FTS Corp.

National Labor Relations Board - Board Decisions

Aug 3, 1970

184 N.L.R.B. 787 (N.L.R.B. 1970)

FTS CORP. 787
FTS Corp. (Division of Hitco) and International As-
sociation of Machinists and Aerospace Workers
and its District Lodge No . 86, AFL-CIO. Case
27-CA-2785-2
August 3, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH
AND BROWN
On April 21, 1970, Trial Examiner James R.
Hemingway issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed.
Thereafter, the Respondent and the General Coun-
sel filed exceptions, supporting briefs, and answer-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified
below.
The Trial Examiner found that employees Ottis
Boyd, Jr., and Ralph Leonard were not, as Respon-
dent urged, discharged because of Boyd's having
been away from his assigned station on August 26,
1969, and because of Leonard's attitutde. Instead,
the Trial Examiner found that the reason for Boyd's
and Leonard's discharges was because of their con-
versations with other employees in which a walkout
was discussed. Nevertheless, the Trial Examiner
concluded that their discharges were not in viola-
tion of Section 8(a)(1) or (3) of the Act as their
activities were not concerted, union-related, or pro-
tected. He found that their activities were not con-
certed because Boyd and Leonard were not work-
ing together in talking about a walkout and were
not even of the same mind on that subject, nor was
there proof that other employees were acting in
concert with either one. Moreover, he also found
that they were not engaged in union activities
because of the absence of union approval for the
walkout. The Trial Examiner was also of the
opinion that the walkout, had it occurred, would
have been for an illegal objective; i.e., to force
recognition of the Union which had lost an election
only 6 months before. Since he was of the further
opinion that the Respondent believed, not without
some grounds, that the walkout would have been
for that purpose, he concluded that the discharges
for engaging in such activity would not have been
for the purpose of discouraging either union mem-
bership or protected, concerted activity. We be-
lieve that the Trial Examiner 's 8(a)(1) dismissal in
this respect is in error.
Boyd and Leonard were without question
discussing with other employees the possibility of a
walkout. It is well established that such discussions
about the feasibility of a strike are concerted activi-
ties,' and the fact that a minority group of em-
ployees proposes engaging in a strike to achieve
recognition for a union which had earlier lost an
election is not, without more, unprotected, con-
certed activity and a violation of Section 8(b)(7) of
the Act.2 What is of critical importance is that there
is an absence of evidence in the record that the sug-
gested strike, even if it had come to fruition, would
have involved employee picketing for the alleged
unlawful purpose . In the absence of such showing a
strike for the purpose indicated is not an unpro-
tected activity .' Since it is clear that the activities of
Boyd and Leonard were of a concerted nature and
protected we find that the Respondent by discharg-
ing them for such conduct violated Section 8(a)(1)
of the Act.
THE REMEDY
We have found, contrary to the Trial Examiner,
that the Respondent engaged in certain additional
unfair labor practices in violation of Section
8(a)(1) of the Act, by discharging Ottis Boyd, Jr.,
and Ralph Leonard for engaging in protected, con-
certed activity. In our opinion, it is necessary in
order to effectuate the purposes of the Act that the
Respondent be ordered to cease and desist from en-
gaging in such unlawful activity and to reinstate
these employees with backpay.
' Rogers Brothers Company of California, 169 N LRB 830.
= National Packing Company, Inc v N.LR.B., 377 F.2d 800 (C A. 10)
Id. at 804.
184 NLRB No. 91
427-835 0 - 74 - 51
788 DECISIONS OF NATIONAL
Upon the basis of the foregoing findings of fact
and upon the record as a whole, we make the fol-
lowing amended conclusions of law which we shall
substitute in place of the Trial Examiner's sixth
conclusion of law and number as the sixth and
seventh conclusions of law. The present seventh
conclusion of law should be renumbered as the
eighth conclusion of law:
AMENDED CONCLUSIONS OF LAW
Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act by discharging Ottis
Boyd, Jr., and Ralph Leonard, thereby violating
Section 8(a)(1) of the Act.
Respondent has not discouraged membership in a
labor organization by discriminating in regard to
the hire or tenure of employment of Martin Sutton
in violation of Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, FTS
Corp. ( Division of HITCO), Denver, Colorado, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner 's Recom-
mended Order, as so modified:
1. Substitute the following for paragraph 1(b )
and reletter the present paragraph 1(b) as 1(c ):
"(b) Interfering with, restraining , and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act by discharging Ottis Boyd, Jr.,
and Ralph Leonard because they had engaged in
protected, concerted activities."
2. Substitute the following for paragraph 2(b)
and reletter the present paragraph 2(b) and sub-
sequent paragraphs accordingly:
"(b) Offer to Ottis Boyd, Jr., and Ralph Leonard
immediate and full reinstatement of their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay which they may
have incurred by reason of the Respondent's dis-
crimination against them by payment to them of a
sum of money equal to that which they normally
would have earned as wages from August 26, 1969,
the date of the discrimination against them to the
date of the Respondent's valid offer of reinstate-
ment. Backpay shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
LABOR RELATIONS BOARD
with interest added thereto in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716."
3. Add the following as paragraph 2(d):
"(d) Notify Ottis Boyd, Jr., and Ralp Leonard if
presently serving in the Armed Forces of the
United States of their 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."
4. Add the following paragraphs after the last in-
dented paragraph of the Appendix:
WE WILL NOT interfere with, restrain, or
coerce employees in the exercise of rights
guaranteed in Section 7 of the Act by discharg-
ing or by otherwise discriminating against any
employees because of their protected, con-
certed activities.
WE WILL offer to Ottis Boyd, Jr., and Ralph
Leonard immediate and full reinstatement with
backpay.
WE WILL notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
CHAIRMAN MILLER, concurring in part, and dissent-
ing in part:
I would adopt the findings, conclusions, and
recommendations of the Trial Examiner in all
respects.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a
charge filed on August 27, 1969, an amended
charge filed on September 9, 1969, and a second
amended charge filed on October 15, 1969, by In-
ternational Association of Machinists and
Aerospace Workers and its District Lodge No. 86,
AFL-CIO, herein called the Union, against FTS
Corp. (Division of HITCO), herein called the
Respondent, a complaint issued on October 31,
1969, alleging that Respondent had engaged in and
was engaging in unfair labor practices within the
meaning of Section 8(a)(1), (2), and (3) and Sec-
tion 2(6 and (7) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq., herein
called the Act. In substance , the complaint alleges
that since on or about March 1, 1969, and continu-
ing to date, the Respondent had interfered with,
restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act
FTS CORP. 789
by certain verbal statements made by named
representatives of the Respondent to employees;
that the Respondent on or about June 17, 1969, in-
itiated, formed, sponsored, and promoted the Com-
mittee and since that date has assisted, dominated,
contributed to the support of, and interfered with
the administration of said Committee; and that on
or about July 23, 1969, Respondent terminated the
employment of Martin E. Sutton, and about August
26, 1969, terminated the employment of Ottis
Boyd, Jr., and Ralph Leonard and thereafter failed
and refused to reinstate them.
On November 10, 1969, the Respondent filed an
answer to the complaint in which it admitted the ju-
risdictional allegations, admitted the discharges of
Boyd and Leonard only, but denied the commission
of the alleged unfair labor practices. The Respon-
dent's answer also alleges that the events men-
tioned in the complaint as specific acts of violations
of Section 8(a)(1) of the Act occurred more than 6
months prior to the filing of any charge relating
thereto and therefore that the limitation in Section
10(b) of the Act would preclude a complaint based
thereon.
Pursuant to notice, a hearing was held in Denver,
Colorado, between January 22 and 27, 1970. At
the conclusion of the hearing, the parties requested
and were granted time in which to file briefs with
the Trial Examiner. On the appointed day, briefs
were received from the General Counsel and from
the Respondent.
From my observation of the witnesses and upon
the entire record in the case, I make the following:
ing a Stipulation for Certification Upon Consent
Election, dated January 17, 1969, an election was
held on February 14, 1969, which the Union lost.
III. SIX MONTHS' LIMITATION UNDER SECTION IO(B)
Respondent's position appears to be that neither
in the original nor in either of the amended charges
is there any specification of the acts which are set
forth in the complaint as violations of Section
8(a)(1) of the Act. The printed form of the charge
used for both the original and the amended charges
contains the printed allegations of 8(a)(1) viola-
tions as they appear in section 1(h) of that charge,
and at the end of section 2 thereof (which is a
statement of the basis of the charge). Hence, the
first listing of specific acts alleged to be a violation
of Section 8(a)(1) of the Act is to be found in the
complaint.
The issue raised by the Respondent's answer is
no longer new or unsettled. The Board long since
has held the allegation on the printed form of the
charge-"By the above and other acts, the above-
named employer has interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act. "-to be suffi-
cient to support the more particular allegations of
interference, restraint, and coercion contained in
the complaint.'
