Zeleny's demeanor while testifying was not impressive . From the demeanor of the witnesses, the vagueness and evasiveness of the testimony of Hardy and Smalley , Hardy's failure to corroborate Smalley, and, from Smalley 's complete inability to remember virtually anything at all about his discussion with Zeleny , I received the impression that Zeleny played no part at all in the decision to discharge Maez . In this regard I note that Zeleny's signature does not even appear on the separation notice but rather it was Sturr who signed for industrial relations . Where as here Zeleny was allegedly actively in- volved in this termination , and the papers were signed with- in 2 or 3 hours after Zeleny allegedly agreed with Smalley's recommendation , 18 I can not believe that this was a mere oversight . In any event , without deciding who in fact Smal- ley met with , if in fact he consulted anyone , I am convinced that if Maez' discharge was predicated on bona fide grounds Hardy and Smalley would have testified with consistency and clarity on such critical matters as at what point of time the final decision was arrived at, whether Hardy was present at that time , and what was said on that occasion. (2) Respondent deviated from its normal practices in discharging Maez . It is well settled that a departure from an employer's normal practice when terminating a union adherent strongly indicates that the discharge was illegally motivated . See, e.g., Aeronca Manufacturing Co. v. N. L.R.B., 385 F.2d 724 (C.A. 9, 1967). Personnel Manager Zeleny testified that before disciplining an employee for the "falsi- fication of work records" the Company requires "a substan- tial and thorough investigation beforehand ." Foreman Smalley testified that it would have been normal procedure for Hardy upon noticing the alleged falsification on Maez' timecard to first discuss the matter with Maez before bring- ing it to Smalley's attention . And, the Company' s controller Tony Bertoglio testified that when his department notices a difference between the clock -in and -out time on the back of a timecard with the time marked by the employee, this indicates a case of possible falsification and that the time- card is sent back to the department 's supervisor , and that the policy is for the supervisor to investigate the matter. Here it is undisputed that no investigation was conducted. The first time Maez was confronted about this matter was when Hardy informed him he had been discharged for fal- sifying his timecard . See United States Rubber Co. v. N.L.R.B., 384 F .2d 660, 662-663 (C.A. 5, 1968) ("Perhaps most damning is the fact that both [employees] were sum- marily discharged after reports of their misconduct .. . without being given any opportunity to explain or give their versions of the incidents"). (3) Maez' misconduct did not warrant the drastic penalty of discharge . Maez was one of the Company's most senior employees , having started work on August 30, 1971, the day the plant began production. He was regarded by the Com- pany as a good employee . His misconduct, a first offense, is At the time the separation notice was shown to Maez at about noontime all three company officials had affixed their signature to the separation notice. caused no harm to the Company. And, there is no conten- tion the Company believed when it fired Maez that he had made the entries on his timecard with an intent to falsify. As Smalley testified, "I don't know whether it was his intent to falsify or not and I don't know whether it was a mistake on his part, I don't have any idea." Nor is there a scintilla of evidence which would have supported such a belief. Nor did the Company believe that Maez made the entries on the time card with an intent to benefit monetarily. For, as Plant Controller Bertoglio testified, the Company's practice as announced to the employees was that the timekeepers who made up the payroll check the front of the employee's time- card against the clocked-in portion. In short, as in fact Personnel Administrator Sturr specifically testified, there was no advantage for Maez to falsify the front of his time- card. But, more important, there is no evidence that the Company was under the impression that Maez did this be- cause he believed that he would secure some advantage. Under the circumstance, I am unable to find that Maez engaged in such aggravated and gross misconduct as to warrant such drastic and precipitate action by the Company and find that the discharge penalty imposed indicates that the Company was motivated by unlawful considerations. See Betts Baking Co., Inc. v. N.L.R.B., 380 F.2d 199, 205 (C.A. 10, 1967) ("it is fair to weigh all the facts, including not only the antiunion animus of the company, but the seriousness of the offense, for if the offense be minor, it is reasonable to infer that the severity of the penalty had its source in some conduct beyond the offense"). (4) Respondent in applying its rule against falsification of records treated Maez differently than other employees. It is undisputed that Respondent regards employees who punch other employees' timecards as having violated its rule against falsifying records. Yet Second Level Supervisor Harrison in November 1971 simply gave employee Richard Thompson an oral reprimand when he observed him punch out the timecards of two other employees while they went to the coat rack to get their coats. Even more to the point is the fact that on December 28, 1971, employee Benally, like Maez, punched in and out during working hours to get his driver's license renewed. Benally filled out the front of his timecard in the same manner that Maez did on April 3, 1972. Benally made the same errors of commission and omission . Yet Benally was not discharged. His supervisor the next day corrected the mistakes, initialed the card, and did not even reprimand Benally, but told him he should watch his "time." There was no explanation advanced at the hearing for the Company's disparate treatment of Maez. If Zeleny's testimony was correct then surely both Thompson as well as Benally should have been fired as well as Maez. Zeleny testified that in enforcing the Company's rule on falsification, the Company was not concerned with the in- tent of the offender, explaining, "if you ask the individual, did you mean it, he is obviously going to say no." The reason that Benally and Thompson were not fired is that Zeleny is not telling the truth. For, as Personnel Administra- tor Stun testified: Q. Is it the policy of the company if an employee makes a mistake through inadvertence on a time card you fire him or must you find actual intent to falsify. A. I would say we would have to have the intent to falsify. GTE LENKURT, INCORPORATED Sturr's testimony is corroborated by Company Controller Bertoglio who testified that when his department finds a discrepancy on a timecard like the one Maez made, it has the department supervisor investigate the matter. Hardly consistent with Zeleny's "if you ask the individual, did you mean it, he is obviously going to say no." That in fact Zeleny was not being candid when he testified that he was not concerned with the intent of an individual who is accused of falsification is revealed by his later testimony where he admitted that before a discharge would bejustified in a case such as Maez there would have to be an indication that the offender falsified for the purpose of "personnel gain." Based on the contradictions within Zeleny's testimony, the testimony of Sturr and Bertoglio, the manner in which Re- spondent has treated other employees other than Maez at the Albuquerque plant who have been accused of falsifica- tion, I am convinced that Respondent in applying its rule against falsification to Maez deviated from its normal prac- tice of considering whether or not the falsification was done "willfully" or "intentionally." That, Respondent realizes and condones the fact that employees at times inadvertently make errors in entering their time worked on the front of their time cards is indicated by the undenied testimony of employees Benally and Bishop. Benally on January 31, 1972, marked an additional one-half hour of working time on the front of his card which was never called to his atten- tion, it appears to have either been overlooked or simply ignored by personnel. And, during April 1972 after Maez had been discharged second level supervisor Morgan told employee Bishop that the mistake Maez had made on his time card was one that "we have all made at one time." To sum up, Respondent in discharging Maez treated him differently than other employees in applying its rule against falsification, deviated from its normal procedure of con- ducting an investigation, imposed a punishment which was way out of proportion to the misconduct, and the supervi- sors who were supposedly privy to the decision to discharge were unable to testify without contradiction or with any degree of clarity about such critical matters as the manner in which the decision to discharge was arrived at and who made the decision. These circumstances when considered with Maez' seniority, his record as a good employee, Respondent's hostility toward the Union and its knowledge that Maez was a union sympathizer, establish that Respon- dent discharged Anthony Maez on April 4, 1972, because of his union activities and sympathies. Accordingly, I find by discharging Maez the Respondent violated Section 8(a)(1) and (3) of the Act. r. The discharge of Steve Maldonado Maldonado began work for the Company on about Au- gust 31, 1971, and was discharged on January 5, 1972. The General Counsel alleges that he was discharged because of his union activities. It is admitted Maldonado was one of the employees on the prounion list shown to the supervisors at the start of December 1971 with instructions to watch them. Second Level Supervisor Beall admitted that he turned Maldonado's name into the Company as being prounion. 981 The only misconduct which Maldonado engaged in while employed by the Company, established on the record, fol- lows. He let his hair grow to a length which violated the Company's good grooming rules for male employees and was reprimanded by Supervisor Beall for this conduct. There is no evidence that in applying this rule toward Val- donado that the Company treated him any different than other male employees. Supervisor Blackstone received on one occasion a report that Maldonado had engaged in a verbal battle or threatened another employee, but after checking the matter out both Blackstone and Beall could not find any substance to the accusation. Also, on another occasion Blackstone was informed by another supervisor, Gary Zender, that Maldonado was insubordinate to him, because he told this supervisor, "the way you made supervi- sor was you kissed a lot of ass." Zender felt this was insubor- dination. Blackstone gave Maldonado a written reprimand for saying this to a supervisor. And, sometime in November or early December 1971, Blackstone asked Maldonado to be a little more polite around the female employees who worked in the department. This is the extent of the alleged misconduct attributable to Maldonado, and of the evidence that the company believed that he was engaged in acts of misconduct. I realize that Alfred Sturr, the company's per- sonnel administrator, testified that Beall came to him and told him Maldonado was "threatening some of the women employees" in the department. I reject this testimony. Beall testified he discussed Maldonado with Sturr one time and that was about the reprimand for long hair. There is no contention that Blackstone or Beall were ever told that Mal- donado had gotten into an altercation with more than one female in the department. Sturr as discussed earlier in this decision was generally an unimpressive witness. His demea- nor when he testified about Maldonado's discharge was unimpressive. Also, Sturr denied he knew that Maldonado was prounion despite the fact that virtually every one of the company's supervisors had been put on notice that Maldo- nado was prounion by virtue of the fact that his name was included in the list of prounion employees shown by the Company to the supervisors. Sturr's denial is incredible. Regarding Maldonado's work, his undenied testimony is that at the time he received his 90-day employee probation- ary review, about 2 weeks before his discharge, he was told by his supervisor that he was going to be kept on as a permanent employee and that he was doing good work and to just keep up the good work. Blackstone, who was his supervisor, immediately prior to Maldonado's discharge testified that although at first Maldonado's work for him was not good that at the time he was fired he had started "doing well." In short, I find that the evidence establishes that Maldonado was a satisfactory employee and that the Respondent had no cause to regard him as anything less than satisfactory. Respondent, however, because of Maldonado's union sympathies and activities, was actively trying to find a rea- son or reasons to discharge him. Second Level Supervisor Nada Holmes told Blackstone "to try to get [Maldonado] on any little thing and give him a write up because three write ups meant a discharge." Beall once told Blackstone that Blackstone was the only one who could get Maldonado mad, that he should make him lose his temper and become 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insubordinate to Blackstone so in that way they could get him discharged . And, once Moldonado 's car broke down on the way to work and Blackstone observed him walk- ing along the side of the road to the plant, so Blackstone stopped his car and gave him a ride to work . Later Beall told Blackstone that he should not give Maldonado a ride to work for the reason that if Maldonado was tardy they could "get him" for tardiness . The foregoing is based upon the credible testimony of Blackstone whose demeanor when he testified was impressive . I felt that he was making a sincere effort to accurately recollect and express what was said to him. His testimony was undenied in all but one respect, namely the remark he attributes to Nada Holmes whose testimony I reject insofar as it conflicts with Blackstone's. Indeed Beall admitted that he in fact told Blackstone not to give Maldonado a ride to work in order to make him late so that they could write him up and terminate him. When asked why he told Blackstone to do this , Beall testified, "Maldonado had passed the 90 day probationary period and he had started giving us trouble . I wanted Maldonado out of there . I think we had crutched Maldonado along as far as we possibly could . I tried to make him a good employ- ee and teach him something and so had Blackstone, but I don't think I said that as an order or a threat or anything like that." There is not one iota of evidence to support the picture that Beall paints of Maldonado as an employee. Beall was unable to give one specific example to support this testimony . He could only say that Maldonado was a "very marginal employee ," that he liked to talk too much , but that was it . Beall finally , when pressed to give an illustration demonstrating that Maldonado was an unsatisfactory em- ployee , testified , "all I can actually say was , it was a gut level feeling that I had about Maldonado ." Based on the record as a whole I find that this "gut level feeling" was based on Beall's knowledge of Maldonado 's union activities and fur- ther find that Beall's and Holmes ' instructions given to Blackstone were motivated by Maldonado's union activi- ties. The events leading up to and surrounding the discharge of Maldonado are as follows . Maldonado in November 1970 was convicted of grand theft , a felony , and given a I-year suspended jail sentence and placed on probation for 3 years and fined $250. Respondent's employment applica- tion filled out by Maldonado on July 13 , 1971, asks "have you ever been convicted of charges , other than minor traffic violations" and asks for an explanation if the answer is "yes." The application states that any false answer on the application will be sufficient grounds to discharge the em- ployee . Also the Company's employee handbook states that falsification of any personnel records may be grounds for immediate discharge . Maldonado falsified his employment application . He did not indicate that he had been convicted for grand theft less than 1 year before. There is no evidence that Respondent had any knowledge of Maldonado 's criminal record or knew he had falsified his application at any time prior to his union activity . However, apparently sometime late in December 1971, an employee informed First Line Supervisor Blackstone that Maldonado had been in trouble or made trouble in California (where he was convicted ), and had a police record. Blackstone passed this information along to Sturr . Sturr checked Maldonado's file and found nothing in his file to indicate any such thing. Stuff did not question Maldonado about the matter but proceeded to retain a California detective or credit agency used previously by the Company, and asked them to investi- gate the matter . On about January 5, 1972, Sturr received notification from this agency of Maldonado 's criminal con- viction and fired him the same day , January 5 , 1972. Maldo- nado was called into Sturr 's office and , in the presence of Blackstone , was informed , in substance , that he was dis- charged because he had falsified his employment applica- tion by not indicating he had been convicted for the grand theft offense . Sturr during the exit interview asked Maldo- nado if he had ever read the portion of the employment application dealing with convictions and that the falsifica- tion of the application was grounds for discharge . Maldona- do said he had not read those sections . Sturr asked him if he had been convicted of anything or was on parole for any offense . Maldonado denied this. Stun started to read from the report submitted by the detective agency , whereupon Maldonado admitted to having been convicted of the grand theft offense at which point Sturr notified him of his dis- charge . The foregoing (what took place during the exit inter- view) is based on the testimony of Blackstone and Sturr. I have rejected the testimony of Maldonado whenever it con- flicts with the testimony of others . He did not impress me as being a trustworthy witness. To sum up , Respondent , hostile toward the Union, had notified its supervisors that employee Maldonado, among others , was a union adherent and that the supervisors should watch for a reason to discharge him. Following these instructions Respondent 's supervisors waited for a good ex- cuse to discharge Maldonado . When an employee informed the Company about his problems with the law in California the Respondent looking for an excuse to fire Maldonado made no effort to question him, instead hired a detective agency which uncovered the fact that Maldonado had falsi- fied his employment application by not informing the Com- pany he had recently been convicted of grand theft. Maldonado was immediately discharged . In short, Respon- dent welcomed an opportunity to fire Maldonado because of his union activities and he gave them the opportunity. I reach the conclusion that the discharge was not unlaw- ful. I have been guided by the Board 's decision in P. G. Berland Paint City, Inc., 199 NLRB No. 145, and Klate Holt Company, 161 NLRB 1606, 1612 ; accord : Talladgea Cotton Factory, Inc., 106 NLRB 295, 298-299 (case of Harold Shif- lett). I am motivated by several factors, primarily that the misconduct of Maldonado was serious and substantial, that the Company's printed rules state that it is a dischargeable offense , that the Respondent in its employment application clearly states that falsification is sufficient grounds for im- mediate discharge , and that there is no showing of disparate treatment . The Company welcomed , and was looking for, an excuse to discharge Maldonado , and the manner in which it documented Maldonado 's misconduct reveals its awareness that the legality of the discharge was open to question , but on balance I conclude that Maldonado's ob- jectionable conduct caused his discharge, and would have done so in the absence of any union activity . Accordingly, I shall recommend that the consolidated complaint be dis- missed with respect to the allegation that the Respondent GTE LENKURT, INCORPORATED discriminatorily discharged Maldonado. s. The discharge of Jacob Martinez Martinez began work for the company on October 18, 1971, and was discharged January 14, 1972. The General Counsel urges that he was discharged because of his union activities. Martinez commencing in the month of November 1971 and, continuously up until his discharge, during lunch in the Company's cafeteria openly expressed the opinion to other employees that he thought the Union was good and the employees should favor it if only in order to get better wages . He also had with him union literature and a copy of the contract the Union had with the Company covering the San Carlos employees. On December 16, 1971, and then again on January 6, 1972, he attended union organizational meetings with other employees. He signed a card authoriz- ing the Union to represent him at the meeting of December 16. Present at the meetings of December 16 and January 6 was Nick Pavlakovich who on January 6, 1972, was promot- ed from his job of an employee in assembly to the position of first line supervisor, a statutory supervisor. As detailed later in this Decision Pavlakovich on January 11, 1972, informed Union Representative Orville Tate, Jr., that at a meeting of supervisors they were told by a representative of Sheridan that Martinez was prounion. Under all of the cir- cumstances , including Respondent's systematic and exten- sive interrogation and policy of having its supervisors determine the union sympathies of employees, I find that as early as the first part of December 1971 Respondent knew that Martinez was a union adherent. That the Company's supervisors who had been instructed to determine the union sentiments of the employees were in an excellent position to overhear employees who openly expressed their support for the Union in the plant is demonstrated by the testimony of first line supervisor Bennett. To quote Bennett, "You know you can't work there without hearing. You don't shut your hearing aids off." He specifically testified he overheard em- ployees talking about the Union in the plant and in particu- lar in the cafeteria and paid attention to such conversations. He further testified that Respondent's other supervisors also paid attention to such conversations; they told Bennett they had done so. Martinez, who began working for the Company on Octo- ber 18, 1971, spent virtually all of the time during his em- ployment doing what is known as untaping boards, removing the tape placed on the boards to protect certain areas from being soldered. The job is very monotonous and one of the least desirable jobs in the plant. The Company has a difficult time keeping any one employee at work on it for any period of time. Employees who do it for more than a week or two will complain and ask to be moved. Martinez' first line supervisor until about December 25, 1971, was Jean Hardy at which time the department was divided into two parts with Barbara Johnson assuming the position of first line supervisor in the part worked in by Martinez. Martinez, who began work on October 18, was given his second 30-day probationary review on December 18, 1971, by Hardy. The review rates Martinez as satisfactory in all aspects, except one, "quality of work," which was rated 983 "improvement needed and possible." The portion of the form which stated "should employee be allowed to continue employment?" is checked in the box marked "conditional (explain)" with no explanation in the adjacent space provid- ed for "remarks." There is no evidence that the quality of Martinez' work was unsatisfactory or that he was ever told that it was. Martinez credibly testified that, outside of the rating on the review, no one ever complained to him about his work. He also credibly testified that when Hardy showed him the review on December 18, 1971, she told him he was doing a good job and to keep it up. Hardy's testimony to the contrary is not credited. Her demeanor while testifying was not that of a trustworthy witness. She testified in sub- stance that on evaluating Martinez on December 18 she asked him if he had any interest in any other department such as test and he said no. She told him both the quality and quantity of his work needed improvement but would just note on the review that he needed improvement in quality, and advised Martinez that he needed to put "a little more effort into what you are doing," to show a "little more" initiative toward his work. Hardy, apparently to sup- port her December 18 evaluation conversation with Marti- nez, testified that on numerous occasions prior to December 18 he had stopped working and interfered with the work of other employees by leaving his work station and visiting other employees, and instead of working made Christmas figurines out of the materials used in his work area; and that on a number of occasions she had to tell him to return to his work station and go to work. Martinez credibly denied this. Unexplained by Hardy is her failure to speak to Marti- nez about this alleged misconduct on December 18, and her failure to indicate it on the review. Specifically, she testified that once prior to December 18 Martinez was spending so much of his time making these figurines instead of working that he fell so far behind in his work that she was forced to give him help and that her boss, Frank Smalley, observed this conduct and was very unhappy about the matter. Frank Smalley did not corroborate Hardy although called by Re- spondent as a witness. Hardy's entire testimony concerning Martinez' unsatisfactory work habits, his unsatisfactory quality and quantity, was completely without corroboration although it seems that if he was such an unsatisfactory employee corroboration should have been easily available. I am convinced that Hardy's testimony is grossly exaggerat- ed, and is not worthy of belief. Finally, as noted previously, there is not one scintilla of evidence that there was anything wrong with the quality of Martinez' work or that prior to December 18 it was ever so indicated to him. Under the circumstances I find that Respondent had no justification whatsoever to state on Martinez' probationary review that his quality of work needed improvement and had no justifi- able reason to make his employment conditional, and fur- ther find that in marking the review in such a fashion Hardy was motivated by the Company's animus toward the Union and its knowledge that Martinez was a union adherent. On January 10, 1972, Hardy in the presence of Supervisor Johnson gave Martinez a written reprimand which read: This employee shows a lack of initiative, which greatly effects his efficiency and throws a greater burden on the supervisor. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employee is continually chatting with his fellow workers which tends to effect his quality and is a dis- traction to others. The employees surely must realize that efficiency is essentially important to this type of production. Con- tinuance of the above mentioned statements could re- sult in this employees termination. Hardy had not been Martinez' supervisor for about 2 weeks, having been replaced by Johnson about December 25, 1971. The reprimand under the caption "initiating manager's sig- nature" is signed by Hardy. Johnson testified for Respon- dent and explained why an employee under her supervision was given a reprimand written out by Hardy. When giving this testimony she appeared to be very uncomfortable, was vague and evasive, and gave me the impression she was not revealing what had actually transpired. Johnson admitted that Hardy was the person responsible for the reprimand and that based upon her (Johnson's) observations of Marti- nez she (Johnson) was in no position to determine whether his conduct justified the reprimand. Her explanation for the origin of the reprimand is as follows. Hardy at some un- known point of time, after Johnson became supervisor, came to Johnson and told her that she was having a lot of problems with Martinez; that he was goofing off and not working. The result of this conversation was that Johnson made a point of watching Martinez "more closely" than is normal. That she observed Martinez not working, just sit- ting around, but did not go over and tell him to get to work let alone warn him about engaging in this misconduct. Then, since Martinez continued to stand around doing nothing (Johnson still had said nothing to Martinez), Hardy told Johnson a file memo should be written up. Johnson told Hardy that she had not been his supervisor long enough to evaluate him and that Hardy should write the reprimand and Hardy agreed. Hardy, on direct examination, testified, contrary to Johnson, that it was Johnson who came to Har- dy and talked to her about Martinez and that the reprimand was not worded by Hardy but by both Hardy and Johnson. Hardy's testimony about the origin of the reprimand changed on cross-examination when she testified "[John- son] and I were walking by. It was brought to our attention when we walked by as to what he was doing. We got to talking about it, and we decided to give him a file memo." When it was pointed out that this testimony did not square with her earlier testimony Hardy in effect testified she did not recall what took place between herself and Johnson which resulted in the reprimand. I am convinced and find that the testimony of Johnson and Hardy relating to the origin of the reprimand and the facts surrounding the is- suance of the reprimand is not worthy of belief. The ambiguity and vagueness of their testimony coupled with their unconvincing demeanor when testifying convinces me and I find that the testimony was contrived. Regarding the portion of the reprimand which states that Martinez shows a lack of initiative which greatly affects his efficiency and throws a greater burden on supervision, there is no evidence to support this allegation. The evidence is to the contrary. Martinez credibly testified that when he ran out of work he would immediately go to Hardy and ask for other work. If Respondent, as Hardy testified at the hearing, is urging that Martinez showed a lack of initiative by being satisfied with working on the untaping job rather than com- plaining about the job as other employees had done, I am perplexed. It would seem that the Company would be happy to find an employee who is satisfied to continue doing an undesirable job. Even this is not accurate since Martinez did in fact in about November 1971 ask Hardy to be considered for the position of inspector. At any rate there is no showing that this alleged lack of initiative interfered, as the repri- mand states, with Martinez' efficiency or placed a greater burden on supervision. Regarding the portion of the reprimand which alleges that Martinez "is continually chatting" with employees which affects the quality of his work and is a distraction to others, there is no credible evidence that he did this prior to his December 18 probationary review. There is also no credible evidence that from December 18 to January 10, 1972, that he engaged in this conduct. Martinez credibly denied this. Johnson admitted that she was not in any posi- tion to determine whether Martinez' conduct justified this reprimand and Hardy could specifically recall only one instance when she went over and talked to Martinez about leaving his work station and talking to the employees on the touch up line. I do not credit Hardy's testimony. But, in any case , one episode does not equal "continually chatting." Also, I specifically reject Hardy's testimony that Martinez told her and Johnson that he agreed with the contents of the reprimand. Johnson did not corroborate Hardy. Martinez testified he signed the paper without comment and his unde- nied and credible testimony is that thereafter he went to Second Level Supervisor Doc Morgan and told her that the reprimand was more than a gross exaggeration, it was a lie. In view of the foregoing, I find that in giving Martinez the written reprimand of January 10, 1972, Respondent was not motivated by the reasons set out in the reprimand but was motivated by its animus toward the Union and its knowl- edge that Martinez was an active union adherent, and by engaging in this conduct violated Section 8(a)(1) and (3) of the Act. 9 On January 14, at the end of the workday, Martinez was told he was discharged by Second Level Supervisor Doc Morgan. There is no contention or evidence that between the written reprimand issued on January 10 and his dis- charge that Martinez engaged in any act of alleged miscon- duct which triggered the discharge. On January 14 Morgan called him over to her desk and told Martinez he was dis- charged. Martinez asked if he was discharged "because of reprimands." Morgan replied, "yes." To recapitulate, on December 18 Respondent downgrad- ed Martinez in his second 30-day probationary review be- cause of his union activities; on January 10, 1972, Respondent issued him a written reprimand because of his Union activities; and on January 14, 1972, discharged him 19 1 realize that issuance of this reprimand was not specifically alleged as an unfair labor practice but the matter was fully litigated and is part and parcel of Martinez' discharge which was alleged as an unfair labor practice Under the circumstances , I havejudged this conduct. For the same reasons I have also judged the written reprimands discussed later in this Decision relating to employee Anthony Montoya's discharge GTE LENKURT, INCORPORATED ostensibly for the same reasons contained in this reprimand. There is no contention or evidence that Martinez engaged in any act of misconduct between the reprimand and his discharge . Respondent at the hearing offered no evidence to explain why on January 14 it discharged Martinez . Based on the foregoing , I find that in discharging Jacob Martinez on January 14, 1972, Respondent was motivated by his union activities and that by engaging in such conduct violated Section 8(a)(3) and (1) of the Act. Any doubt that this was the motive of Respondent is removed by the credible and undenied testimony of Union Business Representative Or- ville Tate that on January 11 First Line Supervisor Nick Pavlakovich told him that at a meeting of supervision Mar- tinez was named as being prounion ; that the Sheridan repre- sentative had told Martinez' supervisor to discharge Martinez that week and to use as an excuse something like the fact that he was not staying in his work area , or he was goofing off or standing around. t. The discharge of Anthony Montoya Anthony Montoya began work for the Company on Sep- tember 13, 1971 and was discharged on April 13, 1972. General Counsel contends he was discharged because of his union activities. Montoya during either October or November 1971 signed a card authorizing the Union to represent him and went to one union meeting . As described earlier in the Decision, starting in early February and ending late in March 1972 Montoya's immediate supervisor , Ken Thompson , continu- ously interrogated Montoya about his union sympathies. Montoya continuously informed Thompson he supported the Union and argued in favor of the Union. Thompson unsuccessfully urged Montoya to withdraw his support from the Union and to give the Company a chance, at one point threatening plant closure if the Union succeeded in organizing the Company. Montoya during this entire period rejected Thompson 's pleas that he not support the Union and argued with Thompson in favor of the Union. Also, employee Carlos Salazar credibly testified that in February 1972 Thompson told him that Montoya had told him he had signed a union card. Respondent discharged Montoya on April 13, 1972, at which time Ken Thompson was his immediate supervisor. According to Montoya's undisputed and credible testimony Thompson notified him he was discharged and told him the reasons were for the previous reprimands he had received and that the final reason was that Montoya "wasn 't wearing [his] safety glasses the day before ." Thompson , regarding the reason for Montoya 's discharge , testified that he was fired for "all of the little things he had done all of the way along , the breaking of safety rules, his general attitude, talk- ing and unexcused absences ." Thompson along with Sec- ond Level Supervisor Harrison and foreman Smalley, the individuals whom Thompson testified on April 13 told him to discharge Montoya , signed Montoya 's separation notice on the day he was discharged. This notice explains the dis- charge in the following terms : "[Montoya], was verbally warned on December 29, 1971 , for excessive talking. He has since had a file memo on March 27 , 1972, for excessive talking . Also he has had a verbal warning on his unexcused 985 absences, plus a file memo on January 24, 1972, for unex- cused absences. This action [referring to the discharge] is necessary because of the above plus a complete disregard of our safety policies concerning the wearing of safety glasses has occurred." I will now discuss each of the above reasons advanced by the Company to justify Montoya's discharge. Respondent's handbook for employees states it may be grounds for immediate discharge if employees violate plant safety rules. In Montoya's department the rule regarding safety glasses which was known to all employees including Montoya was that glasses must be worn at all times when in the department. This rule is much more strict than the rule in some other departments, namely, glasses must be worn only when operating certain equipment. It is not dis- puted that on April 12 the day before the discharge Monto- ya returned from a break and started work without putting his safety glasses on and was observed by Thompson, who was also just returning from his break. Thompson at this time told Montoya to wear his glasses. There is no evidence of any reprimand or criticism of Montoya by Thompson. In dispute, however, is whether as Thompson testified he ob- served Montoya on April 13 again without his safety glasses and whether he had previously told Montoya "many times" to wear his safety glasses. Montoya specifically denied not wearing his safety glasses on April 13. I credit Montoya who impressed me as a credible witness. Montoya also credibly testified that previously he had not worn his safety glasses in the department on a number of occasions, especially when he was not doing the job of clipping leads and that no one ever said anything to him. He also credibly testified that on a number of occasions he observed other employees in the department without their safety glasses and either no one said anything or the supervisors would tell them all, including Montoya, to put on their safety glasses. Thomp- son when he testified that on April 13 Montoya was without his safety glasses and that previously he had warned him about this conduct did not impress me as an honest witness. In addition, there are other circumstances which indicate to me that this testimony is not trustworthy. Thompson did not explain why he did not tell Montoya on April 13 that one of the reasons for the discharge was his failure that day to wear safety glasses . Thompson specifically told Montoya that it was his failure on April 12 that was a cause of the discharge. Also unexplained is the failure of Thompson to issue Montoya a written reprimand if, as he claims, he had warned Montoya many times prior to April 13 about his failure to wear safety glasses. Personnel Manager Zeleny specifically testified that initially an employee is given an oral warning for violating a company rule, if the misconduct continues the employee is given a written reprimand at which time the employee is brought into Zeleny's office and Zeleny reviews the problem with the employee to make sure he understands what he is doing wrong, and then if the employee continues to engage in the same misconduct he is discharged. No written reprimand was issued t ,Montoya for not wearing his safety glasses. I realize that Zeleny also testified that in cases involving violations of what he consid- ered "industrial capital crime type of thing" that the em- ployee could be discharged for the first offense but only after a thorough investigation by Zeleny himself. But, Zele- ny did not claim a violation of a company safety rule was 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this type of an offense. Even assuming it was an offense which would warrant immediate discharge without prior warning, it would prove too much. For if this was such a grave offense why, as Thompson testified, was Montoya allowed to violate the policy many times without discharge? Thompson testified that employees are not discharged upon the first offense but only when they "flagrantly" violate the rule. Finally, when Respondent's treatment of Richard Lucero is examined, it is plain that Thompson's testimony of the many warnings he gave Montoya is not believable. Lucero worked in another department where it is required of employees to wear safety glasses only when they stick their head in the machine. First Line Supervisor Hardy, the first time she observed Lucero without his safety glasses, verbally reprimanded him; the second time she so observed him without glasses she issued him a written reprimand in the presence of Personnel Manager Zeleny. This is the pro- cedure described by Zeleny. Thompson did not explain why he did not follow this procedure if he was concerned about the failure of Montoya to wear glasses and had in fact orally warned him. Based on the foregoing, I find that Thompson did not warn or criticize Montoya about his failure to wear safety glasses prior to April 13, that Montoya on April 13 did not fail to wear safety glasses , and that Respondent's contention that in discharging Montoya it was motivated in part by his failure to wear safety glasses is completely lack- ing in substance. Montoya on December 15, 1971, his 90th day of employ- ment , was informed by First Line Supervisor Pablo Mira- bal, Jr., that he had passed his probationary period and was a regular employee. But, on the review form in the remarks column Mirabal marked, "Talkative, verbal warning was given has had noticeable improvement." Montoya testified that after the review and during the month of December 1971 Mirabal told him to watch his talking because "some- one" was watching him because he had a previous verbal warning. Then on January 24, 1972, Montoya was issued a written reprimand by his supervisor, Ken Thompson, which warned him he was in danger of discharge if he continued violating company policies and, among other things, point- ed out that he had been verbally warned "on three different occasions 12-29-71, for excessive talking while working." Then on March 27, 1972, Thompson issued another writ- ten reprimand to Montoya alleging that Montoya had not stopped his talking during "normal working hours" and threatened him with discharge if he continued such talking. It is undisputed that employees of the Company including Montoya could talk during working time so long as it did not interfere with their work or the work of other employees. Regarding the warnings for talking described above, Mon- toya credibly testified that he did not talk more than other employees and that he kept up with his work. Thompson's testimony on this subject was not worthy of belief. He did not impress me while testifying as telling the truth. He of- fered no credible explanation, as I will describe below, for issuing the written reprimand of January 24, 1972, concern- ing alleged misconduct which had occurred almost 1 month before. Respondent adduced no evidence to support its claim that Montoya by talking at any time prior to January 24, 1972, was interfering with either production or discipline in violation of its rule against talking. Finally, Thompson's explanation for the issuance of the written warning of March 27, 1972, was vague and evasive and, even though easy corroboration was available to support Thompson's story, the Respondent failed to call such witnesses. Thus, Thompson testified that on that day, March 27, he observed Montoya stop work and talk for 5 to 10 minutes and then instead of returning to work daydreamed and that other supervisors, as well as Thompson, observed this conduct. None of these supervisors were called to support this story. Thompson also testified that he just watched Montoya do nothing and made no effort to get him to resume work for the reason that Thompson was, to quote Thompson, "letting [Montoya] hang himself." Thompson's explanation for let- ting Montoya "hang himself" was because of "Montoya's general attitude," specifically "he didn't care whether he had a job or not." Thompson admitted that this opinion was based on nothing that Montoya had said, but that for the 3 days previously his production had been way down low. There is no suggestion by Thompson that either in the months immediate to these 3 days or for the rest of Montoya's employment that his production was inferior. How low production indicated to Thompson that Montoya's "general attitude" was unsatisfactory is unex- plained. I am convinced and find that the company's claim that Montoya engaged in excessive talking so as to interfere with his work and the work of other employees is completely without substance, and that he did not engage in this mis- conduct; I also find that in issuing to Montoya the written reprimand on January 24, 1972, insofar as it related to ex- cessive talking and the written reprimand of March 27, 1972, the Respondent was motivated by Montoya's union sympathy and activities and by engaging in this conduct violated Section 8(a)(3) and (1) of the Act. It is undisputed that Montoya was absent without an excuse on December 13, 1971, and January 4, 1972. He was given a verbal warning about these absences on January 8, 1972. Regarding the absence of January 4, 1972, it is closely connected and the result of Montoya's violations of the Company's good grooming rules, namely he allowed his hair to grow over his collar. Male employees at that time were not allowed to do this. Since then the rule has been changed and they can now wear their hair over their collars. In any event, Montoya in December had ignored the in- structions of his supervisor to get a haircut and on January 3, 1972, was told by Supervisor Mirabal not to come to work until he got a haircut. The next day Montoya instead of coming to work got his hair cut but failed to tell the Compa- ny he was not coming to work. There is no contention that Montoya since that time allowed his hair to grow in viola- tion of the Company's rule. On January 24, 1972, Thomp- son issued to Montoya a written reprimand which warned him he was flirting with discharge if he continued to violate company policies and, among other things, pointed to his verbal warning issued on January 8, 1972, regarding the two unexcused absences and Montoya's previous violation of the Company's good grooming rule by not getting a haircut. As noted earlier, this written warning also referred to Montoya's previous verbal warnings for excessive talking. As was the case with the warning for excessive talking, the obvious question is, why on January 24 did Thompson write up Montoya for conduct which had taken place several GTE LENKURT, INCORPORATED weeks previously? His testimony on this point was vague, evasive, and contradictory. His first explanation was he was new to the job with no training whatsoever regarding com- pany procedures. His second explanation was "he [Monto- ya] had continued his talking." 20 His third explanation, "being so busy," explaining "we [supervisors] had to get hot things out for the end of the month shipment and being a new supervisor, I didn't get this documented before, which should have been, and this is why he got the reprimand." How January 24 relates to the end of any month (either December or January) is not explained by Thompson. In any event, this last explanation admits in effect that there were no new acts of misconduct which had taken place in the several weeks after the acts alleged in the reprimand of January 24, 1972, which caused this reprimand to be writ- ten. Finally, Thompson gave me one additional explanation as to what caused him to issue this reprimand. To quote Thompson, "What triggered [the January 24 reprimand] is, we were not being hard enough on our employees to get the work out, and this was sort of like a follow up." There is no evidence that Respondent other than this one instance has ever after a hiatus of several weeks reduced to a written reprimand previous alleged oral reprimands. I find, based on the foregoing and upon Thompson's demeanor while testifying, that he was not trustworthy when he testified as to his reasons for issuing the January 24 reprimand. I fur- ther find that in issuing this reprimand the Respondent was motivated by Montoya's union activities and sympathies in violation of Section 8(a)(3) and (1) of the Act. I realize that the record does not establish by direct evidence that Thompson prior to early February 1972 knew of Montoya's union activities or sympathies but I am convinced and find that Thompson either knew or suspected Montoya' s alle- giance toward the Union at the time of the January 24 reprimand. In arriving at this conclusion I have considered the fact, discussed earlier, that Thompson even prior to January 24 was indirectly questioning employees including Montoya in an effort to determine their union sympathies. Every time the Company or Union issued a piece of litera- ture he would call the employees in his department to his desk and ask them how they felt about the particular piece of literature.21 As discussed in detail earlier, I have found that the purpose of this interrogation was to determine the union sympathies of the employees under his supervision. Thompson admits that one of the employees he questioned in this manner was Montoya. When this conduct is viewed in the context of Montoya's prounion sentiments , and the absolute failure of Thompson to justify his highly unusual conduct of issuing a written reprimand to Montoya for conduct which he had allegedly engaged in several weeks previously and which had already been remedied by oral warnings, I am convinced that it establishes that on January 24, 1972, Thompson had either determined or believed that 20 There is no evidence, other than the self-serving testimony of Thompson described above , that between the alleged verbal warning in December and the written reprimand of January 24, 1972, that Montoya had engaged in talking which interfered with his or other employees' work. 21 1 note that the Company through Vice President Wortman on January 21, 1972, issued a letter to employees stating it did not want the Union, which presumably Thompson used as a device to determine whether his employees sympathized with the Union. 