Anchor Wire Corp. of Tennessee

National Labor Relations Board - Board Decisions

Sep 23, 1969

178 N.L.R.B. 570 (N.L.R.B. 1969)

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anchor Wire Corporation of Tennessee and Ernest
M. Janco . Case 26-CA-3237
set forth in the Trial Examiner's Recommended
Order.
September 23, 1969
DECISION AND ORDER
BY MEMBERS FANNING , BROWN, AND JENKINS
On June 5, 1969, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief. 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the
Decision. the exceptions, briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Anchor Wire Corporation
of Tennessee, Nashville, Tennessee, its officers,
agents, successors, and assigns, shall take the action
'Respondent ' s allegation that the Trial Examiner acted improperly
during the hearing is not substantiated in Respondent 's brief or by our own
examination of the record Accordingly we rind no merit in this allegation
'In view of the credited testimony to the effect that union adherents
Janco and Johnson would be terminated because of their organizational
efforts and support for the Union , the interrogation of employees about the
Union, and for other reasons detailed by the Trial Examiner in his
Decision, we conclude, in agreement with the Trial Examiner, that the
Respondent was discriminatorily motivated in terminating Janco and
Johnson on December 10, 1968
Respondent has moved to supplement the record by affidavit or
alternately to reopen the record for the taking of additional evidence about
posthearing developments it alleges would support its contention that the
terminations were prompted by economic considerations and a change in
its operations
Even assuming , arguendo , the facts as set forth in the proftered affidavit,
it would not in our view affect our conclusion that the terminations were in
fact discriminatorily motivated It is possible, however , that such
additional evidence may be relevant in determining the extent and duration
of our remedial order Iheretore , the motion to supplement the record or
alternatively to reopen the record for such additional evidence is denied
without prejudice to submission of such information in subsequent
compliance proceedings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON , Trial Examiner : Hearing was held
before me on March 18 and 19, 1968,' in Nashville,
Tennessee, upon a complaint issued by the General
Counsel of the Board.' The complaint alleges certain acts
of coercion upon the employees, and the discharge of two
employees, in violation of Section 8(a)(1) and (3) of the
Act At the hearing, all parties were represented and were
afforded full opportunity to present relevant evidence and
to argue orally on the record. After the close, briefs were
filed by General Counsel and Respondent, which have
been duly considered.'
Upon the entire record in the case, and from my
observations of the demeanor of the witnesses on the
stand , I make the lollowing.
FINDINGS O1' FACT
1. THE BUSINESS OF RESPONDENT
Anchor Wire Corporation of Tennessee, herein called
the Respondent, is engaged in the manufacture of wire
cable and wire products at its plant in Goodlettsville,
Tennessee . During the year preceding issuance of the
complaint, Respondent had a direct inflow and a direct
outflow in interstate commerce of goods and materials, in
each instance , valued in excess of $50,000. Respondent
admits, and 1 find, that it is engaged in commerce within
the meaning of the Act.
11 THE LABOR ORGANIZATION INVOLVED
District Lodge No. 155, International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the Union , is a labor organization within the
meaning of the Act.
111. THE UNFAIR LABOR PRACTICFS
A. The Essential Issues
On August 28, a Board election in a production and
maintenance unit was conducted, in which 18 votes were
cast against the Union, 14 for the Union, and one ballot
was void ' General Counsel alleges that Respondent
committed violations of Section 8(a)(I) and (3), by
engaging in coercive interrogation of employees prior to
the election, and following the election, by threatening the
employees with discharge and by discharging Ernest M.
