Ri-Del Tool Mfg. Co, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 969 (N.L.R.B. 1972)

RI-DEL TOOL MFG. CO.
Ri-Del Tool Mfg . Co., Inc . and Joel Wright . Case 13-
CA-10890
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 21, 1972, Trial Examiner James V.
Constantine issued the attached decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief and has decided to affirm the Trial
Examiner's rulings, findings,' and conclusions 2 and
to adopt his recommended Order, except as modified
herein.
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 Trial Examiner as modified below and
hereby orders that Respondent, Ri-Del Tool Mfg.
Co., Inc., Chicago, Illinois , its officers, agents, succes-
sors , and assigns, shall take the action set forth in the
Trial Examiner's recommended Order as herein mod-
ified:
1. Delete in paragraph 1(b) of the Trial
Examiner's recommended Order the words "In any
similar or like manner" and substitute the words "In
any other manner."
2. Substitute the attached notice for the Trial
Examiner's notice.
CHAIRMAN MILLER, dissenting:
As the Trial Examiner found, there is not a scin-
tilla of evidence of union animus on this record. Yet
the Trial Examiner and my colleagues would con-
demn , under our Act, the discharge of an employee
who played fast and loose with plant rules, merely
because his last among many offenses, and the one
which triggered his discharge, occurred during a un-
ion organizing campaign . Then, in a fascinating feat
of bootstrapping, my colleagues drop a footnote disa-
969
vowing the unrefuted and irrefutable finding of no
animus because , say they, we have now found the
discharge unlawful and that supplies the animus.
The discharge was for cause; there is nothing to
support the inference that it was for the purpose of
encouraging or discouraging membership in a labor
organization; the complaint should be dismissed.
i The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board 's established policy not to overrule a Trial
Examiner 's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d
362 (C.A. 3) We have carefully examined the record and find no basis for
reversing his findings The fact that the Trial Examiner uniformly credited
witnesses for the General Counsel while discrediting witnesses for Respon-
dent, of itself , affords no basis for overturning the Trial Examiner 's credibili-
ty resolutions . N L R B v Pittsburg Steamship Co., 337 U S 656, 659
2 Inasmuch as the record shows that Respondent 's discharge of Wright
was motivated by his union activity , we do not adopt the Trial Examiner's
conclusion that the record fails to show union animus on Respondent 's part.
Contrary to our dissenting colleague, we have not manufactured out of
whole cloth the evidence of union animus which is established by the record
and which was found by the Trial Examiner who concluded that Wright was
"discharged for his union activity ," and that "Wright's alleged unsatisfac-
tory conduct was 'seized upon by Respondent to serve a discriminatory
purpose' ... to get rid of [Wright] because he was actively promoting the
Union "
Respondent contends that it discharged Wright on September 14, 1971,
because of his absenteeism on September 8 and 9, and because he violated
company rules on September 14 by refusing to visit the company doctor after
having been injured on the job, and by leaving work on that day without
permission and without punching out. These reasons do not meet scrutiny
The record shows that prior to Wright's instigation of the union movement
at Respondent 's facility on September 10, his subsequent distribution of
union authorization cards, and his enlistment of other employees in this
endeavor-of all of which Respondent was well aware-Respondent consid-
ered Wright to be so valuable an employee that it met his three attempts to
quit (between May 10 and August 24, 1971) with pleas that he remain, and
by thereafter according him the special privileges of not being required either
to punch in or to call in when he intended to be absent. It therefore follows
that since Respondent would excuse him from calling in an intended absence,
a fortiori, it also must excuse the absence itself This assigned reason for
Wright's discharge , therefore , falls of its own weight.
The pretextuous nature of Respondent 's second reason is supplied by
credited evidence to the effect that employees who had been injured on the
job prior to Wright 's union activity never had been disciplined for refusing
to see the company doctor, and by Respondent's admission through its
personnel manager that it was "not absolutely mandatory for any injured
employee to go to a doctor . for any type of an injury " Likewise , the merit
in Respondent's third assigned reason must be measured against its admitted
failure even to reprimand Wright for having left work without permission on
three occasions prior to his union activity , and by credited evidence to the
effect that while Wright did not physically punch out on September 14,
Respondent knew when and that he was leaving work since he imparted this
information to a foreman prior to leaving.
It is on the basis of these established facts that the Trial Examiner found,
and we agree , that Wright would not have been discharged had he not been
the "prime mover of the Union at Respondent 's plant," and that his dis-
charge was unlawful because his union activity was a "material or substantial
ground) therefor . Our dissenting colleague, however, would ignore these facts
and find an absence of union animus apparently on the basis of the Trial
Examiner's ill-framed finding that the record fails to disclose union animus.
An examination of the cases on which Trial Examiner relied to support this
finding, however , clearly indicates that he did consider union animus to exist
here, since those cases stand for the proposition that if every alternative
except the fact sought to be proven is shown not to be true , that fact is
indirectly proven herein.
199 NLRB No. 124
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
United Steelworkers of America , AFL-CIO, or
any other labor organization , by discharging em-
ployees or otherwise discriminating in any man-
ner in respect to their tenure of employment or
any term or condition of employment.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer Joel Wright immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent one, without prejudice to his seniority
and other rights and privileges enjoyed by him,
and make him whole for any loss of pay he may
have suffered by reason of his discharge, with
interest thereon at the rate of 6 percent per an-
num.
