Ampex Corp.

National Labor Relations Board - Board Decisions

Dec 7, 1967

168 N.L.R.B. 742 (N.L.R.B. 1967)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ampex Corporation and District No. 8, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO and The Communications
Committee , Party in Interest . Case 13-CA-7526
December 7, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 20, 1967, Trial Examiner Phil W. Saun-
ders issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended that such allega-
tions be dismissed. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
i The Respondent's request for oral argument is denied as the record,
including the exceptions and brief, adequately presents the issues and the
positions of the parties
2 In the absence of exceptions thereto, we adopt pro forma the Tnal Ex-
aminer's dismissal of the 8(a)(3) allegations concerning the discharges of
Bailey, Liggens, Reid, and Taylor.
We note that the record contains undisputed evidence, not discussed by
the Trial Examiner, of a speech and a letter, addressed to the employees
by high management officials, reflecting Respondent's opposition to the
union organization of its employees as well as, in the case of the letter, its
view that the Committee, by providing employees with an effective means
of obtaining redress of grievances about working conditions and similar
matters, in effect served the purpose of a labor organization and thus
eliminated the need for an outside union In our opinion, this evidence
provides further support for the Trial Examiner's 8(a)(2) and (3) findings,
which we herein affirm, with one modification. Our finding of an 8(a)(2)
violation is limited to the Respondent's unlawful domination of, support
of, and interference with the administration of the Committee, and does
not extend also to Respondent's conduct in regard to its formation, since
the latter took place in February 1966, more than 6 months prior to the fil-
ing of the related unfair labor practice charge, and is therefore time barred
under Sec. 10(b).
We hereby correct the following inadvertent errors in the Trial Ex-
aminer's Decision. (a) The Trial Examiner characterized Riccardo, an ad-
mitted supervisor, as assistant industrial relations manager; the record,
however, does not disclose what position Riccardo held with Respondent,
(b) the record reveals that Earnest testified that at the machine shop meet-
ing, Fulrath asked Magnusson and not Riccardo, as the Trial Examiner
found, about the work performance records of Earnest and Ebel, (c) the
adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
CONCLUSIONS OF LAW
We adopt the Trial Examiner's Conclusions of
Law 1, 4, and 5, and we delete his Conclusions of
Law 2 and 3, substituting therefor the following
Conclusions of Law 2 and 3:
"2. By discharging Helen Earnest, Virginia
Ebel, and Donald Betten, Respondent dis-
criminated against employees in regard to their hire
and tenure of employment in order to discourage
membership in a labor organization, and, in the case
of employees Earnest and Ebel, also to discourage
participation in concerted activities for mutual aid
or protection, and thereby has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act."
"3. By dominating and interfering with the ad-
ministration of the Committee and contributing sup-
port thereto, the Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(2) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Ampex Corporation, Elk Grove Village, Illinois,
division, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order,3 as so modified:
record shows that Betten's mid-June conversation with Foreman Ruben-
stein concerned the higher wage rates at Respondent's California plant
and not, as the Trial Examiner found, the Union as well. But we note that
Rubenstein must have known that Betten had obtained his information
about the wage rates in California from the recently distributed union
pamphlets.
3 During the first 2 days of the hearing, in mid-January 1967, Respond-
ent repeatedly offered to settle that part of the case involving the al-
legedly unlawful discharges of Earnest, Ebel, and Betten, and indicated its
willingness to reinstate the employees in question, with full backpay, as
part of such a settlement agreement. The General Counsel refused to en-
tertain any settlement agreement which did not include all seven alleged
8(a)(3) dischargees. On February 9, when the hearing resumed after a 3-
week lapse, Respondent offered to prove that it had sent unconditional of-
fers of reinstatement to Earnest, Ebel, and Betten on January 25, 1967,
requesting them to report for work on January 30 The Trial Examiner re-
jected the offer of proof, and the record does not otherwise reveal the em-
ployees' response, if any, to the reinstatement offers or whether, if the of-
fers were accepted, Respondent in fact implemented its promise of uncon-
ditional reinstatement In view of the incomplete state of the record on
this aspect of the case, we are adopting the Trial Examiner's Recom-
mended Order that the named employees be offered reinstatement by
Respondent, with backpay to run from the dates of their discharges to
such time as proper offers of reinstatement have been made If, at the
compliance stage of this proceeding, it should be determined that, on
January 25, Respondent did offer unconditional reinstatement to the
named employees, and that the employees declined the offers, we would
modify our Order herein by having backpay run from the date of the
(Footnotes continued on following page)
168 NLRB No. 96
AMPEX CORPORATION 743
1. Delete from paragraph 1(b) the words "forma-
tion or."
2. Delete from the second indented paragraph of
the notice the words "formation or."
(Footnotes continued from preceding page)
discharges until January 30, 1967, and from a date 5 days after the date of
the Board 's Order to the date on which Respondent unconditionally offers
the named employees reinstatement. We would not follow our usual
procedure in such cases of also denying the employees reinstatement
rights , because , in our opinion , the discussions mentioned above between
the General Counsel and Respondent may have given the employees the
impression that they were not at liberty to accept Respondent's January
25 offers of reinstatement without compromising , in some manner, the fu-
ture conduct of the General Counsel's case. Cf. National Screen
Products, 147 NLRB 746.
$100,000, which products were shipped in interstate
commerce directly to States of the United States other
than the State of their origin.
Respondent is now and at all times material herein has
been an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
District No. 8, International Association of Machinists
and Aerospace Workers, AFL-CIO, is, and at all times
material herein, has been, a labor organization within the
meaning of Section 2(5) of the Act. The Company denies
that the Communications Committee, herein called The
Committee, is a labor organization within the meaning of
the Act.
TRIAL EXAMINER'S DECISIOON
STATEMENT OF THE CASE
PHIL SAUNDERS , Trial Examiner : The unfair labor
practice charges on which the complaint of November
17, 1966, is based - were filed by District No. 8, Interna-
tional Association of Machinists and Aerospace Work-
ers, AFL-CIO, hereinafter referred to as the Union, on
July 15 , August 4, 11, 17, and 25, and September 16,
1966, against Ampex Corporation , hereinafter referred to
as Ampex Company , or the Respondent . The issues
litigated were whether or not the Company violated Sec-
tion 8(a)(1), (2), and (3) of the National Labor Relations
Act, as amended . The Company denied the unfair labor
practice allegations . A hearing was held before me and all
parties were represented , and were given full opportunity
to examine and cross-examine witnesses , to introduce
evidence , and to argue orally. The General Counsel and
the Company filed briefs. i
Upon the entire record and from my observation and
demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein
a corporation duly organized under, and existing by virtue
of, the laws of the State of California. At all times materi-
al herein, the Respondent has maintained its principal of-
fices at Redwood City, California, and maintains and
operates places of business in various other States of the
United States, including, but not limited to, the States of
Illinois and California, where it is engaged in the business
of the manufacture of audio-video equipment. The
Respondent's plant at 2200 Arthur Avenue, Elk Grove
Village, Illinois, is the only place of business involved in
this case. During the past year, in the course and conduct
of its business operations, Respondent has manufactured,
sold, and distributed products valued in excess of
' Respondent offered documents into evidence concerning its attempt
to obtain preheanng discovery . In essence , Respondent first issued
notices of depositions, and then requested the issuance of subpenas for the
purpose of directing witnesses to appear at the Board 's Regional Office on
December 28, 1966, in accordance with a notice of depositions. Respond-
ent's request for subpenas was denied by the Regional Director, and the
National Labor Relations Board The Respondent claims that it was de-
med due process because it was denied preheating discovery. This claim
III. THE UNFAIR LABOR PRACTICES
A. The Issues and Events
The complaint alleges that from on or about November
1965, the Respondent did initiate, form, sponsor, and
promote The Committee, and at all times since
November 1965, continuing to the present, Respondent
has assisted, dominated, contributed to the support of,
and interfered with the administration of The Committee.
