AMP, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 29, 1975218 N.L.R.B. 33 (N.L.R.B. 1975) Copy Citation AMP, INCORPORATED 33 ANIP, Incorporated and Sandra L. Black . Case 11- CA-5700 May 29, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 31, 1974, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the counsel for the General Counsel 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, fmd- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, AMP, Incorpora- ted, Kernersville, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for the Administrative Law Judge's notice. 1 The General Counsel has excepted to certain credibility findings made by the Adnnmstrative 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 (1950), enfd. 188 F.2d 362 (CA 3, 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated certain provisions of the 218 NLRB No. 9 National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge or otherwise discrimi- nate against employees in the hire and tenure of their employment because they have engaged in concerted activities which are protected by Section 7 of the National Labor Relations Act. These activities include the right to self-organiza- tion, the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE wnL offer full and immediate reinstate- ment to their former positions or, if those positions no longer exist, to substantially equiva- lent positions to Sandra L. Black, Margie Christi- an, Alvie Cox, Vivian Dillard, Geraldine C. Hart, Margaret Landon, Doretha A. Pigford, Belinda Rikard, and Rosalie Vanhoy. WE WILL make whole these employees for any loss of pay which they have suffered by reason of their discharge on April 5, 1974, with interest thereon at 6 percent. AMP, INCORPORATED DECISION FINDINGS OF FACT WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Greensboro, North Carolina, on a complaint,' issued by the Regional Director for Region 11 and amended at the hearmg,2 alleging that the Respondent AMP, Incorporated, violated Section 8(a)(1) of the National Labor Relations Act, as I The principal formal papers docketed in this case are as follows: Charge filed on April 8, 1974, by Sandra L. Black, an individual; and amended on May 14, 1974, in Case 11-CA-5700; consolidated complaint issued on May 31, 1974, against Respondent AMP, Incorporated (AMP); DOT Services, a Division of Dictaphone Corporation (DOT); and Manpower of Guilford County, Incorporated, the respondent to a charge in Case I l-CA-5736; answer filed by Respondent DOT on June 17, 1974, and by Respondent Manpower of Guilford County, Inc., on June 11, 1974, amended complaint against AMP and DOT only issued on July 31, 1974, hearing held in Greensboro, North Carolina, on August 6 and 7, 1974; briefs filed by General Counsel and Respondent AMP on September 3, 1974. 2 At the outset of the hearing, the General Counsel moved to sever the complaint by disnussmg DOT as a Respondent. By his previously amended complaint, he had deleted Manpower of Guilford County, Inc., which had entered into a settlement agreement respecting the charges in Case I l-CA- 5736. DOT had also entered into a settlement agreement , by the terms of which the discrimmatees had obtained backpay and had agreed to a notice- mailing. By the time of the hearing, AMP had cea§ed using all of DOTs referred employees at its Kernersville plant, and there is no indication that any of the discnrninatees wished to work at any of the other AMP plants in the locality. The motion to sever DOT from the amended complaint as a party respondent was granted at the hearing. At stake in the instant litigation is the posting of a notice by AMP. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended. Specifically, the amended complaint alleges that DOT and AMP, acting as joint employers,3 discharged nine named employees because they engaged in concerted protected activities. AMP denies that DOT and AMP are joint employers, states in effect that discriminatees Sandra L. Black and Alvie Cox were discharged for insubordina- tion, and that the other seven discriminatees named in Section 7 of the complaint were not discharged but quit in sympathy with Black and Cox. Upon these contentions, the issues were herein drawn. A. The unfair Labor Practices Alleged AMP operates several factories in the Wmston-Salem- Greensboro area. The factory here in question, located on Dobson Road in Kernersville, is used for the manufactur- ing of electrical connectors which are sold to the communi- cations industry. Employees in its assembly section bind small electronic connectors in plastic belts, which are then cut in strips of various lengths and shipped. In April 1974, when the events of this case took place, AMP employed about 85 of its own employees in its general operation at the Kernersville plant and also employed about 120 employees, all of them women, who were referred to it by DOT. At that time, the DOT-referred personnel, who called themselves DOT girls, worked