Borg-Warner Corp.Download PDFNational Labor Relations Board - Board DecisionsAug 31, 1966160 N.L.R.B. 790 (N.L.R.B. 1966) Copy Citation 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make our employees whole for their loss of earnings suffered as a result of our withholding their pay increase from November 20, 1964, to Janu- ary 16, 1965. WE WILL notify Nicholas Pingryn if presently serving in the Armed Forces of the United States of his 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 Sheet Metal Workers International Association, AFL-CIO, or any other labor organization. CLIMATE CONTROL DIVISION, THE SINGER COMPANY (FORMERLY REMINGTON DIVISION, THE SINGER COMPANY), Employer. Dated------------------- By------------------------------------------- (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 pro- visions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Tele- phone 842-3112. Atkins Saw Division of Borg-Warner Corporation and United Steelworkers of America , AFL-CIO. Case 26-CA-2174. Au- gust 31,1660 DECISION AND ORDER On April 7, 1966, Trial Examiner Boyd Leedom issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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 [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modification. 1. The Trial Examiner found that Respondent had engaged in sur- veillance in violation of Section 8(a) (1) of the Act by its manage- ment officials' arranging With maintenance clerk Bobby Helms to attend a union meeting and report back events of that meeting to 160 NLRB No. 56. ATKINS SAW DIV. OF BORG-WARNER CORP. 791 Helms' supervisor, Julius Hausz. Respondent contends that Helms volunteered to attend the union meeting and report its proceedings, that there is no evidence that it arranged for him to do so, and that its inaction in the circumstances did not constitute an unlawful arrangement with Helms. We find no merit in this argument. The facts show affirmative action by Respondent's responsible officials establishing the existence of an arrangement or understanding with Helms to observe events at the union meeting and to report them to his supervisor. The Trial Examiner based his findings on testimony adduced by Respondent. The testimony of Respondent's witnesses shows that on the morning of July 27, 1965, employee Helms met with Personnel Manager Tom Jones, Assistant Personnel Manager James Wilson, and Helms' supervisor, Julius Hausz, in Jones' office. The meeting came about, according to Supervisor Hausz, after Helms told Hausz earlier in the latter's office, "I have something I want to tell you, but I won't tell you in here. I would like to tell you in the personnel office." Hausz testified that he then telephoned the personnel office and left a message that he and Helms wanted to see Personnel Man- ager Jones, and that Jones returned his call a short while later, tell- ing them to come to the office. In Jones' office, according to Jones, Hausz told the three men present that Helms "wanted to talk with us." Helms told the men that a union was being formed and that he "would like to try to keep it out." Jones testified that he said, "Now, Bobby, I want you to understand that we are not asking you any questions about the union, but anything that you give us is on your own free will and accord," and that Helms replied, "Yes, sir, I know that you cannot question me about the union." Helms told the group in Jones' office about the organizing activi- ties that were going on in the plant, that the employees had not decided on what union they wanted to represent them, that they were talking about the UAW, that they had made a phone call to a union representative, and that "he (Helms) would go to a meeting that was scheduled that night and see what he could learn and come back and tell us." 1 Jones testified that, "At this point I told him that anything that he had to say in this regard, or anything else, as far as that is con- cerned, to please refer to his foreman ...." and that Helms and Hausz then left. Assistant Personnel Manager Wilson, who was standing in the door of Jones' office, testified that he then said, "Thank you, Bobby." 1 Assistant Personnel Manager Wilson confirmed that Helms had said "there would be a union meeting and that he planned to go and that he would go , and, then, he would come back and say who was there and what went on." 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hausz, who is supervisor of the maintenance department, testified that on the following morning, July 28, Helms gave him the names of four employees from the maintenance department who had attended the union meeting the previous evening, that he "thanked him," and later in the morning reported these names to Personnel Manager Jones. On the testimony of Respondent's witnesses, as repeated herein, we conclude that Supervisor Hausz arranged a meeting for himself and Helms with Personnel Director Jones at which Helms told the men he knew of union activities, offered to report further activities, and was told by Jones to make any future report to Hausz. And Helms did this. Whether Helms understood Jones' remarks to him as setting up an arrangement, as the Trial Examiner found, or but an informal understanding, the facts show that Respondent's officials encouraged Helms to report the happenings at the July 27 union meeting and told him expressly to whom to report. We find that, under the fore- going circumstances, Respondent was responsible for Helms' surveil- lance activities, thereby engaging in interference with employees' right to organize