Century Electric Co.

National Labor Relations Board - Board Decisions

Jul 27, 1967

166 N.L.R.B. 854 (N.L.R.B. 1967)

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Century Electric Company and United Steelworkers
of America , AFL-CIO . Cases 26-CA-2587,
26-CA-2623, and 26-CA-2646
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
July 27, 1967
DECISION AND ORDER
BY MEMBERS BROWN,JENKINS, AND ZAGORIA
On March 31, 1967, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged
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 Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor prac-
tices and recommended dismissal of these allega-
tions. Thereafter, the Respondent and the General
Counsel filed exceptions and supporting briefs to
certain of the Trial Examiner's findings and recom-
mendations.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and the
briefs, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Century Electric Com-
pany, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
' The Respondent's and the General Counsel's exceptions are in part
directed to certain credibility findings made by the Trial Examiner It is
the Board 's established policy not to overrule a Trial Examiner's resolu-
tions with respect to credibility unless the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362
(C A 3) We find insufficient basis for disturbing the Trial Examiner's
credibility findings in this case
The General Counsel excepts to the failure of the Trial Examiner to
find that Foreman Jake Billinger's conversations with employee Hollin
violated Sec 8 (a)(l) as alleged in the complaint As such findings would
be cumulative and would not affect our Order provided herein , we findit
unnecessary and make no determination as to the conversations in
question
FREDERICK U. REEL, Trial Examiner : This case, heard
at Lexington , Tennessee , on January 3 1, and February
I and 2, 1967, pursuant to charges filed the preceding Oc-
tober 25, December 6, and January 9, and a complaint is-
sued January 18, presents questions as to whether
Respondent , herein called the Company , violated Section
8(a)(3) and (1) of the Act by discharging seven employees
for union activity, and further violated Section 8(a)(1) by
various acts of interference , restraint , or coercion. Upon
the entire record , including my observation of the wit-
nesses , and after due consideration of the briefs filed by
General Counsel and by the Company , I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company , a corporation engaged at St . Louis,
Missouri , and at Lexington , Tennessee , in the manufac-
ture of electric motors, annually ships from its Lexington
plant (with which we are here concerned) to points out-
side the State products valued in excess of $50,000 and
is there engaged in commerce within the meaning of Sec-
tion (6) and (7) of the Act. The Charging Party, herein
called the Union , is a labor organization within the mean-
ing of Section 2(5) of the Act.
It. THE UNFAIR LABOR PRACTICES
Introduction
The background of this proceeding may have been
fairly stated by the Company's plant manager, Cliff Bul-
lock, in a speech he delivered to the plant employees late
in October 1966. He said in part:
Years of experience with unions in St. Louis
created a condition whereby Century Electric Com-
pany found it difficult to remain competitive in the
manufacture of Electric Motors. So in the trust of
you and your community, we relocated here. This
should prove to you that anything which is good for
the company is good for you and anything that harms
the company invariably can only hurt its employees
in the long run.
The Company started operations in Lexington in the
spring of 1965 and moved to its present building there in
October of that year. The unfair labor practices here al-
leged concerned events which transpired in the last 6
months of 1966. As Bullock's speech and other written
and oral statements of company authorities establish, the
Company was vigorously opposed to having its em-
ployees join a union.' This, of course, is not of itselfan
unfair labor practice. Section 8(c) of the Act expressly
' In addition to Bullock's speech , another document indicating com-
pany hostility to the Union is a letter from the Company addressed to all
employees, dated October 28, 1966, and in the record as G C Exh 4
According to company witnesses , these documents (the speech and the
letter) were both preceded and followed by other communications indica-
tive of company opposition to union organization of its employees
166 NLRB No. 103
CENTURY ELECTRIC CO.
preserves an employer's right to voice his views, argu-
ments, and opinions (if unaccompanied by threats or
promises), and an employer, whether hostile or friendly
to unions , may lawfully discharge employees for any
reason whatsoever, except for reasons related to the em-
ployee's union or concerted activity. On the other hand,
as stated by Chief Justice Hughes for a unanimous Court
in Texas and New Orleans Railway Co. v. Brotherhood
of Railway and Steamship Clerks, 281 U.S. 548, 559,
"Motive is a persuasive interpreter of equivocal con-
duct," and in turning, as we now do, to the details of the
alleged discriminatory discharges and alleged inter-
ference, it is important to bear in mind that the events are
set against a background of deep hostility on the part of
the Company to the prospect of union organization.
