Stoffel Seals Corp.

National Labor Relations Board - Board Decisions

Oct 27, 1972

199 N.L.R.B. 1084 (N.L.R.B. 1972)

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stoffel Seals Corporation and United Steel Workers of
America, AFL-CIO, CLC. Case 10-CA-9355
October 27, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 7, 1972, Administrative Law Judge
Harry H. Kuskin issued the attached Decision in this
proceeding. 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
attached Decision in light of the exceptions and brief,
and has decided to affirm the rulings, findings,2 and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order.
Our dissenting colleague finds that the discharges
of Philip R. and Philip P. Smith were not unlawfully
motivated because the record fails to establish union
animus. It is apparently his view of the law of Section
8(a)(3) that an employer, who remains silent for some
months during an organizational campaign, may sud-
denly, without warning or sufficient cause, discharge
the most active union adherents, whose activity is well
known to him, and escape any responsibility for such
conduct under this statute. He would, however, infer
unlawful motivation in those circumstances, which
precisely fit this case, and reach a contrary result if the
employer had not waited, but discharged the known
union adherents immediately. In this respect the dis-
sent seems to rely primarily on the element of timing
in an employer's reaction to his employees' attempt to
organize a union. In our opinion, such timing, which
may reflect nothing more than a particular employer's
superior sophistication, is not a sufficient basis to dis-
regard otherwise substantial evidence of unlawful mo-
tivation. It has long been accepted labor law that
i The title of "Trull Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions 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
7 We hereby correct the following inadvertent error in the Administrative
Law J'udge's Decision : Under sec . 2, The union activity of the Smiths, the
reference to Hausler being asked and refusing to reply to a question during
cross-examination by counsel for the Union should be corrected to indicate
that it was Falk who was on the witness stand during that cross-examination
by counsel for the Union.
where, as here, an employee is a known union adher-
ent and is discharged summarily for a minor offense
not generally punishable as to other employees, the
burden of proof shifts to the respondent to prove that
the stated reason for the discharge was, indeed, the
real reason. In the instant case the Administrative
Law Judge found after the most careful consideration
that the stated reason for the Smiths' discharges was
simply not credible. From all the proven facts he in-
ferred that there was no reason, except the Smiths'
union activities, for their discharges. We believe that
his inference was factually sound, legally correct, and
reasonably made.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Stoffel Seals Corporation,
Tallapoosa, Georgia, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
CHAIRMAN MILLER, dissenting:
There is a point, not always easy to find, at which
inferences based on expertise cannot be substituted
for factual proof. Here we have two employees who
were discharged, and it is undisputed that their dis-
charge was triggered by an incident in which their
timecards were clearly falsified. In the cool atmos-
phere of objective hindsight, we may think that Re-
spondent acted hastily and upon suspicion rather
than solid proof that the discharged employees had
connived with a fellow employee to have perpetrated
a relatively minor fraud on their Employer. But we are
not arbitrators called upon to rule on the justness of
the discharge. We may set aside the discharge only if
we find it to have been discriminatorily, motivated.
And that is where the proof here is transparently
thin. The record contains no evidence of animus-
only knowledge of these employees' union activity.
That knowledge, plus some fact from which an infer-
ence may be drawn, may in some cases be enough.
Thus, when an employee is discharged suddenly for a
minor offense immediately after his employer learns
of his union activity, there is room for an inference of
unlawful motivation.
But here, when these and other employees had
been openly engaging in union activity for many
months, and where the Employer had demonstrated
no antiunion animus whatever, I see no factual basis
for the inference-or, to put it another way, any such
inference is rebutted by the fact that this Employer
had demonstrated its lack of animus over an extended
period.
NLRB No. 170
STOFFEL SEALS CORPORATION 1085
The only evidence in the entire record from
which an inference of improper motivation could per-
missibly be drawn is the finding that some 3 months
earlier a night-shift foreman (who played no part in
the discharges -here) had, in the course of a casual
conversation, asked whether the employees engaged
in the conversation had been talked to by anyone
"about they were trying to get the Union in out there."
Recollections were dim about the subsequent conver-
sation, and only one out of the three employees in-
volved recalled that the foreman mentioned that he
knew of one named employee who was involved and
then said "he didn't think the Union would do any
good and stuff like that."
In my view, an 8(a)(1) finding based on this
skimpy evidence also is inadequately supported, and
should be reversed.
But even if I am wrong as to that, such evidence
lays too flimsy a foundation for an inference that
discharges made 3 months later were tainted by ani-
mus.
I would dismiss the complaint for failure of proof
to support the allegations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KusluN , Trial Examiner : This proceeding
was heard at Carrollton , Georgia, on March 15, 1972. A
complaint issued herein on February 8, 1972 , based on a
charge filed by United Steel Workers of America, AFL-
CIO-CLC, herein called the Union , against Stoffel Seals
Corporation, herein called Respondent, on January 4, 1972.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by interrogating its employees concerning
their union membership , activities and desires ; and also
violated Section 8(a)(3) and ( 1) of the Act by discriminatori-
ly discharging and refusing to reinstate two of its employees,
namely Philip Robert Smith and Philip Patrick Smith, his
son, because of their union -connected activities and be-
cause of their protected concerted activities . In its answer,
Respondent denies that it has violated the Act in any re-
spect alleged herein.