Janco and Odie Johnson , Jr., because of their union
activities. It is further alleged that, for unlawful reasons,
Respondent failed to offer Janco and Johnson other plant
jobs available at the time of their discharge, and that it
prevented them from applying for such jobs for which
'All dates are in 1968 unless otherwise noted
9rhe charge was riled and served upon Respondent by registered mail on
December 16, the instant complaint is dated February 7, 1969
'Respondent's brief consists of a short generalized statement of its
economic defense to the alleged discriminatory discharges
'No objections were tiled
178 NLRB No. 93
ANCHOR WIRE CORP. 571
they were qualified. Respondent denies the alleged
violations. It affirmatively defends on the basis that Janco
and Johnson were terminated for legitimate business
reasons, in that they were replaced by new personnel with
greater skills needed under a reorganization program for
developing new products The case entirely involves
questions of fact, including that of Respondent's
motivation for the discharges. For the most part,
credibility conflicts arise from the material evidence.
These have been resolved upon analysis of the pertinent
testimony, the manner of its presentation, the demeanor
of the witnesses, the inherent plausibilities, and the total
record in the case.
B. The Interrogations
In early August, Respondent's president, James W.
Hogg, approached Mildred Hall, a machine helper, at her
work station. He asked if she would "volunteer" to come
into his office of her "own free will." She consented In
his office, he inquired, "What is wrong out there?" She
questioned whether he was referring to the Union, but he
did not respond directly. For over 2 hours, they discussed
various conditions in the plant. When she was about to
leave, he said he thought a lot of her and that- "If this
other comes in here they'll he something come in between
us that we can't sit down and talk like this."
At the end of July, Hogg escorted Altie Martin from
her work area to his off-ice, after asking if she would go of
her "own accord " In his office, they conversed for about
an hour. He asked her whether she liked her job She did.
He asked if her husband was a railroad man, and if he
was a union member. She said she supposed he "belonged
to the Union." He asked what she thought about the
Union in the plant, and "what they wanted out there." To
both questions she replied that she did not know. Asked it
she had any complaints, she mentioned only that she had
not received a raise that year, while it had been given to
the other girls in her area. He also inquired as to her
former employment, although she had been an employee
of Respondent for 6 years.
In mid-August, Hogg similarly approached Janco (one
of the subsequent dischargees). After first declining, Janco
agreed to talk in the private office, with Hogg repeatedly
stressing that it was on Janco's "own free will." Their
discussion lasted about 6 hours. Janco was asked why he
wanted a union, and why the employees wanted one. Hogg
mentioned "all kinds of things" Respondent had done for
the employees, as well as certain special favors and
considerations done for Janco. He couldn't understand
why they wanted a union. He asked Janco if he could
"pinpoint people that he should talk to in the plant."
Hogg was present throughout the hearing. He testified
he did not recall their conversation as to what Hall said
about the Union, but denied that he had asked her "what
was wrong out there." As to Martin, he had "heard about
this Union thing," and he called her into his office and
inquired whether she had a "wage problem", as he wanted
to explain how the rates were set. "It kind of needled
[him] about the fact that if the Union got in there maybe
she would improve her wage rate." She volunteered the
information about her husband as a union railroad man.
Concerning Janco, Hogg did not deny the above-described
testimony. In his own brief version, he related, inter a/ia,
that Janco pointed out that he was not involved in the
Union, but volunteered that he was asked to appear as the
Union's observer in the forthcoming election. Also Janco
stated his hopes of getting to $3 an hour (as compared
with his present rate of $2.50), and of getting into
management. Hogg explained that, as chief executive, he
had to be in his office and that he raised the question of
Janco coming of his "own free choice" because his
attorney advised him to do this.'
This evidence plainly shows that Hogg engaged in
systematic interrogation of individual employees within
the confines of his office, a locus of high management
authority That these employees agreed. in the words of
Hogg, to come of their own volition scarcely establishes
the element of full consent Nor in any case can it serve to
absolve or mitigate the effects of his purposeful personal
questioning regarding the Union Accordingly, it is found
that Hogg's conduct was violative of Section 8(a)( I), (a) in
the series of coercive interrogations, as described, and (b)
in seeking to enlist Janco in effect as an informer to
identify the prounion employees with whom Hogg "should
talk to out in the plant."