IV. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under
and existing by virtue of the laws of the State of
California. At all times material hereto, the
Respondent has maintained an office and principal
place of business in Denver, Colorado, where it is
engaged in the manufacture and sale of machine
and fabricated metal parts. In the course and con-
duct of its business operations, Respondent an-
nually ships products valued in excess of $100,000
from its place of business in the State of Colorado
directly to points in States of the United States
other than the State of Colorado. There is no issue
as to jurisdiction, and I find that the Board has ju-
risdiction and that it will effectuate the purposes of
the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization , admitting to
membership employees of the Respondent . Follow-
' Sam Klatn and Sons, 127 NLRB 776, Kohler Co, 108 NLRB 207, affd
on this point in 220 F.2d 3 (C.A. 7), Kohler Go, 128 NLRB 1062,
The complaint alleges that in March 1969 the
Respondent, by certain supervisors, Jack Shipp
(Respondent's industrial relations manager) and
Albert Fazekas (assistant machine shop super-
visor), made statements which interfered with,
restrained, and coerced its employees. To prove
these allegations , the General Counsel called
Duane Marshall, who, in March 1969, was a cost
accountant (also called a payroll supervisor) for
Respondent doing payroll work, but who was not
employed by the Respondent at the time of the
hearing. Marshall testified, by way of background,
that at a meeting of supervisors and management
personnel held about 2 weeks after the election
which the Union lost, President Donald Smith told
those present that the Union had lost the election
and that the supervisors should take it easy and not
cause any trouble and not "get on" any union
people, because they were still in critical times
when the Union could step back in.
A week or two later, Marshall testified, he had a
conversation with Jack Shipp, the industrial rela-
tions manager, as Shipp was coming out of his of-
fice about 7 or 8 p.m. when no one else was
1097-98; Texas Industries , Inc, 139 NLRB 365, affd on this point in 336
F 2d 128 (C.A 5), Star Expansion Industries, 164 NLRB 563, 566
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present . He testified that he had asked Shipp "how
the union thing was going " and if they were having
any more trouble . He quoted Shipp as replying that
"They knew the people that had worked for the
Union ... that they were trouble makers and
wouldn 't be around long." Shipp flatly denied that
there was any such conversation with Marshall and
testified that the nearest he would come to
Marshall 's desk when he was leaving after hours
would be an estimated 25 to 40 feet . A finding on
the issue of credibility will be made hereinbelow.
Marshall also testified that about 5 : 30 p.m., a day
or two after his conversation with Shipp, he had
had a conversation with Assistant Machine Shop
Supervisor Albert Fazekas . He testified that
Fazekas had come to him to ask about a payroll
matter and that he had asked Fazekas how things
were going regarding the Union . He testified that
Fazekas had answered , saying:
... he knew the people that had worked for
the union , were pushers of the union , wanted
to get the union in, this type of thing . Well, he
didn 't especially care for them, that he wanted
to get rid of these people and would in time;
but that he couldn't do it, you know, go out
and fire all these people or it would bring the
union back in. And he would more or less
make it hard on them until they quit or could
be gotten rid of.
The whole conversation , Marshall testified , lasted
10 or 15 minutes . Fazekas , who was not in Respon-
dent 's employ at the time of the hearing , testified at
one point that he had had only one conversation,
other than about business , with Marshall and that
was on an occasion when Marshall had lost his coat
and he had helped Marshall find it . However,
Fazekas' testimony , when he was called by the
General Counsel, was somewhat confused . There is
one place in the transcript where Fazekas is shown
as answering "yes" to the question , " Did you
perchance discuss [the Union] with Duane
Marshall?" Counsel for the General Counsel ap-
parently understood the answer to be "no,"
because, after one intervening question, counsel
asked Fazekas , "It is your testimony you never
discussed the Union or he [Marshall ] never raised
the subject with you?" Fazekas answered, "No."
His meaning is not too clear . Literally, he was say-
ing that that was not his testimony , implying that he
had perhaps spoken with Marshall about the Union
as he had answered the earlier question . When he
was called as a witness on the Respondent 's case,
Fazekas testified merely that he could not re-
member having spoken with Marshall about the
Union.
Marshall 's credibility was attacked by the
Respondent. The following facts were brought out:
Marshall had been employed by the Respondent for
a period between August 1968 and May 1969. He
supervised no employees in his work . Among other
functions he initialed and put through slips for va-
cation pay for employees . These slips were sup-
posed to be approved by Marshall 's supervisor be-
fore being processed . Early in May 1969, Marshall
gave Respondent a 2-week notice of his intent to
quit and, at the same time , he put through a slip for
vacation pay for himself, although he had been em-
ployed less that 1 year , the qualifying period.
Marshall 's supervisor , Vince Dietrick, was not
present at the time this slip was sent to the IBM
computer and he did not , therefore , initial the slip.
However , later that morning , all the adjustment
slips that had gone to the IBM computer operator
from Marshall that morning were taken by another
party, who looked them over individually. In the
process, the slip for vacation pay Marshall had put
through for himself was discovered . This was called
to the attention of Dietrick when he returned that
afternoon and Dietrick discharged Marshall.2 After
his discharge , Marshall made claim for unemploy-
ment compensation, which was opposed by the
Respondent , and he filed suit for overtime pay,
which case was pending at the time of the hearing.
When Marshall returned to the Respondent for his
paycheck , after his discharge , Shipp told Marshall
that his checks would be held until Marshall had
paid what he owed to the credit union at the
Respondent . At that time , according to Marshall,
Shipp said he had heard that Marshall was going to
file a complaint ( the nature of which was not re-
lated by Marshall) against the Respondent, and
asked if this were true . Marshall told Shipp that it
was. Shipp according to Marshall , then said that if
he filed any complaints or charges, he would
blackball Marshall in the State of Colorado. Shipp
was not questioned about this.
Marshall testified that he had contacted the
Union and volunteered to testify to the conversa-
tions with Shipp and Fazekas as hereinabove re-
lated after he had noticed a newspaper article
about picketing by some discharged union sym-
pathizers in which Shipp was quoted as saying: "We
would never terminate someone attempting to or-
ganize unless he was doing it on company time."
The General Counsel argues that Marshall has
more to lose than gain by testifying untruthfully,
because an adverse finding in this case could adver-
sely affect his overtime pay suit against the Respon-
dent . I have taken this into account as well as the
possible influence of bias on Marshall 's testimony.
From my observation of Marshall's demeanor on
the stand and the form of his testimony, I find that
he was not fabricating . But I am, nevertheless, con-
cerned to some degree with the clarity of his
memory and his interpretation of words spoken,
because it was apparent that he did not remember
' Marshall sought to justify his act on the ground that the 1 -year rule was
not mflexible and that other exceptions had been made. I make no finding
on the collateral issue
FTS CORP.
precise words and that he was relating his un-
derstanding of them.
Examining Marshall's testimony on direct ex-
amination as to Shipp's alleged answer to his
question about how the union thing was going, I
notice that Shipp's alleged answer, as related by
Marshall, appears to go much farther than needed
in order to answer the question alledgedly put by
Marshall, and it also has marked similarity to
Marshall's version of Fazekas' alleged answer to a
similar question. However, after Marshall had given
his testimony on direct examination for the General
Counsel, he was asked on cross-examination by the
Respondent to repeat the conversation he testified
he had had with Shipp. This time he testified that
he had asked Shipp how things were going with the
Union and that Shipp had replied that "things were
coming along, but there was a time period that the
union found any reason or something like this, I
guess could come back and demand a new election.
." He testified that Shipp then went on to say
that "they knew the people that had worked for the
union, that they were trouble makers and they
wouldn't be there at all. "3
The first part of the above-quoted conversation,
according to this version, given on cross-examina-
tion, sounds more probable than that given on
direct examination, especially since it indicates that
the conversation took place between the date of the
election, February 14, 1969, and the date of the
certification of the results of the election, February
26, 1969. But for Shipp's denial, I might find that at
least the first part of the conversation took place.
But Shipp did not impress me as a man who would
perjure himself by making a false denial of
Marshall's testimony. . Even Marshall's own
testimony of his conversation with Shipp was not
too convincing especially since the last portion of
Marshall's quotation of Shipp, the implied threat
that union supporters would be eliminated by the
Respondent, appears to hang in midair with
mothing to show context. Of course, Marshall
might not have remembered that part of the con-
versation which led up to his statement, if it was
made; but I have noted the similarity between this
quoted statement and the one Marshall testified
was made by Fazekas. Without some showing of
context in which Shipp is shown to have spoken the
words, I am inclined to believe that the vagaries of
memory might have produced a transposition of
words from one conversation to the other in
Marshall's memory. Even if something like that had
been said by Shipp, I am not satisified that he was
quoted accurately. Furthermore, I cannot overlook
the fact that Marshall had personal reasons for
disliking Shipp and might have allowed his bias to
influence his memory. I credit Shipp's denial.