Upon the entire record , including my observation of
the witnesses and their demeanor while on the witness
stand , and after due consideration of the briefs of the Gen-
eral Counsel, the Union, and Respondent, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges , Respondent admits , and I find,
that Respondent is a Georgia corporation with its principal
office and place of business located at Tallapoosa , Georgia,
where it is engaged in the manufacture and sale of seals and
chicken tags; and that, during the past calendar year, it sold
and shipped directly to customers outside Georgia goods
valued in excess of $50,000. I find, upon the foregoing, as
Respondent also admits, that Respondent is engaged in
commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Respondent further admits, and I find, that United
Steel Workers of America, AFL-CIO-CLC, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
Respondent is engaged at its Tallapoosa, Georgia,
plant in the manufacture of all kinds of seals , used primarily
for security purposes. In this group are paper seals for the
chicken industry, metal seals, and molded seals. At times
material herein, Respondent had a complement of about 90
employees. So far as appears, Respondent's production de-
partments consisted of a paper department and a toolroom,
metal stamping, and plastic department. Respondent oper-
ated on two shifts, with the day shift beginning at 7 a.m. and
ending at 3:30 p.m. In charge of these two departments on
the day shift were Albert Hausler and Norbert Falk, re-
spectively; and in charge of the night shift was Earl Turner,
a foreman. Over these supervisors and responsible for the
plant's operations was R. J. Simonton, the plant manager.
Respondent's answer admitted that Turner was a supervisor
within the meaning of the Act; and Respondent stipulated
at the hearing that Hausler, Falk and Simonton were like-
wise supervisors.
Organizational activity in behalf of the Union was in
progress by late spring of 1971.' As will appear more in
detail hereinafter, both Philip R. Smith and his son, Philip
P. Smith 2 were in the forefront of such activity until the
time of their discharges on December 30.
Both alleged discriminatees worked on the day shift.
Respondent contends that they were discharged for falsifi-
cation of their timecards on December 30 with respect to the
time when they returned from lunch. Relevant in this con-
nection are (1) the timecard system used in the plant, (2) the
posted rule concerning the punching of timecards, and (3)
the plant practice with respect to the lunch period. I shall
discuss them seriatim.
As to (1), the timecards are used by all employees to
register the number of hours at work in the plant. Employ-
ees are also required to record thereon the amount of time
they spend on each assigned job. The employee notations
are utilized by Respondent to check on production and/or
to determine charges to be made to a customer for work
done. Employees keep their timecards at their work loca-
tions at all times, except when they go out to lunch. When
leaving for lunch, they punch out and place their timecards
in the customary place in the timecard racks.3 Thereafter,
upon returning from lunch, they punch in and carry their
' All dates hereinafter are in 1971.
2 I shall refer to them hereinafter as Philip R. and Philip P, respectively.
3 There are two timeclocks in the plant . Apparently employees may use
either timeclock.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timecards with them to their work locations , where the time-
cards remain until they punch out for the day. Then, they
return their timecards to their designated places in the time-
card racks . When discrepancies anse between the amount
of time at work shown on the timecards by the timeclock
and the time recorded by the employees as sent on various
assignments , the timeclock record prevails, unless the em-
ployee involved can satisfy the person in charge of figuring
the time on the timecards that he actually spent the time
recorded by him as worked that day. In computing the time
on the basis of the timeclock record , Respondent will dock
an employee 15 minutes of working time if he clocks in more
than 7 minutes late, and will pay him for 15 minutes of
working time when he works overtime 7 or more minutes
but less than 15. Where errors in computation have been
made by an employee in the foregoing respects , the person
in charge of figuring the time will inform the employee of
his error . There have been instances where employees have
not clocked out when they should have done so. On such
occasions , they are supposed to write in the correct time and
get supervision to initial the time so recorded . When this is
not done, the person who figures the timecards will check
the matter out with the employee involved . It is apparent
from the testimony of both Philip R. and Philip P., and I
find, that there have been a number of discrepancies on
their respective timecards during their employment tenure,
that the one who figures timecards has checked the matter
out with them , and that corrections have been made.
As to (2), Respondent has had posted at all material
times a ,rule which relates to punching a timecard for an-
other employee . It reads as follows:
EACH EMPLOYEE IS EXPECTED TO CLOCK HIS OR HER OWN TIME
CARD AT ALL TIMES . ANY PERSON CAUGHT CLOCKING ANOTHER'S
CARD WILL AUTOMATICALLY BE LAID OFF FOR AT LEAST ONE
DAY.
