Fire Alert Co.

National Labor Relations Board - Board Decisions

May 28, 1970

182 N.L.R.B. 910 (N.L.R.B. 1970)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fire Alert Co. and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America , Local Union No. 452. Cases 27-CA-2657
and 27-CA-2731
May 28, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On February 2, 1970, Trial Examiner Alvin Lieberman
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged 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. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of
these allegations. Thereafter, the Respondent filed excep-
tions to the 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 con-
nection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner 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 this
case, and except as modified herein,' hereby adopts
the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent Fire Alert
Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with any form of reprisal,
including the removal of the plant from Denver, Colora-
do, and the imposition of stricter rules or practices
than are presently in effect concerning tardiness, coffee-
breaks, or any other condition of employment; or from
effectuating any such threat, in order to induce employ-
ees to refrain from becoming members of, or giving
assitance or support to, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 452, or any other labor
organization.
(b) Threatening employees that the Denver, Colorado,
plant will be closed or that its president would quit
his job in order to induce employees to refrain from
becoming members of,, or giving assistance or support
to, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 452, or any other labor organization.
(c) Dominating or interfering with the administration
of, or contributing financial or other assistance or support
to, the Committee elected by its employees on or about
January 29, 1969, or any other labor organization.
(d) Discharging, or otherwise discriminating against,
any employee for giving testimony under the National
Labor Relations Act, as amended, or for filing charges
under said Act with the National Labor Relations Board.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right
to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives
of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section
7 of the National Labor Relations Act, as amended,
or to refrain from any or all such activities except
to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment in conformity with Section
8(a)(3) of said Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Withdraw and withhold recognition from, and com-
pletely disestablish, the Committee elected by its employ-
ees on or about January 29, 1969.
(b) Delete from the document promulgated by it, enti-
tled "FIRE ALERT COMPANY POLICIES AND CON-
DITIONS OR EMPLOYMENT HOURLY EMPLOY-
EES," the section headed by the words "EMPLOYEE
REPRESENTATION."
(c) Offer to Betty J. Armstrong immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and make her whole, in the manner set forth in the
section of the Trial Examiner's Decision entitled "The
Remedy" for any loss of earnings she may have suffered
by reason of the discrimination practiced against her.
(d) Notify Betty J. Armstrong if presently serving
in the Armed Forces of the United States of her 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.
(e) 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 Order.
(f) Post at its premises copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
' In the event that this Order is enforced by a Judgment of the
We have revised the Trial Examiner ' s Recommended Order and United States Court of Appeals, the words in the Notice reading "Posted
Notice to Employees to conform them to court and Board precedent by Order of the National Labor Relations Board" shall read "Posted
182 NLRB No. 133
FIRE ALERT CO 911
provided by the Regional Director for Region 27, after
being duly signed by Respondent ' s authorized represent-
ative , shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced,
or covered by any other material
(g) Notify the Regional Director for Region 27, in
writing, within 10 days from the receipt of this Order,
what steps have been taken to comply herewith
IT IS FURTHER ORDERED that paragraphs V, V(a),
VII, IX, and X of the complaint in Case 27-CA-2731
be, and they hereby are, dismissed
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence , it has been found that we
violated the law and we have been ordered to post
this notice and we intend to carry out the order of
the Board and abide by the following
WE WILL NOT threaten to do, or do, any of
the following things to prevent you from joining,
signing a card for, attending meetings of, supporting
or helping in any way International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No 452, or any
other union, or because you have already done
so
Make stricter rules than we now have as to
coffeebreaks
Make stricter rules than we now have as to
latenesses
Move our plant from Denver to some other
city
WE WILL NOT threaten to close our plant to
prevent you from joining , signing a card for , attend-
ing meetings of supporting or helping in any way
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No 452, or any other union, or because
you have already done so
Our president, Donald G Stroh, WILL NOT threat-
en to quit his job as president of Fire Alert Co
to prevent you from joining , signing a card for,
attending meetings of, supporting , or helping in
any way International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Local Union No 452, or any other union
WE WILL NOT dominate , control , dictate to mix
in the affairs of, or assist in any way your Commit-
tee, and we will not do so in connection with
any other committee or union Because it has been
found that we did these things in relation to your
Committee , we will immediately do the following
Stop recognizing the Committee as your repre-
sentative
Stop dealing with the Committee in every
respect
Discontinue and disestablish the Committee
WE WILL NOT fire, layoff, suspend, or in any
other way discriminate against any employee
because he or she appears as a witness in a trial
or hearing before a Trial Examiner or any other
officer of the National Labor Relations Board, and
we will not fire , lay off, suspend , or in any other
way discriminate against any employee because
he or she makes a complaint to, or files charges
or any other papers with , the National Labor Rela-
tions Board or assists in any investigation under-
taken by the National Labor Relations Board
Because it has been found that we discriminated
against Betty J Armstrong by firing her for being
a witness in the trial of a case brought against
us before a Trial Examiner of the National Labor
Relations Board, we will immediately offer to put
Betty J Armstrong back to work at her old job
or, if that job no longer exists, to a job just like
her old job and we will pay Betty J Armstrong
for any wages she lost because we fired her
WE WILL strike out of the document called
"FIRE ALERT COMPANY POLICIES AND
CONDITIONS OF EMPLOYMENT FOR HOUR-
LY EMPLOYEES," which we distributed to
employees , that section beginning with the headline
words "EMPLOYEE REPRESENTATION "
WE WILL notify Betty J Armstrong if presently
serving in the Armed Forces of the United States
of her 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 you in the exercise of any rights
guaranteed to you by the National Labor Relations
Act In this connection , we will respect your rights
to self-organization , to form , join, or assist any
union , to bargain collectively through any union
or representative of your choice as to wages, hours
of work, and any other term or condition of employ-
ment You also have the right , which we will also
respect , to refrain from doing so
All our employees are free to become or remain,
or not to become or remain , members of International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Helpers of America, Local Union No. 452, or
any other union.
FIRE ALERT CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
New Custom House, Room 260, 721 19th Street, Denver,
Colorado 80202, Telephone 303-297-3551.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties except the charging party
represented, was held before me in Denver, Colorado,
on June 10 and 11, and Septermber 16, 17, 18, and
19, 19691 upon the General Counsel's complaints, dated
April 10 and July 142 and respondent's separate answer
to each complaint.-3 In general, the issues litigated were
whether respondent violated Section 8(a)(1), (2), (3),
and (4) of the National Labor Relations Act, as amended
(herein called the Act). Particularly, the questions for
decision are as follows:
1. Did respondent violate Section 8(a)(1) of the Act
by threatening employees with plant closure or with
changes in existing conditions of employment?4
2. Did respondent violate Section 8(a)(2) of the Act
in connection with its relationship to a committee of
employees (herein called the Committee)? Subsidiarily,
in this regard, was the Committee, at times material
to this proceeding, a labor organization within the mean-
ing of the Act?
