Altec Corp.

National Labor Relations Board - Board Decisions

May 20, 1974

210 N.L.R.B. 677 (N.L.R.B. 1974)

ECONOLITE DIVISION 677
Econolite Division of Altec Corporation and Michael
J. O'Hara. Case 21-CA-12018
May 20, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 4, 1974 , Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding . Thereafter , the General Counsel
filed exceptions and a supporting brief , and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings , I and conclusions of the Administrative Law
Judge to the extent consistent herewith.
We do not agree with the Administrative Law
Judge ' s conclusion that Respondent 's discharge of
Michael O'Hara was not violative of Section 8(a)(3)
of the Act . We are satisfied that O'Hara was
discharged because of his activities on behalf of
Traffic Controllers Independent Union (hereinafter
TCIU) and, later, Local 2125, International Brother-
hood of Electrical Workers (hereinafter IBEW).
In the spring of 1973, TCIU engaged in an
organizational drive to replace IBEW as the exclu-
sive bargaining representative of the production and
maintenance employees at Respondent 's plant.
O'Hara took an active role in this campaign on
behalf of TCIU by soliciting signatures on authoriza-
tion forms , writing and handing out anti-IBEW
pamphlets , and holding an employee meeting on the
plant premises during one lunch hour in early April.
All of O' Hara's TCIU activities were well known to
management . An election was held in May 1973, in
which IBEW defeated TCIU. After the election,
O'Hara continued his participation in union activi-
ties by campaigning for, and winning , a seat on the
IBEW committee formed to negotiate a new collec-
tive-bargaining agreement .2 However , at the first
negotiation session on June 4, Respondent's repre-
sentatives expressed their reluctance to negotiate
with IBEW so long as O'Hara and Rex Hiscocks,
another employee previously active on behalf of
1 The General Counsel 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 are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (CA. 3). We have carefully
TCIU, participated in the IBEW committee, because
they felt that by negotiating with TCIU spokesmen
Respondent might be committing an unfair labor
practice. O'Hara and Hiscocks resigned from the
negotiating committee the next day in order to
expedite the negotiations.
Until the TCIU organizational campaign in the
spring of 1973, O'Hara had never, in his almost 3
years of employment with Respondent, been repri-
manded or otherwise disciplined. On April 18,
however, O'Hara was informed by his immediate
supervisor, Billie Lex, that he had been seen
excessively talking with employees outside his work
area.3 Although the gist of the conversation between
O'Hara and the other employees was unknown to
anyone in management, Lex requested O'Hara to
confine his discussion regarding union activities to
his lunch or break periods. O'Hara said he would
comply. On two separate occasions in June and July,
Lex again confronted O'Hara with the fact that both
he and other management personnel had observed
O'Hara spending too much time away from his work
area idly talking with other employees, and repeated
his request that O'Hara refrain from such activity.
He also warned him that any further infractions
would result in written disciplinary action. On the
morning of July 18, while on his work shift, O'Hara,
having received from a fellow employee a copy of the
terms of the new collective-bargaining agreement
tentatively agreed to by Respondent and IBEW
negotiators, ran off 12 copies of the contract terms
on a Respondent-owned duplicating machine. He
then gave one copy to Lex who had been standing
next to him while he used the machine. Lex read the
document and put it in his desk. The rest of the
copies were distributed to other unit employees
during O'Hara's lunch break. Upon learning of this
act, Dennis DeCicco, Lex's immediate supervisor,
confronted O'Hara and warned him not to use the
Respondent's copying machine any more and not to
distribute this sort of information either on his own
or on company time without permission of both the
Respondent and IBEW, lest he be immediately
discharged. O'Hara promised to refrain from using
the machine again, but claimed he had the right to
distribute whatever materials he wished on his own
time. On the next day, July 19, DeCicco and Lex
reported the copying machine incident to Pospichal,
who then decided to discharge O'Hara because he
had violated two plant rules: rule 1.3, which prohibits
examined the record and find no basis for reversing his findings
2 The old contract was to expire on or about June 14, 1973.
3 Besides having seen O 'Hara himself, Lex had also been informed of
O'Hara 's excessive talking by Respondent's director of administration,
Joseph Pospichal.
210 NLRB No. 111
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
theft of company property, and rule 2.1, which
prohibits distribution of materials during worktime.4
The Administrative Law Judge found that while
O'Hara's reproduction and advance distribution of
the terms of the proposed collective-bargaining
agreement to unit employees was protected activity,
the fact that he performed such activities during time
he should have spent working removed such activity
from its protected status and made it a proper basis
for discharge by Respondent. We do not agree. The
record reveals an unmistakable pattern of antipathy
and suspicion exhibited by Respondent towards
O'Hara because of his TCIU activities. This, coupled
with patently pretextual use of valid plant rules to
effect his discharge, leads us to conclude that O'Hara
was fired solely because of his union activities.
