Emerson Electric Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 346 (N.L.R.B. 1970)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emerson Electric Co., U.S. Electrical Motors Divi-
sion and International Association of Machinists
and Aerospace Workers, AFL-CIO. Case 26-
CA-3413
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On December 31, 1969, Trial Examiner Maurice
S. Bush issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision 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
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and finds merit in
Respondent's exceptions. Accordingly, we shall dis-
miss the complaint for the reasons set forth hereinafter.
The Trial Examiner found that employee Henry,
a motor inspector, was discharged in violation of
Section 8(a)(1) for insisting that fellow employees
Ashley and Staggs be permitted to accompany him
as witnesses at a disciplinary meeting to which he
had been summoned by Respondent's officials. He
further found that Respondent violated Section 8(a)(1)
by reprimanding Ashley and Staggs for leaving their
work stations without the permission of their foremen,
contrary to a well understood company rule, to thus
act as witnesses. The Trial Examiner concluded that
both the action of Henry in endeavoring unsuccessfully
to insist upon the attendance of Ashley and Staggs
at the disciplinary meeting and their attempt to attend
that meeting were protected concerted activities with
which the Employer had unlawfully interfered in
violation of Section 8(a)(1). We do not agree.
On June 21, 1969, a Saturday, Dale Henry violated
a company rule requiring motor inspectors to keep
the test booth doors shut while testing motors. Henry
was told by a supervisor that the matter of possible
disciplinary action would be considered on Monday.
As he had been warned, Henry was summoned to
Plant Superintendent Powell's office on Monday after-
noon. The Trial Examiner found, and we agree, that
the purpose of the meeting was not merely to further
investigate Henry's breach of working rules, but to
impose discipline upon Henry for that breach. Henry
had prearranged with employees Ashley and Staggs
to accompany him to the Monday meeting to act
as witnesses. As Henry and his foreman walked to
the meeting, Henry motioned to Ashley and Staggs
to leave their work stations and follow him. They
did so. Neither had received permission from their
respective foremen to leave their work stations, contra-
ry to a well-established company rule requiring such
permission.'
When the group reached Powell's office, and Ashley
and Staggs were asked by Respondent's officials why
they were there, they responded, in effect, that they
wanted to assure that Henry received fair treatment.
The plant manager, hearing loud noises, approached
the plant superintendent's office, was apprised of the
situation, and instructed Ashley and Staggs to return
to their work stations. The two insisted upon their
right to be present at the disciplinary meeting and
did not return to work, but finally, at management's
request, sat in the lobby while the meeting took
place in the plant manager's office.
As the meeting began, Henry twice insisted that
Ashley and Staggs be permitted to attend, and Staggs
looked into the office and said, "Dale, you don't
have to take this." Respondent's officials attempted
to discuss the matter of Henry's breach of the testing
booth rule. Henry admitted the breach, but offered
no promise to comply with the rule in the future.
Henry also admitted to having brought a camera
into the plant that same morning, contrary to another
company rule. The discussion was heated throughout,
and it ended with Plant Manager Blair telling Henry
that the latter was being insubordinate, with Henry
replying, "Well, you are insubordinate to me." The
Trial Examiner found that Henry's conduct through-
out the episode was "crude," "brash," "disrespectful
and insubordinate."
The following morning, Henry was discharged, the
reasons given by Respondent being "failure to follow
instructions and being disrespectful to plant manager."
Ashley and Staggs received formal reprimands for
leaving their work stations without permission. The
Trial Examiner found that the "insubordination" for
which Henry was in part discharged was rooted in
his aggressive insistence upon having Ashley and
' Staggs had attempted to secure such authorization, but had been
unable to locate his foreman
185 NLRB No. 71
EMERSON ELECTRIC CO 347
Staggs present as witnesses at the meeting. The Trial
Examiner further found that Henry had a right to
make such a demand, arising from his statutory right
to engage in "concerted activities . . for the purpose
of mutual aid or protection" guaranteed by Section
7 of the Act. The Trial Examiner accordingly conclud-
ed that the discharge of Henry and the reprimands
given to Ashley and Staggs were violative of Section
8(a)(1) of the Act. The alleged violation of Section
8(a)(1) depends upon whether the concerted activities
protected by Section 7 encompass the conduct of
Henry, Ashley, and Staggs described above. We do
not think that the ambit of Section 7 reaches quite
that far. The statutory right of employees to collective-
ly protest an employer's conduct, to present grievances
to him, and to engage in other concerted conduct
is far ranging. We cannot say, however, that Section
7 creates a right to insist, to the point of insubordina-
tion, upon having fellow employees present as witness-
es to a meeting in a private management office at
which it is expected that some measure of discipline
will be meted out. It would appear from the record
that, if the three employees had not so vehemently
insisted upon the presence of two of them at the
meeting, a milder punishment would have been visited
upon Henry. If Ashley and Staggs had then been
unhappy with that penalty, they could have expressed
their displeasure by presenting a point grievance to
their Employer or by striking, and their conduct
would have been protected by the Act.' But, in our
view, what they in fact attempted to do, in the
manner and at the place in which they attempted
to do it, does not rise to the level of protected
concerted activity under Section 7.'
Since we find no violation of the Act with respect
to employees Henry, Ashley, and Staggs, we shall
dismiss the complaint in its entirety.
of Section 8(a)(1) of the Act, I am constrained to
note my disagreement on two important points.
In my view the record clearly does not support
the factual finding of the Trial Examiner, which
my colleagues adopt, that the disciplining of these
employees was prompted by the employees' insistence
that Ashley and Staggs be present at Henry's discipli-
nary meeting. To the contrary, the record contains
overwhelming support for the conclusion that Henry
was discharged for "failure to follow instructions
and being disrespectful to management," and that
Ashley and Staggs received written reprimands for
leaving their work stations without permission of
their foremen in violation of a known plant rule.
