Sinclair Glass Co.

National Labor Relations Board - Board Decisions

Feb 4, 1971

188 N.L.R.B. 362 (N.L.R.B. 1971)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sinclair Glass Company, and Sinclair Glass Division,
David B. Lilly Company, Inc., and United Glass and
Ceramic Workers of North America, AFL-CIO.
Cases 25-CA-3555 and 25-CA-3555-2
February 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On August 3, 1970, Trial Examiner James V. Con-
stantine issued his Decision in the above-entitled pro-
ceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices,
and recommending that they cease and desist there-
from and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondents had not en-
gaged in certain other unfair labor practices alleged in
the complaint and recommended that the complaint
be dismissed as to them. Thereafter, Respondents and
General Counsel filed exceptions to the Trial
Examiner's Decision with supporting briefs. Respon-
dents also filed cross-exceptions and a brief in re-
sponse to General Counsel's exceptions.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified below.
1. The Trial Examiner found that Respondents' ac-
tion in withholding the Thanksgiving turkey gift from
its employees in 1969 was in derogation of Respon-
dents' bargaining obligations. However, Respon-
dents' duty to bargain with the Union about this or
any other subject was not placed in issue by the com-
plaint and was not litigated by the parties. We there-
fore do not adopt the Trial Examiner's view of the
unlawful character of Respondents' conduct.
Respondents' failure to give the employees a
Thanksgiving turkey was, like other conduct de-
scribed in the complaint, alleged and litigated as con-
duct prompted by discriminatory considerations
proscribed by Section 8(a)(3) and (4) of the Act. The
Trial Examiner narrated the evidence presented on
the motivation issue and found that Respondents de-
cided to withhold the Thanksgiving turkey because
they wished to substitute, instead, a $10 cash Christ-
mas gift.' The Trial Examiner apparently concluded
that Respondents were not therefore impelled in fact
by discriminatory considerations. General Counsel
takes exception to this finding and alleges it is incon-
sistent with the credited testimony of Judith Snyder
describing her conversation with Assistant Plant
Manager Walter Harris on the subject on or about
December 1. As found by the Trial Examiner, Harris
told Snyder in that conversation that Ralph Hodges,
Respondents' president, had decided not to give the
employees the usual Thanksgiving turkey for two
reasons: first, because he (Hodges) was "dissatisfied
about the employees and the trouble they were caus-
ing as far as following the union contract;" and sec-
ond, "because Mr. Hodges was aggravated about the
unfair labor practices and that [the] Local Union
could buy [the employees] a turkey if [they] wanted
it.",
On the evidence above recited, it is clear that Harris
represented Respondents' denial of the Thanksgiving
turkey as a punishment for the Union and the employ-
ees' activities in enforcing contract rights and in filing
charges with the Board. It is also clear, and we find,
that these representations were violative of Section
8(a)(1) of the Act. It does not follow, however, that the
actual decision to withhold the Thanksgiving turkey
was in fact prompted by the unlawful considerations
described by Harris. President Hodges, who made the
decision concerning the Thanksgiving turkey, testi-
fied without contradiction that the decision was one
which affected employees at all of Respondents'
plants and not only the employees at the plant repre-
sented by this Union; and that this decision was made
as part of a plan to give the hourly employees the same
$10 Christmas cash benefit which had theretofore cus-
tomarily been granted only to salaried employees .2
The $10 Christmas bonus was thereafter in fact
uniformly given in the form of a deposit or credit to
a bank account in the name of each of Respondents'
employees.
In the circumstances we are persuaded that not-
withstanding Harris' unlawful characterization, Re-
spondents' action in withholding the Thanksgiving
turkey was not an action designed to punish the em-
ployees for their union activities or for their filing of
the charges, but was in fact prompted by lawful con-
siderations. We therefore do not find this action viola-
tive of Section 8(a)(3) or (4) of the Act.
2. We agree with the Trial Examiner's finding that
1 As set out in the Trial Examiner's Decision the initial charge was filed
October 25, 1969 The charges were being investigated by Board agents in
late November or early December Snyder gave the Board agent an affidavit
in support of the charges on December 3
2 Salaried employees were not, as a matter of custom , given the Thanksgiv-
ing turkey
188 NLRB No. 33
SINCLAIR GLASS CO.
Respondents discriminated against employees who
joined the Union's 1968 strike in the matter of wage
rates and thereby violated 8(a)(3) and (1) of the Act.
This finding is based on undisputed evidence showing
that Respondents paid three nonstrikers-Ruby
Worthen, Joyce Baty Swimm, and Marsha Cole-
man-at hourly wage rates higher than those paid
employees who participated in the strike, even though
the former strikers were performing comparable
work. Despite Union protests, Respondents contin-
ued to pay higher hourly rates to Coleman and
Swimm until both left Respondents' employ on dates
preceding the hearing in this case. Worthen, who was
still an employee at the time of the hearing, continued
to receive the higher wage rate until about October
1969 when Respondents ultimately acquiesced in the
Union's demand that her wage rate be reduced to that
specified for her job classification in the collective-
bargaining contract between Respondents and the
Union.
Apparently because Respondents had ceased this
unequal payment by the date of the hearing, the Trial
Examiner failed to provide a remedy for the precedent
effects of that conduct on the former striking employ-
ees-namely those who continued to receive less pay
than fellow employees solely because they, unlike
those paid the higher rate, had engaged in protected
concerted activities. However, in order to effectuate
the purposes of the Act, we believe these lower paid
employees should be made whole for the monetary
loss resulting from Respondents' unlawful discrimina-
tion against them .3 We shall therefore require Respon-
dents to pay the former striking employees who were
performing the same or comparable work, a sum
equal to the wages paid Coleman, Swimm, and
Worthen less the amounts already paid, together with
interest at 6 percent. Because of 10(b) considerations,
however, we shall limit Respondents' backpay obliga-
tion to a period commencing on April 25, 1969, and
ending as of the date Respondents ceased the dispa-
rate wage rate payments to Coleman, Swimm, and
Worthen .4 Contrary to our dissenting colleague, we
do not believe that our make-whole remedy should be
3 Cf. Great Dane Trailers Inc., 150 NLRB 438, enfd 388 U S 26
Chairman Miller would adopt the Trial Examiner's Recommended Order
for this violation inasmuch as neither General Counsel nor the Charging
Party requested the backpay remedy afforded by his colleagues. Chairman
Miller also notes in this connection that the Respondent 's preferential treat-
ment of nonstrikers Coleman , Swimm , and Worthen was discussed by Re-
spondents with the Union at the latter's request and that Respondents are
not here accused of a failure to meet and /or to discuss this or any other
appropriate subject with the Union in good faith . Chairman Miller also notes
that the discrimination lay not in depriving strikers of any contract benefit,
but rather in paying nonstrikers higher-than -contract rates A remedy which
grants pay in excess of contractually agreed-upon rates, rests, in the
Chairman 's view , upon doubtful statutory authority and on equally doubtful
policy considerations
363
withheld on the ground that the Charging Party and
the General Counsel have not requested such a reme-
dy or the circumstance that the Respondent has not
violated Section 8(a)(5) as well as Section 8(a)(3) in
this instance. It is a principle too well established in
Board law to require citation of authority that a ques-
tion of remedy is within the discretion of the Board.