It is further alleged that the Company discriminatorily
discharged the following employees working at its Arthur
Avenue plant on or about the dates set opposite their
names :
Helen Earnest July 12, 1966
Virginia Ebel July 12, 1966
Donald Betten July 15, 1966
Evelyn Bailey August 19, 1966
Mildred Liggens August 19, 1966
Birdie Reid August 19, 1966
Alma Taylor August 19, 1966
It appears that the Union started its organizational ef-
forts at the Respondent's Arthur Avenue plant in early
May 1966.2 On May 9 the Union held a meeting with
seven or eight employees at the home of Evelyn Pulliam,
and at this time authorization cards were distributed to
each employee in attendance at the meeting with the
request that they attempt to get other employees to sign
them. On June 17 the Union also distributed handbills at
the plant.
B. The Testimony
As to Earnest, Ebel, and Betten: Alleged discriminatee,
Helen Earnest, started working for the Company on
March 1 as a class B mill and lathe operator. Earnest
testified that she attended the organizational meeting in
early May and that from May until her discharge on July
12, passed out around the plant about 50 to 60 authoriza-
tion cards to other employees. Earnest stated that in the
latter part of June, she and alleged discriminatee, Virginia
is immediately rebutted by my granting of a continuance immediately after
General Counsel rested his case-in-chief Moreover , a party is not denied
due process when it fails to receive that which it is not entitled to Board
and court decisions are clear that a Respondent in an unfair labor practice
proceeding is not entitled to prehearing discovery . To hold otherwise
would seriously hamper the Board's function of carrying out the policies
of the Act.
2 All dates are 1966 unless specifically stated otherwise.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ebel, talked to their foreman , Charles Magnussen, and
asked him if they could be classified as class A operators.
Earnest testified that Magnussen agreed with them that
they were doing class A work, and that he would make a
request for such a reclassification. Earnest stated that
around July 4, Magnussen then informed them that
Respondent 's assistant industrial relations manager, Ric-
cardo, had denied the request on the grounds that the de-
partment did not have any class A work, but if they did
receive such they would be reclassified. Earnest and Ebel
then immediately talked to Supervisor Riccardo and were
again told that the department did not have any such
work . About a week later a meeting was arranged by Eve-
lyn Pulliam with Riccardo , and with Respondent 's Indus-
trial Relations Manager Thomas Fulrath . Earnest
testified that this meeting lasted 2 days with Fulrath first
inquiring of each employee (about 14 of them in this de-
partment) as to their difficulties and problems . At this
meeting Earnest and Ebel asked why they could not be
classified as class A operators, and were again told that
there was no such work available. Fulrath then informed
Earnest and Ebel that he would have a consultant come
in to study the matter, and to ascertain whether or not they
were doing class A work. Earnest stated that Fulrath also
asked Riccardo if they were good workers and if they -
Earnest and Ebel - were presently doing class A work,
and that Riccardo replied in the affirmative.
Earnest testified that on July 12, she and Ebel were
called into the office, and Fulrath then asked them, "Well,
how do you girls feel today?" Earnest replied that they
still had not been reclassified, and then Fulrath stated,
"You girls are not happy with anything. We have tried to
do everything to please you. If we can't do anything to
please you, we want you out of here, and we want you out
of here now." Earnest testified that Fulrath did not even
want them to go back into the machine shop department
to get their personal belongings, and that Fulrath had a
guard follow them like they were "some kind of
criminals."
Earnest stated that she only performed a particular
kind of work in the machine shop , and that she did not
operate the grinder of the Pratt and Whitney machine and
that employee James Terry ran this machine. Earnest
testified that employees Doris Holmes and a "fellow
named Bob" had class A ratings in the machine shop
while she was working there, and that Holmes did not
perform any work that she herself did not do.
Virginia Ebel started working at the Respondent's
plant here in question on April 11, and was also em-
ployed in the machine shop with a class B classification.
Ebel testified that starting in June, and for 5 to 7 weeks
thereafter, she passed out about 50 authorization cards
for the Union . In most other respects the testimony given
by Ebel substantiates and corrobrates that given by Ear-
nest , as aforestated.
The General Counsel also produced testimony through
Evelyn Pulliam to the effect that employees Robert Bo-
land and James Terry were class A operators in the
machine shop department, and that they did the same
work as Earnest and Ebel. However, Pulliam then stated
that Holmes operated a tracer mill and that Terry ran the
Pratt and Whitney machine. Pulliam testified that in the
early July meeting of machine shop employees with Ful-
rath and Riccardo, as aforestated, Fulrath initially stated
that he wanted to get to the bottom "of what all the dis-
sension was in the machine shop ," that Earnest and Ebel
told Fulrath that they were performing the same type of
work as the rest of the employees, and that Foreman
Magnussen stated that Earnest and Ebel were qualified to
be class A operators. Pulliam further related that on the
day Earnest and Ebel were terminated - Supervisor Ric-
cardo told Pulliam , "he felt that things would go smooth
now in the machine shop, that he had gotten rid of the
troublemakers."
Alleged discriminatee, Donald Betten, started working
for the Company as an inspector in January 1966 and was
discharged on July 15. Betten testified that he received
union authorization cards from Evelyn Pulliam , and that
he passed out eight or nine of them about 10 days prior to
his termination . Betten also stated that during the middle
of June he had a talk with his foreman, Harold Ruben-
stein, about the Union and wages at the Company 's plant
in California, that there were several employees present,
and the conversation arose when the union pamphlets had
been passed out. On July 15, Betten started to set up a
job when Foreman Rubenstein told him that it was the
wrong way to do it, and as a consequence an argument
resulted between the two of them . At quitting time Ru-
benstein informed Betten that he was going to let him go.
Betten then talked to Fulrath, and according to Betten he
was then told, "Shut up. You are a troublemaker. -3
Betten testified that Fulrath never gave him any reason
for his discharge.
As to activity on behalf of the Union - Evelyn Pulliam
stated that Ebel, Earnest, and Betten had passed out
authorization cards, and that the day Betten was
discharged she and Betten were engaged in a conversa-
tion about the Union when she observed Foreman Ru-
benstein sitting at his desk watching them.
The General Counsel produced testimony through
Doris Holmes to the effect that Earnest and Ebel ran the
lathes, mills, and drill presses, but that they did not work
on the Pratt and Whitney machine nor did they operate
the tracer machine.
