Currie Electrograph Corp.

National Labor Relations Board - Board Decisions

Feb 14, 1973

201 N.L.R.B. 851 (N.L.R.B. 1973)

CURRIE ELECTROGRAPH CORPORATION 851
Currie Electrograph Corporation and International
Union, United Automobile , Aerospace & Agricul-
tural Implement Workers of America -UAW. Case
38-CA-1520
Upon the entire record in this case , including my
observation of the demeanor of witnesses and upon
consideration of briefs , I make the following:
FINDINGS OF FACT
February 14, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On November 7, 1972, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions I of the Administrative Law Judge
and to adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that Respondent, Currie Electrograph
Corporation, Springfield, Illinois , its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
i Member Kennedy agrees with the Administrative Law Judge's finding
that Respondent discharged Thomas Toomey in violation of Sec. 8(a)(3) of
the Act, because . inter aha, the record reveals that Toomey did not interfere
with his own or other employees' work on those few occasions when he
solicited employees in behalf of the Union during working hours. Cf. Dayhn
Inc, Discount Division d/b/a Miller's Discount Department Stores, 198
NLRB No. 40.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon
charges filed by the aforenamed Union, the General
Counsel issued a complaint on August 11, 1972, alleging, as
amended at the hearing, violations of Section 8(a)(1) and
(3) of the Act. Respondent denies the commission of unfair
labor practices, and a hearing was held on September 28,
1972.
i All dates herein are in 1972 unless otherwise stated.
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation with office and
plant in Springfield , Illinois, where it manufactures and
sells printed circuits . Respondent's interstate sales and
purchases respectively exceed $50,000 annually . I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent discharged Thomas Toomey on May 11,
1972, claiming that it took such action principally because
of Toomey's failure to remain at his work station during
working hours.
Toomey's employment with Respondent began the
second week of April 1972.1 Two weeks later he was
transferred to the third shift as a programmer making tapes
for drilling machine employees. Respondent operates three
shifts with an overlap between some shifts-the first shift
runs from 7 a.m. until 3 : 30 p.m ., the second shift from 3:30
p.m. until 12 midnight , and the third shift from 11 p.m.
until 7:30 a.m. Toomey worked alone in the programming
room . Directly across the corridor from the programming
room is the drilling room where employees perform their
drilling operations in accordance with the programmed
tapes. Jack Edgecomb , Jr. (who is no longer in Respon-
dent's employ) was the drilling room supervisor with
approximately 12 drillers on the second shift; Robert
Stover was drilling room supervisor over 3 drillers on the
third shift; and Carl Ramey was the first-shift supervisor.
John Joniak is the production manager.
On or about May 1, Toomey made initial contact with
the Union and arranged to meet at the union hall that
same day with Union President John M. Lutz and fellow
employee Stephen Burns . At their next meeting on May 5,
Lutz gave them union authorization cards for distribution.
Toomey solicited employee signatures on May 8, 9, and 10.
He did this during workbreaks and on a few occasions
during working time including overlapping shift periods.
The conversations were of short duration, lasting but a few
minutes . Toomey thus went into the drilling room for this
purpose, Supervisors Edgecomb and Stover being present
on such occasion . Neither supervisor criticized or other-
wise said anything to Toomey concerning such activity,
nor did any other management representative . There were
no plant rules forbidding such activity.
On or about May 9, Toomey asked second-shift
201 NLRB No. 122
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee Patricia Tuxhorn to drop by to see him in the
programming room . Tuxhorn did so during the overlap-
ping shift period and Toomey offered her a union card.
Tuxhorn said she wasn 't interested and left . The next day
Tuxhorn informed Production Manager Joniak of her
conversation with Toomey; Joniak asked Tuxhorn whether
any one else had been approached and who was behind the
union movement . Tuxhorn replied that Toomey was
spearheading this activity.
That same day in the plant Joniak asked employee
Sherilyn Cates whether she had been approached in behalf
of the Union and whether she and others had signed union
cards and who had done the soliciting . Cates admitted to
Joniak that she and other employees had signed union
cards but said she preferred not to disclose who had
solicited her. Joniak said , "that's quite all right, I have a
pretty good idea who it is." Joniak further told Cates,
according to Cates ' uncontroverted testimony , that "we
could not have a union at that time because the company
was too young." Joniak requested that Cates treat their
conversation as confidential.
The following day, May 11, Supervisor Ramey escorted
Toomey to Production Manager Joniak, who advised
Toomey he was being terminated for leaving his work
station . Toomey responded that he had not violated any
plant rules and had always completed his work assign-
ments . Joniak then told Toomey, according to Toomey's
uncontradicted and otherwise credible testimony, "that
was all he [Joniak ] could say, I was being terminated, I
should leave the building and never come back."
Further Findings
The record shows that Toomey did have some union
conversations during working hours and that he left his
work station for such purpose on a few occasions. The
record further shows , however, that employees generally
did engage in short nonwork-related conversations , princi-
pally, however, when their duties took them to other
departments . Supervisor Edgecomb described the general
plant practice and atmosphere as "casual" in this connec-
tion and he testified that, to his knowledge , Toomey's
questioned activities never in fact interfered with his own
or other employees' drilling room operations. Supervisor
Stover also testified that Toomey's visit and nonwork
conversations in the drilling room were not unusual plant
conduct . The Respondent asserts , however , that Toomey's
visits and conversations with employees in the drilling
room did distract and interfere with drilling department
employees with resulting poor performance by those
employees.
Robert Currie is Respondent's president . Currie was on a
business trip during the week of May 8 , and he testified
that during his absence he was in daily communication
with Chief Engineer Edward Engstrom concerning plant
matters . Currie testified that Engstrom advised him in one
of these conversations on May 10 that the drilling
department was operating poorly. Engstrom further report-
ed to Currie , according to Currie's testimony, that
Production Manager Joniak had told Engstrom that
Toomey had been leaving his work station and visiting
other departments , including the drilling department, and
that "rumors had it that he [Toomey ] was part of a group
of people who were attempting to organize a union in the
