Delco-Remy Division

National Labor Relations Board - Board Decisions

Feb 17, 1978

234 N.L.R.B. 995 (N.L.R.B. 1978)

DELCO-REMY DIVISION
Delco-Remy Division, General Motors Corporation
and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW. Cases 10-CA-12556 and 10-CA-
12556-2
February 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 28, 1977, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge, to
modify his remedy, 3 and to adopt his recommended
Order,4 as modified herein.
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 as
modified below and hereby orders that the Respon-
dent, Delco-Remy Division, General Motors Corpo-
ration, Fitzgerald, Georgia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Delete paragraph l(c) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge's conclusion that the conversation
between Barbara Rawls and General Supervisor Sallee in June 1976 violated
Sec. 8(aX 1) of the Act is hereby reversed pursuant to Sec. 10(b) of the Act
inasmuch as the initial charge herein was filed on January 27, 1977, more
than 6 months after the event.
3 The Administrative Law Judge inadvertently specified interest to be
paid at 7 percent; however, interest will be calculated according to the
"adjusted pnme rate" used by the U.S. Internal Revenue Service for interest
on tax payments.
4 In adopting the Administrative Law Judge's finding that Respondent
unlawfully discharged Barbara Rawls, Member Murphy finds it unneces-
sary to pass on his discussion of N. LR.B. v. Burnup and Sims, Inc., 379 U.S.
234 NLRB No. 144
21 (1964), to the facts of this case. Member Murphy relies only on the
finding that the discharge was for Rawl's union activities and the asserted
reasons were pretextual.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
concerning their union sentiments and activities.
WE WILL NOT request employees to campaign
against the Union among other employees.
WE WILL NOT threaten to discharge or transfer
employees in the event the Union wins a repre-
sentation election.
WE WILL NOT discourage membership in, or
activities on behalf of, International Union, Unit-
ed Automobile, Aerospace and Agricultural Im-
plement Workers, UAW, or any other labor
organization, by discharging employees or other-
wise discriminating against them in their hire or
tenure. All of our employees are free to become or
to remain members of that Union or any other
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act. These rights in-
clude the right to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for their
mutual aid and protection.
WE WILL offer full and immediate reinstate-
ment to Barbara Rawls and to Alfred Phillips,
and WE WILL make them whole for any loss of
pay, plus interest, which they have suffered by
reason of the illegal discriminations which have
been practiced against them.
DELCO-REMY DIVISION,
GENERAL MOTORS
CORPORATION
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at Fitzgerald,
Georgia, on an unfair labor practice complaint, issued by
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 10 and amended at the
hearing' which alleges that Respondent General Motors
Corporation, and specifically its Delco-Remy Division at
Fitzgerald, Georgia,2 violated Section 8(a)(1) and (3) of the
Act. More particularly, the complaint alleges that Respon-
dent unlawfully interrogated employees concerning their
union activities, unlawfully requested employees to cam-
paign against the Union among their fellow employees,
threatened employees with discharge or demotion if the
Union were successful in a representation election, and
coerced an employee into signing a statement following the
discharge of a fellow employee aimed at supporting
Respondent's action. The complaint also alleges that
Respondent discriminatorily discharged Barbara Rawls
and Alfred Phillips. Respondent denies the individual
allegations of 8(a)(l) conduct. It contends that Rawls was
discharged for falsely and maliciously circulating a state-
ment concerning a supervisor and that Phillips was dis-
charged for falsifying his timecard. On these contentions,
the issues herein were joined.3
FINDINGS OF FACT
Since early in 1975, Respondent has operated a newly
constructed factory at Fitzgerald, Georgia, where it manu-
factures automobile batteries. This plant currently employs
about 265 people. Fitzgerald is a county seat in south
central Georgia and has about 10,000 inhabitants. Early in
1976, the UAW began an organizing campaign at the
Delco-Remy plant. The campaign continued throughout
the spring and summer months of 1976. A petition for an
election was filed on August 4 in Case 10-RC-10805 and
an election was held on September 2. The Union was
defeated by a vote of 71 to 184 and no objections to the
election were filed. The events described in this case took
place either during periods in which the campaign was in
progress or within about 3 months thereafter.
The Evidence and Analysis Thereof
A. A Discussion Between Donnie Young and
Supervisor David Lynch
Donnie Young, a maintenance employee, testified credi-
bly that, sometime late in August, not long before the
election, he had a discussion with David Lynch, the
second-shift maintenance supervisor. The conversation
took place at the acid lift station in the plant. Lynch asked
Young why he felt so strongly about the Union. Young
replied that the Company had a system which looked good
The principal docket entries in this case are as follows:
The charge was filed herein by International Union, United Automobile
Aerospace & Agricultural Implement Workers, UAW (herein sometimes
called the Union), on January 27, 1977; amended charge was filed herein by
the Union on February 18, 1977; complaint issued by the Regional Director
for Region 10 on March 25, 1977; Respondent's answer was filed on April 5,
1977; hearing was held in Fitzgerald, Georgia, on June 9 and 10, 1977;
briefs were filed by the General Counsel, the Charging Party, and
Respondent on or about August 8. 1977.