As to Bailey, Liggens, Reid, and Taylor: The above al-
leged discriminatees all worked in department 775 at the
Respondent's plant, and their foreman was Henry Neu-
man.
Bailey started working the latter part of June doing wir-
ing and soldering and was discharged on August 19.
Bailey testified that she signed several cards for the
Union , and on August 12 passed out authorization cards
to an employee by the name of Roman. Bailey stated that
after the lunch break on August 12, Roman gave the
union cards back to her unsigned , and at this time she and
employees Roman and Jeano , along with Liggens, Reid,
and Taylor, engaged in a conversation in which the above
four alleged discriminatees attempted to inform Roman
and Jeano of the advantages for the Union. Bailey related
that later the same day she heard employee Jeano tell
Foreman Neuman that Bailey was the one who had given
union cards to Roman, and that Neuman was also ex-
plaining to Roman and Jeano his thinking as to why the
employees did not need a union . Bailey testified that on
August 19 - Neuman sent for her and Reid and then in-
formed them of their terminations on the grounds their
3 At this talk with Fulrath - Betten was with Kenneth Seyller and
Dorothea Jergens who had also indicated that they were quitting because
of Betten 's termination
AMPEX CORPORATION
work was not satisfactory, and that they were 60-day
probationary employees.
Reid started working for the Company on July 5 and
also did wiring and soldering. Reid corroborated the
testimony of Bailey as to their conversations about the
Union with Roman and Jeano, as aforestated. Reid
testified that prior to her discharge on August 19 -
Foreman Neuman had never discussed her work, but that
on her termination Neuman told her that her work was
poor and that she was getting to many rejects. Reid
further related that she signed two cards for the Union,
and that she discussed her card signing with Bailey, Lig-
gens, and Taylor.
Alma Taylor started working at the plant on June 21,
and was also discharged on August 19. She too did wiring
and soldering in department 775, and signed a card for the
Union on August 18. Taylor's testimony also substan-
tiated the conversation about the Union between Bailey,
Roman, and Jeano.4
Foreman Neuman testified that each day he constantly
observed the work of Liggens, Taylor, Bailey, and Reid.
Neuman stated that Liggens' work was poor - that she
would wire cables wrong, burn up wires, that her work
was a "constant mess," and that Liggens was terminated
because of her poor work and that she was a probationary
employee. Neuman also testified that his repair girl,
Martha Strobel, and an analyzer, Gordon Scherer, con-
stantly complained to him about how many errors Lig-
gens was making, and he would then tell Liggens that she
would have to improve her work.
Neuman stated that the original work on filter boxes
was done by these four alleged discriminatees, and that
after they completed their work on them the filter boxes
went to the inspection department. Neuman related that
he then started getting numerous rejections, and the matter
became serious enough so that he asked each of the four
alleged discriminatees to put tags with their initials on
their work, and starting in August records were made on
the performance of their work (Resp. Exh. 14). Neuman
testified that almost every day he had talks with Bailey,
Reid, and Taylor and told them to watch their work
because of the rejects and complaints he was receiving
from his repair girl and the inspection department. Neu-
man stated that he did not issue any written reprimands
as all four of alleged discriminatees here involved were
probationary employees. He further testified that on Au-
gust 19, he terminated all four of them because of the
poor work they were doing, but that he first discussed his
decision with his boss, Carl Claris, because at the time
there was a serious labor shortage and the plant was un-
derstaffed. Neuman testified that he never talked to these
four alleged discriminatees about the Union and never
heard them talk about the Union, but that he though em-
ployees Martha Strobel and Jacques Ascar had signed
cards.
Penny Spokes testified that while she worked in depart-
ment 775 she was required to repair the preliminary work
done on the filter boxes by the four employees here in
question. Spokes stated that the work was identified by
the yellow tags which were attached to each piece of
work, and that considerable repairs were necessary
because it was "carelessly" done. Spokes stated:
"[M]ost of the time the sodder was lumpy and dull,
A Alleged discnminatee Liggens did not testify
5 Fulrath explained that the Arthur Avenue plant was opened in
November 1965 and immediately a Communications Committee was
745
which meant it was cold, and we would melt it down, like
I said before, and a lot of times the wires weren't there, or
the capacitors or the resistors would be in the wrong
places. And a lot of times the bare wires would touch. We
would have to fix that, and also the capacitors would be
crushed. The plastic or the coating on the outside would
be crushed, and we would have to replace those." Spokes
further testified that in conversations with Neuman he
told her that Taylor was doing bad work and that several
cartons of filter boxes had been rejected due to poor
workmanship.
As to the Communications Committee: Fulrath
testified that The Committee started in September 1964,
at the Respondent's Audio plant on Landmeier Road
(such plant is not involved in this proceeding), and that
The Committee started at the Arthur Avenue plant in
February or March 1966.5 The purpose behind the Com-
munications Committee was expressed by Fulrath as fol-
lows:
Well, we are a profit-sharing company, Ampex has
had a profit-sharing program for a number of years.
And we thought that the Communications Commit-
tee would provide a means for people to exchange
and make suggestions about how to improve efficien-
cy in ways that would affect all and improve our
profit-sharing. It included, of course, the betterment
of employee relations. This is related to the improve-
ment of efficiency. And also the committee was
designed to be a safety committee. Our insurance
carrier requires that we have an employee safety
committee, and the insurance carrier recognizes this
committee as a safety committee.
Fulrath testified that the initiative in the formation of
The Committee came from management; he was the first
chairman; The Committee does not have a constitution or
bylaws; meetings are held on a monthly basis with
minutes being kept; Fulrath picks the dates of the
meetings; the employees who attend are picked at ran-
dom off the employees' roster; Fulrath attends all
meetings along with senior engineers and supervisors (the
plant manager) in particular; and if the chosen employee
is absent then the supervisor of the department picks
some other employee out of his department. Fulrath also
stated that employees are paid for the time spent at the
meetings; the Company bears the cost of clerical help; the
employees' representatives are paid for the time spent in
attandance at Committee meetings; meetings are held in
the plant conference room; and there are no officers for
The Committee. Fulrath explained the general
procedures which are followed at The Committee
meetings. He stated that he conducts the meetings as
chairman, he takes the notes for the minutes which he dic-
tates later to a secretary, and that the selected employees
at the meetings are asked to present suggestions of other
employees who work with them. Fulrath went on to ex-
plain that when The Committee was first established
there was no union activity, and that the possibility of
such never entered into the Respondent's decision in
going forward with The Committee. He also testified that
individual employees complaints or grievances are
referred back to the departments, and that The Commit-
tee attempts to discuss matters of a broader interest.
Employees Ebel and Holmes also gave some testimony
formed and met with the Landmeier Road plant committee until February
or March 1966, after which time the Arthur Avenue Committee met at its
own plant.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the General Counsel relating to The Committee.
Holmes testified as follows:
He [Fulrath] said that this was the way that the
company and the employees had of getting together
and starting their problems and their needs and that.
That's what the Communications meeting was for.
C. Final Conclusions
The Act defines a labor organization as:
... any organization of any kind, or any agency or
employee representation committee or plan, in which
employees participate and which exists for the pur-
pose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work.
The Respondent argues that The Committee lacks the
structural characteristics requisite to the notion of an or-
ganization, that The Committee is synonomous with all
personnel at the plant since every individual participates
- and, therefore, the concept of an employee committee
on one side and management representatives on the other
side is absent. The Company further maintains that in-
dividual complaints or grievances are not discussed, but
referred back to department supervisors and handled
under the Respondent's grievance procedure, that The
Committee does not deal with the Company concerning
any conditions of employment, that there is no agenda at
the meetings of The Committee and each participant is
permitted to talk or to say nothing as he so desires, and
that the Company has not recognized The Committee as
a representative of its employees - it is merely a forum to
express views.
This record makes it clear that the real purpose of The
Committee is to present suggestions to the Company on
behalf of all the employees upon subjects pertaining to
conditions of work. Thus, Fulrath stated and conceded
that The Committee would make suggestions to how to
improve efficiency in ways that would effect everyone,
and which included the "betterment of employee rela-
tions." Furthermore, the testimony and exhibits show
that The Committee carried out the above purposes as
members presented complaints and inquiries regarding
the Company's wage policies as it related to machine
operators, automatic increases that were not being paid
on time, and night-shift rates. Complaints and inquiries
were also made from time to time on transfers, seniority,
on hours of work, timeclocks, lightening, meals, parking,
supplies, chairs, floors, along with several other matters.6
As pointed out these are but a few of the many instances
where The Committee and the Company discussed mat-
ters traditionally raised at bargaining sessions between
labor and management. It is clear that the meetings of
The Committee are not merely a forum for a mutual ex-
6 A few random entries of the minutes by The Committee from February through December 1966, evidenced
by General Counsel's Exhibit 5, shows the following:
Questions/or Suggestions
Shouldn't a machine operator get more money
for set up and operation.
There are a number of pay shortages and some
automatic increases are not coming through on
time.
There are some girls on the night shift who
'went on days to get more training. They had
the idea they would get 10 cents an hour more
after they got this training.
There are some people on the night shift who
do testing but are paid assembler rates.
TRANSFERS AND SENIORITY:
Does seniority of a girl transferred from the
audio products plant entitle her to bump out
a girl who is already on the job at the time
of the transfer.
Are girls promoted to utility operator on the
basis of seniority.
Can the front door by open until 5:00 for the
convenience of people leaving later?
When the people work more than two hours
overtime at night could they have a coffee
break at 6:189
Answer
There is a certain amount of set up provided in
the present machine operation job descripp tion.
However, the machine operators job will be re-
viewed by the Industrial Relations Department.
We are investigating the pay shortages . Any em-
ployees who have questions should contact the
Industrial Relations Department immediately.
Mr. Dye will check into this situation.
Mr. Dye and Mr. Fabel of the Industrial Relations
Department will check into this. (We pay the rate
of the job classification which the people have
and the job classifications are based on duties
of that person).
No. However the girl who transferred keeps her
seniority. Layoffs and recalls will be made by
seniority and seniority is also a factor in profit
sharing and bidding.
Promotions are based on seniority and qualifi-
cations. A girl must have the knowledge and
versatility to be a Utility Operator.
Yes, the guard will lock the door after this time.
Yes. Referred to Chuck Wheeler.
AMPEX CORPORATION 747
pression of views, but, to the contrary, The Committee
does deal in complaints from individual employees. While
it may be true that some complaints or inquiries were
made spontaneously, still Fulrath apparently made no at-
tempts to cut off discussions of these matters or to even
caution the members that they were not proper subjects
for consideration. Indeed, Fulrath accepted these com-
plaints, and as a consequence, some of them were
disposed of at the meetings while others were referred to
appropriate officials, departments, or supervisors for
determinations.
There is no doubt that the Company created the Com-
munications Committee. It is also equally clear that the
Company's initial action in so doing was not prompted by
any desire to thwart organization of its employees in the
Union for the reason that the Union was not engaging in
any organizational activities at that time - nor was the
Union so engaged in February or March 1966, when The
Committee was instituted or started on its own at the
Respondent's Arthur Avenue plant, as aforestated. Nor
did The Committee perform the normal functions of a
union in obtaining recognition as the exclusive bargaining
representative of the employees, and there is no evidence
that the representatives of the employees on The Com-
mittee ever engaged in bargaining negotiations with Ful-
rath. Nevertheless, I am convinced that The Committee
meets the broad technical requirements of a labor or-
ganization since it was formed and maintained by the
Company, at least in part, for the purpose of dealing with
it concerning conditions of employment, and the Com-
pany thereby engaged in unfair labor practices within the
meaning of Section 8(a)(2) of the Act.7
While it is sufficiently clear that the Respondent has
contributed financial and other unlawful support and
assistance to The Committee, there remains for con-
sideration here, the question of whether the Respondent
has dominated and interfered with the formation or ad-
ministration of The Committee. Section 8(a)(2) of the Act
provides that it shall be an unfair labor practice for an em-
ployer "to dominate or interfere with the formation or ad-
ministration of any labor organization or contribute finan-
cial or other support to it...."
There is no dispute that The Committee was formed by
the Company. This record shows that the Respondent
determines the method of selection of representatives,
and even at times supervisors select particular represent-
atives.
Respondent, through Fulrath, determines dates of
meetings, and Respondent pays all financial support
necessary to the Committee's continued existence. Em-
ployees are paid for all time they devote to Committee af-
fairs, including the time they confer with each other on
Committee business. The Board has consistently
declared committees and plans of the type here involved
as assisted, supported, interfered with, and dominated by
the employer with whom they deal.
The Company argues that Earnest and Ebel were
discharged because of their dissatisfaction with the
Respondent's willingness and attempts to reclassify them
in class A work. The Company points out they explained
to them that when enough class A work became available
to warrant their reclassification, Earnest and Ebel would
be reclassified upon their proving class A work ability.
The General Counsel on the other hand, states that
whether or not they were entitled to be class A operators,
or entitled to do class A work is not material, but that the
important point is that their discharges resulted from their
concerted efforts to obtain a raise.
As aforestated earlier herein - both Earnest and Ebel
worked as class B operators. Both openly distributed
authorization cards for the Union prior to their termina-
tions, and it appears that the Union's June 17 handbill
(G.C. Exh. 3) motivated them to ask for reclassification.
During the latter part of June they then asked Foreman
Magnussen for a class A rating, and Magnussen told them
he would so recommend. In early July they were then in-
formed by Magnussen that Supervisor Riccardo had de-
nied their requests.8 The same day they talked to Riccar-
do, and he also told them that there was no class A work
available. Ebel and Earnest, along with Evelyn Pulliam,
then requested a meeting, and, as pointed out earlier
herein, such a meeting was held with all the machine shop
employees present along with Fulrath, Riccardo, and
Magnussen. Fulrath then asked each employee what their
problems were, and when he came to Earnest and Ebel he
treated their problem as an upgrading to class A opera-
tor's status. As pointed out the same go-around between
Ebel, Earnest, and Riccardo was reenacted or restated.