3. Did respondent violate Section 8(a)(l), (3), or (4)
of the Act by discharging Betty Armstrong?5
All dates subsequently mentioned without stating a year fall within
1969
' The two complaints will sometimes be referred to individually as
the first complaint and second complaint or collectively as the complaint
The separate answers to these complaints will be referred to similarly
The first complaint was issued on a charge filed on February 17
The second complaint was issued on a charge and amended charges
filed, respectively, on June 12, June 19, and July 9 All charges were
filed by International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Local Union No 452
8 During the trial amendments were made to the second set of plead-
ings . Thus, par IV of the second complaint was amended to include
in the list of persons alleged to be supervisors the name "Al Talbott-
Sales Manager," and par. 4 of the second answer was amended to
admit all the allegations of par. IV, as amended , of the second complaint.
Finally, par. 8 of the second answer was amended to deny so much
of par VIII of the second complaint as alleged the discharge of Terry
Padilla
During the trial par V(e) of the first complaint which alleged
other threats, and par V(c) and (f) of that complaint which alleged
interrogation violations of Sec. 8(a)(I) were dismissed
During the trial par V(b), (c), (d), and (e) and VIII(a) of the
Upon the entire record," upon my observation of
the witnesses and their demeanor while testifying, and
upon careful consideration of the arguments made? and
the briefs submitted by the General Counsel and respond-
ent," I make the following:
FINDINGS OF FACT"
1. JURISDICTION
Respondent, a Colorado corporation"' whose principal
place of business is located in Denver, Colorado, is
engaged in the manufacture and sale of electronic equip-
ment. Respondent annually ships products valued at
more than $50,000 to customers located outside the
State of Colorado. Accordingly, I find that respondent
is engaged in commerce within the meaning of the
Act and that the assertion of jurisdiction over this matter
by the National Labor Relations Board (herein called
the Board) is warranted. Siemons Mailing Service, 122
NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 452 (herein called the Union), is a labor organization
within the meaning of Section 2(5) of the Act."
As is more fully set forth below the Committee was
elected by employees of respondent, is composed of
such employees, and was formed to deal with respondent
concerning employees' work-related grievances. I con-
clude, therefore, that, like the Union, the Committee
is also a labor organization within the meaning of Section
2(5) of the Act. N.L.R.B. v. Cabot Carbon Company,
etc., 360 U.S. 203, 213.12
second complaint were dismissed insofar as they alleged that the dis-
charge of employees other than Armstrong violated Sec 8(a)(I)
and (4)
` Issued simultaneously is a separate order correcting obvious inadvert-
ent errors in the stenographic transcript of this proceeding
' Although all the arguments of the General Counsel and respondent
in support of their respective positions , whether appearing in their
briefs or made orally during the trial, will not be discussed in this
Decision, each has been weighed and studied
" Upon due deliberation, the General Counsel's motion to strike
respondent's brief is denied
" Respondent 's motions to dismiss the complaints made on June
II and September 19 upon which decisions were reserved are disposed
of in accordance with the findings and conclusions set forth in this
Decision.
"' Respondent is a wholly owned subsidiary of Walter Kidde and
Company, Inc , whose headquarters are in Belleville , New Jersey
" As defined in Sec. 2(5) a labor organization is "any organization
of any kind, or any agency or employee representation committee
or plan , in which employees participate and which exists for the purpose,
in whole or in part , of dealing with employers concerning grievances,
labor disputes , wages, rates of pay, hours of employment , or conditions
of work "
" Respondent contends that the Committee is not a labor organization
Its principal argument in support of this position is that the Committee
has not engaged in collective bargaining and was not established for
this purpose. An identical argument was rejected by the Supreme Court
in Cabot Carbon. In addition, respondent urges me to consider certain
other facts; namely, that the Committee has no constitution or bylaws,
does not meet regularly , and does not require the payment of dues
FIRE ALERT CO. 913
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with three matters:
statements made by Donald Stroh, respondent's presi-
dent; respondent's relationship to the Committee; and
respondent's discharge of Betty Armstrong. The General
Counsel contends that Stroh' s statements were threats
uttered to forestall the organization of respondent's
employees by the Union and, therefore, violative of
Section 8(a)(1) of the Act; that respondent dominated
and interfered with the Committee in violation of Section
8(a)(2); and that Armstrong's discharge falls within the
ambit of Section 8(a)(1), (3), and (4).13
Respondent has taken issue with the General Counsel
on all these points. Insofar as the first is concerned,
Respondent ' s position is that Stroh 's statements were
privileged and not violative of Section 8(a)(1) of the
Act. Respecting the Committee, respondent's main argu-
ment, that the Committee is not a labor organization
within the meaning of the Act, has already been rejected.
Alternatively, respondent argues that the Committee
was voluntarily organized by its employees and not
dealt with in a manner which contravened Section 8(a)(2).
Finally, respondent asserts that it discharged Armstrong
for a variety of reasons, none of which are proscribed
by the Act.
B. Preliminary Findings['
dent, holds a patent. The components for these devices
are assembled on boards by female employees, groups
of whom work at tables located in a large room. The
assembled units are commonly termed boards in respond-
ent's plant and will be so referred to in this Decision.
Upon completion of the assembly work the boards are
tested. Where a defect is found in a board it is returned
to the employee who assembled it for correction.
Assembling a board involves, among other things,
the snipping of wires. Employees are instructed to per-
form this operation so as to cause the cut ends of
the wires to fall into receptacles provided for that pur-
pose and not to permit them to fly about the room
or to accumulate on the floor. These instructions, howev-
er, are not always complied with by all assemblers.
Respondent's employees engaged in assembly work
are hourly rated. Notwithstanding the absence of an
incentive system, assemblers are expected to produce,
as a group, a daily average of 25 boards per employee.
In this regard, Betty Armstrong, whose discharge is
alleged to have been violative of the Act, was one
of respondent's best assembly workers, having turned
out well in excess of 25 boards a day.
In June respondent found itself with a large inventory
of boards and a paucity of orders from customers.
Accordingly, to avoid a layoff supervisors were directed
to be liberal in granting employees' request for time
off. In this regard, as Al Talbott, respondent's sales
manager, testified, during this period people were
"encouraged . . . to take off, if [they had] any [personal]
business to conduct."
1. Respondent 's product , manufacturing methods, and
business conditions in June
Among the products manufactured by respondent are
fire alarm devices for which Stroh, respondent's presi-
or initiation fees by respondent' s employees The absence of such
formalism , however, does not deprive a body in which employees
participate of status as a labor organization within the meaning of
the Act if other elements set forth in Sec 2(5) are present Walker
Process Equipment Inc , 163 NLRB 615, 616, 620
" In pertinent part these sections provide:
Sec 8 (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise
of the rights guaranteed in section 7,
(2) to dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support
to it. .