WE WILL notify immediately the above-
named individual , if presently serving in the
Armed Forces of the United States , of the right
to full reinstatement , upon application after dis-
charge from the Armed Forces , in accordance
with the Selective Service Act and the Universal
Military Training and Service Act.
All our employees are free to become or remain,
or refuse to become or remain , members of the above-
named Union or any other labor organization.
RI-DEL TOOL MFG. CO, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive 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, Room 881, Everett McKinley Dirksen
Building , 219 South Dearborn Street , Chicago, Illi-
nois 60604 , Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an un-
fair labor practice case brought pursuant to Section 10(b) of
the National Labor Relations Act, herein called the Act. 29
U.S.C. 160(b). It was commenced by a complaint issued on
November 9, 1971, by the General Counsel of the National
Labor Relations Board, herein called the Board, through
the Regional Director of Region 13 (Chicago, Illinois), nam-
ing Ri-Del Tool Manufacturing Co., Inc., as the Respon-
dent. Such complaint is based on a charge filed on
September 15, 1971, by Joel Wright, an individual.
In substance the complaint alleges that Respondent
violated Section 8(a)(1) and (3), and that such conduct af-
fects commerce within the meaning of Section 2(6) and (7),
of the Act. Respondent has answered admitting some of the
allegations of the complaint but denying that it committed
any unfair labor practices.
Pursuant to due notice this case came to be heard, and
was tried before me at Chicago, Illinois, on January 10,
1972. All parties were represented at and participated in the
trial, and had full opportunity to introduce evidence, exam-
ine and cross-examine witnesses, file briefs, and offer oral
argument. Respondent's motion to dismiss , made when the
General Counsel rested and renewed at the close of the case,
was denied.
This case presents the issue of whether Respondent
terminated the employment of Joel Wright because he en-
gaged in union or other activity protected by the Act, or for
lawful cause.
Upon the entire record in this case, and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent, an Illinois corporation, is engaged at Chi-
cago, Illinois, in manufacturing dies, metal stampings, and
tools. During the calendar year of 1970 it shipped finished
products valued in excess of $50,000 directly to, and re-
ceived goods and materials valued in excess of $50,000 di-
rectly from, points outside the State of Illinois. I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction over
Respondent in this proceeding.
II THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
RI-DEL TOOL MFG. CO. 971
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
Joel Wright was hired by Respondent in March, 1967,
as a welder at $2.75 an hour. He received raises as follows:
two in 1967, 1968, and 1970, and one in 1969 and 1971. He
also was promised an additional raise in August, 1971. By
the time he was terminated on or about September 15, 1971,
he was paid at the rate of $4.35 an hour.
About May 10, 1971,' Steve Ranoha, Sr., Respondent's
president, in the presence of Respondent's personnel man-
ager, Steve Ranoha, Jr., asked Wright why Wright was caus-
ing trouble to Ranoha, Sr., because Wright was "going to
quit." Although Wright denied he would ever cause trouble
to Ranoha, Sr., the latter replied that he would see Joe
Fuchs (admitted to be Respondent's plant superintendent),
"and we will get it all straightened out." Continuing, Ran-
oha, Sr., asked Wright, "Don't leave me," and assured him
that, after talking with Fuchs, Fuchs would "get it straight-
ened out, whatever the problem was."
Later that day Fuchs informed Wright that Wright
"would be foreman there to run the place . . . that way
[Wright] wanted to do it." As a result Wright became fore-
man over "up to eight employees," including two drill press
operators, one boring mill operator, two painters, two weld-
ers, and one welder's helper. At that time Respondent had
about 38 employees.
About mid-July Ranoha, Sr., in the presence of Ran-
oha, Jr., again complained to Wright that Wright "was
going to quit." This took place in the office. This time
Wright protested that he "wasn't doing [Ranoha, Sr.] any
good there because he [Wright] couldn't get any co-opera-
tion from the main plant across the street, and from Fuchs,"
and because said main plant was supplying Wright with
defective parts. Although Ranoha, Jr., then undertook to
bring Fuchs to the office to "get it straightened out once and
for all," Fuchs was "too busy" and did not come. Thereup-
on Ranoha, Sr., asked Wright not to quit but to "go back
to work ... We need you ... I can't afford to lose you. I
will see Joseph Fuchs. We will get it straightened out once
and for all." Consequently, Wright returned to work.
About August 24, Ranoha, Jr., spoke to Wright in the
presence of Fuchs. When Ranoha asked "what [Wright's]
problem was," the latter replied that too much was expected
of him for what they were paying him. Thereupon Ranoha,
Jr., assured Wright that the freeze order of the President
prevented a raise although Ranoha "had put [Wright] in for
a raise ." At this point Fuchs "became angry" and left. After
further discussion Ranoha, Jr., promised to talk to his father
about a raise for Wright.
Later that day Ranoha, Jr., again spoke to Wright.