plant." Currie testified that he then told Engstrom he
(Currie) didn't care what Toomey was discussing but that
Toomey should be fired for "disrupting other people." 2
Respondent offered in this connection its inspection
records for the period from May I through May 20 , for the
purpose of showing a rise in defective boards from the
drilling department during the week of May 8 ; however,
this is only a 3-week basis , and-as I suggested at the
hearing-this limited sample seems insufficient to permit
me fairly to find a nexus between a purported increase in
defective boards and Toomey's few short conversations
with drilling employees during working hours.
Edgecomb, the second-shift supervisor, testified that in
the event of an unusually high number of defective boards
the plant practice was to check out the problem with the
drilling employees affected by going down the "chain of
command." Thus, the regular procedure was for Joniak to
contact the involved drilling department supervisor who, in
turn, would seek out the source of the problem and then
take corrective action . Edgecomb testified that Joniak nor
anyone else had even inquired about an abnormal number
of defective boards at material times here.
Currie testified , on cross-examination, that he had little
direct contact with employees and that hiring and firing
matters were not usually called to his attention . He went
on to say that Toomey 's personal appearance-hair and
attire-had been brought to his attention "a number of
times" by plant visitors , including customers, and that such
appearance factor may have influenced him in getting
involved in the Toomey situation and directing his
discharge . (Although stating its reasons for the discharge at
the outset of the hearing , the "appearance" factor was not
mentioned by Respondent until Currie's cross-examina-
tion .) When then asked how many customers came to the
plant during Toomey's shift hours between 11 at night and
7 in the morning during the first 2 weeks in May, Currie
replied, "probably none ." Edgecomb testified that Too-
mey's appearance did not stand out from several other
employees.
Concluding Findings
Toomey's few visits and limited conversation during
either his or other employees' working hours did not differ
from accepted plant practice except that his concerned
union matters . He was a satisfactory employee, having
received no criticism or reprimands or warnings in any
respect . The record, I find, does not establish that Toomey
disrupted or otherwise interfered with his own or other
employees ' work or that Respondent fired him for such
reason . I find, rather, upon consideration of the entire
record, including the peremptory discharge following
knowledge of Toomey 's union role, Joniak's interrogation
of Cates , Currie's variance from his own practice respect-
ing personnel involvement , the variance from plant
procedures as to a claimed rising number of drilling
2 Neither Engstrom nor Joniak testified in this proceeding,
CURRIE ELECTROGRAPH CORPORATION 853
defects, if there was such increase, that the record
establishes that Respondent discharged Toomey because
of his organizational role and not because he left the
programming room on a few occasions.3
I accordingly conclude that Respondent violated Section
8(a)(1) and (3) of the Act by discharging Toomey and that
Respondent further violated Section 8(a)(1) by Joniak's
interrogation of Cates. Daylin Inc., Daylin Division d/b/a
Miller's Discount Department Stores, 198 NLRB No. 40.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within 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 coercively interrogating an employee concerning
her own and other employees' union membership and
activities, Respondent has violated Section 8(a)(1) of the
Act.
4. By discharging Thomas Toomey because of his
union or concerted activity, Respondent has violated
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(l) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action, including reinstating
and making whole Toomey, in order to effectuate the
policies of the Act. All backpay computations shall be in
accordance with F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended: 4
ORDER
for any loss of earnings suffered as a result of the
discrimination against him.
(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 and the
right of reinstatement under the terms of this recommend-
ed Order.
(c) Post at its place of business at Springfield, Illinois,
copies of the attached notice marked "Appendix." s Copies
of said notice, on forms provided by the Officer-in-Charge
for Subregion 38 of the Board, after being duly signed by
Respondent's authorized representative , shall be posted by
it 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith .6
3 Indeed , the record shows that even more recently than Toomey's
discharge, another employee openly circulated a petition during working
hours for a purpose unrelated to the job; Production Manager Joniak
himself signed the petition , and the involved employee was not reprimanded
and is still on Respondent's payroll.
4 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.
5 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
6 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Officer-m -Charge for Subregion 38, in writing , within 20 days
from the date of this Order , what steps have been taken to comply
herewith."
Respondent, Currie Electrograph Corporation, Spring-
field , Illinois, its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning their own and
other employees' union membership and activities.
(b) Discharging employees for reason of membership
and activities in behalf of International Union, United
Automobile Aerospace & Agricultural Implement Workers
of America-UAW, or any other union.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Thomas Toomey immediate and full
reinstatement his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make
Toomey whole as set forth in The Remedy section above,
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL reinstate and make whole Thomas Toomey
for his earnings lost since May 11, 1972.
WE WILL NOT question employees concerning their
own and other employees' union membership and
activities.
WE WILL NOT in any other manner discriminate
against employees for union reasons or because they
exercise their rights under the Labor Management
Relations Act.
All our employees are free to join or remain members of
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America-UAW, or of
any other union , or not to join or remain members unless
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such membership is required under a lawful contract under This is an official notice and must not be defaced by
the Labor Management Relations Act. anyone.
This notice must remain posted for 60 consecutive days
CURRIE ELECTROGRAPH from the date of posting and must not be altered , defaced,
CORPORATION or covered by any other material . Any questions concern-
(Employer) ing this notice or compliance with its provisions may be
directed to the Board's Office , 1000 Savings Center Tower,
Dated By 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602,
(Representative) (Title) Telephone 309-673-9061.