2 Respondent admits, and I find, that it is a Delaware corporation which
maintains its principal place of business at Detroit, Michigan, and operates
a plant at Fitzgerald, Georgia, where it is engaged in the manufacture and
sale of automobile batteries. During the preceding 12 months, a representa-
tive period, Respondent sold and shipped directly from its Fitzgerald,
Georgia, plant to points and places outside the State of Georgia goods
on paper 4 but which had not been working because the
Company did not run it as it should be run. Lynch
suggested to Young that the employees should give the
Company another year to see if they could get the system
working properly. Lynch asked Young if he would talk to
the employees that he had previously talked to about
signing a union card and, in effect, relay his request. Young
agreed to do so but told Lynch that he did not think it
would do much good since the employees had already
made up their minds about how they were going to vote in
the election. Lynch also told Young that if the UAW was
voted in, the Company's apprenticeship program would be
changed and, as a result, some apprentices would lose their
jobs. He stated that the UAW required a 4-to-I ratio
between apprentices and journeymen and that, as a result,
maintenance apprentices might have to go back to produc-
tion work. Young's reply was that they would still be
making more on production than what they were making
in the maintenance department.
The above-recited remarks by Lynch to Young constitute
coercive interrogation by Respondent about union senti-
ments of employees, a request by a supervisor to an
employee to campaign against a union in a representation
election, and a threat to discontinue jobs in the event of a
union victory, all of which violate Section 8(a)(1) of the
Act.
B. The Discharge of Barbara Rawls
Barbara Rawls began working at Delco-Remy in Fitzger-
ald in July 1975. She started as a production employee and
moved to quality control, where she was employed at the
time of her discharge on December 14, 1976. She worked
the first shift until September 1976, and thereafter was
employed on the second shift under the immediate supervi-
sion of Wayne Raffield. Rawls was the acknowledged in-
plant leader of the UAW's organizing campaign, and
various supervisors were aware of this fact, especially after
she surfaced as the Union's election observer on September
2. The organizing drive began in February when James
Weaver, a UAW international representative, visited her
home. Thereafter, Rawls conducted numerous union meet-
ings in her home. Not only did she sign a union card but
she disseminated cards to other employees and generally
supervised the effort which resulted in collection of about
70 to 75 signed designation cards. On several occasions, in
the company of other employees and UAW representa-
tives, she distributed union literature at the plant gate.
valued in excess of $50,000. Accordingly, Respondent is an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act. The Union is a labor organization within the meaning of Sec. 2(5) of
the Act.
3 Errors in the transcript have been noted and corrected.
4 Respondent maintains a job-enrichment program based upon a team
system. The team, which is a group of 6 to 10 employees, elects a team
leader. The team and the team leader, along with an area coordinator who is
a conventional supervisor, are responsible for various activities, including
the selection of employees for new jobs, the counseling or reprimanding of
employees for job shortcomings, and other matters which are normally
regarded as management functions. The system is discussed in detail in an
employee handbook which is in evidence. The operation of the team system
is the subject of a detailed orientation program which all employees,
including supervisors, must attend when they are hired.
996
DELCO-REMY DIVISION
A week or two before the election, an antiunion commit-
tee of plant employees held a public meeting at the Armory
in Fitzgerald. It was attended by 70 persons, including the
mayors of Fitzgerald and nearby Ocilla, several business
and professional men, and a number of rank-and-file
employees from the plant. At the conclusion of the
prepared speeches, the meeting chairman asked for com-
ments from the floor. In response to this invitation, Rawls
came to the podium and told those at the assembly that she
was very much in favor of the union effort. Respondent's
supervisors admit hearing about the statement which she
made on this occasion.
I credit her testimony that in June, she had a conversa-
tion on the floor of the plant with Dan Sallee, the general
supervisor of manufacturing on the day shift. In the course
of the discussion, Sallee told Rawls that Ed Ward, the plant
manager, had been told by someone that the Union had
actually obtained only 20 signed cards. Rawls told him that
this was not true. During the course of the conversation,
Sallee told her that he knew that she was prounion. I
conclude that Sallee's remarks to Rawls on this occasion
amounted to the creation of an impression among employ-
ees that their union activities were subject to company
surveillance, in violation of Section 8(aX 1) of the Act.