three shifts as well as a great deal of overtime. As noted above, assembly operation at Kernersville had so declined by the date of the August hearing that all of the DOT girls, as well as some of the regular AMP employees, had been laid off. For the past 2-1/2 years, AMP has maintained an informal relationship with DOT, pursuant to which it has used the services of DOT to obtain unskilled and semiskilled personnel at all of its five plants in the vicinity of Winston-Salem. At Winston-Salem, DOT maintains a local office under the management of Bonnie Ray. DOT recruits a labor pool of available women whom it refers to various customers, including but not limited to AMP, on both long-term and short-term bases. Some of the employees involved in this case had worked for AMP regularly in excess of a year, while others had been so employed for much shorter periods of time. Under its working arrangement with AMP, the AMP factory at Kernersville (or elsewhere) forwards each week to DOT headquarters in New York a payroll slip for each DOT girl employed during that week at its plant. DOT bills the AMP headquarters office in Harrisburg, Pennsylvania, by invoice, a standard hourly billing charge for each employee so listed . With respect to rank-and-file employees, DOT bills AMP $3.25 per hour. For more skilled individuals, such as inspectors, a higher fee is billed. DOT prepares a weekly paycheck for each employee who submits an approved timesheet, makes standard payroll deductions, and then forwards its individual paychecks to AMP for distribution. Checks are normally distributed to DOT girls by the AMP foreman each Friday for their preceding week's work. 3 AMP admits, and I find, that at all times material herein, it has been a New Jersey corporation which maintains a plant at Kernersville, North Carolina, where it is engaged in the manufacture and assembly of electrical connectors . During the preceding 12 months, a representative period, AMP DOT girls report for work at standard shift-starting times established by AMP. Their hours, including overtime and weekend work, are determined by AMP. At the time here in question, the 40 or so DOT girls working at Kemersville on the first shift worked under a leadlady, Frances Carswell, who was at that time also a DOT-referred employee. However, the assembly section employing DOT girls was under the immediate supervision and control of an AMP foreman, Dwayne Bourbonise. AMP retained the right to reject any employee referred by DOT. The foreman was empowered to order any DOT girl to leave the premises, to grant excused absences, and to direct each such employee in the performance of her duties. As will be seen, the dispute giving rise to this litigation arose because AMP set production standards for the first shift to which some DOT girls took strong exception. On or about April 1, 1974, Bourbonise was transferred from the third shift to supervise the first shift. He immediately made known to first-shift employees his displeasure with their production. At a meeting of first- shift employees on April 2, Bourbonise told them that he felt they were not working hard enough, that there was too much absenteeism, too much soldiering on the job, and that they would have to upgrade their production. He set a minimum daily production norm of 6,000 connectors for each machine operator. His attempt to shape up the operation to his liking met with a certain amount of audible resentment. Employees complained to him on this occasion that his production standards were excessive because machines were constantly breaking down. Others complained about low wages, a complaint which Bourbon- ise told them to take to DOT as they were on DOT's payroll, not AMP'S. After discussing the matter among themselves, several of the discriminatees named in the complaint suggested to Sandra L. Black that she contact the NLRB Regional Office in Winston-Salem for advice as to what course of action to take. On April 4, after work, Mrs. Black phoned the Regional Office and, upon talking to two Board agents, was advised that employees had the right under the Act to take concerted action to make their' grievances known to management. She relayed this information to some of her fellow employees. On the morning of Friday, April 5, cutoff machine operator Alvie Cox told Leadlady Frances Carswell that the employees wanted to have a group meeting with Foreman Bourbonise to discuss their griev- ances. She mentioned to Mrs. Carswell that Sandy Black was the spokesman for the group, and that Mrs. Black had discussed the matter with the Labor Board and had been told that such group meetings were legally protected. Mrs. Carswell said that she would not act as a spokesman for the group, but would relay to Bourbonise the request for a meeting . She did so immediately. She also informed Bourbonise that Mrs. Black was in essence the leader of the group that wanted a meeting..Bourbonise said he would get back to her in a