Eagle Engineering Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1967

168 N.L.R.B. 352 (N.L.R.B. 1967)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eagle Engineering Corporation and General
Drivers, Warehousemen & Helpers, Local Union
No. 89 , Affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen &
Helpers of America . Cases 9-CA-4086, 9-CA-
4096-,-and 9--CA-4124-1-2
November 20, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Eagle Engineering Corporation, Louisville, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified:
Delete from paragraph 2(d) that part which reads
"to be furnished" and substitute "on forms pro-
vided."
On August 2, 1967, Trial Examiner William J.
Brown issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial
Examiner ' s Decision . He found further that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed.
Thereafter , the General Counsel and the Respond-
ent filed exceptions to the Trial Examiner ' s Deci-
sion and supporting briefs; the Respondent also
filed an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National , Labor Relations Board has
delegated its powers in connection with this case to
a three -member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in these cases, and
hereby adopts the findings ,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
I The Respondent and the General Counsel excepted to many of the
credibility findings made by the Trial Examiner It is the Board's
established policy, however, not to overrule a Tnal Examiner's resolu-
tions with respect to credibility unless, as is not the case here, a clear pre-
ponderance of all the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C.A 3)
In the absence of exceptions thereto, we adopt pro forma the Trial Ex-
aminer's findings that Respondent did not violate Sec 8 (a)(I) by (1) Plant
Manager Milligan 's statements to, and interrogation of, employee
Mofield, and (2) Quality Control Manager Conway's statements to em-
ployee Dile We also adopt pro forma, in the absence of exceptions, the
Tnal Examiner 's finding that the allegations that Respondent , through the
agency of employee Creed , solicited signatures for an antiunion petition
and threatened to discharge employees for failure to sign such petition
were not supported by substantial evidence.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to as the Act, came on
to be heard on April 11-12, 1967, at Louisville, Ken-
tucky. The original charge of unfair labor practices was
filed in Case 9-CA-4086 on October 20, 1966,1 by the
above-indicated Charging Party, hereinafter referred to
as the Union; the complaint herein was issued January
25, 1967, by the Regional Director of the National Labor
Relations Board for Region 9. It alleged, and the duly
filed answer of the above-indicated Respondent,
hereinafter sometimes referred to as the Company,
denied, the commission of unfair labor practices defined
in Section 8(a)(1) and (3) of the Act.2
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. Posthearing briefs were filed by
all parties and have been fully considered. On the entire
record herein and on the basis of my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The pleadings and evidence indicate and I find that the
Company is -a corporation organized and existing under
and by virtue of the laws of the Commonwealth of Ken-
tucky and engaged in Louisville, Kentucky, in the manu-
facture and sale of electrical and electronic apparatus,
particularly regulators and generators. During the calen-
dar year preceding issuance of the complaint herein, the
Company received at its Louisville plants materials
valued in excess of $50,000 and shipped to these plants
directly from points outside the Commonwealth of Ken-
tucky; in the same period the Company shipped from said
I Dates hereinafter relate to the year 1966 except as otherwise in-
dicated
2 At the outset of the hearing and again after the close of the hearing, the
Company moved to dismiss Case 9-CA-4086 on the ground that sub-
sequent to the filing of the charge therein but before the issuance of the
complaint , the Company and the Union entered into an agreement for a
consent representation election, a part of the consideration for such agree-
ment being the understanding between the Company and the Union that
the pending charge would be withdrawn , such understanding being, ac-
cording to the motion, known to the Regional Director This motion was
denied at the outset of the hearing and again by order of the Trial Ex-
aminer dated May 5, 1967, on the grounds that estoppel did not work
against the Government 's prosecuting arm and that grounds for dismissal
were not set forth in the motion.
168 NLRB No. 50
EAGLE ENGINEERING CORPORATION 353
plants directly to purchasers outside the Commonwealth
of Kentucky products valued in excess of $50,000. I find,
as the Company concedes, that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence indicate and I find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Summary of Events
The Company's manufacturing operations have been
at all material times conducted in two plants, some three
miles apart, in Louisville, known as the Crittenden Drive
and the Woodbine Avenue plants. Top management of
the Company includes President Joseph Hofgesang, Vice
President Tom Hutson, and Manager of Manufacturing
James Bust. Jack Ench has been plant manager of the
Crittenden Drive plant while Ross Milligan has been
plant manager of the Woodbine Avenue plant. The com-
pany supervisory staff also includes Darrell Conway,
quality control manager; Floyd Plummer, chief inspector;
and Production Supervisors Kenneth Forcht, Dennis
Isbell, and Janet Shields. There is a dispute as to the su-
pervisory status of Dick Griffin, assistant manager of
quality control, and Buck Sherman,3 foreman of 2-KW
assembly, as well as to the agency of employee Mary
Creed, the latter being alleged by the General Counsel to
have attended union meetings for the purpose of reporting
to management on the identity of those present at the
meetings.
Soon after Ench entered the Company's employ in
June 1966, the Crittenden Drive manufacturing facilities
underwent a major expansion; a large number of workers
were transferred from Woodbine to Crittenden and others
were hired directly at Crittenden.4 At that time Critten-
den's facilities were being enlarged by major construction
and the working conditions were somewhat disagreeable
in some areas with uncompleted restrooms, no in-plant
eating facilities, and exposure to the elements in some
areas. There were numerous complaints from employees
concerning working conditions and wages. Erich com-
menced working on plans to eliminate the shortcomings
in the work conditions but Hofgesang opposed any wage
adjustments until Crittenden reached a productive status.
In late September, employee Dorothy Bradley, whose
husband was a union member and acquainted with Union
Business Agent Albert Reichle, called on Reichle and in-
duced him to commence an organizational drive among
company employees. A number of union authorization
cards were signed by employees and on October 1, the
Union, by registered mail, return receipt requested, wrote
Hofgesang requesting recognition as the exclusive bar-
gaining representative. Also on October 1, according to
Ench's testimony, the Company's supervisory staff
received Hofgesang's approval of staff proposals to effec-
tuate improvements in working conditions and to grant
general wage increases. Employees were notified on
Monday, October 3, of the wage adjustments and the
plans for improving working conditions. On October 3
the Union filed a representation petition which resulted
in an election being held on November 17 with results as
follows: eligible voters 189; votes for the Union 87, votes
against the Union 78, challenged ballots 11. Employees
Dorothy Bradley5 and Elmer Mofield served as union ob-
servers at the election.
In the period between the filing of the Union's
representation petition and the holding of the election,
there were a series of organizational meetings held at the
union hall on Taylor Boulevard in Louisville conducted
by Reichle and Union Agent Carl Rogers.6 On
November 4, employees Belinda Vaughn, Priscilla
Graham, and Linda Jackson, all of whom had signed
union authorization cards' and attended a number of the
union meetings, were discharged. Their discharges are al-
leged by the General Counsel, and denied by the Com-
pany, to have been in reprisal for their support of the
Union. The case also involves the question as to whether
or not, in the period October 3-November 16, the Com-
pany engaged in various acts of interference with and
restraint and coercion of employees in the exercise of
their rights under Section 7 of the Act, and discharged
employees Shirley Dile on November 30 and Elmer
Mofield on December 9 in reprisal for their union activi-
ties. At the conclusion of the General Counsel's case-in-
chief allegations of unfair labor practices through the
agency of employee Waldo Wilt, and allegations of para-
graph 5(h)(i) relating to alleged support of an independent
union, were dismissed without objection from the
General Counsel or the Charging Party.
B. Interference, Restraint, and Coercion
1. The October 3 wage increase
The complaint alleges, in paragraph 5(a), that the Com-
pany engaged in an unfair labor practice defined in Sec-
tion 8(a)(1) of the Act by announcing a wage increase on
October 3 and making payment of the increase on Oc-
tober 6 for the purpose of inducing employees to refrain
from supporting the Union. It is also alleged that the
Company simultaneously promised improvements in
working conditions for the same purpose.
There is no doubt on the evidence herein that on Mon-
day, October 3, Plant Manager Ench announced to
groups of employees, assembled by departments, that
there would be a wage increase in the immediate future
and that substantial improvements would be made in the
plant working conditions.8 The Company contends that
8 Forcht and Sherman were no longer employed by the Company at the
time of the hearing.
" The evidence indicates that the turnover rate in the period in question
was substantial. thus in the period July - September there were 159 hires,
87 quits, and 31 terminations . It appears that the Company 's office facili-
ties were at all material times maintained at the Crittenden Drive location.
5 Bradley left the Company's employ sometime in November, ap-
parently voluntarily.
8 Postelection meetings were also held on November 29 and February
14, 1967.
' Jackson appears to have been relatively active in soliciting other em-
ployees to sign union authorization cards and Vaughn appears to have
urged employees to attend the union meetings. Graham attended three
meetings but did not otherwise organize on behalf of the Union.
8 This clearly appears from testimony of General Counsel witnesses-
employees Bradley, Edwards, Embry, Graham, Jackson, and Vaughn, all
union supporters , and from Plant Manager Ench's testimony.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the program of improvements in wages and working con-
ditions had been finally decided on at a staff meeting of
Saturday, October 1, and prior to any knowledge of union
activity which it acquired for the first time on receipt, of
the Union's letter.9 At this stage of the union campaign
there had as yet been no mass meetings of employees in-
terested in the Union nor any other vehicle apparent in
the evidence through which the Company could have
become aware of the Union's organizational efforts.1° I
find and conclude that the evidence establishes that the
October 3 announcements of improvements in wages and
working conditions were made in good faith and without
knowledge of employee interest in the Union. This con-
clusion is borne out by the testimony of Ench, which I
credit, that in the week prior to October 1 the Company
was finally in position of making shipments and that this
induced Hofgesang to consent to the announcements.
The fact that there had been substantial turnover among
employees coupled with the desire to keep employees,
who develop the needed skills for production only after
some 3 months' training, makes it believable that wages
and working conditions would be improved as soon as the
Company was in a position to do so. On the basis of all
the evidence I conclude that the allegations of paragraphs
5(a) and (b) of the complaint are not supported by the pre-
ponderance of the evidence and should be dismissed. The
subsequent action of the Company in effectuating the pay
increase and improvement of conditions was also guilt-
less. See Cadre Industries Corporation, 124 NLRB 278.
2. Threats of adverse consequences of union
representation
The complaint alleges that the Company engaged in
threats of adverse repercussions in the event of em-
ployees' selection of the Union as bargaining representa-
tive through the agency of (1) speeches of Erich on or
about November 8 in which he allegedly told groups of
employees that if the Union succeeded in organizing, the
Company would no longer be able to spread available
work among employees in cases where an individual's
particular assignment was completed and (2) letters of
Isbell to employees of his department threatening possi-
ble loss of employment if they did not reject the Union,
while promising benefits if they did.
For the General Counsel, Dorothy Bradley, an em-
ployee in the fall of 1966 who left the Company in
February 1967, but still attended union meetings as of the
date of the hearing, testified that Ench spoke to em-
ployees of her (voltage regulator) department about a
week prior to the election and said, inter alia, that if the
Union won the election the Company would no longer be
able to continue its practice of providing girls with other
work when their normal work came to a stop and would,
instead, have to send them home. Ench's testimony
respecting this matter is that on November 15 he read a
two-page speech prepared by counsel. He did not directly
dispute Bradley's testimony as to the statements about
employees being sent home in the event of running out of
work, and I credit her account particularly since the two-
0 The Union 's letter is dated October 1 (Saturday ) and an indication
that it was sent registered mail, return receipt requested There is no
testimony from General Counsel witnesses nor documentary evidence,
e g , the return receipt, in refutation of Ench 's testimony , which I credit,
that the letter was received at the Company either on October 4 or 5 and
shown to him on October 5.
page speech was not offered in evidence. On the evidence
herein I find that in his November 15 speech Ench in-
formed employees that if the Union succeeded in the
election the practice of arranging work for idle hands
would be discontinued; it does not appear either that this
statement was in reply to a question from the floor or that
it was stated as merely a probable consequ3nce of the
provisions of a labor agreement and I find and conclude
that the statement necessarily had the potential of inter-
fering with employees' freedom of choice in the pending
election. I conclude that thereby Ench engaged in unfair
labor practices as alleged in paragraph 5(c) of the com-
plaint.
With respect to Dennis Isbell's letters to employees of
his (generator) department, which the evidence reveals
were sent in the week prior to the election, a copy is in
evidence as General Counsel's Exhibit 7. The letter
amounts to an appeal to employees to think carefully
about matters affecting their employment and refers to
improvements planned in conditions of employment. It
concludes with an appeal to vote "No" in the forthcoming
election so as to avoid the possibility of a "closed shop"
under which unwilling workers would be compelled to
join the Union. The General Counsel asserts that the
letter makes the promised benefits conditional on rejec-
tion of the Union and threatens loss of employment if
they do not reject it. I see no such sinister implications in
the letter; rather it appears to be one of the clearer exam-
ples of argument devoid of threat of reprisal or promise of
benefit and to be protected under Section 8(c) of the Act.
3. Interrogation and surveillance
The complaint alleges that Woodbine Plant Manager
Ross Milligan interrogated a Woodbine employee on or
about October 28 concerning the employee's union ac-
tivities and membership and, on or about November 15,
created the impression that the Company had employees'
union activities under surveillance by informing the em-
ployee that he was aware of all who had signed union
cards.
Elmer Mofield, an alleged discriminatee, testified that
on October 28, either at his welding booth or in Milligan's
office, Milligan asked him if he had signed any cards for
the Union and when Mofield, who had in fact signed a
card, replied, "No," Milligan commented that he knew
which side his bread was buttered on. Milligan's version
of the incident is that Mofield came to his office and said,
"Well, I guess you know I am acting on behalf of the
Union," to which Milligan replied that he had not known
of this but now did. I credit Milligan's version of this in-
cident and find that in fact he did not interrogate
Mofield.' 1
With respect to the creation of the impression of sur-
veillance, Mofield testified that on or about November
15, Milligan called him in to the office for a lengthy
discussion concerning the Union in the course of which
Milligan stated that he knew how many cards had been
signed and proceeded to write the number on a paper
which, according to Mofield, was quite accurate. Milligan
10 It appears from testimony of Reichle and from G C Exh. 3 that the
first union meeting was held on the night of October 7
11 Even if Mofield's version were to be accepted there would appear to
be no unfair labor practice involved under the rule of Insular Chemical
Corporation, 128 NLRB 93, cited in the Company's brief
EAGLE ENGINEERING CORPORATION
denies telling Mofield that he knew how many cards had
been signed. Even accepting Mofield's testimony there
would appear to be therein no creation of the impression
of surveillance. Climate Control Division, The Singer
Company, 160 NLRB 765.
The complaint also alleges that Chief Inspector Floyd
Plummer created the impression on or about November
16 that he had an employee's union activities under sur-
veillance by telling the employee that he knew of his at-
tendance at a union meeting on the preceding evening.
The employee in question, Shirley Dile, an alleged dis-
criminatee, testified that on the day following the union
meeting of November 15, which she attended, Plummer
came and sat at her desk and said that he heard she had
been at the union meeting on the preceding night. Dile
said that she felt it was no proper concern of Plummer's
and asked what he had against the Union to which
Plummer, according to Dile, replied that they were a
bunch of gangsters who could do no good. Plummer de-
nied making such statements to Dile or anyone. I credit
Dile's testimony in this matter and find that by Plummer's
statement the Company engaged in the creation of an
impression of surveillance of employees'. union activities
and thereby engaged in unfair labor practices defined in
Section 8(a)(1) of the Act.
Isbell is also alleged to have created the impression of
surveillance of employees' union activities on or about
October 18 by informing Crittenden Drive employees
that he was aware of those who had attended a union
meeting the previous evening and of those who had
signed union cards.
Marilyn Edwards, a union supporter, testified that after
the first union meeting while she and other employees
were at their worktable, Isbell came and asked about the
"Union party"; when one of the employees professed
ignorance, Isbell explained that he referred to the party
on Taylor Boulevard12 and added that he knew who was
there. Jackson, an alleged discriminatee, also testified
that on the day following the first union meeting Isbell
came to the table and asked if they had all been over on
Taylor Boulevard and added that he knew who had been
there and who had signed union cards. Isbell testified that
his remarks on the occasion in question were directed to
employee Janet Dickson, a personal friend, and that he
merely asked her about getting drunk at a party on the
preceding evening.
I credit the testimony of Edwards and Jackson and find
that on the occasion in question Isbell implied that he had
knowledge of the union activities of the preceding even-
ing and who had attended and signed union cards thereby
creating the impression of surveillance of employee union
activity as alleged in the complaint.
Kenneth Forcht is alleged to have interrogated em-
ployees on or about October 18 concerning their union
sympathies. Opal Embry, a union supporter who quit her
job the day following the election, testified that sometime
after the filing of the Union's representation petition,
Forcht came to her table and laid down a yellow paper
with instructions for her and other girls to sign either for
the Company or for the Union. None signed the paper.
Erich and Shields denied knowledge of any such paper. I
credit Embry's testimony and find that by this incident
the Company, through Forcht, engaged in interrogation
of employees respecting their union sympathies and
12 The union hall is at 3813 Taylor Boulevard.
355
thereby committed unfair labor practices defined in Sec-
tion 8(a)(1) of the Act.
By amendment to the complaint at the outset of the
hearing, the General Counsel has alleged an unfair labor
practice in the conduct of Quality Control Manager Dar-
rell Conway, an admitted supervisor, in interrogating an
employee about her union activity on or about November
16.
Shirley Dile, a quality control inspector and an alleged
discriminatee, testified that on the day before the elec-
tion, Conway called her from her desk to the supervisors'
area and advised her to vote against the Union. When
Dile asked why, Conway, according to Dile, stated that
if the Union got in inspectors could not go on straight sa-
lary and that she should find out more about the Union
because if the Union got in the supervisors would not be
able to assist inspectors in questions relating to their
work. Conway testified that on the occasion in question
he urged her to vote and said that in his opinion she
should vote "No" but the decision was her own. He
added that he saw no advantage in the Union and a possi-
ble disadvantage relating to the work of less experienced
inspectors in that supervisors would not be able to ac-
tually do the work themselves. Accepting either view of
Conway's statements on this occasion it seems clear that
they amount to no more than the expression of views, ar-
gument, and opinion devoid of threat of reprisal or
promise of benefit. I conclude that no unfair labor prac-
tice was committed on this occasion.
The complaint was also amended at the outset of the
hearing to allege the supervisory status of Richard Grif-
fin, assistant manager of quality control, and an unfair
labor practice in his November 15 interrogation of an em-
ployee concerning her union activity coupled with his ac-
cusing her of being the instigator of the Union. The Com-
pany has denied the supervisory status of Griffin and the
unfair labor practices allegedly committed through him.
As assistant manager of quality control, Griffin works
directly under Conway. He did not vote in the election,
interviewed and hired employee Edwards, participated in
the hiring of Jackson, Vaughn, and Dile and, according to
the latter's testimony gave her work instructions through
Chief Inspector Plummer, an admitted supervisor. On the
basis of the foregoing, I conclude that Griffin was a su-
pervisor within the Act.
Dile testified that 2 days before the election Griffin
took her aside from her work to talk about the Union. Ac-
cording to Dile, Griffin said that if the Union got in there
would be a strike and employees would be without pay.
He asked her how she would like to be off for a couple of
months without pay and with children to support and ad-
vised the inspectors not to vote for the Union because
they knew of his opposition to it. Griffin continued, ac-
cording to Dile, by criticizing Union's use of dues
moneys and by saying that he knew she was an instigator
of the Union from what different people had said. Grif-
fin's testimony is that, on Conway's instructions, he
talked to the inspectors to urge them to vote; he denied
predicting a strike or criticizing union use of dues
moneys. He also denied knowledge of Dile's union activi-
ty.
There is clearly no evidence of interrogation on the part
of Griffin. I credit Dile's testimony that Griffin stated to
336-845 0 - 70 - 24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her that he knew she was an instigator of the Union. In
Blue Motor Coach Company, 147 NLRB 1484, the
Board held that a supervisor's statement to an employee
that he knew another employee was a ringleader of union
activity constituted interference, restraint, and coercion.
I find and conclude that Griffin's statement to Dile that
he knew she was an instigator for the Union amounted to
interference, restraint, and coercion within Section 8(a)(1)
of the Act.
4. Alleged antiunion petition
The Company is alleged in paragraph 5(h)(ii) of the
complaint through the agency of employee Mary Creed
in the presence of Shields, to have solicited employee
signatures on a petition to set aside the election and to
have threatened employees with discharge for failure to
sign such petition. Creed is admittedly a nonsupervisory
employee but is alleged to have been an agent of the Com-
pany.
In the fall of 1966 Mary Creed was employed as a
quality control inspector working under the supervision
of Conway and stationed at the Crittenden plant where
she was assigned to a special project relating to a cable as-
sembly on which she worked directly under Ench. Creed
was apparently possessed of some animus against the
Union arising from its expulsion of her brother from
membership. It is clear from the testimony that she at-
tended several of the Union' s meetings and Ench had a
report that she had been threatened and her car daubed
with paint. Margie Glenn, a union supporter, testified that
following the meeting of October 18 which Creed at-
tended, Creed asked her for the names of others there and
on the following day, according to Glenn, Creed informed
her that she (Creed) had turned in to the "big shots" the
names of all those in attendance except Glenn.13
Edwards, Jackson, and Vaughn testified that at the
meetings at which they saw Creed in attendance she was
writing something on a paper.
The specific activity of Creed by which the Company
is alleged to have engaged in an unfair labor practice is
her circulation of the above-mentioned petition in the
Crittenden plant , during working hours and in the
presence of Shields and her threatening solicitation of em-
ployee signatures thereon. The only evidence respecting
such solicitation is in the testimony of Glenn that while
she was alone with Creed, the latter asked her to sign a
petition saying that the signers were opposed to the
Union and that the election had been unfairly conducted
because most of the voters for the Union no longer
worked for the Company. Glenn refused to sign ; there is
no evidence of company reprisals against Glenn, nor is
there evidence of threats on the part of Creed.
Appraising the totality of the evidence in this area of
the case it clearly does not preponderate in favor of the
conclusion that the allegations of paragraph 5(h)(ii) of the
complaint are supported by substantial evidence on the
record as a whole.
13 This is plainly hearsay as to whether or not Creed did in fact turn in
the names , unless Creed be found to be an agent of the Company in an an-
tiunion campaign.
14 Bradley and employee Opal Embry who appear to have been the
C. The Discharges
1. Belinda Vaughn, Priscilla Graham, Linda Jackson
These employees were discharged on November 4.
Their discharges are alleged by the General Counsel to
have been in reprisal for their activities on behalf of the
Union. The Company asserts that they were discharged
at or near the end of their probationary periods and
because of unsatisfactory employment records. Isbell,
their supervisor, denied knowledge of union activity on
the part of Vaughn and Graham, while conceding that he
had overheard conversation in the plant indicating that
Jackson was somewhat active on behalf of the Union.
Graham, who signed a union authorization card, and at-
tended three meetings, does not appear to have been
otherwise active on behalf of the Union; Vaughn signed
an authorization card, attended most of the union
meetings and urged others to attend but does not appear
to have been active in soliciting cards on behalf of the
Union.14
At the time of their discharges, the three were given
forms captioned "NOTICE TO EMPLOYEE OF
REASON FOR SEPARATION," signed by Ench and
delivered to Graham and Jackson by Isbell and to
Vaughn by Dennis Wells, Isbell's assistant in charge of
the rotor assembly department. In each case the reason
assigned for separation is that the employee's attitude
during the probationary period demonstrated deficiencies
in the employee's production efforts.
The General Counsel contends that in fact each of the
three had been employed far beyond their probationary
period. The evidence reveals that Vaughn and Jackson
were hired August 18 and Graham was hired August 1.
Thus their terminations occurred shortly prior to the ex-
piration of a 90-day period in the case of Vaughn and
Jackson but 4 days after the expiration of such a period in
the case of Graham. There is some basis for doubt as to
the duration of the Company's probationary period but
the evidence of both General Counsel's and the Com-
pany's witnesses clearly indicates that employees were
informed that there was a probationary period at the time
of their hire although there is a conflict in the testimony
as to the duration of such period. I credit the testimony of
Ench that the probationary period has always been one of
90 days. In this connection it is noted that Respondent's
Exhibit 3, a company document outlining rules, regula-
tions, and policies effective September 1, 1965, provides
for a 90-day probationary period on the expiration of
which the employee would become subject to company
policies, rules, and regulations. While this document was
not given to employees and it is possible that in some in-
stances new employees were informed of a probationary
period at variance with that set forth in the document,15
I cannot find in the possibility of such varying statements
by varynm supervisors sufficient reason to doubt that the
Company in fact operated on a 90-day probationary
period. Neither can I deduce from the fact that Graham's
termination came 4 days after the 90th day of her employ-
ment any necessary basis for concluding that this could
prime movers in union organization were not discharged
15 The testimony of General Counsel's witnesses as to the duration of
probation as announced to them at their hiring vaned from 30 to 60 days
EAGLE ENGINEERING CORPORATION 357
not have been an insignificant error or an indication of
some flexibility in application of the 90-day computation.
None of the three appear to have protested at the time of
their discharges that their probationary period had
elapsed.
Vaughn was employed in the rotor section under the
immediate supervision of Dennis Wells16 who in turn re-
ported to Isbell, manager of the generator department.
Her testimony is that she had been praised by her head
lady, Kraft, and by Wells as a good worker and that Isbell
informed her that the welder, Wilt, had praised her work.
She had some 30 days' absenteesim but had called in on
each occasion. She testified that her work output was
substantially superior to that of others in her section and
that she had no rejects by inspectors after a method of
identifying individual production was installed about Oc-
tober 15. Vaughn testified that when she received her
notice of separation with annexed reasons from Wells she
asked Wells what it was all about. Wells professed
ignorance and told her to ask Ench who signed the notice.
Then Wells informed her that any reports he had turned
in on her had been favorable and offered to take her to the
office and show her. Later that day Isbell, according to
Vaughn, said that she was a good worker and that she
could use him as a reference for a job.
Ench testified that he had observed Vaughn, Graham,
and Jackson chatting and commented on it to Isbell who
replied that they were probationary employees. Isbell
testified that Vaughn was an average worker if supervi-
sion was close at hand but otherwise would sit and smoke
or talk. He testified that Vaughn would meet her produc-
tion quota only if closely supervised and that he
frequently instructed Wells to talk to her concerning her
indifference to production.17 He asserted that Kraft and
Wells complained to him about Vaughn and that he
recommended her termination to Ench. Wells described
Vaughn as the worst offender in respect to loafing and
said that he had reports from Kraft that Vaughn had trou-
ble with other employees; he conceded, however, that he
may have on occasion complimented her on her produc-
tion, though he made no written reports to Isbell on her.
The evidence preponderates clearly in favor of the con-
clusion that Creed, hostile to the Union, attended
meetings for the purpose, in part at least, of noting the
names of employees in attendance and reporting to
management her findings. Although Ench testified that he
received no list of such names from Creed, Isbell con-
ceded that Creed reported on the fact of at least one union
meeting but there is no solid basis in the evidence for con-
cluding that he knew of Vaughn's support of the Union.
Appraising the evidence relating to Vaughn' s termina-
tion in its totality I conclude that it cannot be said to pre-
ponderate in favor of the conclusion that she was
discharged in reprisal for her activity on behalf of the
Union.
Priscilla Graham was hired during the first week of Au-
gust and worked in the generator department under Isbell
and Wells. She signed a union card and attended three
meetings but was not otherwise active on behalf of the
Union. She testified that when her machine was operating
properly she and her work partner could assemble 40
pieces per day but that the machine was more often
running improperly than properly. She was never warned
about low production and had a good record as to at-
tendance.
Ench signed her separation notice after discussing her
case with Isbell. Ench also testified that he had observed
Graham chatting and learned from Isbell at that time that
she was a probationary employee. Isbell recommended to
Ench that Graham not be transferred to permanent
status. Isbell testified that Graham was a poor worker
who lacked initiative and consistently refused to work
overtime;18 he testified that Wells complained about her
work to him. Wells testified that he admonished Graham
between 10 and 20 times about failing to turn to other
work when her particular job was shut down. Isbell and
Wells denied any knowledge of her union activity.
The evidence makes it clear that Isbell was the man
responsible for the termination of Graham. I credit his
denial of union activity on her part, particularly in view of
her minimal activity in this regard. I find that the evidence
does not preponderate in favor of the conclusion that she
was discharged in reprisal for her support of the Union.
Linda Dianne Jackson was hired August 18 and
worked under Isbell's supervision in the generator de-
partment. She was one of the early supporters of the
union campaign and was active in urging others to sup-
port the Union. When she reported for work on
November 4 her timecard was missing from the rack and
Wells instructed her to report to Isbell. Isbell gave her her
separation notice which states that she was discharged
because her performance during her probationary period
showed that she did not willingly accept and perform all
duties related to her classification. This assigned reason
appears to refer to her operation of a wire machine, a duty
which she had once asked to be relieved of (about 3 or 4
weeks before her termination) inasmuch as she felt it
necessary to operate the machine while standing, which
was difficult for her on account of her obesity. The
evidence indicates that Ench himself was called into the
dispute and ordered her to run the wire machine which
she did up until the date of her discharge. Jackson
testified that her production was above average and that
she had often been complimented by her inspector and by
Wells and Isbell.
Isbell confirmed that Jackson was an above-average
producer but asserted that the quality of her work was
poor with numerous reworks of her production. She was,
according to Isbell, a loud and obnoxious talker at work
and he had received numerous complaints from her
leadlady. Isbell testified that he had reason to believe that
she was a union supporter on the basis of talk overheard
in the plant.
On the basis of the evidence relating to the review of
employees at or near the end of their probationary
periods and in view of the testimony that Jackson was
reluctant to perform the assigned task of operating the
wire machine and was a poor quality producer I find and
conclude that there existed cause for the Company's
separation of her at the end of her probationary period.
