Condec Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1971

193 N.L.R.B. 931 (N.L.R.B. 1971)

CONSOLIDATED DIESEL ELECTRIC CO.
Consolidated Diesel Electric Company Division of
Condec Corporation and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America, UAW. Case
I1-CA-4228
October 26, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On June 30, 1971, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.[
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
931
ROBERT COHN, Trial Examiner: Upon a charge filed by
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (herein
the Union), on May 4, 1970,1 the General Counsel of the
National Labor Relations Board, through the Regional
Director for Region 11, on December 31, issued a
complaint and notice of hearing. The complaint alleged, in
essence , that Consolidated Diesel Electric Company
Division of Condec Corporation (herein the Respondent or
Company) violated Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, as amended (herein the
Act), by restraining and coercing employees respecting
their union or concerted activities, and by discharging
employees because they joined or assisted the Union, or
because they gave testimony under the Act or appeared at
representation hearings for the purpose of giving testimony
under the Act. By its duly filed answer, the Respondent
admitted the jurisdictional allegations of the complaint but
denied the commission of unfair labor practices and
averred certain affirmative defenses.
The case came on to be heard, and was heard before me,
at Charlotte, North Carolina, on March 2 and 3, 1971. All
parties were given full opportunity to introduce evidence,
examine and cross-examine witnesses , argue orally, and file
written briefs. The parties waived oral argument, but
helpful, posthearing briefs were filed with me by counsel for
the General Counsel and counsel for the Respondent,
which have been duly considered.
Upon the entire record in this case, including my
observation of the demeanor of the witnesses while
testifying,2 and the arguments of counsel, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Consolidated Diesel Electric Com-
pany Division of Condec Corporation, Charlotte,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, The, 91 NLRB 544,
enfd. 188 F 2d 362 (C A 3). We have carefully examined the record and
find no basis for reversing his findings
Respondent , a New York corporation , is engaged at its
Charlotte, North Carolina, facility, in the manufacture of
motor vehicles and other items on contract with the United
States Government . During the past 12 months , which is a
representative period , the Respondent received raw materi-
als and products valued in excess of $50,000 directly from
points outside the State of North Carolina . During the same
period, Respondent shipped finished products valued in
excess of $50 ,000 directly to points outside the State of
North Carolina.
Based upon the foregoing facts, which are admitted by
the Respondent , I find that Respondent is now , and has
been at all times material , an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
I All dates hereinafter refer to the calendar year 1970 unless otherwise
specified
2 Cf. Bishop and Mako, Inc., 159 NLRB 1159, 1161
193 NLRB No. 140
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As previously noted, Respondent's Charlotte facility is
engaged in the manufacture of items for the United States
Government, including a vehicle known as a "gamma
goat." The premises consist of two buildings totaling some
400,000 square feet which are located on an area
encompassing some 2 acres which include railroad sidings.
It appears that during the period of the events herein,
Respondent's work force was increasing to approximately
300 production and maintenance employees.
Although the record is somewhat vague, it appears that
the Union commenced an organizing campaign among the
Company's employees in early sprang of 1969, which
campaign continued during the year and culminated in a
petition for an election filed by the Union, a Decision and
Direction of Election by the Regional Director on April 8,
1970, and an election held on May 7, 1970, which was won
by the Union.3 As respects Respondent's attitude toward
the organizational campaign, Fred Powers, Respondent's
personnel manager at the time, testified that he told the
employees in December 1969, that the Company did not
want a union in the plant and that it would do everything
legally in its power to keep a union out of the plant. The
General Counsel argues that the Respondent overstepped
the bounds of legality when, on February 28, it laid off its
second shift in the sheet metal fabricating department, and
during March and April when it discharged two employees
for their union activities.
B. The Layoff of the Second Shift
The record reflects that during January the Employer
hired approximately nine e. ._,)loyees who were destined to
commence a second shift in the sheet metal fabricating
department. That is to say that although these employees
worked on the first shift when they first started their
employment with Respondent, they constituted the com-
plement of employees who made up the second shift which
was established around the first part of February.
The testimony of these employees, witnesses for the
General Counsel, is uncontradicted that they were told,
during their preemployment interviews by Assistant
Personnel Director Kirkner, that their employment was
expected to be of a permanent nature . Yet the Respondent
abruptly terminated the second shift on February 28, assert-
edly for economic reasons. The General Counsel contends
that since substantially all of the employees constituting the
3 See Case I l-RC-3075 A representation hearing in that proceeding
was held on February 27, 1970, of which more anon
4 Their names are Hagler, McClure , Redfern, Carver, Stillwell, and
Etier
5 McClure's statement attributable to Miller, as well as all other
testimony of that nature, is undenied Miller was not called as a wi tness by
Respondent , Respondent 's counsel asserting at the hearing that Miller was
no longer employed by Respondent I credit McClure and find that this
second shift joined the Union shortly after their employ-
ment, and actively engaged in conduct assisting and,
supporting the Union, which was well known to the
Respondent, the layoff was discriminatorily motivated.