Section 10(c) directs the Board to order an offending
respondent to cease and desist from its unfair labor
practice and "to take such affirmative action includ-
ing reinstatement of employees with or without back
pay as will effectuate the policies of this Act." The fact
that Respondent has not refused to bargain about its
discrimination in the rate paid nonstrikers as opposed
to strikers does not mitigate the seriousness of its un-
lawful conduct. Nor does the existence of a contract
rate warrant the conclusion that employees should
not be made whole when, for unlawful reasons, other
employees are paid a higher rate. In our opinion, a
contrary view is not justified by any provision in this
statute or any established policy in the law of labor
relations. On the contrary, to deny these employees a
reimbursement order leaves this Respondent with
nothing more than a cease-and-desist slap on the wrist
rather than a monetary deterrent to the commission
of the same or similar unfair labor practices.
3. We do not, however, adopt the Trial Examiner's
finding that Respondents' grant of vacation benefits
to certain nonstrikers in June 1969 was made in viola-
tion of its 8(a)(3) obligations. The relevant facts are as
follows:
Vacation benefits became due under the terms of
the then effective collective-bargaining contract be-
tween Respondents and the Union on June 1, 1969.
Respondents were contractually obligated to pay ben-
efits to unit employees who met certain specified
length-of-service and hours-at-work conditions, and
they did so. Respondents, however, did not confine
the grant of vacation benefits to the employees due
such benefits under the contract. They also granted
vacation benefits to a group composed of 10 addition-
al employees, 9 of whom were employees who had not
participated in the Union's 1968 strike. In explaining
its action, Respondents adduced undisputed evidence
that they did not wish to withhold vacations from any
employees who were hired during 1968 and who were
still on the payroll on the date on which vacation
benefits came due under the provision of the bargain-
ing contract (June 1, 1969); and that they did not
disqualify any of the employees who joined in the
1968 strike. In this fact posture, we are unable to find
the Respondents' action was either meant to be, or
was in fact, a disparate treatment of employees who
participated in the strike. We shall accordingly dis-
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
miss the alleged violation of Section 8(a)(3) and (1)
based on the Respondents' vacation grant .5
4. We adopt the Trial Examiner's conclusion that
Respondents discharged Snyder because of consider-
ations proscribed by Section 8(a)(3) and (1) of the
Act. But, contrary to the Trial Examiner, we are con-
vinced and find that Respondents' discharge of Sny-
der was also moved by considerations in conflict with
Section 8(a)(4) and (1) of the Act. We base this con-
clusion on the following sequence of events which
immediately preceded Snyder's termination:
The initial charge in this case was filed October 25,
1969, following: (1) a series of attempts by the Union
and the employees' grievance committee to get Re-
spondents to stop their disparate treatment of former
striking employees; and (2) the Union's invocation of
Board processes in aid of these attempts. Snyder, the
most vigorous employee member of the grievance
committee, thereafter became the target for a number
of antiunion remarks by supervisors on the subject of
the filing of the charges.
As noted above, Assistant Plant Manager Harris
engaged Snyder in a conversation on or about De-
cember 1 and told her, among other things, that Presi-
dent Hodges was "aggravated" about the filing of the
unfair labor practice charges and that he therefore
withheld the customary Thanksgiving turkey gift
from the employees.
About 1:30 p.m., on December 3, Snyder asked
Harris for permission to leave her work, explaining
that she had an appointment at 2 p.m. to "give my
testimony" on matters having to do "with the Union."
Harris granted the permission, and stated, "Yes, he
knew about it-that the Union men were in town."
On the next day, Harris asked Snyder if she had in
fact given her "testimony." Snyder responded that she
had, and that the testimony was contained in an affi-
davit to the Board which related to the pending
charges .6
In a later conversation in which Harris and Snyder
were discussing union matters, Snyder stated that she
was tired of the Union; that she had received a lot of
complaints from people that they did not want to
back up by filing grievances; and that there wasn't
anything she could do unless they did so. Harris sug-
gested that she should try to get off the union griev-
ance committee so that she would not be "the fall guy
S We need not , and do not , decide whether the Respondents ' above-de-
scribed grant of the vacation benefits to the group of employees not eligible
to receive it under the terms of the contract may have been in violation of
Respondents ' contractual or statutory bargaining obligations . That question
was neither presented by the complaint nor litigated at the hearing.
6 It is clear from the record that Respondents knew Snyder had given the
Board the testimonial affidavit which they referred to as "testimony" in
support of the charges in this proceeding. The Trial Examiner's implication
that her "testimony" involved some other proceeding therefore appears to be
an inadvertent error.
for the employees' complaints." Snyder did not get off
the union committee.
On December 11, after Respondents suddenly
served the dismissal notice on Snyder, Snyder visited
the offices of President Hodges to discuss the matter.
She told Hodges, among other things, that she had
never before been fired from a job and asked if, at the
very least, he could have her termination changed to
a layoff. Snyder also told Hodges she believed her
discharge had "something to do with her union activi-
ties ." Hodges then asked her if she had given her
"unfair labor practice testimony" and when she said
"Yes," he further asked her "what was in the testimo-
ny." Snyder answered that she did not believe the
"testimony" did him [Hodges] any harm and that it
concerned the question of the preferential payment of
wage rates to nonstriking employees.
On December 12, Snyder was called to a conference
by Supervisor Taylor.' He then reprimanded her for
appealing to Hodges, and offered her two alterna-
tives: (1) she could either leave her work permanently,
in which case her discharge would be recorded as a
layoff; or (2) she could remain an employee, but only
on a part-time basis. Snyder refused both alternatives
and left the plant.'
The above-described circumstances, considered to-
gether with those set out by the Trial Examiner in
sustaining the alleged violation of Section 8(a)(3), per-
suade us, and we find, that Respondents entertained
an animus to Snyder both because of her vigorous role
in pressing union grievances and also because she had
given the Board an affidavit in support of the charges,
and that but for this animus, Respondents would have
retained Snyder in their employ. It follows that by
discharging Snyder Respondents violated both Sec-
tion 8(a)(3) and (4) of the Act as alleged.
CONCLUSIONS OF LAW
In light of our findings and in order to conform
thereto, we hereby amend the "Conclusions of Law"
as set out in the Trial Examiner's Decision as follows:
a. Substitute the following as paragraph 3 of the
said Conclusions of Law:
By discharging Mrs. Judith Snyder because of
her union activities and because she gave a testi-
r Taylor was one of the three supervisors who had signed Snyder 's termina-
tion notice
6 We note, as did the Trial Examiner , that at the hearing Respondent
sought to defend its termination of Snyder on grounds that it had economic
reason to reduce its complement in December 1969, and that it selected
Snyder as one of the several employees to go because of an unsatisfactory
work performance and an excessive amount of absenteeism . Like the Trial
Examiner and for the reasons he stated, as well as for the considerations we
have set out above, we find Respondents' asserted reasons for its termination
action to be pretextuous
SINCLAIR GLASS CO.
monial affidavit to the Board, Respondents vio-
lated Section 8(a)(3),(4), and (1) of the Act.
b. Substitute the following for the Conclusions of
Law marked subparagraphs (a) through (c) of para-
graph 4 in the Trial Examiner's Decision, and delete
subparagraph (d):
(a) Coercively interrogating Judith Snyder about
her union activities or those of other employees
or about the testimonial affidavit which she gave
to the Board under the Act.