(3) by discrimination in regard to hire or tenure of employment
to encourage or discourage membership in any labor organiza-
tion
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act,
Sec. 7, insofar as relevant , provides as follows:
Sec. 7 Employees shall have the right to self -organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
" The purpose of these findings is to furnish a frame of reference
within which to consider the facts relating to respondent ' s alleged
unfair labor practices and the conclusions to which they may give
rise. To the extent that the contentions of'the parties relate specifically
to the findings made here they will be treated here , although they
may again be considered in other contexts
2. Respondent's employees, their relationship to each
other, and some conditions under which they worked
The evidence makes clear that there was a lack of
harmony among respondent's assemblers. There were
repeated references by witnesses including Stroh,
respondent's president, to trouble and troublemaking
in the assembly room. In this regard, respondent asserts
on brief that one of the grounds for Armstrong's dis-
charge was "her failure to discontinue the role of trouble-
maker."
Respondent's assemblers, all women, fall into two
ethnic groups. Most of them are white, about half being
of Spanish-American extraction. A few, about four,
are black.
There was much bickering and gossip within and
among these various groups. Thus, as Shirley Howell,
a former employee of respondent, testified, the employ-
ees would "run someone else down constantly." Some
would complain about being outproduced by others.
There was "hackling" and "stab[bing] . . . in the back.
. . . If your hair is blond, you bleached your hair blond;
well, you're terrible, and it goes on and on."
Employees would not only complain about being out-
produced by others, but would also do so about rejected
boards returned to them for correction. Some, as Stroh,
respondent's president, testified, would even accuse oth-
ers of "sabotaging [their] boards to make [them] look
bad."
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, assemblers would snip wires in a manner
which would cause them to hit other employees As
Stroh related in this connection, "when one of these
wires are snipped and they hit you it's about like being
his with a BB Girls have a nice little habit of
aiming these things "
There was also bickering between the Spanish-Ameri-
can employees on the one hand and the black employees
on the other, particularly about the use of a telephone
located in the assembly room Each group would accuse
the other of excessive use of this telephone In this
and in the matter of rejected boards, Stroh stated that
Armstrong, who is herself of Spanish-American extrac-
tion, was "pretty much the spokesman for all the Spanish
girls at her table "
Employees in the assembly room worked under the
immediate supervision of a leadgirl " Employees who
desire to take off for any reason are required to obtain
permission from their leadgirl Requests for time off
by leadgirls must be approved by persons higher up
in respondent's supervisory hierarchy, including Jacque-
line Cameron, respondent's office manager
While daylight saving time is in effect employees
start work at 7 a in During other times of the year
the starting time is 8 a in Although there is a formal
break at 9 30 a in , employees may, without penalty,
stop work to get coffee at any time Likewise, there
seems to be no special penalty for tardiness
The assembly, and other hourly rated, employees
are required to punch a timeclock at the beginning
and end of each workday They are also required to
punch the timeclock if they leave respondent's premises
for lunch
3 The Union' s organizing campaign
About mid-January the Union began to seek members
among respondent's employees As will be seen, the
Union's efforts in this regard had an impact on respon-
dent Insofar as the employees were concerned the
Union s campaign generated much talk, but evoked little
enthusiasm
To the extent shown by the record only one employee,
Armstrong, signed an authorization card She also spoke
to about 10 employees respecting the Union and about
having them meet with a representative of the Union
Whether the meeting which Armstrong sought to bring
about was ever held does not appear from the evidence
The Committee was established on January 29 Wheth-
er for this reason, or whatever the reason, there is
no doubt that, as put by Stroh, respondent's president,
the "Union became a dead issue by the
end of January "
" As will be more fully set forth below in April two employees
Armstrong and Rose Dubray were made leadgirls in the assembly
room Armstrong was demoted on May 28 and resumed her status
as a rank and file employee Dubray however continued to serve as
leadgirl
C Facts Concerning Respondent's Alleged Violations of
Section 8(a)(1) of the Act Unrelated to Armstrong's
Discharge
The complaint alleges that respondent violated section
8(a)(l) of the Act by warning "its employees that [it]
would change existing conditions of employment by
modifying [its] rules with regard to tardiness and by
discontinuing the past practice of providing employees
with free coffee," and by threatening to close "its
Denver, Colorado, operation if its employees gave assist-
ance or support to the Union " Testimony concerning
these allegations was given by Armstrong, Howell, a
former employee, and Stroh, respondent's president
While there appear to be conflicts between the testimony
given by Armstrong and Howell, on the one hand,
and that given by Stroh, on the other, the conflicts
seem to be more apparent than real
Armstrong and Howell related that at meetings with
employees held on about January 25 and 29 Stroh made
threatening statements respecting tardiness, coffee, and
the closing of respondent's plant Stroh did not deny
that he spoke to respondent's employees on the same
subjects His testimony, however, contains qualifying
glosses which, in some cases, were not mentioned by
Armstrong or Howell
Respondent urges me to disregard the testimony given
by Armstrong and Howell and rely only on that given
by Stroh This, I will do My doing so, however, is
not to say that I consider Armstrong and Howell to
be unworthy of belief It is merely to say that my
findings on this branch of the case will be based only
on evidence given by Stroh
The meetings in question were held while the Union's
membership campaign, rumor of which had come to
Stroh's attention, was in progress The "topic of the
meeting[s]" was to remind the employees "of the
advantages they [then] had compared to what they
would have if they were Union" and had to work
under a union contract In this regard, Stroh called
the attention of the employees to three matters, lateness-
es, coffeebreaks, and respondent's economic condition
As to the first, Stroh stated that "many girls have
been late many times with no reprisal whatsoever,"
but that "if they wanted to go right by the book that
then if they went Union, then they'd get a warning
each time, and after the third time of being late they
would be fired " Concerning coffeebreaks, Stroh told
the employees that "if we went Union," the existing
practice of having "coffee any time [at] any hour of
the day would be discontinued and they would
go on a regular coffee break [at] a certain period in
the afternoon "
Also, in the general context of the "topic of the
meeting[s]," namely, a comparison of the advantages
the employees then enjoyed with "what they would
have if they were Union," Stroh, respondent's president,
First complaint par V(a) (b) and (d)
" The quotations appearing in this and the following two paragraphs
are taken from testimony given by Stroh respondent s president
FIRE ALERT CO
discussed respondent's economic condition In this
regard, Stroh first ' reminded' the employees that
respondent had not increased its prices for 3 years
He then stated that "if we had to raise prices and
would lose our competitive standing, undoubtedly pro-
duction would go down, and if this were the case and
it became a not as profitable operation as it now is,
very probably the plant would be moved to Belleville,
New Jersey "I' Furthermore, and in this vein, Stroh
remarked that ' if the Union came in [he] personally
would quit, because financially [he did] not need the
job
D Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1) of the
Act Unrelated to Armstrong's Discharge
Respondent makes a two fold attack on the complaint's