The record reflects that of the nine employees who were
originally hired for the second shift, one quit shortly after it
commenced, one (Davis) was a leadman, and six were
named in the complaint as having been discriminatorily
laid off when the shift was terminated on February 28 .4 The
evidence shows that the six joined the Union shortly after
their employment, that most of them engaged in activities
on behalf of the Union, and that these activities became
known to supervisors and agents of the Company. Thus,
about the middle of January, Foreman Miller came up to
McClure's machine and asked if he was for the Union.
McClure replied affirmatively, because the Union "was in
[his] favor."5
Many of the employees in the plant who supported the
Union wore pencilholders in their pockets which had the
UAW insignia on it. Etter testified that he wore his
pencilholder shortly after the first shift started and
Foreman Miller walked up to him, pointed to it, and asked
what it was. Etter replied that it was his badge and he was
authorized to wear it; whereupon, Miller said, "you ain't
supposed to wear anything around here." When Etter said
that he could because "[his] name is up in the office,"
Miller responded, "let me tell you that that damn union
ain't running this place."6
Additional union activities of the second shift group is
indicated by Carver who wore a union insignia and who
testified that about a week after the night shift commenced,
seven of the eight employees that belonged to the Union
signed a list of union employees for Jackson, the union
representative. Also, during one evening Foreman Miller
told the second shift employees that he had belonged to a
union on the west coast that had gone on strike and that he
did not think the Union was a good thing; whereupon, Etier
spoke up in support of the Union stating "that was the only
way we were going to get any help." 7
On Friday, February 27, a hearing was held in Charlotte
upon the Union's petition in Case I1-RC-3075, at which
Etier appeared as a spectator. During the evening of
February 27, the second shift employees were notified that
the second shift was being terminated as of that night, and
that they were to appear at the personnel office the
following morning to secure their layoff slips. The following
morning the employees received slips from the personnel
office of the Company which stated that they were being
"temporarily laid off."
Analysis and Concluding Findings as to the Layoff
of the Second Shift
The General Counsel proved, in my view, a prima facie
case of discrimination by showing that the employees for
interrogation concerning union activities, without apparent justification,
constitutes a violation of Section 8(a)(1) of the Act
6 Credited testimony of Etier, corroborated in part by Redfern I find
the foregoing statement by Miller to constitute infringement upon the
exercise of employees' Section 7 rights, in violation of Section 8(a)(1) of the
Act
I The record shows that the second shift did not have a foreman as
such, and that Miller, who was the first shift foreman, stayed over several
hours into the second shift to get them started in their work.
CONSOLIDATED DIESEL ELECTRIC CO. 933
the second shift were hired with the representation that
such hiring would be of a permanent nature ; that thereafter
the great majority of them joined and assisted the Union in
its organizational drive; that such facts were well known to
the company management officials, who had exhibited an
antiunion animus; and that the abrupt layoff was
effectuated immediately following a hearing upon the
Union's petition for an election, without prior notice or
opportunity for discussion with any of the affected
employees. I also view as significant on this issue the fact
that none of the affected employees were given considera-
tion for other jobs in the plant although: (1) they had
acquired skills in operations which were normal to the
Company's production processes, and (2) the Company was
undergoing an expansion program which was expected to
result in many new hires.8 Certainly such conduct is not
consonant with economic motivation.
Having thus established a prima facie case of discrimina-
tion, the burden shifted to the Employer "to establish that
he was motivated by legitimate objectives since proof of
motivation is most accessible to him."9 The Employer
sought to show that the second shift had, in the first
instance , been established to make needed parts for the
Company's operation, which parts had previously been
supplied by its Schenectady facility but the production of
which had been diminished due to a strike at such facility.
However, on cross-examination, Respondent's plant man-
ager, Stitchner, conceded that the strike at the Schenectady
plant was over at the time the affected employees were
hired; indeed, the testimony in the representation case
indicated that the strike had been over since December 22,
1969. Under these circumstances, it does not seem
economically realistic to go to the expense of establishing a
second shift for a mere temporary replenishment of parts
which could be supplied by overtime work of existing
employees. Moreover, the Company's position here taken
of the temporary nature of the second shift seems
contradictory to the assertion by Rosecrans, Respondent's
director of industrial relations, in the representation case
(tr. p. 72) that it was the Company's intention to develop
the Charlotte facility " into a self-sufficient plant."