After being told by Wright that Wright was not going to
quit, Ranoha told him that Wright would be assigned to a
place where he could work by himself on special work. This
caused Wright to assure Ranoha that Wright would not
quit. Then Ranoha stated that when the Union tried to get
into the plant it "was taking advantage of these ignorant
people that could speak only Spanish." At this point Wright
mentioned that he could help the Union as he had previous-
ly been a union steward before.
Thereafter Wright remained in Respondent's employ
but did not punch in on the days when he worked. Rather,
he reported directly to Plant Superintendent Fuchs. Since
Wright had trouble with his eyes he reported this condition
to Fuchs.
Early in June Wright received pay for 14 days of vaca-
tion to which he was entitled but, because of a shortage of
welders, he being the only one, he arranged with Fuchs not
to take a vacation until more welders were taken on. In
August and early September five or six welders were hired.
On September 10, Wright came to work but did not
punch in. Finding no arc-welding machine available for
him, Wright told Fuchs that he, Wright, was going home.
Nevertheless, Wright promised to work without punching in
on a few parts which Fuchs needed. After completing this
work Wright told Fuchs "had the old man in a hole" that
morning, "revenge will be mine." Then Wright asked Mur-
dolph to obtain the telephone number of the United Steel
Workers from the phone book so that Wright could call that
union. After this Wright resumed work.
Shortly thereafter Wright asked Fuchs to obtain a slip
of paper authorizing Wright to visit the doctor. After return-
ing from the doctor Wright spoke to Ranoha, Jr., and Fuchs
in the presence of employees Murdolph and Yennes. When
Ranoha, Jr., asked for the doctor's diagnosis Wright replied
that his eyes had been "damaged" by something he ate.
At noon on the next day, September 11, Wright tele-
phoned to the United Steel Workers. This led to a meeting
that afternoon between Wright and Mr. Martinez, a repre-
sentative of the Union. On this occasion Martinez gave
Wright some authorization cards as well as instructions to
distribute them to fellow employees.
On Monday, September 13, Wright, accompanied by
employee Yennes, talked union to employees on
Respondent's parking lot and succeeded in inducing some
of them in signing union cards. This occurred before work
started. Plant Superintendent Fuchs "came walking by ...
looked at the cards ... and went on.... " About 10 a.m.
on the same day Wright gave some union cards to employee
Lupi with instructions to distribute them to employees dur-
ing the lunch hour.
Around 12:15 p.m. on September 13, Wright observed
Ranoha, Jr., walk past Lupi. This caused Lupi to try to hide
the union cards he held. But Wright told Lupi in the pres-
ence of Ranoha, "Don't hide the cards. Don't be afraid." At
2:30 p.m. Lupi handed Wright the cards of those employees
who had signed such.
Immediately after the working day ended at 4:15 p.m.
on September 13 Wright, accompanied by employees Yen-
nes and Murdolph, resumed soliciting employees on the
parking lot to sign union cards. Murdolph did sign and, as
he did so, Ranoha, Sr., walked by close enough to see what
Murdolph was doing.
Wright continued soliciting employees and giving them
union cards on the parking lot before working time on the
morning of September 14. Employee Yennes, who was with
him, assisted in distributing such cards. Fuchs observed this
as he walked past Wright. In fact Fuchs asked Wright, "Do
1 All dates mentioned hereafter refer to 1971 except where otherwise spe- you have one for me?" So Wright handed Fuchs a union
cifically noted
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card. Later Fuchs placed this union card on his desk. Soon
employee Yennes asked Fuchs, "Aren't you going to sign
it?" Fuchs replied, "I'll sign it but it won't do me any good."
About 2:20 p.m. on September 14 Wright injured his
back and hand while working. Although Fuchs directed
Wright to go to the company doctor, Wright refused be-
cause he was "too dirty." Instead, Wright asked to be al-
lowed to go home to clean up and then to visit the doctor
the next morning. However, Fuchs insisted that Wright go
to the doctor immediately. Nevertheless, Wright left the
plant at 2:30 p.m. As he left he asked the foreman to punch
out for him at 2:30.
When Wright arrived at the plant at 9:30 a.m. on Sep-
tember 15, he asked Fuchs to "send" Wright to the doctor.
But Fuchs refused with the explanation that "they let you
go," i.e., that Wright had been discharged. When Wright
protested that he should not have been terminated "for
getting hurt," Fuchs elucidated with the statement, "They
let you go for not going to the doctor and other things."
Although Wright did not work on September 8 or 9 he
did not call in to inform his superior that he would not be
working on those days. While other employees were re-
quired to call in such instances, Wright was not. On Septem-
ber 10, Wright went to see the doctor about an injury he
sustained a month or two before.
When cross-examined Wright admitted that since
May, 1971, he was late and absent "many times," but the
question of being late was never brought up by his superiors.
About September 13 employee Mohammed Yennes
passed out union cards to employees on the parking lot
before work started. While Yennes engaged in this activity
Plant Superintendent Fuchs walked by and "saw some of
the guys signing the cards." Shortly thereafter, when Yennes
was in the toolroom, Fuchs asked him, "Where is mine.