A. The Discharges
1. Paul Sumter
Sumter , an employee of unquestioned ability despite
his lack of formal education, was hired January 3, 1966,
and left the Company's employ on October 7, 1966. As
early as the spring of that year he had begun discussing
with the employees the possibility of union organization,
but during this entire period, until after the end of his em-
ployment, he had not referred to any particular union. On
one occasion , some months before his termination, he
spoke about a union to employee Dickson , whose father-
in-law was the plant superintendent, Len Cheek. On two
occasions (referred to again below under the discussion
of "Interference , Restraint , and Coercion"), Sumler's su-
pervisor, Houston Maxwell , raised the subject of a union
with Sumter, at one time asking how each of the em-
ployees in Sumler's department felt about a union, and at
another offering to "take care" of Sumter if would help
keep the union out.
On Wednesday, October 5, 1966, Sumter in a fit of ir-
ritation over having to do work in the province of a higher
paid employee told Maxwell that if "things didn 't change"
Sumter would be "cutting out on Friday ." Friday did in-
deed turn out to be Sumler's last day of work , but the
course of events between Wednesday and Friday is not
altogether clear because of the conflicting testimony. Ac-
cording to Sutrrler, Maxwell came to him the next morn-
ing and asked if he "was still planning to quit ." Sumter
replied that he could not afford to quit , and Maxwell then
said "he had made it official"- i.e., he had reported to the
personnel office that Sumter was quitting . The next morn-
ing (Friday ), according to Sumter, Maxwell sent him to
the personnel office where he saw Plant Superintendent
Cheek and Personnel Manager Bobbitt . Cheek told
Sumter that he understood Sumter was quitting and that
he was sorry to see Sumter leave . Sumter replied that he
had not quit and that he needed to work. Cheek told him
to "go back to work and forget the whole thing ." Sumter
went back to work , but that afternoon he was again sum-
moned to the personnel office where Cheek told him that
the "president of the plant" had decided to terminate
Sumler's employment as "it was company policy to let a
man go when he turned his time in." The reference was to
the plant manager , Bullock's predecessor, who died sud-
denly that very night.
Maxwell 's version differs from Sumler's. Maxwell
testified that he told Sumter on Wednesday to think the
matter over and that he (Maxwell ) would not "turn it in"
to personnel until the next day. Maxwell did, however,
855
according to his testimony , mention the matter briefly to
Cheek later on Wednesday. Maxwell further testified that
on Thursday he checked with Sumler who reiterated his
intention to quit, whereupon Maxwell formally reported
it to personnel. I credit Maxwell in this respect, and find
that Sumter on both Wednesday and Thursday expressed
a definite intention to quit. Cheek testified that on
Thursday Maxwell reported that Sumter was still deter-
mined to quit, but that on Friday Sumter changed his
mind. That morning according to Cheek, he told Sumter
of the company policy that "once you give your notice
you must leave ," but he offered to talk to the plant
manager in Sumler 's behalf. In the course of his conversa-
tion with Sumter, Cheek ascertained that Sumter, if he
remained in the Company ' s employ, would not be
"satisfied" unless he received a wage increase . According
to Cheek , he discussed the matter with the manager, and
they decided reluctantly to let Sumter go rather than keep
him on as a dissatisfied employee or raise his wages and
upset the wage pattern at the plant. Cheek called Sumter
back to the office that afternoon and terminated his em-
ployment. I credit Cheek's account of his conversation
with the now deceased plant manager.
Sunder's case is puzzling because the company
representatives , by their own testimony, urged him on
Wednesday and Thursday not to quit, and then on Friday,
after he had decided not to quit , the Company discharged
him. The reason advanced by the Company is that he
would have been a "dissatisfied" employee, but this had
not prevented him from doing acceptable work in the
past, and his feeling that his wage should be increased did
not distinguish him from others the Company employed.
On the other hand , if his somewhat general union activity
had motivated the Company , why did it urge him not to
quit? I find that Sumter did express an intention to quit
and that ordinarily it is company policy to hold people to
their word in matters of this sort. On this record, I am
constrained to render a verdict of "not proven" in
Sumler's case , and for that reason to dismiss the com-
plaint as to him.