(b) Compensating employees who worked during
a union strike at wage rates higher than those
paid for comparable work to employees who par-
ticipated in the strike.
(c) Telling employees that Respondents had
failed to provide them with a Thanksgiving tur-
key gift in 1969 because of their union activities
and the filing of unfair labor practice charges
with the Board.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondents, Sin-
clair Glass Company, and Sinclair Glass Division,
David B. Lilly Company, Inc., Hartford City, Indi-
ana, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discrim-
inating aginst any of them with respect to their hire or
tenure of employment or any condition of employ-
ment because of their activities on behalf of United
Glass and Ceramic Workers of North America, AFL-
CIO, or any other labor organization, or because they
have given the Board testimonial affidavits under the
Act.
(b) Coercively interrogating employees concerning
their and other employees' union activities or about
testimony which they give in any case before the
Board.
(c) Compensating employees who work during a
lawful strike of the Union at a higher rate of pay than
that paid for comparable work to employees who par-
ticipated in the strike.
(d) Telling employees that Respondent had failed
to provide them with a Thanksgiving turkey gift in
1969 because of their union activities and the filing of
unfair labor practice charges with the Board.
(e) In any other manner interfering with, re-
straining , or coercing employees in exercising rights
guaranteed to them by Section 7 of the Act.'
365
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Judith Snyder immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed by her, and make her whole for
any loss of pay she may have suffered, with interest
at the rate of 6 percent, by reason of Sinclair's dis-
crimination against her, as provided in the section
above entitled "The Remedy."
(b) Notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(c) Forthwith pay to all former striking employees
who received wages lower than those paid to nonstrik-
ing employees for comparable work, a sum repre-
senting the difference between the wages paid them
and those paid nonstriking employees together with
interest at 6 percent per annum for the period de-
scribed elsewhere in this Decision.
(d) Preserve and, upon reasonable request, make
available to the Board or its agents, for examination
and copying, all payroll records and reports and all
other records necessary to ascertain the amount, if
any, of backpay due under the terms of this Order.
(e) Post at its plant at Hartford City, Indiana, cop-
ies of the attached notice marked "Appendix."10 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondents' authorized representative, shall be post-
ed by them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Order,
what steps Respondents have taken to comply here-
with.
9 We grant General Counsel' s request for a broad cease -and-desist order
as Respondents' conduct violated fundamental employee rights guaranteed
by the Act, and particularly the right to utilize the Board 's processes.
10 In the event that this Order is enforced by 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 United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
366 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
refuse to become or remain , members of the above-
named Union, or any other labor organization.
Dated By
(Representative) (Title)
We hereby notify our employees that
WE WILL NOT discharge employees or otherwise
discriminate against any of them in any manner
in respect to their hire or tenure of employment
or any term or condition of employment, because
of their activities on behalf of United Glass and
Ceramic Workers of North America, AFL-CIO,
or any other labor organization, or because they
have given testimonial affidavits under the Na-
tional Labor Relations Act.
WE WILL NOT coercively ask you questions
about your and other employees' union activities
or about any evidence you may give in any mat-
ter pending before the National Labor Relations
Board.
WE WILL NOT compensate nonstriking employ-
ees at a higher rate of pay than that paid for
comparable work to employees who participated
in the strike.
WE DID NOT abolish the 1969 Thanksgiving tur-
key gift because of our employees' union activi-
ties or because of the filing of unfair labor
practice charges with the National Labor Rela-
tions Board, and WE WILL NOT tell the employees
that we did so for those reasons.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in exercis-
ing rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer Judith Snyder immediate and
full reinstatement to her former job or, if thatjob
no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges previously enjoyed by
her, and make her whole for any loss of pay she
may have suffered as a result of her discharge by
us, with interest thereon at 6 percent.
WE WILL reimburse all former striking employ-
ees who received wages lower than those paid to
nonstriking employees for comparable work, a
sum representing the difference between the wag-
es they received and those paid nonstriking em-
ployees together with interest at 6 percent for a
period commencing April 25, 1969, and ending
with the date our payment of higher wage rates
to former nonstriking employees ceased.
All our employees are free to become, remain, or
Dated By
SINCLAIR GLASS COMPANY
(Employer)
SINCLAIR GLASS DIVISION,
DAVID B. LILLY COMPANY, INC
(Employer)
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
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, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone 317-
633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is a consol-
idated unfair labor practice case commenced pursuant to
Section 10(b) of th& National Labor Relations Act, herein
called the Act. 29 U.S.C. 160(b). It consists of two cases
which were consolidated for the purpose of trial. In Cases
25-CA-3555 and 25-CA-3555-2, a charge was filed on Oc-
tober 25, 1969, and December 29, 1969, respectively, by
United Glass & Ceramic Workers of North America, AFL-
CIO. Both charges name Sinclair Glass Company as the
Respondent. At the trial Sinclair Glass Division, David B.
Lilly Company, Inc., was added as a Respondent.'
On January 3, 1970, the General Counsel of the National
Labor Relations Board, herein called the Board, through
the Regional Director of Region 25 (Indianapolis, Indiana),
consolidated said two cases and issued a consolidated com-
plaint based on the two charges. On March 20, 1970, said
consolidated complaint was amended. It was further
amended at the hearing.
1 This name appears as corrected by stipulation of the parties at the hear-
ing
SINCLAIR GLASS CO.
As amended, the consolidated complaint alleges in es-
sence that Respondents have violated Section 8(a)(1), (3),
and (4), and that such conduct affects commerce within the
meaning of Section 2(6) and (7), of the Act. Respondents'
answer, as amended, admits some facts but denies that they
committed any unfair labor practices.
Pursuant to due notice the consolidated case came on to
be heard, and was tried before me, at Hartford Cit. , Indi-
ana, on May 12, 1970. All parties were representedyat and
participated in the hearing and had full opportunity to in-
troduce evidence, examine and cross-examine witnesses, file
briefs, and argue orally. Briefs have been received from the
General Counsel and the Respondents.
This case presents the issues of whether Respondent
(1) Interrogated employees concerning (a) their own and
other employees' union membership and activities, (b) other
concerted activities, and (c) testimony which they gave in
Case 25-CA-3555.
(2) Threatened employees with reprisals for union activi-
ties and if the charge was not withdrawn in Case 25-CA-
3555, and abolished a Thanksgiving bonus in 1969.
(3) Granted several employees a vacation with pay be-
cause they worked during a strike conducted b United
Glass and Ceramic Workers, herein called the Union.
(4) Discharged Jane Snyder for engaging in union activi-
ties and giving testimony to a Board agent during the inves-
tigation of Case 25-CA-3555.