After the advent of TCIU's decertification cam-
paign, in which O'Hara played such a conspicuous
role, O'Hara's excessive worktime conversations with
other employees became the basis for repeated
warnings and reprimands by Respondent's supervi-
sors. While Respondent, of course, had a legitimate
interest in ensuring that worktime should be reserved
exclusively for work, it appeared that in the case of
O'Hara it was what he was suspected of discussing
during worktime rather than the fact that he was
talking on worktime at all that was uppermost on
Respondent's mind. Thus, on April 18, even though
Lex had no inkling of what O'Hara was talking about
with his fellow employees, he assumed that the talks
centered around the TCIU campaign and warned
O'Hara not to discuss union activities during work-
time. Respondent's special attention to O'Hara's
worktime activities, motivated as it was by its
concern over his role in the TCIU campaign,
evidenced itself in June, when, upon O'Hara's
complaint of harassment to Lex in that he was being
singled out for reprimand while coworkers could
remain idle during their worktime for long periods
with impunity, Lex agreed with him and attributed
such harassment to the fact that O'Hara's union
activities gave him "high visibility." 5 Consistent with
Respondent's undue preoccupation with O'Hara's
possible TCIU activities was the warning found by
the Administrative Law Judge to violate Section
8(a)(1), that Respondent's production manager,
Robert Withrow, in April gave to pro-TCIU employ-
ee Kathleen Pierce to stop TCIU activities lest she be
4 Prior to O'Hara's discharge, there was no posted rule prohibiting
unauthorized use of the copy machine Such a rule was posted, however, on
all such copy machines following the firing of O'Hara
5 This was one of those few instances where de mimmis curar Lex
B Hiscocks had previously been disciplined for refusing to transfer from
one shift to another
r Plant rule 2 I prohibits the following " Posting of notices, punted
material , and/or distribution of any written or printed literature or articles
hurt and end up like employee Rex Hiscocks, the
president of TCIU.6 All these incidents clearly reveal
an animus borne by Respondent towards TCIU in
general and O'Hara's activities on behalf of TCIU in
particular. Furthermore, this animus carried over
after the defeat of TCIU in the May representation
election. Thus, when DeCicco, on June 18, repri-
manded O'Hara -for reproducing the proposed
contract terms on the office copy machine, he did
not tell O'Hara merely to observe the plant rules and
refrain from distributing any personal materials on
company time, but admonished him not to distribute
this type of information on either Respondent's or his
own time, without permission of both Respondent
and IBEW.7
Pospichal's reliance on O'Hara's reproduction of
the contract terms and distribution of one copy to
Lex, who was standing nearby, as a basis for his
decision to discharge O'Hara reflects the extent to
which that decision was colored by Respondent's
union animus. Up until July 18, Respondent had no
grounds as set forth in the plant rules for firing
O'Hara. To the extent O'Hara had in the past spent
too much time away from his work area idly
gossiping with other employees, he might be found
guilty of one of the so-called "minor" offenses
delineated in the plant rules,8 commission of which
was punishable by only verbal or written warnings,
or, at worst, indefinite suspension for aggravated or
serious violations. However, O'Hara's use of the
office copy machine afforded the Respondent such
grounds in that the act of reproduction, with its
attendant appropriation of 12 pieces of company
paper, could be labeled "theft" and thus constitute a
so-called "major" offense set forth in the plant rules,
for which immediate dismissal was warranted.9
Respondent's characterization of such minor ap-
propriation as "theft" leads us to conclude that
Respondent's reliance thereon in firing O'Hara was
purely pretextual. This is especially true in that the
record shows that prior to O'Hara's discharge,
Respondent's copying machine had been utilized
openly and freely by both rank-and-file employees
and management personnel for personal business
without any disciplinary action ever being taken.
Moreover, Respondent seems to have been lax in its
prosecution of other offenses that had occurred on its
premises. Thus, when an employee brought a rifle
into the plant, an offense punishable by immediate
or petitions during the scheduled work shift , exclusive of rest periods and
lunch and/or dinner periods on Company premises, without prior approval
of the Industrial Relations Department"
8 E g , rule 2 8-leaving one's department without prior authorization,
rule 2 1-failure to perform assigned work.
9 Rule 13 , theft, is one of the five major offenses in the " I" series of
plant rules which may be punishable by immediate dismissal.