Henry's discharge memorandum written on the
day of his discharge clearly sets forth in two separate
instances that he was discharged for the above-stated
reasons.' The initial question as to whether Ashley
and Staggs were to attend the meeting was resolved
and it was his subsequent conduct at the meeting
that the Trial Examiner characterized as "disrespectful
and insubordinate" that prompted his discharge.
Henry himself testified that after he was asked to
go in Doug Blair 's office, "Eddie [Staggs] said that
I didn't have to go in there without them and I
said that I would that I wanted to hear what they
had to say."5 If in fact Henry was discharged for
his insistence upon having his friends at the meeting,
it was illogical for the meeting to have continued
and his termination to be announced on the following
morning after a review of his personnel file. Conse-
quently, it is farfetched to conclude that Henry's
discharge was prompted by his insistence upon their
presence and not what ensued thereafter. Henry not
only violated a clear rule regarding closing of a testing
booth door but, more importantly, gave no indication
that he would comply with the rule in the future.
His failure to respond to questions at the meeting;
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, concurring specially:
Despite my agreement with my colleagues' conclu-
sion that the discharge of Henry and the reprimands
of employees Ashley and Staggs were not violative
' "TO Office Personnel Files
Indnidual \NP
I linitial, of Phelp,I
Date 6-_-1-69
Suhleu Dale Henn
W/N-Failure to folloo
in,truwon, and hung
disre,pecitul to nian .m_ement
' Modern Motors, Inc v NLRB, 198 F 2d 925 (C A 8), N.LR B
v Kennametal, Inc, 182F2d817(CA 3)
' Since we consider the basis for our decision in this case to be
clear enough , we see no need to respond to the separate opinion of
Member Jenkins who joins us in dismissing the proceeding , other than
to note that our failure to do so is not to be taken as adopting any
of the broad legal positions he attributes to us or as reflecting any
intention to depart from established Board principles
Doug Blair discharged Dale Henry today, 6 / 24/69 for failure to follow
instructions and being disrespectful to plant management Dale tested
motors Sat 6/21 /69 with the test booth opened which he was specifically
told not to do His insubordination started by a telephone call to Curtis
Powell `asking how many people he had in his office' Dale requested
to have two witnesses but was denied He became belligerent and disres-
pectful to the point of having to reschedule the meeting "
In my view, the full import of the discharge memorandum supports
the conclusion that he was discharged for the reasons stated therein
Including his conduct at the meeting and not because of his initial insi,ku c
upon witnesses heing present The Trial F,aminer , technique of underlining
certain portion, of the discharge memorandum ind enorine other portion, i.
taking selected Language out of Lontest
' Record, p 118 This was corroborated by Ashley's testimony at
pp 158-159
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his denial and later admission that he had also brought
a camera into the plant in violation of a plant rule;
his accusing the plant manager of being "insubordi-
nate" to him create a picture of overreaction to
management's attempt to correct his error and his
attitude and mete out, at least initially, minor disci-
pline.
It is also clear from Staggs' testimony that the
reprimands given him and Ashley were prompted
by their leaving their work station without permission.
In sum , the Trial Examiner's conclusion that Henry,
Staggs, and Ashley were disciplined for their insistence
that Staggs and Ashley be permitted to attend Henry's
disciplinary meeting is not supported by the record
as a whole.'
Perhaps more important is the majority's rejection
of the principle enunciated by the Trial Examiner,
and in which I concur, that an employee has a
Section 7 right to have fellow employees present
at a disciplinary meeting with management .' Either
the majority is repudiating the position taken by
the Board in Texaco, Inc., 168 NLRB No. 49, or
they are taking a position that employees' Section
7 rights are dependent on the presence of a union.
I cannot agree with either view.
While not a signatory to the Texaco decision, I
concur in the views expressed therein that an individ-
ual has a right to union representation at a disciplinary
meeting if he so requests!
In Texaco, a Board panel concluded in part:
Consequently, we find in the circumstances here
that the Respondent's refusal to respect Alaxis'
request that the bargaining representatives be
permitted to represent him at the meeting inter-
fered with and restrained him in the exercise
of his rights guaranteed by Section 7 of the
Act. (168 NLRB No. 49.)
For the majority to now take the position that an
employee who is called to a disciplinary meeting and
Contrary to the Trial Examiner and my colleagues, I find that
Staggs' testimony contradicts rather than corroborates the testimony of
Ashley The factual findings of the Trial Examiner are supported only
by the isolated testimony of Ashley bolstered as it was by selected
emphasis on certain portions of the discharge memorandum In light
of the testimony of Henry, Staggs , the management representatives, and
the full context of the discharge memorandum, there is overwhelming
record support that Henry was in fact discharged for failure to follow
instructions and insubordination Henry's personnel file also contained
notice of a prior disciplinary layoff for insubordination
In effect, the majority accepts the Trial Examiner's factual findings
and rejects the principle enunciated therein , while I would reject the
factual findings while accepting the principle
This is not an absolute right, of course, but subject to reasonable
control and accommodation of the parties Like our rules on employee
solicitation and distribution of literature which represents an accommoda-
tion of employee and employer rights, an employer may not wish to
interfere unreasonably with the production processes and may therefore
wish to schedule a disciplinary meeting on other than working time
requests two employees to go with him, is not
engaged in protected concerted activity within the
meaning of Section 7, is a marked retreat from
existing case law 9
The majority's decision here is a departure from
Texaco which has the effect of curtailing an individ-
ual's Section 7 rights because of the absence of a
union, an interpretation warranted neither by the
statutory language nor existing case law.
Accordingly, I would merely dismiss these allega-
tions as factually unsupported.
' Cf the majority's broad interpretation of Sec 7 rights in G &
W Electric Co., 154 NLRB 1136, where an employee circulated a petition
concerning a credit union during his lunch hour and such conduct was
found to be concerted protected activity within the meaning of Sec
7, and my dissent therein See also N.L.R B v J. I Case, 198 F 2d
919, 922 (C A 8), citing Carter Carburetor Corp v NLR.B., 140 F 2d
714, 717-718 (C A 8), that "This 'mutual aid' and 'concerted activities'
include we think, the right to join other workers in quitting work over
protest over the treatment of a co-employee or supporting him in any
other grievance connected with his work or his employer's conduct"
See also Modern Motors, Inc v N.L.R B, 198 F 2d 925 (C A 8), employees
leaving work premises to seek legal advice, NLRB v Washington
Aluminum Co., 370 U S 9
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S BUSH , Trial Examiner- This case presents
two factually related issues. The first is whether Emerson
Electric Co. by its U S. Electrical Motors Division, Respond-
ent herein, discharged employee Dale H. Henry in violation
of Section 8(a)(1) of the National Labor Relations Act
because he engaged in protected concerted activity in the
exercise of rights guaranteed by Section 7 of the Act or
whether he was discharged for insubordination as contended
by the Company. The second issue is whether the reprimands
issued by the Company to Henry's coworkers, Tommy
Ashley and Eddie G. Staggs, for their insistence on accompa-
nying Henry to the interview leading to his discharge
are in violation of Section 8(a)(1) because they engaged
in protected concerted activities in the exercise of rights
guaranteed by Section 7 of the Act or whether they were
reprimanded solely for leaving their work stations without
permission as contended by Respondent
The complaint herein was issued on August 11, 1969,
pursuant to a charge filed on July 8, 1969, and served
on Respondent on July 10, 1969, and pursuant to a further
charge filed on August 6, and served on Respondent on
August 7, 1969.
The case was heard at Mena , Arkansas, on September
23 and 24, 1969. Briefs filed by General Counsel and
Respondent were received on November 10, 1969. These
have been carefully reviewed and considered.
' Respondent's motion, filed simultaneously with its brief, to correct
certain typographical errors in the transcript of the testimony, is hereby
granted as set forth in Appendix A hereto [Omitted from publication i
EMERSON ELECTRIC CO
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation with an office and place
of business located at Mena, Arkansas . Its Mena plant
is engaged in the manufacture of electrically powered motors
which are ultimately utilized for various industrial purposes
and by irrigation districts for use as water pumps.
During the past 12 months, Respondent , in the course
and conduct of its business operations , purchased and
received at its Mena plant goods and materials valued
in excess of $50 ,000 directly from points outside of the
State of Arkansas . During the same period , Respondent
sold and shipped from its Mena plant goods and materials
valued in excess of $50,000 directly to points outside of
the State of Arkansas . Under these facts, Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the National Labor Relations
Act.
II THE LABOR ORGANIZATION
The International Association of Machinists and
Aerospace Workers, AFL-CIO, hereinafter called the
Union, is a labor organization within the meaning of Section
2(5) of the Act.
IIi. BACKGROUND AND ALLEGED UNFAIR
LABOR PRACTICES
Emerson Electrical Co has some 30 plants throughout
the United States The Company 's Mena plant is the only
plant involved in this proceeding . The Mena plant was
opened as a new plant some 4 years ago and employs
approximately 425 persons in the production of electrical
motors in a three shift operation.
There have been at least two unsuccessful attempts by
the United Auto Workers to organize the Mena plant
in 1967 and 1968. The Machinists Union here involved
commenced an attempt to organize the Mena plant in
April 1969, but has not to the date of trial herein in
late September 1969 filed a petition with the Board for
a representational election.
The dischargee herein, Dale H Henry, age 28,
commenced employment at the Mena plant some 31/2 years
prior to his discharge on June 24, 1969 He participated in
the 1967 campaign of the United Auto Workers to organize
the plant by signing a union authorization card and trying
to get other employees to do the same He likewise
participated in the United Auto Workers second campaign
of 1968 by signing another union card and passing out union
leaflets. He similarly participated in the 1969 campaign of
the Machinist Union to organize the plant by signing a
union card in April of that year. In addition he attended
many of the weekly meetings of the Machinist Union,
passed out union leaflets to employees at the plant, and
obtained signed union cards from two or three employees.
349
For much of his period of employment at the Mena
plant , Henry was employed as an inspector . In that capacity,
it was his function to test finished electric motors to make
certain they meet the standards of the Company prior
to their release for shipment . His work was performed
inside an 8 by 8 foot test booth which straddles the assembly
line. Henry 's inspection was largely an aural inspection in
which after starting up the electric motor under inspection
he listened for defects in its operation He tested
approximately 80 motors a day, one at a time. The booth in
which he worked is designed to keep out extraneous noises
which would interfere with effective listening for defects in
the operating motor The booth has two doors which
management requires to be kept shut at all times while
inspection is going on inside the booth so that the inspector
in the booth is insulated as much as possible from
distracting outside noises from the assembly line while he is
listening for defects Each of the two doors has
conspicuously printed signs thereon in red , reading, "Keep
doors closed while testing motors. NO EXCEPTIONS."
Henry was at all times aware of the company rule requir-
ing that the doors of the inspection booth be closed while
he is engaged in inspecting motors within.
On June 21, 1969 , a Saturday, Henry left one of the
two doors of the inspection booth open for a period of
about 2 hours while he was testing motors within. He
was working a 4-hour shift that morning from 5 a.m.
to 9 a.m . The open door was observed by Marvin Milam,
foreman of the assembly department , who reported the
matter to Henry's supervisor , Jim Morgan, quality control
manager Morgan, who had independently observed the
open door of the test booth , spoke to Henry about it
at the end of the 4-hour shift Henry's excuse was that
he had forgotten to shut the door . Morgan reminded Henry
again of the necessity for having the doors shut "so that
you can better hear the motors and detect any defective
noises" and told him that in view of the fact the Company
had installed fans in the booth to keep him comfortable
and had painted warning signs on the doors of the booth
that the doors had to be shut, he couldn ' t understand
Henry's failure to obey the order He told Henry he would
have to consider disciplinary action and would take the
matter up with him on Monday . Morgan reported the
incident to Plant Manager Douglas Blair that same Saturday
and informed him that he would seek disciplinary action
through the personnel department the following Monday.
