Dektronics, Inc.

National Labor Relations Board - Board Decisions

Oct 14, 1969

179 N.L.R.B. 89 (N.L.R.B. 1969)

DEKTRONICS, INC.
Dektronics , Inc. and Martha Elaine Sloan and
Marlene Winkler and Communications Workers
of America, AFL-CIO and Elizabeth White. Case
12-CA-4339-1, 12-CA-4339-2, 12-CA-4368-1, and
12-CA-4368-2
October 14, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On May 21, 1969, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision
with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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, the brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that Respondent,
Dektronics, Inc., Orlando, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Add the following as paragraph 2(c), and
reletter the following paragraphs accordingly:
in the absence of exceptions thereto, we adopt, pro forma, the Trial
Examiner's finding that Respondent did not engage in certain other unfair
labor practices alleged in the complaint
There is an inadvertent error in the Trial Examiner's Decision In the
last sentence of the next to the last substantive paragraph in section III, F,
the Trial Examiner found that White, in Respondent's opinion, "could
have performed the work which was assigned to the new employees hired
beginning on November 25 " This date is corrected to read October 25
89
"(c) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
2. Add the following as the last indented
paragraph of the notice-
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
Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
TRIAL EXAMINER'S DECISION
HAROLD X. SUMMERS, Trial Examiner. In this
proceeding, the General Counsel of the National Labor
Relations Board (herein called the General Counsel and
the Board, respectively) issued an amended consolidated
complaint' alleging that Dektronics, Inc (herein
Respondent or, simply, Dektronics) had engaged in and
was engaging in unfair labor practices within the meaning
of Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended (the Act) The answer to the amended
consolidated complaint (as further amended) admitted
some of the allegations of the complaint and denied
others, in effect, it denied the commission of any unfair
labor practices Pursuant to notice, a hearing was held
before me at Orlando, Florida, on January 23 and 24, and
February 4 and 5, 1969 All parties were afforded full
opportunity to call and examine and to cross-examine
witnesses, to argue orally, and thereafter to submit briefs.
Upon the entire record in the case, including my
evaluation of the reliability of the witnesses based upon
the evidence and my observation of their demeanor, I
make the following
FINDINGS OF FACT
I COMMERCE
Respondent is a Florida corporation with an office and
plant located at Altamonte Springs, Florida, where it is
engaged in the business of manufacturing transformers
and related products. During the 12-month period
preceding the issuance of the instant amended
consolidated complaint, Respondent, in the course of its
business operations, purchased and received at its
Altamonte Springs plant directly from points outside the
State of Florida goods and materials valued in excess of
$50,000
Respondent is an employer engaged in commerce
within the meaning of the Act.
'This was issued on November 27, 1968, the original complaint having
been issued on November 12 The various charges initiating the proceeding
were respectively filed on September 24 and 27 and November 6 and 8,
1968
179 NLRB No. 15
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It THE UNION
Communications Workers of America, District 3,
AFL-CIO (hereinafter , the Union)' is a labor organization
within the meaning of the Act
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
General Counsel alleges, and Respondent denies, that
Dektronics
(a) through its president, Harold Decker, in a speech he
delivered to employees on September 11, 1968, (1) notified
them he was aware they were engaged in organizing
activities on behalf of the Union, (2) warned them the
plant would' be sold or closed in the event it was
unionized; (3) advised them that, even if the Union were
successful in its organizing attempts, he would never sign
a union contract, (4) warned them that he could discharge
most of them and hire new employees, (5) told them that
signing union cards would cause them trouble and told
them to get such cards back; (6) characterized employee
union leaders as the least competent employees; (7)
threatened that stricter work standards would be imposed
on employees, (8) threatened that he would have
employees' activities in the plant observed and reported to
him; and (9) announced a new policy of interviewing and
evaluating employees for wage setting purposes (a policy
which subsequently was installed).
(b) through Decker, in a speech delivered to employees
the next day,
(1) warned them he would close the plant before he
would let a union in, (2) advised them he was imposing
stricter production requirements, and would discharge
employees failing to meet such requirements, (3) notified
them they could not discuss the Union on company
property, and (4) announced a new rule forbidding them
to leave work stations without raising hands and getting
supervisory permission
(c) through Decker, on or about September 19, in a
conversation with an employee held in his office, (1)
interrogated her about her union sympathies, and (2)
threatened to close the plant if it were unionized;
all constituting interference with, or restraint or coercion
of, employees in the exercise of the self-organizational
rights guaranteed them by the Act
General Counsel further alleges, and Respondent
denies, that Dektronics-
(a) On or about September 25, 1968, discharged
employee Marlene Winkler, and thereafter failed to
reinstate her, because she joined or assisted the Union or
because she engaged in other concerted activities for the
purpose of collective bargaining or other employees
mutual aid or protection; and
(b) On or about October 1, 1968, laid off employee
Elizabeth White, and thereafter failed to reinstate her, for
the same reasons,
both acts constituting discrimination in regard to tenure of
employment to discourage membership in a labor
organization, as well as interference with, or restraint or
'Communications Workers of America, AFL-CIO, was the charging
party in Case 12-CA-4368 Its District 3 is the component part concerned
with the organizing of employees involved herein
'in the complaint , this word appeared as "could," but , at the hearing,
the emphasis and the testimony related to whether Decker did or did not
say that the plant would be sold or closed
coercion of, employees in the exercise of their
self-organizational rights
B Background and Setting
At all times relevant herein - roughly, the latter half
of 1968' - Respondent was engaged in the manufacture,
either from its own or from customers' designs, of
transformers and related equipment for use in the aviation
industry Its president, Harold Decker, sole owner of its
stock, actively devoted himself to administrative work,
related both to sales and to production.
Having been formed in May 1964, Dektronics had
steadily grown At the close of 1967 - a "very profitable
year" - the number on its payroll had reached 100,
including 60 production employees
During the summer of 1968, Decker noted what he
believed to be a weak spot in the company's operations. It
was his progressively growing opinion, as gleaned from
interim reports and from his own observations, that, since
the end of June, shipments out of finished products had
fallen and production costs had risen. His opinion was
confirmed, in terms of dollars and cents, when, at the end
of September, he received the June profit-and-loss
statement, followed shortly by those of July and August'
Decker was enough disturbed that, beginning at or
shortly after June, he mentioned the subject of "rejects"
to one or another of the employees on an individual basis.
On a more formal level, in the month of August, he spoke
to his supervisors: he cautioned them to pay more
attention to their areas of responsibility-specifically, to
replace employees not doing their jobs. Also, at or about
this time, a rule to the effect that employees should not
leave their workplaces without advance notice and
permission was announced.
Among the major steps taken was the hiring, late in
August, of Anthony Juliano, a neighbor and friend of
Decker Juliano, whose official title was sales manager
and acting production control supervisor - and who later
came to be regarded by Decker as his "general manager"
- was charged with the responsibility of developing
production techniques, establishing channels of
communication between Respondent's various
departments, developing a system of production control
and, in general, promoting efficiency His efforts first took
tangible shape on or about August 31, when he introduced
a "time ticket" to be maintained by each employee to
record activities.
As the final element of the background with which this
case is concerned, it should be noted that, as September
opened, the Union was actively engaged in organizing
campaigns among the employees of a number of central
Florida enterprises in the same business as Dektronics
C Chronology of Events
The husband of Anne Hauser, who worked for
Respondent, was employed by one of the nearby
employers involved in organizational campaigns by the
Union On several occasions early in September, Anne
Hauser spoke to her fellow employee, Elizabeth White
'Unless otherwise indicated, all dates referred to in this Decision fall
within 1968
'Ordinarily , he would have received such statements on a more current
basis During this summer, however , access to Respondent's books was
hampered by the fact that the Internal Revenue Service was conducting an
audit
DEKTRONICS, INC. 91
(one of the charging parties herein), about bringing the
Union into Dektronics, an idea to which White responded
favorably Both Hauser and White tried to establish
contact with Edward Seawell, Union representative, and
finally, on Monday, September 9, White reached him by
telephone. The two spoke about organizing Dektronics
and it was arranged that a meeting of employees would be
held at White's home that evening
Pursuant to these arrangements, Seawell and another
union representative met with six of Respondent's
employees. Among the six, in addition to White and
Hauser, was Marlene Winkler (another of the charging
parties in this matter). The employees present were given
instructions about organizing their fellow employees, and,
by the end of the meeting, all six signed cards authorizing
the Union to act as their bargaining agent As they left,
each took organizing literature and authorization cards.