Upon the entire record in this case, and from my observa-
tions of the witnesses, I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent Sinclair Glass Company, herein called Sin-
clair, a West Virginia corporation, is engaged at Hartford
City, Indiana, in manufacturing, selling, and distributing
decorated glassware and related products. During the year
preceding January 30, 1970, it purchased, transferred, and
delivered to its plant goods and materials valued in excess
of $50,000 which were transported thereto directly from
States other than Indiana.
On or about March 9, 1970, Sinclair Glass Division,
David B. Lill y Company, Inc., herein called Lilly, pur-
chased from Sinclair some of the assets, mcludinp name,
goodwill, and physical assets, of Sinclair including Sinclair's
leasehold interest in its Hartford City plant.
Since February 28, 1970, Sinclair has ceased to operate
said Hartford City plant, and since on or about March 9,
1970, Lilly has operated said plant. Lill y has been engaged
at said plant in substantially the same business as Sinclair,
and has employed substantially the same employees and
supervisors previously employed by Sinclair.
Lilly is a Delaware corporation. During the year begin-
ning March 9, 1970, it will purchase, transfer, and deliver
to said plant goods and materials valued in excess of $50,000
directly from points outside the State of Indiana; and will,
during the same period, sell and ship finished products from
said plant valued in excess of $50,000 directly to points
outside the State of Indiana.
The answer admits and I find, that Lilly is a successor
employer to Sinclair, and that Lilly will be responsible for
remedying any unfair labor practices committed by Sinclair
as set forth in the amended consolidated complaint. I find
that both Sinclair and Lilly are 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 them in this proceeding.
II THE LABOR ORGANIZATION INVOLVED
367
United Glass and Ceramic Workers of North America,
AFL-CIO, the Charging Party herein, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
F. R. Hodges, president of Sinclair, testified as a witness
for the General Counsel. His testimony follows.
Sinclair has two plants in Hartford City. Plant # 1 was
acquired in 1962 and Plant #2 in 1966. Employees in Plant
# i are represented by American Flint Glass Workers Un-
ion and those in Plant #2 by the Charging Party, herein
called the Union. The Union and its Local 66 currently have
a collective-bargaining contract with Sinclair. See G. C.
Exh. 4.
During the Union's strike conducted from July through
October 1968, employee Ruby Worthen continued to work
for Sinclair. After said strike, i.e., from October 1968 to
October 1969, Worthen was compensated at the rate of
$2.30 an hour when, in fact, the contract rate for such jobs
at which she so worked was $2.05 an hour. Employees Joyce
Baty Swimm and Marsha Coleman, who were hired during
said strike, were paid at the rate of $1.95 an hour when, in
fact, the contract rate was $1 .90 an hour for the b they
were performing; i.e., silk screen printin . On the other
hand, employee Catherine Meachem, a silk screen printer,
who participated in said strike, received the contract rate of
$1.96 an hour for such work.
Some time in about May 1969, the Union complained to
Hodges the fact that Ruby Worthen, Joyce Swimm, and
Marsha Coleman were being compensated at a rate "over
the contract rate," and asked that those paid $1.90 for sim-
ilar work be raised to $1.95. Hodges declined this request.
This subject was again brought up by the Union once or
twice, but without success.
In June 1969, Respondent Sinclair granted to employees
Judy Snyder, Robert Clark, Mae Decker, Lorene Hummer,
Glen Felver, Joyce Baty Swimm, Nellie Heath Brown, Patty
Eldridge, Clara Mays, and Irene Love, who were hired, or
worked, or both, during the period of the above strike,
vacations and vacation pay. None of them had worked a full
year prior to receiving such vacation and vacation pay,
although the pertinent collective-bargaining contract re-
quired, as one condition precedent, at least I thousand
hours and 1 year's service with the Company to obtain such
benefits. See article XII(A) of G. C.'s Exh. 4. However,
every employee employed during both 1968 and 1969, and
who did not quit before June 1, 1969, received a vacation
in 1969, including one striker. Nevertheless this last striker
was an employee who, although not meeting the 1,000-hour
requirement, had been an employee for more than a year.
In 1966, 1967, and 1968, the employees received a turkey
as a Thanksgiving gift, but they did not receive any gift at
Thanksgiving 1969.
On December 12, 1969, Sinclair terminated the employ-
ment of Judy Snyder for poor attendance and an unsatisfac-
tory work record. Hodges played no part in the decision to
discharge Snyder. However, at all times material the Com-
pany issued no written warnings to any employees during
their employment.
Judith Snyder also testified for the General Counsel. A
summary of her testimony ensues . She was hired by Sinclair
in late September 1968, while the aforesaid strike was being
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted. Her employment, in Plant #2 , was essentially
that of a sand blaster. On December 12, 1969, she was
discharged.
In August 1969 Mrs. Snyderjoined Local 66 of the Union
and served on its industrial relations committee . This com-
mittee met with management to discuss grievances and gen-
eral dissatisfaction of^the employees. About some time in
October 1969, she also became "grievance woman" for Lo-
cal 66; i.e., she handled grievances for the employees.
One of the matters discussed by the said committee with
management was Ruby Worthen's being paid at a higher
rate than other employees performing the same work. Later
the Company agreed to reduce Worthen's hourly rate to the
contract rate being received by employees doing the same
work. Another grievance presented by the committee was
vigorously pushed b Mrs. Snyder. See G. C. Exh. 5. Appar-
ently this was the fast written grievance presented to the
Company. Generally Mrs. Snyder was the spokesman for
the Union at these meetings with management representa-
tives.
On December 3, 1969, Mrs. Snyder gave an affidavit to
the Board . About December 4 Supervisor Walt Harris asked
her about it. She also "gave testimony to the National Labor
Relations Board agent ." A "couple of days" before said
December 3, Supervisor Walt Harris told Mrs. Snyder that
President Hodges of Sinclair was "dissatisfied about the
employees and the trouble that they were causing as far as
following contract." Harris further told her that was one of
the reasons why the employees "had not received a turkey
for Thanksgiving, as usual ." Another reason for this
omission , Harris told Mrs. Snyder, was "that Mr. Hodges
was aggravated about the unfair labor practices and that
[Snyder s] Local Union could buy [the employees] a turkey
if [they] wanted it."
About December 4 Mrs. Snyder told Harris that she was
"tired of hearing every one complain." Thereupon he sug-
gested to her that she should try "to get off the [Unions]
committee" so that she would not become the "fall guy for
all of [the] complaints [of the employees]" Snyder relied
that she "could more than likely leave the committee but
she "could not leave" the Union because a union shop
clause in the contract would cause her to be discharged.
On December 11, 1969, Mrs. Snyder found attached to
her timecard a dismissal notice reading as follows (G. C.'s)
Exh. 8):
December 11, 1969
DISMISSAL NOTICE
TO- JUDY SNYDER
EFFECTIVE. DECEMBER 15, 1969
REASON : WORK UNSATISFACTORY
POOR ATTENDANCE RECORD
Herb Taylor
Walt Hams
Joe Benedict
cc Union
HT/ck
Upon receiving said notice Judy asked President Hodges
whether he "knew anything about it." He replied in the
negative. Thereupon Judy asked him to "change it to a
layoff." Hodges replied by asking her if she "had-given in y
unfair labor practice testimony." She answered that she did.