2. Cledis Scott and Howard Beecham
Scott and Beecham were active proponents of the
Union , passing out union cards to other employees in the
lunchroom and on the parking lot. Indeed , according to
Beecham, he and Scott were "the only two that was really
getting the cards signed ." There is no direct evidence of
company awareness of the role of Beecham and Scott in
the union drive . I cannot, however , credit the testimony
of Plant Superintendent Cheek and Personnel Director
Bobbitt that they were not aware of any union activity in
the plant until November when the men started wearing
buttons. Sumter had told them on October 7 of his inten-
tion to work for the Union following the termination that
day of his employment . Also, within a week after Scott
and Beecham were discharged on October 21, Plant
Manager Bullock delivered a speech to all employees
devoted almost entirely to the union campaign , and the
Company sent a letter to all employees discussing the
Union's effort to "move in" and get "part of your
paycheck." Company efforts to portray these communi-
cations as merely general antiunion propaganda spawned
by the knowledge of a campaign at a neighboring plant
simply cannot survive a reading of the speech and the
letter which betray full awareness of the Union 's effort,
at the Company's own plant. The incredible denials of
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Cheek and Bobbitt serve merely to cast a doubt over their
veracity in other respects. I find, in short, that the Com-
pany was aware of the union activity in its plant when it
fired Beecham and Scott on October 21, 1966. And I
further find that the Company knew of their union activi-
ty, for at the time Cheek fired the two men Scott told him
that the real reason for the action was not the assigned
cause, but rather was their union activity, to which Cheek
responded (according to Scott and Beecham, whom I
credit) that he was aware of their union activities (includ-
ing their attendance at a union meeting the night before)
but that he was not discharging them for that reason.
The grounds assigned by the Company for the
discharge of Beecham and Scott concern an incident that
occurred in the late afternoon of the day preceding their
discharge. They both finished work at 3:30 p.m. that day,
the regular quitting time, but each of them had to wait (as
was by no means unusual) for their respective "riders,"
fellow employees (one for Beecham and one for Scott)
who rode to and from work with them, and who on this
occasion, as on many others, had to work overtime. After
work, Scott and Beecham went to the plant cafeteria, and
about 3:45 Scott left to go back into the working area of
the plant in an effort to locate his "rider" and learn how
late the latter would have to work. Scott found his man
and was returning to the cafeteria when he encountered
Beecham, who was on a similar mission. A distant rela-
tive of Beecham's who was working there stopped them
and spoke to them for a moment, and then the two men
continued down the aisle in an effort to find Beecham's
rider. At this moment, at 4 p.m. or shortly thereafter, one
Betty Dyer, an employee working overtime, greeted
them, and when they returned her greeting, she asked if
they had heard about a recent robbery in the community.
The men had not heard of it, and she proceeded to tell
them about it, including what had been stolen, and related
matters. Another employee, Barbara Wilson, working
with Dyer, also participated in the conversation. The talk
turned to their work, and Dyer, who was winding a very
thin or fine wire, complained as the wire broke and
became tangled, a not unusual occurrence. At this point
Scott remarked that the wire "was as fine as a damn frog
hair."2 The men watched the girls work for a brief period,
during which the men conversed with one another and
called to some men in the rear of the building. At this
point the girls were filling out their daily worksheets, and
Beecham remarked that Bobbitt (the personnel director)
"would have to hire him a damn secretary, that he could
not keep up with all that God damn work." About this
time (it was now 4:25) the two men started back toward
the cafeteria, and met Emiel Staeger, foreman of the
winding department, who asked them in what department
they worked. On being told that they were from the as-
sembly department, located at the other end of the build-
ing, Staeger told them to return to it. Scott and Beecham
returned to the cafeteria where they both saw Staeger,
who made no further comment about the matter.
The next morning Barbara Wilson complained to her
leadman, Jimmy Delaney, that "two men were over using
profane language and cursing." She did not identify the
men or mention any specific words they used. Delaney
mentioned the matter to his supervisor, Van Duke. Duke,
who had seen the two men talking to Wilson and knew
who they were, reported it to Plant Superintendent
Cheek, who in turn sent Foreman Staeger to interview
the two girls. Staeger asked each of them, separately, if
the men had used profane language, and the girls replied
that the men had. Staeger did not ask and neither of them
told him what the profane words were. He duly reported
to Cheek that the men had used abusive and profane lan-
guage. Cheek thereupon sent for Scott and Beecham and
discharged them, telling them that it was for their conduct
the preceding afternoon. Beecham and Scott denied using
abusive or profane language, and asked Cheek to sum-
mon the two girls to his office to confront them, but
Cheek refused to do so. Beecham at this time, referring to
one of the girls, said, "I'll fix her when I get home. I'll tell
her husband, and I'll fix her." there is no evidence that
Beecham ever implemented that "threat" in any way.
The Company contends that Beecham and Scott vio-
lated three plant rules and were discharged for so doing;
General Counsel alleges that the real reason for their
discharges was their union activity. In cases of this nature
it must be remembered that General Counsel bears the
burden of proof, that union membership and activity give
no protection to an employee who is discharged because
of his own misconduct, and that where an employee has
behaved offensively it is not for the Board to say that the
penalty imposed by the employer was too severe. But it
must also be remembered that an employer may not seize
upon an episode and use it to justify a discharge when his
real motivation came not from the employee's conduct in
the episode in question, but rather from his union activity.
In terms of Beecham's and Scott's case, the question is
whether the Company seized upon and developed the
episode in question so as to provide itself with an osten-
sibly valid reason to get rid of two employees, whereas
the real reason was their union activity.