ECONOLITE DIVISION 679
dismissal , no disciplinary action at all was taken. The
same holds true for employees who distributed
football and baseball pools on company time. Even
though such conduct violated the no-distribution
rule, no action was taken by Respondent. Given this
backdrop of general tolerance in the enforcement of
plant rules, the unique dispatch with which O'Hara
was discharged for at most a de minimis violation of
the rule against theft, and, for that matter, the rule
against worktime distnbution,10 convinces us that
the real basis for O'Hara's discharge was his
preelection efforts on behalf of TCIU and his
postelection effort to keep unit employees informed
as to the status of negotiations between Respondent
and IBEW. For the foregoing reasons we conclude
that Respondent's discharge of O'Hara violated
Section 8(a)(3) and (1) of the Act.11
ADDITIONAL CONCLUSION OF LAW
5. By discharging Michael J . O'Hara on or about
July 19, 1973, because of his union activities, the
Respondent has discriminated in regard to the hire
and tenure of his employment , in violation of Section
8(a)(3) and (1) of the Act.
THE REMEDY
As we have found that on or about July 19, 1973,
the Respondent discriminatorily discharged Michael
J. O'Hara, we shall order that the Respondent offer
to him full and immediate 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 suffered by
reasons of the discrimination against him by pay-
ment of a sum of money equal to that which he
would normally have earned as wages from on or
about July 19, 1973, to the date of Respondent's offer
of reinstatement, less his net earnings during said
period, in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289, together with interest
thereon at the rate of 6 percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
10 Lex was the only person to whom O'Hara gave a copy of the contract
terms during worktime
11 After this case was transferred to the Board , counsel for General
Counsel moved to reopen the hearing and remand proceedings to the
Administrative Law Judge for the purpose of receiving into the record
additional evidence Specifically, counsel for General Counsel would
introduce , as evidence of both the shifting nature of Respondent's rationale
for O 'Hara's discharge and the true antiunion basis therefor , a copy of an
appeal by Respondent of a state award of unemployment insurance benefits
to O'Hara in which Respondent states that O'Hara was discharged not for
Relations Act, as amended, the National Labor
Relations Board thereby orders that the Respondent,
Econolite Division of Altec Corporation, Anaheim,
California, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Threatening its employees with economic
reprisals for supporting the Traffic Controllers
Independent Union, or any other labor organization.
(b) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment,
or any term or condition of employment because of
protected concerted activities.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed to them by Section 7 of the
National Labor Relations Act, except to the extent
that such rights may be affected by lawful agree-
ments in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Michael J. O'Hara 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 pay
which he may have suffered as a result of the
discrimination practiced against him, in the manner
set forth in the section of this Decision and Order
entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under terms of this Order.
(c) Post at its plant in Anaheim, California, copies
of the attached notice marked "Appendix B." 12
Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
theft but for distributing confidential negotiation material Respondent has
opposed this motion alleging such evidence to be irrelevant and untimely
proffered
In view of our decision as set forth herein, we deny this motion.
12 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
DECISION
STATEMENT OF THE CASE
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
economic reprisals for supporting the Traffic
Controllers Independent Union or any other
labor organization.
WE WILL NOT discourage membership in
Traffic Controllers Independent Union, or any
other labor organization, by discharging employ-
ees or otherwise discriminating in any manner in
respect to their tenure of employment or in any
term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed to them by Section 7 of
the National Labor Relations Act, except to the
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the
Act.
WE WILL offer Michael J. O'Hara immediate
and full reinstatement to his former position or, if
the position no longer exists, to a substantially
equivalent one, without prejudice to his seniority
and other rights and privileges enjoyed by him,
and make him whole for any loss of pay he may
have suffered by reason of his discharge, with
interest of 6 percent per annum.
Our employees are free either to support, or to
refrain from supporting, any labor organization,
without our interference, restraint, or coercion.
ECONOLITE DIVISION OF
ALTEC CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
GEORGE CHRISTENSEN , Administrative Law Judge: On
October 18 and 19, 1973,1 I presided over a hearing at
Anaheim, California, to try issues raised by a complaint
issued on September 6.2
The complaint alleged that Econolite Division of Altec
Corporation 3 violated Section 8(ax 1) of the National
Labor Relations Act, as amended (hereafter called the
Act), by interrogating an employee regarding union
activity, by threatening employees with economic reprisals
for union activity, and by prohibiting an employee from
distributing union literature during nonworking time. The
complaint also alleged the Company violated Section
8(a)(1) and (3) of the Act by discharging O'Hara for union
activities.