About a week before the election, Eugene Macquade.
plant engineer and supervisor of Janco, had a discussion
in his office with Janco concerning the Union. Macquade
asked how he felt about it. and whether he thought the
Company or the Union would win. On frequent occasions
during this period, Janco went into Macquadc's office
where, among other things, they talked "quite a bit"
about the Union Macquade's general denial that he ever
had any conversations with Janco on the subject of the
Union is not credited ' When considered in conjunction
with the preelection interrogations of Janco and other
employees conducted by Hogg, and in light of the entire
record, I find that Macquade's particular questioning of
Janco as to his union sentiments was, at least in tendency,
coercive.
C The Threats
In mid-September. Macquade spoke to Janco in the
presence of Macquade's assistant, Henry Zicmak, and
Odic Johnson (the other subsequent dischargee). He said
that if Janco had gone along with Hogg (at the time he
spent 6 hours in Ho,-,g's office before the election), he
would have come out "smelling like a rose "' In total
context, a reasonable implication of this statement is that
if Janco had agreed to oppose the Union and "pinpoint"
the pro-Union people for Hogg, he would have been
substantially rewarded, and the converse applied because
he had failed to do so.
In November, Macquade told Janco that Respondent
was going to get rid of either Janco or Johnson. A few
days later, about November 15, he told Janco and
Johnson that they were both going to be discharged, and
advised them to start looking for a job. Also about
November 15, Macquade informed them, as follows. (a)
Morgan Jones had gone into the front office and told
them (i.e.. management) that Janco and Johnson had
signed him up to join the Union, and had signed up other
members. (h) In Hogg's oflicc they had a list of 14
employees who voted for the Union: they had already
gotten rid of two of these employees; they would like to
'To the extent of any tonnict , I accept the testimony of the employees in
question
'Credibility findings contrary to Macquadc are made as to other issues
t.onsidered infra
'Johnson gave this testimony , but was unsure of the dates , generally
estimated as in November However, he indicated there were two similar
conversations "when they were talking about the rose " Johnson's affidavit
given to the General Counsel (as read into the record ) refers to such a
conversation about 3 weeks after the election Ziemak did not testify
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get rid of all within a year; and Janco and Johnson would
be next. Later in November, substantially the same
remarks as above were reiterated by Macquade."
The foregoing, which is credited,' establishes that
repeated threats were made by Respondent to discharge
Janco and Johnson and other employees who had voted
for the Union in the Board election. These alleged
violations of Section 8(a)(1) are therefore sustained.
D. The Discharges
Janco commenced his union activity in mid-July. Odie
Johnson and Kenneth Brown enlisted him in the campaign
to distribute union cards and "sign up members,"- which
he did. After Johnson had unsuccessfully solicited Morgan
Jones, Janco "got him to sign" early in August. At the
election, Janco acted as the Union's observer Johnson
was similarly active on behalf of the Union.
Janco was employed in Respondent's machine shop for
over 7 years He had performed production work on
Saturdays and Sundays when called upon, and had
experience in running many of the production machines.
In 1961. he took courses at night on the theory and
operation of standard machine shop equipment. At the
plant, he operated a South Bend lathe, bench lathe,
milling machine, drill press, shaper, surface grinder, and
"do-all" (an electrical saw). It is clearly evidenced that
Respondent's machine shop equipment was not suitable
for working to close tolerances.'° Among his other duties.
Janco set up, repaired, and maintained the production
machinery, made and kept a supply of parts, and
participated in building new machines. During his last 3
years, his work did not require close supervision. He was
classified as "Machinist Helper A" and, at the time of his
discharge. received $2.50 an hour, the highest wage rate in
the plant Johnson had 6 years of employment with
Respondent--the first 3 in production work and thereafter
in the machine shop. He was classified as "Machinist
Helper B" at the rate of $2.30, with duties substantially
the same as Janco's, except that he apparently required
closer supervision.