allegation that it violated Section 8(a)(1) of the Act
in the manner here under consideration It contends,
first, that Stroh, its president, did not threaten to close
the plant, or to change working conditions upon the
advent of the Union, but was merely making predictions
as to the consequences of the organization of respond-
ent's employees by the Union Respondent's second
contention, dependent in part on its first, is that Stroh's
statements concerning changes in respondent's practices
as to coffeebreaks, latenesses, and the movement of
the plant to New Jersey, should the Union become
the collective-bargaining agent for the employees, were
privileged as free speech
I reject both arguments Stroh's statements were,
in my opinion, little more than the most thinly veiled
threats, rather than predictions,"' as respondent con-
tends, that, if the Union succeeded in its efforts to
become the employees' bargaining agent, respondent
would move its plant from Denver to Belleville, New
Jersey, or, less drastically, impose stricter working condi-
tions respecting latenesses and coffeebreaks Such
threats, it is well settled, do violence to the rights
guaranteed to employees in Section 7 of the Act, and,
consequently, contravene Section 8(a)(1)
Even had Stroh not uttered these implicit threats
but had only said at meetings called by him to advise
employees of working conditions which might be expect-
ed should the employees choose the Union as their
representative that in that event he would "quit, because
financially [he did] not need the job," a finding that
Section 8(a)(l) of the Act had been violated would
be warranted This, "because the tendency of such
statements may reasonably be expected to have inter-
'" It will be remembered that the headquarters of respondent s parent
corporation Walter Kidde and Company Inc are in Belleville New
Jersey
,x When statements [as to the consequences which might follow
adherence to a union ] are made by [the president of a corporation]
who has the power to change prophecies into realities such statements
whether couched in language of probability or certainty tend to impede
and coerce employees in their right of self organization and therefore
constitute unfair labor practices N L R B v Nabors etc 196 F 2d
272 276 (C A 5)
915
fered with the free exercise of employee rights under
the Act Uranga, etc , 173 NLRB No 99
The threats made by Stroh, respondent's president,
defeat respondent's free speech argument As respondent
recognizes on brief, "an employer is free to communicate
to his employees any of his general views about unionism
or any particular union so long as the communications
do not contain a threat of reprisal "[Emphasis supplied ]
Accordingly, I conclude that by threats that existing
practices concerning tardiness and coffeebreaks would
be made stricter, that respondent's plant would be moved
to Belleville, New Jersey, and that Stroh would quit
his job, should employees assist or support the Union,
respondent committed unfair labor practices within the
meaning of Section 8(a)(1) of the Act
E Facts Concerning Respondent 's Alleged Violations of
Section 8(a)(2) of the Act
Having heard rumors of the Union's organizing cam-
paign, Stroh, respondent's president, convened a meeting
of all hourly rated employees on January 29 As Stroh
testified, he "told" and "instruct[ed]" the assembled
employees "to go to another location in [respondent's]
plant where the supervisors would be absent" and there
"elect a committee of three employees " As to the
function to be performed by the Committee which the
employees were directed to elect, Stroh, as he further
related, informed the employees that its "purpose
was to present employee grievances and complaints
to the management "
Stroh also told the employees that later in the day
he would confer with the Committee which they would
select Stroh's reason for meeting with the Committee,
as he put it, was that he "wanted a representation
of all the employees through these three committee
members to come to the office at which [he] and
Al Talbott, the Sales Manager, were present for
purposes of finding out just what the grievances were
Concerning the import of the words he used in connec-
tion with the Committee's election, Stroh testified that
they were intended as "a suggestion" rather than a
"mandatory order from management " It does not
appear, however, that the employees were informed
of this
In accordance with Stroh's instructions, the employees
elected three of their number to serve as their Committee
At the same time the employees discussed among them-
selves the matters which the Committee should raise
at its forthcoming meeting, which was held as announced,
with Stroh Among these were wage increases, sick
leave, vacations, seniority, job classifications, overtime,
bonuses and coffeebreaks
Shortly after the Committee had been selected Talbott,
respondent's sales manager, assigned each employee
to a particular committee member A notice setting
forth these assignments was posted on respondent's
bulletin board Employees were thereafter required to
take up grievances and complaints related to their
employment only with their assigned committee member
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the January 29 meeting between the
Committee and Stroh, respondent's president, respon-
dent issued to employees a draft copy of a document
entitled "FIRE ALERT COMPANY POLICIES AND
CONDITIONS OF EMPLOYMENT FOR HOURLY
EMPLOYEES' (herein called Company Policy), with
instructions that within 3 days it be reviewed by the
recipients and discussed by them with their respective
committee members .2" The draft Company Policy set
forth the wages, hours, and other terms and conditions
of employment which would obtain in respondent's plant
after February 17. It also contained the following provi-
sions:
EMPLOYEE REPRESENTATION
1,. Purpose: A committee to act as an individual
or collective voice for all hourly employees. Com-
mittee members will meet with Company represent-
atives to help formulate policy, alter existing policy,
or voice employee grievances. Committee members
are bound by the interests of the employees regard-
less of their personal inclinations.
2. Committee to consist of three hourly employ-
ee's [sic] chosen by write-in ballot. All employees
having served probationary period are eligible to
serve. The three employees receiving highest num-
ber of votes shall serve as committee members
for a period of one year. A tie in voting shall
be reconciled by subsequent ballots.
3. The Company shall post and update as neces-
sary a list showing the equal distribution of commit-
tee member representation. (i.e. each employee
shall be assigned a committee member as their
representative)
4. All actions pertaining to committee selection,
committee-employee meetings, or committee-Com-
pany meetings shall be conducted on Company
premises and Company time.
5. The Company is bound to grant Committee-
employee or Committee-Company meeting time
within 24 hours after request has been made.
6. Committee members may resign at any time.
Election time to fill committee vacancies shall be
granted by the Company within 24 hours.
7. A simple majority of all employees shall be
required to hold' unscheduled elections for the pur-
pose of recalling any committee member. Majority
shall be determined by signature petition which
may be circulated by any employee.
The members of the Committee after considering
the draft Company Policy, with the employees in their
individual groups met again with Stroh, twice before
February 17. The discussion at these meetings related
to the reaction of respondent's employees to the contents
of the draft.
21 Whether the draft Company Policy was issued to all employees
or only to committee members is not too clear It appears, however,
from the tenor of testimony on this subject and from the text of
the document itself, which is in evidence as G C Exh 2 and 5(A),
that each employee received a copy
At one of these meetings that section of the draft
headed "EMPLOYEE REPRESENTATION," the
terms of which appear above, was briefly mentioned.
However, Barbara Woolfolk, a member of the Commit-
tee who was present at the time, testified that she
did not remember what was said on this subject.21
A few days before February 17, on which date the
Company Policy, as ultimately promulgated by respond-
ent, became effective, copies, in final form, were distrib-
uted to employees. The provisions of this document
were still in effect at the time of the trial in this case.