Respondent also cites, as reasons for the layoff of the
second shift, poor production and lack of adequate
supervision. However, these assertions are not supported by
substantial evidence. In the first place, there is no
documentary proof that second shift production was lower
than average although such a result might be anticipated in
the beginning stages in view of the fact that the employees
hired on the second shift were not fully skilled but were, as
above pointed out, in a training process. Moreover, the
8 See transcript in Case I I-RC-3075, incorporated by stipulation into
the record of the instant proceedings It is noted that at the time of that
hearing, the Company had approximately 173 production and maintenance
employees, at the time of the hearing in the instant case , the number had
risen to 300
9 See N L R B v Great Dane Trailers, inc, 388 U S 26 (1967)
10 1 note that although Stitchner testified that Schenectady "picked up
much faster after the strike than we had anticipated," the second shift
employees were, at the time of the layoff, still working a substantial
number of overtime hours
ii in view of this finding, I need not reach the alternative contention of
the General Counsel "that if the elimination of the second shift was not
discriminatory , the failure to reinstate and recall the discriminatees was"
(General Counsel' s brief at p 8) For the reasons cited above, I am in
testimony of Respondent's general manager in the
representation case (see tr. p. 45) indicated that parts
produced in the Respondent's Charlotte facility (in the
particular department under consideration) were shipped
"in respectable quantities" to the Schenectady plant. It may
be reasonably assumed that the production on the second
shift contributed to this. 10
Finally, although Respondent may have had some
difficulty in securing a supervisor for the second shift, it is
to be recalled that the second shift was operative only for a
period of approximately 3 to 4 weeks which would not
appear to be an undue length of time. There is no showing
in this record that there were any particular occurrences or
problems which arose during this period which were not
handled either by the first shift supervisor staying over for a
short time at the beginning of the shift, and/or the leadman
performing such supervisory functions as were required
during the remaining time.
Under all circumstances, I find that the evidence
submitted by the Respondent in support of its asserted
economic defense is not persuasive; accordingly, I find and
conclude that the compelling motive behind the summary
discontinuance of the second shift on February 28 was
because of the employees' umon activities and therefore
discriminatory within the meaning of Section 8(a)(3) and
(1) of the Act.ri
C. The Discharge of Charles Nail
Nail was first employed by the Company in February
1969, in the maintenance department under the supervision
of Gene Wright. Subsequently, at a time undisclosed by the
record, he was transferred to the fabricating department
under the supervision of Foreman Jim Miller, where he
remained until March 8, 1970, when he was returned to
Wright's supervision for a particular job during which he
was discharged.
Nail's activities on behalf of the Union were extensive.
He joined in March 1969, and thereafter engaged in
vigorous efforts to solicit other employees during nonwork
periods in the plant and at the front gate. He handed out
handbills and signed, according to his estimation, approxi-
mately 100 employees into the Union. He attended the two
NLRB representation case hearings on October 6, 1969,
and February 27, 1970, testifying at the first hearing. That
the Company was well aware of these activities is evident
from Nail's uncontradicted testimony that while distribut-
ing handbills at the front gate he gave one to Supervisor
Wright as well as other supervisors, and that during
agreement that the General Counsel has sustained his position on this issue
particularly in the light of the hiring of new employees subsequent to
February 28 as a part of the Respondent's expansionist program Clearly,
the fact that Respondent may have considered the second shift employees
to be "probationary" in view of the fact that they worked less than 60 days
does not deprive them of their protective status under the Act not to be
discriminated against with respect to recall or rehire
Respondent employed a new personnel director (Keel) in June,
succeeding Powers Keel "instituted a program of not rehiring people, it
being [his I experience that if a person leaves you; if you rehire them, they
are just going to leave you again; Aside from its doubtful
applicability to the second shift employees, the record reflects numerous
"exceptions" to this rule
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January Foreman Miller approached him in his work area
and told him that the Company could do more for him than
the Union and not to get cards signed up during working
hours.
As previously noted, he was transferred back to Wright's
department on March 8 to operate a drill press. The press
was utilized for the purpose of drilling holes in a missile
cradle base. Nail's job was to dell the holes on one side of
the base, and then, with the aid of an overhead crane which
turned the base, drill holes in the other side. Inasmuch as
the operation of the drill press emitted flying objects, the
operator was required to wear safety glasses which were
issued by the Company through the personnel office. Nail
had been issued safety glasses by Personnel Director
Powers who, according to Nail's uncontradicted testimony,
told him to wear them when he needed them. Nail attached
to the frame of his glasses an elastic band so that the glasses
could be hung around his neck during the times when he
was not actually operating the drill press. He testified that
while turning the base, he could see better with his glasses
hung around his neck than if they were placed over his eyes.
On March 10, the day of the events giving rise to the
discharge, he testified that he had just finished drilling one
side of the cradle base and was in the process of turning it
over when Supervisor Wright approached and asked him if
he did not know that he could be fired for not wearing his
safety glasses. Nail replied that he wore his glasses when the
drill press was operating. Wright walked off but returned in
about 5 minutes and told Nail to "hit the clock," and to
report the next morning to the personnel office. This
occurred at approximately I p.m. and, according to Nail's
testimony, comprised all of the conversation. The following
morning in the personnel office, Nail met with Industrial
Relations Manager Prendergast and Assistant Personnel
Director Kirkner.12 Nail asked Prendergast why he was
being laid off, and the latter said for insubordination. Nail
asked whether this was on account of his union activity, to
which Prendergast said no.