Everybody signing one . I don't have one." But Yennes re-
fused to give one to Fuchs, assigning as a reason therefore
that Fuchs, as foreman, did not need one. Later that day
Fuchs twice tapped Yennes on the back and each time
accosted the latter with "Here's the union steward." When
Yennes left work at 4 p.m. on said September 13 he gave a
union card to Murdolph in the presence of Wright. While
Murdolph was signing it, the Ranoha's, Sr. and Jr., came by
and observed him doing so, but they said nothing.
Employee Yennes had been injured on the job "many
times ," but he has never been disciplined for failing to go
to a doctor to be treated therefor, although he "always" has
been asked whether he wanted to go. However, he did once
go to the company's doctor for an injury to his hand. In fact
Yennes testified that Respondent had no rules "about going
to company doctor" when an employee was injured at work.
In addition, Yennes testified that all employees punch in
and punch out.
B. Respondent's Evidence
Joseph Fuchs, Respondent's plant superintendent, tes-
tified first on behalf of Respondent. A summary of his
testimony follows.
Wright has been under the supervision of Fuchs since
Wright became an employee. All employees, including
Wright, are required, pursuant to "a policy in effect ... to
punch in [when they come in to work] and to punch out
when they leave." In fact that policy also applied to Fuchs,
so that he has punched in and punched out every day he has
worked.
All employees have the same shift, which is from 7 a.m.
to 4 p.m. Any employee injured on the job is obliged, pur-
suant to "a company policy," to report to Fuchs "and, if
there is something serious, [Fuchs] takes them to the doctor
[Corbett Clinic] right away or somebody from the plant
takes them." Such clinic is about 8 blocks away from
Respondent's plant.
It is "company policy," according to Fuchs, that em-
ployees, including him, shall call in or notify the Company
"at about ... 9:30 or ten o'clock in the morning" if they do
not intend to be at work on a particular day. Although
Wright did not work on September 8 and 9 he did not, "to
my [Fuchs'] knowledge," call the Company to inform it that
he would be absent on those 2 days. While Wright was
employed he sometimes left work before the quitting time
of 4 p.m., but always obtained permission from Fuchs to do
so. On these occasions Wright punched out.
On cross-examination Fuchs claimed that Wright was
discharged because "he [Wright] refused to go to a doctor
Tuesday ... he didn't punch out, he didn't leave word with
nobody, just walked out. He didn't wait till we [Fuchs and
Ranoha, Jr.] come back." Fuchs further insisted that
Wright's "leaving the premises without nobody knowing
... is against company policy." However, Wright had on
other occasions prior to this left work without permission
but was not even reprimanded for such conduct. In fact
Fuchs admitted that "in the past the company has gone
along with Wright walking off the job since the owner on
three occasions caught up with Wright and asked him to
come back to work."
Also, Fuchs on cross-examination asserted that Wright
had never before left without punching out. In addition,
Fuchs mentioned that no other employee in the last 10 years
had been fired for refusing to go to the doctor, but no
employee in that period had ever so refused.
Finally, Fuchs insisted on cross-examination that he
had no knowledge of union activity at the plant until after
Wright was discharged, and that he never saw anyone sign-
mg union cards or noticed employees "discussing anything
about the union."
Respondent concluded its case with testimony by Ste-
phen Ranoha, Jr., Respondent's personnel manager. An
abridgment of his testimony is set forth below.
According to Ranoha, Jr., Respondent has a policy
that "a man is supposed to punch [a card] in when he comes
in the morning and out whenever he leaves the premises
whether it be lunch or quitting time ." These cards are used
to ascertain the number of hours worked by each employee
during the week. Respondent also has a policy that an em-
ployee must notify the office before noon of any day on
which he intends to be absent "for reason of illness or any
other reason," and in connection therewith is required to
mention the cause of such absence.
On September 10 Fuchs spoke to Wright concerning
trouble which Wright was experiencing with his eyes. Since
all arc-welding machines were in use at the time Fuchs had
instructed Wright " to set up the acetylene torches." Howev-
RI-DEL TOOL MFG. CO. 973
er, because Wright requested to go to the Corbett Clinic for
his eyes, Fuchs authorized him to proceed to it. When
Wright returned from the Clinic at about noon Wright com-
plained to Fuchs that "the company paid off the clinic to
tell him [Wright] that there was nothing wrong with his
eyes," but Fuchs categorically told Wright "that's not true."
In this conversation Wright asked for a telephone book, and
Fuchs handed one to him.
Following this Fuchs called upon Ranoha, Jr.,
Respondent's personnel manager, to inform the latter that
Wright had accused the company of "paying off the clinic."
Ranoha, Jr., replied, "It's impossible." Shortly thereafter
Wright punched out before quitting time, but without ask-
ing for permission to do so. Still later on the same day,
September 10, at about 4 p.m., Wright returned to the plant
to obtain his paycheck. He asked Fuchs why he, Wright,
had been discharged. However, Wright was immediately
rehired at this time.
Fuchs saw Wright with employee Yennes on Septem-
ber 13 by the employees' parking lot, but they were not
"carrying anything." At no time did Fuchs speak to either
of them at the parking lot.