During the next several days those who had attended
the meeting conducted a campaign among their fellow
employees to persuade them to sign the authorization
cards. By prearrangement, all signed cards were given to
Elizabeth White for ultimate transmission to Seawell.
Since there is no allegation here of an unlawful refusal
to bargain, a precise measure of the success of the
organizing campaign is immaterial to this decision Suffice
it to say - and I find - that adherents of the Union
believed that, within a matter of 30 hours following the
September 9 meeting, they had procured the signed
authorization cards of a majority of Respondent's 56 to
60 nonsupervisory employees working in the following
sections transformer, RF assembly, toroid, inspection,
production testing, shipping and receiving, truck driving,
and maintenance.'
On the day following the September 9 union meeting,
the existence of the organizing campaign came to the
attention of management. Anne Hauser (one of the
original union supporters!) and Mildred Stewart, another
employee, asked William Martin, then head of the
transformer section,' if he was aware that a union was
trying to get into the plant Martin reported this
conversation to his father, Robert Martin, then
Respondent's vice president and director of engineering.
Presumably, the matter would have rested there, except
that the conversation between Martin, Jr , and Martin,
Sr., was overheard by Sales Manager/Production Control
Supervisor Juliano. At or about 8 a.m. on September 11,
Juliano reported the conversation to Decker. Later the
same morning, he reraised the subject with Decker, adding
the "rumor" that "they have to get all these cards in by
noon " Decker professed disinterest in the matter, but
Juliano approached him a third time, insisting that "the
matter be given more consideration." Now, Decker called
Robert Martin to his office and asked for further details,
in response to which Martin said he had only heard that
"cards" were being signed for a union whose identity was
unknown to him.
Thereupon, Decker decided to make a speech to his
employees. He explained on the witness stand that, having
been told that there was a deadline for signing up with the
Union and having no time to consult with a lawyer, he
decided to remind his employees, before they finally made
'These were the groups falling within an appropriate bargaining unit,
according to an agreement reached in a subsequent Board representation
proceeding - see supra Excluded in addition to supervisors , were office
clericals, engineering department employees, and model shop and
production test technicians
'Stipulated and here found to have been a supervisor within the meaning
of the Act at the time in question
up their minds on the matter, of the benefits they enjoyed
at Dektronics.
Decker's speech was a prepared one only in the respect
that he wrote down a list of topics which he wished to
cover He wandered from topic to topic and back again,
often repeating himself (This was due, I find, both to a
lack of preparation and to the nature of his personality.)'
The order in which the topics are hereinafter discussed,
therefore, is not necessarily the order in which they
appeared in the speech '
Shortly after 9 30 a.m. on the 11th, Decker went into
the plant proper, placing himself at the midpoint of the
90-foot wall running the length of the front of the room.
Present were the personnel of the entire plant except for
the office staff. Calling for attention, he directed that the
machines be stopped. The employees turned toward him
and those who worked at more distant places came
forward, the whole audience forming a rough semicircle
with a 40-foot radius.
Decker began by saying that he had learned that
Dektronics' employees were trying to organize a union.
This came to him as a surprise, he said, and, before they
finally made up their minds, he wanted to make sure they
knew what benefits they enjoyed without a union
At or about this time - almost at the outset of the
meeting - Decker pointed to his left toward the wall
behind him "I want all the management people over here
and all the union people out there [motioning to the area
in front of him] " Supervisors and engineering department
employees, all outside the agreed-upon appropriate
bargaining unit, plus from six to nine (female) employees
within the unit, moved or started to move to the space to
his left rear "No," he explained, to the latter group, "I
didn't mean you girls," and he proceeded into his text."
Decker stated that he did not know how many of the
girls" had signed union cards - and he did not care -
but he wandered aloud why they should be interested in a
union in view of the benefits they presently enjoyed. He
pointed to the profit-sharing program to which the
company had contributed $26,000 during the past year, all
held in trust for the employees. He made a reference to
the insurance available to them. And he pointed out that
each of them received a paycheck every Friday. "I don't
know what the Union is promising you, but we're the ones
who keep your paychecks coming "
When one became involved with unions, he said, one
"never got out of it." Having a union come into the
picture was "like having someone come in between man
and wife." His own father, Decker told the employees,
had for some time been a representative for a local of the
Typographers Union in Albany (As a boy, Decker said,
he had wrapped dues money and had stamped dues books,
'The same characteristics evinced themselves in Decker as a witness at
the instant hearing
'My findings as to what was said in this speech and in the speech made
on the following day, infra, do not follow, in whole, the testimony of any
one witness They constitute, rather, an amalgam of that part of the
testimony of all witnesses which is credited , as tempered by my
impressions of the respective witness' believability and by the inherent
plausibility of such testimony Where serious contradictions exist, I shall
make note thereof
"Testimony about this incident occupied much of the time at the
hearing The testimony as to Decker's descriptions of the two groups
varied from "the corporate and supervisory type people " on the one hand
and "those not fitting this description " on the other, to "those who have
anything to do with this union" and "those who are not involved " My
findings accord with what, on this record , I am persuaded were the words
he actually used
"Most of the employees in the bargaining unit were female
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the while, his mother had worried every Christmastime
about whether his father would be laid off) Finally, he
said, his father was offered a position by the Hearst
newspaper chain as their bargaining representative;
although he had rejected the offer, he told his son,
Harold, that the union men were "nothing but a bunch of
parasites whom we kept in costly cigars and shining new
cars "
At or about this point, Decker announced a "new
policy for evaluating employees for wage increases " He
was promising nothing at this time, he said - a present
implementation, he explained, would not be fair either to
Respondent or employees in view of the low state of
production - but it was intended that each employee be
interviewed and evaluated, as to workmanship, for
example, with a view toward determining whether a wage
increase was warranted
Having made reference to low production, Decker's
talk veered away from existing employee benefits. He
mentioned and he decried the employees' poor
workmanship and lack of cooperation, and he pointed to
the high rate of rejects - $9,000 worth during a past
(unspecified) period He explained that, because of such
poor workmanship, along with excessive time spent in
restrooms, poor attendance, lack of punctuality, and
carelessness resulting in injuries, the employees were, in
effect, depriving themselves of the additional benefits
which would derive from a profitable operation. He
insisted, he said, upon 8 hours of work for 8 hours of pay
In connection with this aspect of Decker's talk,
Elizabeth White spoke up For one thing, she said, rejects
weren't always due to faulty workmanship - they often
were the result of erroneous instructions from supervision
To this, Decker said he would check on his supervisors
Secondly - White continued - not every employee did
her share of the work; and some did three or four times as
much work as others for the same pay Decker's reaction
was to ask for the employees' self-enforcement of the need
for cooperation - adding that, if necessary, "I'll just pick
certain girls to keep an eye out and tell me about girls
that are not doing their work."
Continuing with this subject, Decker expressed the
opinion that the least competent workers were the ones
most likely to be interested in unionization because they
were the ones most likely to be concerned about layoffs.
This comment (I find) led Decker into an additional
observation about unionization He reminded the
employees that his door had always been open to them, a
"right" which they would lose if a union came into the
picture - a union steward would thereafter do the
communicating.