in violation of Section 8(a) (1) of the Act. 2. We also find, on testimony credited by the Trial Examiner, that Supervisor McKennon interrogated employee William Hudson about union activities on two occasions in violation of Section 8(a) (1) of the Act. 3. We find that Supervisor McKennon's statement to employees Harry Allen and Robert Little that he knew that they had been car- rying on union activities on company time, that a lot of things went on in the plant that he did not turn in to the office, and that he knew everything that happened at union meetings 15 minutes after they occurred, created the impression of surveillance of union activities, and therefore violated Section 8(a) (1) of the Act. 4. We also find, as did the Trial Examiner, that Respondent dis- charged employee Joe Gunter for discriminatory reasons, thereby violating Section 8(a) (3) and (1) of the Act. [The Board adopted the Trial Examiner's Recommended Order, with the following modifications: [1. Reletter the present paragraphs 1(b) and 1(c) in the Trial Examiner's Recommended Order to read 1(d) and 1(e), respectively, and add the following as paragraphs 1(b) and 1(c) to the Trial Examiner's Recommended Order : ["(b) Encouraging employees to report to Respondent the union activities of other employees." ATKINS SAW DIV. OF BORG-WARNER CORP. 793 [" (c) Giving the impression of engaging in surveillance of employ- ees' union activity." 2 [2. Add the following as paragraph 2(b) and the present para- graphs reletter consecutively : [" (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his 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."] 2 The new paragraphs 1(b) and 1 ( c) will be added as the second and third indented paragraphs of the Appendix attached to the Trial Examiner ' s Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was tried before Trial Examiner Boyd Leedom in Greenville , Missis- sippi, on November 30 and December 1, 1965. The complaint is dated Septem- ber 22 , 1965, and was issued on a charge filed August 12 . The complaint alleges, and Respondent 's answer denies , that Respondent through three named persons in supervisory status violated Section 8 ( a)(1) of the National Labor Relations Act in that the three supervisors interrogated , threatened, and engaged in surveil- lance of Respondent 's employees ; and also that Respondent in violation of Section 8(a)(3) of the Act unlawfully discharged its employee Joe Gunter; all because of the employees ' support of the Union named in the caption hereof, which was at the time engaged in organizing Respondent 's plant. The parties waived oral argument , but the General Counsel and the Respondent have filed briefs . On the entire record, on my observation of the witnesses, and upon due consideration of the briefs , I make the findings of fact and conclusions of law hereinafter set forth ; and recommend that the Respondent be found in vio- lation of Section 8(a) (1) and ( 3) of the Act, essentially as alleged in the complaint. FINDINGS OF FACT AND CONCLUSIONS OF LAW I find that the allegations of the complaint are true with respect to the nature and the volume of business done by the Respondent ( allegations admitted by the Respondent in its answer ) and conclude from such facts that the Respondent at all times material to the issues in this matter was, and now is, an employer engaged in commerce within the meaning of the Act. I find that the Union named in the caption hereof is a labor organization, a mat- ter also admitted by Respondent. The Violations of Section 8(a)(1) Surveillance Through Employee Helms The evidence reveals, and the Respondent admits, that Tom Jones, Julius Hausz, and Darce McKennon are supervisors . Jones is Respondent 's personnel manager; Hausz is maintenance supervisor; and McKennon is tool-and -die supervisor. Bobby Helms , maintenance clerk working under the supervision of Hausz, testi- fied that on the morning of July 27, 1965 , in the room where both he and Hausz work, with no one else present, Hausz said to him "What do you think about what's going on"; and that thereafter , Helms' having inquired as to what Hausz referred , and being advised by Hausz that he was speaking of the Union , an under- standing was reached between them , pursuant to Hausz' suggestion "I want you to come up and talk to us," that they would go to the personnel office where , the wit- ness agreed , he would tell them all he knew about union activity . There is no dis- pute in the evidence that such a meeting was held later that morning in the office 794 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD of the personnel manager with Jones, Hausz, Helms, and James Wilson, assistant to Jones, present. Hausz' testimony concerning the inception of this meeting is different . He testi- fied that Bobby Helms came to him and said "I have something I want to tell you, but I won't tell you in here. I would like to tell you in the personnel office." He testified further that after clearing with the personnel office he and Helms, about 8:30 or 9 o'clock that same morning went to Jones' office; that he started the con- versation by saying that Helms had something to "tell us"; that Bobby then pro- ceeded to state that a union was being formed, that he liked the Company, and did not want any part of the Union and would do everything he could to prevent the Union coming into the plant; that four employees in the maintenance department had pooled their money, paid for a telephone call, and that a union representative from Memphis was supposed to be at