From time to time, Mrs. Rawls, who was a first-shift
employee until mid-September, had occasion to talk with
Arthur Johnson, a second-shift supervisor in the produc-
tion area. Johnson, who was one of two black supervisors
at the plant at that time, told Rawls, who is also black, that
Delco had been good to people in Fitzgerald by bringing
the plant to the town and that no one else paid "us people"
in Fitzgerald the kind of money that Delco did. He
suggested to her that the employees should give them a
chance to get the plant going. In October, a fellow
employee named Ed Hewlett came up to Rawls and told
her that he had heard that the plants in Fitzgerald had a
blackball list and that she was on it. Rawls went to see
Ward and told him of the report. Ward said that he knew
nothing of any blackball list, hoped that the report was not
so, and said he would call around town and report back his
findings. He later told her that he found out that the report
was not true.
The plant maintains a safety rule which requires all
employees to wear safety glasses at all times they are in the
plant, except in the offices and rest rooms. Rawls admitted-
ly had a habit of taking her glasses off from time to time or
letting them hang over her nose or about her neck while she
5 The final termination record prepared by Kendall contains a written
notation that Rawls' safety habits were satisfactory, thus undermining the
Respondent's contention that her habit of not always wearing safety glasses
in the plant was a contributing factor to the decision to fire her. The incident
of Saturday evening, December II, was also superseded by the events of
December 14. December 11 was the night of the company Christmas party
and all of the employees, both supervisory and nonsupervisory, had
gathered at the Armory for the affair, leaving the plant unattended except
for gate guard Joe Crosby and a series of employees who came in on 8-hour
shift basis to monitor rectifiers. Rawls volunteered to take the shift from 4
p.m. to 12:30 a.m. She arrived late, worked for about 3 hours, and took sick.
She told Crosby that she had to go to the store to get some medicine and
might not be back. He agreed to watch the equipment for her until her relief
was scheduled to arrive. She did not return to the plant but bought some
medicine and went home.
Respondent faults Rawls for not contacting someone at the Christmas
party when she found out that she could not return to the plant. There is
was working. Record evidence indicates that this was not
an unusual occurrence among employees at the plant, but
it was one that brought Rawls to Company notice from
time to time. After Rawls began to work on the second
shift, Arthur Johnson had occasion to call this deficiency to
her attention. Rawls, who testified that Johnson was
originally quite pleasant to her, claimed that he began
picking on her.
Rawls had unpleasant words with Johnson on a few
occasions during the months immediately preceding her
discharge. On one occasion she told him that she did not
like him. I credit her testimony that, on another occasion,
early in December, when Johnson was handing her a
paycheck, he stated that it would be his pleasure to see her
out the door.
Rawls was discharged on December 14. Her separation
notice states that she had been "counseled for improper
conduct at various times since January 1976. On December
14, 1976, it was learned that she had made false and
malicious statements about a member of supervision
[Arthur Johnson] and she was discharged." Counsel for
Respondent stated that she was discharged for a number of
shortcomings, including not wearing her safety glasses,
reporting late for work the Saturday evening prior to her
discharge, leaving the plant without returning, and for
what is described in the record as the "Charlie Byrd"
incident, in which she reportedly told her boyfriend Charlie
Byrd, that Arthur Johnson was making passes at her and
was harassing her on the job because she had refused his
advances. Counsel stated that the "Charlie Byrd" incident
was the precipitating cause of the discharge. It was the
cause which, in point of time, immediately preceded the
discharge and was the only one announced to her by
Supervisor Don Kendall when she was informed that she
was being fired. Accordingly, it is the bona fides of the
Respondent's action relative to the "Charlie Byrd" inci-
dent, and not other matters which are essenttially make-
weight justifications, which must be examined and evalu-
ated in determining whether or not Rawls was or was not
discharged in order to discourage union activity at the
plant.s
Charlie Byrd and Rawls had been living together for
some time and the Company's supervision was aware of
this fact. On Monday evening, December 13, Johnson had
a discussion with Rawls concerning her action in leaving
the plant the preceding Saturday and not returning. On the
following morning, Byrd, who worked the day shift, asked
some suggestion of damage done to the items which were left unmnonitored
but Respondent could not definitely may whether or not any damage was
done and, if so, how much. There is testimony in the record that, when
batteries were being charged on other weekends, the gate guard was given
the responsibility for shutting off the charges as he made his periodic rounds
so that other personnel would not have to come to the plant just for this
purpose. As Respondent had given Rawls no previous instructions on what
to do in the event of sudden illness and as she and Joe Crosby acted on
December I I in a manner consistent with past practice there is no basis for
any accusation of misconduct on her part relating to her behavior on the
night in question. Post hoc arguments about what she should have done have
the ring of fault-finding and pretext about them. In the realm of what should
have been done, if the operation at hand was of the critical nature
Respondent now claims it was, the plant should not have been entirely
abandoned on this occasion by its supervision and by all but two of its
employees in favor of a Christmas party.