Employee Lewis Blood (a technician excluded from the
bargaining unit ) spoke up He had once belonged to a
union, he said, and he would not now work in any shop at
which there was one
Employees Mary Boltz and Louis Perkins (both in the
unit ) made their contributions In effect, each asked about
getting back signed authorization cards from the Union
How was it done? and, in view of their having heard that
nonunion people would lose their jobs if the shop was
organized, Would trying to get their cards back cause
them "trouble9" Decker, disclaiming any special
knowledge of the subject, said he was sure that they could
get their cards back merely by requesting them: "Just ask
for them back - and then tear them up "
He then asked if anyone present had a card Clarence
Jetton, a technician (outside the unit ), said that he did
(And he volunteered that he would not have signed it had
he been aware of all the employee benefits Decker had
just described - and now that he did know, he had no
intention of turning the card in to the Union ) Decker,
examining the card and returning it to Jetton, said that a
signature on such a card merely authorized the Union to
represent the signer and that the possession of a sufficent
percentage of signed cards would merely entitled the
Union to an election Only if the Union won, Decker
explained, would he have to negotiate with it
The eventual execution of a collective-bargaining
contract, Decker continued, depended upon his signature
He made specific allusion to the contract negotiations,
should they ever come to pass. They could, he said, cover
a period of years, he did not have to give in to union
demands. As long as he was sole owner of Dektronics, he
announced, he would be the one to determine whether the
company stayed in or went out of business, what its
workload would be, and who would "regulate labor" in
the plant "What will they do?" he asked, "nail me to the
wall?"' 2
Decker spoke of the possibility of a strike, accompanied
by picketing In such case, he said, those who struck
would be ineligible for unemployment compensation or for
work elsewhere, while those who opposed the move, since
they were not "up North," need not fear union violence
As for himself, he professed a lack of concern about
picketing- he was "from New York" and knew how to
handle union people; no union would tell him what to do
- he would lock the door first; and, finally, he and Frank
(Fontanetta, the chief engineer ) could run the plant by
themselves if necessary - he would replace the strikers -
he had started with 16 employees and could begin again
with "green" help
He reminded the employees that, only 3 months earlier,
he had rejected an offer to buy the business " Now, he
said, he "guessed" he had made a mistake, what with the
workmanship problem and "now to be badgered by union
type activity " As recently as the end of August, he
related, he had had a conversation with Tony (Juliano) in
which he had said that he did not need this plant as a
source of income and that, in view of the current
production problems, he had questioned why he was
staying in business, and he quoted himself as saying "I
dont know why I don't put the key in the door ""
Decker ended his speech - which lasted about 2 hours
- on a repetitive note it was always up to management
to decide whether to keep the doors open, a decision
which would be easier to make if the employees extended
their full cooperation and improved their workmanship
After Decker's speech, on the same day, a number of
the employees who had turned in signed authorization
cards requested their return In each such case, Elizabeth
White returned the card
Between the time he concluded his speech of September
11 and 8 30 next morning, Decker established contact with
an attorney" who represented one of the other companies
in the area which the Union was attempting to organize
Among other things, he was given a "Do-and-Don't"
"The findings in this paragraph are based, substantially, on the
testimony of Decker as credibly corroborated and expanded upon by
others I do not credit testimony to the effect that Decker said specifically
that he would never sign a union contract , on the other hand, I do not
credit Decker's testimony that , in this speech , he merely said he would
never agree to a "closed union shop "
"At that time , he had spoken to the employees Branding as false the
rumor that he was selling the business , he had confirmed that there had
been an offer and a refusal
"In so finding , I credit Decker
"Not counsel in the instant proceeding
DEKTRONICS, INC. 93
sheet, and he borrowed a copy of the Union's constitution
and recent financial statement and some of its pamphlets
At or about 8 30 a m on the 12th, Decker once again
went into the plant and had the machinery turned off so
that he could be heard
This time, he said, he was better prepared to speak
about the organizing attempt He displayed the union
literature and commented on it, among other things, he
said that one of the documents pertained to an insurance
plan, the details of which the Union did not want
employees to understand He pointed to the amount of
dues Dektronics' employees would have to pay if the
Union came in, and he read off a list of Union
representatives' salaries and compensated expenses.
Putting aside the material, he told the employees that it
would be available for their inspection in the lunchroom
for the rest of the day.
One reason for this second meeting, Decker continued,
was the fact that he had heard from several of the
employees that they had been "intimidated " He wanted
to assure all employees that there were laws against
intimidation - and that he would stand behind anyone
who was threatened and would give that employee his full
support Commenting that "union fellows, however
well-dressed," were mobsters, he said that, if necessary, he
would hire a guard to stay on the property to protect
against employees' being intimidated 16
In the course of his talk -- having since yesterday
discussed Florida's "right-to-work" law with counsel -
Decker stated that he would never agree to a closed
shop. "
As in his speech a day earlier, Decker spoke about
production He reemphasized the need for more
production and better workmanship, he insisted upon less
rejects and upon more shipments "out the door"; and he
reminded those present of the policy of periodically
reviewing employees' workmanship for wage evaluation
purposes Once again, he requested the employees'
cooperation, and, once again, he insisted on full work for
full pay 11
This speech ended about 9.15 a.m. During the balance
of the day, a number of the employees examined the
union documents which Decker had placed in the
lunchroom Also, during the rest of the day, a number of
authorization card signers requested and were given their
cards back 19
On Sunday, September 15, there was a union meeting
held at the VFW Hall in Altamonte Springs. Testimony
about the meeting placed the number of Respondent's
employees attending as high as 14 or 15, but - crediting
the only witness who sought to identify the attendants - I
find that there were only 7 there, a group which included
White and Winkler
On or about September 18, Decker announced to a
group of employees that - contrary to their past practice
- they should discuss any production problems with
specified supervisors rather than with Marlene Winkler.
(Details are found in the subsection "Winkler's
"Several witnesses testified, in connection with this subject , that Decker
forbade all union discussion on the property On this record , I find that he
made no such statement
"Based on Decker 's credited testimony
"In so finding , I have not credited testimony to the effect that Decker,
in his speech , expressly set any production quotas, threatened discharge
should his words on production go unheeded , or spoke of closing the plant
"The number of such cards , including those returned the previous day,
reached 12 or 13
discharge," infra ) Next day, about 11 30 a.m , Winkler
was told that Decker wanted to see her in his office. When
she arrived there, she found Decker and Juliano
Decker invited Winkler to sit down. He said that she
should not be nervous; he just wanted to have a talk Then
he asked her what she thought a union could do for her
Winkler pointed out, first, that the advent of the Union
had already accomplished something - it had brought
him (Decker) out in the plant, "Your foreman are
jumping and getting work done and seeing that things are
done right for a change " Then she mentioned the
possibility of better restrooms and longer break periods.
At Decker's request, she elaborated - suggested the
installation of a lounge and expressed the number of
minutes she had in mind as an ideal break period Decker,
to Juliano, said that bringing in a lounge might not be a
bad idea. Turning back to Winkler, he reminded her of
the money a union would take from the employees, "in
their salaries and everything " At this, Winkler asked if
she could see the union materials he had displayed during
his speech a week earlier, since she had not had the
opportunity to examine them in the lunchroom. He
produced the documents - the constitution and financial
statements - and she examined them
Decker spoke of improvements made or planned, for
example, the expansion of the plant. The conversation
shifted to a break-in which had occurred at the plant the
previous weekend Decker said he was puzzled that
anyone would have wanted the only thing taken - a list
of employees - and he expressed the opinion that it was
an inside job.