Fuchs had occasion on September 14 to notice that
Wright's hand was "bumped and ... puffed up." Then he
reported to Ranoha, Jr., that, although Wright had hurt his
hand, Wright had declined to go to the doctor although
Fuchs had offered to take him there. When Fuchs returned
from Ranoha's office 4 or 5 minutes later he found that
Wright had left the welding shop without punching out.
At about 9 a.m. on September 15 Fuchs spoke to
Wright just before Wright came in to work. When Wright
inquired why he was fired Fuchs replied that it resulted
from Wright's "punching out or he left the premises without
anybody knowing and that's why he [Wright] was fired. He
[Wright] didn't report to the doctor."
About 2 days after Wright was discharged on Septem-
ber 14 Wright, in the presence of Yennes, handed Fuchs a
union authorization card on the parking lot. Although
Fuchs_ had asked Wright for it, the two did not on that
occasion engage in any other conversation. However, Fuchs
never saw Wright passing out such cards prior to this day.
Wright did not give Fuchs a union card on September 14.
Wright's timecards show that he did not work on Sep-
tember 8 and 9. See Respondent's Exhibits 3 and 4. They
also disclose that on September 10 he punched out after
working 5 hours, and that on September 14 he left after
working 7 hours without punching out. Wright did not call
in on September 8 and 9 that he would be absent on those
days.
In early September, Ranoha, Jr., told Wright that Re-
spondent had a rush project which had to be completed that
month, that Respondent "could not put up with any absen-
teeism because we had to get it out," and that Wright should
"go back." Wright promised to "try."
Previously, on September 10, Ranoha, Sr., spoke to
Wright in the presence of Ranoha, Jr. Ranoha, Sr., men-
tioned that "We can't put up with this absenteeism any
more [because] we've got a big project to get out." When
Ranoha, Sr., asked Wright if the latter was going to work
and "Are you ready to work," Wright replied in the affirma-
tive. Thereupon Ranoha, Sr., immediately reemployed
Wright. However, Ranoha, Jr., claims he did not speak to
Wright on September 13.
On September 14 Ranoha, Jr., discussed with Fuchs the
fact that Wright had just been injured on the job. After he
ascertained the extent of the injury, Ranoha, Jr., instructed
Fuchs to send Wright to the doctor. But Fuchs replied that
although he had done so, Wright did not want to go. There-
upon Ranoha, Jr., accompanied Fuchs to Wright's work
station only to learn that Wright had left without punching
out. Soon Ranoha, Jr., accompanied by Fuchs, reported to
Ranoha, Sr., the events recited above in this paragraph.
Fuchs asked, "What are we going to do?" When Ranoha,
Jr., replied that Wright "has to be let go," both Fuchs and
Ranoha, Sr., "coincided with" Ranoha, Jr. Thereupon Ran-
oha, Jr., pulled Wright's card from the time rack. Contin-
uing his testimony, Ranoha, Jr., insisted that no injured
employee in the past had refused to visit a doctor when
requested by Respondent to do so.
As Ranoha was going home on September 13 with
Ranoha, Sr., he saw Wright and employee Yennes on the
company parking lot shortly after quitting time-, but Ran-
oha, Jr., observed nothing in their hands and spoke to nei-
ther of them. In fact Ranoha, Jr., never saw a union card
until September 16 or 17 when Fuchs handed him one which
Fuchs had received from Wright. Nor did Ranoha, Jr., ever
see employee Lupi with cards' at any time.
Finally, Ranoha, Jr., testified that, notwithstanding a
company rule or policy that an injured employee was re-
quired to go to a doctor and that "if they did not do so they
would be subject to discipline," Wright was the first one
who was discharged "for failing to go to a doctor when they
received injures on a job." However, Ranoha, Jr., added
that prior to September 14 no other employee who was
injured at work had ever refused to go to a doctor. He
concluded his testimony by mentioning that it was "not
absolutely mandatory for any injured employee to go to a
doctor ... for any type of an injury."
C. Concluding Findings and Discussion
Initially, I rule that there is imposed on the General
Counsel the burden of proving the allegations of the com-
plaint, that this burden remains with him during the entire
trial, and that no burden rests upon the Respondent to
disprove any part of the General Counsel's case.
As noted below, I have resolved some credibility issues
in favor of the General Counsel and against the Respon-
dent. But I expressly rule that this does not aid the General
Counsel in sustaining his burden of proof. Indeed, the Gen-
eral Counsel must establish his case by affirmative evidence.
And I further rule that discrediting of any of the
Respondent's evidence does not, without more, constitute
affirmative evidence capable of sustaining or supporting the
General Counsel's obligation to prove his case. N.LR.B. v.
Berggren, 406 F.2d 239, 246 (C.A. 8); Guinan v. Famous
Players, 167 N.E. 235, 243 (Mass.). "The mere disbelief of
testimony establishes nothing." N.L.R.B. v. Joseph Antell,
Inc., 358 F.2d 880, 883 (C.A. 1). "The burden is upon the
General Counsel to establish a prima facie case ... and this
burden is not satisfied simply by the Trial Examiner's disbe-
lief of [Respondent's witness] sworn denial [of General
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's evidence]." Council of Bagel and Bialy Bakeries,
175 NLRB 902, 903. But see N.L.R.B. v. Walton Manufac-
turing Co., 369 U.S. 404, 408, where the Supreme Court
indicates that if a witness "is fabricating ... there [may be]
no alternative but to assume the truth of what he denies."