a union meeting that evening; that Helms said he was going to attend and would let "us" know what went on. Hausz inter- spersed this recital with two assurances that Jones had said as Bobby was making his revelations, first, "Well, now, Bobby, whatever you tell us is on your free will. We won't ask you to tell us nothing"; and on Bobby's assurance that he would let them know what went on at the meeting, Hausz said that Jones told Helms "Bobby don't tell us. If you have anything to tell, you tell it to Mr. Hausz." Jones' testimony concerning this meeting is substantially in conformity with that of Hausz. He testified that he said, "Now, Bobby, I want you to understand that we are not asking you any questions about the Union, but anything that you give us is on your own free will and accord" and that Bobby replied "Yes, sir, I know that you cannot question me about the union." And Jones testified further that when Bobby said he would go to the meeting and report back that "At this point I told him that anything that he had to say in this regard, or anyhing else, as far as that is concerned, to please refer to his foreman, and with this, Bobby and Mr. Hausz left my office." There is no dispute that Helms attended the union meeting held that evening, and the next morning reported back to Hausz; and Hausz admitted that the infor- mation he obtained from Bobby with reference to the meeting , was transferred by Hausz to Jones. Hausz testified that the next morning "Mr. Helms said that there was four people had attended the meeting from the maintenance department and the four people were Clayton Moss, Carl Pittman, Joe Gunter and Fabik, Sam Fabik, and I thanked him, and, then, I turned around to my desk and that's as I remember it." Joe Gunter is the employee who was discharged on July 29, 1965 (unlawfully as alleged in the complaint), the next day following the foregoing conversation between Hausz and Helms. In the light of what occurred in the meeting with Personnel Manager Jones, the dispute in the testimony between Supervisor Hausz and employee Helms as to who started the conversation that led to the meeting , need not be resolved . The signifi- cant thing is that management personnel entered into an arrangement with an employee for the latter to attend the union meeting and to report back to the employee's supervisor , for the benefit of management , all that went on there. There is no dispute that the arrangement was carried out, that the employee's immediate supervisor, Hausz, obtained the names of four of its employees who attended the meeting, passed that information on to the personnel manager, and that one of the four was discharged the next day. Whether Bobby Helms is the one who first said he wanted to talk to management, of his own volition, or was responding to a question from his supervisor, would bear on the question only whether the spying activities utilized by management, through the employee Helms, were the services of a volunteer or one drafted for the purpose. Thus, assuming that Helms volun- teered information, and volunteered to go to the meeting and report back, Respond- ent in order to free itself of the coercive effect of surveillance, should have indi- cated to Helms that it was not interested in his report or in any information that he had to offer. Thus I find, on the basis of testimony adduced by the Respondent, and concerning which there is no substantial dispute, that Respondent was respon- sible for unlawful surveillance of the union activity of its employees , coercive in effect and in violation of Section 8(a)(1) of the Act. This is not to say that every employer, who receives information volunteered by an employee, violates the Act. Here the surveillance came about through the Employer's arrangement with a vol- unteering employee, according to the view most favorable to the Employer. Jones and Hausz , both being active participants in the arrangement, contributed to this violation. ATKINS SAW DIV. OF BORG-WARNER CORP. ' 795 The Unlawful Interrogation and Threats of Supervisor McKennon The record reveals no intense opposition to the Union's effort to organize the plant by Respondent,, or any widespread flagrant violation of the law. Even the unlawful discharge of Gunter, as hereinafter determined, is one of those difficult cases where reasonable men could say that Respondent had good cause for dis- charge, and equally reasonable men would say that, notwithstanding the lawful grounds for discharge, he was in fact discharged because of his union activity. But the record does reveal opposition on the part of Respondent to the Union, as here found, that exceeded the bounds of lawful conduct. And, as the record reveals, this is not the first time for this employer. The coercive effect of Supervisor McKennon's opposition to the Union is most clearly revealed in his dealing with the employee William Hudson, whom McKen- non supervised. The witness Hudson gave the impression, on the stand, of being nervous, a con- dition I attribute to his mere participation in the proceeding. I credit him with an honest effort to relate the facts as he recalled them in situations between himself and his supervisor that quite obviously were disturbing to him. The differences between the story he told on the stand and the testimony of his supervisor, McKen- non, do not grow out of sharp contradictions of significant parts of their recitals as much as from possible contradictory implications flowing from the total effect of McKennon's testimony, which may fairly be characterized as