while. shipped from its Kernersville plant to points and places outside the State of North Carolina goods valued in excess of $50,000 It is an employer within the meaning of Section 2(2), (6), and (7) of the Act. AMP, INCORPORATED Bourbonise then consulted with Preston Williams, the plant manager, about the meeting request . Williams told him to discuss individually with any employees any grievance that she might have but told him not to permit any group meetings . About 9 a.m., Bourbonise went to Mrs. Black's machine and spoke with her. He said he would like to see her in the office alone. Mrs. Black told him that the girls wished to meet with him as a group. He reiterated that he just wanted to see her personally.4 Mrs. Black told him that apparently he had not gotten the message, but that she did not want an individual meeting with him. At this point, Bourbonise told her, "Get your timecard, and punch out. You're fired." 5 Mrs. Black picked up her belongings which she kept at her machine, stood up in her place, and stated loudly to other employees that she had been fired. Her announcement caused a flurry of excitement. A number of employees stood up and questioned Bourbonise as to why he was firing Mrs. Black. She left the area, encouraging other employees to walk out with her as she left. Alvie Cox shut off her cutoff machine and began speaking to other employees. She reminded them that Mrs. Black was acting on their behalf and encouraged them to stand behind her. She stated that Mrs. Black had gone to the Labor Board, that the Labor Board would stand behind them, and that Sandy had' been fired for going to the Labor Board. Bourbonise told Mrs. Cox twice to be quiet and to get back to work. Mrs. Cox told him that she was simply exercising her rights as an American citizen. Bourbonise reminded her that, in that factory building, she had no rights. He called her a troublemaker, told her that she was fired, and drew back as if to touch her.6 She warned him not to lay a hand on her or she would take him to court. He told her to sign her timesheet and leave. She proceeded to do so. One employee who had stood up during the commotion, Geraldine Hart, asked Bourbonise why he had fired Mrs. Cox. He replied, "Come on. Let's go," and directed her to sign her timecard. He told employee 'Vivian Dillard who had stood up in the vicinity of Mrs. Cox and was listening to her that she was fired and that he wanted her to leave. Bourbonise then began pointing at other employees who were standing up and told them to leave the plant, saying all those who were in with those girls were fired. This group included all of those persons named in the complaint. Black left the plant without signing her timeslip. The others signed their weekly timeslips as they left. They met shortly thereafter at Mrs. Black's house and went from there to the Labor Board to file a charge. Later in the afternoon, Bourbonise phoned Bonnie Ray at the DOT office to tell her what had happened. He said that he did not need any replacements to fill the slots vacated by the 10 employees who were terminated that morning.? 4 Bourbomse testified that Mrs. Black told him that he was not going to get her in the office and "chew her ass out." No one else among the many witnesses who testified heard Mrs. Black make this remark . I discredit Bourbonise's testimony to this effect and regard it as so much exaggeration on his part. 5 Bourbomse denies using the word "fired" although he admits telling Mrs. Black to leave. I credit Mrs. Black 's version, but my conclusion would 35 B. Analysis and Conclusions While DOT girls were recruited by DOT, referred by DOT, and paid on DOT paychecks, these elements of the employment relationship were the only ones in which DOT participated. The work these employees performed was for AMP, on AMP premises, and under the direct, supervision of an AMP supervisor who had complete control of the working time of each employee in question. He could tell them when to come, when to leave, and what to do while they were there. There is little doubt that, as to employees referred to the Respondent by DOT, AMP and DOT were their joint employers, and that both are legally, responsible under the Act for observing the requirements of Section 7 regarding such employees. I so find and conclude. Manpower, Inc., 164 NLRB 287 (1967); The Greyhound Corporation (Southern Greyhound Lines Division), 153 NLRB 1488 (1965).