The Company denied it committed the alleged interroga-
tion, threats, and prohibition, denied it discharged O'Hara
for union activities, and denied that any violation of the
Act occurred.
The issues are:
1. Whether the Company interrogated an employee
regarding union activities.
2. Whether the Company threatened employees with
economic reprisals for union activities.
3. Whether the Company prohibited an employee from
distributing union literature during nonworking time.
4. Whether the Company discharged O'Hara for union
activities.
5. Whether, by commission of any of the foregoing, the
Company violated the Act.
The General Counsel and the Company appeared by
counsel and were afforded full opportunity to adduce
evidence , examine and cross -examine witnesses , argue, and
file briefs . Briefs have been received from the General
Counsel and the Company.
Based upon my review of the entire record ,4 observation
of the witnesses , perusal of the briefs, and research , I enter
the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted , and I find
that the Company at all times material was an employer
engaged in commerce in a business affecting commerce
and Traffic Controllers Independent Union (hereafter
called TCIU) and Local 2125, International Brotherhood
of Electrical Workers, AFL-CIO (hereafter called IBEW),
i Read 1973 after all subsequent date references omitting the year.
2 As amended on October 5 by the addition of a new Section 5(d) and
5(e). The original charge was filed by O'Hara on August 7 and an amended
charge was filed on August 29.
3 Hereafter called the Company.
4 The unopposed motion of the General Counsel to correct certain
portions of the transcript is granted
ECONOLITE DIVISION 681
were labor organizations, as those terms are defined in
Section 2(2), (5), (6), and (7) of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
At all times material , the Company manufactured traffic
control systems at a plant located at Anaheim , California.
The production and maintenance employees at that plant
at all times pertinent were represented by the IBEW and
covered by a contract between the Company and the
IBEW expiring June 17.
TCIU launched an organizational campaign to displace
the IBEW as the representative of the Company's
production and maintenance employees in March, which
culminated in a Board-conducted election in May. The
election was won by the IBEW . O'Hara, Gerald Rex
Hiscocks , Kathleen Pierce , Linda Banuelos , and Shirley
Tyner were TCIU leaders and were active in the cam-
paign.S
B. The Alleged Interrogation and One of the
Alleged Threats
Pierce6 testified without contradiction that in late March
or early April, Production Manager Robert Withrow 7
came to her work station at the plant and said he heard
there was something going on with the union; that she
replied that some of the employees were trying to get the
IBEW out and another union in; that Withrow warned her
to lay off, as he did not want her to end up as Hiscocks
had, he would hate to see her get hurt .8
Pierce's testimony was forthright and direct, it was
uncontradicted, and it is credited.
While Withrow's comments were not couched in
interrogating language, his warning to desist from her
activities on behalf of the TCIU or she might suffer some
economic detriment, coming from a representative of
management, certainly interfered with, restrained and
coerced Pierce's exercise of her Section 7 right under the
Act to support a labor organization of her choosing, and
thereby violated Section 8(axl) of the Act.
C. The Second Alleged Threat
Employee Tyner9 testified that on July 18, the Compa-
ny's production manager, Robert Burns ,10 informed her
management was disturbed over premature publication to
the employees of terms for tentative settlement of a new
contract ; 11 he told Tyner she was entitled to her views
5 Hiscocks was acting president of TCIU , O'Hara was its organizer;
Pierce , Banuelos, and Tyner were active supporters . Their activities were
known to the Company, particularly in the cases of Hiscocks and O'Hara,
who identified themselves as TCIU leaders at the hearing in the
representation case (21-RC-13161).
6 The Kathleen Pierce mentioned above She was employed at all
pertinent times as a receiving inspector.
r An admitted supervisor under the Act.
9 The Company previously disciplined Hiscocks for refusing to transfer
from the first to the second shift.
9 Employed as an operator of a solder -flow machine. She was also the
shop steward in her department.
concerning the settlement terms , but she was not supposed
to disseminate the settlement terms to other employees.
Tyner testified that Burns also instructed her not to use
the Company's copying machines and informed her she
could tell her partner, O'Hara, that the Company was
setting a trap for him and he was going to be discharged
within the next day or two.
Burns confirmed the fact that he talked to Tyner on July
18. He testified he spoke to her after he noticed a copy of
the proposed contract settlement taped to the wall adjacent
to Tyner's work station and after he took it off the wall;
that his remarks were confined to statements that it had
been reported to him.12 that Tyner and O'Hara were
distributing the document in question on company time,
questions as to whether this was so, and a warning, on
receiving a denial, that Tyner had better not distribute the
document during her working hours.