We have already noted that the men were active in the
Union, and the Company's protestations that it was
unaware of this are not to be believed. Cheek and Bobbitt
are not to be credited when they deny any knowledge of
union activity in the plant. Beecham's and Scott's
testimony of their activities in this respect is not con-
tradicted. Also, the record contains several references to
the fact that in a small town like Lexington word of union
activity spreads rapidly. Finally, Beecham and Scott at-
tended union meetings, including one the night preceding
their discharge at which a company leadman was present.
Indeed, according to their testimony, which I credit in
this respect, Cheek admitted knowledge of this fact when
he discharged them, although he denied that this was the
reason for his action. In short, we have the elements of a
prima facie case - employer knowledge of and hostility to
union activity, and a discharge shortly after the em-
ployees engaged in union activity.
Turning to the three rules which the Company alleges
the employees violated, they included prohibitions
against using profane language and against interfering
with an employee's performance of duty, and a directive,
"When working, remain in your own department ... "
The Company included these among its approximately 30
posted rules, which it headed with a warning that "Viola-
tion of these rules will subject the employee to disciplina-
ry action and possible discharge." Cheek testified that
violation of any two of those rules, and probably any one
of them, would have led to discharge. Analysis of the
record sheds considerable doubt on that statement, for
' The typewritten transcript, p 505, 1. 23, erroneously uses the word
"head" for "hair," and is hereby corrected.
CENTURY ELECTRIC CO. 857
Cheek dispatched Staeger to inquire into the "profane
and abusive language" matter after Cheek was apprised
that the men had been out of their department talking to
the two girls who were at work. (Cheek had heard this
much from Foreman Maxwell on Thursday, and learned
further details from Supervisor Duke on Friday, but did
not discharge the men until he received Staeger's report.)
And Staeger, when he told the men to leave his depart-
ment on Thursday, did not consider the "offense" at
being there sufficiently important to tell Cheek or to ad-
monish them that they were inviting discipline, let alone
discharge. All this aside, it seems reasonably clear that
Beecham and Scott had not violated either the rule
against being out of their department when working, or
the rule against interfering with other employees' work.
The first rule is inapplicable as they had already finished
work and punched out. Their going into the work area on
their free time for the purpose of checking on when their
"riders" would finish work was not in violation of that
rule, and was not an uncommon occurrence. As to their
interfering with the work of other employees, the record
is clear that the girls initiated the conversation, and that
they introduced the subject of the robbery, which rather
naturally resulted in prolonging the episode. To be sure,
management may not have been aware that the length of
Scott's and Beecham's visitwith Dyer and Wilson was at-
tributable to the topic initiated by the girls, but the very
lack of investigation into the matter suggests that the
Company was more concerned with getting rid of Scott
and Beecham than it was in ascertaining the details of the
episode. In any event, Cheek did not act upon the matter
until he had a report on "profanity," and in his discharge
interview with Scott and Beecham he placed particular
emphasis, if not sole reliance, on their use of profane lan-
guage.
Undoubtedly, an employer may lawfully discharge an
employee for use of profanity. The question on this
record, however, is whether this was the real motivation,
or whether the Company seized upon it as an excuse to
rid itself of two union leaders. Scott and Beecham denied
Cheek's accusation in this regard and demanded, but
were refused, the right to confront their accusers. This
refusal achieves more significance when it is remembered
that no one-neither Cheek nor any of his subor-
dinates -ever learned what the profane words were. At
the hearing before me it developed that the offense con-
sisted of Scott's describing certain wire as "as fine as a
damn frog hair," and Beecham's statement that Bobbitt
would have to hire "a damn secretary" to "keep up with
all that God damn work." Such language, while not to be
encouraged, is not unusual in a factory. In this connection
I note that Cheek, testifying in this proceeding in a county
courthouse, and in the presence of several women specta-
tors, stated, at one point, "I worked so damn hard to get
him hired ... and he was a damn fool to quit," and later:
"I caught hell from every foreman out there," and later,
that a man was "a damn good sweeper." Cheek himself
was so unaware of these lapses that he later testified a
man should be discharged for using an expression like
"damn good," and Babbitt (who heard all the testimony)
also testified that if a man used that expression in the
presence of a woman in the plant, Bobbitt would "most
likely discharge" the offender. Of course, Cheek at the
time of the discharges did not know that the profanity in
question was little, if any, more than he himself uses in
normal speech. But again the failure to investigate the
matter to discover what the profanity actually amounted
to indicated that the Company was more interested in
building a case for discharge than in ascertaining the
facts. Also, Cheek admitted that on "a couple of occa-
sions" he had reproved one Gardner for using vulgar or
profane language but had not even threatened to
discharge Gardner for this offense.