= 1. The discharge of Sandra L. Black Immediately preceding her discharge, Mrs. Black had exercised a degree of leadership among the disaffected employees of the Respondent by seeking information from this Agency about their legal rights and by initiating a request to management for a group meeting to discuss existing employee dissatisfaction. The fact of her leader- ship in this effort was well known to Bourbonise when he directed management's negative response to her. The colloquy between Bourbonise and Black which led to her precipitous discharge was short and, by all accounts, quiet and largely unnoticed by other employees. Bourbonise told her that there would be no group meeting but that he desired an individual meeting. She persisted in her previous request for a group meeting and told him that she did not want to meet with him individually. In making this response, she was acting wholly within the context of the group request and in pursuance of the effort which she had initiated for the purpose of discussing group grievance. There is no credited' testimony that she was loud or abusive, or that her reply was disruptive of production in any way. Indeed, the whole conversation took place in a matter of a few seconds. Regardless of whether a formal collective-bargaining relationship exists between an employer and its employees, Section 7 of the Act protects concerted action' which is undertaken for the mutual aid and protection of employees and in aid of securing employee rights set forth herein. The facts of this case leave no' doubt that Mrs. Black, at the time of her termination, was acting on behalf of several other employees at the plant to secure redress of their grievances and that the Respondent was quite cognizant of this fact. While the Respondent may attempt to force the facts of this case into the mold of insubordination, the so- called insubordination on the part of Mrs. Black amounted to ; nothing more than an insistence upon the previous be the same regardless of the use or nonuse by her foreman of the talismanic word. 6 Again Bourbomse dewed using the word "fired" with regard to Mrs. Cox. Mrs. Cox says he did and her version is corroborated, both by General Counsel's witnesses and Respondent's witnesses . I credit their version. 7 One employee who was also terminated, Roosevelt Clark, was the subject of the charge which was settled. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request which had been transmitted to the Respondent for a group meeting. Her insistence on engaging in such concerted protected activity is what caused her discharge. Such a discharge clearly violates Section 8(a)(1) of the Act, and a host of Board and court cases so hold. So do I. Bettcher Manufacturing Corporation, 76 NLRB 526 (1948); N. P. Nelson Iron Works, Inc., 80 NLRB 788 (1948); Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618 (1959); Thor Power Tool Company, 148 NLRB 1379, enfd. 351 F.2d 584 (C.A. 7, 1965); Huttig Sash & Door Company, Inc., 154 NLRB 1567 (1965); Hugh H. Wilson Corporation, 171 NLRB 1040 (1968), enfd. 414 F.2d 1345 (C.A. 3, 1969); Crown Central Petroleum Corporation, 177 NLRB 322 (1969), enfd. 430 F.2d 724 (C.A. 5, 1970). Carbet Corporation, 191 NLRB 892 (1971); Will & Baumer Candle Co., Inc., 206 NLRB 772 (1973). N.L.R.B. v. Phoenix Mutual Life Insurance Co., 167 F.2d 983 at 988 (C.A. 7, 1948), cert. denied 335 U.S. 845; N.L.RB. v. Hanes Hosiery Division, Hanes Corp., 413 F.2d 457 (C.A. 4, 1969). 2. The discharge of Alvie Cox In point of time, the discharge of Alvie Cox follows hard on the heels of the discharge` of Sandra Black. There is no doubt that Mrs. Cox was in fact discharged and that she was not merely removed from company premises on a temporary basis . After some waffling on this point, the Respondent admitted that it completely terminated her employment relationship. Again, the justification for the discharge is a claim that she was insubordinate to Bourbonise . While Mrs. Black' s asserted insubordination was in passing a group demand for a group meeting, Mrs. Cox's asserted insubordination lay in making common cause with Mrs. Black, who had been freshly discharged in violation of Section 8(a)(1) of the Act, and also in urging others to do likewise . Protesting an unlawful discharge and urging others to do the same is an activity protected by Section 7 of the Act. It is immune from lawful employer reprisal under Section 8(a)(l) of the Act. The fact that such a protest contravenes an employer's instructions not to protest does not render the action insubordinate. Mrs. Cox's statements to her fellow employees on April 5 were short and to the point. I discredit Bourbonise's attempt to put profanity or vulgarity in her mouth in relating the tenor of her remarks. His action in terminating her far out- weighed any incidental and short-lived interruption of production which her remarks provoked, and far exceeded any action required to maintain plant discipline. Accord- ingly, I conclude that the discharge of Alvie Cox violated Section 8(a)(1) of the Act. See Gullett Gin Inc., v. N.L.RB., 179 F.2d 499 (C.A. 5_1950); N.L.R.B. v. H. A. Holcombe and J. H. Holcombe, d/b/a Holcombe Armature, 325 F.2d 508 (C.A. 5, 1963); N.L.R.B. v. Pepsi-Cola Bottling Company of Miami, Inc., 449 F.2d 824 (C.A. 5, 1971); N.L KB. v. J. I. Case Company, Bettendorf Works, 198 F.2d 919 (C.A. 8, 1952). 