Bums' testimony is credited. Tyner was a very partisan
witness who tended to overstate or skip important
background facts until cross-examined, and then to
confirm such facts reluctantly. Bums, on the other hand,
gave concise, direct, and candid testimony.
It is undisputed that all times pertinent there was in
effect a valid company rule prohibiting the distribution of
private materials on company time . There were also
bulletin boards provided in specific areas for the posting of
communications for employee perusal under certain
conditions.13
Burns sought verification or denial of the report he had
received from McVicker that Tyner and O'Hara were
violating the no-distribution rule and cautioned Tyner to
comply with it. His remarks were neither unlawful
interrogations nor unlawful threats interfering with Tyner's
Section 7 rights under the Act.
D. The Third Alleged Threat, the Alleged
Prohibition, and the Alleged Discriminatory
Discharge
The third alleged threat, prohibition, and discriminatory
discharge all revolve about the Charging Party, O'Hara.
O'Hara was hired by the Company in July of 1970 and
worked for approximately a year as an assembler. He then
transferred to the stockroom as a storekeeper. In Decem-
ber of 1972, he was promoted to the position of lead
storekeeper. In February or March of 1973, he was
demoted (at his own request) back to the position of
storekeeper.14 During the period he worked for the
Company prior to the spring of 1973, O'Hara did not
receive any reprimands or discipline for his work perform-
ance. Rather, he was complimented several times over the
10 An admitted supervisor under the Act.
ii On July 17, the Company and IBEW negotiators agreed on terms for a
3-year contralti retroactive to the date of expiration of the previous
Company-IBEW agreement , subject to employee ratification . They also
agreed to refrain from any publication of the proposed settlement terms
poor to the ratification vote . Burns was understandably agitated (he was
one of the company negotiators ) at seeing a copy of the proposed settlement
terms posted on the wall next to Tyner 's work place
12 By Donald McVicker, the IBEW's chief steward
is IBEW requests , Company approval.
i4 He was dissatisfied with the rate of pay.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quality of his work by various supervisors, including his
immediate supervisor in the stockroom, Billie Lex.15
During this period, he was entrusted with the performance
of several special tasks; one relating to the regular
stockroom inventory and a second concerning a special
inventory of the receiving room.16
As noted heretofore, in the spring of 1973 O'Hara
assumed a leading role in the TCIU campaign to displace
the IBEW as the collective-bargaining representative of the
Company's production and maintenance employees. The
activities of O'Hara were well known to management
almost from their outset, since O'Hara openly sought
employee signatures in support of the TCIU election
petition, held a meeting of TCIU supporters on company
premises during a lunch hour in the spring, and, on April
16, testified on behalf of the TCIU at the NLRB hearing
on the TCIU petition.
A few days after O'Hara's testimony at that hearing, the
Company's personnel director, Joseph Pospichal, i7 tele-
phoned Lex and informed Lex that O'Hara was spending
an excessive amount of working time talking to other
employees.18
Lex had also observed O'Hara engaging in frequent
conversations, both on the production floor and with
employees who called him to the door of the stockroom.
Lex called O'Hara aside where other stockroom employ-
ees could not hear their conversation and instructed
O'Hara to confine his contacts and discussions with other
employees during working hours to matters relating to his
job and to conduct any other discussions he wanted to
engage in during his lunch or coffeebreaks or before or
after working hours, in accordance with the plant rule.
O'Hara agreed to do so.19 Lex made a written record of
this conversation and sent it to Pospichal.
While O'Hara testified that a supervisor in the prod-
uction department, Les Cormany, informed him in May
during a lunch break to be careful, the Company was out
to get him, Cormany's denial that he made that statement
is credited. 20
Following the May IBEW election victory, four of the
TCIU activists won election to the IBEW negotiating
committee (O'Hara, Hiscocks, Pierce, and Banuelos).
Negotiations for a new contract were set to begin on June
4. At the outset of the meeting, company negotiators
pointed out that Hiscocks and O'Hara had identified
themselves at the representation hearing as top officials of
the TCIU and questioned whether the Company was
bargaining with the TCIU, and thereby exposing itself to
unfair labor practice charges, or the IBEW. The IBEW
spokesman explained that the TCIU representatives had
been elected by the employees to represent them in the
negotiations and therefore were entitled to be there. The
meeting was recessed to give both sides an opportunity to
15 An admitted supervisor under the Act
18 Two of the compliments came over his performance of those tasks
17 An admitted supervisor under the Act
18 Pospichal had received several complaints or reports both from rank-
and-file production workers and from supervisors that O 'Hara was spending
a lot of time on the floor contacting and conversing with the employees
19 These findings are based on Lex's testimony, which is credited.
20 Cormany was a convincing witness, and it seems improbable a
supervisor would make such a statement in view of a meeting top
secure legal advice. That evening, O'Hara and Hiscocks
resigned from the committee.