Both Scott and Beecham were satisfactory employees,
as Cheek himself testified. According to Bobbitt, the
Company was not happy over the high rate of the turn-
over. Yet, without prior warning or any serious attempt
to ascertain the facts, it discharged Scott and Beecham
immediately after their union activity had reached the
point where it could not have escaped management's
notice. Under these circumstances, the case invites the
language used by the District of Columbia Circuit in E.
Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22,26-27:
Such action on the part of an employer is not natural.
If the employer had really been disturbed by the cir-
cumstances it assigned as reasons for these
discharges, and had had no other circumstance in
mind, some word of admonition, some caution that
the offending lapse be not repeated, or some opportu-
nity for correction of the objectionable practice,
would be almost inevitable. The summariness of the
discharges of these employees, admittedly thereto-
fore satisfactory, gives rise to a doubt as to the good
faith of the assigned reasosn.
On all the facts, including the Company's hostility to the
Union, the active union roles played by Scott and
Beecham, and the Company's conduct in trying to build
a case against them instead of conducting any real in-
vestigation into the circumstances and content of the
episode relied on, I find that the real motivation for their
discharge was their union activity, and that the Company
therefore violated Section 8(a)(3) and (1) of the Act.
3. William Carl Hollin
Hollin was hired in May 1966, promoted to leadman in
a month, and discharged October 22. The Company con-
tends that he was a supervisor and that in any event he
was discharged because of his lack o pacity to fill the
role of leadman. General Counsel argue that he was not
a supervisor and that he was disch d because of the
Company's fear that he would be an active proponent of
the Union.
Hollin had no connection whatsoever with the Union
and engaged in no union activities. There is some sug-
gestion that the Company thought he might be, or
become, a cause of employee dissatisfaction (and hence
of potential union activity) because he kept in his toolbox,
for other employees to see, his pay stubs from afar better
paying job he had held with another employer in
Northern Indiana. And, according to Hollin, he was
discharged by Cheek on October 22, 1966, with the com-
ment: "As you know, the Union is getting a toehold here.
We have been advised by the company attorney to start
with the leadmen and start weeding them out according to
the length of time they have been up north and the
amount of money they have made."
Cheek denied making the statement just quoted, and
testified that the Company discharged Hollin because of
his lack of ability as a leadman, and particularly because
of the high rate of turnover in Hollin's section, which the
Company attributed to employees' dissatisfaction in
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working under Hollin. Although I entertain serious reser-
vations as to Cheek's general credibility, I am inclined to
credit his version rather than Hollin's, particularly as
Cheek's testimony is supported by the testimony of
Foreman Billinger, whom I find in this respect to be a
credible witness. Accordingly, I find that Hollin was
discharged for cause.
I do not find, however, that Hollin was a supervisor. As
a leadman over three employees his duties included giv-
ing them training and directions of a routine nature, but
nothing in the record indicates that he had any real
disciplinary authority over them or authority effectively
to recommend promotions or discharges. Leadmen on
this record appear to have been considered by all con-
cerned to be representatives of management (e.g., Hollin
assumed that the men excluded him from conversation
about the Union, and Beecham and Scott regarded the
presence of a leadman at a union meeting as evidence of
espionage). But although a leadman may be regarded by
the employees as representative of management, the
question whether he is an "employee" or a "supervisor"
turns on his duties, not on employee opinion . In this case
I cannot find that Hollin or other leadmen were engaged
in responsibly directing the men on their crews, or gave
them other than merely routine instructions. Cf. DeKalb
Telephone Cooperative, 156 NLRB 1381, 1383-84.
4. Stanley Alexander
Alexander, hired early in October 1966 to run a lathe
in the shaft department, was discharged Monday,
November 21. In the course of this brief employment he
handed out union cards and literature on the parking lot,
and on Friday, November 18, wore for the first time a
union button in the plant. Maintenance Foreman Max-
well commented on the button that day, and on Monday
morning, November 21, Alexander's foreman, Archie
Kyle, also engaged Alexander in a conversation about the
Union. Kyle, who testified that he was opposed to the
Union, asked Alexander "what a union could get that
[the employees] didn't already have," and Alexander
replied, "higher wages for one thing."3 On this occasion
Kyle suggested that Alexander's production was low. A
few hours later that day, Alexander was summoned to the
office where Cheek told him that as a probationary em-
ployee he was being discharged as "we find your work
unsatisfactory." A few days later Alexander, returning to
get his paycheck, asked Personnel Manager Bobbitt the
reason for the discharge, and was told he had been
"running too much scrap."