Fulrath then broke the argument by offering to have an
outside consultant study their jobs, and to which Ebel and
Earnest agreed. This record also shows that during this
discussion Ebel raised the fact of higher wage rates at the
Respondent's California plant, and when Fulrath asked
how she knew, Ebel answered she had one of the Union's
handbills (G.C. Exh. 3). During Fulrath's discussion with
Ebel and Earnest, Magnussen's recommendation was
again solicited, and he stated they were good workers or
otherwise he would not have sought reclassification for
them. At the time of their discharge on July 12, Earnest
told Fulrath that she and Ebel were not unhappy with fel-
low employees nor with the Company, and that the only
thing they wanted was a reclassification.
I find that the concerted union activity by Earnest and
Ebel to obtain reclassifications was the immediate
motivating factor in their terminations. The Company
contends that it had no knowledge of any union activity
of these two employees. However, there is well-
established Board and court precedent that such
7 The charge with respect to The Committee was filed in September so
the cutoff date under Sec. 10(b) of the Act is March 1966. The Company
argues that there were certain allegations in the complaint involving the
operations of The Committee that occurred prior to March, and that,
therefore, no unfair labor practice findings can be based upon them. The
Company points to the allegations setting forth the initial forming and
sponsoring of The Comnuttee , determining its structure , the number and
tenure of committeemen, the eligibility requirements for committeemen,
and the method of selecting committeemen The General Counsel in-
troduced testimony relating to events which occurred prior to March only
as background evidence . While the initial formation , sponsoring, and
structure of The Committee took place in 1964, Fulrath admitted that The
Committee started to meet on its own at the Arthur Avenue plant in
February or March. Accepting the latter the allegations in the complaint
pertaining to The Committee came within the 6-month period If February
be deemed controlling then background evidence can be used to explain
any ambiguous or equivocal conduct. Subheadings (c) through (n) in para-
graph VI of the complaint all transpired on an independent and continuing
basis at the Arthur Avenue plant within the 6-month period, and the
testimony as to the original formation and organization of The Committee
elsewhere in 1964, as aforestated, merely provides background to supply
clarifications that the same procedures were followed when The Commit-
tee started to function on its own at the plant here in question.
8 Neither Magnussen nor Riccardo testified before me.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge maybe inferred from the record as a whole.
Wiese Plow Welding Co., 123 NLRB 616; Radio Of-
ficers' Union of the Commercial Telegraphers Union,
AFL v. N.L.R.B., 347 U.S. 17 (1954); and Pyne Mould-
ing Corporation, 110 NLRB 1700. Moreover, both of
these employees were active in and around the plant in
the circulation of many union authorization cards, and at
the meeting in July, Ebel specifically informed Fulrath
that employees in the Respondent's California plant were
receiving higher wages, and that she had obtained such
knowledge from the Union's handbill. From that time on
it can reasonably be assumed that the Company had at
least inferable knowledge of their union interests and ac-
tivities. There was no specific denial by Fulrath of the
above, and, therefore, it remains in this record as
evidence that a supervisor of the Respondent was aware
of their union interests prior to the discharges. This
record also reveals that the Company had a small work
force of about 14 employees in its machine shop, and that
Earnest and Ebel were machine operators and the Union
involved is the Machinists Union. Moreover, this record
further shows that in a weekly production meeting of
management people at the time the Union started to or-
ganize, supervisors were told that the employees "have
started union activity." I have also attributed union
knowledge to the Company on the basis of additional
testimony by Foreman Neuman who admitted that at
least five or six employees in his department had directly
talked to him about the Union, and that when union hand-
bills, folders, or pamphlets were distributed there was
then "a general discussion" about the Union. There is no
evidence in this record that such discussions were in any
way limited to only Neuman's department, and the record
as a whole shows the opposite.9
At the meeting in early July, Fulrath told the machine
shop employees that he wanted to get to the "dissension"
in the department. It is noted that the Company must
have assumed that Earnest and Ebel were mainly respon-
sible for the supposedly dissentious conditions in the
machine shop because the entire shop was called into the
meeting lasting 2 days on Earnest' s and Ebel's request to
meet only with Fulrath or Manager Narma. As pointed
out, the Company thought that they had located the cause
of the Union's organizing efforts when they received the
complaints from these two employees, and this fact is
further borne out on the day of their terminations when
Earnest replied to Fulrath that they still had not been
reclassified. Their efforts at reclassification had been
started or stimulated as a result of union activity, and
when their desire in this respect remained unsatisfied and
at odds with Fulrath, they were discharged. There is no
contention or argument that Fulrath found any fault what-
soever with the work they were doing or with their work
habits in the actual performance of their jobs. Also, the
unusual circumstances of using a guard as a private escort
to see that they immediately left the plant further in-
dicates something other than discharge for valid cause,
and Supervisor Riccardo's undenied statement to em-
ployee Pulliam on the day of their discharges that the
machine shop would now go "smooth" since the Com-
pany "had gotten rid of the troublemakers" puts at rest
any doubt but that the terminations resulted from Ear-
8 Both Earnest and Ebel acted in concert to obtain reclassification.
Each knew that one was as qualified for a class A rating as the other, and
nest's and Ebel's concerted efforts to obtain wage in-
creases through union backing and support.
Section 7 of the Act grants to employees the right ".. .
to engage in other concerted activities for the purpose of
collective bargaining. .. " Collective bargaining is
defined in Section 8(d) of the Act as pertaining to, among
other things, wages. The Board has repeatedly found that
discharges motivated because of a concerted effort for
higher wages is violative of the Act, and the fact that
these two employees acted concertedly is consistently
revealed in this record as their "problem" at the July
meeting was handled as a single matter, as aforestated,
and they were further terminated as a pair with the only
assigned reason to both of them that they were not happy
and that the Company could not please them.
The Respondent argues that the General Counsel
failed to show that the Company had knowledge of
Donald Betten's activity for the Union, that there was no
showing of union animus, and that the evidence clearly
demonstrates that Foreman Rubenstein discharged
Betten for his insubordination.
As described herein, Betten was discharged by
Foreman Rubenstein soon after their argument concern-
ing each other's competence. According to Betten's
testimony the argument started after Rubenstein told
Betten that he was doing a particular job incorrectly.
Betten admittedly became irritated with words then
exchanged between them, and the argument apparently
reached its peak when Betten told Rubenstein that he was
not qualified as a foreman.
From this record it appears clear to me that the
Respondent had knowledge of Betten's activity for the
Union. It is undenied that when Betten learned of Ebel's
discharge on July 12, he did not hide his feelings about it
when they met in the plant personnel office, and he then
characterized her dismissal as "a dirty deal." Virginia
Strand, a secretary in the personnel office, was only "a
few feet away."
A month prior to his termination and at a time when
union pamphlets were distributed, Betten and Foreman
Rubenstein also had a discussion, as aforestated, on the
wages being paid at the Respondent's California plant.
There was a sufficient inference from this conversation to
at least put Rubenstein on notice that Betten was engag-
ing in union activity. This record also shows that Betten
circulated union authorization cards before his discharge,
and that he then asked Evelyn Pulliam what should be
done with them. At this time Rubenstein was sitting at his
desk approximately 10 to 15 feet away from them, and
Pulliam testified that Rubenstein was watching them.
Based upon the above, and for several other reasons
previously detailed in the initial discussion on Earnest
and Ebel - I find that the Company had knowledge of
Betten's union activity prior to his discharge.