vacillating and uncer- tain in many parts. Thus McKennon, with some exceptions, merely suggests that certain claims of Hudson were not true. Such suggestions rest on statements of McKennon to the effect that he could not recall having said certain things Hudson claimed he said, that he could not remember all that was said in conversations held so long ago, and that he did not believe he said any such thing. And as indicated there are certain denials by McKennon quite positive in character. Wherever in any significant context there is a conflict between the testimony of Hudson and McKen- non, I credit Hudson. I believe from hearing and observing McKennon testify, that he had a desire to tell the truth, was therefore cautious in his denials, and conse- quently made no positive assertions except where, under the pressure of cross- examination, or in the face of self-contradiction or excessive damage to Respond- ent's case, he testified with some certainty. Out of the testimony of these two witnesses, and the whole record, I find that on one occasion, probably in July 1965, McKennon approached employee Hudson at the latter's workbench, and told him that certain meetings were going on that he did not like, making it clear by implication if not explicitly, that he referred to union meetings and conversations concerning unions, and that many who partici- pated-"loud talkers"-were getting themselves in trouble and that Hudson at this particular time, already plagued with domestic and other troubles, could not afford to have more difficulty. I conclude that his statements on this occasion to the employee were designed to coerce the employee from participating in union activ- ity and that they were not mere reprimands against union solicitation on company time, or failure of work performance. I also find that on this occasion McKennon said in effect that he was not going to let any group, meaning the Union, cost him his job and that the employee might "think the same way also." And that he then and there invited Hudson to consider the matter and make it clear whether he was for the Union or for the Company, that is "which side of the fence you are on." Certain details appearing in Hudson's testimony add to its truthfulness and consti- tute items not likely to form parts of a fabrication. Thus, as he testified, when McKennon spoke to him about a pending divorce and impending remarriage, "I cut him off at that particular time. I says, `Mack, I have an attorney, which will handle my personal life. I will soon have a wife to handle my private life, and you can handle my work life.' " I find from all the evidence that at the time of the foregoing conversation between McKennon and Hudson, the former either had knowledge, or strongly sus- pected, that Hudson was a member of the Union or about to join. I also find that there was a second meeting between this supervisor and the same employee, arranged with some formality and held in the office of Groth, of man- agement, who was out of town at the time. On the basis of the testimony of these two witnesses, the whole record of evidence, and the same considerations of credi- bility hereinbefore noted with respect to these two, I find and conclude that at this time and place the supervisor made an appeal to the employee on the basis of per- sonal loyalty and past and future favors granted and to be granted by the super- visor, and with it a veiled threat, that unless the employee responded favorably, 796 DECISIONS OF NATIONAL LABOR RELATIONS BOAR), there was difficulty ahead . As a whole McKennon's testimony with respect to this second conversation with Hudson does not really refute the proposition just stated, but rather casts the appeal to the employee and a request for cooperation in the context of a reprimand for certain mistakes admittedly made by the employee in his work ; and the promise of future help, and oversight of past errors, as mere sympathetic cooperation (due from any supervisor) if Hudson would overcome whatever was disturbing him and begin to do a better job. There is some support for such claim, but I cannot find this to be the sole reason for the interview. I find and conclude that in the conversation there was not only expressed reference to the Union, but also innuendo that made it clear to the employee, the supervisor was unhappy with Hudson's contacts with known union adherents, namely Harry Allen and Robert Little. Thus I find that Hudson openly dealt with McKennon's complaints, as objections to Hudson's union activity, and that he said in substance at that time to McKennon "Well, Mack, I know what you are referring to. I am sorry that some of these things come up . . . but I have joined. I have signed the union card. My name does not appear on the organizers' list at this time and I shall not try to organize any other employees so long as my name is not on the organizing list . that I would not let the Union interfere with my work . . . that . . . I would do my work to the best of my ability . Mack, I don't know what you want" and that McKennon replied in substance "Well, Bill, you announce which side of the fence you are on and I will do the best" and here, in Hudson's testimony, his statement to the effect that he could not recall exactly what was said, and did not want to hurt anybody with an erroneous statement, is persuasive as to the correctness of his generalization that McKennon gave him the impression that if Hudson would make it clear whether he was for the Company and not the Union some of Hudson's mistakes could be overlooked. I