3 This is the way the testimony appears in the transcript I believe the wlt-
-ness closed with the word " long" (as he had on direct examination ) rather
than with " at all." However , no motion was made to correct the transcript.
• There is not sufficient evidence to show that Marshall would, in any
event , be excluded from a unit of office clericals as a managerial employee
791
I am convinced that Marshall was not fabricating
all his testimony out of spite and since I find that
his testimony concerning his conversation with
Fazekas was plausible and that Fazekas' memory
was not too good, I find that Fazekas did, in sub-
stance, make the statements quoted by Marshall.
Respondent argues that, even if such statements
had been made by Fazekas, it was made to a payroll
supervisor and not to an employee in the unit
sought to be represented by the Union. However, a
payroll supervisor is not a supervisor of employees;
he is an employee, albeit not in the unit then sought
to be represented by the Union. But the fact that he
was not in the unit does not mean that Marshall
could not have been in an appropriate unit of cleri-
cal employees.' The tendency of the statements
made to Marshall would be to restrain and coerce
him in his freedom to choose whether or not to be
represented by a labor organization. Although
Marshall started the conversation about the Union,
Fazekas went farther than was necessary to answer
Marshall's question. I find that, by Fazekas' state-
ment to Marshall, as quoted above, the Respondent
interfered with, restrained, and coerced employees
in the exercise of the rights guaranteed in Section 7
of the Act.
The only other interference, restraint, and coer-
cion alleged in the complaint was a statement (on
two occasions) by a supervisor that an employee
should get rid of a union pencil clip which he car-
ried in his pocket. Martin Sutton testified that
shortly after he was transferred to the day shift in
March 1969, he had had a conversation with Daniel
Steward, then a line supervisor over the inspectors.
Sutton testified that Steward told him that, when
Sutton was transferred to the day shift, it had been
the Respondent's plan to keep him for only a cou-
ple of weeks, that Sutton asked if this was because
of his work, and that Steward had replied, "You
know damn well what it is." According to Sutton,
Steward reached over and flicked Sutton's union
pencil clips and continued, "Why don't you let
things cool down. Maybe you will be here a lot
longer." Steward's denial was limited to portions of
Sutton's testimony, specifically that part regarding
the pencils.
Sutton further testified that in another conversa-
tion with Steward in or about June 1969 Steward
had asked Sutton for his stylus. Sutton testified that
he did not have one with him but handed Steward a
pencil with a union clip on it, since (Sutton
testified) such clips were used by some of the em-
ployees as styluses. Steward, according to Sutton,
looked at the union symbol and said, "I thought I
told told you to get rid of these damn things."
Then, according to Sutton, Steward reached in his
desk drawer and said, "Here, I keep those around
On the evidence available , I find that he was not a managerial employee
See for inclusion in unit - Locomotive Firemen & Engineers , 145 NLRB
1521 (paymasters); Westinghouse Electric Corp , 138 NLRB 778 (senior in-
dustrial auditor ); Newark Stove Co, 143 NLRB 583 (assistants to payroll
and data processing manager)
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for just such occasions like this. . . . Just take them
[referring to the ones Sutton had] and throw them
away."
Steward testified that there was only one incident
involving a discussion of pencils to his recollection.
According to him, he and his assistant, Kiernan,
were walking down the aisle when Sutton walked
up to ask a question. Steward testified that there
was at that time "a little aggravating going on
between the employees toward supervision as far as
wearing union buttons," that Sutton had pulled
pencil clip out of his pocket and asked, "do you
like my pencil clip." He testified that, in reply, he
had pulled a pencil from his own pocket and of-
fered it to Sutton and commented that he'd keep
the one he had. When asked what he meant by
"Aggravating," Steward answered, "Well, they
would always seem to expand their chests when
they came up with their pencil clips with IAM,
make sure you saw them." I am convinced that this
was not a third conversation but was, in fact, the
same one Sutton had placed as occurring in
Steward's office.
Although there were indications that some of the
management personnel might have had stronger an-
tiunion sentiments than others, Steward gave the
impression of a fair-minded supervisor. Sutton was
an easygoing man who laughed readily. Steward ap-
peared to be not without a sense of humor himself,
although he was businesslike, and I sensed that
Steward did not dislike Sutton and was not inclined
to treat him harshly because of his union activities.
I would be more inclined to believe Sutton's
testimony if it were not for the fact that, in a later
portion of his testimony, he related a strikingly
similar conversation which he claimed he had had
with the night-shift plant manager, Mihely Szabo,
while Sutton was working on the night shift. Sutton
testified that, in January 1969, Szabo had called
him into his office, looked at all the union insignia
on Sutton's chest, and commented that "you are
going to fall over with all that junk," that Szabo
took one (union button, I infer) off of Sutton's
coverall and put it on the other side, commenting:
"That will balance you up a bit, and even better
still, why don't you take all of it off and throw it
away.... What do you think you will get by getting
the Union in." Sutton went on to relate a conversa-
tion in which he had told Szabo why he thought the
Respondent needed a union. Sutton also testified
that Szabo had asked him, "Who all is the head of
all this?" and that he (Sutton) "might have said
`Me' if I remember, or `Go out in the shop, and
pick anybody."' This portion of Sutton's testimony
was given for the first time on redirect examination
by the General Counsel. There was no allegation
concerning it in the complaint. Szabo denied that
there was any such conversation. I credit his denial.
The conversation related by Sutton, especially that
part about shifting union buttons to put Sutton in
balance is the type of humor I could expect of
Fazekas but not from Szabo, who gave the ap-
pearance of one without levity. I consider it not un-
likely that Sutton confused the identity of the per-
son with whom he had the conversation.
B. Domination and Assistance to the Committee
On June 17, 1969, the Respondent, over the
signature of President Don Smith, issued a bulletin
stating as follows:
From: Don Smith [President] c
The attached Employee-Employer Communi-
cation Policy Procedure is effective Monday,
June 23, 1969.
I would like to point out that the new em-
ployee communications program is an exten-
sion of the informal program that we have had
in the past, and I request we continue to solve
all differences and problems on the 1st level
and hopefully in an informal manner. How-
ever, I encourage any of you with significant
problems to use this program so that we the
management can have the opportunity to
become knowledgeable of our problems.
Your supervisor will call you together very
shortly to review the program with you and ac-
cept nominations for you employee representa-
tive. If you have any questions concerning the
program, your supervisor will be happy to
answer them for you at this time.
I also wish to announce to you at this time two
other scheduled completion dates for projects
previously announced.
1. Our employee lunchroom which has
been delayed because of our necessary
physical expansion, had been started and
is scheduled for completion approximately
August 12.
2. Work has been substantially
completed on our wage and job classifica-
tion program and your supervisor will
review this with you in approxiamately 1
month.
I wish to thank you for your patience regarding
the above programs which have been previ-
ously discussed with you.
Our continued expansion and additional
production requirements have delayed us in
some of these areas. Your cooperation has
been appreciated.
Accompanying this letter was an outline of an
"employee-employer communications policy state-
ment and procedure." This commences with the
following paragraphs:
In every company, there can be and are,
honest differences of opinion about working
conditions, discipline, rules and other em-
ployee problems. The management of FTS
Corporation does not want you to keep these
problems to yourself but sincerely desires that
we discuss the problems and arrive at an
FTS CORP.
equitable settlement . We, of course, cannot
rectify any situation unless it is brought to our
attention.
We, therefore , encourage any employee who
thinks or feels that any condition affecting him
is unjust , inequitable , a hindrance to effective
operation, or creates a problem , to use the fol-
lowing procedure for the solution of such
problem without fear or [of?] recrimination.
An Employee Representative will be elected
from each shop unit to assist and represent em-
ployees in that unit in complying with the
procedures set forth in this policy.
Following this statement there is an outline of
five steps for the bringing of complaints to the at-
tention of management . The first step is bringing
the complaint to the attention of the employees's
immediate supervisor orally . The employee is enti-
tled under this procedure to have his employee
representative appear with him when he presents
his complaint . The plan requires that the supervisor
give his reply within 3 days after the day on which
the complaint is registered . The second step is the
presentation of the complaint by the employee or
the employee representative to the industrial rela-
tions manager , who attempts to set up a meeting
within 3 working days . The meeting as set up is to
consist of the employee , the employee 's representa-
tive, if requested , the supervisor , and the industrial
relations manager , who acts as chairman . The third
step , if the employee is not satisfied, requires a
written explanation of the employee's reason for re-
jecting the answer of the industrial relations
manager and provides for a meeting set up for this
hearing , which is attended by the department head
in addition to the industrial relations manager and
the others involved in the second step , but the in-
dustrial relations manager again serves as chairman.
The decision rendered at the third step may be ap-
pealed . In step four the industrial relations manager
notifies those who attended the meeting in step
three that an appeal has been made and he provides
the "appropriate company officer " with a record of
the problem to date. The appropriate company of-
ficer then conducts an investigation , in which he
talks with the parties and gives the employee either
alone or, if the employee desires, with his employee
representative , a chance to express his problem.
The appropriate company officer is required to give
his judgment in writing within 7 days, and again the
employee may, in writing , reject the decision. Fol-
lowing such rejection , the case proceeds to step five
in which the president of the Company receives all
the facts and renders final judgment.
Following the outline of the five steps just
described , the bulletin proceeds with a section
called "Employee Representatives ." This describes
the units of employees that are to be represented by
an elected representative . The units and the super-
visors in such units are listed thereunder . The du-
ties of the representative are stated to be working
793
with employees on problems or complaints to assist
in determining if they are justified , and to sit in and
assist in representing an employee in part or all of
the steps of the communications procedure.
The outline further states that the unit super-
visor will call his employees together within 24
hours after notification that representatives are to
be selected and at this meeting the supervisor is to
review the communications program and notify the
employees that an election will be held within 48
hours . The employees , the outline states, are per-
mitted to nominate two or three persons at this
meeting . The election , which is stated to be held
within 48 hours after the first meeting , is stated to
be handled verbally , and the unit supervisor is to
notify the industrial relations manager of the name
of the employee representative selected from the
unit . The outline provides for a term of 1 year for
the representative and for a special election in the
event he terminates his employment within that
period of time . The outline further provides that an
election is to be held at the end of each term to
elect new representatives , and provides also that no
employee may serve two consecutive terms. The
final paragraph in this outline sets forth the require-
ments that an employee , to be eligible to serve as a
representative , must have been employed by the
Respondent for at least 18 months . The employees
campaigning for or serving as employee representa-
tives are prohibited from making any promises to
employees.
As announced in the bulletin , the supervisors of
the various units got their employees together in
the meetings provided for, made the announce-
ments , gave the names of employees who were
eligible to be elected as representatives , called for
nominations , and conducted an oral vote . There is
evidence that the representative procedure
operated with some success to bring complaints of
individual employees to a solution.
About 2 weeks after the representatives were
elected , a meeting was called of the elected
representatives in the conference room at the plant.
At the meeting, John Shanks , employment
manager, went through the various steps in the
Respondent 's plan to acquaint the representatives
with their responsibilities , and asked them whether
or not they had any questions . The meeting was
held during working time and it lasted about 45
minutes.
A second meeting of employee representatives
was called about 2 or 3 weeks after the first one.
Employment Manager Shanks and Industrial Rela-
tions Director Shipp were there. The meeting was
held in the conference room during working hours.
The stated purpose of the meeting was to learn how
the employee representative program was working.
The representatives were told that if they felt that
an employee's grievance was not "legitimate" they
should tell the employee not to file it. Albert
Lobato, an employee representative at that time
and a screw machine operator testified that, at this
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting "I brought up the fact that the sulphur and
oil used on screw machines caused dermatitis and
suggested that the operators should have some kind
of protective ointment to put on their hands before
they started working." As a result, the operators
were later given some ointment to use. This matter
dealt with a condition of work affecting more than
one employee.
A third meeting of employee representatives was
held in August 1969, during working time and at
the same place. This one was attended by President
Smith, who asked the opinion of the employee
representatives as to the desirability of holding a
company-sponsored picnic. The representatives
concurred that a picnic would be desirable, and
they proceeded, pursuant to directions of Smith,
who appointed Employment Manager Shanks as a
committee chairman, to select committees. That
day, the Union was distributing literature outside
the plant and Smith asked what was going on. He
said he was not for or against the Union but he
wanted to know why the men wanted a union.
Several of the representatives told him that one of
the reasons was the new wage classification which
contained an overlap of 50 or 60 cents in all clas-
sifications and told him that none of the employees
liked that. Smith explained that this was customary
in all wage classifications. Although this exchange
might not be called collective bargaining, ' it does
constitute a "dealing with," within the meaning of
Section 2(5) of the Act.
At a meeting of employee representatives in
December, according to Smith, he asked the
representatives if they felt it was appropriate to put
their annual floating holiday on the day after
Christmas. Once when the Respondent received an
order for new business, he called the representa-
tives together to notify them. Smith testified that he
told the representatives that he was not there to
negotiate anything but to express the Company's
policy.
I do not question but what the Respondent was
motivated by a desire to eliminate the causes of em-
ployee dissatisfaction in the interest of smoother
operations when it instituted its employee represen-
tation plan. The Union had lost an election and was
not privileged to petition for a new election, under
the Act, for a year. Yet, there were still many union
supporters in the plant and there were still, ap-
parently, grounds for employee dissatisfaction with
employment conditions. Whether or not the
Respondent would have instituted its employee
representative plan had the Union not continued to
be active may not be known, but although I assume
that the Respondent was not using the plan as a
means of eliminating employee dissatisfaction
which might be grist to the Union's mill, I find this
to be immaterial. The Act does not, in Section
8(a)(2), confine itself to situations where an em-
ployer is motivated by union animus . However pure
the employer's motives, therefore, he may violate
the Act if he sets up what is defined as a labor or-
ganization.
The real problem here is not whether or not the
Respondent dominated the employee representa-
tive plan. This can scarcely be argued. The Respon-
dent set up the provisions of the plan, outlined the
organization thereof, and determined its operation.
It decided who could be a representative for what
group of employees, and for what group of em-
ployees, and for what period of time. Although em-
ployees were given a chance to vote, they had to do
so publicly as directed by the plan. It could scarcely
be called a spontaneous employee movement. After
the prescribed election of the representatives, the
latter were guided by the.Respondent as to what
kind of grievances to process and what kind of to
refuse to process. They met only when called
together by the Respondent, during company time,
and on company property. All this adds up to
domination in the formation and administration of
the plan.'
The real issue in this case is whether or not what
the Respondent set up was actually a labor or-
ganization2 within the meaning of the Act. The
Respondent argues strenuously that its representa-
tion plan did not amount to a labor orgganization
or even to a committee, but it does not, in its brief,
discuss the meaining of the word "plan" in the
definition of "labor organization" in Section 2(5)
of the Act. In its brief, the Respondent cites two
decisions as supporting its contention that the plan
was not a labor organization.' I have examined
these decisions and find that they are inapposite.
Whether or not the court's logic in those cases is
sound, neither case dealt with the definition of a
labor organization. Each dealt with an admitted
labor organization. The question involved in each
was whether or not the allegation of domination
was supported by substantial evidence where Sec-
tion 10(b) of the Act had precluded evidence of
the employer's original domination and assistance
at the time the labor organization came into ex-
istence. Without that evidence, all that remained,
the court held, was evidence that the admitted
labor organization was a weak and ineffective one
and that, alone, did not establish domination.
The definition of labor organization in the Act is:
... any organization of any kind, or any agen-
cy 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.
This definition has remained unchanged since its
' Pacemaker Corporation , 120 NLRB 987
6 Modern Plastics Corporation v N.L.R.B, 379 F 2d 201 ( C A 6) and
Federal-Mogul Corp . v. N.L R B., 394 F 2d 915 (C.A. 6).
FTS CORP. 795
first appeared in the Wagner Act. In Senator Wag-
ner's original bill introduced in February 1934 (S.
2926), the words "employee representation com-
mittee or plan" did not appear. In introducing this
bill, Senator Wagner stated: "The bill which I am
introducing today forbids any employer to foster or
participate in or influence any organization which
deals with problems that should be covered by a
genuine labor union."' In the course of extensive
hearings, Edwin E. Witte, a witness, pointed out
that the language of that bill did not cover em-
ployee committees, and he asserted that employee
representation committees were the most prevalent
form of company union. He suggested as an addi-
tion to the definition of "labor organization" given
in S2926 that "This term shall include every plan
for the selection of employee representatives for
purposes of collective bargaining, although there is
no definite organization of employees."' He
further suggested a definition of "employee
representation committee" as "any committee or
group of representatives of employees not a labor
organization, who are elected to confer with the
employer or representatives of the employer con-
cerning grievances, labor disputes, wages, or hours
of employment."9 Although this language was not
adopted in haec verba, its thought was adopted by
Senator Wagner, for in his second bill introduced in
February 1935 (S. 1958), Senator Wagner defined
"labor organization" (except for the later addition
of the final phrase-" or conditions of work") as it
later appeared in the enacted law, as heretofore
quoted.