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to speak with Sallee. I credit Byrd's version that he told
Sallee on this occasion that he felt that Johnson had been
"coming down hard on Barbara" because he wanted to
date her and because Rawls did not want to do so. He told
Sallee that Rawls was his woman, that he was not used to
coming to other people to straighten out matters involving
women, and that before he had come to Delco he would
have handled a situation such as this one by simply
catching a man down at the pool hall, taking a cue stick,
and beating the hell out of him. Sallee took this statement
to be a threat by Byrd to beat up Johnson (although Byrd
denies that it was a threat), and promised to look into the
matter.
Sallee spoke with Johnson about the matter when
Johnson arrived for work on the second shift. Johnson
denied having anything to do with Rawls and specifically
denied Byrd's reported statement that Johnson had invited
Rawls to accompany him to the In-Zone, a bar in Douglas,
Georgia, the nearby town where Johnson lived.6
About 7 p.m., Sallee called Rawls into a conference room
at the plant and confronted her with the allegation that
Byrd made; namely, that she had told Byrd that Johnson
had tried to go to bed with her. Rawls flatly denied that she
ever told Byrd that Johnson had tried to go to bed with her
or had made passes at her and stated further that Byrd
should never have said such a thing. She asked Sallee to
forget the matter, but Sallee refused, saying that it was too
serious a thing to be dropped.
Sallee then summoned other supervisors to the scene,
including one who worked the other shift and was at home.
He also called Byrd at home and asked him to come to the
plant. When all had arrived, he placed Byrd and Rawls in
the same room. Quality Control Supervisor Jim Kendall,
who had just arrived, opened the discussion by saying that
Byrd had made some charges that Johnson had been
making passes at her and had also said that Rawls would
verify the accusation. Byrd also asked Rawls to verify the
threat Johnson was "coming down hard" on her because
she had resisted his advances. Rawls said she would not
verify such a statement and would not get involved in a
situation like this one. Byrd then asked Sallee to forget the
whole matter and stated that Sallee was stretching the
complaint beyond what he had ever intended.
Shortly thereafter, Byrd went home. Kendall then told
Rawls that he was discharging her for making a false and
malicious statement about Johnson to Byrd, thereby
causing Byrd to become agitated at Johnson. The following
day, Sallee called Byrd into a conference room and
discussed the incident in question. I credit Byrd's statement
e In her testimony on the stand, Rawls agreed that Johnson had not in
fact made any passes at her, so this underlying element of the dispute can be
taken as being established without contradiction.
' The statement, which was placed in evidence by the Respondent
stated:
Barbra [sic] Rawls told me that Arthur Johnson had made several
passes at her in the past. Because Barbra had refused him she told me
that he was always giving her a hard time. The things she said he was
doing are:
Giving Barbra a hard time about the neighborhood she lived in. She
said that Arthur told her that she had no business living in a white
neighborhood. Barbra told me that once Arthur had snatched a clip
board out of her hands. Barbra told me that Arthur had asked her to go
to a dance.
that Sallee then prepared a document in his own handwrit-
ing, showed it to Byrd, and asked him to sign it. The paper
was, in effect, a statement by Byrd relating to the incident.7
Sallee asked Byrd if the statement he had prepared was
correct. Byrd made no comment on its contents, told Sallee
that he would rather not sign it, and also told Sallee he
wanted to talk with Ward and Kendall. Sallee reminded
Byrd that someone had already been fired as a result of this
incident and suggested to him that it would be best if he
signed the statement. Bryd did so. He later repudiated his
signature on the stand.
Shortly after signing the statement, Byrd went to Ken-
dall's office. Kendall asked him to make a statement to the
employees in Rawls' section on the second shift concerning
her discharge. He objected but Kendall insisted, so, at 3:30
Byrd spoke to the employees in question concerning the
events of the previous day. He told them that the reason
why Barbara had been discharged was that he had said
some things about Johnson which were not so. He
admitted that he had made a mistake and apologized for it.
Toward the end of the hearing, the General Counsel
amended the complaint to allege that the action of Sallee in
taking Respondent's Exhibit 6, the statement of Charlie
Byrd, violated the Act by threatening an employee with
discharge if he did not sign a statement used to support the
discharge of another employee. Sallee admits that, in the
course of his discussion with Byrd on December 15, he
mentioned the discharge of Barbara Rawls to Byrd but
claims that Byrd agreed to sign the statement voluntarily. I
credit Byrd's version and conclude that, in taking the
statement in question, the Respondent coerced its employ-
ees in the exercise of Section 7 rights in violation of Section
8(a)(1) of the Act.