987 Montoya was a sympathizer for the Union. To sum up, on January 24, 1972, and March 27, 1972, Respondent issued written reprimands to Montoya because of his union sympathies, and on April 14, 1972, discharged him in substantial part because he had received these un- lawful reprimands and because he had disregarded the Company's safety policies concerning the wearing of safety glasses . The record establishes that Montoya did not act in disregard of the Company's safety policies or if he did the Respondent was not concerned about the matter. Based upon the foregoing and in the light of Respondent's knowl- edge that Montoya sympathized with the Union, and its unsuccessful attempts to persuade Montoya to withdraw his support for the Union, I find that in discharging Anthony Montoya on April 13, 1972, Respondent was motivated by his union sympathies and activities and by engaging in such conduct Respondent violated Section 8(a)(3) and (1) of the Act. u. The discharge of Richard Romero Richard Romero began work for the Company on Sep- tember 27, 1971, and was discharged on April 21, 1972. General Counsel contends he was fired because of his union activities. Romero signed a card authorizing the Union to represent him on November 18, 1971. One of the persons who rode to work with him in a car pool was a first line supervisor, Carmen Romero, a statutory supervisor. Richard Romero informed Carmen Romero that he had signed a union card. Also, as described in detail earlier in the Decision, Romero in February 1972 complained to his supervisor, James Mur- ray (a statutory supervisor), that he did not believe it was right for the Company to try and force him to support the Company rather than the Union, but should let an employ- ee make up his own mind. Based on the foregoing, as well as on certain statements made by Personnel Manager Zele- ny to Supervisor Murray and employee Benally, described below, in connection with Romero's discharge, I find that Respondent knew when it discharged him that he actively supported the Union. On April 19 at the end of the workday Romero and fellow employee Al Norton, at the request of another employee, volunteered to help carry a television set from the Company's store, which is adjacent to the plant, to the purchasing employee's car in the company parking lot. In helping carry the TV set out the door of the store Romero had his back to the door and as he was backing out employ- ee Mike Benally either deliberately put his foot in Romero's way or deliberately left his foot in Romero's way. Romero almost tripped over Benally's foot, caught his balance, and observed Benally standing there smiling. Romero was an- gry. He was under the impression that Benally had inten- tionally tripped him. Along with employee Norton he placed the TV in the employee's car, they then went to Romero's car. Just as Romero was getting into his car he observed that Benally was getting into his car, also parked in the lot, so he went over to Benally's car. Benally was in the car with his wife, Cecilia Benally, also employed by the Company. Romero, still angry, tapped on the car window which Benally rolled down, and Romero said, quoting 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Romero, "If you ever do that again , I'm going to beat the bell out of you, and if you are planning on doing anything, you might as well get out of your car right now." Benally testified he answered that , "he was sorry" and Romero left. The foregoing is based upon the credible testimony of Ben- ally and Romero. Romero places these events as occurring on April 20 . However , from the record as a whole I am convinced he was mistaken as to the date and find that the events took place on April 19. Also regarding whether or not Benally deliberately tripped Romero it is clear and I find that Romero in good faith believed he had done so, and that the circumstances supported this belief. Benally initially testified that he in fact did trip Romero on purpose. Al- though he later testified it was an accident , I am convinced based upon my observation of him that his initial testimony is the more reliable . Moreover , his testimony that after Romero threatened him he apologized , substantiates the fact that Benally knew he was the one at fault. Benally however , did not tell his wife what had happened inside the company store. The next morning, April 20, Ceci- lia Benally told her supervisor , Helen Davis, that certain employees had attacked her husband in the restroom in the plant and the same employees had come by their house and invited Mr . Benally out of the house to fight . Mike Benally does not work for Davis but because Mr. and Mrs . Benally are Indian , like Davis , Davis felt that perhaps she should go and talk with Mike Benally. Mike Benally told her that some unnamed employees had attacked him in the compa- ny restroom and after that they had approached him and his wife in the company parking lot and threatened him that "there would be one less Indian if he did not straighten up." Davis asked Benally if there was anything she could do. Benally said no. Davis, however, went to the Company's personnel manager, Charles Zeleny, told him what Benally had told her, and Zeleny had Davis bring Benally to his office where he spoke with him in the presence of Davis, and Plant Manager Zimmerman . The foregoing was based on the credible testimony of Helen Davis. Benally at this time informed Zeleny and Zimmerman in the presence of Davis that he had not, as he told Davis, been attacked by employees in the Company's.restroom . But, he then changed his story and admitted that he had been so attacked in the restroom but refused to identify the employ- ees stating he would take care of the problem . Zeleny then asked him if, as he told Davis, he had been attacked in the Company 's parking lot and Benally stated that employees Romero and Norton had walked up to his car and had threatened him with bodily harm . After hearing from Benal- ly what had taken place the meeting ended. The foregoing is based upon a composite of the testimony of Zeleny, Be- nally, and Davis. There is a dispute as to whether at this time Benally told Zeleny that in threatening him Romero and Norton had used the phrase " Indian ." I credit Romero that he used no such language when he threatened Benally . Benally denied that such language was used and denied telling this to Zeleny. Also Davis does not corrobo- rate Zeleny 's assertion . In any event , since Zeleny testified that in discharging Romero the Company was not influ- enced in any manner by his alleged use of this phrase it is not of great import. Finally, I have not credited the asser- tion of Zeleny that at this time he prepared a statement for Romero to sign , for it is clear from both the testimony of Davis and Romero that while Zeleny may have asked Be- nally if he would sign a statement about what he told Zele- ny, the actual statement was not prepared until the next morning. Shortly after hearing Benally's story , on the morning of April 20, Zeleny had a conversation with Romero's immedi- ate supervisor , James Murray. Murray testified that on April 20 Zeleny told him that Romero had threatened the life of another employee, there was a witness, that the Com- pany was going to look into the matter further and would talk with "the lawyers" to determine the Company's legal stand and Zeleny would let Murray know the next morning what if anything had been decided. The next morning, April 21, about 9 a.m., Zeleny, as Murray testified , told him "we would fire or terminate Romero because of the nature of the offense , after conferring with the lawyers ," at which point Murray commenced to fill out Romero 's discharge papers, and get his discharge checks from payroll and at the end of the workday, about 3 .30 p.m., as described later , escorted Romero into the office of Zeleny where he was told he had been fired . In the meantime , between 9 a.m. and 3 : 30 p.m., Zeleny met again with Benally. Zeleny at this time prepared a written statement for Benally to sign which reads: TO WHOM IT MAY CONCERN On the evening of April 19, 1972, at about 4:15 in the Lenkurt parking lot, I was accosted by Richard Rome- ro and Al Norton and threatened. Richard Romero said "if you get in our way again , something will hap- pen to you" or words to that effect. In any case, I was lead to believe they would inflict great bodily harm if I in any way caused them any problem. Benally credibly testified that at this time in the presence of Plant Manager Zimmerman that Zeleny had him read the statement and asked him to sign it explaining that he did not have to sign it but the Company was going to discharge Romero and that when Romero was fired he would run to the office of the Union and file a complaint against the Company and the Company would be asked why he was fired. Benally replied he did not want to have Romero fired and told Zimmerman and Zeleny he was not afraid of being harmed and that the problem had been settled. Benally on April 21 refused to and did not sign this statement . Insofar as Zeleny's version of this meeting is contrary to Benally's, I have rejected it. Respondent did not call Zimmerman to corroborate Zeleny But more important when Zeleny testi- fied about this meeting, and about his future meetings with Benally at which the statement was actually signed by Be- nally, from his demeanor and from his vague and evasive testimony I received the impression that Zeleny was not a trustwoithy witness. At the end of the workday on April 22 Murray told Romero to get his personal belongings and escorted him to the office of Zeleny at which time Zeleny notified him of his discharge. Zeleny told him he was discharged, that he had threatened to kill Benally which was a criminal offense, and that Benally was scared so bad he was going to quit his job and go back to the Indian reservation . Zeleny told him that GTE LENKURT, INCORPORATED Benally had accused him of threatening that Benally would be one dead Indian and had signed a statement for Zeleny. Romero asked to see the statement which Benally had sup- posedly signed for the Company. Zeleny refused to show him the statement . Romero attempted to explain what had taken place in the parking lot and the events which had caused him to threaten Romero but Zeleny refused to listen stating that whatever Romero said would not make any difference because he did not have a witness and Benally had a witness , his wife . Finally , Romero did manage to tell the full story of Benally tripping him as he was backing out of the Company's store carrying a TV set and explained that it was because of this that he had told Benally he was going to "beat the hell" out of him. Zeleny did not respond. The foregoing is based on the credible testimony of Romero. I do not credit the testimony of Murray or Zeleny where it conflicts . I particularly reject Murray's testimony that Romero agreed he used the threatening words attributed to him by Zeleny. Zeleny contradicts this. Zeleny admitted at the hearing that Romero stated he had told Benally "if you get in my way I am going to beat the hell out of you." Also, I particularly reject Zeleny's claim that he had not made up his mind to fire Romero before the exit interview . He testi- fied that the only reason he processed Romero's final checks was just in case he finally decided to discharge Romero. He further testified that he asked Romero if he had any witness- es, and specifically testified that "I had the checks made up because I felt the possibility of your having a story that would completely refute what had happened previously was on the thin side and I wanted to be prepared . . . it would have been very easy to have canceled those checks and negate the whole thing ." if Romero shed some new light on the matter. Murray did not corroborate Zeleny. Moreover, Zeleny failed to explain the following. If he had not finally decided to discharge Romero prior to talking with him and was genuinely interested in listening to Romero 's version of what had taken place why did he earlier that day tell Super- visor Murray that he had decided to discharge Romero after consulting with the Company's lawyers, why did Murray several hours prior to the discharge not only get Romero's final paychecks but also have his termination papers made out, why did Zeleny not call Romero into the office immedi- ately upon learning of the accusations made against him, why did Zeleny several hours before discharging Romero tell Benally that the reason they wanted him to sign a state- ment was that the Company was going to fire Romero. Indeed Zeleny's testimony , which I do not credit , is even stronger in a sense on this last point than that of Benally. Zeleny states he told Benally on the morning of April 22 "Romero will be fired whether you sign this statement or not." I find that Zeleny's testimony at the hearing that at his exit interview he made a serious effort to get Romero's story with a view toward evaluating the entire situation was con- trived. The statement made out by Zeleny, described above, which Benally had refused to sign on April 22 was eventu- ally signed by Benally on a date after April 22. Zeleny specifically admitted this . But the specific date on which it was signed is not clear . The statement signed by Benally was dated in Benally's handwriting, August 29, 1972, obviously not the correct date. At the hearing Zeleny's testimony on 989 this point was evasive : "I didn't notice until we came into these hearings that [Benally] signed it August 29 and it was really one week earlier than that, he signed it on August, I mean, April 22 I believe, after he had signed it on April 29." In his later testimony Zeleny indicated the statement was signed by Benally on April 23. Zeleny further testified that at the time Benally signed the statement for the first time he indicated it was incorrect. To quote Zeleny, "At the time of his signing the statement , I read it off to him and he said, no, no, he says, Al Norton did not come to the car with Richard Romero....", at which time Zeleny testified he corrected the statement by crossing out the phrase "and Al Norton." This was the sole correction made in the state- ment. To sum up, Respondent was informed by employee Ben- ally that he had been physically attacked by employees who he refused to name in a company restroom and had been physically threatened by employees Romero and Norton in the company parking lot. Respondent's reaction to these allegations was so inadequate and so inconsistent with what ordinarily would be expected of an employer in these cir- cumstances, it can only be explained by a desire to find some way to get rid of Romero. This is the only thing the Company did-fire Romero. Respondent dropped without further question or investigation the allegation by Benally that he was beaten up by other employees on the company's premises in a restroom. Zeleny prior to his decision did not attempt to get Romero's side of the story, did not question employee Norton, and did not question Benally's wife who he knew was present when the alleged threat was made. He failed to do these things even though Benally had refused to vouch for the truth of his story by signing a written statement . (See United States Rubber Company v. N.L.R.B., 384 F.2d 660-661, 662-663 (C.A. 5) ("Perhaps most dam- ning is the fact that both [employees] were summarily dis- charged after reports of their misconduct without being given any opportunity to explain or give their versions of the incidents"), N.L.R.B. v. Quick Shop Markets, Inc., 416 F.2d 601, 605 (C.A. 7) (failure to investigate charges against em- ployees buttresses inferences that charges were not the real reason for the employee's discharge). Not only did Zeleny fail to question employee Norton but did not explain at the hearing why Norton on April 22 was not discharged along with Romero or at the very least disciplined. For, on April 22 and for at least 1 and possibly several days thereafter the Company because of Benally's story as evidenced by the written statement was under the impression that both Nor- ton and Romero were responsible for the threat in the park- ing lot. It is clear, and I find, that the Respondent was not concerned with what had taken place, but was looking for an excuse to fire Romero . This failure to conduct any kind of an investigation was contrary to the Company' s normal procedures in cases of this type. According to the Company's own policies the type of charge brought against Romero, quoting Zeleny, "required a substantial and thorough investigation before hand because of the serious- ness of the charge." That the Company did not want to learn the truth but was looking for a pretext to fire Romero because of his union activities is also demonstrated by what the Company did, as distinct from what it failed to do. Immediately upon learning Romero had been accused of 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatening an employee, the Company consulted its attor- neys to determine whether it could safely fire him, and Zeleny told Benally that it would discharge Romero wheth- er Benally signed a statement or not but that such a signed statement would be a convenient thing for the Company to have in its possession since it believed Romero would run down to the Union's office and file a complaint against the Company 22 Zeleny did not explain at the hearing why he felt it was necessary to consult a lawyer for advice to de- termine whether he could fire Romero. Finally, the com- plete lack of substance in the Company's reason for firing Romero is also revealed by Zeleny's admission on cross- examination that at the exit interview Romero admitted to Zeleny he had told Benally "if you get in my way I am going to beat the hell out of you." Zeleny testified if he had be- lieved that this is what Romero had in fact said to Benally that Zeleny would not have fired Romero but simply disci- plined him for I week. But, as described above, and in particular in the signed statement given Zeleny by Benally, this is what Zeleny had been told that Romero did say. Based on the foregoing, I am convinced and find that Respondent in discharging Richard Romero was not moti- vated by any concern that Romero had threatened Benally but was motivated by its hostility toward the Union and its knowledge that Romero was a union adherent. According- ly, I find that by discharging Richard Romero on April 22, 1972, Respondent violated Section 8(a)(1) and (3) of the Act. (v) The discharge of Theresa Romero Theresa Romero began work on February 28, 1972, and was discharged on May 26, 1972. General Counsel contends she was discharged because of her union sympathies and activities. Romero signed a card authorizing the Union to represent her. In the plant she spoke to employees about joining the Union. During the month of April, Romero was at her regular work station teaching another employee, "Shirley," how to solder and Romero's immediate supervisor, Vera Montoya, was also there checking to see how "Shirley" was progressing. Romero credibly testified that Montoya was talking with Shirley, that Romero was paying no attention to what they were saying when suddenly she heard them start discussing the Union which caused her to listen, that Shirley told Montoya that no one had asked her to sign a union card, whereupon Montoya told Shirley to question Romero about this matter. At this point Romero argued in favor of the Union and Shirley expressed the view that the Union was no good. Montoya interrupted them warning, "you get laid off whenever you work for the union." The foregoing is based on the credible testimony of Theresa Romero. Vera Montoya testified that such a conversation took place but gives an entirely different version. Her de- meanor while testifying did not impress me. In addition, she changed a portion of her testimony relating to this conversa- tion when she realized her initial testimony was not helpful to the Company's position. Initially she testified that Rome- 22 Zeleny's incredible testimony that he had no knowledge of Romero's union sympathies becomes even more incredible in view of the above ro and Shirley were arguing about the Union and, quoting Montoya, "apparently Shirley doesn't believe in the union and Theresa [Romero] was for it, it sounded like." Later in her testimony when Respondent was attempting to establish that Montoya knew nothing about Romero's union sympa- thies Montoya testified that when she fired Romero she did not know whether Romero was in favor of the Union and specifically testified Romero never said anything overheard by Montoya which indicated to her that "maybe" Romero was for the Union, explaining "it was just an argument between two girls, and it was hard to tell." This is contrary to her earlier testimony. Based on the foregoing I find that Respondent had knowledge of Romero's union activities and also find that in April Respondent violated Section 8(a)(1) of the Act by Montoya's warning to employees Romero and "Shirley" that they would get laid off whenever "they work for the Union." This statement is not a pre- diction, it is a threat of reprisal to be undertaken by the employer if the employees support the Union. Respondent contends that it discharged Romero on May 26 because she talked excessively and in so doing stopped working and interfered with the work of other employees. This was the reason given Romero the day she was fired and the reason set out in Romero's separation notice and the reason advanced by the Company at the hearing. In listen- ing to the witnesses and analyzing the evidence regarding this aspect of the case I was unimpressed by the testimony of Respondent's witnesses, First Line Supervisor Montoya and Foreman Wiggins. Their demeanor while testifying did not impress me, whereas Romero while testifying gave me the impression that she was sincerely trying to describe things as they occurred. Where there is a conflict in the testimony of Montoya and Romero and Wiggins and Romero I have credited Romero. Romero on March 28, 1972, received from First Line Supervisor Montoya her probationary review for her first 30 days. The report on its face stated that Romero should only be conditionally allowed to continue working for the Com- pany explaining that Romero, "has a hard time working next to anyone. Too much talking. Discontinue excessive talking." On May 5, 1972, Romero received her next proba- tionary review from Montoya which stated that she uncon- ditionally should be allowed to continue working for the Company and specifically stated "talking improved but could do better. Works well." Romero's probationary period was to end on May 28, she was fired May 26. She credibly testified that between her last review on May 5 and her discharge she received no criticism about talking during working time and no criticism about her work. To the contrary, about a week before her discharge while working on an incentive job, Montoya told her she was doing real good and was real fast with her hands. (I note, however, that incentive work constituted an insignificant portion of Romero's work.) In addition, prior to Romero's discharge Montoya, regarding nonincentive work, told Romero she caught on "real good, real easy." Montoya at the hearing testified that when Romero was not talking she was a good worker, that her quantity was "going up," and that she was an average employee regarding quan- tity and quality. On the issue of talking Montoya testified that after her GTE LENKURT, INCORPORATED 991 review of May 5, that Romero's talking got worse, that Romero would stop work to talk and would interfere with the work of others by talking. Romero credibly testified she talked while working to the same extent as other employees, did not talk any more than she had talked immediately prior to her favorable review of May 5, that she received no criticism or verbal warnings about talking after her May 5 review, and that at most on about three or four times a day in order to answer questions asked by employees sitting behind her work station she would stop work for 3 or 4 seconds , answer their question , and resume working. I cred- it her testimony and specifically reject the testimony of Romero and Wiggins which based upon my impression of the manner in which they testified is not true. The untrust- worthiness of Montoya's testimony is also established by its vagueness , evasiveness , and inherent contradictions. Mon- toya testified that between May 5 and 26, the date of the discharge , she observed Romero on several occasions talk- ing excessively (talking and not working), that she could not recall the number of times but it was more than 10 times, and that she spoke to Romero about this conduct two or three times. At another point in her testimony Montoya testified that during this period of time she spoke to Romero about her excessive talking "several times" and that she could not remember how many times but that it was more than once a week. Finally, Montoya testified that her prac- tice was to keep track of the times when Romero was talking excessively by making a written note . She testified that she made a note on every one of the times when she observed Romero talking excessively. These notes were produced by the Company during the hearing and consist in their entire- ty of three entries: 3/22: TALKING ON JOB SITTING NOT DOING ANYTHING 3/28: DOES A LOT OF TALKING WHEN SITTING NEXT TO SOMEONE I JUST TALKED TO HER ABOUT TALKING AND NOT DOING HER WORK 4/29: WORKED NEXT TO ANOTHER PERSON AND DID A LOT OF TALKING Contrary to Montoya's testimony there is not one note of excessive talking on the part of Romero following the favor- able review of May 5, 1972. To the contrary and consistent with the probationary reviews, the notes show that prior to the first unfavorable review of March 28, 1972, that Romero was talking and not doing her work and that Montoya had talked to her, that between the first and second review of May 5 that Romero had improved in this area , and that following the May 5 review she had a perfect record. Mon- toya was unable to explain her failure to make notes of the alleged numerous occasions after May 5, 1972, that she allegedly observed Romero not at work but talking . As soon as she realized her testimony was not consistent with her notes, Montoya testified that she made notes only on some of the occasions that she observed Romero not working and talking excessively and that she spoke to Romero on some occasions without even making notes, and that she made notes on only about two or three times after the review of May 5 when she observed Romero talking excessively. Even this later testimony is not supported by the actual notes. In short, Montoya's own records do not support her testimony that after May 5 Romero's talking interfered with produc- tion and got worse and that Montoya spoke to her about this matter. The records establish the contrary; namely, that Romero had a perfect record or at the very least establish she did not engage in the misconduct Respondent attributes to her. That Romero was not guilty of engaging in the alleged misconduct is supported by the circumstances under which the decision was made to discharge Romero. Montoya testi- fied that on April 26 it had not crossed her mind to dis- charge Romero, that it was foreman Wiggins who came up to her and commenced the conversation which resulted in Romero's discharge. At this time Romero made out the separation notice and rated Romero "generally acceptable" in all categories, hardly the type of rating which one would expect Montoya to give Romero in the light of her testimo- ny about her excessive talking. It was Wiggins who changed the generally acceptable rating entered by Montoya under quantity of work and attitude and cooperation to "below average." Wiggins did not explain this conduct. According to Montoya, the reason Wiggins gave was he thought Romero's talking was interrupting work and her quantity was going down. Obviously this was not the opinion of Montoya who made the initial entry and when asked at the hearing "was that also your opinion" answered "after we discussed it, yes." She did not explain what was said to her that she did not already know that caused her to change her previous opinion as set forth in her original rating. Finally, I have considered the testimony of foreman Wiggin, the boss of Montoya, that on or about April 25 or 26 he ob- served Romero turning around at her work station talking to employees situated directly