That Congress did not intend or alter the purpose
of the Wagner Act, insofar as the problem in this
case is concerned, is evident from the failure of
Congress to amend the language of the definition of
"labor organization" in any later amendment to the
Wagner Act. The word "plan" in Section 2(5) of
the Act was used with a purpose and cannot be
ignored in favor of other examples of labor or-
ganizations, and it is broad enough to cover the
type of employee representation se up by the
Respondent in this instance, regardless of the
Respondent's careful avoidance of the word "com-
mittee." The use of the disjunctive in the statutory
words "committee or plan" makes it plain that the
existence of a committee is not an essential factor.
The Respondent, however, also argues that it did
not negotiate concerning wages or any agreement
and that this prevented the plan from being a labor
organization within the meaning of the Act. Again,
it will be noticed that the language of Section 2(5),
the definition of labor organization, is in the
disjunctive as to its purposes also. It covers any
plan in which employees participate (as they did
here) which exists for the purpose, in whole or in
part, of dealing with employers concerning "greiv-
ances of" (not "and") certain other matters
not necessarily involved here. It cannot be denied
that the Respondent's plan was set up for the pur-
pose of dealing with grievances. That is spelled out
in President Smith's written outline of the plan.
Since it is a plan in which employees participate
and which is for the purpose of enabling them to
deal with the Respondent concerning grievances,
this would constitute it a labor organization. 10 One
circuit court of appeals has expressed the view that
a plan to deal only with the individual grievances is
not within the definition of the Act.l With this I
cannot agree, because not only does it disregard the
history of the Act but it also overlooks the fact that
the settlement of individual grievances in many
cases establishes a precedent or a rule governing
hours, rates of pay, or other conditions of work or
employment of other employees. This is evident in
two of the grievances testified to having been set-
tled under the Respondent's plan. In one instance,
an employee, through his representative, carried to
the fourth step a grievance under the Respondent's
new classification and rate schedule. The grievant
had gone through a training school and had
received top honors. He had been doing setup
work, but he was classified as an A-operator and
was not even being paid the top rate. He claimed he
should be getting either setup man's pay or top rate
in the A-operator's bracket . His claim for higher
pay was granted. Since this grievance would involve
an interpretation of the classification and rate
schedule, the settlement of this grievance could
have affected the rights of others. Another em-
ployee, through his representative, carried to the
second step a grievance that the grievant, based on
seniority, should be assigned, in preference to a ju-
nior employee, to a machine which was being used
for overtime work. Again, the settlement of the
grievance in his favor could establish a rule based
on seniority and thus could have affected the rights
of other employees. -
It appears, however, although this was not spelled
out in the plan, that the Respondent was utilizing
the employee representatives not merely as
representatives of individual employees on in-
dividual grievances but also, when they were sum-
moned by the Respondent to a meeting, to act as a
conduit to discuss matters of interest to employees
generally. The Respondent demonstrated concern
with any situation that gave rise to dissatisfaction
with terms or conditions of work. In calling the em-
ployee representatives together on repeated occa-
sions to learn about such complaints or dissatisfac-
tion, the Respondent was utilizing the assembeled
representatives as an advisory committee concern-
ing employees' work problems, rates of pay, vaca-
tion, and other conditions of work. It once asked
the group's opinion of setting a floating holiday as
'Legislative History of the National Labor Relations Act 1935 ° Ibid
(published by the National Labor Relations Board, 1949), p 16 Thompson Ramo Wooldridge, Inc, 132 NLRB 993
° Id. at 272 "NLRB v Associated Machines, Inc , 219 F 2d 433 (C A. 6)
796 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day after Christmas. The absence of any bar-
gaining in the usual sense of the word is immateri-
al12
The Respondent calls attention to the fact that
employees , in presenting their grievances, may do
so individually , and need not use an employee
representative. This fact, however, does not prevent
the plan from being a labor organization . 13 Even
where employees are represented by an un-
dominated labor organization , Section 9 ( a) of the
Act gives them the right to present their grievances
individually at their option.''
I find, therefore, that the Respondent dominated
the formation and administration of a labor or-
ganization within the meaning of the Act. I find,
also that Respondent contributed to the support of
the plan , since it paid individual representatives at
their hourly rate of pay while working both on in-
dividual grievances and while attending meetings of
representatives called by management , and also
because the Respondent furnished the place of the
meetings.15
C. Discrimination
1. Martin Sutton's employment history
Martin Sutton was hired by the Respondent as an
inspector on the night shift on January 3, 1968. He
continued on the night shift until March 1969. Sut-
ton took an active part in the Union's campaign
starting in December 1968. While on the night
shift, Sutton wore a union patch on his coveralls
and carried union pencil clips. Night Superinten-
dent Mihely Szabo saw union literature in Sutton's
toolbox, and the Respondent knew that Sutton was
an active union man. Sutton was often away from
his work station during breaks or at times when he
claimed he needed to get a gauge checked or
wanted to step out for a breath of fresh air or for
some other reason. According to Szabo, he
received calls from foreman in other departments
reporting that Sutton was in another department
bothering employees there. Fazekas, at that time
assistant machine shop supervisor, once saw Sutton
in Fazekas' department, away from Sutton's as-
signed place of work. Fazekas testified that Sutton
had come there ". . . early before the shift started
and bothered my people." Fazekas told Sutton to
leave. In this instance, the objection appeared to be
to Sutton's presence at all, even before shift time.
After Szabo had observed or heard through
foremen of Sutton's peregrinations during the
period before the election, he had given Sutton in-
structions not to leave the forge shop, where he was
stationed, without the permission of his immediate
supervisor, Foreman Cliff Bowles, even during his
lunch period or coffeebreaks. This did not mean
that Sutton was denied permission to leave for
proper purposes but only that Szabo wanted Sut-
ton s foreman always to know where Sutton was
and why. The Respondent brought out the fact that
Sutton was the only inspector at that place and it
was important that he should not absent himself at
will.
Szabo testified that, following this instruction,
Sutton continued to wander and so he went to In-
dustrial Relations Director Shipp to ask advice.
Shipp suggested that Szabo give Sutton a written
warning. Szabo, whose English was not proficient,
requested Shipp to write up the written warning.
The following warning was then prepared on Janua-
ry 21, 1969, and was given to Sutton by Szabo:
Employee has continued to repeatedly wander
around the plant into areas where his duties
have no concern. He has been verbally warned
several times about bothering other employees
during working hours. One more violation of
this policy will result in termination.
Sutton s igned this written warning in the space for
the employee's signature.
The General Counsel argues that Szabo's con-
finement of Sutton was a clear attempt to curtail
Sutton 's union activities . But Sutton never admitted
that he was visiting other departments on union
business. Sutton indicated that he had legitimate
business reasons when he went to other depart-
ments. I find it more difficult than it appears to the
General Counsel to infer that Szabo's limitations on
Sutton's movements were motivated by desire only
to keep Sutton from engaging in union activity.
Although such an inference might be drawn in the
instance involving Fazekas, I find the evidence in-
sufficient to warrant such an inference from
Szabo's actions.
Once, in February or March 1969,16 when Sutton
was in the restroom, Sutton testified, he was asked
by a new employee who was selling magazines if
Sutton wanted to buy any. Sutton, saying that he
read a great deal, took the magazines and looked
through them. While he was doing so, Foreman
Bowles saw him but said nothing. However, when
Sutton returned to the machines on which he was
an inspector, he discovered that his logsheets were
missing . Logsheets show the result of periodic in-
spections. He continued his inspections , using a
plain piece of paper. Later Bowles took Sutton to
Szabo s office. Wayne Wendell, the chief inspector,
was there, and Bowles told Wendell to get rid of
Sutton, that he did not want him around any more.
When Wendell asked why, Bowles said that Sutton
spent all his time in restrooms reading and did not
'2 N L.R B v Cabot Carbon Company, 360 US 203, Indiana Metal
Products Corp. v N L R B , 202 F 2d 613 (C A 7), Sea Life Incorporated,
175 NLRB 982, Pruden Products Co, 170 NLRB 193, Hammond Organ
Company, 149 NLRB 997, Certain - Teed Products Corporation , 147 NLRB
1517
"NLRB v Thompson Ramo Woolridge , Inc , 305 F 2d 807 (C A 7)
14 Reed Rolled Thread Die Co , 179 NLRB 56 , St Joseph Lead Company,
171 NLRB 541
United States Railway Equipment Company, 172 NLRB No 51.
18 Sutton put the date as in April 1969 , but he was on the day shift by that
time, and this incident involved his night supervisor , so I infer that it was in
February or March
FTS CORP. 797
keep up his logs. Sutton testified that he had been
gone from his machines for 10 minutes altogether
and that during that time he had made an inspec-
tion, in the course of his duties, of the thermostats
on the ovens. After hearing Sutton's explanation,
Wendell transferred Sutton to the day shift. While
in Szabo's office, Sutton saw his original logsheets
there.