Decker raised the subject of rejects - he wondered why
there were so many. Winkler pointed out that Decker
himself had failed to follow through on a report involving
rejects which she had given him 3 months earlier, he
conceded this, but said he had been unable to take the
word of one employee on a matter not reported by
supervision This led him to ask about William Martin,
foreman of the transformer line - did he know what he
was doing' Winkler said that, in her opinion he did - in
some aspects, e.g., winding, he had much to learn, but
considering the time he had been in his present position,"
she said he would soon be able to handle all the work
The discussion, lasting at least 2 hours, was marked by
repetition The problem of rejects, for example, was
brought up many times Decker made it clear he meant to
get to the bottom of and to remedy the problem, even if it
meant that heads would roll But at no time was the
meeting marked by hostility or unfriendliness "
On or about September 24, Martha Elaine Sloan, an
employee of Respondent," filed the first unfair labor
practice charge in this matter (Case 12-CA-4339), alleging
the unlawful inhibition of employees' self-organizational
rights since on or about September 11 Also on the 24th,
"Less than 4 months
"My findings as to the incident are based on the credited portions of the
testimony of all three participants In effect, Decker denies that he asked
Winkler what she thought a union could do for her At first, he said she
was the one who raised the subject , later , he said he did not recall asking
the question "in that context," although he conceded that whatever he did
say "might have been construed that way " Juliano did not recall Decker's
putting the question
I do not credit Winkler 's testimony to the effect that, when the union
subject came up, Decker repeated his statement made to employees earlier
that he "wouldn ' t sign a contract " For one thing , this is outside the
context of the conversation, for another - if my analysis is correct -
Decker would not repeat a statement which ( I am convinced) he had
learned 7 days earlier might be considered unlawful
"She voluntarily left that employment on October 12
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union put into the mail a letter to Respondent,
claiming to have been designated as bargaining agent by a
majority of the production employees and requesting
recognition as their bargaining agent
On the 25th, Marlene Winkler was discharged, under
circumstances discussed in detail in the subsection
"Winkler's discharge," infra Late the same day,
Respondent received the Union's claim and request sent
the day before
On September 27, Winkler filed an unfair labor
practice charge (Case 12-CA-4339-2) against Dektronics,
covering her discharge
Having received no reply to its request for recognition,
the Union, on September 30, filed a Petition for
Certification of Representatives (Case 12-RC-3169) with
the Board's Regional Office at Tampa
On October 1, Elizabeth White was laid off, under
circumstances discussed in detail in the subsection
"White's layoff," infra
A formal hearing in the representation proceeding was
scheduled to be held on October 22. At that time, the
parties agreed upon the holding of an election to dispose
of the representation question, and the hearing was
canceled Subsequently, on November 6, the Union filed
the charge numbered 12-CA-4368, adding the
employment-terminations of White and Martha Sloan as
alleged violations of the Act;,21 and, 2 days later, White
herself filed Case 12-CA-4368-2, merely reiterating that
the termination of her employment constituted an unfair
labor practice. Thereupon, all action on the representation
case was suspended
On November 12, the Regional Director, for the
General Counsel, issued a complaint in Cases 12-CA-4339
and -4339-2, and, on the 27th, he issued a document
containing a consolidation of these cases with Cases
12-CA-4368 and -4368-2 and the amended consolidated
complaint which was the basis for the instant hearing
D. Independent Interference, Restraint , and Coercion
As noted earlier, the General Counsel contends that, in
at least nine aspects of his speech of September 11,
Harold Decker unlawfully infringed upon Respondent's
employees' self-organizational rights.2'
I have carefully examined the contents of the speech (as
found by me - see "Chronology of events," supra) -
and I have concluded that, in most part, the position of
the General Counsel is not well taken, either because the
evidence does not support a finding that certain
statements attributed to Decker were in fact made or
because, certain statements having been made, they do not
add up to unlawful interference, restraint, or coercion. (It
is possible, of course - as suggested by Respondent's
counsel in oral argument - that there may have been
some misunderstanding among his listeners as to what
Decker was saying, but the significant thing for our
purposes is to note the words he used and the calculated
effect upon his audience.) As examples, I have found that
he did not tell employees that their signing union cards
would lead to trouble, that he did not characterize
employee union leaders as the least competent employees
"Subsequently , the portion of the charge pertaining to Sloan was
withdrawn
"He does not attack the bulk of the speech - the description of existing
employee benefits , the exposition of production problems, and the call for
employee cooperation
(by implication, the most likely candidates for layoff), and
that he did not threaten to have employees' activities in
the plant observed and reported to him And, while I have
found that he did signify to his employees that he had
heard about their union activities, the statement was
nothing more than an honest expression of the occasion
for the talk - it did not purport to be, and (I find) was
not taken to be the creation of an impression that he was
engaged in surveillance,25 that he did tell his listeners that,
in the event of a strike, he could replace the strikers, but
this was nothing more than a valid opinion as to this
right, that he did call for increased productivity, but the
call, unaccompanied by threats of discharge, was related
to an existing, legitimate business problem, and that he
did announce a new policy of interviewing and evaluating
employees for wage-setting purposes, but, under the
circumstances surrounding production at that time, I am
not convinced that the reason for the new policy, or for its
publication at this time, was union-connected 26
In agreement with the General Counsel, however, I find
that, in this speech, Decker did advise the employees that
he would not sign a collective -bargaining contract in the
event the Union campaign was successful and did warn
them that the plant would be sold or shut down in the
event of its unionization. Repeatedly, while testifying,
Decker, asked whether he said this or said that, would
begin his answer with "Not in that phraseology " In
my opinion, his explanations were tortured, if not devious;
the answer lies, I am convinced, in the fact that he was
now trying to explain away that which, on September 11,
he sought clearly to imply At that time, he said that the
execution of a contract depended upon his signature, that
negotiations, if the matter came to that stage, could
consume years; and that as long as he owned Dektronics,
he would be the one to "regulate labor." As for
continuing to operate the business, he said - in
connection with negotiating with a union - that he would
be the one to determine whether or not the business
continued to operate, he gratuitously reraised the subject
of the 3-month-earlier opportunity to get rid of the
business, expressing the opinion that, "now to be badgered
by union type activity," he had made a mistake, and he
injected his conversation with Juliano 2 weeks earlier in
which he questioned the wisdom of his remaining in
business. In my opinion, the threats were quite apparent
he sought to lead the employees to believe, and they were
warranted, from his words, in believing the following If
the Union came in, he would never sign a contract; on the
contrary, he would close down or get rid of the business
The communication of this information interfered with,
restrained, and coerced his employees in the exercise of
their self-organizational rights.
I find nothing in Decker's September 12 speech which
violates the Act. Specifically - contrary to allegations of
the General Counsel - I find that Decker did not say he
would close the plant if a union came in or that he would
impose more onerous working requirements the fulfillment
of which would be a condition of continued employment;
he did not forbid union discussions on company property,
and he did not announce a rule, new or otherwise, to the
"As I have resolved the incident of the "separation" of the audience at
the beginning of the speech , it appears that here , at least, employees may
have been led to believe Decker was polling them on their union
sympathies - but this was not alleged by the General Counsel as a
separate violation of the Act
"Insofar as this record is concerned , it appears that a number of wage
increases were granted during the period in question , but there is no
indication of a deviation from past practice in this respect
DEKTRONICS , INC. 95
effect that workers must remain at their work stations
unless they raised their hands and received permission to
leave, and I find no unlawful implications in what he did
say.
The General Counsel contends that, in his conversation
with Marlene Winkler on September 19 - details supra
- Decker unlawfully interrogated her about her union
sympathies and threatened to close the plant if it were
unionized.
This record contains no evidence in support of the
second aspect of this allegation. According to my findings,
he said nothing during this conversation, expressly or by
implication, about closing the plant
With respect to the charge of interrogation, I have
found that Decker did ask Winkler what she thought a
union could do for her. But interrogation is not unlawful
per se, it must be examined in context. Relevant factors
- the so-called Bourne27 standards - are the record of
employer hostility toward a union, the potential use
against the affected employee which is inherent in the
information sought, the identity of the questioner, the
degree of unnatural formality in the place and manner of
the interrogation, and the truthfulness of the replies
Whatever else Decker's speeches of September 11 and
12 amounted to, they established Decker's antiunion
animus," an attitude he was clearly conveying to the
employees. And now, employee Winkler was summoned
to the locus of final authority in the plant, in the presence
of the two top executives of the company. True, the
conversation was unmarked by hostility or unfriendliness,
but it was preceded (by one day) by the public
announcement of Winkler's demotion - see details, infra
- and followed (by 6 days) by her discharge; perhaps the
motivation for these actions lies elsewhere - of which, see
infra - but certainly, there was at least surface reason to
believe that whatever information Winkler gave could and
would be used to her disadvantage. Finally, I cannot hold
against her the fact that she did not simulate in answering,
granted that a clue to the intimidatory effect of
questioning may be found in the forthrightness of the
answers, I submit, with due deference to the Court of
Appeals for the Second Circuit, that permitting the
truthfulness of an employee's answers to be dispositive of
the lawfulness of the interrogation places a premium on
untruthfulness and penalizes the more candid employee. I
find that Decker, in his questioning of Winkler, coercively
interfered with employees' self-organizational rights
E. Winkler's Discharge
Marlene Winkler was hired on October 3, 1965 She
began as an assembly worker and, with the passage of
time, performed different phases of the production work
on transformers. Finally, in April 1967 - at which time
she was the senior employee among those on the
transformer and the "walleye" production lines - she
began to "act as line leader" on these lines.