It was alleged in the complaint that Kenneth Seyller
was a supervisor within the meaning of the Act, and the
General Counsel introduced considerable testimony in
efforts to prove the same in further substantiation that the
Company had knowledge of Betten's union activity. In
this respect the Respondent states as follows:
The uncontradicted evidence shows that Seyller,
as all of Respondent's leadmen, had no authority to
the best way to obtain the rating was to act together. As both testified,
neither ever sought reclassification without the other
AMPEX CORPORATION 749
hire, fire, transfer , discipline , suspend , layoff, recall,
promote, reward or discipline employees , nor did he
have authority effectively to recommend any of these
actions. Furthermore , the uncontradicted evidence
demonstrates that with respect to wages, benefits
and conditions of employment leadmen such as
Seyller are treated the same as all hourly-paid em-
ployees whereas all supervisory personnel are
treated differently . This in itself suggests a non-su-
pervisory status. As described in the statement of
facts above, Seyller was nothing more than a conduit
through which work orders moved from the top of a
pile of orders in a production control box to an
available inspector . When not handing out these
work orders , he performed the same layout inspec-
tion work as that performed by his fellow inspectors.
At best when pulling work orders from the top of the
pile, Seyller was engaged in a routine assignment of
work requiring no independent judgment . Seyller
stated that he spent six hours per day assigning work,
however he admitted on cross-examination that a
good portion of this time includes helping other in-
spectors and setting up machines.
To be a supervisor under the Act the individual in-
volved must consistently display true independence of
judgment in implementing this authority . The exercise of
some supervisory tasks in a merely "routine," "clerical,"
"perfunctory ," or "sporadic" manner does not elevate a
rank-and-file employee into the supervisory ranks.
Poultry Enterprises , Inc. v. N.L.R.B., 216 F.2d 798,
801-802 (C.A. 5). Nor will the existence of independent
judgment alone suffice; for "the decisive question is
whether [the individuals involved ] have been found to
possess authority to use their independent judgment with
respect to the exercise by them of some one or more of
the specific authorities listed in Section 2(11) of the Act."
N.L.R.B. v . Brown & Sharpe Manufacturing Company,
169 F.2d 331, 334 (C.A. 1).
I find that on the record before me the job of leadman
lacks the required combination of independent judgment
in the performance of the supervisory powers listed in
Section 2(11). No additional discussions or ramifications
of this issue need be set forth as I have found sufficient
evidence in other respects to substantiate the overall
position of the General Counsel that the Company had
prior knowledge of Betten's union activities , and, in the
final analysis, the General Counsel does not even rely on
Seyller's testimony . The position of the General Counsel
in his brief is stated thus: "This issue appears moot in
view of Seyller 's testimony that he did not communicate
to Rubenstein his direct observation of Betten's card dis-
tributing activities."
On the morning of Betten 's discharge Foreman Ruben-
stein called Seyller aside and informed Seyller that he was
going to let Betten go . That same afternoon fellow em-
ployee, Bessinger , came to Betten and asked him to set up
a job claiming such instructions from Rubenstein. A short
while later Rubenstein then appeared and told Betten he
was not setting up the job properly , and an argument then
ensued between them , as aforestated . At 4 p. m. Ruben-
stein informed Betten that he was going to let him go and
that he did not believe Betten was "happy here." Betten
replied that he was "happy ," and also asked Rubenstein
for the reason for his discharge . By this time Betten was
joined by Seyller and Jergens in the plant personnel office
in protest of his discharge , but the only thing Betten heard
in the personnel office was that he should "shut up," and
that he was a "troublemaker."
This record is devoid of any contention or testimony
that Betten was a poor worker or that he took part in any
misconduct except in respect to the one incident in
question here. Betten asked the reason for his discharge
on two specific occasions , and in reply was merely in-
formed that he was "unhappy" and a "troublemaker."
On the basis of all the evidence I find that the Com-
pany, through Rubenstein , conducted a campaign of
harassment on July 15 against Betten because of his ad-
herence to the Union ; that this was undertaken to
provoke Betten into providing the Company with a
reason to discharge him; and that this violative conduct
was culminated after Betten was detected by Rubenstein
as a union supporter . As pointed out, the events on July
15 reveal that in the morning Rubenstein told Seyller that
he had to let Betten go - this was before the argument
between Betten and Rubenstein on the setup job Betten
was doing - then that afternoon Rubenstein started imple-
menting his plan to get rid of Betten . While a surface view
of the events on July 15 indicate conduct which may be
characterized as insubordination , a closer look at the
facts clearly shows that Betten 's actions were
precipitated by the Respondent 's harassing tactics and
provided , as planned , a convenient pretext for discharg-
ing a union supporter . Accordingly, I reject the Respond-
ent's reliance on a naked right to discharge for alleged
insubordination , as it was not the real reason for the
discharge , and find that the Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily discharging
Betten.
I am fully aware , in making my findings as to Betten,
Ebel, and Earnest, that there is lacking in this case the
usual independent 8(a)(1) allegations , and which , if found,
would normally support a showing of union animus and
thereby lend some additional weight or light to the
discharges of these three employees . However, the viola-
tive conduct by the Company is adequately substantiated
by a preponderance of the evidence without such inde-
pendent 8(a)(1) findings , and upon the circumstances and
reasons given herein the discriminatory discharges can
and do stand on their own.' °
10 Throughout the hearing in this case the Company made several offers
on the record to reinstate Earnest, Ebel, and Betten with full backpay. The
Company argues that in view of the full remedy offered, the General
Counsel had a duty to consider Respondent's offer on its merits rather
than considering what effect this settlement would have on his entire case.
As pointed out by the General Counsel, there is no rigid legal basis nor
custom that directs or commands the General Counsel to settle part of a
case where, as in this proceeding, a basic issue is Respondent's proclivity
or propensity to violate the Act. In view of the serious and repeated con-
tentions made by the Company that they were being denied pretrial and
other aspects of due process, as duly reflected in the formal exhibits and
then argued in the initial and later stages of this proceeding, the Company
was given every opportunity under these particular circumstances to fully
amplify and state on the record its positions in all such respects. However,
in relation to the above, I have obviously given no considerations what-
soever to the Respondent's offers to settle or reinstate the above-named
employees, and my findings herein are based solely on the merits of the
testimony given before me Earnest, Ebel, and Betten were named as al-
leged discriminatees in the complaint; in the final analysis they steadfastly
remained in the complaint; and the Respondent had every opportunity and
right to defend the same by either presenting testimony, or, as the Re-
spondent did here, to refrain from introducing evidence in defense of these
charges.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I turn now to the allegations and testimony in relation-
ship to alleged discriminatees Bailey, Liggens, Reid, and
Taylor.