Macquade regularly performed work as the principal
machinist, and his assistant, Ziemak, likewise functioned
in a machinist's capacity John T. Heaney was the
production manager. Gordon J. Rappugn held the office
of treasurer, and with Hogg, constituted the executive
committee. It is evident that Macquade and Heaney were
included in top management discussions.
In 1967, Macquade told Hogg that Janco was "pretty
well on the way," and that they were just starting to break
in Johnson. However, it was not right to call them
"machinists," and so they remained or were then
classified as helpers. In November 1967, general pay
raises were given out to employees, graded in accordance
with job evaluations made by a committee " Janco and
Johnson were awarded substantial increases .'2 About
September 1968," Hogg asked Macquade to evaluate the
technical employees. At this time, Macquade said Janco
was "fairly good," but still could not be classed as a
"qualified machinist." In consequence of this discussion
and evaluation, Hogg told Macquade that Janco and
Johnson would have to be let go, when a replacement was
'Based on the testimony of Janco and Johnson
'Macquade disavowed any discussion with Janco about the Union, as
previously noted , and gave general denials to each of these incidents
"No change in this equipment was contemplated among Respondent's
projections.
obtained. But Macquade did not so advise them. as he
was instructed, because he wanted to do it "softly." He
merely told Janco and Johnson that "it they heard of a
job coming up . . . to take it," and he would help them
with references. There were instances in which he allowed
Janco to take time off (without pay) in search of
employment.1" Macquade testified that, beginning in
September, for a period of 3 months, he was consulted
about hiring new personnel. He interviewed four
applicants for a machinist's job. About October, he told
Hogg that Frank Dodd -'should probably work out."
Hogg's testimony is at variance. At a meeting late in
October, he, together with Rappugn and Macquade, made
the decision to discharge Janco and Johnson and to look
for a qualified machinist to supplant them. A letter from
an employment agency dated October 24 confirms the
qualifications given by Hogg that day in a request for "a
graduate mechanical engineer" and a "qualified
machinist " Hogg interviewed six machinist applicants,
including Dodd, who were referred by the agency. A
mechanical engineer . Schlemm, was not actually hired
until March 10, 1969.
Hogg admitted that, in the interview, he asked Dodd
how he felt about unions, and was satisfied with his
answer that he would act in accordance with his best
interests." While General Counsel asserted at the hearing
that no specific violation is alleged as to the interrogation
of Dodd, the evidence is pertinent to the issue of
Respondent's overall motivation.
Other discussions with Janco and Johnson during this
time, involving threats of discharge, have already been
described. In addition, Janco credibly testified that, about
September 6, he went in to see Hogg and expressed his
concern that the employees were not talking to each other
as they did before the election. Hogg said that he shared
his "happiness only with people who were on the winning
team," that Janco was a good employee, had good
leadership, and knew his job well, but he would make a
better employee for another employer because he was not
happy on his job. Janco then related this conversation to
Macquade on the same day, commenting that, "I guess
I'd better find another job." On December 9, Janco was
told by Macquade that Dodd was coming in at 4 p.m.,
and "this would probably be the end." That evening he
telephoned Macquade at home and inquired if Dodd had
been hired. Macquade asked him to come out to his house
and they would talk. At Macquade's, Janco was told that
he and Johnson would be discharged the following day.
but not to say anything when he went back to the plant."
However, Janco gave the information to Johnson the next
morning. During the day on December 10, Janco and
Johnson received termination slips, each stating "Did not
"Hogg described the committee as consisting of himself, Macquade,
Heaney, Mrs Davenport , and Janco
"Janco's rate was raised by 24 cents
"Hogg put the date as late October, and Macquade ultimately as August
or September
"Johnson testified that he refused Macquade's suggestion to look for
work
"Dodd was given written tests by an industrial psychologist retained by
Respondent Such tests were not given to Janco and Johnson , nor it would
appear to any incumbent personnel The psychologist's report is dated
December 3, 1969. Hogg's attempted justification for his questioning Dodd
concerning unions, on the basis that it was indirectly suggested by the
psychologist for a valid reason , is rejected as unworthy of merit or
credence Dodd was not called to testify.