credit this testimony of Hudson and conclude that the statements hereinbefore set forth, and other parts of the conversation in this August meeting, constituted a coercive interference with Hudson's right to support the Union if he so chose. What has been said herein- before concerning the uncertain quality of some of Kennon's testimony has equal application to such of his testimony as bears on the findings here made. I find and conclude that Respondent, through the conduct of its Supervisor McKennon, as hereinbefore set forth, violated Section 8(a)(1) of the Act. Supervisor McKennon's Other Interrogation There is a dispute between McKennon and the two employees hereinbefore named , adherents of the Union, Harry Allen and Robert Little, as to whether the supervisor said to them at their work stations late in July 1965, substantially, that he knew they had been carrying on union activities on company time, that a lot of things went on in the plant that he did not turn in to the office, and that he knew everything that happened at union meetings 15 minutes after it occurred. That McKennon said substantially this is the testimony of Robert Little. I credit his tes- timony and conclude that such statement violated Section 8(a)(1) of the Act in that it constituted a veiled threat to deal with the employees to their detriment with the front office unless they would discontinue the things he did not like that were going on, that is the union meetings. In making this determination I take into con- sideration the other antiunion activity that he, and others of management, were carrying on at about the same time. I also base it on the corroborating testimony of the witness Allen (no reason appearing from the demeanor of these witnesses, or otherwise, why they should be discredited notwithstanding their "pro-union" atti- tude); and because of the unpersuasive quality of the witness McKennon's testi- mony as herembefore set forth. The Unlawful Discharge of Employee Gunter The allegation that Joe Gunter was discriminatorily discharged is considerably harder to resolve than the allegations of violation of Section 8(a)(1). The record contains evidence clearly indicating that Gunter, during his 8 months' tenure with Respondent, was a marginal employee and that Respondent would have been justi- fied in replacing him in his position on this account. After very careful considera- tion, however, of the entire record, including that bearing on his poor performance, and with full awareness of the General Counsel's burden as to proof, I find and conclude that he was not discharged because of the character of his work, but rather because of his activity on behalf of, and his interest in, the Union I make this determination for all the reasons hereinafter appearing. ATKINS SAW DIV. OF BORG-WARNER CORP. 797 Gunter was hired as an instrument man to maintain and service instruments regulating furnaces in Respondent 's heat treating process. He was employed in November 1964 and at the time was admittedly untrained to discharge immediately the full responsibility of his job. In what appears to be a generally prevailing com- pany policy , Gunter was in a probationary period of employment for 90 days. During this time a "Progress Report" on his performance was made in writing, on a company form, and filed for each 30-day period of the 90-day probation. These three reports were admitted in evidence as Respondent 's Exhibits 3(a), 3(b), and 3(c) and indicate the combined judgment of his supervisor , Hausz, his department head , Groth, and Personnel Manager Tom Jones , as to the quality of Gunter's per- formance during each 30-day period . The report made at the end of the first 30 days was identified in the record as Respondent 's Exhibit 3(a), whereas it is actually marked Respondent 's Exhibit 3(b). These three documents are clearly above suspicion, that is, there is nothing whatever in the record to indicate that they were made and entered in any part of a plan to make a case against the employee, and to establish that he was fired for good cause, rather than for his union activity . The first of these reports shows that Gunter was occasionally late or absent , that he was industrious , cooperative , and congenial , that he made "few errors,"-the middle choice of three in the form indicating "quality of work"-a choice between "excellent" and "careless, many errors"; as to quantity of work, it reported him "slow" and the same as to ability to learn; as to safety and house- keeping, it reported him usually very careful as against "careless" and "uses no unsafe practices ." The recommendation in this report as to his future indicated he should be released , in a choice between boxes marked "Retain" and "Release." A footnote to the "release" recommendation was entered in the handwriting of Groth. It states "Mr. Gunter has been found to be quite slow in work produced & ability to learn. If he has not improved within the next 30 days he should be replaced." The report as to Gunter 's second 30 days' employment shows some improvement and the box for "retain " is checked but with this footnote : "There is still consider- able doubt concerning retention ." The report for the last 30 days of the 90-day probation also indicates , without condition , that Gunter should be retained in employment notwithstanding that in several categories of his rating he had moved backward from the 60-day report. The evidence also reflects that, contrary to the prevailing policy , Gunter was not given a merit increase in pay at the end of