3. The discharges, of seven other DOT girls Respondent maintains that the seven other employees named in section 7 of the complaint were not fired but in fact voluntarily quit their jobs, to join in the protest which they were being urged to make in support of Sandra Black. In support of this contention, Respondent urges that Bourbonise did not tell employees so involved that they were fired. He merely said to them that, if they were leaving, they should sign their weekly pay slips so-that they could go get paid. I discredit any testimony that he did not tell any of these seven that they were fired. However, such a factual determination is of limited moment, since the use of special words is not necessary in order, to discharge an employee, Sakrete of Northern California Inc., 140 NLRB 765 (1963). Indeed, no words at all need be employed. Jewell Smokeless Coal Corporation, 175 NLRB 57 (1969). The test of whether an employee has been discharged or whether he quit is whether the statements and actions of his employer would reasonably lead him to believe that he had been discharged. N.L.R.B. v. Hilton Mobile Homes, 387 F.2d 7 (C.A. 8, 1967); N.L.R.B. v. Comfort, Inc., 365 F.2d 867 (C.A. 8, 1966); N.L.R.B. v. Central Oklahoma Milk Producers Association, , 285' F2d 495 (C.A. 10, 1960). In this case, Bourbonise pointed to employees who were inquiring critically of him about the discharge of Mrs. Black and told them to leave. He told them to sign their pay slips and get their paychecks before they left. He followed up this action by phoning the DOT manager to tell her that he did not need any replacements for them. These actions speak loudly and clearly to, the issue of whether employees could reasonably be led to believe that they were being discharged. From such actions on the part of Bourbonise, it would be hard for any employee to conclude other than that she had been discharged. I draw a similar conclusion. The reason' for the terminations is equally clear. They were voicing their objections to the treatment of a fellow employee. As such action is protected by Section 7 of the Act, the reprisal taken by the Respondent against'such action violates Section 8(a)(1) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I-make the following: CONCLUSIONS OF LAW 1. AMP, Incorporated, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. AMP, Incorporated, and DOT Services, a Division of Dictaphone Corporation-, are joint employers within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Sandra L. Black, Margie Christian, Alvie Cox, Vivian Dillard, Geraldine C. Hart, Margaret Landon, Doretha A. Pigford, Belinda Rikard, and Rosalie Vanhoy because they engaged in concerted protected activities, Respondent AMP, Incorporated, violated Sec- tion 8(a)(1) of the Act. 3. The unfair labor practices set forth above in Conclusion of Law 2 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that AMP has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom , and to take certain affirmative AMP, INCORPORATED actions designed to effectuate the purposes and policies of the Act. The recommended Order will provide that it be required to offer to the nine discriminatees named in Section 7 of the complaint reinstatement to their former or substantially equivalent employment, and to make them whole for loss of earnings in accordance with the Woolworth formula,8 with interest thereon to be computed at 6 percent per annum. I will also recommend that the Respondent be required to post a notice advising its employees to this effect. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDERS Respondent AMP, Incorporated, Kernersville, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any terms or condition of employment, because they have engaged in concerted protected activities. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Offer immediate and full reinstatement to Sandra L. Black, Margie Christian, Alvie Cox, Vivian Dillard, Geraldine C. Hart, Margaret Landon, Doretha A. Pigford, Belinda Rikard, and Rosalie Vanhoy to their former s F. W. Woolworth Company, 90 NLRB 289 (1950). s In the event no exceptions are riled as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the fmdmgs, conclusions, and recommended Order herein shall , as provided in Sec. 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 37 positions or, in the event their former positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or to other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the interference with Section 7 rights found herein, in the manner described above in the section 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 the terms of this Order. (c) Post at the Respondent's place of business at Kernersville, North Carolina, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by a representative of the Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily placed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered over by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. deemed waived for all purposes. 10 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation