Delco-Remy DivisionDownload PDFNational Labor Relations Board - Board DecisionsFeb 17, 1978234 N.L.R.B. 995 (N.L.R.B. 1978) Copy Citation 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. 999 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. 1000 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 1001 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." 1002 Copy with citationCopy as parenthetical citation