Upon considering the whole record I am of the opin-
ion, and find, that Wright was discharged for his activity on
behalf of the Union, and that the grounds assigned for such
discharge, i.e., that he refused to see a doctor, that he left
work without permission, and that he left work without
punching out, are pretexts to disguise the true reasons.
While this ultimate finding is derived from the entire record
in this case, it also is based on the following subsidiary
findings, which I hereby find as facts.
1. Respondent was cognizant of Wright's union activi-
ty. In the first place, I find that the Board's small plant rule
comprehends Respondent's operations, i.e., Respondent
employed such a small complement of employees that it is
reasonable to infer-and I do so-that it was aware of
union activity occurring at its plant. Angwell Curtain Com-
pany, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7); American
Grinding & Machine Co., 150 NLRB 1357, 1358.
In addition, I credit Wright that on September 13 Plant
Superintendent Fuchs observed Wright handing out union
cards to employees on the Company's parking lot; that
Wright in the presence of Ranoha, Jr., encouraged employ-
ee Lupi to continue distributing union cards; and that Ran-
oha, Sr., saw Wright obtaining employee Murdolph's
signature to a union card. Further, I credit Wright that on
September 14 he gave Fuchs a union card at the request of
Fuchs. Respondent's evidence inconsistent with the forego-
ing findings is not credited. In fact, Fuchs did admit asking
for and receiving a union card from Wright but claimed this
happened about 2 days after Wright was terminated, i.e.,
about September 16. As set forth above, I find that this
happened on September 14 while Wright was still employed
by Respondent.
Finally, although I have not placed much reliance
thereon, I find that the abruptness of Wright's discharge
indicated that his union activity was known to Respondent.
Texas Industries, Inc., 156 NLRB 423, 425-426.
At this point it is desirable to mention that I am aware
of, and have followed, the principle that union activity nei-
ther confers immunity, nor is a guarantee, against being
discharged for cause (Hawkins v. N.L.R.B., 358 F.2d 281,
283-284 (C.A. 7); N.L.R.B. v. McGahey, 233 F.2d 406, 413
(C.A. 5); N.L.R.B. v. Dell, 283 F.2d 733, 736 (C.A. 5);
Whitecraft Houseboat Division, 195 NLRB No. 189; and that
the Board may not "substitute [its] judgment for the
Respondent 's business judgment" in dismissing an employ-
ee. Thurston Motor Lines, Inc., 149 NLRB 1368. See, also,
N.L.R.B. v. United Parcel Service, Inc., 317 F.2d 912, 914
(C.A. 1). Nevertheless, eliminating a strong proponent of
unionism often tends to discourage other employees from
being interested in a union 's organizational campaign. "Ob-
viously the discharge of a leading union advocate is a most
effective method of undermining a union organization ef-
fort." N.L.R.B. v. Longhorn Transfer Service, Inc, (C.A. 5),
346 F.2d 1003, 1006,,and this fact may be evaluated in
determining the actual reason inspiring a discharge. N.L.R.
B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5); Maphis
Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4).
2. Wright was quite active on behalf of the Union.
Since he contributed so much to said movement he became
a target for employer concern. Patently, discharging an em-
ployee who performs major efforts for a union may frustrate
or at least effectively retard a union's drive to organize a
plant. On this aspect of the case it is significant that "Direct
evidence of a purpose to discriminate is rarely obtained,
especially as employers acquire some sophistication about
the rights of their employees under the Act; but such pur-
pose may be established by circumstantial evidence." Corrie
Corporation v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Nowa-
days it is usually a case of more subtlety.... .. N.L.R.B. v.
Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5). Consequently, it
is not ununsual for an employer to emphasize an employee's
real or doubtful shortcomings which had been previously
overlooked to justify a termination prompted by antiunion
motives. I find that the foregoing comments of the above
courts apply to Wright's discharge.
3. Wright was precipitately discharged contemporane-
ously with the commencement of the Union's organizing
campaign. This fact makes operative the principle that ab-
ruptness, manner, and timing of a discharge cast light upon
the issue of whether an employee was terminated for cause
or whether the reasons asserted therefore are advanced as
a pretext to hide antiunion hostility. E. Anthony & Sons Inc.,
v. N.L.R.B., 163 F.2d 22,26-27 (C.A.D.C.); ArkansasLouisi-
ana Gas Company, 142 NLRB 1083, 1085-1086. "The ab-
ruptness of a discharge and its timing are persuasive evi-
dence as to motivation." N.L.R.B. v. Montgomery Ward &
Co., 242 F.2d 497, 502 (C.A. 2), cert. denied, 355 U.S. 829.
Accord: N.L.R.B. v. Hawthorn Company, 404 F.2d 1205,
1210 (C.A. 8); N.L.R.B. v. L.E. Farrell Co., 360 F.2d 205,
208 (C.A. 2).