Later that month (June), Lex warned O'Hara for the
second time against spending too much time during
working hours in personal conversations outside the
stockroom.21
Still later that month (June), O'Hara, Lex, Cormany, and
their wives went on a camping trip. In the course of the
trip, O'Hara complained that other storekeepers could be
away from the stockroom for longer periods of time than
he could be away , without complaints , but he seemed to
receive a complaint every time he was gone from the
stockroom for 10 or 15 minutes. Lex replied that O'Hara
had to remember he was "highly visible" due to his
position in and activities on behalf of the TCIU.22
Near the end of the month (June), O'Hara was called
aside by Lex for the third time over spending too much
time during working hours engaging in conversations
outside the stockroom . O'Hara replied that the complaints
were unfair, he was going to file a grievance if this
"harassment" continued.
On July 10 , Dennis DeCicco, the Company' s material
inventory control manager ,23 saw O'Hara in the prod-
uction area talking to an employee in the module
subassembly area while on his way to a meeting at the
Company's executive conference room. It was approxi-
mately 3:30 p.m. and the employees were working
overtime . DeCicco's immediate superior, E. Henslick, the
Company's material manager, was standing nearby and
directed DeCicco's attention to O'Hara. O'Hara did not
have any cart or tray with him, which he would have if he
were on the production floor to deliver parts or kits from
the storeroom , the normal reason for his presence on the
production floor.24 The meeting lasted 10 to 15 minutes.
When DeCicco left the meeting , O'Hara was still standing
at the same location conversing with the same employee.
Catching DeCicco's stare, O'Hara broke off the conversa-
tion and went towards the stockroom.
The following morning, DeCicco advised Lex of his
observation of O'Hara the preceding day.
Lex contacted O'Hara in the presence of the lead
storekeeper, Russell Hurst, and told O' Hara he had been
observed again engaging in a lengthy conversation with
another employee outside the stockroom during working
hours and repeated his instruction (for the fourth time) that
O'Hara was to confine his contacts and conversations
during working hours to those required to perform his job.
Lex also reminded O'Hara he had been warned previously
about this.
O'Hara retorted that Lex was harassing him and
demanded the name of his accuser (which Lex refused to
provide). A written report of the incident was filed by Lex
and Hurst with Pospichal.
management had conducted previously at which all supervisors were
instructed to avoid making any remarks to employees which might
compromise the Company
21 O'Hara confirmed receipt of the warning , while protesting his
conversations were not overlong.
22 O'Hara so testified without contradiction.
23' An admitted supervisor under the Act and Lex's immediate superior
24 Also, his normal conversational contact would be with supervisors to
see if the parts or kits were satisfactory
ECONOLITE DIVISION 683
Later that day, O'Hara stopped DeCicco to complain
about the incident and Lex's refusal to name his accuser.
DeCicco summoned Lex, identified himself as O'Hara's
accuser , and stated O'Hara must know he was, since they
locked eyes before O'Hara broke off his conversation and
started towards the stockroom.25 O'Hara became upset,
stated he only talked a few minutes, said he didn't want to
participate in any more discussions, and requested that all
future reprimands be in writing. He was assured they
would be.
The next day (July 12) O'Hara filed a grievance over the
incident. It was taken through the third step of the
grievance procedure and denied by the Company at each
step . The IBEW did not take the grievance to arbitration
within the time period specified therefor.
As noted heretofore, on July 17 the negotiators reached
tentative agreement on terms for a new contract, subject to
ratification by the affected employees. The negotiators also
agreed to refrain from any publication of the terms of the
tentative settlement prior to the ratification meeting and
vote.
Shortly after he commenced work on his shift the
following morning (about 7:30 a.m.), O'Hara secured a
document purporting to describe the terms of the settle-
ment . Using a company machine and paper in the
stockroom, O'Hara reproduced a dozen copies of the
document. He gave one of the copies to Lex. Lex accepted
and read the copy without comment.
At approximately 9 a.m., the IBEW chief steward (and a
member of the IBEW negotiating team) came up to
DeCicco in a state of excitement, gave DeCicco a copy of
the document reproduced by O'Hara, and told DeCicco
that O'Hara was distributing such copies.