probation. Still other documentary evidence tends to establish that Gunter was not doing a good job. A longhand memorandum written by Hausz, dated July 13, 1965, mdi- cates that Gunter on this date was loafing , and that the supervisor had warned him about keeping up his work and had told him he would replace him if he did not improve his work. The memorandum included the notation that it should be placed in Gunter 's personnel file, and it was . The evidence reveals, however, and I find , that Gunter was never advised of this memorandum , and it was never shown to him. Respondent 's Exhibit 1 is an interoffice memorandum to G. W . Singley, C. W. Fabel's "boss," from Fabel stating that Joe Gunter 's service had never been good and dealing in some detail with a specific failure on July 26 , 1965. The memoran- dum ends with the sentence "I recommend something be done to correct the situation ." This memorandum of Fabel's to Singley was transmitted by Singley through another memorandum , Respondent's Exhibit 4, to Groth , head of the department in which Gunter worked . In the memorandum of transmittal Singley stated to Groth that he believed the attached letter from Fabel was serious enough that the situation should be corrected . He added that he had heard the problem of Gunter's poor performance discussed too frequently . This memorandum from Singley to Groth is dated July 29, the day Gunter was discharged. In addition to the foregoing documentary evidence bearing on the unsatisfactory quality of the work Gunter was performing, there is evidence in the record, and I find , that from time to time there had been oral complaints made by various persons in management supporting -a conclusion that Gunter was not a top-notch performer. Unlike the three progress reports hereinbefore discussed , made at the end of 30, 60, and 90 days of Gunter 's first employment with Respondent, Hausz' memo that he had warned Gunter for loafing, the memo from Fabel to Singley , and the memo of transmittal from Singley to Groth, are not above suspicion . That is to say, each of these statements came into existence so closely around the time of Gunter's first and continuing union activity , that any reasonable trier of facts , under all the 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances present, would be bound to wonder if they may not have been executed only for the special purpose of establishing a good cause for discharge and to negate any thought or conclusion that Gunter was actually discharged because of his union activity. I do not, however, make a finding that this was the sole purpose for which these documents were issued, inasmuch as I do not believe the record of testimony warrants any such inference. Such conclusion would depend in part on speculation. I consider them valid in some respects. On careful analysis, these three documents really only reaffirm the fact established by the other evidence that Gunter was not a good employee. It does not follow, however, that they justify a conclusion that they were the actual trigger of the discharge. The uncertainty as to the full purpose for which these memorandums were written detracts from the weight given them as actual cause of Gunter's termination. Respondent tolerated marginal performance from Gunter for 5 months beyond his 90-day probationary period. I am not persuaded that the incident of which Fabel complained in the July 27 memo was sufficiently serious, even when con- sidered with the complaint of loafing, to bring about the summary discharge in the manner in which it was executed. Hausz' memorandum on Gunter's loafing is suspect because of the form in which it was made and the use made of it. Normal procedure with respect to the loafing incident I find, and as to other error as well, would have been to complete an "Employee Warning Notice," a form used by Respondent to advise an employee of failure of satisfactory performance. When this form is used a copy is furnished to the employee. Several such notices were admitted in evidence with respect to other employees to establish company policy, and to show that several other employ- ees had received more than one, some four or five, of these notices, and yet had not been discharged. Respondent contends that these notices were used only as to "production" employees, but the record warrants no conclusion of such limited use, and I find to the contrary. Groth testified the forms provided the usual way of warning an employee, and that they should have been available to Hausz; Bobby Helms, Hausz' clerk, testified they had a supply of the forms in Hausz' office; and Hausz himself testified he had "given" a written reprimand to another employee in his department, Sam Fabik. If in fact, it was Respondent's intention to get rid of Gunter for his union activity, as I find, and to make as good a record as possible of discharge for law- ful cause, the unusual form of Hausz' memorandum on Gunter's failure in the loafing incident served Respondent's purpose well. It was less likely to alert Gunter to imminent discharge, and provoke him into seeking assistance from the Union, than the usual form of notice, of which he would have received a copy. The failure to use the regular form is a factor in the conclusion I draw that Gunter was actually discharged for his union activity. It is also noteworthy, in the face of the record of 8 months of unsatisfactory service by Gunter, no "Employee Warning Notice" had ever been given. to him and that within the brief time of his union activity three written memorandums