As will appear hereinafter, the Smiths were not charged with
violating the above rule . They were charged , instead, with
falsifying their timecards in that their timecards were
punched in before they actually returned to the plant from
lunch . Although Hausler, the supervisor in the paper de-
partment, testified that Respondent had a posted rule pro-
viding that the one whose card is clocked in or out by
another employee is to be discharged, Plant Manager Si-
monton contradicted him, testifying that Respondent did
not have a written rule covering such a situation . In all these
circumstances, and as Simonton impressed me as a more
reliable witness than Hausler , I credit Simonton . I note, too,
that the record herein shows that, during the terminal ses-
sion, Simonton equated the conduct of one whose card has
been punched in by another employee with stealing, and
that Simonton testified , in this connection , that Respondent
has an unwritten rule that an employee caught stealing
money from it will be discharged automatically.
And as to (3), the record shows that about half of the
employees in the paper department went to lunch from
11:30 a.m . to noon ; that the rest of the employees , in which
group Philip R. belonged, went to lunch from noon to 12:30
p.m.,5 and that Hausler went to lunch from noon to 1 p.m.
While the record does not give specific details as to the
lunch period or periods in the toolroom, metal, and stamp-
ing department, it does indicate that Philip P. generally
went to lunch at the same time as his father did, i.e., from
noon to 12:30 p.m.
B. The Alleged 8(a)(3) Violation in
the Discharges of Philip R. Smith
and Philip P. Smith
1. The employment history of the Smiths
Philip P. started his employment with Respondent in
the fall of 1966 as a tool and die maker . At all times mate-
rial, his foreman was Norbert Falk. Philip R., his father,
began to work for Respondent in October of 1969 as a metal
decorator on an offset press. Albert Hausler was his fore-
man throughout his employment tenure. According to
Hausler, Philip R. was "a fairly good employee." And ac-
cording to Falk, Philip P. was "a nice fellow," and turned
out work that "was right." While he criticized Philip P. as
a "slow" worker, "100 percent slower than anyone else in
the shop," he testified further that he "needed [Philip P.'s]
work ... needed the job he was doing."
2. The union activity of the Smiths
As already found, organizational activity in behalf of
the Union was in progress by late spring 1971. About that
time , Philip R. began actively to solicit employees to sign
authorization cards in behalf of the Union and he was ap-
pointed chairman of the union organizing committee. In
addition, he attended union meetings . Starting in July, Phil-
ip P., like his father, became active in the Union. He solic-
ited employees to sign authorization cards, visiting them at
their homes to get them to do so, and he also attended union
meetings . Beginning in October of that year both father and
son began to wear union insignia on their shirts while at
work and continued to do so until the date of their dis-
charges. Several other employees also wore such insignia
while at work. These insignia consisted of buttons and of
pencils with a button-type clip thereon. The buttons which
were not attached to a pencil were a little larger in size than
a half dollar, while the buttons on the pencil clips were
about the size of a 5-cent piece. The latter bore such legends
as "Go Steel Workers," and the pencil itself carried the
legend, "The United Steel Workers is the Union for You."
The buttons which were worn alone bore such legends as
"Join United Steel Workers of America"; or "Vote Yes"
across the middle, and "United Steel Workers of America"
around the outer edge of the button. According to the testi-
mony of Philip P., on the first day that he wore a union
button, Norbert Falk, his foreman, stopped him in the plant
as he was passing by and said, "Oh, I see it 's Steel Workers,"
and walked away. In this connection, Simonton and Haus-
ler admitted that they noticed that both Smiths were wear-
ing union buttons in the plant and that they knew that the
Smiths were active in the Union. Significantly, too, I note
that when Hausler was asked, during cross-examination by
41 so find, notwithstanding the testimony of Philip R., Philip P , and 5 It would appear that , although employees were limited to one half hour
employee Bobby Daniel that the time recorded by the employee controls in for lunch , they did have a little latitude to accommodate their departure for
case of a discrepancy . lunch to work needs by starting their lunch period minutes later.
STOFFEL SEALS CORPORATION 1087
counsel for the Union, "And you had heard of their activi-
ties and going to people's homes and talking to them and
things of that kind in the interest of the Union, hadn't
you?," he replied, "I don't want to answer that." I infer, and
find, from Hausler's aforesaid refusal to answer that he was
withholding information adverse to Respondent. Addition-
ally, I note that Turner admitted that, not too long before
he became a supervisor, Philip P. came to his home and
talked to him about the Union.6 In all these circumstances,
I conclude, and find, that Respondent not only had knowl-
edge that both Smiths were active in the,Union but also was
aware that they were in the forefront of the Union's organi-
zational activity among its employees.
3. The critical events of December 30
(a) Developments that morning, including
the lunch period
Philip P. clocked in at 7:15 a.m. on December 30.7
Philip R. clocked in at 7:34 a.m. Each one worked in his
own department that morning, and, so far as appears, noth-
ing untoward occurred between either of them and manage-
ment . Both Smiths usually leave for lunch together.