Next Monday morning, June 23, Morgan reported the
open-test-booth -door incident to Personnel Manager Harlow
Phelps. He requested ' Phelps to call Henry in for a "hearing"
on the matter and recommended the imposition of a 2-
day disciplinary layoff for the violation " in view . . .
past history of the employee ." Phelps at first disagreed
with Morgan 's proposal for a disciplinary layoff on the
ground that it would be too severe in view of the fact
that Henry had had only one effective prior warning in
the preceding 12 months. After further discussion Phelps
was tentatively persuaded by Morgan that the 2-day layoff
would be justified because Henry had been reprimanded
only a few days prior thereto for unsatisfactory incentive
performance (Resp. Exh. 5) although that reprimand was
not an effective or a formal warning notice.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morgan also contacted Plant Superintendent Curtis Pow-
ell for his consent for the meeting with Henry, as Powell
is the only supervisor outside of Plant Manager Blair with
authority to impose a disciplinary layoff penalty on an
employee. Blair has the sole authority for disciplinary dis-
charges.
By agreement, a meeting was set up at Powell's office
for 3 p.m. that Monday (July 23) for the interview with
Henry on his violation of the company rule under discussion.
At or around 3 p.m. that same day the aforementioned
Marvin Milam, foreman of the assembly department, upon
instructions from Powell, stopped at Henry's work station
and told him he was wanted at Powell's office for a meeting.
Henry had been expecting the call because of the open-
door incident.
In anticipation of such a meeting with management,
Henry had earlier that day asked two fellow workers,
Eddie G. Staggs and Tommy Ashley, to accompany him
to any such meeting he might be summoned as "witness[es]
for my own rights." Ashley, also an inspector, and Staggs,
a toolroom employee, readily agreed as they sincerely
believed that Henry had been harassed by management
for some period of time because of his union interests.
In the early afternoon of the same day that Henry
was summoned to Powell's office, it came to the attention
of management that Henry had brought a camera into
the plant that morning and that he had attempted to
take pictures of the plant contrary to an unpublished but
generally well-known company rule against picture taking
of the plant in the interest of guarding trade secrets from
competitors. Henry admitted attempts to take pictures of
his test booth that morning before the start of the day's
work but did not explain why he wanted the photographs.
His efforts to take pictures did not succeed because of
his failure to turn the film reel for exposure.
Upon receiving work from Milam that Plant Supervisor
Powell wanted to see, him at his office, Henry insisted
upon first speaking to Powell over the interoffice telephone.
The record' shows that when Powell answered the telephone
Henry asked "Who do you have in your office?" The
following conversation ensued-
I [Powell] asked "Who is this?"
He said, "Dale."
I said "Dale who?"
He said "Dale Henry. How many people do you have
in your office?"
I said, "that is not of your concern."
After this brief exchange, Powell asked Henry to put
Milam on the telephone. Powell directed Milani to bring
Henry to his office immediately. As Henry had indicated
to him that he would bring coworkers as witnesses to
the conference, Milani told Powell that he thought Henry
was "going to bring company."
As Henry and Milani were walking to Powell's office,
Henry motioned to Staggs and Ashley to join him and
they fell in line and walked together to Powell's office.
' This finding is based on the composite testimony of Henry, Powell,
and Milam.
Staggs punched out his workcard but not his timecard.'
It is undisputed that Staggs and Ashley left their work
stations without the knowledge and permission of their
respective foremen, contrary to an unpublished by well-
established and well-known company rule prohibiting such
conduct of which they had knowledge. The evidence, howev-
er, shows that Staggs tried to get such permission from
his foreman but was unsuccessful because he couldn't find
him. Ashley, on the other hand, made no effort to contact
his foreman for permission to leave his work station although
he was well aware that his absence from his work station
would adversely affect the incentive group pay of all the
employees in the group in which he worked.
When they reached Powell's office, they found Personnel
Manager Phelps and Quality Control Manager Morgan
there, Powell having stepped out for a moment. Seeing
Staggs and Ashley at the door, Phelps asked them "What
are you doing here?" Staggs replied, "We are here to
see that this boy [Henry] does not get a screwing." Ashley
answered along the same line, adding that they were there
"to see that he [Henry] gets a fair deal." Attracted by
the loud voices from his nearby office, Plant Manager
Blair walked up to Powell's office and seeing Staggs and
Ashley there, asked what they were doing there. He then
turned to Staggs and asked, "Did you leave your work
station without your foreman's permission?" Replying at
first that he was there to see "that this boy doesn't get
a screwing," he acknowledged when pressed for an answer
that he was away from his work station without permission
of his foreman. Blair got the same admission from Ashley.
Staggs and Ashley nevertheless insisting upon being present
at the scheduled meeting of the company representatives
with Henry. Blair denied their requests and ordered the
two men to return to their work stations . He further
directed that the interview of Henry take place in his
office instead of Powell's. As Staggs and Ashley did not
comply with Blair's order that they return to work, Phelps
asked them to sit in the lobby while Henry was being
interviewed.
At Henry's interview in Blair's office, Henry, when invited
to sit down, told management representatives Blair, Powell,
Phelps, and Morgan, "I want those fellows [Staggs and
Ashley] in here." Blair replied that it was not management
policy to review an employee's problems in front of other
employees. At or about this time, Staggs stuck his head
into the doorway and said to Henry, "Dale, you don't
have to take this." Blair replied angrily (as related by
Henry and Staggs) that if Henry didn't want to follow
company rules he could "just quit" and repeated this several
times. Henry, saying he was not quitting, again insisted
that "I want those fellows in here." After Blair again
told Henry that witnesses would not be permitted, Henry
replied, "Well, O.K., Babe, let's get on with it You are
are going to fire me anyway." Phelps again induced Staggs
' Staggs defined a "work card" as the card an employee clocks in
on every morning and clocks out on after the completion of each job.
Staggs testified that he didn't think taking time off from productive
work "was serious enough to warrant clocking out the tmiecard " Ollic.ial
notice is taken of the fact that the hourly pay of employees is based
on time spent at work
EMERSON ELECTRIC CO 351
and Ashley to wait out in the lobby while Henry was
being interviewed.'
Morgan opened the interview with Henry by telling him
that the real reason he was called in was to discuss with
him his testing motors on the preceding Saturday with
one of the doors of the testing booth open. Henry's reply
was that he knew the procedure "but everybody does it."
When admonished that the company rule about keeping
the doors closed had to be observed, Henry did not express
any concern for compliance with the rule and offered
no promise that he would comply with it in the future.
Powell questioned Henry about the photographs he had
been seen taking at the plant that morning and expressed
concern that such photographs might find their way into
the hands of competitors. Henry admitted bringing a camera
into the plant and that he had tried to take pictures
with it, but denied that any pictures had been taken,
because of failure to turn the film reel. Blair asked Henry
if he knew that he was not permitted to bring personal
property into the plant Henry denied knowledge of such
a rule but the evidence shows that he knew that he had
to have a pass to present to the plant guard to remove
personal property from the plant His attitude was that
he could find ways and means to get the camera out
of the plant without a pass.
When the subject of inspecting motors with the door
of the testing booth open was pursued by Blair, Henry
again replied that everybody did it and said, "Well, what
the hell does it matter. You are going to fire me anyway."
During the heated exchange between the two men, Blair
told Henry that he was being insubordinate. Henry then
replied, "Well, you are insubordinate to me." Blair there-
upon terminated the meeting Henry was told to wait
in the lobby with Staggs and Ashley for further instructions.
After a few minutes Phelps told Ashley and Staggs to
report to work the following morning and Staggs to report
to the executive offices the next morning'
The next morning at a few minutes after 7 o'clock
Henry was called into Blair 's office where Blair in the
presence of Phelps and Morgan told him that he was
being discharged for leaving the test booth door open
while testing motors and for insubordination. The discharge
memorandum in Henry's personnel file reads:
Doug Blair discharged Dale Henry today, 6/24/69
for failure to follow instructions and being disrespectful
to plant manager. Dale tested motors Sat. 6/21/69
with the test booth opened which he was specifically
told not to do. His insubordination started by a tele-
phone call to Curtis Powell asking `how many people
' The findings in the above paragraph are based upon the composite
testimony of Henry, Blair , and Staggs Henry's denials that he addressed
Plant Manager Blair as "Babe " or that he told Blair "You are going
to fire me any way" are not credited
' The findings of the above paragraph and the one preceding it are
based on the composite credited testimony of Blair, Powell , Morgan,
and Phelps Henry's testimony corroborates the findings above on the
interrogations with respect to the photographs he attempted to make
at the plant His denials of the facts reflected the other findings in
the two above indicated paragraphs are not credited in the face of
the virtual unanimity of testimony thereon by the four top management
personnel at the Mena plant
he had in his office' Dale requested to have two
witnesses but was denied. He became belligerent and
disrespectful to the point of having to reschedule the
meeting.
The Company keeps a personnel file on each employee
on which it enters two types of notations, one for senous
misconduct meriting formal warning notices to the employ-
ees, and the other merely notations of "informal bit[s]
of advice" from superiors.b A formal warning notice may
be senous enough to draw a disciplinary layoff or suspension
of several days. An absolute company rule requires the
discharge of any employee who has incurred four formal
warning notices in any 12 month period.' An employee's
slate, however, is wiped clean of all warning notices at
the end of such 12 month periods from the date of the
first warning if the employee has incurred fewer than the
four which requires discharge
Henry's personnel file as presented in evidence by
Respondent shows 12 notations for the period of August
14, 1967, to the date of his discharge on June 24, 1969,
but only three were for conduct which drew formal warning
notices. The only notation for 1967 was a formal warning
notice given to him August 14 for refusal to take orders
from an employee training him He was not penalized
by a layoff for this In 1968, there are eight notations
on Henry's personnel file which include the three for which
he received warning notices . These were as follows:
1 June 6, 1968 for inadequate work effort for which
no disciplinary layoff was imposed.
2. June 17, 1968, for failure to follow instructions
by leaving work station to talk with another employee.
Henry was given a three day disciplinary layoff for
this offense.
3. November 11, 1968, for failure to wear safety
shoes after repeated warnings He was given a four
and a half day suspension for this
For 1969, Henry's personnel file shows three notations
prior to his discharge of June 24, but none drew formal
warning notices. The three notations were for loafing, unex-
cused absence, and unsatisfactory incentive performance
An overall review of Henry's personnel record shows
that in the 12-month period between August 14, 1967,
and August 14, 1968, Henry received three formal warning
notices which was one short of the four within that 12-
month period which would have required his discharge
Notwithstanding these warning notices and other nota-
tions in his personnel file, Henry received periodic pay
raises and at the time of his discharge had attained the
top of his labor grade of $2.10 per hour
Ashley and Staggs were called into Blair 's office separately
later that same morning for disciplinary action arising
out of the preceding day's incidents as above related It
appears that Ashley was called in first. When he entered
Blair 's office, Ashley found Phelps and Morgan there in
addition to Blair Ashley's credited testimony shows that
6 This system of keeping personnel records as applied to Henry is
described in Respondent's brief as follows "Included in his [Henry's]
resume are both disciplinary warnings as well as instances where Henry
merely received an informal bit of advice from his superiors "
' This rule is unpublished but well known to the employees
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blair started the meeting with Ashley by telling him that
it was the Company's policy to have private interviews
with employees who had problems "so that the other people
in the plant didn't have any business knowing about it."
Ashley's credited testimony further shows that Blair told
him that originally management personnel had planned
only to issue a warning to Henry for his failure to keep
the test booth door shut, but due to the fact that Henry
had brought Ashley and Staggs along to sit in with him
at the meeting to which he had been summoned by Powell,
management "had decided to take disciplinary action and
terminate him."
The credited testimony of Staggs also shows that at
his own separate conference that morning with Blair and
his managerial associates , Blair likewise told him [Staggs]
that Henry's insistence on having Staggs and Ashley with
him at his conference with Powell, had caused a change
in the Company's original intent of merely issuing a warning
notice to Henry for not keeping the booth door shut,
to a decision to fire him.'
Blair in the balance of his separate conferences with
Ashley and Staggs lectured each man on the necessity
of complying with the Company rule of not leaving their
work station without permission of their foreman and told
them that warning notices would be placed in their personnel
folders. As heretofore noted, four disciplinary warning
notices leads to an immediate discharge. A memorandum
of the warning notices given to each of the men was
placed in their personnel folders by Personnel Manager
Phelps who was present at each of the conferences, but
copies were not furnished to Ashley or Staggs. The memo-
randum of the warning notice in Ashley's personnel folder
reads as follows:
On Monday, June 23, 1969, Eddie Staggs and Tommy
Ashley accompanied Dale Henry to Curtis Powell's
office where Dale was to receive disciplinary action.
Eddie and Tommy were asked if they had left their
work station for which they answered "Yes." They
were told to report to work the next morning at
which time they would be dealt with. Today, June
24, Doug Blair formally warned Tommy for leaving
his work station without permission. He was told that
future repetition would result in further disciplinary
action.
An identical memorandum of a warning notice was placed
in the Company's personnel folder for Staggs.
Blair denied that he told Ashley at the disciplinary
interview he had with him on June 24, 1969, that he
had decided to discharge Henry because Henry had brought
Staggs and Ashley along with him to the disciplinary meeting
to which Henry had been summoned in Powell's office,
but the record does not appear to contain a similar denial
by Blair that he made a similar remark to Staggs at the
separate disciplinary conference he had with Staggs on
Staggs' credited testimony from which the finding in the above
paragraph is based is as follows He [Blair] said this Henry matter was
intended to be a warning untilhe brought Tonimi [Ashler] and I rip their all
of this ensued and he didn't exactfi say fishy he nas terminated but said 'A e
terminated him " (Emphasis supplied )
the same date. However, Phelps testified that Blair did
not make such a remark to either Ashley or Staggs. Morgan
similarly denied that Blair made the indicated remark to
Ashley.
These denials are not credited. The Examiner is convinced
from the open sincerity and straightforwardness and obvious
lack of guile Ashley and Staggs displayed as they testified
in this proceeding that they truthfully reported that Blair
had told them that Henry's insistence in bringing them
to his "hearing" in Powell's office triggered Henry's dis-
charge The record shows that Blair was truly angered
by Henry's seeming impertinence in seeking to bring employ-
ee-witnesses to a meeting with management to which he
had been summoned for disciplinary purposes. It further
appears from the record by inference that Blair and his
associate supervisors were also deeply concerned over the
havoc the precedent, if allowed, of letting Henry have
employee-witnesses at his "hearing" before management
for dereliction of duty, would have on employee discipline
at the plant. These are additional factors in the Examiner's
discrediting of Blair's denial of statements to Ashley that
Henry was fired because he tried to bring employee-witnesses
to his disciplinary meeting with management.
Discussion and Conclusions
The Company's defense to the charge that it terminated
Henry for engaging in protected concerted activity under
Section 7 of the Act in violation of Section 8(a)(1) of
the Act is twofold.
The first part of Respondent's defenses is that it called
Henry in for a meeting with management, not for purposes
of discipline, but only for the purpose of further investigating
a complaint from Henry's chief superior that he had violated
the company rule against keeping the test booth door
open while inspecting motors. In support of this defense,
Respondent relies on the Board ruling in Jacobe-Pearson
Ford, Inc., 172 NLRB No. 84,9 that an employee is not
entitled to union representation at a meeting with manage-
ment to which he had been summoned where the purpose
of the meeting was essentially for the purpose of "gathering
information," and that a meeting for such investigatory
purposes without requested union participation was not
in violation of the Act. Unlike the present case, the Jacobe-
Pearson case did not involve a "protected concerted activi-
ties" issue. However, it would appear the guarantee of
such protected concerted activity under Section 7 of the
Act would also be subject to the principle ennunciated
in the Jacobe-Pearson case.
For evidence in support of the defense that the meeting
to which Henry was summoned was investigatory in charac-
ter only, Respondent relies on the testimony of Plant Super-
intendent Powell. In this connection, Powell testified, "Jim
Morgan [Quality Control Manager] told me that he [Henry]
had been observed testing with the door open and that
' The present Trial Examiner was also the Trial Examiner in the
Jacobe-Pearson Pearson Ford case, suprq whose decision therein was
reversed by the Board.
EMERSON ELECTRIC CO.
this wasn 't the first occasion in which he had some prob-
lems-that is, some-I believe it was warnings, probably,
was the way it was stated and that probably it would
need to come before me in a conference to further investigate
it. "The supplied italicized portion of this testimony appears
to be the testimony on which Respondent is relying to
show that the purpose of the meeting to which Henry
was summoned was investigatory in nature . For reasons
stated below the Examiner does not credit this testimony
or any similar testimony.