"Enunciated in Bonnie Bourne d/b/a Bourne Co v N L R B. 332 F 2d
47 (C A 2), enfg as modified 144 NLRB 805 Also see N L R B v
Carrico, Inc. 340 F 2d 803, 804 (C A 5)
"As recently observed by the Court of Appeals for the Fifth Circuit "Of
course, the company has a legal right to 'make no bones about its
opposition to the union' [ Hendru Mfg Co v N L R B, 321 F 2d 100,
103 (C A 5) ] However, the Board is entitled to consider emphatic
anti-union attitudes as 'background' against which to measure the impact
on employees of management's statements and conduct " Independent,
Inc v N LRB , 406 F 2d 203 fn I (C A 5)
There is confusion , if not controversy , as to what a line
leader is29 and whether , in fact, Winkler was "officially"
classified as line leader.
At or about April 1967, the work force of transformer
workers had been greatly augmented As new girls came
on, they needed assistance and instruction beyond the
capacities of Robert Martin, then sole supervisor of the
transformer workers Winkler , being the most experienced
of these employees and possessing what Decker regarded
as an "aggressive" personality , was a natural for selection
as a supervisor's helper During April 1967, she was
designated as line leader 30 Thereafter , until at least
September 18, 1968, she kept employees supplied with
materials and worksheets , she answered their questions
about all phases of transformer production and gave them
assistance , either at her own or at their workplaces, and
- after they were installed on or about August 31 - she
accumulated the employees ' work tickets . Between such
tasks, she pursued a "primary" job of winding
transformer cores. In addition, upon order , she worked on
"special" jobs such as research preproduction
("prototype") or pilot production ("pre-production" or
"customers ' sample") units as opposed to regular
production units''
On one or more occasions in June or July 1968 -
during the period in which Dektronics President Decker
was disturbed about the extent of rejected work - see
"Background and setting ," supra - William Martin
spoke to Winkler on the subject of rejects, both hers and
those of the employees in her line The purpose of these
discussions ( I find ) was to search for solutions to the
problems, in no sense were they intended to constitute a
criticism of Winkler's work
On or about September 9, as I have related, the
attempt to organize the plant began.
Winkler attended the Union's first meeting held on
September 9, having accepted Elizabeth White's
invitation ; she signed a Union authorization card at that
time; and she accepted a dozen cards for distribution
among the employees . Next morning, she spoke to
employees and gave out cards - one to Clarence Jetton,
who, during Decker's speech the next day, displayed it to
Decker. She procured but one signed card , the rest of the
employees to whom she spoke having been reached earlier
by the other signature -solicitors . After Decker gave his
speeches of the 11th and 12th, she was one of the seven
employees who attended the Union meeting held on
September 15.
On one occasion following Decker's speeches - at or
about the middle of September - Winkler, in a
conversation with her immediate supervisor ( William
Martin), jocularly asked him if he wanted a Union
authorization card.
On September 18, Decker called to the lunchroom the
20 to 23 employees on the transformer and walleye lines.
"There is no dispute that the line leader, as that position was supposedly
filled by Winkler, was not a supervisory job, it was within the agreed-upon
appropriate bargaining unit
"Whether there was "official publication" is immaterial I find that, on
and after this date, she performed the duties of line leader as here
described, and that management and the other nonsupervisory employees
treated her as line leader
"Meanwhile, she served in at least two other "capacities" (I) For some
time, through selection by Decker, she had acted as spokesman for her
fellow employees in their contacts with Decker - e g, with respect to
Christmas parties (2) According to Decker's testimony, only she and one
other (Elizabeth White), among all Dektronics' employees, were prone to
"bounce into" his office to speak to him on personnel matters
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He explained that it had come to his attention that some
of these employees may not have been apprised of
organizational changes affecting them." Their supervisors
- their only supervisors, he said - were Dave Smith and
Bill Martin, ranked in that order, if any of them needed
supplies or help, or had any question or problem, she
should call upon Smith or Martin, and upon no one else.
Responding to queries as to whether this meant the girls
should no longer look to Winkler in these matters, Decker
merely repeated that they should go to Smith or Martin.
Also, he reminded them of the month-old rule on leaving
work stations." He emphasized to them that they should
raise their hands or otherwise get the attention of
supervision before leaving workplaces
I have earlier recounted how, on the next day
(September 19), Winkler was called into Decker's office
and was interrogated.
Following Winkler's demotion34 of September 18, she
no longer performed the work of a line leader Moreover,
she was no longer assigned prototype or pilot production
winding, it was given instead to an employee who,
although experienced, had been in the transformer line but
one month Winkler performed production work only
Winkler was discharged on September 25.
That morning, shortly after 10 o'clock, Dave Smith
told Winkler that he had just learned that a transformer
unit recently wound by her had failed to pass testing He
gave her no further details at the time
At or about 11 a m., Smith told Winkler that Chief
Engineer Frank Fontanetta wanted to see her in the
lunchroom There, she found Fontanetta, who had three
transformers, one of them "torn down," and a work
specification He asked if she had done the winding on
this job, known as Part No. 38Z26 of the Bendix job She
said she had - her work on these units, plus seven more
of the same, was finished on or about September 16. He
said these three units had not "tested out," and he asked
her why she had omitted certain insulation Her answer
was that she did not realize she had omitted any
insulation - perhaps she had forgotten it. He asked her
whether the drawing was clear and she said that it was,
then he proceeded to check her on her ability to read the
specification, a test she passed. Then, he sent her back to
her workplace
(Neither in the conversations with Smith or Fontanetta
nor in her testimony at the instant hearing did Winkler
"During Winkler ' s tenure as line leader , the chain of supervision above
her had changed a number of times At first , her supervisor was Robert
Martin , thereafter , levels of supervision interposed themselves between him
and her, and the identity of her immediate supervisor changed from time
to time During the past 4 -plus months , William Martin had been her line
foreman
In January 1968, Leslie ("Dave") Smith had entered the employ of
Respondent under Robert Martin, in the engineering area Gradually, as
he familiarized himself with the operation, his responsibilities increased In
July, he was assigned to set up a new production line and to supervise its
operations Subsequently - without any "public" announcements - his
supervisory responsibilities expanded to the extent that, as of early
September , he devoted half his time to heading the entire transformer area
- an area which included that in which William Martin was line
supervisor and Marlene Winkler line leader
"A rule which, I find, had not been enforced since its inception
"She received no cut in pay, and Decker testified that she was not
demoted since she had never been considered a line leader (At several
other points in his testimony , however , he made it clear, and I have found,
that she had indeed performed the duties of a line leader with the
knowledge and consent of management ) I find that the action was a
demotion - but the General Counsel does not attack the action as being
unlawful
deny that she had failed to insert, between windings of
wire, the "mylar" (a clear plastic-like) insulation which,
she was told, had been omitted. To the best of her
knowledge, she said, she had inserted the insulation, but,
she concedes, this assertion was not based on present
recollection - it was based only on the fact that she
normally followed specification sheets It was possible (she
testified) that she did forget to insert the insulation,
because (she further testified) she was so constantly
interrupted in her work )
Shortly after 4 p.m., Smith called Winkler to his office
"I've been told to let you go," he said "I hate to do this
I've been counting on you to wind the Bendix [lob]"
She asked whether the action was taken because of 38Z26.
"Yes," he said, "that was the last straw " Thereupon,
Winkler, terming that as "an excuse," went to the office,
turned in her tools, received her pay, and left the
premises."