behind her, that based on this observation, and upon Montoya's notes and the probation- ary reviews, and his discussion with Montoya, he decided to discharge Romero. As discussed above, the notes taken by Montoya when compared with the probationary review would show on their face that since his last review Romero had a perfect record. Wiggins' vague account of observing Romero talking to other employees was given in a manner which convinced me it was not reliable testimony. More- over, on its face it does not even indicate whether or not Romero other than talking to these employees had stopped work so as to interfere with production or as she stated had simply stopped for 3 or 4 seconds to answer a question and resumed working. Nor does Wiggins indicate on how many occasions he observed Romero engaging in this conduct. Based upon the foregoing, I find that Respondent's reason for discharging Romero is completely lacking in substance, that at no time since May 5, 1971, had Romero conducted herself in such a manner as to interfere with the work of other employees, or did she stop her own work so as to interfere with production nor did the Company have any reason to believe that she was engaging in such conduct. To the contrary, the record shows that Romero, a known union adherent, on May 26 had arrived at her 90th day of employ- ment (Romero was hired February 28) and was in danger of becoming a permanent employee absent immediate dis- charge, that Romero's supervisor regarded her as a satisfac- tory employee and had no intention or desire to discharge 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Romero, when suddenly she in effect was directed to fire Romero. In view of the foregoing , including the complete lack of substance in the reason advanced to justify Romero's dis- charge , the knowledge of Respondent that she was a union sympathizer, and the Respondent's hostility toward the Union I am convinced and find that in discharging Theresa Romero on May 26, 1972, the Respondent was motivated by her union sympathies and activities, and that by engag- ing in this conduct violated Section 8(a)(1) and (3) of the Act. In reaching this conclusion I have carefully considered the signed statement submitted on June 1 , 1972, by Romero to the New Mexico Employment Security Commission in connection with her claim of unemployment compensation. At this time the Commission's agent placed before Romero the following statement which she signed: I [referring to the agent for the New Mexico Employ- ment Security Commission] contacted Mr. Sturr... . He stated Mrs. Romero was discharged for excessive talking, after being warned by her foreman and her supervisors . When talking she stops working and keeps other employees from doing their work . Claimants [Mrs. Romero] rebuttal . Mr. Sturr's statement is true. Romero credibly testified that when signing this document it was her belief that she was only agreeing that this was the reason the company on May 26 had given to her when she was notified of her discharge. (w) The refusal to transfer Carlos Salazar Carlos Salazar began work for the company on Novem- ber 3 , 1971, and at the time of the hearing was still employed by the Company . Early in his employment Salazar indicated that he had a strong desire to be transferred into the Company's stockroom . Respondent refused to grant him such a transfer . The General Counsel contends that Re- spondent refused to transfer Salazar because of his union sympathies. Salazar for the first 60 days of his probationary period was mostly under the immediate supervision of Camy Wright and for his last 30 days under Ken Thompson. Sala- zar signed a union card in November 1971. As described earlier in this Decision , Salazar in response to Wright's questioning about his union sympathies told her he was neutral and in response to Thompson 's questioning denied having signed a union card. While employed under the supervision of Wright and Thompson he was regarded by them as a good worker. Wright , on Salazar's probationary review given at the end of his first 30 days made the following notation, "This em- ployee would be much happier and could perform better in stockroom work ." At the end of 60 days Wright noted on Salazar's probationary review form , [Salazar] would prefer to be transferred to stockroom . Good worker . Trys very hard ." Thereafter , in about January 1972, he was transfer- red not to the stockroom but into a department under the supervision of First Line Supervisor Ken Thompson. About the time of his transfer into Thompson 's department, Don- ald Bennett, the first line supervisor over the stockroom, according to the credible and undenied testimony of Sala- zar, told him that he had tried to get him transferred into the stockroom, that he had done a great job when he worked in the stockroom but that Bennett could not get him and he was being transferred instead into Thompson's department. Salazar, as was the case with his work for Wright, performed satisfactorily under Thompson, and at the end of his proba- tionary period Thompson on the review form noted that he was performing satisfactorily in all categories and specifi- cally penciled in on the form, that he was a "very good worker." Salazar, a high school graduate, prior to working for the Company had stockroom experience working for a whole- sale supply store. And, at the time he was applying for his stockroom job with the Company had, as he credibly testi- fied, worked a total of about 4 weeks in the Company's stockroom under the supervision of Bennett at various times when that department needed help and his department was slack. Salazar's testimony that during the entire period he worked in the stockroom that Bennett did not criticize his work but in fact complimented him is credible and unde- nied by Bennett. Salazar between about December 1971 and March 1972 on about five separate occasions following the Company's procedures applied for a stockroom position. The announcements on the bulletin board which indicated that such jobs were available stated that the only require- ments were a high school diploma and prior stockroom experience. Salazar's applications for transfer were rejected and other employees were apparently transferred into the stockroom to fill those vacancies. There is no contention or evidence that the reason his transfer requests were not ap- proved was because of his lack of experience. I will now set out the circumstances surrounding the refusal of Respon- dent to grant Salazar a transfer. In December 1971 when Salazar filed his first application to transfer he was working for Camy Wright and, as indi- cated earlier, it is clear that Wright strongly approved such a transfer, stating on her December 1971 and January 1972 probationary reviews that Salazar was a good worker, he tries very hard, wanted a transfer into the stockroom, and in fact could perform better in the stockroom. Wright ap- parently spoke to Bennett, the supervisor of the stockroom, because in December 1971 he broached the subject to Sala- zar. Bennett told Salazar he understood from Wright that he wanted to transfer into the stockroom. Salazar said yes. Then, as discussed earlier in this Decision, Bennett abruptly changed the subject and asked Salazar how he felt about the Union and after Salazar stated he did not know much about the Union, Bennett resumed talking about the transfer pointing out that Salazar would have to work a lot of over- time in the stockroom and that Bennett was a tough man to work for. Salazar indicated he could handle both the overtime and Bennett. Bennett stated he would try to get Salazar transferred into his department. However, as de- scribed earlier, Bennett in January 1972 was transferred from Wright's department into Thompson's department at which time Bennett informed Salazar that he had tried his best to get him transferred into the stockroom, that he did a great job working in the stockroom and had helped out Bennett a lot. Previously, in December 1971, Salazar had gone to the personnel department and spoke to Ann Babb, GTE LENKURT, INCORPORATED 993 an assistant to Personnel Administrator Sturr , who in re- sponse to his inquiry about his application for transfer told him that , "Bennett does not want you . He wants to hire somebody new." Then, still in December 1971, obviously puzzled by Babb 's statement in view of Bennett's statement that he wanted him and would try to get him, Salazar spoke to Second Level Supervisor Octa "Doc" Morgan who was over Camy Wright 's department , the department that Ben- nett was then working in. It is undenied that when Salazar asked if Morgan knew why his request for a transfer into the stockroom had been turned down that Morgan asked "how do you feel about outside interests ." Salazar replied, "do you mean Bennett does not want me in his section because he mistrusts my loyalty to the company." Morgan shook her head in the affirmative . In March 1972 while working in the department of Ken Thompson one last effort was made by Salazar to transfer into the stockroom . Salazar had heard that an additional machine was to be installed in the stock- room and assumed a machine operator would be needed. He asked Bennett about this , Bennett told him he was cor- rect and to go right ahead and apply if he was interested in the position . Salazar applied and at the same time notified his supervisor Ken Thompson that he had applied. Thomp- son responded : "You mean [ Bennett] wants you now ." Sala- zar asked him what he meant . Thompson answered: "He did not want you because he suspected you were union. I guess he wants you now because I have told him you are not. You are not, are you?" Salazar answered he was not union. As described earlier in this Decision, Thompson in Febru- ary had asked Salazar if he had signed a union card and Salazar had told him no. The foregoing is based on the credible testimony of Salazar . Thompson admits there was a conversation between himself and Salazar on the subject of Salazar's failure to get a transfer but denies the remarks attributed to him. Salazar still employed by the Company at the time of the hearing was an impressive witness. Thompson was not. When testifying about his conversation with Salazar and another alleged conversation with Bennett about Salazar , Thompson did seem to be a reliable witness. Finally, Salazar in June 1972 was promoted to a higher labor grade, the position of material handler . He distributes materials to employees which materials he gets from the stockroom. According to Thompson, the supervisor who Salazar was working for immediately prior to this promo- tion, Salazar received the promotion to material handler with the "blessing" of Thompson. In summation , Salazar continuously between December 1971 into March 1972 made it known to the Company that it was his ardent desire to transfer into the stockroom de- partment. Salazar was held in high regard as an employee by his first line supervisors, Wright and Thompson. Wright: "good worker, trys very hard." Thompson: "very good worker." With Thompson's blessings Salazar in June 1972 was promoted to the position of material handler . This was not the promotion Salazar wanted . He wanted to work in the stockroom. On five different occasions between Decem- ber 1971 into March 1972 he made this desire known to the Company by formally applying for openings in this depart- ment and by telling his supervisors of this interest. His requests to transfer were ignored; the openings in the stock- room were filled by others. This despite the following: (1) during the time he had worked on loan in the stockroom Bennett (the supervisor over the stockroom) had never com- plained about his work and had complimented his work; (2) Salazar met the qualifications for the openings, as set out in the Company' s posted announcements ; (3) First Line Su- pervisor Wright had informed the Company that Salazar, a good employee, "would perform better in stockroom work"; and (4) Bennett, the stockroom supervisor, told Sa- lazar his work in the stockroom done while on loan had been excellent and Bennett specifically told him he would try to get him for his department. In these circumstances, why did the Company turn down Salazar's requests. First Line Supervisor Bennett, in charge of the stockroom, gave Salazar no reason but indicated he strongly wanted Salazar to work for him. First Line Supervisor Thompson and Sec- ond Line Supervisor Morgan told Salazar his requests for transfer had been turned down because Bennett suspected him of being sympathetic toward the Union . I realize that the statements made by Morgan and Thompson are by persons who were not connected with the stockroom depart- ment. However, both were clearly interested in the matter since Salazar was at the time they spoke to him employed under their supervision. Clearly they would be interested in the matter, since if Salazar's request for transfer were grant- ed he would have to be replaced by them. In these circum- stances, it is scarcely likely that in telling Salazar that his transfer was denied because of his suspected union sympa- thies Morgan and Thompson were engaging in uninformed speculation ; rather, a fair inference is that their statements were based on actual knowledge of the Company's motives. On the strength of the foregoing, I find that the General Counsel has established a strong prima facie case that the Respondent 's refusal to transfer Salazar to a job in the stockroom department was motivated by its belief that he was a member of or supported the Union. It was incumbent under these circumstances for the Respondent, if it would rebut the General Counsel's prima facie case, to come for- ward with evidence explaining its conduct on other grounds. Donald Bennett, the supervisor over the stockroom, and Joe Campagnone, the storage manager responsible for the stockroom plus two other departments, were Respondent's principal witnesses in support of its case in chief. Their demeanor on the witness stand gave me the impression that their testimony about the reasons for the Company's refusal to transfer Salazar was not reliable or trustworthy. In addi- tion, their testimony does not square with reality as demon- strated by the record as a whole and in at least one important respect was not corroborated even though cor- roboration would normally have been expected. Bennett testified that every time Salazar applied for a transfer that Bennett went to his supervisor , Campagnone, about the request and that Campagnone told him, "not to take the man because he didn't look like he could fit the job." Campagnone testified that Bennett only once, not as Bennett testified a number of times, discussed Salazar's re- quest to transfer. That Bennett asked if it was all right to transfer Salazar into the stockroom and Campagnone testi- fied, "I told him I didn't think so. I told him I though we needed someone a little more efficient and faster ." Bennett told Campagnone he was right, "that [Salazar] isn't the fast- est worker." Bennett never recommended Salazar's transfer 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not be granted but simply accepted Campagnone's decision in the matter with some reluctance. To quote Bennett: "I had to abide by what [Campagnone] thought best." Cam- pagnone testified that in deciding not to grant Salazar's transfer he was motivated by two things (1) Bennett had told him that Salazar had fouled up paper work, and (2) Campagnone's observation of Salazar at work on loan in the stockroom. Regarding what Bennett told him about the misfiling of papers by Salazar, the above is Campagnone's entire testimony on the matter. When he was told this by Campagnone he does not say 23 What Campagnone told him he did not say. Regarding his observation of Salazar's work Campagnone testified "he just did not have any speed and just did not seem interested." Based on his observations of Salazar at work in the stockroom, Campagnone testified, he concluded Salazar was "lazy" and lacked "ambition, drive, or whatever you want to call it." When asked how frequently he observed Salazar at work in the stockroom Campagnone in a vague and evasive manner testified he watched him working "briefly, as I passed through," that he watched him at work "on occasions," but did not recall the number of times testifying "maybe four or five," nor did he recall the total number of minutes he observed him, testify- ing "an hour at the most." Campagnone's testimony is in- credible. Bennett, the first line supervisor who was in a position to watch Salazar all day long when he worked in his department, was not questioned about this alleged un- satisfactory work habit of Salazar nor did his testimony otherwise corroborate Campagnone's. If anything Bennett contradicted Campagnone. Bennett when asked "how was [Salazar's] performance during his assignments" answered, "I think he tried." Moreover, it is undenied that Bennett never criticized Campagnone about his Work while in the stockroom but rather complimented him. Finally, Campagnone's assertions are contrary to Salazar' s entire work history. Supervisor Wright characterized him as an employee who "trys very hard." Supervisor Thompson said he was "a very good worker." In June 1972, he was in fact promoted to a better job. Based on the foregoing, I find that the reasons advanced by Respondent for its failure to trans- fer Salazar are completely without substance. This inference is given strong support by the admitted failure of the Com- pany to ever explain to Salazar the reasons for its failure to honor his transfer request. Certainly, if there were legitimate reasons for turning down the requests the Company would have explained them to Salazar especially since he continu- ously renewed them. Bennett's explanation at the hearing why the Company never gave its reasons to Salazar for the refusal are vague and evasive. When asked if he told Salazar the reason that his requests for transfer were turned down Bennett answered, "we didn't tell him that he didn't do a good job. For somebody who is doing it for a couple of 23 Bennett on this point testified that his leadman , Rick Smalley, told him that Salazar had made some mistakes some of which were difficult to straighten out Bennett provided no other details about this alleged miscon- duct and Smalley was not called by the Respondent to testify about this matter . It does not appear that these alleged mistakes were made or reported by Smalley on more than just one occasion. There is no contention or evi- dence that Bennett ever spoke to Salazar about this matter. To the contrary, Bennett did not criticize but complimented Salazar . I do not credit this portion of Bennett 's uncorroborated testimony. weeks, he probably did do a fairly decent job but not good enough to do this on a steady basis and that was [Campagnone's] interpretation of it. I had to abide by what he thought was best." In light of the foregoing, I find that the Respondent com- mencing in the month of December 1971 and continuing thereafter violated Section 8(a)(3) and (1) of the Act by refusing to transfer employee Carlos Salazar to a position in the stockroom department because of the union activity then in progress and its belief that Salazar was sympathetic toward the Union's campaign. In reaching this conclusion I have considered the Company's contention that it could not have been unlawfully motivated in refusing to transfer Salazar because it subsequently promoted him to the posi- tion of material handler. But the nub of the matter is that Respondent knew that Salazar wanted not the material han- dler job but the job in the stockroom and informed him that because of his suspected union activities he was being de- nied this promotion. A most effective way to discourage employees from supporting a labor organization. (x) The discharge of Stella Sena Blackstone Stella Sena Blackstone, herein called Sena, began work for the Company on January 6, 1972, and was discharged on February 29, 1972. The General Counsel contends that this discharge was motivated by Respondent' s animus to- ward the Union's organizational campaign. Until sometime during February 1972 Sena was super- vised by Michael Blackstone after which she was supervised by Joan Franks. Stanley Morgan at all times material to Sena's case was the second level supervisor to whom first Blackstone and then Franks reported. During the month of January 1972 Sena openly discussed the subject of the Union with other employees and by taking the position that if the Union meant more money that she was all for it, openly indicated that she was sympathetic toward the Union. First line supervisor Franks during Feb- ruary 1972 gave to Sena a copy of the letter to the employees signed by General Manager Wortman announcing the 11- cent across-the-board wage increase for employees. Sena read it in Franks' presence and placed the letter on a work table and left it there at the end of the day. The next morn- ing Franks asked where her letter was, and Sena located it lying in the work area. Later that day the letter was thrown into the trash barrel when Sena was cleaning the work area. At the same time that Franks gave Sena this letter, Sena in her work area in the presence of Franks told employee Bess Willis who worked adjacent to her that this was the last 11-cent increase the employees would receive and that if the Union came in the employees would get a better wage in- crease. Willis argued that with a Union any wage increase would have to be paid back to the Union in the form of dues and fees. Then on February 24, 1972, the Company issued a letter signed by General Manager Wortman which in- formed the employees why the Company located in Albu- querque. In substance it stated that the reason was that, "we could not compete due to high taxes and extraordinarily high wage rates in Bay Area [referring to San Carlos plant]," and attached to the letter was a report showing how the Company's San Carlos plant had lost a bid to competitors GTE LENKURT , INCORPORATED due, for the greater part , to the high wages paid at the San Carlos plant . The letter ended by expressing the thought that with the employees ' continued cooperation Respon- dent would provide steady employment and competitive wage rates for Albuquerque and the industry and a healthy growing company with the best job security in town . Franks handed this letter to Sena at her work station . Franks stayed there while Sena read the letter and when she finished Sena asked Franks what she was supposed to do with the letter. Franks replied she could do whatever she wanted with it. Whereupon , Franks as she puts it "pitched it on one of the work tables ." The foregoing conduct attributable to Sena is based on Sena's credible testimony . Franks was unable to "recall" these conversations and events. Sena who began work for the Company on January 6, 1972, received her first 30-day probationary review on Feb- ruary 22, 1972, by Franks who had been her supervisor for about 2 weeks . The uncontroverted and credible testimony of Blackstone who had been Sena's supervisor before Franks is that Sena was a good worker . Sena's credible and undenied testimony is that prior to her probationary review of February 22 no one had expressed any criticism of her work . Except for attendance Franks , on February 22, rated Sena as satisfactory in every respect including "attitude toward supervision and fellow employees ," and also noted on the review form that she should be allowed to continue employment . Sena's attendance was graded "improvement needed and possible ." Respondent apparently contends that Sena's review of February 22 is not correct because (1) Franks had only supervised Sena for 2 weeks and had relied on what Blackstone had told her ; (2) Franks as a new super- visor was not aware of the importance of the rating. There is not, however, a scintilla of evidence in this record to refute Blackstone 's credible testimony corroborated by Sena that during the time he supervised her she was a good employee , nor is there evidence that anyone from the Com- pany felt she was not a good employee. The only criticism that Franks testified she had about Sena at any time during her employment was about the quality of her work ; namely, that she was careless . How many times Sena was careless, Franks could not recall and whether this carelessness was before or after the February 22 evaluation she also was unable to recall . In any event, it is undisputed that this alleged carelessness was not important since Second Level Supervisor Morgan who fired Sena admitted there never was any problem with either the quality or quantity of Sena's work . Regarding Frank's inexperience as a supervi- sor, Forewoman Holmes at some point of time after the review of February 22 marked in red crayon across the face of the review , "This supervisor [Franks ] not aware of the importance of these ratings at the time this was due." As noted already there is not an iota of evidence to show that in fact Franks erred in her evaluation of Sena . This fact alone would make me pause to consider why Holmes felt constrained to make such a comment on the form. Holmes, who the company contends had nothing to do with the discharge , did not explain this entry. If this entry was true and placed on Sena 's review for legitimate business reasons then it would seem that someone should have spoken to Franks about the fact that she had made a mistake in evalu- ating Sena and explained to Franks the reasons why she 995 erred . Franks testified , however , that no one from the Com- pany ever informed her that she had erred in evaluating Franks, nor had ever discussed the matter with her. Based on the foregoing, I find that as of February 22, 1972, the Company as indicated in Franks ' review of that date regard- ed Sena as a satisfactory employee who should remain in its employ for at least another 30 days during her probationary period. Sena was discharged on Tuesday, February 29, 1972, at the end of the workday at which time she was called into the office of Nada Holmes , where in the presence of Franks, Second Level Supervisor Stanley Morgan told her she was discharged. Morgan told her she was discharged because Morgan did not like her attitude toward the Company, she had a very poor attitude toward the Company . Morgan told her that she had thrown a company letter in the trash and declared that the Company needed employees "who are loyal to the company ." Sena told him she had read the letter and just put it on the work table and that she