Although differing in some respects from those which
were set forth in the earlier draft, no difference appears
in the "EMPLOYEE REPRESENTATION" section.
Concerning the relationship of respondent's employees
toward the Committee, Woolfolk, a committee member,
testified that no employee made a direct complaint to
her about the manner in which the Committee was
selected. She further testified that, although the employ-
ees could "disestablish [the] committee if they wanted
to by a majority vote," she didn't know whether "they
want to disestablish [the] committee." Betty Armstrong
also gave testimony22 in this regard. She stated that
she did not remember any employees saying "they didn't
like [the] committee"; that she didn't know whether
"a majority of the girls in the plant are enthusiastic
and wholeheartedly support [the] committee"; and that
she was likewise without knowledge as to whether,
on the day the Committee was elected, "all but about
four, of the girls were enthusiastically in favor of forming
a committee. "23
F. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(2) of the
Act
The General Counsel ' contends 'that respondent"s
involvement in the affairs of the Committee amounted
to domination and interference within the meaning of
Section 8(a)(2) of the Act. Taking a contrary position,
respondent's main argument is one which has already
been rejected; namely, that the Committee is not a
21 No other committee member, all of whom were present at these
meetings, was called as a witness and Stroh gave no testimony on
this point.
22 This testimony by Armstrong, who was never a member of the
Committee, was given on June 10, while she was still in respondent's
employ As has already been noted and as will be discussed in detail
below, the General Counsel contends that Armstrong's discharge 2
days after she testified concerning this and other allegations of the
first complaint issued against respondent was violative of Sec 8(a)(I),
(3), and (4) of the Act
23 I have recounted this testimony given by Woolfolk and Armstrong
because of the defenses raised by respondent to the complaints' allega-
tions that it violated Sec. 8(a)(2) of the Act by "assist[ ing], dominat[ing],
contribut[ing] to the support of, and interfer[ing] with, the administration
of [the] Committee " Even if a finding as to the reaction of respondent's
employees toward the Committee could be based on this testimony,
which does not appear to be the case, such a finding would not be
made As will appear below, whether or not respondent's employees
supported the Committee, or whether the Committee would be disestabl-
ished in the absence of such support, has no bearing on the question
of respondent's alleged contravention of Sec 8(a)(2) in the manner
set forth in the complaint
FIRE ALERT CO.
labor organization, as defined by Section 2(5) and as
intended in Section 8(a)(2). On the premise that the
Committee might be found to be a labor organization
respondent further argues that it merely suggested that
the Committee be formed; that its organization was
completely voluntary on the part of the employees;
that the Committee was in the sole control of the employ-
ees; that the employees were satisfied with it; and that
the Committee can be disestablished if a majority of
the employees vote to do so.24 For these reasons respond-
ent submits that no violation of Section 8(a)(2) is present.
In the very first case decided by the Board, Pennsylva-
nia Greyhound Lines, Inc., et al., I NLRB 1, 13-14,
affd. 303 U.S. 261, one of the questions for determination
was whether a labor organization was employer dominat-
ed. In concluding that it was, the Board noted that
the labor organization in question "was planned by
the management , initiated and sponsored by it, and
foisted upon employees who had never requested it
[and that the organization's] functions were described
and given to it by the management ." The Board still
adheres to these factors as indicia of employee-dominat-
ed labor organizations. See, e.g., St. Joseph Lead Com-
pany, etc., 171 NLRB No. 74; Hydraulic Accessories
Company, 165 NLRB 864; Whirlpool Corporation, etc.,
126 NLRB 1117, 1118, 1133; Ben Corson Manufacturing
Co., et al. 112 NLRB 323, 324, 345; Standard Coil
Products Co., Inc., 110 NLRB 412, 413, 420, 421, enfd.
in this regard 224 F.2d 465 (C.A. 1); and Carpenter
Steel Company, 76 NLRB 670, 687; cf. Coastal States
Petrochemical Company, 175 NLRB No. 92.
The Board has also pointed to other criteria as being
indicative of a dominated labor organization. Thus,
where a "Policy Statement" is issued to employees
which "purports to set forth management 's policies and
practices . . . with respect to such matters as wages,
hours, and other conditions of work" the Board has
held that the "mere inclusion of [an] employee represen-
tation plan" in such a statement demonstrates the
employer's domination of the plan. This is so, the Board
concluded, because it "suggests to the employees that
the plan is something imposed upon them by management
and not subject to their acceptance or rejection." St.
Joseph Lead Company, etc., 171 NLRB No. 74.
Where a labor organization consists of a committee
of employees there is yet an additional element which
may be taken into account in determining its domination
by an employer. That element is the power which resides
in, the employer to transfer , promote, or discharge a
committee member and thereby control the composition
and acts of the committee . Hydraulic Accessories Com-
pany, 165 NLRB 864; Sharples Chemicals, Inc., 100
NLRB 20, 33, enfd . 209 F.2d 645 (C.A. 6); General
Shoe Corporation, 90 NLRB 1330, 1332, enfd. 192 F.2d
504 (C.A. 6), cert. denied 343 U.S. 904; Carpenter
Steel Company, 76 NLRB 670, 688:
2' Some of these contentions appear in respondent's brief Others
were made in oral argument during the course of the trial
917
All of the foregoing criteria, and more , of domination
by an employer over a labor organization are present
here. The first is the self-evident fact that the committee
members, being employees of respondent, are subject
to transfer, promotion, or discharge.
That the Committee was "planned . . '. initiated and
sponsored" by respondent ano toisted upon employ-
ees"25 is clearly apparent from the testimony given
by Stroh, respondent's president. In this regard, he
"told and "instruct[ed]" respondent's- employees to
"elect a committee of three employees" whose "pur-
pose" would be "to present . . . grievances and com-
plaints to . . . management ." Further. in this connection.
nowhere in the record does it appear that respondent's
employees requested that respondent deal with them
through the medium of a committee. Likewise absent
from the record is evidence that respondent informed
its employees that Stroh's instruction to them to "elect
a committee" was not mandatory.
After the Committee was formed pursuant to respond-
ent's directive respondent issued its Company Policy.
This document sets forth respondent's practices insofar
as they pertain to wages, hours, and other employment
conditions. It also contains a detailed description of
the Committee, it's functions, and the manner of its
operation. In this way respondent brought home to
its employees, as St. Joseph Lead Company, etc., 171
NLRB No. 74, teaches, that the Committee was "some-
thing imposed upon them by management and not subject
to their acceptance or rejection." In this connection,
it is noteworthy that the matter relating to the Committee
was included in respondent's Company Policy, as finally
promulgated, after such a brief and inconsequential dis-
cussion between respondent and the Committee that
a committee member who was present at the time could
not even remember what was said.