Wright testified, in substance, that Nail was working
under his supervision on the day of his discharge-that it
was the first day that he "had worked with me on the job,"
although Nail had previously worked for him; that he had
observed Nail not wearing his safety glasses on several
occasions that morning but that Nail, upon observing
Wright looking at him, put them on; that finally he went
over to Nail's machine and told him that he would have to
give him a "blue slip," i.e., a written warning, for not
wearing his glasses ; that Nail thereupon became very angry
and violent and told Wright to give him "a god damn blue
slip, ..." that he was getting "god damn tired of [Wright's]
riding [his] back"; that Wright suggested that they go to the
personnel office and "settle this," but Nail refused, saying
that he was not going any "god damn place with [him ]."
Wright left, and reported the incident to Assistant
Personnel Director Kirkner. Both men then reported the
incident to Industrial Relations Director Prendergast.13 A
decision was made to have Nail leave the premises for the
rest of the day, pending determination of what disciplinary
action was to be imposed.14 Accordingly, Wright, in the
company of Lucius Frick, manager of the engineering
department, told Nail to "hit the clock" and return the
following day to the personnel office. Wright further told
Nail that the reason for such action was Nail's refusal to go
with Wright to the personnel office and deliberately
refusing to wear his safety glasses.
That afternoon, Prendergast contacted Powers and a
decision was made to terminate Nail. The following
morning Nail reported to the personnel office and the
terminal interview took place, in essence, as testified to by
Nail, supra.
Analysis and Concluding Findings as to the
Discharge of Nail
A threshold issue involved in the determination of this
aspect of the case is the credibility of the witnesses Nail and
Wnght.15 This almost always difficult chore of a factfinder
is not rendered less so in the instant case. I had given long
and careful consideration to the demeanor of the witnesses
as they testified and to the inherent probability of the
situation gathered from the record as a whole. Nail was
quite impressive as a witness, answering questions directly
and forthrightly. On the other hand, Wright appeared
exceedingly nervous and emotional, and, as the record
reflects, was quite reluctant to repeat on cross-examination
the events of the conversation with Nail. Although Nail
may have been more abrupt with Wright than he was
willing to admit on the witness stand, I cannot believe from
his appearance or his previous work record in the plant that
he became as "violent" as Wright attempted to picture him.
Thus both Wright and Prendergast conceded that they had
known Nail for a long period of time, even before he
became an employee with the Respondent,is and that they
had never known him to be beligerent. In short, I am
inclined to believe, based upon the above analysis,
including demeanor considerations, that the truth of what
occurred during the conversation lies somewhere in
between the testimony of the two individuals, and that,
indeed, the ultimate issue of discrimination may be
disposed of without specifically attempting to determine
exactly what transpired on that particular occasion.17 My
rationale of the discriminatory motive underlying the
discharge of Nail may be summarized as follows: There's
nothing in the record to detract from the conclusion that
Nail had been an exemplary employee for the Respondent
since the inception of his employment. He thereafter
became very active on behalf of the Union, being perhaps
its most ardent supporter in the plant, and this fact was well
known to Respondent. The record reflects that the
Respondent opposed the unionization of its employees and
12 Personnel Director Powers was out of the city. conversation giving rise to the discharge to be a witness thereto.
13 As stated above, Personnel Director Powers was out of town that 18 Both testified that they had known him when all had apparently
day. worked for Douglas Aircraft, the predecessor company at the Respondent's
14 This decision apparently required the contacting of Powers premises
is The record reflects that no other person was close enough to the 17 Cf. Graham Fora Inc., 179 NLRB No. 99, at fn . 12 of TXD.
CONSOLIDATED DIESEL ELECTRIC CO. 935
promised to do everything within its power, legally, to keep
the Union out of the plant.is The "rule" respecting the
wearing of safety glasses, assuming that it was made known
to the employees, was honored more in the breach than in
enforcement.19 Thus Nail testified uncontradictedly that
when he was issued his glasses by Personnel Director
Powers, he was told to wear them only when he needed
them; Lucius Frick, manager of the engineering depart-
ment , testified that it would not be imperative for an
employee to wear his glasses when his machine was not
running; employee Raymond Redfern, an operator of a
punch press machine, testified that he was never issued a
pair of safety glasses while he worked at the Company and
no one ever reprimanded him for not wearing such glasses.