The second part of Respondent's defense is that Henry's
discharge had not been determined on in advance of the
meeting, but was triggered and caused by Henry's insubordi-
nate behavior at the meeting to which he was summoned
and that Henry's insistence on having coworkers as witnesses
in his behalf at the meeting was not a factor in his discharge.
In support of this contention, Respondent relies principally
on the testimony of General Manager Blair The Examiner
for reasons hereinafter stated does not credit Blair 's testimo-
ny or any similar testimony
Any realistic appraisal of the record requires the conclu-
sion that Henry was called into the meeting with Respond-
ent's supervisors for the purpose of reprimand and discipline
for his failure to keep the booth door shut while testing
motors.
This is evident from Respondent's own records. Memoran-
dums in the personnel files of Ashley and Staggs prepared
by Personnel Manager Phelps shows that Ashley and Staggs
on the date of the meeting in question "accompanied Dale
Henry to Curtis Powell's office where Dale was to receive
disciplinary action . " (G.C. Exhs. 2 and 3.) (Emphasis sup-
plied.)
Moreover, the record shows that all of the facts concerning
the incident were fully and completely known to manage-
ment prior to the time Henry was called in for the meeting.
Henry was well aware of the rule that the door had to
be shut while he was working inside the booth There
were instructions in bold type to this effect on both doors
of the test booth. Quality Control Manager Morgan had
spoken to Henry a number of times about the necessity
of keeping the booth doors shut during testing operations
within the booth. Both Morgan and Assembly Department
Foreman Milam had personally observed Henry working
in the booth with one of its doors open for approximately
2 hours of his 4-hour shift on the Saturday here in question.
When confronted by Morgan with this violation of the
company rule, Henry freely admitted that he had kept
the door open while working that morning. He offered
no excuse except that he had forgotten to close the door
Thus all the facts were known to management personnel
prior to Henry's summons to a meeting with them in
the executive offices of the plant. There was thus in fact
nothing to investigate.
The record accordingly leaves no doubt that Henry was
called in for purposes of punishment for his infraction
of the rule to keep the doors shut. The only thing open
at the meeting was the penalty to be imposed. Morgan
had told Personnel Manager Phelps prior to the meeting
that he would recommend a 2-day suspension. Phelps had
tenatively agreed to this. Powell had to make the final
353
decision on discipline by way of a layoff. Under the stated
circumstances, it is difficult to believe that the penalty
to be imposed would have been anything less than the
placement of a formal warning notice in Henry's personnel
folder. Under company rules, four such warning notices
in any 12-month period results in discharge without excep-
tion.
Thus with the virtual certainty that the meeting to which
Henry was called would result in the imposition of some
sort of disciplinary penalty for Henry, it follows that Henry
had the right to demand, as he did, to be accompanied
by coworkers, Staggs and Ashley, at the meeting under
the provisions of Section 7 of the Act which guarantees
employees the right "to engage in . . concerted activities
. . . for the purpose of mutual aid or protection . .11
With the determination made that Henry was called
to the meeting with management for purposes of discipline,
there next arises the question of whether Henry was dis-
charged because of his insistence on having coworkers
Ashley and Staggs with him in the meeting for the lawful
purpose of protected concerted activities or whether he
was fired because of insubordination as contended by
Respondent.'°
There can be but little doubt that Henry's conduct dust
prior to the meeting to which he was called was crude
and brash and that his conduct at the meeting was disrespect-
ful and insubordinate His demand over the interoffice
telephone to Plant Superintendent Powell for information
on how many of the Company's supervisors were going
to be at the meeting to which he was summoned was
obviously crude and tactless. At the meeting itself after
General Manager Blair informed Henry that Ashley and
Staggs would not be permitted to be at his side during
the course of the meeting, Henry replied, "Well, 0 K.
Babe, let's get on with it." This was obviously disrespectful.
When during the course of the interview, Blair told Henry
that he was being insubordinate, Henry replied that Blair
was the one who was insubordinate. This was similarly
most disrespectful and insubordinate. While there is little
excuse for such conduct despite the tension and fear Henry
was under that he was about to be fired, the blame for
Henry's conduct must be shared by Respondent because
it provoked the conduct by its unlawful, outright, and
emphatic refusal to allow Henry and his coworkers, Ashley
and Staggs, the right to engage in protected concerted
activities
But the problem here is not whether Henry was disrespect-
ful and insubordinate but whether he was discharged because
of his insistence on having coworkers Ashley and Staggs
at his side during the conference at which he correctly
felt that he would be penalized for not keeping one of
the doors of the test booth shut. The record shows that
the latter, not the former mentioned conduct, was the
real "insubordination" for which Henry was in fact fired
'° Although there is contemporaneous documentary evidence (Resp
Exh 10) that Henry was fired for both insubordination and failure
to follow instructions about keeping the test booth door shut, the thrust
of General Manager Blair's testimony and Respondent's brief is that
Henry was fired solely because of insubordination
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the right to engage in concerted activities for the
purpose of mutual aid or protection is a right guaranteed
by Section 7 of the Act, it is obvious that the insistence
upon such a right by an employee cannot be equated
to insubordination. The first indication that Respondent
was equating Henry's demand for the presence of Ashley
and Staggs at his disciplinary hearing before management
with insubordination is contained in a contemporaneous
memorandum in Respondent's personnel file on Henry under
the initials of Personnel Manager Phelps dated the same
day Henry was terminated The memorandum reads:
His [Henry's] insubordination started by a telephone
call to [Plant Superintendent] Curtis Powell asking
"how many [management ] people he had in his office."
Dale requested to have two witnesses but was denied
.. [Emphasis supplied.] [Resp Exh 10.]