The General Counsel argues that Evelyn Bailey, in par-
ticular, attempted to influence other employees to sup-
port the Union, and that Bailey's attention was aroused
when she heard her name mentioned in a conversation
between Roman, Jeano, and Neuman, as aforestated. The
General Counsel further maintains that Neuman knew all
there was to know about his employees' union desires,
yet claimed to know nothing about the union activities of
the alleged discriminatees here in question. It is also ar-
gued that the Company seized upon the happenstance of
the probationary period to rid itself of Bailey because of
her attempts to influence other employees, that Liggens,
Taylor, and Reid were discharged to make Bailey's ter-
mination appear lawful or to dispose of employees whom
Bailey had influenced,' that at the time of the discharges
Neuman had evaluation forms for only Taylor and Reid,
that if the work by these four was so inferior Neuman
would have discharged them immediately, and that Neu-
man's total testimony must be viewed warily in view of
his false testimony regarding Liggens' work ability.12
It appears clear to me that the four employees here in
question were terminated because of the extremely poor
quality in their work and, whereas, the nature of the
Respondent's products necessarily requires or demands
efficient and quality workmanship. There is more than
ample evidence in this record to conclusively show that
the wiring and soldering work they performed was
generally faulty and as a result Neuman had a considera-
ble number of rejects in his department. There is also
evidence in this record that from time to time Neuman
made efforts to help these four employees here in
question to improve their work, but that such attempts or
efforts were unsuccessful. The Respondent's quality con-
trol records are further indicative of their poor work, and
upon their discharges on August 19, none of them refuted
their foreman's reason and statement that they were being
terminated due to poor workmanship.13 I also agree that
Neuman's own observation of their poor workmanship
was supplemented by the complaints he received from
repair workers, and that Neuman then found it necessary
to use additional employees on repairs. These factors are
all further substantiated by the uncontradicted evidence
that the poor work performances of these four alleged dis-
criminatees reached such serious conditions that Neuman
was then required to have them place their initials and
tags on each unit or piece they worked on. There is no
contention or testimony that such a practice was in any
way a common procedure at other times. Starting on Au-
gust 8 inspection records were also kept, and I point out
that all such procedures occurred prior to the time when
Bailey overheard Jeano tell Neuman that she was the one
who gave Roman a union card, as set forth previously
herein. Neuman's testimony as to the poor work of these
four employees in question was also corroborated by
Penny Spokes. She stated, that Neuman had several con-
versations with her concerning the poor work performed
by the four, and one occasion Neuman remarked that he
was upset about several cartons of filter boxes that were
rejected because of the poor workmanship of the four
girls. On another occasion Neuman informed Spokes that
he had to dismiss these four because of the poor work
which they had done.
Foreman Neuman stated that the work of these four al-
leged discriminatees was of a poor quality from the very
beginning of their employment. The General Counsel
therefore argues that they should have been discharged
immediately. However, this record clearly reveals that
these four employees in question were probationary em-
ployees for the first 60 days of their employment, and the
purpose of conferring probationary status on a new em-
ployee is to afford him or her an opportunity to show that
such an employee can properly perform the tasks as-
signed to him. As pointed out, if such employee is not per-
forming to the satisfaction of management during this
period, he or she can be discharged without resort to the
detailed warning procedures afforded to nonprobationary
employees. I agree that in accordance with the purposes
of the above probationary system, Neuman gave these
four ample opportunity to demonstrate that they could
perform quality work, and were then discharged when it
became obvious that they could not achieve the quality of
workmanship required.
Turning to the General Counsel's argument and theory
that the Company discharged the other three employees
with Bailey either because Bailey could influence them to
sign a union card and vote for the Union, or because
discharging all of them would hide Bailey's discharge.'4
Therefore, in the final analysis here, the General Coun-
sel's case must ride on the Bailey theory as there is no re-
liable evidence whatsoever that the Company had any
prior union knowledge as to Liggens, Reid, or Taylor.
The final theory of the General Counsel is clearly stated,
but in my opinion this record does not support it. The
overwhelming evidence in this record shows that each
one of the four alleged discriminatees involved in this
phase of the case were discharged for cause because of
their individual poor workmanship, and about the only in-
ference remaining to the General Counsel is the
testimony by Foreman Neuman that Bailey, Reid, and
Taylor were a close threesome and always together.
However, to deduce from this shred of testimony a con-
clusion or finding that the Company discharged all four
here involved so that Bailey could not influence the other
three, or hide Bailey's termination, is carrying unsup-
portable inferences from mere mutual associations to the
ultimate extreme and beyond.
Respondent's Exhibits 16 and 17 are performance ap-
praisals of Reid and Taylor. In August, Neuman
discussed these appraisals with these two alleged dis-
criminatees, and informed them as to the poor work they
were doing. Neuman explained that he had not received
11 Neuman admitted the closeness of these employees when he stated
that Bailey , Taylor, and Reid "were like triplets , always together."
12 Liggens' personnel card indicates she was hired on April 26, volun-
tarily quit on June 8 and was rehired on July 19 . Neuman testified that
Liggens worked for him prior to her quit and her work was then poor, but
on her termination form which Neuman completed, Liggens was rated by
Neuman as average and eligible for rehire.
13 Plant inspection reports on filter boxes for August 8 show that there
were 63 units worked on - 35 were accepted and 28 rejected. On August
9, out of 21 filter boxes, 9 were accepted and 12 were rejected On August
10 and 11, four were rejected See Resp Exhs. 14-A through D Resp.
Exhs. 15-A through J cover the period of October and November - after
the discharges of the four here involved - and show that a significant
change occurred in the number of filter box rejects
14 The complaint alleges that the Respondent discharged these four em-
ployees because each of the employees engaged in union or concerted ac-
tivities (Emphasis supplied.)
AMPEX CORPORATION
the performance appraisals from the Industrial Relations
Department for Bailey and Liggens because they had not
been employees long enough and that it takes about 45
days and sometimes longer for such forms to reach him.
Although Neuman did not have the performance ap-
prisal on Bailey at the time of her discharge - as argued by
the General Counsel - it appears to me that Neuman gave
credited and reasonable testimony in explaining the
reason for its absence and, furthermore, this circum-
stance can in no way subtract from the facts that Neuman
had constantly observed Bailey at her job, informed
Bailey at numerous times of her bad work, and had also
received complaints from his repair people.
The General Counsel also makes references in his ar-
guments to the effect that these four alleged dis-
criminatees were discharged at a time when Neuman ad-
mittedly stated that the Company had a serious labor
shortage. Neuman testified that the day before their
discharges he discussed the matter with his boss - Carl
Claris. Neuman related that he told Claris that he was
going "to let some girls go" because of their poor work
and that he was getting a high rejection ratio. When asked
why he discussed this matter with Claris - Neuman re-
lied, "Well, I was afraid that - if I terminated the girls
without telling him, I would be in trouble for letting four
girls go , because at that time we had a terrible labor
shortage over there, and we were trying to get any kind of
labor in. Well, that was one of the bad parts. They would
take anybody in the plant just to get bodies in the place."
It is obvious from the above that the plant personnel of-
fice - in disagreement with Neuman - was hiring inex-
perienced help and even placed newspaper advertise-
ments for such employees, but this in no way casts any
serious reflections upon the rights of the Company or
their individual foremen to subsequently make full
evaluations of such an employee's work performance,
and especially so within the probationary period. Neu-
man also explained that the Company has a 1-week train-
ing program, and from then it is up to the individual. Neu-
man stated, "There is some employees you will have 6
months on the job and they will never be wirers and sol-
derers." There is sufficient evidence here to show that
Neuman gave serious consideration to the plant policy of
hiring inexperienced help, and also recognized that there
existed a general labor shortage, and hence, his discus-
sion of the same with Claris. After so considering he con-
cluded, however, that it was requiring too many of his
people to repair the rejects he was receiving in filter
boxes, that these four alleged discriminatees were not im-
proving in their work, had no interest in their jobs, and
that this department could not continue to function in this
manner.