Indeed, he requested a pair of glasses from his supervisor,
but never received them prior to his layoff. Moreover,
although both Supervisors Wright and Frick testified that
they had warned Nail concerning his failure to wear his
glasses (which was denied by Nail) no warning slip was
produced by the Company.20 Finally, I have considered
that Nail, who took the trouble of attaching an elastic cord
to the frames of his glasses so that they would be
immediately available when he needed them while
operating his machine, was not so derelict and unconcerned
for his own safety as to not wear the glasses while his
machine was in operation.21
In sum , I find, after consideration of the record as a
whole, in essential agreement with counsel for the General
Counsel, that the incident giving rise to the discharge, i.e.,
the asserted enforcement of the safety rule, was developed
in order to provide a pretext for the discharge. In other
words, I am convinced that even if Wright's version of the
incident be credited, a discharge would probably not have
occurred had it not been for Nail's preeminence in union
activities to which Respondent was opposed. In this
connection I have considered that (1) Nail was a trained,
experienced, and exemplary employee at a time when
Respondent was engaged in an expansion program and was
having difficulty in obtaining and retaining such employ-
ees; and (2) the discharge occurred immediately after Nail
was transferred to the supervision of Wright (for reasons
undisclosed by the record). I am convinced that, had it not
been for Nail's union activities, the Respondent's officials
who made the decision to discharge (based assertedly on
Wright's report but not upon his recommendation) would
have considered this to be a momentary outburst perhaps
caused by a conflict of personalities, and would have,
rather than discharged, at most suspended him and
returned him to previous supervision.22 While I recognize
18 As previously found, however, one of the Respondent's supervisors
overstepped the bounds on several occasions
19 Respondent points to a rule which was assertedly posted on or about
July 7, 1969 (Resp Exh 1), which required "all employees , sub-contractors,
visitors and/or transient personnel entering or working in the shop area
must wear safety glasses at all times " Although Respondent's management
official asserted that this rule was posted on the bulletin boards in the
plant, no employee was produced as a witness to acknowledge such
posting, and all of the employees who testified on the subject for the
General Counsel denied seeing such a rule
20 In the absence of such a record in the personnel file of the employee,
or oral report of the supervisor to the officials of the personnel department
who made the decision to discharge (which testimony is lacking in this
record), there is no basis for a finding that Respondent knew of Nail's
that the Board is not entitled, under the Act, to substitute its
judgment for that of an employer, I deem it appropriate to
consider, from all of the facts in the record, what the
employer would probably have done under the circum-
stances had it not been for the employee's preeminence in
union activities.23 In short, I deem appropriate to the
circumstances of this case the following language of the
Court of Appeals for the Ninth Circuit in Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B., 362
F.2d 466,470:
If he [the Trial Examiner] finds that the stated motive
for a discharge is false, he certainly can infer that there
is another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
It should also be noted that even if a portion of the reason
for the discharge related to Nail's asserted malfeasance or
simply management's desire to sanction the prerogatives of
its supervisor (although, as above noted, Wright did not
make any recommendation respecting the disciplinary
action to be imposed), a violation accrues if a purpose of
the discipline is to interfere with employees' union
activities. As the Court of Appeals for the Fourth Circuit
stated the rule in N.L.R.B. v. Associated Naval Architects,
Inc., 355 F.2d 788, 792:
[11f discouragement of union membership was a
substantial, motivating reason for the layoffs, the
existence of an alternate ground of justification would
be no defense to a charge of employee discrimination
under section 8(a)(3). The charge is sufficiently
established if, in addition to an economic ground shown
in the Labor Board hearing, there is proof from which
the examiner may fairly find . . . that the layoffs were
motivated by a purpose to interfere with union
organizational activities. See N.L.R.B. v. Georgia Rug
Mill, 308 F.2d 89, 91-92 (5th Cir. 1962); N.L.R.B. v.
Wells, Inc., 162 F.2d 457, 460 (9th Cir. 1947).
Accordingly, I find that the discharge of Nail on March
II was in violation of Section 8(a)(3), (4), and (1) of the Act,
and I will recommend an appropriate remedy.
D. The Discharge of Ricky Mullinax
Mullinax commenced working for the Company on
November 18, 1969, as a maintenance welder under the
supervision of Gene Wright. It was acknowledged by
Personnel Director Powers and Plant Engineer Pinson that
asserted deficiency in this respect , if it, in fact , existed
21 Thus, I have no hesitancy in crediting his testimony in this regard
over that of Wright who testified that he observed Nail on several
occasions on the morning prior to his discharge failing to wear his glasses
while his machine was in operation
22 1 note that the decision to discharge was made prior to affording Nail
an opportunity to explain his version of the events . This has been held to
be evidence of discriminatory intent Rockingham Sleepwear, inc, 188
NLRB No 110 See also United States Rubber Company v. N LR.B., 384
F 2d 660 (C A 5), where the court stated "Perhaps most damning is the
fact that both Brewster and Morales were summarily discharged after
reports of their misconduct . . without being given any opportunity to
explain or give their version of the incidents."
23 See Betts Baking Co v. N LR. B., 380 F 2d 199, 205 (C.A. 10).
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mullinax was a "good welder," although the latter stated
that he had a problem of keeping Mullinax on thejob.24
Soon after his employment commenced, Mullinax joined
the Union (he signed a card for Nail) and became active in
organizational activities about the plant. Thus he solicited
the signatures on many union cards, he attended union
meetings at the union hall in Charlotte, and wore union
insignia on his person while at work. He also attended
(although he did not testify at) the NLRB representation
hearing on February 27. The Respondent does not deny
that, when Mullinax was terminated on April 3, Respon-
dent's officials were well aware of Mullinax's prounion
proclivities.