Although Isbell had knowledge of her union activity I
cannot conclude that the evidence preponderates in favor
of the conclusion that such activity entered into the deci-
sion to discharge her.
11 Wells, according to Each, had authority to recommend increases, at-
tended supervisory staff meetings , and had 15 employees under him. I
conclude that he was a supervisor within the meaning of the Act.
17 It appears that the only individual production records are those kept
by leadwomen in notebooks which apparently are not maintained as com-
pany records.
18 Graham testified that Wells usually notified her of overtime work at
the last minute and that she would work overtime "if she could "
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Shirley Dile
Shirley Dile was hired in May, worked 30 days on
production work in the control box section, then trans-
ferred to the quality control group as an inspector until
she was terminated on November 30. She testified that
she obtained a union authorization card from Dorothy
Bradley, signed it, and attended two union meetings be-
fore the election and all those after it . Her signature ap-
pears on the attendance list for the meetings of,November
15 and 29 and February 14, 1967. Her superiors in the
quality control department were Conway and Griffin but
she received most of her instructions from Plummer. As
noted above I find that Griffin knew of her support. of the
Union and appears to have mistakenly believed it to have
been greater than it in fact was. It also appears that
Plummer knew of her attendance at the November 15
meeting in view of her testimony which I credit that on
the following day he told her that he had heard of such at-
tendance.
During the first 5 months of her assignment as a quality
control inspector she was the only inspector checking on
the output of some 15-20 production workers and in this
period, she testified, she had compliments on her work
from Griffin, Plummer, Conway, and Shields. I credit her
testimony in this regard and note that Shields and
Plummer conceded that, at least sometimes, she per-
formed well.
On October 7 she was given a warning notice by
Plummer . It bore the signatures of both Plummer and
Griffin and charged her with failure to use slack periods
in paperwork and files and with taking the word of
production employees for accuracy without an independ-
ent check. Shields testified that she protested the warn-
ing to Plummer and he disclaimed knowledge and said
that he had tried to talk his superiors out of it; she
testified further that when she consulted Griffin about the
warning, he walked away. It appears that this warning
notice followed upon Dile's action in approving parts
containing some 700 pieces of copper wire which were
passed by Dile on the basis of an incorrect report entered
in the wire book by a production employee.
On November 8 Dile was given a second warning
notice, signed by Conway and Plummer charging her with
poor quality of work, ignoring reprimands on loafing,
derogatory statements about the Company, poor
cooperation with other departments, and poor quantity of
work. Dile testified that Conway handed her this second
notice and that in reply to her question as to the reason
for it said that someone had reported her but declined to
say why. It appears from the testimony of Plummer, how-
ever, that the second warning proceeded from a com-
plaint from Vice President Hutson that he observed Dile
sitting idle for extended periods. Hutson , it appears, had
previously heard loud and vulgar talk from Dile through
his open office window. Dile, though called in rebuttal,
did not deny testimony attributing to her such loud and
vulgar language in the area outside Hutson 's office.
It appears that there was an incident immediately
preceding Dile's discharge relating to the accumulation at
her inspection station of some 50 control boxes. Dile's
testimony is that the 50 boxes had accumulated at her sta-
tion because they lacked voltage regulators. She also
testified that the production group commenced installing
the voltage regulators on November 27 near quitting
time, that she was sent to another department on
November 28, and that she finished inspecting the lot on
November 30. Plummer testified that both he and Con-
way had asked Dile to inspect the control boxes without
the regulators and that she refused. Dile, though called in
rebuttal, did not dispute this testimony of Plummer con-
cerning her refusal to inspect them.
At the close of work on November 30 Dile was handed
her check and separation notice (apparently by Griffin)
and she asked the reason for the discharge and was told
that it was on account of the 50 control boxes situation.
She asked if it were really due to her union activity and
was told that it was not.
The evidence indicates that the Company was deeply
concerned with the matter of getting into production after
a somewhat sterile period of preparation and that Dile's
refusal to depart from normal routine even at the express
orders of her superiors coupled with the prior dissatisfac-
tion with her attitude could easily have been the real
reason for her termination. The evidence does not pre-
ponderate in favor of the conclusion that her relatively
minor activity on behalf of the Union was a principal or
even a contributing cause thereof.
3. Elmer Mofield
Mofield was hired July 1 I and worked at Woodbine as
a welder on both day and night shifts; his supervisor on
the night shift, on which he worked at the time of his
discharge on December 9, was Leo Green. Mofield
signed a union authorization card, attended meetings, and
passed out union cards to other employees. Prior to the
election day his selection to be one of the Union's obser-
vers was apparently known to the Company and on the
day before the election Milligan informed him that many
people would be watching him on the following day. Also
on election day while the ballots were being counted,
Hofgesang asked him his name , job, and department.