did not throw it in the trash . In addition , Morgan stated that Sena had too many absences . Other than the mention of the letter which Morgan stated Sena had thrown into the trash there was no explanation given to Sena as to the reasons Morgan felt that her attitude was bad. The foregoing is based on the credible testimony of Sena . Morgan's version is substantially the same but where there is a conflict I credit Sena . Franks, who was present , testified she could not recall what Morgan said explaining "I don't recall back that far." Prior to leaving the room Morgan handed Sena her hour- ly probationary review form which Morgan had filled out for the second 30 days and told her she had to initial the review form before getting her discharge checks which Sena did. The second 30-day review is signed by Morgan, ini- tialed by Nada Holmes, and is dated February 29. Like the review for Sena 's first 30 days , given 7 days earlier on Feb- ruary 22, it rates Sena satisfactory for quantity and quality of work, safety and housekeeping , and adherence to compa- ny standards of conduct. But unlike the prior evaluation it rates Sena for "versatility," "ability and willingness to fol- low instructions," as "improvement needed and possible." Regarding the category , "attitude toward supervision and fellow employees ," the review states "possibility of improve- ment doubtful" and in the remark column states that Sena should not be allowed to continue employment giving as the reason : "in the past week employee has expressed dissatis- faction with GTE Lenkurt and its policies. Under these conditions it is not advisable to continue employment." On the same date , February 29, on Sena's separation slip Mor- gan explained the reason for the discharge in these terms: "Her attitude toward GTE Lenkurt 's policies and working conditions is not deemed acceptable for good employee relations . She has expressed general dissatisfaction with Lenkurt to fellow employees on several occasions." First line supervisor , Blackstone , had been the immediate supervisor of Sena and was scheduled to marry Sena. When he learned on February 29 that Sena had been fired Black- stone immediately asked Nada Holmes the reason for the discharge . Holmes as Blackstone credibly testified told him "it was because of her bad attitude and they actually thought she was very pro-Union ." Blackstone told Holmes that it was his opinion that the Company was wrong that he 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not think she cared one way or the other. Holmes, if you will recall, is the forewoman who for an unexplained reason and on some undisclosed date noted on Sena's first review that Franks was not aware of the importance of the ratings. Holmes also initialed Morgan's review on the day of the discharge. She testified that in reply to Blackstone's ques- tion she told him that Sena "had been causing too many problems in the department. She couldn't get along with the people, she had one girl in tears ." Holmes when she testified on this matter did not impress me as a trustworthy witness. During the course of the hearing Morgan gave the follow- ing reasons for deciding to fire Sena: Primarily because of her attitude toward our policies at GTE Lenkurt and her supervisors and because of her attendence and quality which were not up to snuff My primary reason was because of her attitude toward everything we did Primarily because of her just completely not caring for our policies and just her attitude She did not like the company and anything to do with it. In support of the reasons given for the discharge Morgan testified as follows: (1) Sena's coworker Bess Willis, quoting Morgan, told him: "Sena was always complaining about everything, ev- ery decision supervision made and was unhappy with ev- erything and that it was causing [Willis] problems." Later Morgan described Willis' complaints about Sena in terms of "[Sena] was against all our policies and everything else." Morgan did not explain why Sena's alleged complaints were causing Willis problems. Willis did not testify. I reject this testimony, particularly the contention that Sena was caus- ing Willis problems. (2) Sena, to quote Morgan, "did not talk to me." Morgan on a number of occasions went during working time to Sena's work station and as he testified, "I went and tried to talk to Sena several times to sort of feel out how she felt about things and the way they were going and she just wouldn't talk to me." He would ask how things were going, are there any problems and Sena would just shrug her shoul- ders. To quote Morgan, "I couldn't get a conversation start- ed with her." There is no evidence, nor did Morgan contend, that this conduct on the part of Sena in any way interfered with her job performance. Nor did Morgan ever voice his displeasure to Sena about this alleged lack of communica- tion between them or ask her why she would not talk with him for a few minutes. (3) Blackstone, after he no longer was responsible for supervising Sena, was observed by Morgan once talking with Sena in the department and another time leaving as Morgan entered. Morgan told Blackstone to stay out of that department since he was no longer the supervisor. Black- stone immediately complied with these instructions. (4) Based on Willis' report that Sena was "against all our policies" Morgan testified that he instructed Franks to spe- cifically check into the matter and report back to Morgan. According to Morgan, Franks reported to him that Sena "was very negative toward the company." Morgan testified that he was unable to recall the number of reports on this matter Franks made to him, but that she reported about Sena's "attitude" "at least" daily , and the two of them dis- cussed the matter "continually for a week at least before I decided to fire her." During this period Franks reported: Sena's reaction to the company 's letter announcing the wage increase , namely , that Sena said that it would be the last wage raise the employees would see ; Sena was com- plaining about the Company's policies governing promo- tions ; and Sena did not like the decisions made in the department in general . Franks who testified for the Compa- ny did not corroborate Morgan's story. In fact she contra- dicted Morgan . Franks testified that at no time did she have any problems about Sena 's attitude . More specifically, she testified that between February 22 (date of Franks' review) and the discharge that she spoke to Morgan about Sena but that the only thing she told him was that she felt Sena was careless in her work , that was the only complaint she made and the only subject discussed and testified that she had no recollection of ever having complained to Morgan about Sena's attitude . Not surprising since she testified she had no complaints about Sena 's attitude. If conversations between Franks and Morgan about Sena's attitude took place con- tinuously for a week and if following Morgan's directions she reported daily about Sena's attitude, why did she deny engaging in this conduct . If the surveillance was motivated by genuine business considerations , Franks had no reason to be dishonest. I am convinced that the basis for her failure to admit to conducting an investigation concerning Sena's attitude toward the Company and reporting the results to Morgan was based on the fact that Morgan in his testimony left something unsaid; namely , that both he and Franks knew that the purpose of the investigation was to determine the feelings of Sena toward the Union. I do not credit the testimony of Morgan to the effect that Sena was continuously complaining about the Company or complaining about all of the Company's policies. It is con- tradicted by the testimony of Franks. Other than what Franks allegedly told Morgan the only evidence to support Morgan's testimony in this respect is that employee Willis told him that Sena was complaining about everything and was against all the company 's policies . Willis was not called by the Company to corroborate Morgan whose manner when he gave this testimony did not impress me. The only concrete examples of complaints voiced by Sena that the Company knew about was her feeling that the company's policies on employees' promotions was not satisfactory, that the employees with a union would be able to get more than an 11-cent increase, and that she expressed unhappiness over the Company 's general wage increase. To recapitulate, Sena for her first 6 weeks of employment was regarded by the Company as a satisfactory employee in no danger of being discharged and was told this in effect on February 22 when First Line Supervisor Franks reviewed her record as a probationary employee. It is undisputed that Franks was responsible for Sena's direct supervision and that Second Level Supervisor Morgan was in the depart- ment only rarely. Nevertheless without consulting or even GTE LENKURT, INCORPORATED discussing the matter with Franks, Forewoman Holmes and Morgan voided Franks' review of Sena's work, and again without consulting or discussing the matter with Franks made out a new review for Sena. 4 Sena was discharged on February 29 in the middle of a workweek and only I week after Franks had indicated she was assured of continued employment. The reason for this unusual set of circum- stances is Respondent's animus toward the Union's organi- zational campaign and its belief that Sena supported the Union. The basis for this conclusion follows: (1) Sena, as described in detail above, in the presence of First Line Supervisor Franks indicated that she was a union sympathizer by stating that if the Union came into the plant it would get the employees a higher wage increase than the one granted by the Company. In addition, considering the Company's program of having supervision determine the union sympathies of its employees and the role of Franks and Morgan in this program, it is plain that Morgan and Franks set out to learn about Sena's feelings toward the Union and came to the conclusion that she was a union sympathizer. Thus, as discussed earlier in this decision, pur- suant to the Company's policy all supervisors were instruct- ed to determine the union sympathies of their employees, first line supervisors such as Franks were to pass this infor- mation along to the Sheridan people and to their second level supervisors such as Morgan who in turn also talked to the Sheridan people and in addition passed along this infor- mation to higher company officials. The supervisors were instructed not to question the employees directly about their union sentiments but to show them and get their reaction to, newspaper clippings, letters issued by the Company, and letters and handbills issued by the Union. Or, as put by Supervisor Beall, by just talking to the employees, or as put by Supervisor Bennett , by just asking employees what they thought of the Company and "things like that," or as put by Blackstone, to ask employees what they thought about the Company's wage increase. Morgan admitted that the super- visors under his supervision (Franks was one of these) had the responsibility of determining whether the employees in the department were prounion and that they turned their findings, their "guesses" into him. That Morgan in fact complied with company policy and made a conscientious effort to determine the union sympathies of the employees under his jurisdiction is further established by Blackstone's credible testimony that after Morgan became a second level supervisor he told First Line Supervisors Blackstone , Beall, and Franks that he knew there were union sympathizers out in the department, he was not going to say who they were but that Blackstone, Beall, and Franks had better go out and find them because if they did not start weeding out the union employees, it would be a good way for them to loose their jobs 25 When viewed in this context, only then do the 24 Franks testified she was not consulted about the review of February 29 but that Holmes and Morgan were the persons who made out this review 25 Based on the credible testimony of Blackstone Morgan at the hearing testified there was such a conversation but specifically contradicted Blackstone 's version . Morgan did not impress me as a trustworthy witness on this matter . Neither Beall nor Franks , both of whom testified for the Company, corroborated Morgan 's version of this conversation 997 unusual antics of Morgan and Franks between February 22 and 29 make sense . Namely : Morgan 's efforts to strike up conversations with Sena during working time and his anger at her refusal to presumably stop work to talk with him; Morgan 's instructions to Franks to investigate Sena's atti- tude toward the Company 's policies and to report back to him; Franks ' daily reports to Morgan on this matter; and Franks ' obvious concern over Sena 's reaction to the Company 's letter she handed Sena. All of this conduct, I am convinced and find , was motivated by a desire to determine whether or not Sena was prounion. I further find that during the period between February 23 and 29 Franks reported to Morgan that Sena had voiced a negative attitude toward the Company 's promotion and wage policies , had indicated that the employees would receive better wages with the Union and had shown a negative reaction to Wortman's letters on the subject of employees ' wages and the need for the Com- pany to remain competitive by avoiding high wage rates. I further find that Franks and Morgan on a date between February 23 and 29 came to the conclusion that Sena was prounion. When the fact that Sena's discharge took place immedi- ately after the Company formed the belief that she was prounion is coupled with Respondent 's strong animus to- ward the Union and the unusual set of circumstances, de- scribed above, which led up to Sena 's discharge, the inference to be drawn is that the discharge was motivated by the Company 's union animus. This inference is strength- ened by the very reason given by Respondent to justify the discharge . Briefly stated Respondent urges that Sena was fired because she expressed a negative attitude toward the Company and its policies . There is no evidence that this negative attitude interfered with Sena 's work or the work of other employees . This plus the unusual manner which the Company used to learn of its employees ' attitude toward the Union convinces me that the reason given for Sena's dis- charge is one way of saying that the Company believed that Sena was sympathetic toward the Union . As put by First Line Supervisor Bennett in describing how the Sheridan representatives instructed him how to learn the attitude of employees toward the Union : "they told me to find out if [the employees ] were for the company or against the compa- ny." If there is any doubt that in discharging Sena that the Company was motivated by its belief that she was prounion it is removed by Forewoman Holmes' admission to Black- stone contemporaneously with the discharge that she was discharged because "they actually thought she was very pro Union." In the light of the foregoing I find that in discharging Stella Sena Blackstone on February 29, 1972 , the Respon- dent was motivated by its animus toward the Union and its belief that Sena was a union sympathizer nd that by engag- ing in such conduct violated Section 8(a)J and (1) of the Act. The fact that Sena may not have decided in her own mind whether or not she favored the Union provides no defense to the Company once it is shown , and it is in the instant case, that suspected union membership or activity motivated the discharge . See, e .g., N.L.R.B. v. Ritchie Manu- facturing Co., 354 F.2d 92 , 98 (C.A . 5), and N. L.R.B. v. Hertz Corporation, 449 F .2d 711 (C.A. 5, 1971). 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (y) The discharge of Joe Terrazas and possible." Sanchez marked on the review that Terrazas should be allowed to continue employment and in the adja- cent space for "remarks" marked , "employee showing im- provement." At the time of the review Sanchez told Terrazas he needed to improve in his cooperation with su- pervision and fellow employees but that he was "doing a lot better." That Friday, December 17, Sanchez told Terrazas he was discharged. Terrazas asked for an explanation. San- chez told him he did not know the reason. Sanchez' evasive- ness is illustrated by his version of the exit interview; namely, that he told Terrazas he was fired because of his attitude. When asked "was that all" answered, "yes. I might have said something else, I can't recall." Then was asked "you can't recall the other reason" and answered, "if I did have another reason." Terrazas, as he credibly testified, was unable to find out from Sanchez the reason for his dis- charge, as he left the plant, observed Foreman Van Druff the supervisor immediately above Sanchez and asked Van Druff the reason for his discharge. Van Druff answered that, "he did not think [Terrazas] could get along with the people in [his] department." Terrazas asked if this was the real reason or was he fired because he was Spanish or be- cause of the Union and Van Druff ignored the question, did not answer it, but stated that he was sure Terrazas could find another job. Respondent 's sole witness called in support of its case to justify its discharge of Terrazas was Sanchez. Other than his testimony, which I do not credit, that he told Terrazas he was fired because of his attitude he gave no other reason for the discharge . His version of the manner in which the deci- sion to discharge was arrived at is no help in figuring out the reason for the discharge or for that matter the person who decided to discharge Terrazas. Sanchez testified that Van Druff called him over to his desk, and, to quote San- chez, this is what took place. Q. Can you tell us to the best of your recollection what went on with that conversation with Van Druff? A. I explained to him I thought about firing him the first day of the second week I was there. And we dis- cussed him, I would say, for about half an hour at his desk, and it was decided we should terminate him that day. Q. And was that a joint decision of you and Van Druff or was it your decision, or was it his decision? A. It's hard to say; as far as I'm concerned it was mine. Q. Did you agree with the decision to terminate him? A. Definitely. Immediately prior to this series of questions Respondent's counsel by leading questions asked if Van Druff at the start of the above termination discussion had told Sanchez he had heard about problems that Terrazas was having with female employees. At first Terrazas ignored the question, then when the question was asked again answered "yes" and in testifying about what actually was said, as described above, made no mention of Van Druff bringing up any such problems. I specifically do not credit this testimony that Van Druff either brought up or discussed any such alleged problems with Sanchez. There is no evidence that Sanchez ever told Van Druff about any of these so-called problems Joe Terrazas began work for the Company on September 27, 1971, and was discharged on December 17, 1971. The General Counsel urges that his discharge was motivated by Respondent's union animus. Terrazas who worked in the plastics department virtually spent his entire employment under the immediate supervi- sion of First Line Supervisor Tom Sanchez. Terrazas social- ized with Sanchez outside the plant and considered him a friend. Terrazas signed a card authorizing the Union to represent him and during a number of conversations with other em- ployees in the presence of Supervisor Sanchez openly ex- pressed his support for the Union and in its effort to organize the plant . Terrazas ' testimony on this point is un- denied , and at the hearing Sanchez testified that in fact Terrazas did openly express his sympathy for the Union but Sanchez did not take him serious or know whether to believe Terrazas. Quoting Sanchez, "Like I say, I wouldn't believe him. I couldn't believe him. He could; I really didn't know." Also on the subject of whether he informed other supervi- sors about Terrazas' union sentiments Sanchez testified, "No, I don't believe so." Finally, Sanchez testified that during this period when Terrazas and other employees were talking about the Union that, to quote Sanchez, "I took it for granted that a union was a joke ." This is incredible. It is clear from Sanchez 's testimony and from the record as a whole that at this point of time Sanchez had been informed by his superiors that the Company did not regard the Union as a joke , that it was a serious matter and that the Company was opposed to it . As I have set out earlier in this Decision, Sanchez was telling employees at this time that the supervi- sors were holding meetings at which prounion employees were named , that the supervisors were listening to their employees for the purpose of finding out if they were pro- union , and warned one employee that his name was on the list and to watch out. Clearly, the Union was no joking matter and Sanchez knew that it was not a joke. Based on the foregoing and on my observation of Sanchez whose demeanor was not impressive, I find that Sanchez knew that Terrazas was a union adherent, that he believed he was a union adherent, and that, pursuant to the Company's policy of learning the Union feelings of its employees, Sanchez's information about Terrazas ' union sentiments was commu- nicated by him to his superiors. I will now set out Terrazas' history of employment and the circumstances immediately surrounding his discharge. In doing so, I have completely rejected the testimony of Sanchez where it conflicts with Terrazas '. Sanchez' testimo- ny in all important respects was vague and evasive and on numerous occasions had to be prompted by leading ques- tions . In manner and demeanor he left me with the impres- sion he was not telling the truth. On Monday, December 13, 1971, Terrazas, who on that date had been with the Company about 2-1/2 months, was given his probationary review for his second 30 days by Sanchez. Sanchez rated Terrazas as satisfactory in all re- spects except in his "ability and willingness 'to follow in- structions" which category was rated "improvement needed GTE LENKURT, INCORPORATED 999 Terrazas was having with employees, or that any other per- son had ever told Van Druff. Van Druff who was at the time of the hearing still employed by the Company and could have removed any ambiguity was not called by the Respon- dent to clear up this matter. The failure of the Respondent to call Van Druff makes it especially difficult for me to view the Company 's defense in this discharge . It is clear that Van Druff, if not the person who actually made the decision to discharge , played a prominent role in the decision. Under the circumstances , I can only assume that if called by the Company his testimony would have been unfavorable. Although not specifically testifying that these were the grounds for Terrazas ' discharge Sanchez at the hearing list- ed, in substance, two complaints he had with Terrazas: (1) he did not obey orders of supervisors, and (2) the two female employees in the department were afraid of him. Regarding Terrazas ' failure to obey orders , Sanchez testi- fied that because of this problem in October 1971 soon after Sanchez began work that he recommended that Terrazas be discharged but the person who was then in charge of the plastics department told him to wait a while as Terrazas would probably settle down once work started to come in. And, as described above , on December 13 Sanchez in re- viewing Terrazas indicated that improvement was needed in this area , but that improvement was possible and orally and in writing on the review form stated that Terrazas was "showing improvement" in this area . There is no evidence that between the date of this review (December 13) and the date he was discharged that Terrazas stopped improving or for that matter engaged in any act regarded by the Compa- ny as an act of misconduct. The only evidence adduced by the Respondent in explaining what took place subsequent to the December 13 review to trigger the discharge is the following testimony of Sanchez: A. [Terrazas] showed some minor improvement. When I rated him that day it looked like he was going to improve. Q. But , then , did he go back on one of his bad spells after that? A. Like I said, he was erratic. He would look real good one day, he could really work, and the next day it was like he was in another world. This vague and evasive testimony given in response to a leading question does not establish a deterioration in Terra- zas' conduct after December 13. To the contrary, I am convinced and find that if Terrazas had in fact engaged in any act of misconduct or had gone back to one of his "alleged bad spells" that Sanchez would have been able to answer this simple leading question with a "yes." I find that from December 13 to the date of his discharge Terrazas engaged in no act of misconduct nor did Respondent be- lieve that he had engaged in misconduct. Regarding the allegation that the female employees were afraid to work with Terrazas, Sanchez testified it had come to his attention that he had scared the female employees by telling them he had beat up people on two occasions, had been observed by one female employee trying to pick a lock on one of the department's cabinets and while playing with one of the trim knives used in the department-sticking it in a work table-narrowly missed the hand of one of the employees as she placed something on the table. Whether this was done deliberately or as an accident is not clear. Sanchez had no recollection when the two female employ- ees came to him with the above stories with one exception; namely, the knife-throwing story which allegedly took place approximately 2 weeks before he was fired. Neither of the two employees, one of whom was still with the Company at the time of the hearing, were called to corroborate Sanchez. There is no evidence that Sanchez ever regarded these al- leged acts serious enough to report to Van Druff. Terrazas credibly testified he did not talk rough to the female em- ployees and had not threatened anybody with physical harm. He also credibly testified that Sanchez did not com- plain or criticize him for not getting along with other em- ployees. I do not credit Sanchez's vague and evasive testimony to the contrary. When asked "with this informa- tion [stones from the female employees] coming to you did you talk to Terrazas about his actions and attitudes," San- chez testified, "oh, that's kind of hard. I talked to him. He knew I was having trouble and I was-but at the time I didn't tell him he was going to get fired if he didn't improve right away. I felt anything-it was not comfortable at that time to tell him that." By the phrase "not comfortable" Sanchez apparently was referring to other testimony he gave; namely, that he was not sure of his duties as a supervi- sor until November 1971. Later, however, Sanchez ad- vanced a new reason for not warning Terrazas about his alleged misconduct; namely, that as a recent United States Army Veteran who was wounded in Vietnam Terrazas was having trouble adjusting to civilian life. I do not accept Sanchez's explanations for not warning Terrazas about his alleged misconduct . In this respect, I note that his alleged inexperience as a supervisor did not stop him from as early as October 1971 from taking a more drastic measure of recommending that Terrazas be fired for not following in- structions . Also there is no explanation why he did not speak to Terrazas after he did become more "comfortable" in his position as supervisor . Based on the foregoing, I am convinced and find that the Company's contention that female employees made complaints to Sanchez is complete- ly lacking in evidentiary support and that even assuming that such complaints were made that it is clear the Company never took them serious enough to warrant disciplining or even reprimanding Terrazas. To sum up, the Respondent discharged Terrazas only 4 days after his supervisor had informed him he had shown improvement and was to continue in the Company's em- ploy. During this 4-day period Terrazas engaged in no mis- conduct to justify his discharge, his supervisor who participated in the decision to discharge falsely told Terra- zas he did not know the reason, and the evidence adduced at the hearing demonstrated that Van Druff's explanation for the discharge to Terrazas-could not get along with employees-was completely without substance. These cir- cumstances, when viewed in the context of the Company's union animus and its knowledge that Joe Terrazas was a union adherent establish that Respondent discharged Joe Terrazas on December 17, 1971, because of his union activi- ties and sympathies, and by engaging in such conduct vio- lated Section 8(a)(1) and (3) of the Act. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (z) The discharge of Richard Thompson Richard Thompson was discharged on December 16, 1971. General Counsel contends he was discharged for union activities. The Respondent offered no defense to this charge and unless otherwise noted the facts are based on the undenied testimony of Richard Thompson who impressed me as an honest witness with an accurate recollection of events. Richard Thompson (herein called Mr. Thompson to dis- tinguish him from his wife Sue Thompson herein called Mrs. Thompson) began work for the Company on Septem- ber 21, 1971, and was employed as an assembler until his last 3 weeks of employment, under the supervision of Octa "Doc" Morgan. For the last 3 weeks of his employment he worked under the immediate supervision of Pablo Mirabal soldering blocks and testing. The second level supervisor whom Mirabal reported to was Bob Harrison. Frances Tinnin Hodge, herein called Tinnin, rode with Mr. and Mrs. Thompson to work each day. On the evening of December 9, 1971, after work in the company lot, em- ployee Danny Burbach successfully solicited Mr. and Mrs. Thompson to sign a union card. They signed cards at that time handing them to Burbach. At this time Mrs. Thompson solicited Tinnin to sign a union card and told Tinnin that she had better sign the union card or she could not ride to work any longer with Mr. and Mrs. Thompson. Tinnin did not sign the Union card and continued to ride with the Thompsons. However, sometime after December 9 she spoke to the Company about what had taken place when Mrs. Thompson asked her to sign a card for it was stipulated at the hearing that "if Frances Tinnin were called she would testify that prior to the discharge of [Mr. and Mrs. Thomp- son] that she told Bob Harrison that they were applying pressure to her to get her to sign a card for the Union." On December 16, 1971, a Thursday, during the morning Mr. Thompson's immediate supervisor, Mirabal, asked him to train another employee to perform testing work Thomp- son was doing, explaining to Mr. Thompson, "you may not be around and if you are not I want someone else to test these for me." That afternoon when the afternoon break ended (2:10 p.m.) Mr. Thompson was called to the office of Harrison who told him to sit down and then stated he thought it would be better for Mr. Thompson and best for the Company if Mr. Thompson left. Mr. Thompson think- ing he misheard exclaimed "what!", and Harrison repeated what he had said. Mr. Thompson asked if Harrison had a reason for the discharge. Harrison in response shrugged his shoulders and handed Thompson his check, asked for his badge, and asked if Thompson had any personal belongings at his work station. Thompson said he did not know and Harrison at this point took Thompson by the shoulder and started to lead him out of the plant. Thompson broke away and walked over toward his work station to get his belong- ings, and then started toward the coatrack to get his coat at which point Harrison again took hold of his shoulder and started leading him toward the door. Thompson broke away, got his coat, and Harrison escorted him out of the plant. During his entire course of employment there were never any complaints made by supervision to Mr. Thompson about his work or the manner in which he conducted him- self on the job. Only 3 days before his discharge in discuss- ing an opening for an inspector's job which was scheduled to be posted, Mr. Thompson's supervisor, Mirabal, stated that Thompson would be a good man for that job but that he did not want to lose Thompson because he was so good. Also, employee Sue Miller, an inspector who inspected Mr. Thompson's work during his last 3 weeks, credibly testified that his work was very good, that she seldom found he had made a mistake. To sum up, Harrison's knowledge of Richard Thompson's union activity, the timing of the discharge (within a week after Harrison was told he had solicited employee Tinnin to sign a union card), the abrupt manner of the discharge (prior to the end of the workday or work- week and the unusual way Harrison escorted Thompson out of the plant), Harrison's refusal to give Thompson a reason for the discharge, the failure of the Company to advance any reason for the discharge, Thompson's record as a good employee, and Respondent's hostility toward the Union, establish that the motivating cause for the discharge of Richard Thompson on December 16, 1971, was his union activity. Accordingly, I find that by discharging Richard Thompson the Respondent violated Section 8(a)(1) and (3) of the Act. (aa) The discharge of Corliss Sue Thompson Corliss Sue Thompson , referred to as Mrs. Thompson (wife of discriminatee Richard Thompson ) was discharged with her husband on December 16, 1971. The General Counsel contends she was discharged because of her union activity. Mrs. Thompson from the time she began work for the Company in early November until her discharge consis- tently and openly voiced her support for the Union to other employees in conversations during the break periods in the plant . As described in connection with her husband's dis- charge she signed a union authorization card on December 9 at which time she tried to convince fellow employee Tin- nin to sign a card . Thereafter Tinnin told Second Level Supervisor Harrison that Mr. and Mrs. Thompson were applying pressure to her to get her to sign a card for the Union . It is clear that the Company had knowledge that Mrs. Thompson was an active adherent for the Union. In addition , the following occurrence took place on the morn- ing of Mrs. Thompson 's discharge . Employee Daniel Bur- bach , who had been discharged on December 15 for three successive unexcused absences, had on the morning of De- cember 16 come to work at his usual time (7:30 a.m.) and was told shortly after by Harrison that he had been dis- charged . He was then escorted from the plant by Harrison. As Burbach and Harrison came to Mrs. Thompson's work table on the way out of the plant , Burbach , according to the credible and undenied testimony of Mrs . Thompson, as corroborated by Burbach, told Thompson and the two em- ployees with her that he had been fired and for them "to keep the union going on the inside" and he would continue on the outside. Harrison who was in the process of walking Burbach out of the plant was between 5 to 6 feet from Burbach when he said this and obviously was in a position GTE LENKURT , INCORPORATED 1001 to clearly hear the remark and see the persons to whom it was addressed. On the afternoon of December 16 Mrs . Thompson ob- served her husband being escorted out of the plant by Harri- son in the middle of the afternoon . When Harrison returned to the plant , Mrs. Thompson asked him where her husband had gone and Harrison said to the car. Mrs . Thompson asked for the reason and Harrison stated , to quote Mrs. Thompson, "we felt as though it was best for him and best for the company if he left." Mrs . Thompson repeated her question and Harrison just repeated the same answer. At this point Mrs. Thompson asked Harrison if he was plan- ning on firing her because , if he was not , she was going to quit because she would not work for the Company any longer . Harrison replied "that is fine because I have your check on my desk," and that for Mrs. Thompson the Com- pany had a reason . Mrs. Thompson asked for the reason and was told that her quantity and quality had dropped off during the last week . Mrs. Thompson told him that she had no work in the last week to have any quality or quantity explaining that the employees in her department had either been loaned out to other departments or just stripped wire. Harrison replied , "that's the reason , take it or leave it." Mrs. Thompson got her personal belongings and started to go with Harrison to his office to get her check when he said that they did not have to go to his office since he had her final check in his pocket. The foregoing description of the events which took place immediately prior to and surrounding Mrs. Thompson's discharge are based on her credible and undenied testimo- ny. Although it is clear that the decision to discharge was made by Second Level Supervisor Harrison, the Respon- dent did not have him testify at the hearing to explain his motivation in firing Mrs. Thompson. Respondent 's sole wit- ness with regard to its motivation in discharging Mrs. Thompson was her immediate supervisor Annabelle Hum- phries . Before discussing her testimony I will give a brief outline of Mrs. Thompson's employment history based on her undenied and credible testimony. Mrs. Thompson began work on November 3, 1971, in the assembly department where she primarily did touch up work. Her first line supervisor was Jean Hardy whose boss was Second Level Supervisor Harrison . During approxi- mately the last week in November 1971 Hardy informed the approximately 10 employees who worked on touch up, in- cluding Mrs. Thompson, that she had been instructed to cut her complement of employees down from 10 to 8 and that rather than arbitrarily force two of the employees to transfer she asked whether any of them wanted to transfer. Mrs. Thompson volunteered to transfer stating to Hardy that she would not mind being transferred but did not want to be assigned to the walkaround or taping but wanted to be assigned to a job where she could solder . About the same time Mrs. Thompson also spoke to Harrison and indicated to him that she was not adverse to transferring to another department , the only preference being that she be given a job where she could solder . Then, as described below, on December 1, 1971, Thompson was transferred to Hum- phries' department where she assembled components to printed circuit boards by soldering them on the board. Ac- cording to Mrs. Thompson , she was transferred for a period of 1 day to the factory service department before being placed in Humphries ' department . I have not resolved this issue inasmuch as I do not feel it is essential in deciding the ultimate issue involved in this case. On December 1 Harrison gave Mrs. Thompson her 30- day employee probationary review (she had been employed only 28 days ) explaining it was being given early since she was transferring into another department . The review signed by Harrison rates Thompson satisfactory in all cate- gories with the exception of quantity and quality of work for which the review reads "improvement needed and possi- ble." Also marked on the review is the statement that Thompson should be allowed to continue working for the Company. Harrison when he reviewed Mrs. Thompson's work on this date told her that she would continue in the Company's employ, told her that she needed to improve the quantity and quality of her work but that she had 60 days left in her probationary period to make this improvement, was doing good enough and not to worry about the matter. Mrs. Thompson worked under Humphries ' supervision from Thursday, December 2, through her discharge Thurs- day, December 16. She was loaned out to another depart- ment 1 day (December 10) and was absent 1(December 14). The undenied credible testimony of Mrs. Thompson is that during the week of December 6 through 10 she was loaned out to another department on Friday, December 10, and that there was so little work in the department for the em- ployees to do that Humphries directed the employees to slow down in their work explaining that she did not want her department to be without work. Also undenied is her credible testimony that the following week (the week of her discharge) the normal work in the department was slow, that rather than do their usual work of assembling boards the employees in the department , not loaned out, were doing what is known as stripping wire . The only assembly work done that week by Thompson was on the day she was discharged . Finally, the undenied and credible testimony of Mrs. Thompson is that 1 week before she was discharged Harrison told her that she was "doing real good work in [Humphries'] department." Annabelle Humphries testified , in short , that Mrs. Thompson was an impossible employee from the first day she was transferred over to the department and that on three occasions she told Harrison that Thompson should be fired. Humphries testified that from the first day to the last day she observed Thompson conduct herself in the following fashion : "She would not work and she would talk to other people on the line. She would leave her work station and go over to talk to her husband in another department about 40 feet away. This conduct affected Mrs. Thompson's produc- tion , but even when she sat at her work station working her work was poor, it took her much longer than the other employees to do her work and she showed no signs of im- provement. When asked during the hearing to compare Thompson 's work with that of another employee, Hum- phries testified that she was unable to make this comparison for the reason that Mrs. Thompson never did any work. Humphries continually spoke to Mrs. Thompson about her misconduct and directed her to pay attention to her work but Thompson according to Humphries simply ignored Humphries. Mrs. Thompson credibly testified that the only 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criticism she ever had during her entire employment from a supervisor about her work was from Hardy, when she worked for Hardy, that she was losing speed because she was too meticulous in her work. Finally, both Mr. and Mrs. Thompson credibly testified that the only time during work- ing time that Mrs. Thompson spoke to him was when, dur- ing her normal course of business, she had to walk by his work station to get some cleaner , or when she on occasion went to lunch and picked up their joint lunch pail which was kept at Mr. Thompson's work station and he was working, on these occasions husband and wife would simply ex- change hellos. The demeanor of Humphries when she gave the testimo- ny I have set out above was not impressive . I got the impres- sion that this testimony was grossly, if not entirely, exaggerated . Moreover, it does not ring true when viewed in the context of Mrs. Thompson's previous work record with the Company. During her first 30 days prior to Decem- ber 2 there is no indication that she was regarded by any of her supervisors as an incorrigible talker, who interfered with her own production and the work of others, who constantly left her work station to talk with her husband and other employees, and even when applying herself to her job was incompetent. This certainly is not the picture painted by Harrison's review of Thompson's work dated December 1 or of what he told her at that time. Humphries' explanation as to what suddenly changed on December 2 (Thompson's transfer date) to cause Mrs. Thompson to become a pain in the neck was that Thompson missed her friends in the old department. But the record simply does not support this. No evidence was adduced by Respondent that when told of her transfer that Mrs. Thompson expressed displeasure. To the contrary, it is undenied that Mrs. Thompson was the one who suggested and asked both Hardy and Harrison for a transfer to another department such as Humphries' where soldering was part of the job. I find, in short, that Hum- phries' uncorroborated testimony which pictures Thomp- son as an incorrigible employee is not credible and that a more truthful representation is found in Harrison's com- pliment made to Thompson the week before her discharge that she was doing real good work. Humphries also testified that during the 2-week period that Thompson worked in the department she recommend- ed to Harrison she be fired on three occasions. Harrison was not called to corroborate Humphries. On all three occa- sions, Humphries says, she told Harrison in substance that Mrs. Thompson was a slow worker, talked too much, left her work station, and ignored Humphries' instructions, and that Humphries wanted to fire her. First she spoke to Harri- son on the second day Thompson worked for her; the sec- ond time was sometime during her first week of employment; and the last time about 3 or 4 days before she was fired. The first time, Harrison asked Humphries to work with Thompson. The second time Humphries cannot recall what Harrison said when she asked that he fire Thompson, and the third time, to quote Thompson, "he agreed with me that we should terminate her. I don't know if he had ever decided to but he did agree that we should not keep her." As described above, I am convinced that Humphries' pic- ture of Mrs. Thompson as an undesirable employee is a completely distorted picture and for the same reason I am equally convinced and find that she did not make as she claims three recommendations to Harrison . In this respect, Harrison, still in the employ of the Company at the time of the hearing, was not called to corroborate Humphries. This failure was not explained. I can only conclude that if he testified his testimony would not have been favorable to the Respondent. Even accepting, arguendo, that about Decem- ber 13 Harrison indicated that he would discharge Thomp- son, why did he do it on December 16, abruptly in midafternoon in the middle of the workweek? Regarding the reason for the discharge given by Harrison to Mrs. Thompson when he fired her-her quantity and quality had dropped off in the past week -I note that this is not the reason advanced by the Company through Hum- phries to support the discharge. If Humphries is believed there was no "drop off." Thompson had been consistently poor. But, since Harrison the week before had told Mrs. Thompson her work was very good, he obviously could not fire her for a past history of bad performance but it had to be something of recent vintage. Respondent, however, did not explain how Mrs. Thompson's performance could drop off when the department that week was not doing its usual work. As described above, work had recently been so slow in the department that Humphries had told the employees to slow down so they would not be without work. Finally, assuming arguendo that Mrs. Thompson's production and workmanship in her last week of work did fall off, why was it necessary to abruptly decide to fire her when she still had about 45 more days to go within her probationary period? Harrison had told her 2 weeks earlier when telling her that she could improve in quantity and quality not to worry about the matter as there was enough time left in her proba- tionary period for her to make the necessary improvement. In sum, Harrison's knowledge of Corliss Sue Thompson's Union activities, the timing of the discharge (within a week after Harrison was told she had solicited employee Tinnin to sign a union card and within hours after Harrison heard employee Burbach tell her to actively carry on for the Union in the plant), the abrupt manner of the discharge (prior to the end of the workweek), the lack of substance to the reasons justifying the discharge advanced by the Company at the hearing and by Harrison when he told Thompson she was fired, the inability of the Company to settle on a reason for the discharge (the reasons given by Humphries at the hearing and Harrison to Thompson differ substantially), and Respondent's hostility toward the Union, I find, estab- lish the motivating cause for the discharge of Corliss Sue Thompson was her union activity. Accordingly, I find that by discharging Corliss Sue Thompson on December 16, 1971, the Respondent violated Section 8(a)(1) and (3) of the Act. In reaching this conclusion I have considered Thompson's remark at the time she was discharged that if Harrison intended to fire her she was going to quit the Company regardless of whether Harrison discharged her with her husband. I note that Respondent in its pleadings and in its brief concedes the fact that Mrs. Thompson did not quit but was in fact discharged. Whether Mrs. Thomp- son would have quit if Harrison at that time had not told her she was discharged is in my opinion a matter of conjec- ture and that as the wrongdoer it is the Respondent that must assume the risks of the uncertainty caused by its un- GTE LENKURT, INCORPORATED 1003 lawful discharge . I also am of the opinion , and find, that Mrs. Thompson 's expression that she was quitting does not, in the circumstances , indicate an unequivocal resolve not to accept reinstatement , but was made in the heat of dissatis- faction with the Company's clearly unlawful treatment of her husband (Harrison even refused to tell Mrs . Thompson the reason why her husband had been fired) and could hardly be characterized as a rational , uncoerced decision. I therefore do not consider Mrs. Thompson 's action to be a waiver of her right to reinstatement and shall direct that Respondent reinstate her and make her whole for any loss of pay she may have suffered. Cf. Santa Fe Drilling Compa- ny, 171 NLRB 161, 162. bb. The discharge of Cindy Wallis Cindy Wallis began work for the Company on October 11, 1971, and was discharged on December 13, 1971. The General Counsel contends she was discharged because of her union activities. Wallis signed a union card at some undisclosed time in November . Also, at undisclosed times in November 1971 at lufich she openly expressed her opinion to employees that she was for the Union. Also, on dates and places not dis- closed in the record she asked employees to sign cards for the Union. There is no evidence that any statutory supervi- sors were ever present when she voiced her support for the Union. The only evidence that a statutory supervisor was ever present during her union activities or union conversa- tions was one time in late November when Jim Murray, who had been promoted to first line supervisor on November 21, 1971, was sitting with her at lunch when she indicated she was prounion and in fact solicited Murray , whom she did not realize was a supervisor , to join the Union . This is the only direct evidence of company knowledge of Wallis' union sympathies . I realize that initially Forewoman Nada Holmes testified that Wallis' name, to her surprise, ap- peared on the first list of prounion names shown the super- visors at the Sheridan meeting held on about December 1, 1971. She later corrected this testimony stating that with respect to Wallis she misspoke herself and had meant to testify that she had seen Wallis' name on the list of employ- ees shown supervisors who the Union had charged were unlawfully discharged . Holmes explained that the reason she initially testified she was "surprised " to see Wallis' name on the list was that she had not observed it among the employees listed on the prounion list and was therefore surprised that the Union was charging she was fired for this reason . I credit Holmes ' corrected testimony . Based on the foregoing , however , and the record as a whole , including the Company's systematic effort to learn the attitude of each of its employees toward the Union, I find that the Company learned of Wallis' union sympathies no earlier than late November 1971 when she solicited First Line Supervisor Murray to join the Union. I specifically find, however, that the General Counsel has not established that prior to No- vember 16, 1971 (the date of Wallis' probationary review), that the Respondent had knowledge of Wallis' union activi- ties or sympathies . In this respect I note the record does not establish that Wallis prior to that date had openly voiced her support for the Union. Wallis' first line supervisors were Freida Martindale and Vera Montoya who, during the period relevant to Wallis' case, reported to Nada Holmes. Wallis, who began work on October 11, 1971, received her 30-day probationary review from Martindale and Montoya on November 16. She was rated as satisfactory in only one category, "adherence to company's standards of conduct," and less than satisfactory in all other categories, including attendance. Under the col- umn entitled "remarks" a pencil notation had been placed by Wallis' supervisors reading, "Doesn't follow instructions, attitude and workmanship need improvement." I do not credit the testimony of Wallis that when given this review the supervisors told her that despite the adverse review she was a satisfactory employee, and that she asked why if this was