It is true that mere abruptness of a discharge during a
union campaign does not prevent a discharge from being
effected for cause. Cf. Mill Electric Mfg. Co. v. N.L.R.B.,
265 F.2d 225, 226-227 (C.A. 7); Whitcraft Houseboat Divi-
sion, 195 NLRB No. 189. But in Wright's case, I find that
the suddenness of the decision to terminate him, when ap-
praised along with the other facts found herein, points to the
conclusion that his conduct would not have led to his dis-
charge if he had not been the prime mover of the Union at
Respondent's plant. Cf. N.L.R.B. v. Symons Mfg. Co., 328
F.2d 835, 837 (C.A. 7).
It is true that I may not question the severity of disci-
pline imposed, i.e., a discharge, for what I consider minor
infractions of Respondent's policies by Wright, for the pen-
alty to be meted out for transgressions of an employer's
work rules may not be reviewed by me. Portable Electric
Tools, Inc. v. N.L.R.B., 309 F.2d 423,426 (C.A. 7). "Whatev-
er ... we might think of the wisdom or the `business judg-
ment' of discharging an employee because of [insignificant
violations of work rules] and indeed after the employee has
in the day-to-day operation of the company's business prov-
en himself satisfactory, nonetheless, we must respect the
right of a company to make such a decision. . . . It is
elemental that a company may discharge an employee for
a good reason, a bad reason, or indeed for no reason at all."
RI-DEL TOOL MFG. CO.
N.L.R.B. v. United Parcel Service, Inc., 317 F.2d 912, 914
(C.A. 1); Betts Baking Co., Inc. v. N.L.R.B., 380 F.2d 199,
203 (C.A. 10).
Nevertheless, "The mere existence of valid grounds for
a discharge is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d
835, 837 (C.A. 7). While it is true that the record fails to
disclose antiunion bias, animus, or activity by Respondent
(Cf. N.L.R.B. v. Kaye, 272 F.2d 112, 114 (C.A. 7), I never-
theless find that the facts found herein warrant the result,
and I find, that Wright was discharged not for his minor
violations of work rules but for his union activity. Lack of
union animus is not fatal. Terry Industries, 164 NLRB 872,
874,403 F.2d 633 (C.A. 4); Crandall-Hicks of Wellesley, Inc.,
185 NLRB No. 1. "The mere existence of valid grounds for
a discharge is no defense to a charge that the discharge was
unlawful ... " N.L.R.B. v. Symons Manufacturing Co., 328
F.2d 835, 837 (C.A. 7).
4. Respondent's rules about punching in and out, going
to a doctor when injured on the job, calling in when not
intending to work, and leaving work without permission
were not uniformly enforced. Thus I credit Wright that,
after he ceased being a supervisor and resumed working as
an employee, he did not always punch in on the days he
came to work but, instead, reported directly to Plant Super-
intendent Fuchs. And I credit employee Yennes that Yen-
nes was not disciplined for failing to visit a doctor when he
was injured on the job. In fact Yennes testified, and I credit
him, that no company rule required an employee to go to
a doctor under such circumstances although it was custom-
ary to ask an employee whether he desired to go to a physi-
cian when so injured. Hence it is doubtful whether
Respondent had adopted a hard and fast rule that seeing a
doctor was mandatory when injured on the job.
Additionally, I credit Wright that, although other em-
ployees were obliged to do so, he was not required to call
in on those days when he did not intend to come to work.
Finally, I find that on September 14 Wright did not leave
without permission before the working day ended because
I credit him that he asked the foreman to punch out for him
when Wright left at 2:30 p.m. Patently the -failure of the
foreman to protest or object to Wright's action amounts to
an implied approval of Wright's leaving the plant at the
time.
The foregoing findings in this subsection demonstrate,
and I find, that Respondent' s rules, which had not been
seriously implemented prior to Wright's discharge, were
suddenly actuated or animated to get rid of him. Since these
rules had remained practically inert up to then it is reason-
able to infer-and I do so-that when they were swiftly
revived and applied to Wright it was because he was actively
promoting the Union.
In any event, I find, crediting Wright, that at no time
had he been alerted to the fact that his failure to observe the
rules, such as failing to call in or to punch in and out,
exposed him to the risk of losing his job. I find that it is
reasonable to infer-and I do so-that a warning would be
given to an employee that he is encountering possible disci-
plinary action by conduct considered objectionable by his
975
employer. Accordingly, I find that the failure to put Wright
on notice under the circumstances has probative value in
ascertaining the actual reason for terminating him. E. An-
thony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.);
N.L.R.B. v. Melrose Co., 351 F.2d 693, 699 (C.A. 8).
"Even assuming that [Wright] did violate a company
rule [by his conduct as described by Fuchs and Ranoha, Jr.]
this would not help the Company if the real motivation for
his discharge was his union activity." N.L.R.B. v. Murray-
Ohio Manufacturing Company, 358 F.2d 948, 950 (C.A. 6).
I find that Wright's alleged unsatisfactory conduct was
"seized upon by Respondent to serve a discriminatory pur-
pose." N.L.R.B. v. West Side Carpet Cleaning Co. 329 F.2d
758, 761 (C.A. 6).
6. Although not of overriding importance, I find that,
assuming Wright's conduct in the past would have justified
his discharge on the occasion of its occurrence, Respondent
condoned or overlooked this by doing nothing about it.