"Macquade testified that he then told Janco his discharge was "due to
the new equipment coming in, and stuff, that we needed more skills."
ANCHOR WIRE CORP.
have training, education, and skill level requirements for
changing business needs, which requires engineer and
machinist. 17
Dodd is paid a yearly salary of about $7,000.18 As later
stipulated, Johnson earned $6,150.81 for 1968, which
presumably was less than the earnings of Janco, paid at a
higher rate." Macquade testified that Dodd had done only
one thing different from Janco and Johnson Since about
March 1969, he has made some "prints" in connection
with the design of a "new product" he suggested to
Respondent. However, Macquade could not approximate
the amount of time Dodd spent in such work, there has
been no occasion for Dodd to perform any work from
blueprints or drawings; and he could not say whether the
expectations have been borne out concerning Dodd's
ability, as to which there have been some disappointments.
Since at least 1961, Macquade has not worked from
blueprints in the machine shop, althoagh he has done a lot
of building and revamping of machines. Despite Hogg's
vague estimates, I do not find as a significant factor in
any future plans of Respondent the use of blueprints in
the regular machinist's work in the plant. Nor has it been
demonstrated that the qualifications of Dodd are
materially greater than those possessed by Janco and
Johnson for the work to be done on the machine tools
available. The professional mechanical engineer , Schlemm,
who was hired 3 months after the release of Janco and
Johnson, cannot plausibly be regarded as a replacement in
the performance of any of their duties.
In 1964. Janco had engaged in a fist fight on company
property and was told that, if it happened again , he would
be terminated. Prior to that incident, he had been
discharged for gambling on the job, but was reemployed.
In July or early August, Mildred Hall informed Hogg that
Janco told her of an "affair" " he had (in the summer of
1967) with a female employee in the plant. Macquade,
evasive in his testimony, ultimately indicated that he was
fully aware of the circumstances at the time; and likewise.
as I find, was Hogg. Hogg testified that his first
information of the "problem" came from Hall, that he
inquired no further into the matter, but that he and
Heaney then and there determined that if Janco were ever
terminated, he would not be hired back for this reason.
The same policy would be applied to the female employee
involved, who was still employed. Respondent does not
allege these incidents as reason for Janco's discharge.
Rather, it advances the theory, in a form and for purposes
which are less than clear, that Janco. now having been
terminated , is unsuitable for further employment. At this
point in the consideration of the evidence, it appears to
me quite plain that Respondent is seizing upon any straw,
however ancient and ambiguous , as a makeweight to
justify a refusal to reinstate Janco. These contentions,
"Macquade 's affidavit dated January 24, 1969, as read into the record,
states the following Janco did not come to his home in the past year or at
any time surrounding the date of his discharge Janco and Johnson did not
know before receiving their termination slips on December 10 that they
would be released that day. He, Macquade , did not know until that
morning that Dodd had been chosen to take their places On the day
before, he had no idea a man was about to be chosen . Macquade testified
that, in reviewing his affidavit at home in preparation for the hearing, his
wife refreshed his recollection that Janco had been there I do not credit
this explanation , nor Macquadc 's testimony generally msofar as it presents
matenal conflicts.