Despite all the evidence about Sutton 's wander-
ing, during his period on the night shift, the only su-
pervisor called to testify that he had actually seen
Sutton disturbing other employees in their work
was Fazekas , and since Fazekas had indicated that
this incident had happened before the start of the
shift, there is no actual proof that Sutton had inter-
fered with the production of other employess. Nor
is there any direct evidence that Sutton had failed,
on the night shift , to perform his assigned duties.
Even in the case where Bowles had removed Sut-
ton's logsheets , the evidence does not clearly show
that Sutton had failed to make the periodic inspec-
tions required before the removal of those
logsheets . However , there is at least some evidence
to raise a question concerning this . Sutton's ten-
dency to leave his department whenever he chose
to do so could raise apprehensions that Sutton
would not be on duty when he should be. On all the
evidence , I hesitate to conclude that Respondent's
supervisors ( Bowles and Szabo ) were necessarily
motivated by antiunion considerations in their
treatment of Sutton.
I have heretofore related Sutton 's conversation
with Foreman Steward after he was transferred to
the day shift . Later , during the same month , Sutton
heard that an employee who had been hired a day
ahead of Sutton had received a raise in pay. Sutton
went to Steward and said that he had heard that
this employee had received a raise and asked, "why
not me?" Sutton testified that Steward had replied,
"Marty , they would laugh at me in the front office
if I tried to put you in for a raise . There is no sense
for me trying to put you in for a raise for at least six
months.... Things have got to settle down for at
least six months . They would never give you a
raise ." Steward admitted that he had had a couple
of conversations with Sutton about a raise and that
he had refused , but he attributed his refusal to Sut-
ton's record , which was known to the men who
would have to consider his recommendation of a
raise. He testified that he told Sutton "what areas I
thought he was weak in as far as utilizing time...."
Steward testified that he had cautioned Sutton
about being out of work areas, "standing talking to
operators , with his foot on a box ," and he testified
that this was not on a coffeebreak.
Steward testified that another supervisor by the
name of Young had told him that Sutton had been
stopping in his area for a coffeebreak and had then
had another one in the coffeebreak room, and that
Young had asked Steward if he was aware of it.
Steward testified that a day or two later he had
noticed Sutton in Young's area at 9 : 30 a.m. when
that area took its break . At or about 9:45 a.m. on
the same day , Steward testified , he had seen Sutton
sitting in the coffeebreak room having another cup
of coffee . Steward summoned Sutton from the
room and told him that he had seen him at 9:30
having a coffeebreak in the fin blade line and had
asked for an explanation . Steward could not re-
member Sutton 's reply . He could remember only
that Sutton had "acted like he had been caught."
Sutton conceded that Steward had cautioned him
about taking too long a coffeebreak , but testified it
was a caution delivered to all the inspectors. About
the occasion when he was found by Steward in the
coffeebreak room , Sutton testified that he had left
his job 5 minutes late, after the break had begun,
because he was finishing a job and that he had run
his break 5 minutes over into the next break period.
Coffeebreaks were for 10 minutes . Without see-
ing what went on from day to day, I feel unable to
determine how strict the Respondent was in limit-
ing the duration of the coffeebreaks to 10 minutes.
I am inclined to infer that other employees would
stretch their coffeebreaks past the 10 minutes al-
lowed and that Sutton was not the only exception.
Whether or not he was worse than the others is a
problem posed in the long coffeebreak incident re-
lated hereinafter.
On May 23, 1969 , Sutton was assigned to inspect
manufactured parts on a line of eight or more
machines . The normal time to make the inspection
round was about 2 hours . For the whole day, one
machine, which was performing a different opera-
tion on the same part, was having mechanical trou-
ble keeping in tolerance , and it was necessary for
the production man to shut the machine down and
pull the head . Each time the machine was started
up again Sutton had to make a first-piece inspec-
tion , which took 10 to 15 minutes. This interrupted
his regular inspection of parts coming off the other
machines . Sutton testified that he spent the better
part of his time that day on the machine which was
down periodically , and, as a result , he was falling
behind on his inspection on the other machines. He
testified that he called this to the attention of
Steward and Gene Kiernan , a leadman under
Steward, separately , and that each had told him to
do the best he could. Kiernan verified that Sutton
had so informed him and he testified that he had
helped Sutton in the morning . Later-the time of
the day was not fixed-the chief inspector, Dan
Collins , was informed by George Brown, manager
of quality control and Collins ' superior , that Sut-
ton's logsheets showed that he had missed some in-
spections . Collins called Sutton into his office and
asked why he was not fulfilling his cycle . Sutton
told Collins of the problem on the one machine
which was down periodically during the day. Col-
lins asked why Sutton had not informed him or
Steward so that they could pull someone off
another area that was less critical in order to sup-
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plement him . Collins testified that he could not re-
call Sutton 's reply . Sutton testified , however, that
he had told Collins that he had informed Steward
and Kiernan of his difficulties.
Steward , on the other hand , testified that Collins
had called him in and told him that it had been re-
ported to him that there had been missed inspec-
tions on one of the Barnes machines and asked him
to check into it. Steward thought that this was
about 4 p .m. He testified that he went and checked
it the log himself, saw that the operator had checked
it but not the inspector , had then asked Sutton for
an explanation , and Sutton had said he was tied up
on the broaches . Steward asked Sutton if he had
notified Kiernan . According to Steward , Sutton
replied that he had not attempted to notify either
Kiernan or Steward . This testimony is at variance
not only with Sutton 's testimony but possibly also
with Kiernan 's if the question put by Steward to
Sutton was meant to cover the whole day. How-
ever , the question might have been asked and been
understood to refer only to the afternoon when the
missed inspection had occurred , if that was the
case. Neither Collins nor Sutton mentioned the
facts related above as testified to by Steward. The
logs, themselves , were not produced at the hear-
ing.
Following Steward 's conversation with Collins,
the latter prepared a written notice of a week's
layoff and called Sutton to his office to read and
sign it . This notice reads:
The employee was instructed by his supervisor
to inspect Parts Produced at the Barnes
Machine at least a minimum of once every in-
spection tour . Accomplishment of this tour
requires about 2 hours . Therefore at least three
inspection of Parts at this Location were
missed from about 08:30 to 16:00. Employee
admitted to his supervision that inspections
were missed , & the missing of inspections was
further verified because no entries of inspec-
tion were made on the inspection Log sheet.
This employee Normally Makes these entries
upon inspection of Parts.
Sutton refused to sign in the space for the em-
ployee's signature on the form . He testified that he
had not missed as many inspections as shown and
that , in cases where the machines were producing
uniformly well, he had used ditto marks instead of
writing in each instance the same entry, implying
that Collins had failed to count these marks. (Col-
lins was not asked about this .) Sutton did not, how-
ever, testify as to how many inspections he had, in
fact , missed.
" A heavy sampling ( 600 pieces ) of the parts from the machine on which
there was at least one missed inspection was made, checked , and found ac-
ceptable On examination by Respondent 's counsel, Steward testified that
the sample could have included some that Sutton had checked The
number selected for check constituted 1 hour 's production The evidence
is not clear as to who made the inspection or if Sutton was one of the in-
spectors who did it
Although the parts being produced on the Barnes
machines were important parts , made to exacting
specifications , Collins conceded the operators
themselves are responsible for maintaining correct
tolerances and that none of the parts which had
been run that day were rejected ." He testified
merely that it could have happened that parts
would not have passed inspection. Collins also con-
ceded that this was the only time he knew of were
Sutton or any inspector had been tied up so much
on one machine that he would miss a regular in-
spection tour , but he testified that because of the
importance of the particular parts being produced
he had decided to give Sutton a 1-week layoff in-
stead of a mere verbal warning.18
This layoff was not contended by the General
Counsel to be discriminatory . However , because it
was on Sutton 's record, it was used , in part, in
deciding upon the longer layoff of Sutton in July,
which layoff the complaint ( calling it a discharge)
alleged to be discriminatory . Collins' testimony that
he did not remember Sutton 's informing him that
he had told Steward and Kiernan that he was falling
behind conceivably could be a convenient lapse of
memory of a fact which might place some of the
fault on Sutton 's supervisors . It could be that
Brown was not informed of all the facts by Collins
and that Collins had given Sutton the layoff
because Brown had expected him to and because
Collins had to make a choice of putting the blame
on his supervisory employees or on Sutton and that
he had made that choice at Sutton 's expense. On
the other hand, the evidence does not show that
Kiernan or Steward knew that Sutton still needed
help in the afternoon . It might have been Sutton's
failure to request help in the afternoon that Collins
felt was the conduct for which Sutton was to blame.
The record is not as clear on this as it might have
been . But whatever the true facts , since Sutton's
layoff of 1 week was not alleged to be discriminato-
ry, it is not my function to pass on the fairness of
the penalty in that instance.