There is one further fact which shows the extent
of respondent's interference with, and control over,
the affairs of the Committee. As I have found, shortly
after the Committee was selected by the employees
respondent assigned each employee to a particular com-
mittee member. The employee so assigned was required
to discuss such grievances as might arise or any other
employment-related matter only with the committee
member appointed by respondent to took after him.
To counter this strong array of facts showing respond-
ent's domination over, and interference with, the Com-
mittee respondent argues that the employees seem sat-
isfied with, and support, the Committee, and that it
could be disestablished if a majority of the employees
wanted to do so. This' argument, like a similar one
made in Whirlpool Corporation, etc., 126 NLRB 1117,
1118, 1133, which received short shrift from the Board,
must be rejected. As was said in Whirlpool:
The short answer to these contentions is that the
Respondent caused the formation of the Council
[a labor organization and] fixed the areas in which
it operates. . . . Even if we- assume that a majority
25 Pennsylvania Greyhound Lines, Inc., et al , I NLRB 1, 13-14,
affd 303 U S. 261
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees favor continued existence of the
Council, the fact remains that there is no case
which supports the proposition that an employer
acquires a valid defense to his establishment of
a labor organization simply because later there
develops employee support for the organization
or because the employer is willing to discontinue
the organization in the absence of such support
Accordingly, I conclude that respondent dominated
and interfered with the formation and administration
of the Committee and thereby engaged in unfair labor
practices within the meaning of Section 8(a)(2) and (1)
of the Act
G Facts Concerning Armstrong's Discharge
Betty Armstrong was hired by respondent in about
January 1968 At all material times, except for a period
starting in April 1969 and ending on May 28, 1969,
during which she was a leadgirl, Armstrong worked
as a rank-and-file assembler As has already been noted,
Armstrong was a most productive employee, turning
out well in excess of 25 boards a day, the daily average
which respondent expected of its groups of employees
engaged in assembly work
On June 10, 1969, Armstrong testified as a witness
for the General Counsel in connection with the first
complaint issued against respondent Two days later
June 12, she was discharged
On January 22, while the Union' s organizing campaign
was in progress, Armstrong signed an authorization card
In addition, and at about the same time , she spoke
to about 10 employees in an effort to have them meet
with a union representative
On February 13, Armstrong and Shirley Howell, who
then also worked for respondent as an assembler, were
involved in some sort of a fracas in the plant Whether
this disagreement arose because they snipped wires at
each other or whether it consisted just of general bicker-
ing both of which were prevalent in respondent's estab-
lishment, does not appear Armstrong and Howell were
reprimanded for this conduct by Paul Ziegler, respond-
ent's production manager Both were told they would
be discharged unless they discontinued their troublemak
ing
Howell quit her employment the next day On the
same day, February 14, Ziegler notified Armstrong, in
writing, "that should she have to be reprimanded one
more time for the same problem [disrupting her cowork-
ers and, in general , causing disturbance and tension
between and among personnel] she would be dis
charged "21i
In April Armstrong and Rose Dubray, another assem-
bler, were promoted to leadgirl positions Although Arm-
strong was demoted on May 28, Dubray continued in
that capacity
Sharon Brown, also employed as an assembler by
respondent, testified that on one occasion, in about
11 Ziegler s memorandum to Armstrong is in evidence as Resp Exh 1
the middle of May, while Armstrong was still a leadgirl,
Armstrong "and several other girls went out
for lunch and they didn't punch out " Brown further
testified that on another occasion, between March and
May 19, Armstrong told her, in Dubray's presence,
that punching the clock at lunchtime was unnecessary
"if you get back on time " Darlene Araujo, another
employee, gave contrary testimony as to Armstrong s
attitude in this respect She stated that Armstrong
enforced "the rule about clocking in and out when
going to lunch "
As between the two witnesses I credit Araujo and
disbelieve Brown 27 Accordingly, I find that Armstrong
complied with respondent's rule concerning clocking
out at lunchtime 211 I further find that there is no credible
evidence in the record to support the statements appear-
ing in respondent's brief "that, Betty Armstrong, while
a lead girl, did her best to frustrate the application
of this rule '
During her service as a leadgirl Armstrong, in conform-
ity with respondent's practice, cleared her own requests
for time off with either Stroh, respondent's president,
or Jacqueline Cameron, respondent's office manager
Because of unfriendliness between Armstrong and
Dubray, who continued on as leadgirl after Armstrong's
demotion, Armstrong, following her demotion, was per-
mitted, unlike other rank-and-file assemblers, to apply
to Cameron, rather than Dubray, for permission to absent
herself from the plant
Excusing Armstrong from the requirement of seeking
authorization to leave early from Dubray was for Arm-
strong's benefit As Cameron testified in this respect,
allowing Armstrong to "report" to her instead of Dubray
in this situation "was [to] grant a favor to Betty Arm-
strong" and done "as a matter of convenience to"
her because "it seemed that she sort of resented having
to ask Mrs Dubray for leave "
On June 10 Armstrong and Stroh, respondent's presi-
dent, testified as witnesses for the General Counsel
in connection with the first complaint issued in this
case 29 Stroh testified again , on the morning of the
following day This time , however, he was called by
27 Because of her demeanor while testifying Brown who had been
called as a witness by respondent did not impress me as being truthful
Nor was her testimony in connection with the matter under discussion
corroborated by any other witness Even Dubray who appeared to
be overly anxious to testify as favorably to respondent as possible
did not confirm the second incident recounted by Brown although
according to Brown she was present On the other hand unlike Brown s
Araujo s demeanor was above reproach I have also taken into account
in assessing Araujo s testimony in this and other respects that at
the time of the trial she was giving evidence against respondent although
in its employ and therefore was in a sense testifying under peril
of reprisal See Georgia Rug Mill 131 NLRB 1304 1305 modified
on other grounds 308 F 2d 89 (C A 5)
'" Although this finding is based on a choice between conflicting
testimony-Araujo s and Brown s-I might have been persuaded
because of her demeanor to make the finding solely on Brown s contrary
testimony Respecting this see Dyer v MacDougall 201 F 2d 265
269 (C A 2) which was cited with approval by the Supreme Court
in N L R B v Walton Manufacturing Co et al 369 U S 404 408
iN The examination of Stroh as a witness for the General Counsel
was conducted in accordance with Rule 43(b) of the Federal Rules
of Civil Procedure
FIRE ALERT CO. '
respondent and was respondent's last witness. His testi-
mony was completed shortly' before the trial- on the
first complaint was closed at 10:50 a.m. on June 11.
Armstrong worked during the morning of June 11.
At about 1 p.m. on that day, having a private matter
to attend to, Armstrong approached Dubray, her immedi-
ate supervisor, and, in the presence of other employees,
including Araujo, said to Dubray, that she had "some
personal business to take, care of" and had "to leave."