On the day of Winkler's discharge, prior thereto, there
were a number of related discussions between members of
management, according to the testimony of witnesses
presented by Respondent
Shortly before 10 a.m Sid Weaver, testing
supervisor, notified Dave Smith that one of Winkler's
ten 38Z26 units had failed to pass testing Smith (after
notifying Winkler of the failure) reported the problem
to Frank Fontanetta, asking him to find out what was
wrong. Fontanetta disassembled the defective unit to a
point at which he was able to ascertain that the fault
lay in the omission of the mylar insulation. (It was then
that he had the i 1 a m. conversation with Winkler
reported above. By that time, two more of Winkler's
units had failed to pass test standards, but the causes of
their failure were not yet known ) After his
conversation with Winkler - still before lunchtime -
Fontanetta met with Smith and with Juliano. He
informed them of the cause of the failure and of his
conversation with Winkler The three then discussed the
incident, in the course of which Smith referred to prior
defects in Winkler's workmanship, but no decision as to
any personnel action had been made when the meeting
ended.
The same three - Smith, Fontanetta, and Juliano -
met again after lunch. They again discussed Winkler's
failure to insert the insulation in the Bendix unit (the
causes of the failure of units No 2 and 3 were still
unknown), and they again discussed Winkler's
performance in general Finally, it was their joint
determination - although each testified that his was a
major role16 - that Winkler's employment be
terminated
The issue is a narrow one - was Winkler discharged
because of her union interests and activities or for some
"The findings as to the "exit" conversation are based not only upon the
relative impressions made by the participants in testifying, but also by the
elements of inherent plausibility For example, I do not credit Winkler's
testimony that Smith said that Harold [Decker] had instructed him to
discharge her, however Winkler interpreted Smith's remark about the
responsibility for the action and whatever Decker' s involvement in the
matter , I do not believe that, under the circumstances, Smith would have
dragged in Decker's name
"Smith testified that he was the one who suggested that Winkler be
discharged (" It was me that first decided this particular direction of
movement It was me, personally , that instigated it "), Fontanetta, at
two points in his testimony, said that it was he who recommended to
Smith that she be fired, and Juliano, testified that "there were too many
rejects for one person , as far as I was concerned ," and, asked if he were a
"major decider" in the matter , said, "Yes, sir, I would say so -
positively "
DEKTRONICS, INC. 97
other reason9
Respondent's contention that it was unaware of
Winkler's union sympathies is rejected On the basis of
credited testimony which I have set forth supra - e g ,
her mentioning the Union to William Martin," her
unlawful interrogation by Decker in the presence of
Juliano, and the open knowledge of her status as a
"leader" among the employees - I am persuaded, and I
find, that members of management knew or believed that
she was actively interested in having the Union represent
Respondent's employees
The reason for the discharge assigned by Respondent is
the fact that, during a period in which its productivity was
plagued by poor workmanship, Winkler committed a
series of production errors, topped by her defective
performance on the 38Z26 Bendix units.
Winkler conceded that she had made errors in the past.
For example, in late August or early September she had
made two so-called "breakout" errors - i e , wire endings
emanating from the wrong place in a winding At or
about the same time, she had been called in on Saturday
for a rush job, and midday tests revealed workmanship
defects.38 On both occasions, one or another supervisor
had "spoken to her" about the rejected work, but - a
finding I base on uncontradicted testimony - she had not
been warned about the quality of her work in the sense
the term is normally used in the employment relationship
Moreover, in the Decker-Juliano-Winkler conversation of
September 19, although the subject of production rejects
was given attention, there was no reference to, let alone
criticism of, her own rejects
Indeed, on this record, I find that, at least prior to the
day of her discharge, Winkler's work performance was not
considered to be a problem 39 For one thing, (in the words
of one supervisor who testified) "it is expected" that there
be rejects in Respondent's type of work, moreover, it is
clear that, during the period in question, defective work
among Respondent's employees was widespread 10 For
another, there is no dispute that during the period in
question, Winkler was considered the mainstay of first
one, then the other, of her supervisors when they assumed
their positions And, finally, I find that there was a
mitigating factor in her case, well known to management
her "regular" work was constantly interrupted by her
duties as line leader.
(It should be said at this point that I reject any
contention, expressed or implied, on the one hand that
mistakes in the type of work Winkler performed were
more likely to be excused by management, or on the
"Who, it will be remembered , had passed on to his superiors
information about the opening of the Union campaign brought to his
attention
"She did not deny she made the errors attributed to her, but she did
complain that the tester compounded the difficulty by tearing the units
down to a point beyond that required for the diagnosis
"Decker , on the witness stand, evaluated Winkler as a worker "She's a
person that if she runs out of work or something of this nature she would
not wait for a foreman to come and say, 'Here ' s your next job ' She would
go after the foreman and say, `Where do I go from here' I would say
that she would be considered that of an average worker having potential
Potential , but I'm not saying potential in our business I would have
to say that I do feel that in her best judgment she does what she feels is
right "
"Testimony designed to characterize specific rejects (of employees other
than Winkler) as due to "design " errors rather than errors of workmanship
was unconvincing For example , with respect to a substantial amount of
spoilage done on a job by one employee , Decker testified that the problem
was not her workmanship, yet, he testified that she did not follow the
specifications on this job
other, that mistakes in that type of work were considered
to be more "vital" than those on other types The parties
introduced testimony as to whether the Bendix job or
other jobs constituted prototype, pilot production, or
regular production work, as to whether rejects in the
course of one of these, rather than either of the other two,
were more or less likely to occur, and as to whether, if
rejects did occur, they were more or less vital to the
operations of the business if happening in the course of
prototype, pilot production, or regular production work.
To the extent that these questions may have materiality
herein, I make the following findings: All three types of
production were necessary for the continued existence of
Respondent's operation, Respondent sometimes used
engineering employees - as opposed to production
employees - to do prototype work, but it normally used
its more experienced production employees for both
prototype and pilot production work, nevertheless,
working on prototype (or pilot) production calls for no
particular skills above and beyond those needed for
regular production, in view of the critical functions
performed by its products, Respondent regarded
workmanship as an important factor in measuring the
worth of its employees, whether on prototype, pilot
production, or regular production, and finally defective
workmanship - as opposed to failures due to design
problems - was no more and no less likely to occur - or
to be tolerated by management - in prototype (or pilot
production) work than in regular production, or vice
versa.)
Bearing upon the validity of the reason assigned by
Respondent for the discharge are the circumstances of the
actual decision to discharge and the events leading up to
that decision, viewed in the light of Respondent's
antiunion animus First, one cannot ignore the suspicions
arising from the timing Respondent's complete reposition
of confidence in Winkler as an employee, followed quickly
by the advent of the Union's campaign (on September 9),
Winkler's demotion (September 18), her interrogation,
intertwined with a supposed probing of general employee
reaction - a special treatment for which she alone among
the employees was singled out (September 19), and the
termination of her employment (September 25) As for the
managerial discussions leading up to the decision to
discharge, I regard it as passing strange that two sessions
were required, the second of which covered the same
ground as the first, and that each of the participants
(contradicting the others) sought to take major credit for
reaching the decision 4' Finally, I think it significant that,
in communicating the decision to Winkler, Supervisor
Dave Smith expressed his regrets, saying he had been
counting on her to do the winding on the Bendix job
On this record, I am persuaded that Winkler would not
have been the employee Respondent would have singled
out to discharge for defective workmanship,': in short,
that the assigned reason was a pretext
"Both they, and Decker, denied that Decker played any part in
formulating the decision I would have thought that he would have been
consulted about the contemplated discharge of an employee who had so
recently enjoyed his confidence as earlier noted However, assuming he was
not involved , I find that Juliano amply filled Decker 's shoes in this respect
"I have taken into consideration the testimony to the effect that, at or
about this time, two non unit employees were discharged for making
testing and design errors No production employee was discharged for poor
workmanship (It was testified that one Janette McDuffie was discharged
- for unspecified reasons - but records furnished by the company
indicate that she was laid off, not discharged )
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
In sum , on what I consider to be a fair preponderance
of the credible evidence, I find and conclude that
Respondent, through its agent, discharged Marlene
Winkler on September 25, 1968, and thereafter failed to
reinstate her, because she joined or assisted the Union,
thereby discouraging membership therein
F White's Layoff
The Geneial Counsel contends that Elizabeth White
was laid off on October 1, 1968, and was thereafter
unrecalled, because of her interest in and her activities on
behalf of the Union Respondent contends that she,
among others, was selected for layoff because of lack of
work and that she was not recalled because (1)
Respondent was led to believe she was not interested in
returning, and (2) jobs which she was capable of
performing did not become available; it denies that union
considerations entered into either the layoff or the failure
to recall.