This caused him to ask her "what was in" such testimony.
She then outlined what she had said in such testimony.
Finally, Hodges told her to return to work the next day and
that he would get in touch with her after talking to Herb
Taylor.
The next day, December 12, Mrs. Snyder reported for
work. Herb Taylor arranged to talk to her at 3:30 p.m. in
the presence of her husband. However, Taylor spoke to her
at about 2 p.m. instead. Taylor offered her the alternative
of changing the dismissal to a layoff or to continue as an
employee in the sandblast cages . After first asking why she
had not been warned that her attendance record and work
were unsatisfactory, Snyder elected "to leave the factory
under a discharge,' and then departed.
Although Mrs. Snyder was never warned about her work
or her attendance record, the committee on which she
served was notified by Vice President Herb Taylor about 3
or 4 weeks before December 12, 1969, that he " was going
to write up warning letters to employees who missed more
work than he thought necessary and that, in fact, he had
wrote upp one for [her] but that [her] attendance had picked
up and he did not give it to [her]." Further, Snyder's sand-
blasting work had been complimented by Plant # 1 Super-
visors Sayers, Hess, and Saunders, for whom she performed
this work. The work itself was done in Plant #2.
Mrs. Snyder worked 35 hours a week, instead of 40, by
obtaining special permission to do so from President Hodg-
es. Hodges told her his permission was conditional upon the
approval of such working hours by Joseph Benedict, plant
manager of Plant #2. Snyder did obtain such approval
from Benedict, so that her hours were from 8 a.m. to 3:30
p.m. She thus was cleared to work 7, rather than 8, hours
a day. Some times she was absent from work because of
medical problems of which Supervisors Hess and Sayers
were aware. But she always called the factory or caused it
to be called whenever she was unable to go to work. On no
occasion was time off denied to her; and at no time was she
warned that she was taking off too many times.
Employee Addie Irene Elwood also testified for the Gen-
eral Counsel. A summary of her testimony follows. Addie
is a member of the Union's industrial relations committee,
on which Judith Snyder also served.
During October, November, and December, 1969, said
committee met with Sinclair's officials weekly. Mrs. Snyder
attended most of those meetings , was the most active person
there on behalf of the Union, "always spoke out more so
than the rest" of the union members, and "was the main
spokesman for the Union at most of these meetings." This
was so notwithstanding that the president and vice presi-
dent of the Union's Local 66 were present at such meetings.
Mrs. Snyder also presented the first written grievance to
Sinclair. See G. C. Exh. 5. No written grievances had been
processed prior to this time.
The General Counsel's final witness, employee William
Lake, is president of Local 66 of the Union. As such, he
attended meetings between management and the Union's
industrial relations committee in October, November, and
December 1969. Lake substantially corroborated Addie El-
wood that Mrs. Snyder was the `most active" and "main
spokesman" for the committee at such meetings, and that
Mrs. Snyder presented the first written grievance ever filed
with the Company. See G. C. Exh. 5.
It was stipulated by the parties that Mrs. Snyder was
absent "approximately 43 days" in 59 weeks, and'7 days in
the 11-week period from September 27, 1969, to the date of
her discharge on December 12, 1969; Juanita Blair, 29 1/2
days in 16 weeks between February 3 and May 18, 1968, and
18 days in the 7-week period from November 16 to Decem-
ber 27, 1968; Nellie Brown Heath, 22 days in the 43-week
period from September 28, 1968, to July 19, 1969, and 18
days in the 28-week period from January 11 to July 19,
1969; Joyce Bergdoll, 16 1/2 days for the 20-week period
SINCLAIR GLASS CO. 369
from February 3 to June 15, 1968; Virginia Thomas, 22 days
for the 34-week period from September 13, 1969, to May 2,
1970; Sharon Pursley, 9 days for the 9-week period from
November 30, 1968, to February 1, 1969; Marsha Coleman,
32 days for the 29-week period from October 12, 1968, to
April 28, 1969; Claudia Kingery, 12 days in the 22-week
period from November 4, 1968, to April 5, 1969; Ruth Mon-
roe, 19 days in the 21-week period from February 10 to June
29, 1968; and Joyce Baty Swimm, 19 days for the 32-week
period from March 1 to October 4, 1969. It was further
stipulated that, except for Mrs. Snyder, none of said em-
ployees was terminated for poor attendance or absenteeism,
and that the total number of hours worked by some of said
employees appears in Respondent's Exhibit 3.
B. Respondent's Evidence
Sinclair's President F. R. Hodges, testified in substance
that he gave Mrs. Snyder permission to work 7, rather than
8, hours a day, provided that Plant Manager Joseph Bene-
dict approved this arrangement. Further, Hodges denied
that he asked Mrs. Snyder "about her activities in connec-
tion with the filing of an unfair labor practice charge"; that
he ever warned her or in any way indicated to her that she
would be penalized because of her union activities; that he
was not aware of her membership in the Union; that, in-
stead of a turkey at Thanksgiving time, 1969, each employee
received a $10 deposit in a local bank at Christmas time,
1969; that giving turkeys to employees in the past was "not
regular in nature" but were "gratuities on the part of man-
agement"; and that no antiunion animus was involved in
the decision to withhold turkeys as a gift in 1969.
Herbert Taylor is Sinclair's vice president. A conspectus
of his testimony follows. On December 11, 1969, Taylor
"caused a dismissal slip to be issued to Judy Snyder." About
a week or 10 days before this Taylor examined her atten-
dance and work record; and after discussing them with the
plant superintendent "and the assistant," all three arrived at
the conclusion that she should be dismissed.
This particular time was selected to dismiss Judy because
"there was a general slowdown in the business of the Com-
pany at that time and this was part of an overall reduction-
in-force plan" which was adopted. Six other employees also
received dismissal notices on December 11, 1969.
In the past, Sinclair dismissed some employees for poor
attendance or unauthorized time off. A list thereof appears
in Respondent 's Exhibit 5. At one of the meetings with the
Union s committee Taylor mentioned that Mrs. Snyder
,.was about the first one to get a warning letter for her
attendance." However, he also said he was not giving her
the warning letter because her attendance had improved.
Since attendance had become a problem at the plant begin-
ning in October 1969, Taylor had raised this issue at meet-
ings with the Union's committee , mentioning Mrs. Snyder's
name "as a chief offender." Union Committee Members
Bill Lake and Miss Elwood, "and the other members of the
Committee" agreed with Taylor.
In late October or early November 1969, Taylor twice
told Mrs. Snyder "she had better be careful about her atten-
dance, that we were paying more attention to it now, and
it could possibly be justification for firing somebody." And
Mrs. Snyder admitted at a hearing on her unemployment
compensation claim, that Taylor had warned her about her
attendance. In fact, Mrs. Snyder had the worst attendance
record of any Sinclair employee in December 1969.
Further, Taylor insisted that "basically" Mrs. Snyder was
terminated because of "her attendance and her workman-
ship, poor workmanship." He also testified that a rule was
adopted in late 1969 whereby unauthorized absences would
result in a warning for "first offense," "three days off" for
"second offense," and "the third offense" is dismissal. By
"unauthorized" he meant "for being absent without calling
in." However , Mrs. Snyder did call- in on the days she was
absent.