In response Dubray told her to "go ahead ."311'Having
thus received permission from Dubray, her leadgirl,
to do so, Armstrong left respondent's premises.31
Stroh, respondent's president, returned to the plant
on June 11 about 1:30 p.m., after Armstrong had already
left. Noting Armstrong's absence, he asked Cameron,
respondent's office manager, whether she had given
Armstrong permission to leave. Receiving a negative
answer he ordered Cameron to discharge Armstrong
for this reason.
When Armstrong came to work the next day, June
12, Cameron informed her' of her discharge, telling Arm-
strong, as Cameron testified, that she had been instructed
by Stroh to "fire [her] because [she] left without permis-
sion." Later that day Cameron sent Armstrong a letter32
in "confirmation of [Cam'eron's] verbal notice of [Arm-
strong's] termination as an employee of [respondent]."
This letter set forth "the following specific reasons"
for Armstrong's discharge:
1. It has been noted by myself and others that
you have left the premises for lunch or-other reasons
without clocking out and in which [sic] is against
the company policy. ,
2. After being directed specifically by melto report
to me directly when it was necessary to be late
or absent, you had continued to fail to do so.
3. It has also been noted that your absenteeism
has increased greatly in the past few months, that
you have been tardy numerous times, and have
left before quitting time on several occasions. .
Concerning her inclusion in this letter of the several
"specific reasons" for the termination of Armstrong's
employment Cameron testified that upon being ordered
by Stroh to discharge Armstrong for having left the
plant on June 11 without permission, she "just looked
up all of the reasons [she] could think of and included
them in the letter."
"' The quotations appearing in the text are taken from Armstrong's
recital of her conversation with Dubray Araujo and other witnesses
gave similar testimony
31 Although Dubray admitted that Armstrong said to her that she
was "leaving to take care of business ," Dubray denied making the
reply attributed to her and also expressly denied giving Armstrong
permission to leave In view of the corroboration given to Armstrong's
version of her conversation with Dubray by other witnesses, including
Araujo, I do not believe Dubray's denials In this regard, I -have,
in fn 27 above, already expressed my opinion concerning the credibility
of Araujo and Dubray What I said there applies equally here.
ar G C Exh. 20 in evidence
`919
H. Contentions and Concluding Findings Concerning
Armstrong's Discharge
The second complaint alleges that Armstrong's dis-
charge contravened Section 8(a)(1), (3), and (4) of the
Act. Considering, first, th'e claimed violation of Section
8(a)(4), respondent contends that Armstrong's dismissal
was not engendered by the testimony she gave as a
witness for the General Counsel in this proceeding.
In support of this argument respondent asserts many
reasons for terminating Armstrong's employment, none,
it submits, having any relationship to her appearance
as a witness.
Thus, Stroh, respondent's president, testified that he
ordered Armstrong's discharge because she left the plant
without permission on June 11. In a letter to Armstrong,
Cameron, respondent's office manager, stated that Arm-
strong's "termination as an employee" had "been decid-
ed upon" specifically because she "left the premises
for lunch or other reasons without clocking out"; her
"continued" failure after "being directed specifically"
to do so "to report to [Cameron] when it was necessary
to be late or absent"; the great increase in, her absences
and latenesses "in the past few months"; and her leaving
"before quitting time on several occasions." Respond-
ent's brief also sets forth a number of reasons, one
similar and others different from those in Cameron's
letter, for Armstrong's discharge; namely, "her failure
to adhere to the Company policy regarding clocking
out, her failure to discontinue the role of troublemaker,
and her general attitude of insubordination."
Insofar as 'respondent's claim that Armstrong left
the plant without permission on June 11 is concerned,
I have already found as a fact that she had been author-
ized to do so by Dubray, respondent's leadgirl and
Armstrong's immediate supervisor. Although Armstong,
unlike other employees, could seek permission from
Cameron, rather than Dubray, when she wanted to
leave early, doing this was not mandatory. It was a
privilege accorded Armstrong because she and Dubray
were unfriendly toward each other. Having instituted
this procedure for Armstrong's benefit, she could seem-
ingly waive it, as she did'on June 11.
Furthermore, assuming for the sake of argument that
Armstrong did not receive permission to absent herself
from the plant during the afternoon of June 11, it can
hardly be said that respondent was prejudiced by her
departure. June 11 fell within a period during which
respondent's business was in a state of decline. Because
of this employees were encouraged to take time off
to attend to personal matters. This is exactly what
Armstrong did. As she testified, she left early on June
11 because she had "some personal business to take
care of." It seems quite unlikely therefore, that Arm-
strong's claimed unauthorized absence was a real reason
for Armstrong's discharge. Especially is this-conclusion
warranted when it is borne in mind that Armstrong's
production was well above average.
Little need be said about the reasons set forth in
Cameron's letter as being grounds for Armstrong's "ter-
mination as an employee." They`were obviously made
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up out of whole cloth. As Cameron, respondent's office
manager testified, when she was directed by Stroh to
discharge Armstrong she took it upon herself to include
in the "termination" letter "all of the reasons [she]
could think of. "
The basis for Armstrong's discharge contained in
respondent's brief are equally without substance. The
first, "her failure to adhere to the Company policy
regarding clocking out," tracks, substantially, the first
ground stated in Cameron's letter and suffers from the
same infirmity.
The second deals with Armstrong's "role of trouble-
maker." Whatever Armstrong did in this regard was
known to respondent at least as early as February 13.
Yet respondent did not discharge her on this alleged
ground until June 12. Because respondent suffered what-
ever troublemaking Armstrong engaged in for this long
period of time and dismissed her only after she appeared
as a witness against respondent I am satisfied that Arm-
strong's "role of troublemaker" was not an actual reason
for her discharge. Cf. Nitro Super Market, Inc., 161
NLRB 505, 506, 517.
The last ground asserted in respondent's brief to
justify Armstrong's discharge, "her general attitude of
insubordination," finds no support in the record. If
this contention is based on Armstrong's having left
the plant on June 11 without seeking permission from
Cameron, respondent's office manager, it is without
merit, as I have already pointed out. If it is based
on the story related by Brown, one of respondent's
employees, that Armstrong urged her to disobey respond-
ent's'rule requiring employees to punch out upon leaving
its premises for lunch and that Armstrong, herself, did
not comply with this-rule, it is likewise' without merit
because, as I have found, Brown's testimony in this
regard is unworthy of belief, .
The many grounds advanced by respondent in "expla-
nation of [Armstrong's] discharge [failing] to stand under
scrutiny"' an inference arises which is "unfavorable
to respondent." N.L.R.B. v. Dant, et al., etc., 207
F.2d 165, 167 (C.A. 9). Where, as in this case, reasons
are asserted to justify an allegedly violative discharge
which are found to be without basis the Trial Examiner
"can infer that there is another motive. More than
that, he can infer [as I do] that the motive is one
that the employer desires to conceal-an unlawful
motive-at least where . .. the surrounding facts tend
to reinforce that inference.'" Shattuck Denn Mining Cor-
poration, etc. v. N.L.R.B., 362 F.2d 466, 470 (C.A.