The essence of Respondent's defense in the Rawls' case
is that it discharged Rawls because she circulated a false
and malicious rumor; namely, that she told Byrd that
Johnson was harassing her because she had spurned his
advances (however this action might be phrased). This
defense must be measured against countervailing evidence
that Rawls, the Union's in-house leader, was discharged for
union activities. Byrd testified at the hearing that Rawls
had complained to him on the evening of Monday,
December 13, when she came from work that Johnson had
been "coming down hard" on her. This was the same
evening in which Johnson and Rawls had a discussion
relating to her failure to notify a supervisor on the
preceding Saturday that she had been too sick to return to
work. Byrd testified at the hearing that Rawls had never in
fact told him that Johnson had requested her to sleep with
Barbra told me several times that Arthur had made passes at her and
she refused him. She told me that was why Arthur was giving her such a
hard time. The latest time she told me this was Monday night after she
came home from work.
Barbra denied all these things Tuesday night in front of me, Jim
Kendall, Donnie Brannen, and Dan Sallee. I Charlie Byrd give my
word that the things I have stated were told to me by Barbara Rawls
about Arthur Johnson.
Charlie H. Byrd
12/17/76
998
DELCO-REMY DIVISION
him or that he had been making passes at her. This element
of his complaint to Sallee arose out of his own surmise and
conjecture. He had often seen Johnson talking with Rawls
at the plant, had once been requested by Johnson to bring
Rawls with him to a dance at the In-Zone, and had
overheard employees teasing Johnson that another employ-
ee, Keith Dockins, was going to run Johnson off the
formation floor for bothering Rawls. From these incidents
and not from anything Rawls had said to him, Byrd
concluded that the cause of Johnson's irritation with Rawls
was a desire to date her. Rawls also flatly denied on the
stand that she had ever told Byrd that Johnson had made
advances to her. She also denied it during the conferences
which immediately preceded her discharge. Byrd later
admitted both to supervisors and nonsupervisors his
evaluation of the situation was wrong and he publicly
apologized for his error. However, in these facts and
circumstances it was Rawls who was discharged while Byrd
was retained.8
The basic statement or remark for which Respondent
discharged Rawls was assertedly made at her home in a
private conversation with Byrd. Yet both parties to this
alleged conversation testified that offensive portions of the
conversation relating to sexual overtures never took place,
and there is no credible evidence in the record to the
contrary. Thus, Respondent is in the position of discharg-
ing an employee for making a statement which in fact she
did not make. Although it has not clearly explicated this
position, the best defense Respondent can muster in such
circumstances is that it thought Rawls had made such a
statement when it discharged her. In my opinion, such a
defense falls squarely under the rule, announced by the
Supreme Court in N.LR.B. v. Burnup & Sims, Inc., 379
U.S. 21 (1964), and applied by the Board in such case as J.
H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB
1414 (1966); namely, that a good faith belief that an
employee was engaged in misconduct arising out of
protected activity is not a defense in a discharge case when
it is shown that the misconduct in fact never occurred. The
conversation between Rawls and Byrd to the effect that
Johnson, a supervisor, was harassing her is certainly
protected activity since it was a discussion between two
employees concerning terms and conditions of employ-
ment; namely, treatment of employees by supervisors,
thereby bringing the whole matter under the restrictive
application of the Burnup & Sims rule in Loggins Meat Co.,
Inc., 206 NLRB 303 (1973), and General Motors Corpora-
tion, 218 NLRB 472 (1975).
Other facts and circumstances also support the conclu-
sion that Rawls was discriminatorily discharged. Rawls
was a well-known union leader in a plant where Respon-
dent had displayed union animus, not only in a general
sense but, as outlined above, animus directed specifically at
her. Respondent stoutly maintained that it did not follow a
practice of keeping counseling slips in its personnel records
and that the only records of such activity might be found in
incidental notations which area coordinators or team
8 In no version of this incident did it ever appear that Rawls had ever
requested Byrd to take any action against Johnson.
I Raffield, who was in a better position than anyone else at the plant to
evaluate Rawls' work, was never consulted about the decision to discharge
leaders might choose to keep at their own work stations. It
insists that it did keep such notations, however they might
be characterized or described, in Rawls' personnel folder,
although these documents are now missing. On the night
before the "Charlie Byrd" incident arose, Johnson told
Rawls' team leader, Frank Larkin, that if anything hap-
pened to Rawls, Larkin should remember that Johnson
came to him first. Johnson refused to elaborate to Larkin
what he meant. During the conference preceding Rawls'
discharge, Respondent refused requests both by Rawls and
by Byrd to let the whole matter drop. It refused to accept
Rawls' repeated denials that she had ever accused Johnson
and conducted an interrogation and confrontation with her
on December 14, in such a manner as to attempt to elicit a
damaging admission from her, rather than merely to obtain
her side of the story along with the version given by Byrd.