Walter Harris is Sinclair 's assistant plant manager at
Plant 2 . Among other things , he denies that he asked Mrs.
Snyder what she said in a statement she gave to the Board.
Rather, he merely replied to her, after she voluntarily men-
tioned to him that she may have made an erroneous asser-
tion as to her hourly rate in said statement , that "Well, if I
was you, I would be sure, before I made such a statement."
On another occasion Mrs. Snyder "brought up the matter
about her hearings and worried that she would be in some
trouble ." Apparently she was referring to an affidavit given
by her to the Board . Harris "told her that if it was me that
I would seriously be worried if I gave any wrong informa-
tion ." But at no time did Harris inquire of Mrs. Snyder as
to the contents of said affidavit.
Harris participated in the decision to terminate Mrs. Sn y
-der and corroborated Vice President Taylor's version of the
events prompting her discharge. In addition, Harris crit-
icized Mrs . Snyder in late October or early November 1969,
for taking too much time in "giving relief to the girls packing
dishes on the lehr and packing off the other decorating
lehr." This action on his part occurred because Mrs. Snyder,
after relieving said girls, "was taking additional breaks on
her own." However, Mrs. Snyder `corrected" this upon
being informed of her dereliction by Harris.
At a meeting with the Union 's industrial relations com-
mittee in October or November 1969, Harris mentioned to
Mrs. Snyder that she had the worst attendance record of
anybody in the plant. But he did not indicate that she might
be fired because of it . On another occasion he told her that
she "had been missing a lot of work," that "it was not a good
policy to miss this work," and that "it would do her no
good" to miss work so much . But he did not allude "to
termination because of absenteeism."
Once Mrs. Snyder asked Harris to be transferred off her
job of sandblasting cages . Replying , Harris denied this re-
quest "because she was too good on this thing ." Neverthe-
less Harris signed Mrs. Snyder's dismissal notice which
states, inter alia, that one ground for such action by Sinclair
is "work unsatisfactory ." See G. C. Exh. 8.
Respondent 's plant manager of Plant 2 is Joseph Bene-
dict . In October 1969, he criticized Mrs. Snyder, for "only
having three pieces of glass on the rotary furnace [when]
... she was supposed to have four on." "This particular
operation is run one or two days a month." However, Mrs.
Snyder thereafter ran four pursuant to his instructions. And
"in October or the first part of September" 1969, Benedict
also criticized Mrs. Snyder for using the wrong cartons "to
store cages in." But she did use the correct cartons after
being so directed by Benedict.
C. Concluding Findings and Discussion
1. As to interrogation
On December 4, 1969, Supervisor Walt Harris inquired of
employee Judith Snyder about an affidavit she gave to the
Board on the previous day. I credit Snyder's version of this
incident and, to the extent that the testimony of Harris is not
consonant therewith, I do not credit it. Patently such in-
quiry is coercive, and I so find. Accordingly I find that such
interrogation violates Section 8(a)(1) of the Act.
About December 11, 1969, President Hodges of Sinclair
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glass asked Mrs. Snyder if she had given any "unfair labor
practice testimony" and, upon receiving an affirmative re pp
-Iy, sought to ascertain"what was in" such testimony. On
this issue I credit Snyder and do not credit the denial by
Hodges of Snyder's account of this conversation . In discred-
iting -Hodges I have not only relied on his demeanor on the
witness stand , but also have considered a statement he made
in another connection while testifying for Respondent.
Thus Hodges testified that he was unaware that Snyder was
a union member. Yet she served for at least 3 months on and
was a spokesman for a union committee which met with
management officials weekly (although Hodges was not one
of them) to discuss grievances . It is inconceivable that
knowledge of Snyder's role on this committee did not reach
Hodges . His denial of such knowledge has in part convinced
me that I should not credit Hodges when his testimony
conflicts with that of the General Counsel's witnesses.
Manifestly the foregoing two questions propounded by
Hodges to Snyder are coercive within the meaning of Sec-
tion S(a)(1) of the Act , and I so find.
2. As to abolishing the Thanksgiving bonus in 1969
Admittedly Respondent (a) failed to furnish a+turkey to
its employees at Thanksgiving time 1969, and (b) did not
bargain with the Union before pursuing such a course. I find
that such turkey had been given often enough in the past to
become a practice which by 1969 had ripened into a fringe
benefit or an established condition of work. I expressly find
it was not a gift or gratuity by 1969.
Since such turkeys had become a condition of employ-
ment, they could not lawfully be discontinued unilaterally
by the employer, for the employer was under a statutory
obligation to bargain with the Union concerning any
change in conditions of em to ment . Wald Manufacturing
Company, Inc. v. N.L.R.B., 426 F.2d 1328 (C.A. 6); May's
California, 183 NLRB No. 47. See N.L.R.B. v. Katz, 369
U.S. 736. It follows, and I find, that the failure to consult
or bargain with the Union concerning the elimination of the
1969 Thanksgiving turkey contravenes the Act.
No contrary result is required because Sinclair gave each
employee a $10 gift at Christmas rather than the omitted
Thanksgiving turkey. This is because I find that such a $10
gift is a substitute for the turkey and, as such, constitutes a
change in the form of a condition of employment. It follows
that such change, being unilaterally consummated without
prior consultation or bargaining with the Union, transgres-
ses the Act.
3. Granting preference to nonstriking employees
From July to October 1968, the Union struck Sinclair.
During this strike employee Ruby Worthen continued to
work for Sinclair. Although a general wage increase was not
inaugurated following the stake, Worthen's pay was raised
in October 1968, from the contract rate of $2.05 an hour for
herjob to $2.30 an hour. Nothing in the record suggests that
this was a merit increase or that it was motivated by legit-
imate reasons . Accordingly, I find that this was a preference
which encourages employees not to engage in a lawful
strike, and which also discriminates against strikers. Under
such circumstances I find that this action violates Section
8(a)(1) of the Act. Cf. N.L.R.B. v. Fleetwood Trailer Compa-
ny, Inc., 389 U.S. 375; N.L.R.B. v. Great Dane Trailers, 388
U.S. 26.
The same considerations require a similar conclusion as
to the rates of pay granted to Joyce Baty Swimm and Mar-
sha Coleman, who were hired as silk screen printers during
the above-mentioned strike at an hourly rate 5 cents above
the contract rate for such printers . During a strike the sub-
stantive provisions of a collective -bargaining contract are
not abrogated or suspended , so that its terms must be hon-
ored to the extent that an employer continues operations
during the strike . Hence Sinclair was obligated to honor the
contract's wage provisions while the strike continued unless
it was necessary to increase the contract 's rate of pay to
attract new employees in order to maintain operations.
But the record is barren of any evidence indicating that
new employees could not be obtained during the strike ex-
cept at wages above those designated in the contract. Even
if Sinclair was compelled to pay a higher rate to new em-
ployees during the strike , Sinclair was under an obligation
to raise the rates of other employees performing the same
work, at least when requested to do so by the Union after
the strike terminated . But Sinclair refused to grant such
raise to the other employees when so requested b y the Un-
ion. Since no justification has been disclosed by the record
warranting such increase in the rates of pay of Swimm and
Coleman, find that paying them above the contract rate
discriminates against strikers . It follows , and I find, that
such conduct violates Section 8(a)(1) of the Act.