For about 2 months after his week's layoff, Sut-
ton worked without any serious incident, although
it may be that Steward 's reproval of Sutton for tak-
ing a split coffeebreak fell into this period . On July
25, 1969 , Sutton was performing a job called
preplate inspection . On a table in front of him he
would place 25 manufactured pieces which he
would select from a batch of 600 pieces which was
rolled up in a box resting on a carrier frame or cart.
He would then run the 25 parts through various
gauges and, if they were approved , he would so
note on a log, put the pieces back in the box, roll
18 Another employee (M. L Smith , a maintenance mechanic) was given
a 3-day suspension starting on February 10, 1969, "for negligence of
specified duties and direct violation of his supervisor 's instructions which
could have resulted in serious property damage." No other circumstances
of Smith 's case were show , so it cannot be inferred that he had also
received a poor written warning The disparity in length of the suspensions
raises a suspicion of possible discrimination but it does not establish it
FTS CORP.
the box to the aisle , and take the next box . Inspec-
tors customarily stand to perform this work but,
because Sutton had injured his knees in some kind
of sport, Steward had permitted Sutton to do his in-
spection work sitting on a stool . As Sutton , himself,
testified, however, when he had asked Steward's
permission to sit , Steward had approved "as long as
I didn't get caught by the wrong people or didn't sit
there all the time . . . if I sat there like I was asleep,
this would be bad."
The weld shop where Sutton's table was located
gave its employees a coffeebreak at 9 a . m. and Sut-
ton testified that he took his at the same time
although he did not have to take it then . The coffee
machine was across the room by Steward 's office.
On that day, July 25, Sutton got his coffee and took
it back to his table. When he reached the table, a
machine operator whom Sutton described as a
friend , was sitting on Sutton 's stool , so Sutton sat
on the table. This friend finished his coffee and
returned to his job about 9:10 a.m. Sutton testified
that he then resumed sitting on his stool and started
measuring the pieces which he had laid out for in-
spection before he had gone for his coffee. But this
testimony was contradicted by Steward. When the
operator had left, an inspector named Suvada, who
had just started a coffeebreak , came and sat on Sut-
ton's table . The evidence is somewhat at variance
as to the position of the two men. According to
Steward, Sutton sat on the table throughout the
period of about 30-35 minutes with his foot on the
stool. This would put Sutton on the side of the table
nearest to Steward , since that was where the stool
was. Steward testified that Sutton was facing in the
direction where he was and that Suvado was also
facing in this direction. This is not easy to envision,
because it would place the two coffee drinkers on
opposite sides of the table, each presumably with
one leg off the table. This position would place the
men in a position where it would be difficult to look
at each other . Be that as it may , Suvada remained
until about 9:25 or 9:30 a.m. and might have
remained longer if he had not been interrupted by
Steward.
Meanwhile , according to Marion Snyder, the
quality control manager , he had passed Sutton's
post at 8:55 a.m. Synder testified that Sutton was
then on his table having coffee and doughnuts. Ac-
cording to Snyder , he, himself, was on his way to
the quality assurance area to look at some parts. As
best I can determine , if Sutton had been sitting on
his stool facing the table, he would have been fac-
ing north and Snyder would have been to the
southwest of Sutton with an approximate 45-degree
rear view of Sutton . However, if Sutton was sitting
on the table, he could have been facing west in the
general direction of Snyder . Steward , having been
summoned by Snyder , joined Snyder at the quality
assurance area at 9:10 a.m. According to Snyder,
Sutton was at that time still sitting on the table and
was facing Snyder, who was about 50 feet away.
Snyder asked Steward how long inspectors got for a
799
coffeebreak . When Steward told him 10 minutes,
Snyder commented that Sutton had already had 15
minutes . I deduce that Steward started to go over to
speak to Sutton in order to get him back to work
but that Snyder had detained him, not only because
this was quoted by Sutton as something that
Steward had told him but because Snyder, himself,
testified that he had told Steward, "Wait here. We
will finish what we are doing ," and that when they
were through at 9:30 a .m. he had told Steward to
go "break this up," and take appropriate disciplina-
ry action. Steward quoted himself as saying, "I
think I'd better go break it up," but he placed the
time when he said this as at 9:30 a.m. I am of the
opinion that this remark of Steward was made when
Snyder had called his attention to Sutton and Su-
vada and that that was when Snyder had detained
him by telling him to "wait here."
At 9:25 a.m., according to Sutton (9:30 a.m., ac-
cording to Steward), Steward, accompanied by his
leadman, Joe DiNapoli, came to Sutton's table and
began to berate him and Suvada. According to Sut-
ton, Steward told them that Snyder had made him
stand "on the other side of that wall" (the quality
assurance area was behind a 4- or 4-1/2 foot high
screen) and watch Sutton and Suvada, that he
(Steward) had tried to catch their eye but that
neither one would look in his direction. According
to Sutton, Steward said he had been chewed out,
presumably by Snyder. Steward denied having tried
to signal Suvada or Sutton. He testified that he had
told Sutton that he had taken a 30-minute cof-
feebreak and that Suvada had taken a 20-minute
break, that he had asked Suvada if they were talk-
ing about business and that Suvada had replied that
they were not. Sutton testified that Suvada
protested that he had not taken a 20-minute break
but had admitted that it might have been 15
minutes . Sutton also testified that he had told
Steward that he had inspected the parts while he
was conversing with Suvada. It is not too clear on
all the evidence whether Sutton told this to Steward
at this time or later . In any event , Steward told him
that that was not the way it looked to him-that it
looked to him as if Sutton were merely twirling a
part with one hand. Neither Suvada nor DiNapoli
was called as a witness. As a result of Snyder's
request that Steward made a report to him, Steward
went to Snyder's office. Snyder told Steward to give
each of the men a written reprimand.
Later, Steward called Sutton and Suvada,
separately into his office and handed each a written
reprimand. Sutton's reprimand read:
Employee was observed by department
manager and immediate supervisors taking a
thirty minute coffee break on the morning of
7-25-69. As stated in Employee Hand Book
coffee breaks are ten minutes. This occurence
[sic] is being forwarded to the Personel [sic]
Dept.'for further action.
This warning was introduced in evidence, and it
shows the signatures of Snyder, Steward, and Sut-
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ton. Sutton testified that he had refused to sign this
until Steward had, in effect, threatened him with
termination if he did not sign . Steward denied that
he had said any such thing. I credit Steward's deni-
al. I note that no one made Sutton sign the slip he
had previously received for 1-week layoff on May
23, 1969, and , since disciplinary action was taken
nevertheless, I do not believe that the employee's
signature was so indispensible that Steward would
threaten Sutton in order to induce him to sign. The
evidence of disciplinary slips given other employees
also shows action taken despite lack of the em-
ployee's signature . The fact that an employee signs
may, I deduce, be taken to signify acceptance of
the facts stated as correct. Otherwise, if his signa-
ture meant merely that he acknowledged seeing it, I
see no reason for Sutton's refusal to sign the May
23 notice.
Sutton testified that when Steward had told him
he looked like he was just twirling the parts around,
he had told Steward that he could not have seen the
parts from where Steward was, presumably intiinat-
ing that he , himself, or the box on the cart was
between Steward and the table on which the parts
lay and obscured the table surface. But Steward
was not convinced. Steward testified that he had
had a clear view for the full time and that the box
was on the other end of the table where it would
not have obscured his view. Sutton, at another
point, testified that he had told Steward that he had
laid the parts out before the break, that it takes
about 15 minutes to complete the full sample, and
that he had them all done. Steward, in his account,
did not mention any such conversation as this. If it
occurred, however, I believe that it must have oc-
curred in Steward's office and not at Sutton's table,
because, if it had taken place at the table, it seems
likely that Steward would have looked at Sutton's
logsheet; but he did not do so. Whether or not it
would have been too late to check the logsheet
later and thus check Sutton's claim after Steward
had had Sutton in his office, I cannot determine. I
infer, however, that, in any event, Steward
preferred to believe his own eyes and that he was
not convinced that Sutton had been working.
After telling Steward to give Sutton and Suvada
written reprimands, Snyder talked with Jack Shipp,
manager of industrial relations , and recommended
Sutton's discharge. Shipp testified that the matter
was then discussed with Vice President Grady Gill
and finally with Respondent' s legal counsel, Leo
Colowick. Following this , Shipp testified, it was de-
cided, rather than terminating Sutton, they would
give him a 30-day suspension. Shipp testified that
the reduction in penalty was influenced by Respon-
dent's awareness of Sutton's union activities and an
anticipation of legal consequences. Thirty days is
'H The slip which would show the personnel action was not produced, so
it is impossible to verify the date
Y0 Because the institution of the Respondent's grievance plan could have
the longest suspension ever given by the Respon-
dent. The next longest was 7 days.