White was hired by Dektronics on or about August 1,
1967 First assigned to assembling transformers for the
Navy, she primarily did soldering work For a period of
time, in addition to doing this work, she was helper to her
supervisor (Mike Cromwell), acting as communication
channel between him and the other assemblers. In June
1968, she was assigned to one of the lines over which
Marlene Winkler was line leader, most of the time
operating a so-called multiple winder.
As has been noted earlier, White was one of the only
two employees - Marlene Winkler was the other who
was prone to speak up to Respondent's president, Decker,
on personnel matters She was one of the two employees
- Anne Hauser was the other - who originally discussed
the formation of a union at Dektronics She was the
employee who first established contact with a
representative of the Union, on September 9, the first
Union meeting was held at her home, and she was one of
the six employees who signed Union authorization cards
at that meeting Within the next day or so, she solicited
the signatures of fellow employees on the authorization
cards, and she personally procured 18 or 19 signatures, in
a total work force of 56 to 60 In addition, she was the
receiving agent for all cards - about 50 - signed by
Dektronics employees
During Decker's speech of September 11, she was one
of the five employees to speak up - and the only one of
these who did not express thoughts paralleling those of
Decker.
On September II and 12, after Decker gave his two
speeches, she was the one who returned their signed
authorization cards to those 12 or 13 employees who
requested their return
Finally, she was one of the seven employees who
attended the Union meeting held on September 15.
Under all the circumstances, I find that management
had ample opportunity to be aware of, and was aware of,
White's interest in and activities on behalf of the Union."
"Knowledge of union activity may and often of necessity must be based
upon reasonable inference drawn from circumstantial evidence See, e g ,
N L R B v Ltnk-Belt Company , 311 U S 584, 602 Also see F W
Woolworth Company v N L R B, 121 F 2d 658, 660 (C A 2), Hickory
Chair Manufacturing Company v N L R B. 131 F 2d 849, 850 (C A 4),
N L R B. v Angwell Curtain Company , 192 F 2d 899, 903 (C A 7),
N L R B v Melrose Processing Co. 351 F 2d 693, 697-699 (C A 8),
N L R B v Radcliffe, et at, d/b/a Homedale Tractor & Equipment
Company, 211 F 2d 309, 315 (C A 9)
On or about September 20 or 21, White had a
conversation with Dave Smith about the workload She
expressed concern because, for example, her own work on
the winding machine was giving out and, in fact, she was
being given some odd jobs - e.g., assembling, soldering,
and tinting wire - to perform Smith said that the
company was awaiting customer approval to go ahead on
other work At this, White voiced a fear of an impending
layoff °°
The fear proved to be well founded. On October 1,
along with a number of others, she was laid off It was
Dave Smith who gave her the news, he assured her that
she was being laid off, not fired, and that there were no
complaints about her work When she protested that there
was at least one available project which could be put into
operation to provide work, he said, in effect, that plant
schedules did not provide for doing that work at this time
He suggested that she call in on the following Friday
On her way out of the plant, she again encountered
Smith, who asked her if she had checked out her tools -
i.e , turned in those belonging to the company and taken
out her own. She said she had not - she saw no point in
doing so if, as he had indicated, she would be back in the
plant shortly His response- "Well, that's right, too "
According to the credited testimony, I find that it is
Respondent's normal policy, in making selections for
layoff, to consider a number of factors, in the order of
their diminishing importance the availability of the work
which that individual has been performing, the availability
of other work which that individual can perform; the
individual's "workmanship", and his/her reliability as
displayed by the record of attendance None of these is
dispositive; the weighing of the factors "depends upon the
circumstances " Seniority, if it plays any part whatsoever,
is considered among the "circumstances."
When White was laid off, there were approximately 45
production employees with less plant seniority than she
had, moreover, she had never received any criticism of her
work and, so far as this record reveals, she was regarded
as a qualified assembler/solderer/multiple-winder-
operator On the other hand, the work she was last
performing had given out, and there is no evidence that
other work which she could perform was available at the
time Assuming that Respondent was aware of White's
union proclivities, I perceive no elements of implausibility
in the reasons assigned for the layoff of October I I
conclude that the General Counsel has not preponderately
established that White was laid off on October 1 for other
than legitimate business reasons
The findings as to this conversation are based upon those parts of
White's and Smith's testimony which I credit White also testified that she
told Smith she feared that the union people would be laid off , that he
asked who they were , that she told him, and that she added that Winkler
and she would probably go first since they had the "biggest mouths " This
part of her testimony is so implausible that I do not credit it
"Decker (after testifying that he had nothing to do with White's layoff)
said that one of the main reasons for the layoff "would have been" her
workmanship , but he failed to state in what respects her workmanship was
deficient White credibly testified that Sid Weaver , Dektronics' quality
control supervisor , had characterized her soldering as the best he had seen
go out of the plant (He himself was not called as a witness ) Smith, her
supervisor , testified that he had never heard this and that he did not
consider White a qualified solderer, the basis for his opinion being that he
was aware of rejects attributable to her , both firsthand and from William
Martin, on the other hand he testified that the important factor in her
selection was "workload " rather than "workmanship" and Martin testified
that he "had spoken to White" about rejects On balance - and
considering the reject situation in the plant - I have come to the
DEKTRONICS, INC. 99
The remaining question is whether Respondent's failure
to recall White was based upon union considerations
With respect to the selection for recall among laid-off
employees, I find that Respondent's normal policy accords
with that in deciding upon selections for layoff
Pursuant to instructions, White called the plant on the
Friday (October 4) following her layoff Smith told her to
call in next Wednesday (Later that day, when she picked
up her paycheck, she apprised Hilda Kasky, corporate
secretary and office employee, that she had left her tools
at the plant ) On Wednesday (October 9), she called again
and was told to call back on Friday, there is no indication
that she did (On Monday or Tuesday, the 14th or 15th,
fearing the loss of her personal tools if they were
neglected too long, she went to the plant and picked them
up after so notifying a supervisor ) On Wednesday
(October 16), aware that a number of the laid-off
employees had been recalled, she telephoned again, Smith
said that business had not yet picked up and suggested she
try again on Friday She called Friday (October 18),
Smith said, "They're kind of talking about you today
Give me a ring next Wednesday "16
On Tuesday, October 22, White attended the meeting
(referred to earlier) which the Labor Board had set up for
the holding of a hearing in the pending representation
case In connection with the discussions which led up to
the execution of an agreement upon an election, the
company produced a list of unit employees then working.
The names of "former employees, Marlene J. Winkler,
Elizabeth White, and Judith Russell" 17 were separately
listed as "able to vote subject to challenge " The attorney
for the Union, at that time, asked whether Respondent
was willing to recall Winkler and White Decker merely
"snorted," a reaction which I interpret as meaning, "You
know better than to ask that at this time and place "
White did not call Smith again. The charges alleging
that the termination of her employment was unlawful were
filed on November 6 and 8
On this record (to the extent it is relevant), I find that,
contrary to its contention herein, Respondent was aware
of White's desire for recall at all times from the date of
her layoff.
On or about November 5, work on the multiple
winding machine which White had been operating through
most of the past 3 or 4 months was resumed, except that
the new work differed from that which she had been doing
in that the wire used was finer and the operating tolerance
was closer. The position of multiple winding machine
operator was filled by the promotion of an employee from
some other operation.
Also, during the 3 months following the layoff, a
number of laid-off employees were recalled and a number
of job applicants were newly hired.