The testimony is in some conflict as to the extent to
which Alexander's work was deficient in producing an
unreasonable amount of scrap. William Adams , the in-
spector in the shaft department, testified that in his
judgment Alexander's work was average, and that he
(Adams) had had occasion to warn another man, but not
Alexander, about producing too much scrap. Foreman
Kyle, however, testified that Alexander had a "more than
normal" amount of scrappage, although in the same
breath he admitted that it was "hard to tell on a new em-
ployee" what would be "normal." Although, according to
Kyle, the "quality control" department kept records on
the amount of scrap, no such records were produced.
Kyle had a meeting with all the men in the shaft depart-
3 Kyle denied asking Alexander "about his feelings regarding the
Union " I credit Alexander's testimony quoted above.
ment in which he urged them to cut down on scrap; ac-
cording to his testimony his real target on that occasion
was Alexander , but he did not "like to single any one per-
son out in front of everybody." Kyle also testified that
Alexander 's attitude was unsatisfactory in that he failed
to purchase certain tools which the Company expected its
shaft department employees to acquire.
The Company relies on the fact that Alexander was a
probationary employee , in that he had worked less than
90 days and was therefore more subject to discharge than
employees who had acquired tenure. It also points out
that other employees (none of them "probationary" as far
as the record shows ) wore union buttons and were not
discharged . Of course , the statute protects probationary
employees from discharge for union membership, and the
failure to discharge all union supporters is far from con-
clusive as to whether union membership was a factor con-
tributing to the termination of those who were discharged.
See, e.g., N.L .R.B. v. Challenge -Cook Bro. of Ohio, 374
F.2d 147 (C.A. 6), citing Nachman Corp. v. N.L.R.B.
337 F.2d 421,424 (C.A. 7).
Upon considering the entire record , I am convinced
"that there is considerably more than a coincidental con-
nection" between Alexander's wearing of a union button
on Friday and his "discharge the following [Monday] af-
ternoon." N.L.R.B. v. Condenser Corporation of Amer-
ica, 128 F.2d 67, 75 (C.A. 3).4 The fact that he was a
probationary employee may have contributed to the
Company's determination to let him go although it
retained other union supporters, and his work may not
have been above reproach . But I find that the critical
motivating factor in his discharge that Monday afternoon
was his open support of the Union , and the Company
therefore violated Section 8(a)(3) and (1).
5, Joe K. Bingham
Bingham was discharged the day after Alexander, and
the case further resembles Alexander's in that Bingham
was a "probationary" employee who started to wear a
union button on Friday, November 18. On Monday,
November 21, Bingham was sick and unable to go to
work . His father so informed the driver of Bingham's car
pool, and requested the driver to let the plant know of
Bingham 's absence. Two employees testified that one of
them , in the hearing of the other, told Bingham 's foreman,
Billinger , that morning that Bingham would not be at
work that day because he was ill. Billinger testified that
he did not remember being advised of the reason for
Bingham's absence.
The following day when Bingham arrived at work he
found his timecard was not in the rack , so he went to the
personnel office where Personnel Director Bobbitt told
him he was discharged for failure to call in the day before.
Bingham further testified that on one or two previous oc-
casions he had been absent without letting the Company
know the reason. Bobbitt testified that Bingham was
discharged for failure to call in , and indeed that he (Bob-
bitt) had discussed the matter with Billinger before
discharging Bingham . Bobbitt also testified that when he
discharged Bingham the latter admitted that he had
neither called in nor sent word of his absence. According
to Bobbitt , if a probationary employee failed to call in,
there was a "good probability" that he would be
discharged.
4 The record indicates that the plant operated on some Saturdays.
CENTURY ELECTRIC CO.
One major difficulty in assessing Bingham's case is that
young Mr. Bobbitt, the personnel director, impressed me
as a witness whose zealous efforts to help the Company
with his testimony outdistanced his candor by a con-
siderable margin. Apart from his demeanor on the stand, I
note also his sworn testimony that he had no knowledge,
and no suspicion of union activity at the plant when the
Company sent out a letter to all employees on October
28. This letter recites, in part, ". . . we are not surprised
that the Steelworkers Union wants part of your
paycheck. The union people will tell you anything in
order to use you ." At the same time Plant Manager Bul-
lock made a speech to all employees saying in part "The
Union will tell you that everyone has signed a card." My
disillusionment with Bobbitt's performance on the wit-
ness stands does not, of course, alter General Counsel's
burden of proof or change the general rule that the Com-
pany could lawfully discharge Bingham or any other em-
ployee for absenteeism. The timing of the discharge sheds
little light on the matter for the fact is that the day of
Bingham's discharge was not only the day after his
absence, but was also his first regular workday after he
put on a union button. I have no doubt that his absence
furnished the "handle" for his discharge, but the question
is whether his support of the Union was a substantial con-
tributing factor. Bearing in mind the Company's hostility
to the Union, the fact that Bingham had sent word to his
foreman that he was ill (I do not credit Bobbitt's version
of his alleged conversation with Billinger- certainly
Billinger did not recall it, and Bobbitt is untrustworthy),
and that even the zealous Bobbitt let slip that a proba-
tionary employee's unexcused absence raised only a
"good probability" of discharge, I find that Bingham's
open support of the Union played a substanital role in the
Company's determination to discharge him, and that the
discharge therefore violated Section 8(a)(3) and (1) of the
Act.