One day in the middle of February, during a break
period, Mullinax had a telephone conversation with Bill
Jackson, the union organizer, in which the latter instructed
Mullinax to meet him at the plant gate during the dinner
hour to receive some union materials. Mullinax complied
with the instructions, and received the materials in a brown
envelope through the plant gate. Mullinax then took the
envelope and placed it in his own toolbox inside a company
cabinet where metal rods were stored, to which Mullinax
had access as a welder. There is much confusing and
conflicting testimony in the record as to what transpired
thereafter respecting the brown envelope. According to
Mullinax's testimony, Plant Engineer Pinson thereafter
opened the cabinet as well as Mullinax's toolbox and, for a
short period of time, took the brown envelope into Plant
Manager Stitchner's office and then returned it to the
cabinet. Mullinax, having given his key to Pinson, then
jimmied open the door to the metal cabinet to see whether
the contents of the brown envelope had been disturbed.
Pinson accused Mullinax of damaging the cabinet door,
which Mullinax denied; Pinson then took Mullinax to the
personnel office where the incident was discussed with
Personnel Director Powers.25
Powers asked why Mullinax pried open the door to which
the latter responded that he had private property in the
cabinet which he wanted to secure. Powers decided that
Mullinax should have a 2-day suspension for damaging the
Company's property.
A day or two prior to Mullinax's termination on April 3,
he was transferred to the general supervision of Avery
Wilbur, general foreman of welding. During the several
days he worked under Wilbur, Mullinax was assigned to
work on fixtures which are devices for holding parts
together while they are being welded. However, there was
either not enough work to be done or, as Mullinax testified,
the leadman, Allen, told him that there was only one
welding machine in the area and that the three employees
(Allen, Mullinax, and another unnamed employee) would
"swap around." During idle times Mullinax and some of
the other employees would make metal hammer handles.26
24 Respondent introduced documentary evidence into the record
indicating that Mullinax was absent from thejob quite a few times during
the period of his employment although it also appears that Pinson knew
that some of these absences were due to Mullinax 's sick wife
25 Pinson admitted that he saw Mullinax with the package, which
aroused his suspicion . When he subsequently saw Mullinax without the
package , he concluded that Mullinax had broken a rule of carrying
something into the plant and locking it in the tool cabinet He asked
Mullinax for the latter 's key to the cabinet , which Mullinax gave him, but
On the day of his termination, Mullinax had run out of
metal rods and sought to secure some from both Pinson and
Wilbur. However, when told they were unavailable, he went
to Pinson's office, requested and secured a key to the
salvage yard where he went for the purpose of looking for
some used rods. He was there for over an hour and located
some rods at the bottom of a pile. According to his
testimony, he dragged them to the maintenance department
where he sawed the material with a band saw. While he was
there, Wilbur came up and asked what he was doing, but
said nothing further. Mullinax stayed there until lunchtime
and then returned to his original work station after lunch.
At that time, Wilbur came up to him and advised that some
clips had been faultily welded on some fixtures and asked
Mullinax to grind them off, which Mullinax was doing
when Wilbur returned a few minutes later and instructed
him to go to the personnel office. Present there were
Personnel Director Powers, his assistant, Kirkner, and
Wilbur.
Powers opened the interview by asking Mullinax where
he had been that morning, stating that they had been
looking for him. Mullinax replied that he had been to the
salvage yard. At that point, according to Powers' testimony,
Mullinax admitted that he had walked off the job without
permission and that he had talked to another employee on
the job thereby interfering with the work. Powers then
testified that he stated as follows:
And so I said, "Well, Rick, we cannot have this. As
far as we are concerned, you walked out of the building;
you voluntarily quit."
And he looked at me, and he said, "You mean I am
going to be terminated?"
I said, "You terminated yourself. You voluntarily
quit."
And so he said, "Well, I don't know what to say." I
said, "Well, Rick I tell you now; when you go to apply
for another job and people call me", I said, "I would
like to give you a good reference . And I said, "When we
fill out this exit interview, we can do it one of two ways,
you can either voluntarily quit, and I will put it on here,
or we will terminate you for cause."
He said, he just sat there for a minute, and then he
kind of looked up at me and said, "Well, I guess
voluntarily quit would be the best."
I said, "Now, Rick, before I fill out this paper,"
which was an exit interview; I said, "Rick, put yourself
in my place. What would you do if you were sitting here
in my place?"
He said, "I would do the same thing that you are
doing. I would fire you."
I said, "Well, Rick, we don't have any choice but
really you are voluntarily quitting, is that right?"
He said, "Yes, sir."
Pinson did not open the cabinet at that time; rather he went to his office to
contact Powers . When he returned to the cabinet he testified that he saw
Mullinax there and the cabinet door had been pried open and the door was
bent He then took Mullinax to the personnel office.
26 This actually involved the replacing of wooden hammer handles with
metal ones which the employees made . It was apparently against the
company policy although, as far as the record shows, no employee was
reprimanded or disciplined for it.