so they had rated her generally as less than satisfactory. I also do not credit Wallis' testimony that she did not re- member whether the above remark was marked on the re- view when she initialed it, and that despite the unsatisfactory nature of this remark and the general unsatis- factory nature of the review that she was verbally told that all employees were reviewed that way and that her work was satisfactory, and like everyone else needed improvement. I realize her testimony was not denied by either Martindale or Montoya who were still employed by the Company at the time of the hearing and testified for Respondent on other matters . But I am convinced that although these supervisors told Wallis that at the end of only 30 days all of the employ- ees in the department, including Wallis , had room for im- provement since they were new and inexperienced, they also pointed out that in Wallis' case that they were especially concerned about her work and job performance in the areas specially penciled in by them in the remark column of the review. Wallis' testimony on this matter was given in a vague and evasive manner and her demeanor was not that of a trustworthy witness. When asked if the penciled in criticisms in the remarks column of the review were there when she initialed it she testified she did not "remember." At one point she testified she did not know whether she had placed the initials "CW" on the review. Only reluctantly did she admit that the "CW" was her handwriting. In short, I find that Respondent on November 15 was not satisfied with Wallis because it believed she did not follow instructions and that her attitude and workmanship needed improvement, and that its concern was over and above the usual belief that probationary employees always had room to improve after just 30 days. I also find that at this time the Respondent was also concerned with Wallis' record of ab- senteeism. In her first 30 days of employment (October I I to November 11) Wallis was absent 34.2 hours. On one of these days she was absent without permission-did not call in. The credible undenied testimony of forewoman Holmes, corroborated by Wallis, establishes that at the beginning of November apparently just prior to the probationary review of November 15 Holmes spoke to Wallis about her absen- teeism, and told Wallis she had to improve, explaining that the Company needed to have its employees present to per- form their work. Wallis explained that she got sick very easy. Wallis' absenteeism record is as follows. During October 1971 she was absent 26.2 hours from October 11 when she began work; in November, absent 22.7 hours; and in De- 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cember, absent December 1 through December 3 and on December 14 and 15. The last two absences as well as one previously were unexcused. The record is hopelessly con- fused with respect to what policy, if any, the Company has with respect to when an employee will'be disciplined or discharged because of absenteeism. But, while it is not clear where the Company draws the line, it is clear and I find that the Company for legitimate business reasons is concerned about employees who have a habit of being absent. In Wal- lis' case even prior to its knowledge of her union activity Holmes early in November 1971 spoke to Wallis about her absenteeism explaining that the Company had to have its work force present to turn out the work. Thereafter, in November, still prior to its knowledge of Wallis' union sen- timents, the Company indicated in Wallis' probationary review that her attendance needed improvement. Thereaf- ter, Wallis was out 3 days the first week in December and was thereafter absent without any excuse on December 14 and 15 at which point Holmes, finding out that Wallis was absent for the second straight day without notifying the Company, decided to fire her, and sent the following tele- gram to Wallis: "You are being terminated within your probationary period for excessive absenteeism...." I spe- cifically do not credit the testimony of Wallis that on De- cember 17 Holmes despite the language on this telegram told Wallis she was discharged for a "three-day unexcused absence." To sum up, Wallis, a probationary employee, was known by the Respondent at the time it decided to discharge her as a union adherent. However, in November 1971, prior to the company's knowledge of her union sympathies, Wallis received her first probationary review which contained a nondiscriminatory written warning stating, "doesn't follow instructions, attitude and workmanship need improvement" and stating that her attendance also needed to show im- provement . During this same time Forewoman Holmes voiced concern to Wallis over her record of absences. In the month following her review Wallis was absent about 7 full days, the last 2 on December 14 and 15 without permission. It was at this point that Holmes decided to discharge Wallis. In my view, Wallis' record of absenteeism, coupled with the prior written warning, Holmes' prior expressed concern to Wallis, and the fact that Wallis was a probationary em- ployee whose performance in other areas had shortly before been criticized by supervision,26 provided ample justifica- tion for her discharge. While I recognize that Wallis at the time she was discharged was known to have been active in voicing support for the Union and that the Company may well have welcomed the opportunity of dispensing with her services, Wallis' union activities do not justify her absentee- ism, which I am convinced was the controlling reason for the discharge. Accordingly, I find that Wallis' discharge was for cause and shall recommend that the allegation of the consolidated complaint related thereto be dismissed. I real- ize that the record shows that employee Frances Tinnin Hodge (Tinnin) during April, May, June, and July 1972 was absent an excessive number of times and was not disciplined 26 Holmes did not testify that the sole reason for discharging Wallis was absenteeism but testified that it was the "primary " reason explaining "[Wal- hs) was slow in other factors " or discharged, and that it appears that the Company be- lieved that Tinnin was against the Union. I cannot however equate Tinnin's position to Wallis'. Wallis was a probation- ary employee whom the Company believed was performing unsatisfactorily in a number of areas as well as being absent excessively. Tinnin was well past her probationary period of employment. cc. The refusal to promote Marla Work and her discharge Marla Work was employed by the Company on Septem- ber 27, 1971, and was discharged on December 17, 1971. During December Respondent failed to promote Work to the position of quality control inspector . The General Coun- sel contends that Respondent refused to promote , and dis- charged , Work because of her union activities. Work, commencing in late October 1971, openly support- ed the Union . She attended a union meeting on October 28, another in November , and another in December . During lunch and coffee breaks in the plant she openly solicited employees to sign union cards and attend union organiza- tional meetings . On one occasion she openly showed em- ployees during the lunch period a copy of the Union's contract covering the Company's San Carlos employees. Forewoman Nada Holmes testified that Work was one of the group of 13 probationary employees whom the Sheridan representatives classified as prounion and in early Decem- ber 1971 told the Company's supervisors , as I have found, to watch them more closely than other employees. (1) The refusal to promote Work at all times was employed as a coil winder in de- partment 320 under the joint immediate supervision of First Line Supervisors Vera Montoya and Freda Martindale who in turn reported to Nada Holmes. Martindale and Montoya on November 8, 1971, gave Work her probationary review for her first 30 days of employment. At this time Work, according to her undenied and credible testimony, was told by Montoya and Martindale she was doing a good job, the quality of her work was good, and regarding the quantity of her work that she was keeping up with the others in the department. They also informed her that her absences were excessive, and she needed to improve in this area. I realize that the review form itself states Work needs to improve in her quantity and quality of work and safety and housekeep- ing as well as in attendance. Work testified that Montoya and Martindale explained in effect that their feeling was that employees who had only been employed for 30 days always had room for improvement in these areas. This testimony is substantially corroborated by the testi- mony of Cindy Wallis, discussed earlier in this decision, as to what she was told by these supervisors at the time of her 30 day review. Moreover, in addition to Work's testimony being undenied, when she testified on this matter and on other matters, Work gave me the impression that she was an honest witness. Finally, other than on the matter of absen- teeism there is no evidence that the Respondent in any way regarded Work's performance or conduct as unsatisfactory. To the contrary, the undenied and credible testimony of employee Piro, still employed by the Company at the time GTE LENKURT, INCORPORATED of the hearing, is that "[Work ] put out as much work as the rest of us." And the credible and undenied testimony of Aura Adams, another employee who worked with Work, is that very rarely was any of Work's work rejected. Finally, as discussed below , Work in December 1971 was selected over approximately seven other employees from her depart- ment for promotion to the position of quality control in- spector . Based on the foregoing, I find that at all times material , that except for the area of absenteeism , the Com- pany regarded Work as a better than average employee. Sometime during the week ending Friday, December 3, 1971, it came to the attention of Work that the Company had posted an opening for the job of quality control inspec- tor. Work at this time went to the personnel office and spoke to Personnel Administrator Al Sturr and through him ap- plied for this job. Approximately seven employees in Work's department applied for this job. The list of appli- cants was turned over to Vance Riley, the supervisor of product assurance , who took their personnel folders and interviewed each applicant , including Work. He decided that Work should get the job. On approximately Tuesday, December 7, 1971, Holmes congratulated Work saying that Holmes and Riley both thought she was the best qualified for the job and informed her that she was supposed to start on the job at the beginning of the next workweek , Monday, December 13, 1971, and that she would be a quality control inspector working in all departments . At the same time, Holmes also gave Work a progress report on her work per- formance stating that the quality of her work was superior, the quantity of her work was very satisfactory, and that her attendance had improved considerably, and told Work she had to have a good attendance record. At this point, Holmes sent a change of status form through to the personnel office which changed Work's personnel file to indicate that she had been promoted to the position of quality control inspec- tor at an increase of approximately 15 cents an hour. Per- sonnel changed Work's labor grade to indicate her higher status and immediately commenced to pay her the higher rate of pay even though she had not yet started on the job. Work was not destined, however, to ever work as a quality control inspector. For later that week, according to the cred- ible and undenied testimony of Work, she was told by Holmes that they could not assign her to the job of quality control inspector for the reason that the Company was tem- porarily out of funds and Holmes did not know how long it would be before Work could begin working in this classifi- cation. The foregoing is based on the testimony of Work and Holmes. Riley did not testify. Work, when she testified on matters relating to her promotion, impressed me as an hon- est witness. Holmes did not. Accordingly, in the few instan- ces their testimony conflicts I have resolved the conflict in favor of Work. Finally, the time sequence is not exact inas- much as both Holmes and Work were not exact as to when 1005 Work first applied, when she was told she had the job, and when she was later told the job did not exist . However, based on Work's credible testimony it is clear that she was told of her promotion and then told that the job did not exist during the week prior to her discharge (December 6 through 10). The fact that paychecks given her on the day she was discharged carried the new rate of pay also supports the above time sequence. To sum up, Respondent announced a job opening for quality control inspector, interviewed numerous employee applicants for the position, selected one of them-Marla Work, told the employees the news of Work's selection, and set a date for Work to assume the new position, changed Work's personnel record to reflect her changed status, start- ed to pay her the new rate of pay, and then suddenly told Work that it had to renege on her promotion for the reason there was no money for the job. This bizzare set of circum- stances, when viewed in the context of Work's union activi- ty, Respondent's extreme hostility toward the Union, and its instructions to supervisors issued shortly before it reneged on Work's promotion that they should in effect discriminate against Work because she was prounion, establishes prima facie that in reneging on Work's promotion the Company was motivated by her union activities. In these circumstanc- es it was incumbent upon Respondent, if it would rebut the General Counsel's case-in-chief, to come forward with evi- dence explaining its conduct, for the real reason lay exclu- sively within its knowledge. At this point I am confronted with a perplexing problem. The person or persons who decided that the inspector's position should not be filled did not testify. This failure is not explained. In particular, the supervisor in charge of this area , Vance Riley, who interviewed the applicants for the position of inspector, selected Work, and who it seems would have been privy to the decision not to fill this posi- tion, did not testify. In any event, I must proceed without the benefit of the testimony from the person or persons who were in the best position to testify under oath as to the actual motive for the Company's conduct. Nada Holmes was the Company's sole witness. It is clear from her testimo- ny that she just acted as a conduit in this matter and that it was either Riley or other persons, unnamed, whose action caused the abrupt cancellation of Work's promotion. At one point Holmes testified she had no idea why Work did not perform as an inspector after being promoted and that she was given no reason for this. It was only when counsel for Respondent reminded Holmes that, "Work testified that you talked to her about the promotion and said the compa- ny was temporarily out of funds, do you recall that," that Holmes replied "oh, all right, this is correct. Mr. Riley and I discussed it with [Work], the budget of product Assurance had stated they didn't have enough budget for another Q.C. inspector at the moment, at the time, so then we had to tell [Work] this." This testimony is Respondent's entire defense. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is completely without corroboration . Moreover, I re- ceived the impression from Holmes while testifying that her testimony that she was informed there was not enough mon- ey in the budget for another inspector was contrived and that her initial testimony that she had no idea of the reason for not filling this position is the truth . Based on the fore- going, I am convinced and find that Respondent 's conten- tion that it did not promote Work because it did not have ample funds budgeted for another quality control inspector is completely lacking in substance . Also, I note that the Company in its answer to the consolidated complaint justi- fied its refusal to promote Work, not because of any budge- tary consideration , but as follows: "Respondent has not promoted Marla Work since Marla Work has not been eligible for promotion ." No evidence was offered to support such a defense . In fact , as described above , Work was not only eligible for the position of inspector but was in fact promoted . This failure by the Respondent to settle on a reason for refusing to promote Work in itself lends support to the inference that the real reason for its conduct is not among those advanced . Moreover , the lack of substance in the reason for not promoting Work advanced at the hearing, which does not jibe with its reason alleged in its answer to the consolidated complaint , in my opinion also strengthens General Counsel's case -in-chief that in refusing to promote Work , Respondent was motivated by her Union activities. Accordingly, I find that Respondent has violated Section 8(a)(1) and (3) of the Act by refusing since December 9, 1971, to promote Marla Work to the position of quality control inspector . In reaching this conclusion , I have con- sidered Holmes ' testimony that the position Work was pro- moted to has never been filled. She testified that at the time of Work 's promotion the inspectors were assigned to specif- ic areas (now, however , the inspectors rove all over the plant), that Holmes ' department never had an assigned in- spector, and this was the position that Work was applying for. Work credibly testified that when Holmes told her she had been promoted Holmes also explained to her that she would be a quality control inspector for all departments, not just Holmes '. I reject Holmes ' testimony and find that Work was promoted to an inspector 's position to inspect in vari- ous departments not just Holmes '. In any event , where as here there is no contention that Work lost her inspector's job because of a lack of work the fact that the position was never filled would not in the circumstances of this case provide a defense for the Respondent . Cf. N.L.R.B. v. Bin- Dictator Company, 356 F.2d 210 (C.A. 6, 1966). (The fact that an employee who is discharged is not replaced after his discharge is evidence to be weighed but not controlling in deciding whether the discharge was unlawfully motivated.) (2) The discharge Work was discharged at the end of the workday on Fri- day, December 17, 1971. At that time Holmes told her that she was discharged because of excessive absenteeism. Holmes testified that on December 16 she decided to dis- charge Work because of excessive absenteeism. ,cork ' s record on absenteeism is as follows: ( 9/27 BEGAN WORK) September October NO ABSENCES 10/6 - 5 hrs. 10/20 - 8 hrs. 10/25 - 2.5 hrs. 10/27 - 2.8 hrs. 10/28 - 2.8 hrs. November December 11/8 - 4 hrs. 12/2 - 8 hrs. 11/12 - 8 hrs. 12/9 - 1 hr. 12/15 - 8 hrs. All of Work 's absences were excused by the Company. Work was absent on 4 whole days all of which were because of sickness, and regarding her other absences for part of the day (except for December 9) she left work early with permis- sion because she was sick or left work early because she had a doctor appointment . On November 8, at the time of her first review as a probationary employee , she was informed her absences were excessive . After November 8 she was absent on November 12 for the entire day. She was not absent again until December 2 when she was absent with permission because of sickness . About December 7 she was notified that she had been promoted to the job of inspector over approximately seven other employees . On December 9 she missed about 1 hour of work while being attended in the plant by the company nurse and returned to work . On about December 11 she was notified that her promotion had in effect been cancelled . On Wednesday , December 15 , feeling she was coming down with the flu she phoned Supervisor Martindale she would not be in , explaining what was the matter , and was told to rest up and come in the next day. The next day, December 16, Work returned and worked the entire day . At the end of the day Holmes, according to the undenied and credible testimony of Work, came to her work station and observing the fact that Work had almost done double the amount of work the other employees had done, commented to Work "that is a good job . I bet you thought I would be mad at you because you weren't here yesterday." That same day, Thursday , December 16, Supervisors Mar- tindale and Montoya apparently made out a probationary review for Work's second 30 days of employment . The re- view form initialed by Montoya , Martindale, and Holmes is dated December 16; it says Work needs improvement in quantity and quality of work , attendance , and safety and housekeeping and states that she should be allowed to con- tinue employment on the condition that Work "must im- prove attendance ." Work credibly testified she was never shown this review form. Neither Montoya or Martindale or Holmes claim that she was shown this form. The record is GTE LENKURT, INCORPORATED 1007 clear that Montoya and Martindale filled out this form. As put by Holmes at the hearing, "The supervisors take care of those [referring to the evaluations contained on the review form]. I have nothing to do with them. All I do is read them and initial them." Neither Montoya nor Martindale were called upon by Respondent to explain the circumstances under which they filled out Work's review dated December 16. I find that on December 16 Work's immediate supervi- sors had decided, as set out in the review form, that Work's employment should be continued under the condition that she improve her attendance. Holmes, however, testified that on this same day, December 16, she decided to discharge Work for excessive absences . There is no explanation why Holmes overruled the decision of Work's immediate super- visors that Work be allowed to continue. In this respect, I note that there is a space on the review for Martindale or Montoya to specifically check if they had not wanted Work to continue working. Since Holmes testified that the proce- dure with respect to the review was for the immediate super- visors to make them out after which they gave them to Holmes to'look at and initial, it is a fair inference that Holmes was given this review on December 16 the date which it bears. Holmes admits she decided to fire Work on December 16 without consulting anyone. Holmes explained her decision to fire Work in the follow- ing way: I felt she had improved because she wanted to be con- sidered for higher position, but when she decided she was not going to be selected, or she wouldn't get the position, she just didn't care again, so she went back to her old habits of being absent. Her attendance was excessive so I decided to terminate her. I considered that she had been given enough warnings. There is no evidence to support any contention that Work was ever absent from work without reason. Other than the above self-serving statement of Holmes there is no evidence that the Company at any time ever believed that Work was absent without good reason. To the contrary, the record shows that on certain occasions when she was sick she did come to work and manage to work for a substantial part of the day before having to leave and that on one occasion December 9 she continued working after resting for 1 hour and receiving some medication from the nurse. Regarding Holmes' contention that Work "had been giv- en enough warnings" about absenteeism , the only evidence of a warning was that given her on November 8 at the time of her first review, discussed above. Since that time, as her undenied and credible testimony shows, she was never warned again and the only time the subject was even men- tioned was by Holmes on the date she told Work of her promotion and after complimenting her on her good work- manship (quantity- and quality-wise) stated that her atten- dance had improved considerably and that she had to have a good attendance record. Assuming arguendo that in the context in which the last remark was made that it constitutes a warning, this was the first time that Holmes had ever seen fit to talk to Work on the subject of absenteeism. Regarding excessive absenteeism sufficient to warrant the discharge of an employee, the Employer has no written rule. Holmes testified, however, that the Company's policy was clear that 16 hours or more a month was considered exces- sive , and this applied to all employees, probationary and nonprobationary. Work on the date she was discharged had been absent 16 hours in December. The policy of 16 hours, Holmes says, was known to all supervisors. Like all of the Company's rules this is not applied hard and fast. Holmes testified this rule was just a "guide line." I find no such rule or policy or "guideline" exists. Holmes' testimony is not corroborated by anyone. To the contrary, all the testimony on this matter contradicted Holmes. First Line Supervisor Cody was never told of any company rule that she was supposed to follow or be guided by concerning absenteeism. Cody testified that the matter is left to the discretion of the first line supervisors and that as far as she was concerned she allowed employees 24 hours (3 days) of absences a month. Likewise First Line Supervisor Lopez did not know of any such company rule or guideline on absenteeism. In fact Holmes' initial testimony indicates she does not know of any such policy. Q. (company counsel) Do you have a policy of your own as to what is considered excessive and what is not, concerning absentism? A. Sixteen hours in a month is considered excessive, as far as I am concerned. [Emphasis supplied.] If this was a company rule, the Company did not apply it to employee Frances Tinnin Hodge, an employee who the record indicates the Company knew had not supported the Union. Tinnin was absent 16 hours or more in April (23 hours), May (16 hours), June (29 hours), and July (32 hours), and was not warned or disciplined, let alone dis- charged. Prior to April Tinnin had been verbally warned about her absenteeism. This leniency toward Tinnin is unexplained. There are also indications that the Company does not compute an employee's absences on the basis of 1 -month, as Holmes did in the case of Work, but uses a longer period of time. First Line Supervisor Lopez testified that the Company computed excessive absenteeism not on the basis of 1 month but over a period of 3 months and that whether absenteeism is excessive is computed on a percentage basis. Lopez was vague and evasive when asked what percentage figure is considered to be excessive. In May 1971 Foreman Smalley in a warning issued to employee Quintana on ab- sences stated among other things "she has also been exces- sively absent in the past three months, her absenteeism has run 15%." Holmes admitted that the Company did use a percentage method in computing absenteeism but testified that the determination as to whether an employee was ab- sent excessively is based on a 1-month period. Lopez and Smalley appear to think otherwise. Based on the foregoing, I am convinced and find that the Company had no established rule or policy governing exces- sive absenteeism which compelled Holmes to discharge Work on December 17. Holmes was less than candid when she testified on this matter. To the contrary, it is clear and I find each supervisor approaches this matter differently and have a large degree of discretion in deciding whether a certain number of absences are excessive and whether the offending employee should be disciplined and if so the type of discipline that should be applied. The issue in this case is whether when Work's situation is viewed in its entirety that supervision using its discretion during the normal course of business would have discharged Work for her absenteeism or whether she was discharged because super- vision knew she was a union adherent. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the record establishes by a preponderance of the evidence that Holmes seized on Work's December 15 absence as an excuse to discharge her because of her union activity. Also, I am convinced that the company would not have fired Work for absenteeism absent its animus toward her because of her union activities. In arriving at these conclusions I have considered the following. (1) Holmes had been instructed shortly before Work's discharge that Work was a prounion probationary employ- ee who should be watched closely because it was more difficult to justify the discharge of an employee once the employee passed the probationary period. As discussed ear- lier, this constitutes a none-too-subtle invitation for supervi- sors to discriminate against the prounion probationary employees. Work was nearing the end of her probationary period. (2) Holmes admits that in determining whether to dis- charge an employee for excessive absenteeism she does not consider the employee's absenteeism in a vacuum. Work was obviously a better than average employee. Immediately prior to her discharge she had been selected for promotion to the position of inspector over several other employees, some of whom had greater seniority. In the one area which the Company had expressed concern, her absenteeism, Work was showing a marked improvement. (3) The disparate manner in which Work was treated. Employee Tinnin, an employee who indicated she did not support the Union, after being warned orally, continued over several months without any discipline whatsoever to be absent far in excess of the Company's alleged policy. (4) First line supervisors Montoya and Martindale on December 16, with knowledge of Work's record of absen- teeism , decided on that date that Work should continue in the Company's employ with the admonition that she should improve her attendance. As First Line Supervisor Cody testified, normally the Company lets its first line supervisors judge this matter. Unexplained is Holmes' veto of their decision. (5) Respondent within 1 week prior to Holmes' decision to discharge Work had refused to promote Work because of her union activities in violation of Section 8(a)(1) and (3) of the Act. In the light of the foregoing, I find that in discharging Marla Work on December 17, 1971, Respondent was moti- vated by her union activities, and by engaging in this con- duct violated Section 8(a)(1) and (3) of the Act. dd. The discharge of Rose Marie Quintana Rose Marie Quintana began work for the company on February 2, 1972, and was discharged on July 10, 1972. General Counsel contends she was discharged because of her union activities. It is established by the undisputed evidence , and I find, that in April 1972 First Line Supervisor Cody believed that Quintana had signed a card authorizing the Union to repre- sent her, that in May 1972 the Respondent definitely learned that in fact Quintana had signed such a union card, and that at the time it discharged Quintana the Respondent knew she was an active union adherent who, among other things, was distributing union literature to employees at the entrances to the plant parking lot. The events and circumstances leading up to and sur- rounding Quintana's discharge now follow.27 Quintana worked under the immediate supervision of Cora Cody in the factory service department. The factory service depart- ment during the period material to this case employed be- tween 5 to 10 employees whose job it was to service the components returned by customers. They repaired and re- placed parts. Upon its receipt at the plant for servicing, a component is checked out by technologist Al Weber. Weber determines what is wrong, marks on a ticket what needs to be repaired or replaced, and attaches this ticket to the com- ponent which is sent to the factory service department. The employees in this department after servicing the component as directed by Weber's ticket, place their stamp on the ticket and send the component back to Weber who tests it to see if it has been correctly serviced. If not, Weber takes the incorrect work to Cody who in turn will take it back and have it redone. Quintana started to work for the company on February 2, 1972, and except for a 3-week period in May (May 6 to May 30) spent her entire employment in the factory service department. During April and early May Weber noticed that the quality of Quintana's work was deteriorating due to carelessness on her part. Quintana was installing the wrong parts and installing parts backwards. Because of the poor quality of Quintana's work Weber in May 1972 suggested to Cody that Quintana either be transferred to another de- partment or discharged. Cody at this time ignored this sug- gestion for the reason that she had been out of the department on jury duty for a substantial period of time during April and early May. Cody felt that perhaps the problem with Quintana's work was a lack of supervision. In short, Cody gave Quintana the benefit of the doubt. Howev- er, upon Quintana's return into the department on June 1 the quality of her work did not improve. Weber credibly testified she was averaging two mistakes each day and made between two and three times as many errors as any other employee in the department. Weber complained to Cody and again suggested she transfer or discharge Quintana. Early in June Cody spoke to Quintana about her work and in substance told her to do less talking and to pay closer attention to the work she was doing. Quintana continued to make errors and Cody on June 14 gave her a written repri- mand for, among other things,26 her poor workmanship, warning that she must show improvement within the next 20 days. The portion pertaining to Quintana's work reads: 27 These events and circumstances are based upon the credible testimony of Cora Cody and Al Weber In manner and demeanor each impressed me as a trustworthy witness Quintana when she testified about her work perfor- mance and in particular the events of July 7 and July 10 did not impress me as a credible witness I have rejected her testimony on these matters when it conflicts with either Cody's or Weber's testimony. 28 This reprimand was also directed against Quintana's absenteeism and tardiness . Regarding the absenteeism she previously received a verbal repri- mand in April after being absent for 5 full days In May, after being absent without an excuse on 3 days (I full day and 2 half-days), she received a written reprimand And immediately preceding the reprimand of June 14 she had been absent 2 full days GTE LENKURT, INCORPORATED 1009 I also talked to [Quintana] about her poor workman- ship, wrong parts, parts in backward, etc. I have warned her several times about her talking too much and not paying attention to her work. It is not denied by Quintana that on June 14 Cody gave her this reprimand, Quintana read it and signed it, and told Cody she agreed with the reprimand and admitted that she had not been paying attention to her work. For approximately the last week and one-half of her em- ployment Quintana, because repair work was slow, usually worked in the part of the factory service department which received merchandise. However, on a number of occasions during this period Quintana did perform normal repair work. One of these days was Friday, July 7, 1972. Cody, who had been on vacation since Monday, July 3, was not super- vising that day. Cody's place had been taken by Weber who was in charge of the department during Cody's absence in addition to performing his usual job. On July 7 Quintana erred on three different job assignments. She miswired two of the jobs and on the third job installed an incorrect part and failed to install another part correctly. One of these mistakes caused test equipment used by Weber to break down for 2 or 3 hours, greatly inconveniencing Weber, de- laying a rush order the Company was trying to expedite. Weber spoke to Quintana about her errors and the inconve- nience it had caused him. Weber also went to John Cook, the second level supervisor over the department, Cody's boss. Weber told Cook what had taken place and Cook told him to make a note of what had occurred, that Cody was due back on Monday and that Cook would inform Cody about the matter. Cody returned from vacation on Monday, July 10, at which time Cook told her what had taken place the previous Friday regarding Quintana. Cody, as she credibly testified, decided at that time to discharge Quintana because of her unsatisfactory work and at the end of the day told Quintana she was sorry but she was discharged explaining that she had previously spoken to her about her bad work and ab- senteeism. Cody testified that she discharged Quintana because of Quintana's unsatisfactory work and that absenteeism played no part whatsoever in the decision. At the time she made this decision Cody testified she also filled out a change-in-status form for Quintana on which Cody, as the reason for the discharge, put, "poor workmanship and ex- cessive absenteeism." As shown above, Cody during the discharge interview indicated to Quintana that one of the reasons for the discharge was excessive absenteeism. Cody testified that she had added absenteeism as a reason for the discharge, even though it was not, because in fact Quintana had been absent quite a bit. This is true. Quintana over her entire employment history was absent a substantial number of times and, as indicated previously, in April and May 1972 had been warned about her absenteeism. Under the circum- stances, I do not believe that this is a situation analagous to one where a respondent employer does not settle on a rea- son for a discharge and by its vacillation indicates that the real reason for the discharge is not among those advanced. I reach the conclusion that the discharge was not unlaw- ful. In my view, the poor work of Quintana which continued over a period of time, when coupled with the written warn- ing issued to Quintana, and the fact that after the warning that on July 7 Quintana made substantial mistakes, provid- ed ample justification for her discharge. There is no showing that Quintana in this regard was treated differently than other employees. While I recognize that Quintana was known to have been active in the Union and that the Re- spondent may well have welcomed the opportunity of dis- pensing with her services, I am convinced that Quintana's objectionable work caused the discharge, and would have done so in the absence of any union activity. Accordingly, I find that Quintana's discharge was for cause and recom- mend the dismissal of the related allegation of the consoli- dated complaint. CONCLUSIONS OF LAW 29 Upon the basis of the foregoing findings of fact and the entire record, I make the following conclusions of law: 1. GTE Lenkurt, Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and refusing to reinstate the employees listed immediately below because of their union activities or union sympathies and to discourage employees from sup- porting the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Aura Adams Lorenzo Carabajal Phillip Gabaldon Barbara Gleicher Gail Griffin Steve Lucero Anthony Maez Jacob Martinez Anthony Montoya Richard Romero Theresa Romero Stella Sena Blackstone Joe Terrazas Richard Thompson Corliss Sue Thompson 4. By refusing to consider Virginia Maes for employment or employ her because of her union membership and sym- pathies and to discourage employees from supporting the Union, the Respondent has engaged in unfair labor practic- es within the meaning of Section 8(a)(1) and (3) of the Act. 5. By failing and refusing since April 7, 1972, to consider for continued employment and to employ Edward Britten- ham because of his union activities and sympathies and to discourage employees from supporting the Union, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By refusing commencing in December 1971 to transfer Carlos Salazar to a position in the stockroom department because of his union activities or sympathies and to discour- age employees from supporting the Union, the Respondent 29 General Counsel, in a number of respects not considered in this Deci- sion, argues the Respondent violated Sec 8(a)(1) of the Act If he is correct the additional alleged acts of misconduct would be cumulative to the unfair labor practices already found, adding nothing to the recommended remedy and Order. For this reason I have not considered these additional alleged acts of misconduct 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has engaged in unfair labor practices within the meaning of Section 8(aXI) and (3) of the Act. 7. By refusing since December 9, 1971, to promote Marla Work to the position of quality control inspector and by discharging Marla Work on December 17, 1971, because of her union activities or sympathies and to discourage em- ployees from supporting the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 8. By issuing written warnings , substantially effecting fu- ture job security, to Joy Bishop, Lorenzo Carabajal, Mari- lyn Hengst, Jacob Martinez and Anthony Montoya because of their union activities or sympathies and to discourage employees from supporting the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. 9. By interrogating employees concerning their own and other employees' union activities and sympathies; by sys- tematically interrogating employees concerning matters which permit conclusions to be drawn with respect to their individual union sympathies or attitudes; by instructing its supervisors that employees and applicants for employment be questioned for the purpose of determining their attitude toward the Union; by instructing its supervisors to report the names of union adherents and sympathizers ; by creating the impression of company surveillance of employees' union activities; by soliciting an employee to revoke her union authorization card and to use her influence to dis- suade other employees from joining or supporting the Union; by threatening employees with unpleasant working conditions , loss of existing benefits , demotion , discharge, layoffs and plant removal because employees support the Union or in the event the employees select the Union; by soliciting employees to find out about and report about the union sympathies and activities of other employees; by granting probationary employees a paid Thanksgiving holi- day for the purpose of dissuading the employees from sup- porting the Union; by granting a paid vacation to employees not eligible under .company policy for the pur- pose of dissuading the employees from supporting the Union; by telling an employee that his request to transfer to another job was refused because of his union sympathies; by notifying an employee he had been promoted in a man- ner designed to create the impression that the promotion was granted as a favor for the purpose of dissuading him to withdraw his support from the Union; by promulgating, maintaining , and enforcing a rule that prohibits employees from distributing union literature in its parking lot during their nonworking time ; by promulgating and maintaining a rule that prohibits employees during nonworking time from soliciting funds in connection with their right to join or support a union or bargain collectively through a union or to otherwise engage in mutual aid or protection within the meaning of Section 7 of the Act; and by promulgating and maintaining a rule which prohibits employees from return- ing to or entering the plant during their nonworking time to solicit union support in nonworking areas of the plant, Re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not otherwise violated the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Re- spondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged the l5 employees named earlier in the Decision in paragraph 3 of the "Conclusions of Law," I find it necessary to order the Respondent to offer them full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, from the date of discharge to the date reinstatement is offered. The Respondent, I also have concluded, unlawfully dis- criminated against Virginia Maes with respect to her appli- cations for employment. Since Maes filled out an initial application in August 1971 at which time she was told that it would be "about 60 days" before she heard from the Company, I find that absent the discrimination she would have been employed on October 4, 1971. This involves a degree of conjecture on my part. Considering the record as a whole, I believe that any doubt as to the date on which the application would have been processed for final consid- eration should be resolved in favor of Maesand against the Respondent, whose unfair labor practices caused the uncer- tainty. There is no uncertainty, however, that during this period of time the Company had job openings and was in fact hiring employees with Maes' background and experi- ence . Accordingly, I shall order the Respondent to offer her immediate employment in the same position at which she would have been employed on October 4, 1971, absent the discrimination. It is further ordered that Respondent make Virginia Maes whole for any loss of earnings suffered by her as the result of the discrimination by payment of a sum of money equal to that which she would have earned from October 4, 1971, until the date she is offered employment, such backpay computed as described earlier in this section. The Respondent commencing in December 1971 having unlawfully refused to transfer Carlos Salazar to a position in the stockroom department, I find it necessary to order the Respondent to offer to Salazar immediate transfer to the position to which he requested transfer in December 1971, and to reimburse him for any loss of earnings he may have suffered as the result of the discrimination against him, with backpay computed as described earlier in this section. The Respondent on December 9, 1971, unlawfully re- fused to promote Marla Work to the position of quality control inspector and on December 17, 1971, unlawfully discharged her. I find it necessary to order the Respondent to offer her full reinstatement and upon reinstatement offer her immediate promotion to the position of quality control inspector discriminatorily denied her on December 9, 1971, and to make Work whole for any loss of earnings she may have suffered by reason of the Respondent's discrimination, GTE LENKURT, INCORPORATED with backpay computed in the manner described earlier in this section. The Respondent unlawfully failed and refused to consid- er for employment and to employ Edward Brittenham. I find that it is necessary to order the Respondent to offer to Brittenham immediate reinstatement to the same position he would have enjoyed if he had not been discriminated against . The record as a whole shows, and I find, that Brit- tenham was qualified by his background and experience to competently perform a number of jobs which were available at the time of the discrimination. Respondent shall also be required to make him whole for any loss of earnings he may have suffered as a result of the discrimination practiced against him since April 7, 1972, the day he was discharged. Backpay shall be computed in the manner previously set forth in this section. As the unfair labor practices committed by the Respon- dent were of a character which go to the very heart of the Act, I shall recommend an Order requiring the Respondent to cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 30 Respondent GTE Lenkurt, Incorporated, its officers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of International Brotherhood of Electrical Workers, AFL- CIO, or any other labor organization, by discriminating against applicants for employment, by discharging employ- ees, by refusing to promote or transfer employees, by issuing written reprimands to employees, or by otherwise discrimi- nating against employees in any manner with regard to their hire and tenure of employment or any term or condition of employment because of their union sympathies or activities. (b) Coercively interrogating employees concerning their union membership, sympathies, or activities, or those of other employees. (c) Giving to employees the impression that their union activities are being kept under surveillance. (d) Coercively soliciting employees to withdraw from the Union and to use their influence to dissuade other employ- ees from joining or supporting the Union. (e) Threatening employees with unpleasant working con- diti6ns, the loss of existing benefits, discharge, demotion, layoff, or plant removal because employees support the 30 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 1011 Union or if employees select the Union to represent them. (f) Informing employees that requests for job transfers have been denied because of union activities or deliberately create the impression that promotions have been granted as a favor to dissuade employees from supporting the Union. (g) Soliciting employees to find out and report about the union sympathies and activities of other employees. (h) Granting improved benefits of employment to dis- suade employees from supporting or joining the Union. (i) Directing that lists be compiled of union activists and sympathizers. (j) Directing that employees and applicants for employ- ment be questioned for the purpose of determining their attitude toward the Union. (k) Promulgating, maintaining, and enforcing a rule that prohibits employees from distributing union literature in the parking lot during their nonworking time. (1) Promulgating and maintaining a rule that prohibits employees during nonworking time from soliciting funds in connection with their right to join or support a union or bargain collectively through a union or to otherwise engage in mutual aid or protection within the meaning of Section 7 of the Act. (m) Promulgating and maintaining a rule which totally prohibits its off-duty employees from entering or remaining on any portion of its premises for the purposes of distribut- ing Union literature or to engage in union solicitation in the nonworking areas of the plant premises during their non- working time unless the limitations imposed on such activity are clearly defined as to times and areas and are demonstra- bly necessary to maintain production, discipline or security. (n) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and 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. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer the 15 employees named in paragraph 3 of the Decision's Conclusions of Law immediate and full rein- statement to their former positions or, if these positions no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges. (b) Offer Virginia Maes and Edward Brittenham imme- diate employment at the same or substantially equivalent positions at which they would have been employed had they not been discriminated against, without prejudice to senior- ity or other rights and privileges they would have acquired. (c) Offer to Carlos Salazar immediate transfer to the po- sition in the stockroom department to which he requested transfer in December 1971. (d) Offer Marla Work immediate and full reinstatement to her former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to seniority or other rights and privileges, and, upon reinstate- ment of Marla Work, offer her immediate promotion to the position of quality control inspector discriminatorily denied 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her on December 9, 1971, without prejudice to seniority or other rights and privileges she would have acquired on this job. (e) Make Virginia Maes , Edward Brittenham , Carlos Sa- lazar, Marla Work, and the 15 employees named in para- graph 3 of the Conclusions of Law whole for any loss of earnings suffered by reason of the discrimination against them, in the manner set forth in the section herein entitled "Remedy." (f) Rescind and delete from personnel files the written reprimands issued to Joy Bishop on May 10, 1971, Lorenzo Carabajal in October 1971. Marilyn Hengst on January 6, 1972, Jacob Martinez on January 10, 1972, and Anthony Montoya on January 24 and March 27, 1972, and give them no effect. (g) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all payroll records, social security payment records. timecards, person- nel records and reports. and all records necessary to analyze the amount of backpay due under the terms of this recom- mended Order. (h) Post at its plant in Albuquerque, New Mexico, copies of the attached notices marked "Appendix." 31 Copies of the notice, on forms provided by the Regional Director for Region 28. after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (i) Notify the Regional Director for Region 28, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the consolidated complaint be dis- missed insofar as it alleges violations of the Act not specifi- cally found. 31 In the e%ent the Board's Order is enforced b% a Judgment of the United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the L nited States Court of Appeals Enforcing an Order of the National Labor Relations Board" Copy with citationCopy as parenthetical citation