"Hogg's testimony is that Dodd was engaged , under the reorganization,
as a member of management , and has attended the regular management
meetings . Rappugn stated that Dodd was first told on January 10, 1969,
that he was part of management
"Hogg had earlier estimated that each made about $5,000
573
devoid of merit, form a part of the entire record in
assessing the validity of Respondent's general economic
defense. In General Counsel's case in chief, a strong
prima facie showing of the alleged violations has been
made out
In considerable and attenuated detail, encompassing a
company history over several years, Respondent has
presented its reasons in this record for the discharge of the
two employees classified as machinist helpers. The
evidence consists principally of internal management
discussions and conclusions related in the testimony of
Hogg." In 1966, a total reorganization was commenced
principally for the purpose of developing new product
lines, and plans have been in progress since then. Hogg
became president and Rappugn, treasurer , the two
constituting the executive committee, and for all that
appears, the controlling stockholders and management of
the corporation. It was not until June 1968 that a Board
of Directors' meeting was convened wherein Hogg and
Rappugn presented their ideas for the production of about
40 new products which they had "mocked up." It was
resolved at this meeting to "study" the technical problem,
take an audit of the technical talent of the plant, do what
was necessary to move the planned products ahead, and
report back to the directors 22 In late October, an informal
meeting was held, also attended by Macquade Final
decisions, in oral form, were then made to effect the
"reorganization,' and to purchase the necessary new
equipment Responsibilities were reassigned by setting up
a "development group," consisting of Hogg. Macquade,33
and a graduate mechanical engineer: and a "maintenance
machine shop services" group consisting of Ziemak in
charge and a "qualified machinist."
The term "new products" as used by Respondent was
not clearly defined. Rappugn testified that, at the time of
the hearing, the Respondent manufactured about 50
products, that almost all of them were being produced in
1961, and that on one product line packaging changes
were made but that the product was the same. Hogg
listed, as of the hearing, about 40 "new items," but when
closely questioned in concrete terms, the following
testimony emerged ' Many of the items are basically the
same, with minor variations, as were made in the prior
years. Most are projected into the future. Some are going
to be completely purchased. Some are dependent upon the
lease and purchase of certain machines as to which firm
orders have not yet been placed.2' Some require the design
and manufacture of parts in the plant, but there is no
showing that any such work had yet been done All that
appears to be seen, of any substance representing a
departure from normal overall operations. is a new
packaging process in the stage of projection for certain of
the old products.
"A term employed by Respondent 's counsel in leading questions
Pursued by Respondent at some length, the evidence does not indicate the
nature of the offense beyond the use of this term, and consists only of the
vaguest innuendos
"It must be noted that, although repeatedly cautioned by the Tnal
Examiner as to the effect upon the weight to be given such testimony,
leading questions were utilized to a substantial extent by Respondent in
eliciting evidence from Hogg
"The minutes of the meeting were not produced , no attempt was made
to show the extent of partic ipation of other directors at the meeting, nor
were the subsequest actions reported back to the Board of Directors
"Previously called the plant engineer, Macquade was given a new title in
January 1969 of assistant to the president on Developing and Engineering
"The lease of two impact machines, still needing an imprinter, and
conditional upon Respondent's approval of the art work, "may arrive" in
August, they hoped to get by January 1970 a four slide machine , for which
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "reorganization," long in process, was
implimcnted, following the election among 33 employees
in late August, by a redescription of responsibilities of a
small contingent of management officials, and the
eventual hiring of a mechanical engineer. So far as
concerned the small machine shop, the basic skills and
functions performed by Macquade and Ziemak, and by
the subordinate help, have remained essentially
unchanged. In the entire plant, the reorganization
materially affected only Janco and Johnson. Despite many
years of experience with Respondent, their machinist skills
were purportedly regarded as inadequate for the
development of the "new products,"- the actual nature of
which has been described. Although Respondent's plans
were under development since 1966, it averred that this
knowledge of the inadequacy of Janco and Johnson
effectively came to light only after the formality of a
Board of Directors' resolution in June 1968 to conduct a
"study" of the technical talent in the plant. Evidence of
the study which was made is an exercise in ambiguity.
After the election, a decision was soon reached to
terminate these two employees and replace them with a
"qualified machinist " Without disclosing such a reason,
they were advised to seek other employment. Their
separation was then consummated after the studied
processing and hiring of Dodd, whose qualifications and
duties have been shown to involve no significant
differences, past or prospective, from those of Janco and
Johnson.