from supervisory personnel, concerning him, were put in circulation. Other factors follow. There is no contention Gunter was ever issued a written warning that if his work did not improve he would be discharged. Hausz' memo- randum of July 13 recites that Hausz orally advised Gunter that if his performance did not improve he would be replaced; but Gunter denies categorically that he was ever told any such things; and Hausz' testimony is to the effect he never actually warned Gunter of discharge in so many words. I credit the testimony of Gunter that he was never warned. Finding as I do that there was no warning given the employee that he would be discharged, the discharge came too suddenly to be action of a fair and reasonable employer. The failure to give notice lends an invidious quality to the whole discharge procedure. When Jones was asked if dis- charge without any notice was according to company policy he first answered "Well, Mr. Examiner, my personal feeling is that Mr. Gunter was continually in his probationary period; that he never proved to us that he would be a competent instrument man." But the probationary period clearly ended according to docu- mentary evidence at the end of 90 days at which time it was recommended by his supervisor that Gunter be retained in employment. When Jones was asked again whether this discharge was pursuant to company policy be said, and repeated, that it was. Groth, however, to the question whether there was a policy of giving a warning or notice before discharging an employee, answered, "Yes, they are gen- erally alerted that their performance is not satisfactory." ATKINS SAW DIV. OF BORG-WARNER CORP. 799 The" conclusion that Gunter was not in fact discharged because of a bad work record (conceding that Respondent would have been justified if it had fired him for such reason) is supported by the further circumstance, admitted by Jones, that in the interview held with Gunter when he was notified of his discharge, nothing was said about placing Gunter in a different job with Respondent. At that time and at no other tame was he ever offered a different position that would have been less demanding and more suitable to his capabilities. Jones acknowledged that he was sure Gunter could have handled one of the production jobs in the plant but that it was never offered to him because he did not ask for it and the subject never came up in the discharge discussion. Gunter's failure to test and report a certain furnace, which failure became the subject of Fabel's July 27 memorandum to Singley, emerges from the evidence adduced by Respondent as the immediate cause of Gunter's discharge; but the evidence is not persuasive. Admittedly the furnace report did not reach Fabel on schedule. This failure, however, as clearly indicated by Fabel's own memorandum, was just another of several claimed failures of maintenance of the instruments involved, which maintenance, as Fabel stated in the memorandum `has been poorly handled ever since Joe Gunter was hired .. ." As I have previously indicated the incident justified a memorandum of poor work performance, but it does not seem reasonable that it was sufficiently important to bring about immediate discharge without notice. I deem it significant that nothing was said in the discharge conver- sation with Gunter, in Jones' office, concerning this test. Gunter testified nothing was said of it, and Jones said he did not recall that the subject was ever mentioned. In this connection I gave some weight to the testimony of Miller Groce in whose opinion Gunter's work "was good as the other instrument men that we have had and he worked on some things better than the other ones." The weight to be given Grace's testimony is very considerably lessened by his obvious zeal for the cause of Gunter's reinstatement. He is, however, a longtime employee of Respondent, his service going into its 25th year, and he is the man whom Respondent considers to be a trainer, of sorts, of all persons employed in the position held by Gunter. Running throughout his overly enthusiastic testimony, I find a kernel of unembel- lished truth which supports my conclusion that Gunter's service was not of the kind that required discharge without any notice, without any serious conference with even his immediate supervisor concerning his weaknesses in the performance of his job, or with any more highly placed persons in the supervisory force who were said to have real concern for the welfare of their employees. Another circumstance that raises some question as to the justification for the sudden discharge is the lack of an adequate replacement for Gunter. This lack was offered by Respondent as the reason why he had not been discharged sooner. The only testimony bearing on the replacement, indicates that another emloyee who might be used, had been available to replace Gunter throughout his employment. And Groce, who might be used to some extent as replacement, had also been available through all the critical period. Respondent's case for a justifiable discharge appears to be somewhat strained also by reason of this circumstance. Joseph T. Mayer, heat treat supervisor, was called to testify that in the past he had been critical of the quality of Gunter's services. He testified that he had never made a criticism directly to Joe Gunter, but that he had to Gunter's supervisor, Julius Hausz. When the General Counsel con- fronted him with a pretrial affidavit he had made on September 1, following the discharge on July 29, and asked him to read a certain portion of his