CONSOLIDATED DIESEL ELECTRIC CO. 937
Powers then, according to his testimony, commenced
filling out an exit interview sheet, in the process of which he
asked Mullinax some questions and the latter responded.27
Powers testified that he completed the whole exit interview,
as described on the exhibit, signed it himself, and handed it
to Mullinax for his signature; that Mullinax signed it and
Supervisor Wilbur signed it after Mullinax and that
completed the interview.
Mullinax 's version of the interview is at substantial
variance with the above. He states that at the commence-
ment of the interview, Powers advised that they were
terminating him because he had been to the salvage yard
and then Powers started to fill out the exit interview sheet;
that when Powers handed it to him for signature, the blanks
at the top of the sheet such as name, date, supervisor, job
title , and the word "No" under "training on job" were filled
in, but that was all. Mullinax denies that the words
"voluntarily quit" and the words following it in the section
entitled "What were the most important factors which
influenced you to leave" were on the sheet. Mullinax also
denied that the words "This employee admitted that he had
been given every chance in the world" were on it. However,
when Powers gave it to him with Powers' signature on it,
Mullinax signed it and returned it to him, and it was at that
time that Powers wrote "voluntarily quit" on the sheet. At
that point, Mullinax started to get out of his chair and
approach Powers' desk in order to get the sheet, but Wilbur
and Kirkner restrained him. Mullinax then left.
After leaving the plant, Mullinax called the Union's
attorney and related the events of his termination. Upon
the attorney's advice, Mullinax returned to the plant about
a half hour later and asked Powers to be reinstated, without
seniority or other rights and privileges. However, Powers
refused , stating that it was too late.
Analysis and Concluding Findings as to the
Termination of Mullinax
In assessing the merits of the charge on this aspect of the
case , the context of the situation should be recalled. That is
to say, the termination occurred at the height of the Union's
organizational campaign (to which the Company was
unalterably opposed), shortly following the representation
hearing upon the Union's petition for an election upon
which a Decision and Direction of Election could
reasonably be anticipated in the near future. The record
establishes that Mullinax was one of the more militant
union activists in the plant, and his job as a maintenance
welder would permit, indeed require, his presence in all
areas thereof.
The circumstances of his transfer a few days prior to the
termination are somewhat vague and contradictory on the
record, and tend to cast suspicion upon the real reason
therefor. Thus Wilbur testified at one point that he made
the request for a welder, but at another point testified that
he was not a party to the decision to transfer Mullinax but
the plant manager explained to him that Mullinax was
transferred because "we needed him in the other building."
Mullinax testified that during the short period he worked
under Wilbur's supervision, a substantial amount of idle
time resulted from the fact that there was only one welding
machine for three employees. Although Wilbur claimed
"there was plenty [of work]," I note that he did not make
any complaint to higher management about Mullinax
"goofing off" or making hammer handles. Moreover, it
seems highly unusual that Wilbur did not know the
foreman's name who was directly responsible for Mulli-
nax's work proficiency. Finally, it would appear that if
Mullinax's laxity in work habits were as faulty as
Respondent would have us believe, one might reasonably
expect that Wilbur (or his subordinate) would have
reported same and/or made a recommendation respecting
disciplinary action to the personnel department, but there is
no evidence of this. Under all these circumstances, I credit
Mullinax with respect to the work situation and his
activities on the morning of his termination.28
Finally and most unusual is the conduct of Powers, an
experienced personnel director, at the exit
interview-according to his own testimony. Thus he
accused Mullinax of having voluntarily quit his employ-
ment with the Company by merely "walk[ing] out of the
building." In the absence of an ulterior motive, such an
assertion seems patently incredible in the absence of any
statement of such intention by Mullinax or his leaving the
premises of the Company, which he did not. Such conduct
on the part of Powers, in my view, in the context above
stated, could only have a motive of discriminating against
Mullinax because of the latter 's union activities 29
It may be readily acknowledged, as Respondent argues
and the record confirms, that Mullinax was not the
exemplary employee Nail was from the standpoint of his
absentee record or prior misconduct. But this was not relied
upon-indeed even mentioned-at the exit interview.
Accordingly, "the company may not rely upon earlier
misconduct as the ground for effecting a discharge
substantially later when there is no showing of any
significant misconduct immediately preceding the
discharge." 30 I also note that the decision to terminate was
made by higher management officials without seeking the
advice or recommendation of Mullinax's immediate
supervisor. Such conduct has been held to constitute
evidence of discriminatory intent.31
Finally, it is, of course, well established that "the
existence of valid grounds for punitive action is no defense
unless such action was predicated solely on these grounds
27 See G C. Exh 6
28 Indeed , I note that even when Wilbur directed Mullinax to report to
the personnel office, he did not ask where he had been or otherwise
reproach him for his conduct that morning . Compare this reaction to
Powers' testimony that, upon being told that Wilbur could not locate
Mullinax , he "became excited" and rounded up his assistant along with the
plant manager and began a manhunt for Mullinax Also I note Mullinax's
testimony that he had requested a key to the salvage yard from Pinson, but
the latter said it was unlocked Pinson was not interrogated on this point
although Powers testified that he checked with Pinson that morning
respecting Mullinax's whereabouts but Pinson "didn't know He [Mullinax]
didn't work for him."