The question is not one of judging the correctness of
Respondent's business decisions, but whether its proffered
economic justifications for the discharge of these two
employees are legitimate and credible in context of the
entire record. The contrary is found. In all, it seems quite
apparent that the grounds advanced by Respondent,
considering as well the character and probity of the
evidence, are but an elaborate effort to cloak and
obfuscate the true reasons for the discharge. Respondent's
animus and motivation to eliminate any future threat of
union representation are fairly demonstrated. Indeed, as
found, Janeo and Johnson were apprised of express threats
of termination because of their soliciting activities in the
election campaign The element of timing in Respondent's
actions reinforces a conclusion of discrimination.
Accordingly, in the discharge of Janco and Johnson on
December 10, Respondent violated Section 8(a)(3), as
alleged.
Additional allegations are made that Respondent
prevented Janco and Johnson from bidding on certain
production jobs available at the time of their separation.
Testifying from company records, Rappugn disclosed that
Kenneth Brown, a buncher operator, left Respondent's
employ in mid-September, and Robert Huddleston, a
heavy packer, left in mid-October. Janco and Johnson
each testified that in the latter part of November the jobs
of buncher operator and heavy packer were posted on the
bulletin board, that these vacancies were not filled by
Respondent, and that they were experienced in performing
such work, but could not bid on these jobs because of a
new employment policy instituted by Respondent that
November. Heaney testified that only the position of
heavy packer was posted on the November 1, that no bids
were received, and that several days later Respondent
decided not to fill this job. Rappugn further revealed that
the order has not yet been placed , these are the "big outside purchases " In
this line of testimony especially , Hogg impressed me as an unreliable
witness
no new production employees have been hired since the
discharge of Janco and Johnson, excepting certain
part-time and temporary employees whose tenure was
relatively brief. However, Respondent did "realign" a
number of production jobs among several of the
incumbent employees in the plant.
Respondent posted in pamphlet form and orally read to
the employees a new employment policy effective
November 1 for a period of 14 months. The previous
written policy had been stated as effective for 12 months
ending December 31. Hogg testified that the decision was
made at such time because they wanted "a total change of
employment policy and the reorganization . . at the same
time so we could get on with developing the new products
and get them on the market." In relevant part, the new
policy disallows an employee to bid on a lower paying job,
and changed the rule of plantwide seniority to
departmental seniority. In the new policy three
departments or "categories" are set forth- (1) machine
shop personnel (consisting of two employees), (2) working
foreman, shipping clerk and receiving clerk (consisting of
three employees), and (3) all other personnel in
production Theretofore Janco and Johnson were among
the most senior employees on a plantwide basis; under the
new rule they were reduced as the only employees on a
seniority list of the machine shop "department." Hogg's
explanation for the change is unacceptable in light of
Respondent's unlawful purposes evident in this time
period, particularly its intent to eliminate Janco and
Johnson." The finding has been made that Janco and
Johnson were unlawfully discharged from their machinist
jobs, and their reinstatement will be recommended herein.
It is therefore unnecessary to pass upon whether
Respondent contemporaneously acted to keep them out of
the plant by blocking their acquisition of lower paying
production jobs. However, as properly within the
framework of this allegation in the complaint, it is held
that Respondent discriminatorily deprived Janco and
Johnson of their plantwide seniority rights in violation of
Section 8(a)(3).
W. THE EFFECT OF THE UNFAIR IABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent in section 1, 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 of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Particularly
by reason of the discriminatory discharges which go "to
the very heart of the Act," a broad order appears
warranted."
"It is also observed that, in a preface to the new employment policy,
there is now added (following the election ) a lengthy statement in the
nature of a permanent campaign specifically directed against union
organization by employees.