Respondent discharged Rawls, not Byrd, although it was
Byrd, not Rawls, who brought the whole matter to the
Company's attention and who assertedly uttered a threat
against a supervisor. These factors all demonstrate a cast of
mind on the part of Respondent's supervisors, except for
Rawls' immediate supervisor, Wayne Raffield, to get
something on Rawls.9 Such a frame of mind forms the
essence of a pretext. In light of these circumstances, I
conclude that Respondent herein discharged Rawls for her
activities for and on behalf of the UAW, and that the
discharge violated Section 8(aX 1) and (3) of the Act.
C. The Discharge of Alfred Phillips
Alfred Phillips was employed by Respondent on May 5,
1975, as an order clerk. At the time of his discharge on
November 19, 1976, he was working in the eight-arm
department on the first shift and was temporarily detailed
to a cleanup or maintenance job in that department on the
midnight shift (11:30 p.m.-8 a.m.). In the course of the
election campaign, Phillips signed a designation card at a
meeting which took place at Rawls' home. All in all, he
attended about 8 or 10 union meetings at her home. He
solicited sigatures on cards from some other employees
and turned them in to Rawls. On two or three occasions in
August, he distributed union leaflets at the plant gate.
I credit Phillips' testimony that, sometime in July 1976,
he had a conversation concerning the Union with James E.
Kendall, the quality control supervisor. Kendall asked
Phillips how he felt about the Union. Phillips' reply was
that the plant had a good personnel system but it was not
being followed. Kendall then asked Phillips what he
thought of the UAW. Phillips stated that he was not
familiar with the UAW and had never worked in a plant
where the UAW was the representative, but he felt that
perhaps the UAW would help. Kendall then told Phillips
that the UAW took away from employees their individuali-
ty so that employees became mere numbers. He reminded
Phillips that the company office was always open if
employees had a problem but, if the Union came in, this
would not be so because employees would have to present
their problems to the Company through a shop steward. I
her and was not a part of the chain of events on December 14, which
preceded her termination. He testified at the hearing that Rawls was an
average employee, that she had her good times and her bad times, and that
he would rate her as neither an excellent employee nor a poor one.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that these statements and questions by Kendall
amount to coercive interrogation and a threat to discontin-
ue existing company benefits in the event of a union
victory, all in violation of Section 8(a)(1) of the Act.
Sometime in August, Arthur Johnson spoke with Phillips
in the plant at the tool crib and asked Phillips how he felt
about the Union. I credit Phillips' testimony that Johnson
told Phillips that he needed Phillips' help and asked
Phillips if he would speak with Phillips' brother, who was
also an employee, to enlist his support in voting against the
Union. Johnson told Phillips that the Company did not
need a union and said that he would see to it that the
Company did not "misuse us."'0 On another occasion,
shortly after the election, Johnson met Phillips and asked
him how he voted. Phillips replied, "You know how I
voted." Johnson's rejoinder was, "Well, you see it didn't do
any good." I conclude that, by Johnson's actions in
coercively interrogating employees concerning union activ-
ities and requesting employees to campaign on behalf of
the Company, Respondent violated Section 8(a)(1) of the
Act.
Phillips was interested in a cleanup job on the third shift
because he felt it would be an entree into maintenance
work. When another employee had been assigned to this
vacancy, he made a protest to his supervisor, Isaiah
Kinchen, so a meeting was held between Phillips, Kinchen,
Johnson (who was Kinchen's counterpart on the second
shift), and various team leaders and interested parties. It
was agreed that Phillips would occupy the vacancy for 2 or
3 weeks, and at the end of that time another employee
would be permanently assigned to it. During the first hour
of Phillips' late night shift (11:30 p.m. to 12:30 a.m.),
Johnson was the supervisor (or area coordinator) in this
department. During the last half hour of the shift, Kinchen
was in charge. During the bulk of the early morning hours,
no one was in active supervision in the area.
Phillips regarded Kinchen as his supervisor during this
period of time. However, Johnson attempted to and did
exercise supervision over him during the first hour of his
shift. Johnson instructed Phillips to make a daily written
report of each item of work which he performed during
each shift. Phillips objected to this instruction and sought
out Kinchen. Kinchen told him that he did not have to do
so. Instead, a written list of duties was prepared and given
to Phillips for his guidance during the period of time when
no supervisor was present.
Phillips was obligated to report to work for his Wednes-
day shift at 11:30 p.m. on the preceding Tuesday. When,
on Tuesday, November 9, the second-shift team leader
could not locate Phillips, he spoke with Johnson who also
had not seen Phillips. Johnson called the gate guard to ask
if Phillips had come through the gate and was informed
that he had not appeared.
Respondent does not utilize conventional time clocks to
record the arrival and departure of hourly-rated employees.