In June 1969 Sinclair granted vacations and vacation pay
to 10 employees who were hired or worked during the strike
mentioned above . They are enumerated above under sec-
tion III(A). Although the collective-bargaining contract, in
pertinent part , limited vacations to employees with not less
than 1 year 's service and "1000 hours in the year preceding
June 1st of that year," none of such employees had worked
a full year prior to June 1969 . It is my opinion , and I find,
that absent an explanation for granting such vacations,
Sinclair's action in taking such a course presumptively con-
travenes the Act as a discrimination against lawful strikers.
In this connection I expressly rule that the burden of
proving that such action transgresses the Act rests upon the
General Counsel , and that it does not shift to the Respon-
dents. But when a set of facts points to the conclusion that
the Act has been violated, so that a prima facie or presump-
tive case flows therefrom, the burden rests upon Respon-
dents to show that such conduct is justified as a legitimate
exercise of managerial judgment . Such burden is not a bur-
den of proof, for this remains with the General Counsel, but
in effect is a burden calling for an explanation as to why
such conduct is lawful under the Act.
Since Sinclair 's grant of such vacations presumptively
discriminates against employees engaged in a strike protect-
ed by the Act, it becomes incumbent at this point to exam-
ine the explanations advanced by Sinclair to support said
action as lawful.
(a) Sinclair first insists "that every employee who had
been employed during 1968 and who remained on the pay-
roll at the end of the qualifying period, June 1 , 1969, re-
ceived a vacation in 1969 ." (See p. 10 of its brief.) But the
evidence is ambiguous as to whether such employees, who
admittedly worked a full year, also worked less than 1,000
hours in such period. Therefore I am unable to find that
such employees who worked for a full year put in less than
1,000 hours during that time . It follows that Respondents
have failed to establish that striking employees working less
than 1 ,000 hours in the applicable year received vacations.
Hence I find that this explanation is inadequate to
overcome the General Counsel's prima facie case that strik-
ers suffered disparate treatment when vacations were
awarded to nonstrikers for the year ending June 1, 1969.
(b) Then , again , Respondents insist that the did not
discriminate against strikers because "one employee who
struck and who also did not meet the one thousand (1,000)
SINCLAIR GLASS CO.
hour requirement" nevertheless received a vacation. See p.
10 of their brief. However, this employee worked for a full
year prior to June 1, 1969, so that, in effect, he met one of
the two conditions required to enjoy a paid vacation. But
the 10 nonstrikers mentioned above who received vacations
beginning June 1, 1969, admittedly did not work a full year
pnor to said June 1, 1969. Hence the facts in this paragraph
fail to establish a valid reason for granting vacations to
nonstrikers who worked less than a year before June 1, 1969,
and I so find.
Accordingly, I find that the grant of paid vacations to the
10 nonstrikers involved constitutes a preference to nonstrik-
ing employees forbidden by Section 8(a)(1) of the Act.
4. The discharge of Judith Snyder
On the record unfolded in this case I am of the opinion,
and find , that Mrs. Snyder was discharged for engaging in
union activities , and that the reason given to her for her
dismissal is a pretext to disguise the actual reason therefor.
The reason announced to her for her termination is
"WORK UNSATISFACTORY POOR ATTENDANCE
RECORD ." See G . C. Exh. 8. While this ultimate finding
is derived from the entire record , it also flows from the
following subsidiary findin gs , which I hereby find as facts:
(a) Mrs. Snyder engaged in union activity consisting of
service on the Union s industrial relations committee and
also the preparation and presentation of grievances on be-
half of employees in her capacity as a member of said com-
mittee . Further , I find that Sinclair had knowledge of her
union activity because its supervisors not only met with
such committee but often saw and heard Mrs. Snyder acting
in the role of spokeswoman for said committee . 'Obviously
the discharge of a leading union advocate is a most effective
method of undermining a union ." N.L.R.B. v. Longhorn
Transfer Service, 346 F .2d 1003 , 1006 (C.A. 5).
(b) Sinclair committed other unfair labor practices as
found above . This tends to disclose , and I find , antiunion
hostility on the part of Sinclair . Of course , this alone is
insufficient to form the basis for a finding of a discriminato-
discharge (N. L.R. B . v. Threads, Inc., 308 F .2d 1, 8 (C.A.
44); J. P. Stevens & Co., Inc., 181 NLRB No. 97), but it is an
element which may be evaluated in ascertaining whether a
discharge was motivated by antiunion sentiments. Maphis
Chapman Corp . v. N.L.R. B., 368 F .2d 298 , 304 (C.A. 4);
N.L.R.B. v. Georgia Rug Mill, 308 F .2d 89 , 91 (C.A. 5).
(c) Mrs . Snyder was abruptly discharged without prior
warning . It is true that one of her supervisors , Taylor, told
her to pay more attention to her attendance because "we
were paying more attention to [attendance] now, and it
could possibly be justification for firing somebody." But I
do not construe this as a warning that Snyder had thereby
exposed herself to discharge . Further , even if it qualifies as
a warning , it came in late October or early November 1969;
but from then until December 12, 1969 , when she was dis-
missed , Snyder 's attendance cannot be characterized as un-
satisfactory.
Further , Supervisor Taylor considered an attendance re-
cord bad only if an absence was unauthorized . But he con-
ceded in his testimony that Mrs. Snyder's absences were all
authorized.
In addition , Taylor notified the Union 's industrial rela-
tions committee that he intended to give Mrs . Snyder a
warning letter for her poor attendance but had abandoned
the thought because her attendance had improved . This can
hardly be called a warning . In fact , since it occurred 3 or 4
weeks before her discharge it suggests that her attendance
had become satisfactory.
371
Also, Supervisor Hams adverted to Snyder 's poor atten-
dance record at a meeting of the Union 's industrial relations
committee . But at no time did he refer to the fact that she
was in danger of losing herjob therefor . Hence I find that
this did not rise to the stature of a warning . Merely discuss-
ing with an employee the desirability of improving his work
habits does not amount to a warning that he had rendered
himself subject to discharge because of such habits.
There is also some evidence in the record that Mrs.
Snyder's work was criticized as unsatisfactory on a few
occasions . Although I consider such dereliction as of minor
significance , I nevertheless find that it constitutes cause for
discharge . This is because an employer may discharge an
employee for any cause whatsoever, no matter how trivial
it may be , so long as it is not discriminatory under the Act.
"Management can discharge for good cause , bad cause, or
no cause at all without incurring liabili ty under the Act."
N.L.R.B. v. McGahey, 233 F .2d 406 , 413 (C.A. 5). But I find
that Sinclair overlooked or condoned these minor faults of
Mrs. Snyder by continuing to employ her notwithstanding
their occurrence. Electro-Netic Products Corporation, 183
NLRB No . 59; 74 LRRM 1358. And I expressly find that
she was never warned that such conduct rendered her liable
to discharge . Since cause existed for her discharge , the fail-
ure to discharge her therefor is material on the question of
whether the discharge appreciably later for said cause is
based on such cause or is pretextual to cover up a dismissal
for union activity . Arkansas-Louisiana Gas Company, 142
NLRB 1083, 1085-1086.