9).33
Here, as in Shattuck Denn, "the surrounding facts
tend to reinforce [the] inference" that Armstrong's
employment was unlawfully terminated. Thus, Arm-
strong's discharge hard on the heels of her appearance
as a witness for the General Counsel in a proceeding
under the Act is, in my opinion, more than a mere
coincidence of two unconnected events. As was said
in this regard in N.L.R.B. v. Montgomery Ward &
as This statement of the law was specifically adopted by the Board
in Atlantic Metal Products, Inc., 161 NLRB 919, 922
Co., Inc., 242 F.2d 497, 502 (C.A. 2) "the abruptness
of a discharge and its timing are persuasive evidence
as to [unlawful] motivation."34 Furthermore the assign-
ment of a multiplicity of alleged reasons for a discharge,
itself, gives rise to a conclusion that the discharge is
unlawful. N.L.R.B. v. Schill Steel Products, Inc., 340
F.2d 568, 573 (C.A. 5).
Accordingly, as alleged in the second complaint, I
find that respondent discharged Armstrong because she
gave testimony under the Act as a witness for the
General Counsel in a proceeding brought against respon-
dent. I conclude, therefore, that in this manner respondent
engaged in an unfair labor practice within the meaning
of Section 8(a)(4) of the Act.
The second complaint further alleges that by discharg-
ing Armstrong respondent also violated Section 8(a)(3)
of the Act and, independently, Section 8(a)(1). I find,
however, that the evidence does not support either
allegation.
Insofar as the former is concerned, although it was
to forestall the advent of the Union in its plant which
prompted respondent, in January, to threaten employees
in violation of Section 8(a)(1) of the Act and to dominate
and interfere with the Committee in violation of Section
8(a)(2), the Union, as Stroh testified, "became . . .
a dead issue by the end of January." Moreover, no
relationship has been established between Armstrong's
discharge on June 12 and her activity in support of
the Union which, as I have found, occurred 5 months
earlier .35
Concerning the allegation that the termination of Arm-
strong's employmerii violated Section 8(a)(1) of the Act,
the second complaint sets forth that "Respondent
. . discharged . . . Armstrong . . . based on [its] belief
that [she] was the spokesman for a certain group of
[its] employees and represented them .in regard to matters
concerning their working -conditions." - The-- General
Counsel's brief contains no argument directed to this
allegation , nor does it point to evidence which sustains
it. However , in opposition to respondent's motion, made
during the trial, to dismiss this portion of the second
complaint the General Counsel stated that it was support-
ed by testimony given by Stroh , respondent ' s president,
having to do with Armstrong's being "the spokesman
for . . . the Spanish girls at her table," in connection
with their disputes with black employees over the use
of a telephone and respecting rejected boards which
they produced. Even if it be thought that being "spokes-
man" for employees in matters of this type constitutes
representing "them in regard to . . . their working condi-
" See also, to the same effect, American Art Industries, Inc , 170
NLRB No 70, and Marion Manufacturing Company, 167 NLRB 213
Respondent recognizes , on brief, "that the timing of [Armstrong's]
discharge might appear suspicious ," but urges , citing Superior Gas
Service, Inc , 167 NLRB 155, ' that this "alone is not sufficient to
warrant the conclusion that the discharge was caused by her testimony "
The instant case , however, differs from Superior in a most important
area In Superior the innocent reason advanced for the discharge was
well founded in the evidence That is not so here
'S It will be remembered, in this regard , that Armstrong signed an
authorization card on January 22 and shortly thereafter spoke to several
employees about meeting a union representative
FIRE ALERT CO 921
tions," the record does not show that Stroh ' s belief
that Armstrong was such a representative was an element
which he took into account when he ordered her dis-
charge
Accordingly , upon consideration of the entire record,
I conclude that the General Counsel has not sustained
his burden of proving by a preponderance of the evidence
that by discharging Armstrong respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) or Section 8(a)(3) of the Act I shall, therefore,
recommend that paragraphs V, V(a), VII, IX, and X
of the second complaint be dismissed
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent ' s activities , to the extent found violative
of the Act , occurring in connection with its operations
set forth in section I, above , have a close , intimate,
and substantial relation to trade , traffic, and commerce
among the several States , and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce
V THE REMEDY
Having found that respondent engaged in unfair labor
practices within the meaning of Section 8 (a)(1), (2),
and (4) of the Act, my Recommended Order will direct
respondent to cease and desist therefrom and to take
such affirmative action as will effectuate the policies
of the Act Any backpay found to be due to Armstrong
shall be computed in accordance with the formula set
forth in F W Woolworth Company, 90 NLRB 289,
and shall include interest in the amount and manner
provided for in Isis Plumbing & Heating Co , 138 NLRB
716
Because the unfair labor practices engaged in by
respondent go "to the very heart of the Act,"36 broad
cease -and-desist provisions will be included in my Rec-
ommended Order
Upon the basis of the foregoing ,findings of fact and
upon the entire record in the case , I make the following
CONCLUSIONS OF LAW
I Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) of the Act
2 The Union and the Committee are labor organiza
tions within the meaning of Section 2(5) of the Act
3 By threatening employees that if they assisted or
supported the Union , stricter rules concerning tardiness
and coffeebreaks would be imposed , that its plant would
be moved to Belleville , New Jersey , and that its president
would quit his job, respondent has engaged, and is
engaging , in unfair labor practices within the meaning
of Section 8(a)(1) of the Act
4 By dominating and interfering with the formation
and administration of the Committee , respondent has
engaged , and is engaging , in unfair labor practices within
the meaning of Section 8(a)(2) and ( 1) of the Act
5 By discharging Betty J Armstrong because she
gave testimony under the Act, respondent has engaged,
and is engaging , in an unfair labor practice within the
meaning of Section 8 (a)(4) of the Act
6 Respondent did not engage in independent unfair
labor practices within the meaning of Section 8(a)(1)
or Section 8(a)(3) by discharging Betty J Armstrong
7 The unfair labor practices engaged in by respon-
dent , as set forth in Conclusions of Law 3, 4, and
5, above , affect commerce within the meaning of Section
2(6) and (7) of the Act
Upon the foregoing findings of fact , conclusions of
law, and upon the entire record in the case , I hereby
issue the following `
[Recommended Order omitted from publication ]
" Reed Rolled Thread Die Co etc 179 NLRB No 6 (domination
of a labor organization in violation of sec 8 (a)(2) of the act) M
Eskin & Son NLRB 666 672 modified on other grounds 312 F 2d
108 (C A 2 ) (Sec 8(a)(4) of the Act) M Eskin & Son 135 NLRB
666 672 modified on other grounds 312 F 2d 108 (C A 2) (Sec
8(a)(4) of the Act )