However, they did not do so that day. Philip R. told his son
when the latter came to get him for lunch that he would have
to delay his departure for lunch because of some work he
had to do. Philip P. then left the plant without Philip R. The
latter clocked out at 12:14 p.m.
According to the uncontradicted testimony of Philip R.
he punched his timecard out for lunch at the timeclock in
the slitter department near the office, and placed it in the
card rack behind the timecard of Philip P. He then exited
through the front of the building where his car was parked
and drove to a restaurant in Tallapoosa about a mile away.
And according to the uncontradicted testimony of Philip P.,
when he clocked out at 12:03 p.m. he placed his card in the
rack, which is the same rack as his father uses , and left for
the same restaurant separately. According to Philip P., he
got back to the plant around 12:35 p.m. but did not clock
in because he saw that his timecard was clocked in already.
Whereupon, he took his timecard and went to his work
station. According to Philip R. he returned to the plant at
about 12:43 p.m. and got his timecard. He was unable to
recall whether his timecard was in the rack or "on the table
where the timeclock is." Also according to Philip R., his
timecard had already been punched in at 12:30 p.m., al-
though he was not at the plant at that time. He explained
further that he rushed back to the area of his press because
he then had two skids of metal in the furnace, and that he
remembers putting the timecard in his hip pocket and taking
the metals out of the furnace.
The testimony by the Smiths as to the time of their
respective returns to the plant from lunch is controverted by
the testimony of Hausler. It was his testimony that he left
for lunch at 12 noon; that he came back at 12:45 p.m.; that
he noticed that the two cars of the Smiths were not in the
6 Although Turner swore that he never mentioned this to a soul thereafter,
I do not credit him in this regard in view of the logic and probabilities of the
situation and the fact that Turner impressed me as one seeking to shield
Respondent against any findings of wrongdoing under the Act.
7 Philip P . testified inaccurately that he got to work at 7 or 7.01 a m
parking area where they had been earlier that day; that he
went into the plant and saw that Philip R. was not at his
work station; that he was sure that Philip P. was not in the
plant either, as he had checked all around on both sides of
the plant; that he checked both timecard racks, as well as
the tables by the timeclocks, and their cards were not there;
and that he was standing about 20 to 30 yards from the work
station of Philip R. when he noticed Philip R. come in, go
directly to his work station, and put his timecard on his
work bench. Hausler fixed the time that he saw Philip R. go
to his work bench as 12:47 p.m. It is apparent from the
foregoing testimony that, if Hausler is to be believed, it took
him only 2 minutes, i.e., from 12:45 to 12:47 p.m., to check
the racks and the tables near the timeclocks, to look for
Philip R. in the printing department, to check to see whether
Philip P. was at his place of work at the other side of the
plant and then to return to a place about 20 to 30 yards
away from Philip R.'s working place. In these circum-
stances, including the fact that Hausler did not impress me
as a forthright witness, and as the Smith's testimony im-
pressed me as being more reliable than that of Hausler, I
credit the Smiths and find that Philip P. returned to the
plant after lunch at 12:35 p.m., that Philip R. returned to the
plant shortly thereafter at 12:43 p.m., and that each one
picked up his timecard, finding that his card had already
been clocked in at 12:30 p.m., and then proceeded directly
to his workbench. Understandably then, Hausler would not
have found the timecards of the Smiths in the timecard
racks or on the tables near the timeclock by 12:45 p.m., as
both Smiths had already picked up their timecards by that
time . Accordingly, I find that no inferences adverse to either
Philip P. or Philip R. can be drawn from Hausler' s claimed
failure to find their respective timecards in the racks or on
the tables near the timeclocks.
(b) Hausler checks Philip R.'s timecard
at Philip R's workbench
Shortly after Philip R.'s return to his workbench, he
was visited by Hausler who asked to see his timecard. The
testimony is in some conflict as to what then occurred.
Philip R. testified that Hausler asked him for his timecard,
and then pulled it out of his hip pocket, when told where it
was; that Hausler then said, "here, your card is punched in
at 12:30 and you were not here"; that he answered that he
was not saying that he was; that Hausler replied, "Well we
can't have this. It isn't fair to the other employees," and
became very excited and "irate"; that he commented that
"it's happened before," pointed out that he had not claimed
any time yet on his card, and added, "Now, if you want me
to punch out or punch back in or whatever you want me to
do-it'll be dust fine with me, but I cannot tell you how it
happened." Hausler's version was that he removed the time-
card from Philip R.'s pocket, but did so only after Philip R.
had taken the timecard from the workbench when he ap-
proached and put it in that pocket, and after Philip R. failed
to hand the timecard to him when he so requested, saying
instead that the timecard was in his pocket; that, after look-
ing at the timecard, he asked Philip R. twice who had
punched in for him; and that Philip R. answered both times
that he did not know. I note, in this connection, that Hausler
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, at first, during cross-examination by counsel for
the General Counsel, that he had checked all the other
timecards at 12:45 p.m., to see when the others had clocked
in, and then changed his testimony to say that he just looked
for the timecards of the Smiths on that occasion. It is appar-
ent from all the foregoing that both Philip R. and Hausler
are in agreement that Hausler, upon ascertaining that Philip
R.'s timecard had been punched in at 12:30 p.m., sought to
find out from Philip R. who had done the punching in, but
was told by Philip R. that he did not know. As to the
differences between them concerning the way in which
Hausler obtained the card from Philip R. and what conver-
sation ensued between them, I find here, too, that Philip R.'s
testimony is more reliable than that of Hausler, and I credit
Philip R.'s version.