6. Larry Gordon Scott
Larry Scott, son of Cledis Scott, was discharged
December 22, 1966, allegedly because of excessive ab-
senteeism culminating in an unreported absence the day
before. Young Scott had worked at various jobs for the
Company during the 8 months of his employment, and ap-
parently his performance left something to be desired as
he displayed a propensity to operate a towmotor when his
job did not call for such activity, and he also was respon-
sible for damaging some equipment. He displayed a union
button during the last month of his employment, and had
an altercation With a leadman over doing so.
The Company contends that it put up with young Scott
5 Bobbitt's own counsel expressed incredulity over some of his
testimony. Note the attempt on direct examination to rehabilitate him
from the error into which his zeal for his Company's case, as he conceived
it, had led him:
Q. When was the first time that you knew a labor organization was
within the Century Electric plant?
A When they wore buttons to work one day.
Q. Did you suspicion it at anytime before that?
A We had heard there was some activity at Metal Products next
door
Q. I'm not talking about Metal Products. I'm talking about just
your plant.
A No.
Q. You didn't have any suspicion at all that the Union was solicit-
ing employees at Century Electric?
859
as long as it could, particularly because the discharges
heretofore discussed had resulted in the filing of charges,
but that his absenteeism in December was the "straw that
broke the camel's back." The record shows that Scott
was absent once in September and twice in November,
but that those three absences were excused. He was also
absent on December 1, 17, and 21, but the second of
those occurred on a Saturday, which was not a regular
workday. The term "excessive absenteeism " seems a lit-
tle strong for an employee who had only four unexcused
absences in 8 months, but three of these did occur in the
last 3 weeks. Assessment of motive is always difficult in
these cases, and young Scott's support of the Union may
have been one of the straws on the camel's back. Ap-
parently, however, he had been warned about absentee-
ism only a few days before the final episode, and his
failure to report or to get word to the Company on the last
occasion would seem almost to invite the ultimate penalty
which befell him.
Scott's case is by no means free from doubt. When an
employer, openly hostile to the union , discharges a
known union adherent ostensibly for so subjective a
reason as "excessive absenteeism ," doubt necessarily
arises as to whether the employer is advancing the real
reason, and my reservations on the credibility of Cheek
and Bobbitt , the Company's two chief witnesses, are not
calculated to allay these doubts. It does not follow how-
ever, that every union adherent discharged by an antiu-
nion employer is discharged for unlawful reasons.
Moreover, if Company witnesses testify falsely, the law
provides appropriate remedies and penalties, but my task
is not to mete out such punishments but only to decide
each matter placed in issue before me , without being un-
duly influenced by my overall judgment as to the
character of the Company and its witnesses. In short,
granting that the Company is antiunion, and that Cheek
and Bobbitt are untrustworthy witnesses , I find that in the
case of the younger Scott his discharge was in fact at-
tributable to his December absences and not to his union
activity.
B. Other Interference, Restraint, and Coercion
As noted above, the record leaves no room for doubt
that the Company had a deep and abiding hostility to the
Union's efforts to organize the plant. Hostility to or-
ganization is not of itself an unfair labor practice, and the
statute expressly permits employers to state their views,
arguments, and opinions, providing they refrain from
threats or promises. On the other hand, the discrimination
against several employees because of their union activity
constitutes unlawful interference, restraint, and coercion,
A. We suspected that they might be interested, yes, because they
were right next door. It would be very unusual if they weren't in-
terested.
Q. Repeat again, if you will, or cover the subject again with me, if
you will When was the very first time that you absolutely knew that
employees in your plant wanted a Umon9
A. The day they wore buttons to work.
Counsel's use of the expression "you didn't have any suspicion at all" and
his later use of the expression "absolutely knew" are a tribute to his
adroitness , but Bobbitt was unwilling to stay extricated . He insisted on
cross-examination that he "first knew of the Umon interest at Century
Electric" when the employees wore buttons , and prior to that time never
"had any realization that there was a union at Century or that there was
even any union feeling at Century."
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and indeed warrants the issuance of an order interdicting
any future violations of Section 8(a)(1) and (3). N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). The
specific additional violations of Section 8(a)(1) found
below are therefore cumulative.