"NLRB v Express Publishing Co. 312 US 426, N L.R.B v
Entwistle Mfg Co, 120 F.2d 532 (C A. 4)
ANCHOR WIRE CORP. 575
It has been found that Respondent unlawfully
discharged Ernest M. Janco, and Odle Johnson, Jr., in
violation of Section 8(a)(3) and (1) of the Act. It will
therefore be recommended that Respondent offer these
employees 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 earnings suffered by
reason of the discrimination against them, by payment to
them of a sum of money equal to that which they would
normally have earned, absent the discrimination, from the
date of the discrimination to the date of the offer of
reinstatement, less net earnings during such period, with
hackpay computed on a quarterly basis in the manner
established by the Board in F W. Woolworth Company,
90 NLRB 289. Backpay shall carry interest at the rate of
6 percent per annum, as set forth in Isis Plumbing &
Heating Co , 138 NLRB 716. It is further specifically
recommended that Respondent restore their seniority
standing on a plantwide basis to the full extent that it
existed before Respondent's change in employment policy
made eflective on November 1, 1968, and notify Janco
and Johnson in writing to such effect. It will also be
recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of these
recommendations.
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following.
CONCLUSIONS OF LAW
1 Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating Ernest M. Janco and Odic Johnson,
Jr , and by reducing their seniority rights, thereby
discouraging membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By the foregoing, and by other acts and conduct
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
(b) Discouraging membership in District Lodge No.
155, International Association of Machinists and
Aerospace Workers, AFL-CIO, or in any other labor
organization, by discharging employees, or reducing their
seniority rights, or in any other manner discriminating in
regard to hire or tenure of employment or any term or
condition of employment.
(c) In any other manner interfering with. restraining, or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2 Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer Ernest M. Janco and Odic Johnson, Jr.,
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 earnings, in the manner set
forth in "The Remedy" section of the Trial Examiner's
Decision.
(b) Notify the above-named employees, in writing, that
their seniority standing on a plantwide basis, as it existed
prior to November 1, 1968. has been fully restored.
(c) Notify 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.
(d) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in "The
Remedy" section of the Trial Examiner's Decision.
(e) Post at its Goodlettsville, Tennessee, plant, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 26, shall, after being duly signed by Respondent,
be posted immediately upon receipt thereof, in
conspicuous places, and be maintained for 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.28
"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
Appeals Enforcing an Order" shall be substituted for the words " a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board„
this provision shall be modified to read " Notify the Regional DireLtor for
Region 26, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent, Anchor Wire
Corporation of Tennessee, Goodlettsville, Tennessee, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and sentiments: requesting or instructing
employees to engage in surveillance or to act as informers
regarding union activities of other employees, or
threatening employees with discharge, job loss, or other
reprisal for engaging in union activities.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
employees that:
After a formal trial before a Trial Examiner of the
National Labor Relations Board at which all sides had the
chance to present evidence, it has been found that we
violated the law and we have been ordered to post this
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice to inform our employees of their rights and to
honor what we say in this notice
WE WILL NOT ask you anything about a Union or
who is in the Union or who favors the Union in a
manner which would coerce you regarding your rights
under the Act.
WE WILL or ask any employee to spy on other
employees and report to us who joins the Union or who
works for it.
WE WILL NOT threaten to fire you, or punish you or
treat you differently in any way, if you joined or
worked for any Union.
WE Wii.i No, discharge, or reduce the seniority
rights, or otherwise discriminate against any employees
in order to discourage membership or support for
District Lodge No. 155, International Association for
Machinists and Aerospace Workers. AFL-CIO, or any
other labor organization.
We WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed employees in the National Labor Relations
Act, which are as follows-
To organize themselves.
To form, join, or help unions.
To bargain as a group through a representative
they choose.
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
Since it has been found that we unlawfully fired
Ernest M. Janco and Odie Johnson, Jr., WE wiii, offer
to give them back their jobs and seniority, and WF. WILL
pay them for the earnings they lost, plus 6 percent
interest.
WE WILL restore to Ernest M. Janco and Odie
Johnson, Jr., their full seniority standing on a plantwide
basis, as it existed before our change in employment
policy made effective on November I. 1968.
Wr WILL notify Ernest M. Janco and Odie Johnson,
Jr. 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 of our employees are free to become or remain, or
refrain from becoming or remaining, members of any
union of their choice.
Dated By
ANCHOR WIRE
CORPORATION OF TENNESSEE
(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, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.