Instead, it uses an honor system which requires each
employee to enter on his time card at the end of each shift
the amount of time worked during that shift. The entry is
then initialed by his supervisor and the card is sent off to
the payroll section at the end of the week to be used in the
preparation of a paycheck. If an employee works a
standard 8-hour shift, he simply inserts the number "8" in
the appropriate blank. If he works something other than a
standard shift, he places the time of his arrival and the time
of his departure on the card. The number of hours worked,
including overtime where applicable, is also entered.
On the following evening, Phillips arrived late at the
plant. Johnson called the gate guard and asked the guard
to let him know every night thereafter when Phillips came
in late and the exact time he came through the gate. When
Phillips arrived late Wednesday night for his Thursday
shift, Johnson asked him what time he came to work.
Phillips said he came in at 11:45. Johnson accused him of
lying and said his watch indicated midnight. Phillips said
he would put 12 a.m. on his card just to end the argument.
(Testimony from the gate guard said that Phillips came
through the gate on this occasion at 11:55 p.m.) Johnson
berated Phillips about falsifying timecards and said he
could be fired for doing so. At that point in time, the time
card had not yet been filled out by Phillips for the evening
in question. At the end of the shift, Phillips entered 7.5
hours and a midnight arrival on his card. The gate guard
testified that, on the following evening, Phillips came
through the gate at 11:34 p.m. Eight hours was the notation
made by Phillips on his timecard, but no challenge to this
entry was made by Johnson.
During the following week, Phillips worked overtime on
three shifts. He also had car trouble. On Thursday,
November 18, he came to work about an hour late.
Johnson was waiting for him. Johnson did not speak with
Phillips upon the latter's arrival but left the plant at the
conclusion of his own shift after waiting to see that Phillips
had arrived. On the next evening, Johnson checked
Phillips' timecard. Phillips had made an entry that he had
arrived at 12:30 a.m. The gate guard testified that Phillips
was seen driving through the gate at 12:42 a.m. Johnson
came up to Phillips, accused him of trying to beat the
Company out of 10 minutes, and went to the office to see
General Supervisor Donnie Brannon. Johnson told Bran-
non of the discrepancy, claimed that Phillips had been
warned, and also told Brannon he could not tolerate this
kind of deception. He called Phillips into the office,
accused him of falsifying his timecard with respect to the
12:30 a.m. entry on November 18, and fired him.
Phillips' personnel record indicates that he was dis-
charged for falsifying his timecard. Johnson also entered a
statement on the record that Phillips "would not fit in our
system." In response to a claim by Phillips for unemploy-
ment compensation, personnel clerk Tony Mooney made
an entry on a form circulated by the Georgia Department
of Labor that the "employee was discharged after two
reprimands (written) concerning falsification of time cards.
He was discharged with third offense and was advised of
reason for separation." In fact, Phillips was never given any
written reprimands for falsification or for any other reason.
During his year and a half of employment, Phillips came
late for work from time to time. However, the mere fact of
lateness on November 18 played no part in Johnson's
10 Phillips, like Johnson, is black.
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DELCO-REMY DIVISION
decision to discharge him. As Johnson testified, "If Alfred
had put down 12:42 on his last full night, I would not have
said anything." Phillips was earning about $4.60 per hour
at the time of his discharge. The difference in pay for 12
minutes' time between 12:30 and 12:42 is about 92 cents.
Certainly an employer is entitled under the Act to dis-
charge an employee for beating it out of 92 cents, or 12
minutes' time. The question in issue is whether the General
Motors Corporation actually did so on this occasion, since
in all discharge cases it is motivation and not justification
which determines the lawfulness of the action.
As noted above, Johnson was not concerned that Phillips
reported late. It apparently made little or no difference in
the actual operation of the plant on this occasion if he was
late or on time. On his final full shift, Phillips worked about
four hours beyond his normal quitting time and his first-
shift foreman, Kinchen, approved the overtime. The fact
that Respondent may ultimately have come up short by 92
cents because of the discrepancy on Phillips' timecard was
apparently of no moment to Johnson, since Johnson took
no action in the payroll section to keep Phillips from being
paid for the disputed time, and Phillips was in fact paid for
a night's work on November 18, including overtime,
beginning at 12:30 a.m. In resisting a claim for unemploy-
ment compensation, Respondent itself did not exercise the
punctilious regard for accuracy that it demanded from
Phillips, since it incorrectly stated to the Georgia Depart-
ment of Labor that Phillips had received two written
reprimands for falsification when in fact he had received
none.
Phillips was a known union supporter and Johnson was
an active opponent. Phillips was the object of animus
directed at him by Johnson on more than one occasion.
Moreover, he had resisted Johnson's suggestion that he
look to a fellow black in Respondent's hierarchy rather
than to the Union for protection from possible excesses by
the Company. Johnson displayed antipathy toward Phillips
when he first began to work on the night shift and
attempted to use the I hour of supervisory responsibility he
had over Phillips' activities as a basis for controlling his
entire work performance, despite the fact that Phillips was
regularly assigned to another shift and another foreman
and was scheduled to return to the full-time supervisory
control of another foreman at the end of his temporary
detail.