Midwest Towel Service, 143 NLRB 744, 754, enfd. 339 F.2d
958 (C.A. 7); Stewart Die Casting Corp. v. N.L.R.B., 114
F.2d 849, 855-856 (C.A. 7), cert. denied 312 U.S. 680. Not
only did Respondent ignore Wright's past alleged disregard
of company rules, but Respondent actually rewarded
Wright by granting him seven pay raises between 1967,
when he was hired, and the time he was let go, so that his
hourly rate of $2.75 at the time of his hiring became $4.25
when he was discharged. Cf. N.L.R.B. v. Cast Optics Corpo-
ration (C.A. 3), decided March 23, 1971. Unsatisfactory
employees are neither retained on the job nor consistently
awarded pay increases for their derelictions. Therefore, it is
reasonable to assume that Wright performed satisfactorily
and that his alleged shortcomings did not cause Respondent
any concern until it was discovered that Wright vigorously
espoused the Union.
7. Finally, in order to find a discriminatory intent it is
not necessary to find that Wright's union activity was the
only factor responsible for his discharge. It is sufficient to
find that his termination was unlawful if his union activity
was a motivating or substantial ground for his discharge
notwithstanding that a valid ground may have existed for
applying disciplinary measures. N.L.R.B. v. Midwest Towel
Service, 339 F.2d 958, 962 (C.A. 7); N.L.R.B. v. Symons
Manufacturing Co., 328 F.2d 835, 837 (C.A. 7); N.L.R.B. v.
Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4); Betts Bak-
ing Co. v. N.L.R.B., 380 F.2d 199, 203-204 (C.A. 10); N.L.R.
B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1);
N.L.R.B. v. L.E. Farrell Company, Inc., 360 F.2d 205, 208
(C.A. 2). And I expressly find that Wright's union activity
was a substantial or motivating-but not necessarily the
only-ground for his discharge.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activity of Respondent set forth in section III,
above, found to constitute an unfair labor practice, occur-
ring in connection with its operations described in section
I, above, has a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
As Respondent has been found to have engaged in an
unfair labor practice I shall recommend that it be ordered
to cease and desist therefrom and that it take specific af-
firmative action, as set forth, below, designed to effectuate
the policies of the Act.
In view of the finding that Respondent unlawfully dis-
charged Wright, it will be recommended that it be ordered
to offer him immediate and full reinstatement to his former
position or, if such is not available, one which is substantial-
ly equivalent thereto, without prejudice to his seniority and
other rights and privileges. It will additionally be recom-
mended that Wright be made whole for any loss of earnings
suffered by reason of his discharge.
In making Wright whole Respondent shall pay to him
a sum of money equal to that which he would have earned
as wages from the date he was terminated to the date of
reinstatement or a proper offer of reinstatement, as the case
may be, less his net earnings during such period. Such back-
pay, if any, is to be computed on a quarterly basis in the
manner established by F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent calculated
according to the formula prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716. It will also be recommended
that Respondent preserve and make available to the Board
or its agents, upon reasonable request, all pertinent records
and data necessary to aid in analyzing and determining
whatever backpay may be due. Finally, it will be recom-
mended that Respondent post appropriate notices.
Upon the facts unfolded by this record, the discharge
of Wright does not in my opinion reflect a general disregard
of or hostility to the Act, and I so find. Accordingly, I find
that a broad remedial order against Respondent is not war-
ranted. Rather, I find that it will effectuate the policies of
the Act to enjoin Respondent from repeating the conduct
found above to be a violation of the Act and similar or like
conduct.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of employ-
ment of Joel Wright, thereby discouraging membership in
the Union, a labor organization, Respondent has engaged
in an unfair labor practice condemned by Section 8(a)(3)
and (1) of the Act.
4. The foregoing unfair labor practice affects com-
merce within the contemplation of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER2
Respondent, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization, by discharging employees or oth-
erwise discriminating in any manner in respect to their ten-
ure of employment or any term or condition of
employment.
(b) In any similar or like manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Joel Wright immediate and full reinstatement
to his former job, or if that job no longer exists, to a substan-
tially equivalent one, without prejudice to his seniority and
other rights and privileges previously enjoyed by him, and
make him whole for any loss of pay he may have suffered,
with interest at the rate of 6 percent, by reason of
Respondent's discrimination against him, as provided in the
section above, entitled "The Remedy."
(b) Notify immediately Joel Wright, if presently serving
in the Armed Forces of the United States, of his right to
reinstatement, upon application after discharge from the
Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records and reports and all other records necessary to ascer-
tain the amount, if any, of backpay due under the terms of
this recommended Order.
(d) Post at its place of business in Chicago, Illinois,
copies of the notice marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for Region
13, after being signed by a duly authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the receipt of this decision, what
steps have been taken to comply herewith .4
2 In the event no exceptions are filed as provided by Section 102 46 of the
Board 's Rules and Regulations, the findings , conclusions , recommendations,
and Recommended Order herein shall, as provided in Section 102 48 of said
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
3 In the event the Board 's Order is enforced by a Judgment of a 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 United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
° In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read. "Notify
the Regional Director for Region 13, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken'to comply herewith."