affidavit, he replied to an appropriate question, "Well, I have got down there I did not com- plain to Mr. Hausz or anyone else about the quality of the work. Now, you see, Mr. Hausz and I have an agreement ...:. Because of this direct conflict in this witness' testimony and the previous statement he made under oath, I cannot give weight to his story on the stand that he had criticized Joe Gunter's work. This is another factor bearing on the conclusion that the performance was not of the kind that required sudden discharge. On the basis of all the credible evidence in the entire record, and especially those parts hereinbefore discussed, I find and conclude that Joe Gunter was dis- charged because of his union activity in violation of Section 8(a) (3) of the Act; that he was selected for discharge from several employees known to be union adherents for the reason (1) that his work performance was sufficiently marginal as to appear to justify a discharge for good cause, and (2) that the loss of his serv- ices would be less disruptive to Respondent's operation than those of more effec- tive employees sympathetic with the Union; that his discharge would be interpreted 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by some employees to be due to his union activities (as the record shows it was interpreted) inasmuch as he was known to be a union adherent, and that the dis- charge would thus tend to make other employees cautious in their support of the Union or oppose it; and that Gunter thus became a handy warning piece in Respondent's effort to keep the Union out of its plant. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, and which action I find necessary to remedy, and to remove the effects of, the unfair labor practices, and to effectuate the policies of the Act. For the reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommended a broad cease-and-desist order. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent, Atkins Saw Division of Borg-Warner Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating and threatening its employees unlawfully as to their union membership and activities. (b) Discharging or otherwise discriminating in respect to the hire and tenure of Joe Gunter or any other employee for the purpose of discouraging membership in the aforesaid Union, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Joe Gunter immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings suffered as a result of his discharge, by payment of a sum equal to that which he normally would have earned from the date of his discharge to the date of the Respondent's offer of reemployment, less his net earnings during said period, the computation to be in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum, as provided in Isis Plumbing & Heat- ing Co., 138 NLRB 716. (b) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all records necessary for determination of the amount of backpay due under this Recommended Order. (c) Post at its plant in Greenville, Mississippi, copies of the attached notice marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Direc- tor for Region 26, after being signed by a representative of Respondent, shall be posted by it immediately upon receipt thereof and maintained for a period of 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 any material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.2 1In 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 notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order " 2In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith" THE LION KNITTING MILLS COMPANY 801 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate or threaten our employees unlawfully concerning their union membership and activities. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or in any other labor organization, by discriminatorily discharging any of our employees, or in any other manner discriminating against any indi- vidual in regard to his hire or tenure of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL offer to Joe Gunter immediate and full reinstatement to his for- mer or substantially equivalent position, and make him whole for loss of pay suffered as a result of the discrimination against him; and if he is presently serv- ing in the Armed Forces of the United States, WE WILL notify him of his rights to reemployment under applicable statutes. All employees are free to become, remain, or refrain from becoming or remain- ing members of any labor organization. ATKINS SAW DIVISION OF BORG-WARNER CORPORATION, Employer. Dated------------------- By------------------------------------------- (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 pro- visions, they may communicate directly with the Board's Regional Office, 746 Fed- eral Office Building, 16 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. The Lion Knitting Mills Company and Cleveland Knit Goods Council of the International Ladies Garment Workers' Union, AFL-CIO. Cases 8-CA-3426 and 4004. August 31,1966 DECISION AND ORDER On May 9, 1966, Trial Examiner Phil Saunder issued his Decision in the above-entitled proceeding, 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 desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter the Respondent and the General Counsel filed excep- tions to the Trial Examiner's findings and supporting briefs. 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 [Chairman McCulloch and Members Fanning and Jenkins]. 160 NLRB No. 55. 257-551-67-vol. 16 0-5 2 Copy with citationCopy as parenthetical citation