When Phillips and Johnson first had words over the
proper time of Phillips' arrival, there was an honest
difference of opinion as to what time Phillips had actually
come to work. Moreover, as Phillips had yet to make an
entry on his timecard when this argument took place, there
existed at the time of this argument no possible basis for a
charge of falsification, and Phillips acceded to Johnson's
insistence that he record his arrival at midnight and not at
11:45 p.m. Johnson then took the unusual if not extraordi-
nary step of asking the gate guard to notify him each and
every time Phillips came through the gate after 11:30 and
to record actual time of Phillips' late arrivals. Phillips was a
comparatively long-time employee at the Fitzgerald plant
and came under Johnson's administrative responsibility for
only a short time, if at all. It is apparent that, from the
occasion of the first dispute over lateness, Johnson was
going out of his way to find fault with Phillips and was
laying the groundwork to prove a case against him. It took
him a week to do so but finally succeeded. The trivialness
of the difference between a 12:30 entry and a 12:42 arrival
on Phillips' final full shift is further evidence that it was
seized upon by Johnson as a pretext for removing Phillips,
a pretext which fitted into a plan of action which was
conceived long before the event in question even took
place. Accordingly, I conclude that Phillips was not in fact
discharged because of falsification of a timecard but was
terminated because he was a union activist who would not
march to Johnson's antiunion drumbeat. Accordingly, the
discharge violated Section 8(aX 1) and (3) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Delco-Remy Division, General
Motors Corporation, is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers, UAW, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Barbara Rawls and Alfred Phillips
because of their membership in and activities on behalf of
the Union, Respondent herein violated Section 8(aX3) of
the Act.
4. By the acts and conduct set forth above; by coercive-
ly interrogating employees concerning their union activi-
ties; by requesting employees to campaign among other
employees against the Union; by threatening employees
with discharge or demotion in the event of a union victory;
by creating among employees the impression that their
union activities were subject to company surveillance; and
by coercing an employee into signing a written statement
which was taken to support the discharge of another
employee, Respondent herein violated Section 8(aXI) of
the Act.
5. The unfair labor practices found herein affect com-
merce among the several States, within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent herein has committed
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take other
actions designed to effectuate the purposes and policies of
the Act. Since the violations of Section 8(aXl) which have
been found herein are repeated and also involve discrimi-
natory discharges, I will recommend the issuance of a so-
called broad 8(aXi) order designed to suppress any and all
violations of that section of the Act. J. C. Penney Co., Inc.,
(Store #1814), 172 NLRB 1279, fn. I (1968); Adam & Eve
Cosmetics, Inc., 218 NLRB 1317 (1975). With respect to the
discharge of Barbara Rawls and Arthur Phillips, I will
recommend that Respondent be required to offer them
immediate and full reinstatement to their former positions
or, in the event those positions no longer exist, to
substantially equivalent employment, and to make them
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole for any loss of pay or benefits which they have
suffered, to be computed in accordance with the Woolworth
formula," with interest thereon running at 7 percent per
annum as required by the Board's recent decision in
Florida Steel Corporation, 231 NLRB 651 (1977). I will also
recommend that Respondent be required to post the usual
notice, notifying its employees of their rights and of the
remedy in this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDER 12
The Respondent, Delco-Remy Division, General Motors
Corporation, Fitzgcrald, Georgia, its officers, agents, su-
pervisors, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sentiments and activities.
(b) Requesting employees to campaign against the union
among other employees.
(c) Creating among employees the impression that their
union activities are the subject of company surveillance.
(d) Threatening to discharge or transfer employees in the
event the Union won a representation election.
(e) Requiring employees to give statements in support of
the discharge of another employee.
(f) Discouraging membership in, or activities on behalf
of, International Union, United Automobile, Aerospace &
Agricultural Implement Workers, UAW, or any other
labor organization, by discharging employees or otherwise
discriminating against them in their hire or tenure.
II F. W. Woolworth Company, 90 NLRB 289 (1950).
12 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.
(g) By any other means interfering with, coercing, or
restraining employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer to Barbara Rawls and to Alfred Phillips full and
immediate reinstatement to their former positions or, in the
event their former positions no longer exist, to substantially
equivalent employment, without prejudice to their seniority
or other rights which they formerly enjoyed.
(b) Make whole Barbara Rawls and Alfred Phillips for
any loss of pay or benefits which they have suffered by
reason of the discrimination found herein, in the manner
described above in the section entitled "The Remedy."
(c) Post at its Fitzgerald, Georgia, plant copies of the
attached notice marked "Appendix." 13 Copies of said
notice on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered
by any other material.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order what
steps have been taken to comply herewith.
13 In the event that this 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."
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