(c) Hausler reports to Simonton,' and the
developments before the terminal
session with the Smiths
Hausler thereupon sought out Plant Manager Simon-
ton in his office, upon the latter's return from lunch, and
reported to him that although the timecards of the Smiths
had been punched in from lunch at 12:30 p.m. that day, the
Smiths were not in the plant until about 1 o'clock. During
the discussion, Hauslef indicated that he had checked the
racks upon his return from lunch but could not find the
timecards of the Smiths, that he had thereafter obtained the
timecard from Philip R. and examined it, but that he had
not yet seen Philip P.'s timecard. Whereupon, Falk, the
supervisor of Philip P.,8 was called into the office, was ap-
prised of the situation, and was told to get Philip P.'s time-
card. Falk did so, and brought it to Simonton's office. After
some discussion in Simonton's office, Simonton directed
Hausler to bring Philip R. to the office and directed Falk
to bring Philip P. to the office. This was done.
(d) The terminal session
his action and getting their approval. As both Smiths re-
fused to resign, Simonton told them that they were dis-
charged.
It is patent from all, the foregoing, and I find, that
Simonton's proposition to the Smiths was that unless they
told him who punched in their timecards they would be
faced with the option of either resigning or being fired;9 and
that, although both Smiths said that they did not know who
punched in their cards, and before Respondent had either
examined the timecards of other employees or conducted an
investigation among them in an effort to ascertain whether
the Smiths' claimed ignorance of the situation had validity,
Respondent discharged them when they refused to resign.
(e) The aftermath of the discharges
Simonton testified that after the discharges on that day
and after the shift changed, they checked the timecards of
the other employees and found that five employees had
checked in at 12:30 p.m.; they followed this by asking these
individuals whether they had seen anyone punching more
than one card after lunch; and that the answers were all
negative. In this connection, Falk testified that he checked
the timecards of the five employees in his department at
about 3 p.m. by which time the employees had laid their
timecards on the table near the timeclock; that he found
that the cards of Bobby Daniel and Martin Resin were the
only ones in his group who had clocked in at 12:30 p.m. and
that he talked to several employees and was unable to find
out anything. According to Bobby Daniel, on this occasion,
Falk commented to him that Resin's card and his card were
punched in at the same time as the timecards of the Smiths
and that "[he] had to let them go, to be careful."
(f) The extent to which the rules as to
not punching in or out another
employee's timecard was honored
by the employees
Present in Simonton 's office during this session were
Simonton, Hausler, Falk and the Smiths. All of them testi-
fied as to this episode. A composite of so much of their
testimony as I find credible establishes the following: Si-
monton told the Smiths that their timecards had been
clocked in at 12:30 p.m. that day, although they were not
in the plant. He said further that this was the same as
stealing, and inquired as to who had punched their time
cards. Both Smiths replied that they did not know. Where-
upon, Simonton said that they had the option of resigning
or being dismissed. At this, Philip R. said that he was not
going to resign as he had not done anything and had no
reason to resign. And Philip P. said that he did not know
who punched in his timecard as he was not there when it
happened, and added that he would not risk his 5 years of
"privileges" with Respondent for the sake of 15 minutes.
Further, during the discussion, Philip R. pointed out that it
was only a matter of 65 cents. Simonton repeated the op-
tion, after asking both Hausler and Falk if they agreed with
8 Falk testified that he returned from lunch that day at about 1.05 to 1.10
p.m.
The record shows, and I find, that the rule as to not
punching another employee's timecard in or out has not
9 Simonton testified as follows in this regard , during cross-examination by
counsel for the Charging party-
Q. You dust fired them , didn't you?
A Yes
Q. Now, you offered to them not to fire them in effect if they would
tell you who did it, didn't you?
A Yes, sir, that's right.
Q And you made an option to them in the presence of Mr. Falk
and the other foreman didn't you?
A. (Nods head affirmatively)
Q. And you were willing not to discharge these men if they would
tell you who signed the card or who punched the card?
A Punched the card
Q. And they told you in substance , "well, my goodness, if we knew
who did that we wouldn't give up our several years service here by
refusing to tell you," didn't they? In substance is that what they said to
you, sir?