29 Shattuck Denn Mining Corporation v. N.L R B., supra
30 N L R.B v Overnite Transportation Co., 308 F.2d 284, 293 (C.A. 4),
enfg. in part and setting aside in part 129 NLRB 261.
31 See Ambox, Incorporated, 146 NLRB 1520, 1523.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and not by a desire to discourage protected activity [citing
cases]."32
Since I have found in the instant case, for all of the
reasons hereinabove cited, that a motivating purpose for
the termination of Mullinax was Respondent's desire to rid
itself, before the NLRB election, of an active union
adherent, to discourage membership in the Union, I find
that the General Counsel has sustained his burden on this
issue , and I will recommend an appropriate remedy.33
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's inter-
state operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the record as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating against employees in order to
discourage union membership among its employees, or
because they gave testimony under the Act, Respondent
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(4),(3), and (1) of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not commit an unfair labor practice
by promulgating and maintaining an illegal no-solicitation
rule, as alleged in the complaint.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against
the employees named below, on or about the date set
32 N L R B v Fairview Hospital, F 2d 75 LRRM 2839 (C A 7)
33 In its brief, Respondent relies on the "somewhat similar" case of
Superior Company, Inc, 94 NLRB 586, 602-605 In that case , the Trial
Examiner (with Board approval) upheld the legality of the discharge on the
ground that it involved an employee who was "throughout his employment,
a generally unsatisfactory employee, and that on August 28 he committed a
dereliction which in its view was the 'straw that broke the camel 's back' "
In the instant case , to the contrary, Respondent viewed Mullinax as a
generally satisfactory employee . Personnel Director Powers referred to him
as a "good welder" and cited as the reason for his transfer that, "We
needed another welder of his caliber in that department, and Mr Stitchner
opposite their names , because they engaged in union and
concerted activities protected by the Act, or because they
gave testimony under the Act, I will recommend that the
Respondent be ordered to offer them immediate reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make each whole for any loss of earnings he
may have suffered by reason of the discrimination against
him. Backpay should be computed in accordance with the
formulae prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co,
138 NLRB 716.
Charles N. Nail 3/11/70
Ricky C. Mullinax 4/3/70
Powell E. Etter 2/28/70
Raymond O. Redfern 2/28/70
Ralph E. Stilwell 2/28/70
Ray Carver 2/28/70
Bobby Hagler 2/28/70
Frank McClure 2/28/70
As the unfair labor practices committed by the Respon-
dent were of a character which go to the very heart of the
Act, it will be recommended that the Respondent cease and
desist from infringing in any other manner upon the rights
of employees guaranteed by Section 7 of the Act. N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 34
ORDER
Respondent, Consolidated Diesel Electric Company
Division of Condec Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against any employee in regard to his hire or tenure of
employment or any term or condition of employment in
order to discourage membership in International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, or any other labor
organization.
(b) Coercively interrogating any employee concerning his
union membership or union activities.
(c) Threatening employees with reprisals should they
engage in activities on behalf of a labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
asked for him to be transferred " Moreover, Powers testified that he would
consider Mullinax for rehire in 3 or 4 months Finally, it seems significant
that if Mullinax's prior derelictions were viewed with as much gravity as
Respondent would have us believe , there would have been some mention
of them in the exit interview , but there was not
34 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and order , and all objections thereto shall
be deemed waived for all purposes.
CONSOLIDATED DIESEL ELECTRIC CO.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer each of the employees named above in "The
Remedy" section of this decision immediate and full
reinstatement to his former job or, if this job no longer
exists , to a substantially equivalent position, without
prejudice to seniority or other rights and privileges
previously enjoyed, and make each whole for any loss of
pay he may have suffered as the result of discrimination
against him in the manner provided in the section of this
decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(d) Post at its Charlotte, North Carolina, plant copies of
the attached notice marked "Appendix." 35 Copies of said
notice, on forms provided by the Regional Director for
Region 11 , after being duly signed by Respondent's
authorized representative , shall be posted by the Respon-
dent immediately 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
35 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
939
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
trial, that we violated Federal law by discharging employ-
ees for supporting a union, and by otherwise interfering
with our employees' right to join and support a union;
WE WILL offer full reinstatement to the employees
named below, with backpay plus 6 percent interest.
Charles N. Nail Ralph E. Stilwell
Ricky C. Mullinax Ray Carver
Powell E. Etier Bobby Hagler
Raymond O. Redfern Frank McClure
WE WILL NOT discharge or discnminate against any
employee for supporting International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, or any other union.
WE WILL NOT coercively question you about union
support or union activities.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
Dated By
CONSOLIDATED DIESEL
ELECTRIC COMPANY
DIVISION OF CONDEC
CORPORATION
(Employer)
(Representative ) (Title)
We will notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-2300.