Whatever obscurity there is in this indication from
Respondent's own personnel file on Henry that Henry
was discharged for his "insubordination" in demanding
Ashley and Staggs as witnesses at the meeting to which
he had been summoned by management is cleared up
by the above-noted testimony of Ashley and Staggs. Their
credited testimony unequivocably shows that Plant Manager
Blair told them in their individual conferences with them
after Henry had been discharged that management had
not originally planned to fire Henry, but that Henry's
insistence on having them [Ashley and Staggs] with him
as witnesses at his interview had caused Henry's discharge
It is thus clear that the "insubordination " for which Henry
was discharged was his demand for Ashley and Staggs
as witnesses at his interview.
The fact that the original planned recommendation of
Henry's top supervisor for a mere suspension of Henry
for failure to keep the booth door shut was changed to
an outright discharge by Plant Manager Blair is in itself
a further indication that the discharge was provoked by
Henry's insistence on having Ashley and Staggs as his
witnesses at his scheduled disciplinary meeting with manage-
ment.
Under all the facts and circumstances of this case, the
Trial Examiner finds and concludes that Respondent dis-
charged Henry because he engaged in protected concerted
activities
The remaining issue in the case is whether Respondent
reprimanded Ashley and Staggs for engaging in protected
concerted activities arising out of their insistence on accom-
panying Henry at his request to the meeting with manage-
ment to which he had been summoned.
Respondent's defense to this issue is essentially the same
as its defense to Henry 's discharge This is the defense
that the meeting to which Henry was summoned was
for the purpose of further investigating his violation of
the company rule against leaving the door of the test
booth open while working inside. In this connection
Respondent also relies on the aforementioned holding of
Jacobe-Pearson Ford, Inc., supra, wherein the Board held
that management has the right to interview an employee
without the presence of union representation where the
purpose of the interview is essentially investigatory in nature.
The previous findings on this is here applicable, to wit:
the meeting to which Henry was summoned was for the
purpose of meting out to him some sort of penalty for
his failure to follow instructions to keep the doors of
the test booth shut and not for investigatory purposes
as claimed by Respondent With this finding as to the
basic purpose for which Henry was summoned to a meeting
with management, the undisputed facts requires the conclu-
sion , here made, that Ashley and Staggs were engaged
in protected concerted activities for the purposes of mutual
aid or protection when they accompanied Henry at his
request to the meeting in question with management.
Respondent's secondary defense is that Ashley and Staggs
were reprimanded , not for their insistence upon being with
Henry at the meeting, but for leaving their work stations
without the permission of their foremen contrary to the
Company's unpublished but well-known rule that employees
must not leave their work stations without such permission
This would be a valid defense if the meeting to which
Henry was called had been for investigatory purposes,
but it is not a proper defense under the Trial Examiner's
finding that the meeting had been called for the purposes
of imposing some sort of disciplinary action on Henry.
Inasmuch as Ashley and Staggs were engaged in protected
concerted activity in seeking to accompany Henry at his
request at the meeting , the Company 's rules that employees
must secure the permission of their foremen to leave their
work stations must give way to the guarantees of Section
7 of the Act In a similar factual situation , the Supreme
Court held:
Nor can we accept the company's contention that
because it admittedly had an established plant rule
which forbade employees to leave their work without
permission of the foreman, there was justifiable "cause"
for discharging these employees, wholly separate and
apart from any concerted activities in which they
engaged in protest against the poorly heated plant.
Section 10(c) of the Act does authorize an employer
to discharge employees for "cause " and our cases
have long recognized this right on the part of an
employer But this, of course, cannot mean that an
employer is at liberty to punish a man by discharging
him for engaging in concerted activities which 7 of
the Act protects. And the plant rule in question here
purports to permit the company to do just that for
it would prohibit even the most plainly protected kinds
of concerted work stoppages until and unless the per-
mission of the Company's foreman was obtained
NL R.B. v Washington Aluminum Co., 370 U.S. 9. See
also Cone Mills Corporation, 169 NLRB No. 59.
The Trial Examiner finds and concludes that Respondent
unlawfully reprimanded Ashley and Staggs because they
engaged in protected concerted activities
Although the Company claims and the evidence shows
that Ashley and Staggs left their work stations without
the permission or knowledge of their foreman, the record
in a wider and more important sense shows that Ashley
and Staggs sought the permission of the Company to be
with Henry at his meeting with management when they
presented themselves to the top echelon supervisors of
the plant and demanded the right to be with Henry at
the meeting. Permission to leave their posts for that purpose
EMERSON ELECTRIC CO
was denied to them and they were ordered back to their
work stations Thus the record shows in still another way
that the Company denied the two employees the right
to leave their work stations to engage in protected concerted
activities guaranteed by the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with the operation of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in
certain unfair labor practices in violation of Section 8(a)(1)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
It having been found that Respondent discharged Dale
H. Henry in violation of Section 8(a)(1) of the Act, it
will be recommended that Respondent offer said employee
immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of
his unlawful discharge by payment to him of a sum of
money equal to that which he would have earned as wages
from the date of his discharge to the date of offer of
reinstatement less interim earnings, and in a manner consist-
ent with Board policy as set out in F. W. Woolworth
355
Company, 90 NLRB 289. Interest on backpay shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
It having been found that Respondent violated Section
8(a)(1) of the Act by reprimanding Eddie Staggs and Tommy
Ashley, it will be recommended that Respondent revoke
and remove from the personnel records of these employees
the reprimands given them on June 24, 1969.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, the Trial Examiner
makes the following
CONCLUSIONS OF LAW
1. Respondent Emerson Electric Co., U.S. Electrical
Motors Division, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2. International Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Dale H. Henry on June 24, 1969,
because he engaged in a protected concerted activity
Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed to
them by Section 7 of the Act and thereby had violated
Section 8(a)(1) of the Act.
4 By reprimanding Tommy Ashley and Eddie G. Staggs
on June 24, 1969, because they engaged in a protected
concerted activity Respondent has interfered with,
restrained, and coerced its employees in the exercise of
the rights guaranteed to them by Section 7 of the Act
and thereby has violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]