Neuman also testified as to the circumstances sur-
rounding the personnel card of Liggens - another argu-
ment made by the General Counsel, as aforestated. When
Liggens initially quit on June 8, Neuman placed the
check on her card indicating she was eligible for rehiring
and had average work ability (G.C. Exh. 13). Neuman
was then asked to explain her rehire on July 19, and he
replied as follows: "Well, when she left I made out this
here evaluation form, and I handed it in, but I never
dreamed I would be getting her back again, because I
wouldn 't have her in my department . She even called me
up and asked me if she could come back to the plant. I
said, `I don 't do hiring . I guess so ,' so the next thing I
knew, she was back." As far as I can ascertain from this
testimony and my observation of his demeanor while on
751
the witness stand, Neuman is a very frank and outspoken
person who is not in the habit , so to speak , of beating
around the bush about anything . His explanation as to
reasons on the above has a reasonable ring or basis, and
the charitable manner in which Neuman acted when Lig-
gens quit cannot and should not be used here to discredit
his subsequent valid reasons for her discharge on August
19. Neuman had nothing to do with her rehire, and never
requested that Liggens be assigned to his department.
If I were to find for the General Counsel in this phase
of the case, I would have to hold that an employee
(Bailey) who passed out authorization cards, thereby
gained immunity from discharge even though she and the
three others here involved were constantly ignoring the
high standards of work performance demanded by
Foreman Neuman. Such is not the law. Under the Act
employees can be discharged for any reason whatsoever
so long as union considerations are not the moving cause.
It has also long been recognized by the Board and the
courts that under the Act it takes more than suspicion and
inferences to prove a wrongful discharge . In the final
analysis here the question for determination is whether
Neuman was motivated by the alleged discriminatees'
poor work habits, and I find that Neuman was so
motivated.
In making my findings as to Bailey, Liggens, Reid, and
Taylor I have specifically and carefully evaluated the
Respondent's animus ' as demonstrated in the preceding
sections of this Decision . I have further considered the
fact that Bailey was known to Neuman as having circu-
lated cards for the Union, and that Bailey and the other
three here involved were frequently together. Neverthe-
less, on the basis of this record , the demeanor of the wit-
nesses, and upon the reasons given above, I must con-
clude and have concluded that the General Counsel has
failed to produce a preponderance of substantial evidence
in proving that the four employees here in question were
discriminatorily discharged. For these reasons it will be
recommended that the allegations in respect to their dis-
criminatory discharges be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above , occurring in connection with the operations of
the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Since the Respondent has dominated and interfered
with the formation and administration of The Committee
and has contributed support thereto , I shall recommend
that the Respondent cease and desist from such conduct
and that it withdraw recognition from and completely dis-
establish The Committee as the representative of any of
the Respondent 's employees for the purpose of dealing
with the Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of work . I shall also recommend , in order to
make effective the interdependent guarantees of Section
7 of the Act, that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed in
said section. N.L.R.B. v. Express Publishing Company,
312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d
532 (C.A. 4).
It will also be recommended that the Company offer
Helen Earnest, Virginia Ebel , and Donald Betten im-
mediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to seniority
and other rights and privileges , and make them whole for
any loss of earnings they may have suffered by reason of
the discrimination against them, by payment to them of a
sum of money equal to that which they would have
earned as wages from the date of the discrimination
against them to the date of offer of reinstatement less in-
terim earnings , and in a manner consistent with Board
policy set out in F . W. Woolworth Company, 90 NLRB
289, to which shall be added interest at the rate of 6 per-
cent per annum as prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Union and The Committee are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Helen Earnest , Virginia Ebel, and Donald
Betten , thereby discouraging membership in a labor or-
ganization , the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By dominating and interfering with the formation
and administration of The Committee , and contributing
support thereto, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(2) of the Act.
4. By interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the conclusions of law , and upon the
entire record in the case, it is recommended that Ampex
Corporation , Elk Grove Village Division , its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District No. 8, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO, or in any other labor organization of its
employees , by discharging or refusing to reinstate any of
its employees because of their concerted or union activi-
15 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
ties, or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condi-
tion of employment.
(b) Dominating or interfering with the administration
of The Committee or with the formation or administration
of any other labor organization of its employees, and con-
tributing support to The Committee or to any other labor
organization of its employees.
(c) Recognizing or in any manner dealing with The
Committee, or any reorganization or successor thereof,
as a representative of any of its employees for the pur-
pose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of work.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Withdraw all recognition from The Committee as
a representative of any of its employees for the purpose
of dealing with the Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or other conditions of work, and completely disestablish
The Committee as such representative.
(b) Offer to Helen Earnest, Virginia Ebel, and Donald
Betten immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to
their seniority or other rights and privileges and make
them whole for any loss of pay suffered as a result of the
discrimination against them.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, and all other records necessary to analyze the
amount of backpay due under the terms of this Recom-
mended Order.
(d) Notify any of the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Post at its Elk Grove Village, Illinois, plant, copies
of the attached notice marked "Appendix."15 Copies of
said notice, on forms provided by the Regional Director
for Region 13, after being signed by Respondent's
representative, shall be posted by Respondent and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by other material.
(f) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of receipt of this Deci-
sion, what steps the Respondent has taken to comply
herewith.16
(g) IT IS FURTHER RECOMMENDED that the complaint
in respect to Evelyn Bailey, Mildred Liggens, Birdie
Reid, and Alma Taylor be dismissed.
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 13, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
AMPEX CORPORATION 753
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in District
No. 8, International Association of Machinists and
Aerospace Workers, AFL-CIO, or in any other
labor organization of our employees , by discharging
or refusing to reinstate any of our employees because
of their concerted or union activities , or in any other
manner discriminating in regard to their hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT dominate or interfere with the ad-
ministration of the Committee , or with the formation
or administration of any other labor organization of
our employees , nor will we contribute support to The
Committee or to any other labor organization of our
employees.
WE WILL NOT recognize or in any manner deal
with The Committee , or any reorganization or suc-
cessor thereof, as a representative of any of our em-
ployees for the purpose of dealing with us concerning
grievances , labor disputes , wages, rates of pay, hours
of employment , or other conditions of work.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
the right to self-organization , to form labor organiza-
tions, to join or assist International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization , to bargain collectively
through representatives of their own choosing, or to
engage in concerted activities for the purpose of col-
lective bargaining , or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL withdraw all recognition from The Com-
mittee as a representative of any of our employees
for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours
of employment, and other conditions of work, and
completely disestablish The Committee as such
representative.
WE WILL offer Helen Earnest, Virginia Ebel, and
Donald Betten immediate and full reinstatement to
their former or substantially equivalent positions
without prejudice to seniority or other rights and
privileges and make them whole for any loss of pay
suffered as a result of the discrimination against
them.
WE WILL notify any of the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
union named herein or any other union.
Dated By
AMPEX CORPORATION
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
828-7570.