In this connection , I find that Sinclair had not adopted
before Snyder's discharge a specific system of discipline to
guide employees in assessing their conduct against set
standards of work and behavior. Consequently the failure
to warn Snyder gains significance when no such system
exists or has been promulgated to employees. Talon, Inc.,
170 NLRB No. 42 , Tn. 1; E. Anthony 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).
(d) Snyder was precipitously discharged . In fact she was
not even orally discharged ; rather a note was left for her
attached to her timecard . On the basis of my experience as
a Trial Examiner , I regard failure to notify an employee
orally of his discharge as material , but I attach no weight
to this fact . However, "The abruptness of a discharge
and its timing are persuasive evidence as to motivation."
N.L.R.B. v. Montgomery Ward & Co., Inc., 247 F .2d 497, 502
(C.A. 2), cert . denied 355 U.S. 829 : 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). The abruptness of
Snyder 's discharge warrants the inference-and I draw it-
that antiunion motives prompted such discharge. See Elec-
tro-Netic Products Corporation, 83 NLRB No. 59.
(e) Further , it is not essential that union activity be the
only ground responsible for Mrs . Snyder's discharge. "If the
discharge is because of union activity it is a violation of the
Act even though a valid ground for dismissal mi ght exist."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 2d 1003,
1006 (C .A. 5); Betts Baking Co. v. N. L.R.B., 380 F.2d 199
(C.A. 10). It is sufficient in finding Snyder 's discharge to be
discriminatory that her union activity is a motivatin g or
substantial factor leading to her dismissal. N.L.R.B. v. Sym-
ons Mfg Co., 328 F.2d 835 , 837 (C .A. 7). Accord : N. L. R. B.
v. Whitin Machine Works, 204 F .2d 883, 885 (C .A. 1). I
expressly find that, regardless of whether other cause exist-
ed for Snyder 's discharge , union activity was a substantial-
but not necessarily the only reason for her dismissal. Cf.
N.L.R.B . v. Park Edge Sheridan Meats, Inc., 341 F .2d 725,
728 (C.A. 2).
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Although not of overwhelming importance , it is rele-
vant to note that although President Hodges testified, and
Sinclair's written notice asserted , that Mrs . Snyder was dis-
charged , Respondents at the trial sought to show that Sny-
der was laid off at a time when business was slow and that
she was selected for layoff because of her poor record. This
shift in the reason for Snyder's discharge has some proba-
tive value in arriving at the conclusion that she was discrim-
inatoril discharged.
(g) Other employees who had poor attendance records
were not discharged therefor . These employees are Juanita
Blair, Nellie Brown Heath , Joyce Bergdoll , Virginia Thom-
as, Sharon Pursley, Marsha Coleman , Claudia Kingery,
Ruth Monroe, and Joyce Baty Swimm . It is true that their
bad records do not quite equal that of Mrs. Snyder . Never-
theless I cannot ignore the probative value of the record
disclosing that such employees were retained notwithstand-
ing their unsatisfactory absenteeism . This is not conclusive,
of course, but it is an element which has been considered in
determining the actual reason for Mrs. Snyder 's discharge.
(h) Finally , it should not be overlooked that "Direct evi-
dence of a purpose to discriminate is rarely obtained, espe-
cially as employers acquire some sophistication about the
rights of their employees under the Act ; but such purpose
may be established by circumstantial evidence ." Corrie Cor-
poration v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). Accord:
Hartsell Mills v . N.LRB., 111 F.2d 291, 293 (C.A. 4); N. L.
R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8).
"Nowadays it is usually a case of more subtlety ." N.L.R.B.
v. NeuhofBros., 375 F.2d 372, 374 (C.A. 5). Hence it is not
surprising for an employer to point to an employee 's minor
or doubtful shortcomings in defending or seeking to uphold
a discharge prompted by antiunion animus . It is my opin-
ion, and I find , that Snyder 's poor attendance record was
seized upon to discharge her for being a vigorous member
of the Union 's industrial relations committee . But I do not
find that she was discharged , in whole or in part, for giving
testimony or an affidavit to the Board in another proceeding
before it.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Those activities of Sinclair set forth in section III, above,
found to constitute unfair labor practices occurring in con-
nection with the operations of Respondents described in
section I , above , have a close , intimate , and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor dis putes burdening and
obstructing commerce and the free flow of commerce.
V THE REMEDY
As Respondent Lilly is a successor to Sinclair, it will be
liable with Sinclair to remedy the unfair labor practices
found above . I shall recommend that Respondents cease
and desist from said unfair labor practices and that they
take specific affirmative action, as set forth below, designed
to effectuate the policies of the Act.
In view of the finding that Judith Snyder was discriminat-
ed against when she was discharged , it will be recommended
that Respondents be ordered to offer her immediate and full
reinstatement to her former position or , if such is not availa-
ble, one which is substantially equivalent thereto, without
pre udice to her seniority and other rights and privileges. It
will further be recommended that Mrs. Snyder be made
whole for any loss of earnings suffered by reason of the
discrimination against her.
In making Mrs. Snyder whole Respondents shall pay to
her a sum of money equal to that which she would have
earned as wages from the date of her discharge to the date
of reinstatement or a proper offer of reinstatement, as the
case may be, less her net earnings during such period. Such
backpay, if any, is to be computed on a quarterly basis in
the manner formulated by F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent calculated by
the method set forth in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondents
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 recommended that Respondents
post appropriate notices.
The conduct of Sinclair in my opinion does not depict a
general hostility to the Act. Accordingly, I find that an order
is sufficient which is limited to enjoining the unfair labor
practices found above and similar or like acts. Since the
remedy adopted should be commensurate with the infrac-
tions of law found herein , relief more extensive in scope is
not warranted.
Upon the basis of the foregoing findings of facts and the
entire records 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. Respondents are employers within the meaning of Sec-
tion 2(2), and are engaged in commerce as defined in Sec-
tion 2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of employ-
ment of Judith Snyder , thereby discouraging membership in
the Union, a labor organization, Respondent Sinclair leas
engaged in an unfair labor practice transgressing Section
8(a)(3) and (1) of the Act.
4. By engaging in the conduct set forth below in this
paragraph Respondent Sinclair has committed unfair labor
practices condemned by Section 8(a)(1) of the Act:
(a) Coercively interrogating Mrs. Snyder concerning her
and other employees' union activities and her testimony
which she gave in another case before the Board;
(b) Compensating employees who were hired and
worked , or continued to work, during the union strike at a
rate higher than that called for by the collective-bargaining
contract applicable to the jobs performed by said employ-
ees;
(c) Granting to ineligible employees vacations with pay
because they continued to work , or were hired and worked,
during the Union 's strike;
(d) Unilaterally abolishing the Thanksgiving turkey in
1969.
5. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair labor
practices alleged in the complaint.
[Recommended Order omitted from publication]