DeCicco tried to contact Lex, was unsuccessful, became
busy on other matters, and finally reached Lex after the
lunch hour. Lex informed DeCicco that he received a copy
of the document from O'Hara but did not see him
reproduce it. DeCicco and Lex then approached O'Hara.
O'Hara admitted he duplicated the document on company
equipment and paper during working hours and first
admitted, but then denied, that he had distributed the
copies he made on company time , claiming he distributed
them during the lunch hour.
DeCicco told O'Hara he risked discharge by distributing
copies of the document in the plant either during working
or nonworking time, without IBEW and company permis-
sion.26
O'Hara retorted that he would not use the company
copier and paper in the future for his own purposes, but
that he had a right to distribute whatever he pleased on his
own time.
The following morning (July 19), O'Hara sought out
DeCicco and requested reconfirmation of DeCicco's
position that he was prohibited from distributing copies of
the document on his own time. DeCicco confirmed his
position.
The duplication and distribution incident involving
O'Hara was reported to Pospichal by DeCicco and Lex
later that morning (July 19).27 Pospichal had them reduce
their report to writing and decided to discharge O'Hara.
Lex was instructed (about 11:30 a.m.) to bring O'Hara to
Pospichal's office.
Lex contacted O'Hara and asked O'Hara to accompany
him to Pospichal's office. O'Hara stated he would come
after lunch.'28 Lex reported to Pospichal. Lex and Pospichal
went out to O'Hara and escorted him to Pospichal's office.
After securing two IBEW stewards as witnesses (DeCicco
and Lex were also present) Pospichal informed O'Hara he
was discharged for using the Company's copier and paper
to reproduce a personal document and distributing same
on company time. O'Hara informed Pospichal of DeCic-
co's statement that he was prohibited from distributing the
document on his own time. DeCicco did not deny making
the statement. Pospichal stated he was the responsible
corporate officer, not DeCicco, DeCicco was wrong, and
O'Hara was free to distribute whatever he wished on his
own time.
Following O'Hara's discharge, notices were posted on all
the Company's copying machines stating they were not to
be used for reproducing personal documents without
supervisory permission.29
No employees other than O'Hara have ever been
disciplined for violation of the no-distribution during
working hours rule. Previous discharges for violation of the
theft and conversion rule have involved the theft of
company equipment or supplies valued far in excess of the
value of the paper utilized by O'Hara.
A POW-MIA petition and baseball and football pools
were previously circulated during working hours in the
plant with management knowledge previous to O'Hara's
discharge without disciplinary action.
An employee violated the company rule against bringing
firearms on the premises prior to the O'Hara discharge.
The presence of the firearm was reported to Pospichal's
predecessor. He removed the firearm but took no discipli-
nary action against the employee.
On the other hand, two employees who violated the
company rule prohibiting one employee from punching
another's timecard were summarily discharged, as were
others who violated the theft rule. The record also fails to
disclose that any of the TCIU activists other than O'Hara
were discharged or otherwise disciplmed.30
O'Hara filed a grievance dated July 20 over his
discharge. It was processed through the third step of the
grievance procedure and denied in each step by the
Company. It was not referred to arbitration within the time
period prescribed by the IBEW-Company contract.
25 DeCicco's testimony to this effect is credited as it fits in with Lex-
Hurst report and other corroborating evidence
26 DeCicco's denial that he included nonworking time in his statement is
not credited in view of his awareness of McVickers' agitation over such
distribution and Pospichal's corroboration of O'Hara's testimony that
Pospichal overruled DeCicco on this point the next day (see later
discussion)
27 Pospichal was out of the plant the previous day and they were unable
to reach him
18 His lunch hour was 11.30 a.m. to noon
29 The machines and paper had been utilized previously by both rank-
and-file and supervisory personnel during working hours to copy personal
documents No one had previously been disciplined for such use
30 Hiscocks resigned his employment prior to the hearing . The other
activists named heretofore are still in the Company's employ.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Alleged Threat and Prohibition
Findings have been entered that DeCicco told O'Hara
on July 18 that he risked discharge for distributing copies
of the tentative contract settlement in the plant either on
working or nonworking time without the permission of the
Company and the Union and that on July 19 he repeated
that statement.
Findings have also been entered that Pospichal informed
O'Hara on the later date (July 19) that DeCicco was
incorrect, that he, as an official higher in the corporate
hierarchy than DeCicco, wanted O'Hara to know he was
free to distribute whatever he pleased during nonworking
time.
Based on the foregoing, I find and conclude that, while
the Company, by DeCicco, did advise O'Hara on July 18
and 19 he was prohibited from distributing the proposed
contract settlement on his own time and risked discharge if
he did so, that implied threat and prohibition was
neutralized by Pospichal's July 19 statement to the
contrary.