On the night of December 9, Mofield came to the paint
department to wash some parts and had an altercation
with employee Clifford "Skip" Bryant who told him to
keep his mouth shut. Mofield testified that Bryant took a
poke at him and then pinned him against a water tank
until Mofield worked loose and reported the incident to
Green. Green then checked into the matter with a
bystander, known only as J. R., and then discharged
Bryant with his paycheck and ordered Mofield back to
work. Later in the evening, according to Mofield, Green
discharged him with the explanation that he had called
Hofgesang who told him that it was company policy to
discharge both employees when they were involved in a
heated argument. Bryant, who worked part time for the
Company at the time of the incident, did not dispute
Mofield's account except that he asserted that no
punches were landed, and he testified that at the time
Green did not give him a reason for the discharge but that
he knew the general policy of employers to discharge
both participants in a fight. The company policies and
regulations adopted in 1965, which although not posted
were explained to employees, provide that fighting on
company premises should be cause for immediate
discharge.
The Company had knowledge of Mofield's active role
in the union organizing campaign and is shown by the nu-
merous instances of interference referred to above to
have been hostile both to the Union and to Mofield. Both
Mofield's and Bryant's account of the altercation indicate
that Mofield did no more than supinely resist Bryant's ag-
gression, Mofield's offense being merely that of having
used apparently loud and vulgar language . Absent
testimony from Green and Hofgesang I conclude that not
only was Mofield a nonaggressor but that Hofgesang did
not have a report that he was in fact engaged in fighting.
EAGLE ENGINEERING CORPORATION
It appears to me on all the evidence that Mofield was
summarily discharged for an alleged reason which could
not have been the real reason. I conclude that he was in
fact discharged because of his relatively active role in
support of the Union particularly in view of Mofield's
testimony, undenied by Green, that a week after the elec-
tion Green told Mofield that his elections would get him
in trouble.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section 111,
above, and there found to constitute unfair labor prac-
tices, occurring in connection with the operations of the
Company as set forth in section 1, above, have a close, in-
timate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing such commerce and
the free flow thereof.
V. THE REMEDY
In view of the findings above to the effect that the
Company has engaged in unfair labor practices affecting
commerce I shall recommend that it be required to cease
and desist therefrom and, in view of the findings of dis-
criminatory discharge, from any acts constituting inter-
ference, restraint, and coercion of employees within the
meaning of the Act. I shall recommend that Elmer
Mofield be offered reinstatement to his former or a sub-
stantially equivalent position and be made whole for loss
caused by the Company's discrimination against him in
accordance with the remedial policies of F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing and
Heating Co., 138 N LRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees concerning their union
sympathies , by threatening employees with adverse con-
sequences of union representation , and by creating
among employees the impression of company surveil-
lance of their union activities, the Company has engaged
in unfair labor practices defined in Section 8(a)(1) of the
Act.
4. By discharging employee Elmer Mofield because of
his activity on behalf of the Union, the Company has en-
gaged in unfair labor practices defined in Section 8(a)(3)
and (l) of the Act
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. Except as specifically found herein , the Company
has not engaged in unfair labor practices alleged in the
complaint.
19 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
RECOMMENDED ORDER
359
On the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, it
is recommended that the Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating coercively employees concerning
their sympathies and activities respecting the Union.
(b) Threatening employees with adverse con-
sequences of union representation.
(c) Creating among employees the impression of com-
pany surveillance of their union activities.
(d) Discouraging membership in or support of the
Union or any labor organization of its employees by
discharging or in any way discriminating against em-
ployees with respect to hire, tenure, or any term or condi-
tion of employment.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is found
to be necessary and appropriate to effectuate the policies
of the Act:
(a) Offer Elmer Mofield immediate and full reinstate-
ment to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for loss of earnings result-
ing from the Company's discrimination against him in the
manner set forth in the section above entitled "The
Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and th. Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Crittenden Drive and Woodbine
Avenue plants copies of the attached notice marked
"Appendix." 19 Copies of said notice, to be furnished by
the Regional Director for Region 9, after being signed by
a duly authorized representative of the Company, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Company to ensure that said notices
are not altered, defaced, or covered by other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from receipt of this Decision, what
steps have been taken to comply herewith.20
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to allegations of unfair labor practices
therein not herein specifically found to have been en-
gaged in.
and Order "
20 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
360 DECISIONS OF NATIONAL
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interrogate employees concerning
their membership in or support of General Drivers,
Warehousemen & Helpers, Local Union No. 89, Af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America.
WE WILL NOT threaten employees with adverse
consequences of representation by the above-named
U nion.
WE WILL NOT create among employees the im-
pression of company surveillance of their activities
on behalf of the above-named Union.
WE WILL NOT discourage membership in or activi-
ty on behalf of the above-named or any other labor
organization by discharging or otherwise discriminat-
ing against them with respect to hire, tenure, or terms
or conditions of employment except as may be
required by an agreement entered into pursuant to
the terms of the Act.
WE WILL offer Elmer Mofield immediate and full
reinstatement to his former or a substantially
LABOR RELATIONS BOARD
equivalent position and make him whole for loss of
pay suffered as a result of his discharge.
WE WILL notify Elmer Mofield if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of their
rights to join or assist the above-named Union or any
other labor organization.
All our employees are free to become or remain mem-
bers of the above-named Union or any other labor
organization.
EAGLE ENGINEERING COR-
PORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686.