A. No, they didn't say that
Q. Well, didn't they say something like that? Didn't they say, "look,
we'd tell you if we knew0" One of them , certainly the man with several
years seniority-well, you don't have seniority there, I understand, but
several years experience said , "I wouldn ' t be giving up all of my service
here by refusing to tell you something if I knew the name of the person
that did this?" Didn't he in effect say something like that9
A Yes, I think he said that.
STOFFEL SEALS CORPORATION 1089
been observed by some of Respondent's employees. Ac-
cording to the credible testimony of Philip R., he has seen
employees put more than one card in the timeclock and
punch them while a foreman was in the area; and there have
been occasions when his card was punched in, although he
was not in the plant. Also according to the credible testimo-
ny of Philip P., his card has been punched in, absent a
request by him, and he has seen employee Junior Dotson at
the timeclock punching a number of timecards. Additional-
ly, employee Mync Daniel testified that she punched in the
timecards of other employees, and that "everybody does it";
that she did this many times for Bobby Daniel, both before
and after they were married; that she was reprimanded
orally by Hausler on one occasion for doing so, and contin-
ued doing so thereafter until Hausler orally reprimanded
her a second time, but that she was never laid off for a day
for violating the rule. Further, Bobby Daniel also admitted
punching in other employees' timecards after lunch as a
convenience to employees who were working that day. It is
also his testimony, which I credit, that he did so, at times,
without being asked by the employee involved, and that he
did not know, on occasions, if the clocked-in employee was
back from lunch or when such employee went back to work.
And finally, employee Cheryl Chandler testified credibly
that she punched timecards more than one time for the
convenience of other employees who were with her at the
time, and that she has seen fellow employees punching time-
cards for others in the plant. It is noteworthy, too, that Plant
Manager Simonton admitted that about 3 months before
this hearing, a lady supervisor, who is unnamed in the rec-
ord, called his attention to the fact that employees were
punching one another's timecards, and that no employee
has ever been laid off or terminated therefor. His explana-
tion for not having invoked the posted rule was, "You've got
to catch them." In the light of all the foregoing, including
the fact that there were two instances in which Myric Daniel
was actually caught but escaped with only an oral repri-
mand, I find, contrary to Simonton, that Respondent never
invoked the penalty under the rule and that this was so even
in those cases where Respondent caught the employee in the
act of violating the rule.
Respondent pointed to one instance , about 3 years
before this hearing, in which it discharged employee Tom-
my Poore for falsifying his timecards. However, there, un-
like here, Respondent had, at the time of the discharge,
established that over a period of about a week a female
employee had punched his timecard more than once while
he was out of the plant for 2 or 3 hours. In addition, this
conduct continued notwithstanding that Respondent's fore-
man had issued a warning to Poore concerning this falsifica-
tion. It is noteworthy too that the female employee who was
punching Poore's timecard was not penalized for violating
the rule against punching another employee's timecard, al-
though her identity was known to Respondent. And when
Simonton was asked during cross-examination by counsel
for the Union whether he did not consider this employee's
conniving with Poore to be stealing from the Company and
as justifying disciplinary action against her, he answered,
"Well, I had my reasons."
C. The Alleged 8(a)(1) Violation
The complaint alleges only one item of independent
8(a)(1) conduct. It relates to an episode on the night shift
during late September 1971, in which Night Shift Foreman
Tucker and employees Cheryl Chandler, Joyce Gann, and
Margaret Warren took part. Chandler was called as a wit-
ness by the General Counsel while the others were called as
witnesses by Respondent. So far as appears, only Chandler,
among these three employees, had signed a union authoriza-
tion card. She had done so about a week or two before this
episode and had told Warren about it. On the night in
question, all three of them were standing near one another
in the production area about breaktime having a conversa-
tion, when Turner approached them. Chandler testified, in
substance, as follows as to what then occurred: The three-
some may have been discussing the Union among them-
selves when Turner entered the conversation. Turner began
by asking if anyone had talked to them "about they were
trying to get the Union in out there." After the threesome
had replied in the negative, she asked Turner whether the
person or persons trying to do this were known. Turner's
response thereto was, "Well, we think Mr. Hicks 10 is in on
it and a few others." Turner also continued to discuss the
Union by saying that "he didn't think the Union would do
any good and stuff like that." Chandler could not recall
whether Gann or Warren entered into the conversation. In
contrast to the above, Gann testified, as did Warren, that
Turner did not bring up the subject of the Union, and that
Turner has never asked them any question about the Union.