F. The Discharge
There can be little doubt that O'Hara engaged in
extensive electioneering activities during working hours
previous to the election, anti-IBEW activities during
working hours subsequent to the election, and that the
Company was both aware of, and disturbed by, those
activities.
O'Hara's role as the TCIU's organizer was formally
announced when he appeared at the April representation
proceeding on the TCIU petition; he held a TCIU meeting
during a lunch break at the Company's lunch facilities;
and he both signed and circulated TCIU propaganda. Both
Lex and Pospichal were keenly aware that O'Hara was
spending a disproportionate amount of time during
working hours talking to employees whom he would not
normally have to be in contact with prior to the election.
Of course they were not cognizant with the tenor of
O'Hara's conversations, but it did not take much imagina-
tion to conclude they involved the election campaign.
Aware of the sensitivity of the problem and undoubtedly
wishing to avoid creating an issue, the Company limited
itself to addressing a mild remonstrance and reminder to
O'Hara of the no-solicitation rule.
Undoubtedly the Company hoped that the May election
and IBEW certification as the winner thereof would bring
an end to the turmoil in the plant and restore the
cohesiveness of the unit and thus was understandably
disturbed at the subsequent realization that O'Hara and his
cohorts not only continued their opposition to the IBEW
leadership,31 but had succeeded in placing themselves in
positions32 where they could continue their divisive tactics
among the employees.
O'Hara continued to flaunt the no-solicitation rule
following the election, but the Company was in a weak
position to enforce it without knowledge of the content of
the conversations between O'Hara and the employees with
whom he spoke. It thus had to content itself with repeated
31 O'Hara so testified.
32 Four TCIU leaders secured election to the negotiating committee, one
admonitions , through June and early July, advising O'Hara
to limit his contacts and conversations during working
hours to persons and matters relating to his job . Each time
he was warned , O'Hara minimized the incident which gave
rise to the warnings and remained defiant.
The Company then learned O'Hara not only had
breached the agreement among the negotiators to refrain
from disclosing the terms of their proposed contract
settlement , he had utilized a company-owned copier and
company-owned paper during working hours, to reproduce
and distribute the settlement terms.
On securing proof that O'Hara had indeed copied the
document in question on company equipment and paper
and given Lex a copy thereof during working hours, it
discharged him.
The question then is reduced to a single issue-was the
O'Hara conduct just recited the Company's reason for
discharging him, or was citation of that conduct a mere
pretext to cloak another reason-O 'Hara's union activities?
While employees have a right, protected by the Act, to
support a minority union, however disruptive of pro-
duction and'harmony their activities on behalf of that union
may be, their employer is equally entitled to require that
they spend their working time, for which they are paid,
performing productive work.
It is clear that O'Hara, in reproducing and distributing
the settlement terms , was engaging in activities he
conceived to be in the best interests of his followers among
the employees and therefore was engaged in protected,
concerted activities under the Act. It is equally clear,
however, that he engaged in those activities on time for
which he was being paid by the Company to perform his
job duties.
While the Company's disciplinary record is not entirely
consistent , there is no evidence of any waiver of its right to
discipline its employees for failing to perform the work for
which they were hired.
Undoubtedly the Company was not displeased over
removal of a disruptive influence among its employees; I
cannot find and conclude, however, that this was its motive
for discharging O'Hara. Rather, I find and conclude that
upon finally securing proof of what it had long suspected,
i.e., that O'Hara was using time for which he was being
paid to perform his job duties to, instead, continue his anti-
IBEW activities , it discharged him for this abuse of his
position and his function.
CONCLUSIONS OF LAW
1. At all times material, the Company was an employer
engaged in commerce in a business affecting commerce
and the IBEW and the TCIU were labor organizations, as
those terms are defined in Section 2(2), (5), (6), and (7) of
the Act.
2. By Production Manager Robert Withrow's statement
to Kathleen Pierce in late March or early April, to lay off
her efforts on behalf of TCIU to supplant the IBEW as the
exclusive bargaining representative of the Company's
production and maintenance employees , as he did not
was a steward in her department.
ECONOLITE DIVISION
want her to end up as Hiscocks had and did not want to
see her get hurt, the Company violated Section 8(a)(1) of
the Act.
3. The Company did not, otherwise, violate the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
685
It having been found that the Company engaged in an
unfair labor practice in violation of Section 8(aXI) of the
Act, I shall recommend that the Company be directed to
cease and desist therefrom and to post appropriate notices.
[Recommended Order omitted from publication.]