Among the first group - all of whom had been laid off
at or about the time of White's layoff - were Anne
Hauser (recalled on October 4), Elizabeth Wilson
(October 8), Virginia Cheyney (October 15), and Sally
Currell (November 12) Respondent contends that they
were qualified to do and were recalled to do work which
White had not performed and/or could not perform. The
supporting testimony was to the effect that Hauser was
recalled because of a resumption of marking, a task for
conclusion stated in the text
"I do not credit Smith 's testimony that White called him only twice -
dates unspecified - and that he did not recall receiving any messages from
her
"This record contains no other mention of the last named
which she was uniquely qualified, similarly, Wilson was
recalled for the fine winding of miniature toroids, her
specialty, Cheyney - who had the same qualifications as
White except that she had not operated the multiple
winder - was recalled, not because of the resumption of
any type of work for which she was uniquely qualified, but
because (testified Decker)" she would take any
assignment, however "dirty," without complaint, and
Currell was called back to help Hauser (but there was no
evidence here of unique qualification)
The hiring of new people began on October 25 At least
6 of the 14 new hires were assigned to the section from
which White had been laid off On November 27, Alice
Howard was hired, according to testimony introduced, she
had "experience as a solderer" and was hired as an
assembler On December 4, Kathleen Davis came on
board, "according to her application," she was a qualified
assembler - "more qualified than Mrs White," with "a
background in electronic work " Margarette Allman was
hired 2 days later, she was "relatively unskilled but .
was hired long after [Smith] assumed Mrs White was not
interested in coming back " On December 9, Sandra
Kicklighter was hired as an assembler, she had graduated
from a soldering school and had soldering experience, at
the time of her employment, Smith - without reason
appearing in this record - classified her as having "an
aptitude for winding," and, not long thereafter, she was
transferred to winding Pauline Demastus, who, like
Davis, had experience as a solderer and had a background
in electronic work, was hired on December 16. Finally, on
December 17, Sandra Adkins went to work for
Respondent, her application showed her to be a "qualified
NASA solderer," a distinction not possessed by Elizabeth
White - or by any other of the new hires above listed
During the period relevant hereto, Respondent
advertised for help in the Orlando Sentinel, a daily
morning newspaper with a substantial circulation
throughout the State of Florida There were at least seven
different advertisements, running an aggregate of 40 times
during the last 2-plus months of 1968 On or about
October 29, and on three occasions thereafter, Dektronics
ran an advertisement for experienced solderers, coil and
transformer winders, and epoxy molders. Furthermore, I
credit testimony by White to the effect that, during the
next 3-1/2 weeks, at least two more advertisements
appeared in the Sentinel, each appearing a number of
times, in which Respondent sought, among other things,
experienced solderers, transformer assemblers, and
winders "
Decker testified that the company often advertised, not
to hire immediately, but as "feelers" to build up a file of
applicants for the future and to help determine its
resources in fulfilling potential contracts, to his
knowledge, none of the 14 persons hired during the period
in question was located through this series of ads I do not
credit this testimony to the extent that it purports to show
"The testimony proffered indicated , and I find, that , although Decker
had had nothing to do with the selections for layoff, he did involve himself
in the selections for recall, in several cases , it was he who initiated the
action
"Decker, for Respondent , testified as to certain of the advertisements In
reliance upon billings by the Sentinel produced from company records, he
testified that, on this or that occasion , Respondent advertised for foremen,
technicians , caretakers, and machinists - for none of which positions
White qualified But I find that the positions he named taken from the
first few words of each of the advertisements in question , as they appeared
in the billings - were not all of the positions appearing in the respective
advertisements
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the jobs advertised were not then available, the
credited testimony as to new hires shows otherwise
I find, on this record, that work which White was
qualified to perform - soldering and transformer winding
was available at least by October 29, the date of the
first advertisement 50 As for soldering, I have found that
Respondent regarded her as qualified; as for winding, (1)
if a hand -winder was being sought, I am persuaded that,
under normal circumstances, a person of White's
experience would have been given the opportunity to try
the job, and (2) if the reference in the advertisement was
to mechanical multiple winding - a more likely
interpretation in view of the reactivation of White's old
machine on or about November 5 - I am persuaded that,
under normal circumstances, Respondent believed White
could have performed satisfactorily even though the job
differed somewhat from her old one I find, moreover,
that White was believed by Respondent to be qualified to
perform work - as a solderer, transformer assembler, or
winder - for which Respondent advertised vacancies
during virtually the entire month of November And,
finally, I find that White, in Respondent's opinion, could
have performed the work which was assigned to the new
employees hired beginning on November 25
In sum, on what I consider to be a fair preponderance
of the credible evidence, I find and conclude that
Respondent, through its agents, failed to recall Elizabeth
White from layoff status on and after October 29, 1968,
because she joined or assisted the Union, thereby
discouraging membership therein
Upon the foregoing factual findings and conclusions, I
come to the following
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the
Act
I shall recommend that Respondent offer Marlene
Winkler and Elizabeth White full and immediate
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges and make them whole for any loss of
earnings suffered by them because of Respondent's acts,
by payment to each of them of a sum of money equal to
the amount she would have earned from the date of her
discharge to the date of Respondent's offer of
reinstatement, less her net earnings during said period
Backpay shall be computed on a quarterly basis with
interest at a rate of 6 percent per annum in the manner
heretofore established by the Board
As the unfair labor practices committed by Respondent
are of the character striking at the roots of employees'
rights safeguarded by the Act, I shall also recommend
that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue
the following.
RECOMMENDED ORDER
CONCLUSIONS OF LAW
I 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 in regard to hire and tenure of
employment by discharging Marlene Winkler on or about
September 25, 1968, and failing and refusing to reinstate
her thereafter, and by failing to recall Elizabeth White
from layoff status on and after October 29, 1968, because
they joined or assisted the Union, thereby discouraging
membership in the Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act
4. By the foregoing conduct, by threatening to
terminate operations rather than execute a
collective-bargaining contract with a labor organization,
and by interrogating an employee about her interest in a
labor organization, Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
them in Section 7 of the Act, in violation of Section
8(a)(1) thereof
5. The foresaid acts are an unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
6 Except for the foregoing, Respondent has committed
no unfair labor practices under the Act
"In so finding , I accept Respondent 's explanation of the reasons for the
prior recall of Hauser , Wilson, and Cheyney
Dektronics, Inc , of Altamonte Springs, Florida, its
officers, agents, successors, and assigns, shall.
I Cease and desist from
(a) Discouraging membership in a labor organization by
discriminating in regard to hire, tenure, or other
conditions of employment
(b) Threatening to terminate operations rather than
execute a collective-bargaining agreement with a labor
organization
(c) Interrogating any employee about his or her interest
in a labor organization
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage
in concerted activities for the purpose of collective
bargaining, or other mutual aid or protection, and to
refrain from any and all such activities
2 Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Offer Marlene Winkler and Elizabeth White
reinstatement to their former positions even though this
may necessitate displacement of a present incumbent (or,
if their former positions no longer exist, to a substantially
equivalent position), without prejudice to their seniority or
other rights and privileges.
(b) Make each of them whole for any loss of earnings
suffered by reason of the discrimination against her, in a
manner set forth in the section above entitled "The
Remedy "
(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
DEKTRONICS, INC.
records necessary to analyze the amount of backpay due
and the right of reinstatement.
(d) Post at its place of business at Altamonte Springs,
Florida, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 12, 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
(e) Notify the Regional Director for Region 12, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 52
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
heretofore remedied in this Recommended Order.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 12, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
,Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
101
WE WILL NOT discourage membership in
Communications Workers of America, AFL-CIO, or
any union, by discharging any employee or failing to
recall any laid-off employee because of his or her
membership in or assistance to that Union; WE WILL
NOT threaten to close down the plant rather than sign-
a contract with a union, and WE WILL NOT ask any
employee about his or her interest in a union.
WE WILL NOT, in any other manner, interfere with,
restrain, or coerce our employees in the exercise of
their rights to organize, to form, loin, or assist a labor
organization; to bargain collectively through a
bargaining agent chosen by themselves; to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any such activities
WE WILL offer Marlene Winkler and Elizabeth
White their former or substantially equivalent jobs
(without prejudice to seniority or other employment
rights and privileges) and WE WILL pay them for any
loss suffered because of our discrimination against
them.
All our employees are free to become or remain or to
refrain from becoming or remaining members of any
labor organization
DEKTRONICS, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida
33602, Telephone 813-228-7711