Also according to Gann, she was probably the one who
raised the matter with Turner on this occasion. However,
she testified further that she could not recall whether the
Union was being discussed when Turner approached them,
nor could she recall whether employee Hicks was men-
tioned by name during the conversation, nor could she re-
member much about this conversation. And, so far as
appears, Warren's recollection of the incident was not clear
either. Thus she was not certain either as to who, among the
threesome, brought up the subject of the Union, or as to
what was being said when Turner entered the conversation,
or as to what Turner's opening remarks were. Her only clear
recollection appeared to be that when Turner was asked the
question about the Union, he answered that he was not in
a position to talk for or against the Union. Turner's version
of the foregoing was that he just walked up to the three-
some; "there wasn't no necessity [deriving from work-relat-
ed matters] that [he] do it;" that they had about 10 minutes
of conversation; and that 5 or 6 minutes of this time were
devoted to discussion of the Union. And as to the conversa-
tion itself, he testified, at first, that he did not bring up the
subject of the Union but did not recall who did, and then
that Chandler, of the threesome, did all the talking about the
Union; in addition, he testified at first, that Chandler
"asked [him] about the Union and what activities it had, and
this and that," and that was all as far as the Union was
10 I find that the reference was to employee Fred Hicks.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerned, and then testified that she also talked about her
husband's experience with a union at his place of employ-
ment, that it did not do her husband any good, and that she
was not for the Union. Also according to Turner, the only
statement he made was that he "was not in a position to
discuss the Union one way or the other, whether [he] was
for or against the Union"; he denied asking the threesome
whether someone had been talking to them about the Union
or referring to employee Hicks during this conversation.
Analysis and Conclusions
It is apparent from all the above testimony bearing
upon the 8(a)(1) allegation of the complaint that Chandler's
testimony is considerably at odds with that of her fellow
employees and that Chandler's attributions to Turner were
categorically denied by him. However, I attach no weight to
the testimony of Gann and Warren because they impressed
me as being purposefully evasive. And as far as Turner's
denial of Chandler's attributions to him are concerned, I do
not credit him as he was not, as I have heretofore found, a
reliable witness . In all these circumstances , and as Chandler
impressed me as a forthright witness, I credit her version.
Accordingly, I find that this episode occurred in the manner
testified to by Chandler and that Turner interrogated Chan-
dler, Gann, and Warren during the latter part of September
concerning their union activities and those of their fellow
employees. And I conclude and find further that, by the
above conduct of Turner, Respondent interfered with their
rights guaranteed in Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.
I come now to the 8(a)(3) and derivative 8(a)(1) allega-
tions of the complaint. It is apparent from my findings
heretofore that Philip R. was regarded by Respondent as "a
fairly good employee" during his more than 2 years of em-
ployment by it; and that, although Philip P., his son, was a
slow worker, his work was done properly and Respondent
was in need of his services which he had been rendering for
about 5 years, and, as in the case of his father, the calibre
of his work was not an operative factor in his discharge.
Indeed, the only reason asserted by Respondent for their
discharges was that they had falsified their timecards. There
is no basis, however, in this record for finding that the
Smiths actually falsified their timecards. Thus, Philip P. and
Philip R. testified credibly that when they returned from
lunch at 12:35 p.m. and 12:43 p.m., respectively, on Decem-
ber 30, they proceeded to get their timecards in order to
punch the timeclock but found that their cards had already
been punched in at 12:30 p.m. Further, their testimony that
they were not in the plant at 12:30 p.m. to punch in stands
undenied on the record. These circumstances, which were
made known to Simonton during the session in his office
between 1 and 2 o'clock that afternoon, plus the denial at
that time by the Smiths that they knew who had punched
their timecards at 12:30 p.m. were, nevertheless, not regard-
ed by Respondent as warranting, before taking adverse ac-
tion against them, an investigation among employees who
were in the plant at 12:30 p.m. that day, in order to try to
find out whether someone had punched their timecards and,
if so, the reason or explanation for such action. And it failed
to do so , notwithstanding its awareness of the prevalence in
the plant of a practice on the part of employees of punching
in one another's timecards. Instead, Respondent acted pre-
cipitately in the matter and deferred an investigation or
inquiry until after the Smiths were discharged, i.e., later that
same afternoon. Notably, too, although Respondent point-
ed to its discharge about 3 years before the hearing of em-
ployee Tommy Poore for falsification of his timecard as
precedent for its action herein, there, unlike here, Respon-
dent acted only (1) after it had ascertained that a female
employee was acting in concert with him and punching his
timecard while he was away from the plant; and (2) after it
had warned him concerning such falsification. Further,
there, the misconduct of Poore occurred on more than one
occasion within a period of about a week and Poore's ab-
sences were for 2 or 3 hours at a time, whereas here the
claimed but unverified misconduct occurred only once and
involved in the neighborhood of 15 minutes. It is notewor-
thy, too, that, although Simonton gave the Smiths the option
during the terminal session of being released from respon-
sibility for the claimed falsification if they would only dis-
close who had punched their timecards on this occasion,
this was, in the circumstances, no option at all, since so far
as appears they did not know who had punched their time-
cards during their absence from the plant for lunch. Signifi-
cantly, too, when Philip R. was first confronted by Hausler
concerning this matter, he expressed a willingness to correct
the card, but that availed him nothing. And no such option
was afforded to the Smiths during the terminal session.