Plant Manager Bullock's speech to the assembled em-
ployees shortly after he assumed his duties in Lexington
contained thinly veiled threats that the men would be
jeopardizing their jobs if they selected the Union as their
bargaing representative. Bullock told them that the Com-
pany had moved to Lexington to get away from unions,
and then drove his point home by stating: "This should
prove to you that anything which is good for the Com-
pany is good for you, and anything that harms the Com-
pany invariably can only hurt its employees in the long
run." The clear implication is that the Company would
leave again to get away from unions and thus choice of
the Union would "hurt the employees in the long run."6
Employee Thomas Crawford testified that when he
was being interviewed for a job, Foreman Staeger asked
him if he was for a union, and on, receiving Crawford's
negative reply, continued: "Well, this Company is strictly
not for a union." I credit Crawford over Staeger's denial.
Such interrogation at the time of hiring, a particularly sen-
sitive moment, violates Section 8(a)(1).
I credit Paul Sumler's testimony that his foreman,
Houston Maxwell, on one occasion offered "to take
care" of Sumler if he would help keep the Union out, and
on another occasion asked Sumler how each individual in
Sumler's department felt about the Union. I further credit
Cledis Scott's and Beecham's testimony that Plant Su-
perintendent Cheek told them he knew who had attended
the union meeting the previous evening. These episodes
of interrogation, offer of benefits, and creating the impres-
sion of surveillance are likewise violative of Section
8(a)(1).
CONCLUSIONS OF LAW
1. By discharging Cledis Scott , Howard Beecham,
Stanley Alexander, and Joe K. Bingham because of their
union membership and activity , the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
2. Sy interrogating employees as to
_
their own and
their fellow employees' union sympathies , by threatening
that selection of the Union as a bargaining representative
might result in the moving of the plant, by promising
benefits to employees if they would assist management in
combating the Union and by creating the impression that
the Company was keeping union meetings under surveil-
lance , the Company engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company cease and desist
from violating Section 8(a)(1) and (3), that it reinstate
6 The complaint alleges that Bullock in this speech told the employees
it would be futile to select the Union as their representative. I find he went
even further than that. The full text of the speech is in evidence, and as the
matter was thus fully litigated I see no material or prejudicial variance
between the pleading and the finding.
7 In the event that this Recommended Order is adopted by the Board,
Cledis Scott, Beecham, Alexander, and Bingham with
backpay, and that it post appropriate notices. Backpay
shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, I recommend,
pursuant to Section 10(c) of the Act, issuance of the fol-
lowing:
ORDER
Respondent, Century Electric Company, Lexington,
Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee because of membership or activity in
United-Steelworkers of America, AFL-CIO, or any
other labor organization.
(b) Coercively interrogating employees as to their
union activity or that of fellow employees, threatening
that advent of the Union may cause the closing of the
plant, promising benefits to employees if they would help
defeat the Union, creating the impression that union
meetings are being kept under surveillance, or in any,
other manner interfering with, restraining, or coercing
any employee in the exercise of his right to join or assist
a labor organization.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to reinstate Cledis Scott, Howard Beecham,
Stanley Alexander, and Joe K. Bingham to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole in the manner descirbed in the portion of the
Trial Examiner's Decision entitled "The Remedy" for
any loss of earnings suffered by reason of the discrimina-
tion against them.
(b) Notify any of the above-named employees who
may be serving in the Armed Forces of the United States
of their right to full reinstatment upon application in ac-
cordance with the Selective Service Act and the Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms hereof.
(d) Post at its plant at Lexington, Tennessee, copies of
the attached notice marked "Appendix."7 Copies of such
notice, to be furnished by the Regional Director for Re-
gion 26, after being duly signed by an authorized
representative of the Respondent, shall be posted im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
CENTURY ELECTRIC CO. 861
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply
herewith."
B In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
WE WILL NOT take or threaten to take any action
against them for engaging in union activity, coercive-
ly question them as to their union activity or that of
fellow employees, promise benefits if they will help
keep the Union out of the plant, create the impres-
sion that we are keeping union meetings under sur-
veillance, threaten that the plant may close if the
Union becomes their bargaining representative, or in
any other manner interfere with, restrain, or coerce
them in their exercise of their rights under the Act.
CENTURY ELECTRIC
COMPANY
(Employer)
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL offer Cledis Scott, Howard Beecham,
Stanley Alexander, and Joe K. Bingham, their former
jobs and pay each of them for wages he lost as a
result of his discharge.
ALL OUR EMPLOYEES have the right to join or
assist United Steelworkers of America, AFL-CIO,
or any other union . They also have the right not to
join or assist any union.
Dated By
(Representative ) (Title)
NOTE: We will 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.
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, Ten-
nessee 38103, Telephone 534-3161.