In view of all the foregoing, I am persuaded, and find,
that the aforesaid reason for the termination of the Smiths
does not withstand scrutiny and that the real reason lies
elsewhere. In looking for the real reason, significance at-
taches not only to the failure of the asserted reason to with-
stand scrutiny, but also to (1) the fact that the discriminatees
were employees of relatively long standing who, Respon-
dent admitted, did good work, adding, in the case of Philip
P., that it then "needed the job he was doing,"; (2) the hasty
and precipitate action by management in effecting their
discharges;" (3) the fact that both Smiths were in the fore-
front of the Union's organizational campaign and openly
displayed their union affiliation in the plant by wearing
various union insignia on their work clothes; and (4) the fact
that Respondent admittedly knew that they were active in
the Union. In all these circumstances and on the entire
record, and allowing for the fact that the one instance of
8(a)(1) conduct found herein occurred about 3 months be-
fore these discharges, the only reason that suggests itself for
these discharges which, I infer, and find, was the real reason,
was the above-described union activity by the two dischar-
gees . Accordingly, I conclude, and find that by discharging
Philip R. Smith and Philip P. Smith, Respondent violated
Section 8(a)(3) and (1) of the Act.
Upon the basis of the entire record, I make the follow-
ing:
11 This was made manifest , inter aia, by Respondent's failure to conduct
a full investigation of the matter before the discharges , ignoring thereby the
claims by the Smiths that they were innocent and that they did not know who
had punched in their cards. And no reason appears in this record why the
matter, which had arisen that very day, could not have abided the investiga-
tion by Respondent, which did occur subsequent to, and on the same day
as, the discharges.
STOFFEL SEALS CORPORATION 1091
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating its employees concerning their un-
ion activities and those of their fellow employees Respon-
dent has violated Section 8(a)(1) of the Act.
4. By discharging Philip R. Smith and Philip P. Smith
on December 30, 1971, because of their union activity, Re-
spondent discriminated against the hire and tenure of its
employees and has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act, I shall recommend that a broad order issue that it
cease and desist therefrom, and that it affirmatively take
such action as will dissipate the effects of its unfair labor
practices. In the latter connection, having found that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging Philip R. Smith and Philip P. Smith, I shall also
recommend that Respondent offer each of them immediate
and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered during the period of this discrimination against him by
payment to him of a sum of money equal to that which he
would have earned as wages from the date of such discrim-
ination to the date of Respondent's offer of reinstatement,
less his net earnings during such period, with backpay and
interest thereon to be computed in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I hereby issue the following recommended:
ORDER 12
without prejudice to his seniority or other rights and privi-
leges, and make each of them whole for any loss of earnings
he has suffered, in the manner set forth in the section hereof
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agent, for examina-
tion and copying, all payroll records, social security records,
timecards, personnel records and reports, and all other rec-
ords necessary or useful to determine or compute the
amounts of backpay due, as herein provided.
(c) Notify Philip R. Smith and Philip P. Smith, if pres-
ently serving in the Armed Forces of the United States, of
their right to full reinstatement upon application, in accord-
ance with the Selective Service Act and the Universal Mili-
tary Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(d) Post at its plant in Tallapoosa, Georgia, copies of
the attached notice marked "Appendix." 13 Copies of said
notice on forms provided by the Regional Director for Re-
gion 10, after being signed by a representative of Respon-
dent, shall be posted by Respondent immediately upon
receipt thereof and be maintained 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 said Regional Director, in writing, within
20 days from the date of the receipt of this Trial Examiner's
Decision, what steps Respondent has taken to comply here-
with. 14
12 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Section
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
13 In the event that 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 Stated Court of Appeals
Enforcing an Order of the National Labor Relations Board."
14 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
said Regional Director, for Region 10, in writing , 20 days from the date of
this Order, what steps Respondent has taken to comply herewith."
Respondent, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Interfering with, (restraining; or coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act by interrogating them as to their union activities and
those of their fellow employees.
(b) Discharging employees for antiunion reasons.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer to Philip R. Smith and to Philip P. Smith
immediate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed un-
der the Act by interrogating them as to their union
activities and those of their fellow employees.
WE WILL NOT discharge our employees for antiun-
ion reasons.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Philip R. Smith and to Philip P.
Smith immediate and full reinstatement to his former
job, or if that job no longer exists , to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges , and make each of them
whole for any loss of pay suffered as a result of his
discriminatory discharge.
STOFFEL SEALS CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify Philip R. Smith and Philip P. Smith, if pres-
ently serving in the Armed Forces of the United States, of
their respective right to full reinstatement upon application,
in accordance with the Selective Service Act and the Uni-
versal Military Training ' and Service Act of 1948, as
amended , after discharge from the Armed Forces.
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 compliance with its provisions may be direct-
ed to the Board's Office, Peachtree Building Room 701, 730
Peachtree Street , N.E., Atlanta , Georgia 30308 , Telephone
404-526-5760.