At or about 4:20 p.m. on the following Monday,
July 28,19 according to Sutton, Steward summoned
Sutton to his office and took him to Shipp's office.
According to Sutton, the office was empty when
they entered. When Shipp arrived, Sutton testified,
Shipp had asked Steward if he had told Sutton
about his suspension, that Steward had looked at
Shipp and said, "No," that Shipp had then left the
room for about 5 minutes, that while Shipp was
gone, Steward had remarked to Sutton that he had
not known about any suspension. When Shipp
returned, he had a written suspension slip which he
had Steward sign . Sutton asked for a copy but was
denied one by Shipp, who told him it would be in
his personnel file. Shipp told Sutton he could sign it
or not-that it did not make any difference. Sutton
presumably did not sign but left, and Steward
clocked him out.
There was some question about whether the 30-
day suspension meant 30 working days or 30 calen-
dar days. However, the Respondent attempted un-
successfully to reach Sutton by telephone on Sep-
tember 8, 1969, and then sent him two telegrams,
one on September 10 (which was not delivered)
and another dated September 12 (which was
delivered) offering Sutton substantially equivalent
employment, which Sutton refused.
2. Conclusions regarding Sutton's suspension
A determination of whether or not Sutton's
suspension was discriminatory depends largely on
what inferences should be,drawn from the known
facts and from other facts inferred. That Sutton was
an active union supporter and that this was known
to .the Respondent is conceded. It is also apparent
that Sutton had violated or was believed by the
Respondent to have violated rules or had acted in a
way which could subject him to criticism. Although
the Respondent had not, during the Union's cam-
paign or thereafter, engaged in any flagrant antiu-
nion conduct,20 it is fairly inferable that the con-
tinuation of union activity following the date of the
election was a source of irritation to the Respon-
dent. The weight to be given Fazekas' statement
that management knew who the union supporters
were and that they would get rid of them is a matter
upon which there could be a difference of opinion.
Fazekas was not involved in the circumstances that
resulted in Sutton's supervision, and at the time
that Fazekas made that statement, he was not high
on the management scale. But he was in a position
to associate with management people and he could
have been parroting what he had heard rather than
merely expressing a personal attitude. Before decid-
been motivated by a desire to improve the lot of its employees, I cannot
consider this , even though a violation of the Act, to be flagrant antiunion
conduct
FTS CORP.
ing the weight to give to this, however , I deem it ad-
visable to look at other facets of the picture.
There is no rule in the employees ' handbook
which restricts employees to their work area, and
yet Sutton apparently was so restricted by Szabo.
Even without a written rule , however , it may be ac-
cepted as understood that working time is for work
and that when one employee is on his free time-
lunch or coffeebreak-he should not detract the at-
tention of other employees from their work. But at
Respondent 's plant some employees , such as opera-
tors of automatic machines, do not constantly use
their hands in working . Once their machines are
operating , they often engage with nearby operators,
with inspectors, or even with supervisors in small
talk. The restraint placed on employees who are on
their own time from going to other departments
(which itself is not in violation of any rule ) and en-
gaging in conversation with employees there might
better be limited to situations where actually or
potentially such talking would interfere with
production . It is obvious that Fazekas did not limit
himself to such a test in sending Sutton back to his
own department on the occasion hereinbefore re-
lated . And in the first written warning given Sutton
(January 21, 1969), the criticism was that the "em-
ployee has continued to repeatedly wander around
the plant into areas where his job duties have no
concern ." It was not stated whether or not he had
done this during his nonworking time and it was not
stated specifically that he had interfered with
production of other employees on the day when
this warning was given . It is merely suggested by the
added statement that on other occasions Sutton had
been verbally warned "about bothering other em-
ployees during working hours ." It was not even
stated in this warning slip that the "bothering" had
been keeping other employees from performing
their duties. Yet this warning was a black mark on
Sutton 's record which was apparently used to give
him more severe penalties thereafter.
Coming now to the incident leading to Sutton's
30-day suspension, I have concluded either that
Sutton was idle for a period of 30 minutes or that
he gave that appearance , an appearance he had
been cautioned by Steward not to give . But for one
factor, the case might appear to have been routine
disciplinary action , and that is the fact that Snyder
had detained Steward , who would have broken up
the conversation between Sutton and Suvada and
set the men to work . Snyder's attitude appeared to
be to let Sutton hang himself, in effect , and then
seek his discharge . The General Counsel argues
that this is evidence of a discriminatory motive.
Although I deem it possible that Snyder was trying
to get rid of Sutton because he was a union man,
there is an equally logical explanation for Snyder's
conduct , and that was a desire to determine
whether Sutton had any self-discipline or whether
801
he always had to be driven. Granted that this con-
duct of Snyder , along with the other evidence
which I have attempted to relate as favorably as I
felt I could to Sutton , raises a suspicion that the
Respondent would not have penalized him so heavi-
ly absent a desire on the Respondent 's part to rid it-
self of an active union man ( which a 30-day suspen-
sion was likely to, and did, do), I am unable to con-
clude that Sutton's union activity motivated the
Respondent to suspend him, especially since Sutton
had previously been verbally warned about taking
too long a coffeebreak and had had other warnings
or disciplinary action shown on his record. As the
court said in N.L.R.B. v. Park Edge Sheridan Meats,
Inc., 341 F.2d 725 (C.A. 2):
... if an employee is discharged for neglect or
delinquency , there is no violation [ of the Act]
simply because he was engaged in organizing
and the employer sheds no tears at his loss....
The General Counsel must at least provide a
reasonable basis for inferring that the permissi-
ble ground alone would not have led to the
discharge , so that it was partially motivated by
an impermissible one.21
Has the General Counsel met that burden by
showing, in addition to Snyder 's conduct, that a su-
pervisor of the Respondent ( Fazekas ) had said that
he looked upon union advocates as troublemakers
whom he would like to discharge but could not do
so all at once because it might bring the Union
back in, but he would "more or less" (as Marshall
put it, showing his uncertainty of the exact words)
make it hard on them until they quit or could be
gotten rid of? To me this merely adds fuel to suspi-
cion but does not show that other supervisors
would make it hard on union men , harder than on
nonunion men, especially since the Respondent's
president had, in effect , told the supervisors not to
do so. And I find no evidence that Steward had
been harder on Sutton than on other employees.
The evidence warrants an inference that had
Snyder not taken the initiative in attempting to get
Sutton discharged , Steward would probably have
gone no further than to issue a written warning
notice. But neither does this evidence adequately
establish that Snyder was motivated , even in part,
by antiunion sentiments, in recommending Sutton's
discharge . Higher management officials, having less
personal contact with employees, are less likely to
be as empathic toward individual employees as are
the immediate supervisors who work with the em-
ployees on a daily basis. Furthermore , the upper
level of management is conscious of the policy
desired to be maintained and may be viewing the
individual case as one in a field, wherein a failure to
discipline could affect the overall policy . Barring a
showing, therefore , that Snyder or the Respondent
generally had theretofore differentiated between
union and nonunion sympathizers in such cases, the
41 See also Associated Retailers' Suburban Delivery Company, 181 NLRB
456, Astro Container Co , 1 80 NLRB 815
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, I find, is not sufficiently substantial to
make out a case of discrimination by the Respon-
dent against Sutton.
3. The discharges of Boyd and Leonard
a. History of Boyd's employment
The Respondent conceded in its opening state-
ment that it was aware of the fact that Ottis
(pronounced Otis ) Boyd and Ralph Leonard as well
as Sutton were union adherents or were interested
in union activity.
Boyd was hired by the Respondent in May 1968.
In the fall of 1968 , his leadman noticed Boyd away
from his station socializing and sent him back to his
station , but, during his term of employment, Boyd
received no written warnings . For a time prior to
August 18, 1969, Boyd had been an inspector in
the fin blade area inspecting the work on milling
machines . On or about August 18, 1969 , because
another inspector had quit, Boyd was transferred to
the machine shop inspecting the work on the screw
machines . These machines were not far from the
Kingsbury machines on which Leonard was work-
ing. A few days after Boyd's transfer , there began
to be rumors among employees about a walkout to
take place on Wednesday, August 27 , at 4 p.m.
Early in the morning of August 26 , Boyd and
Leonard engaged in a conversation in which the
possible walkout and the percentage of employees
it would take to possible walkout and the percent-
age of employees it would take to make it effective
were discussed . This conversation was overheard by
at least one other inspector , and, according to
Leonard , by two operators . Later in the morning, at
coffeebreak time , Boyd and Leonard engaged in
another conversation in which Leonard asked Boyd
why the latter had not been at the union meeting
the night before. Leonard told Boyd that , at that
meeting , the employees had been told that the
Union would not back such a walkout and that the
employees could lose their jobs if they walked out
at 4 p . m., half an hour early , as they had planned.22
These finding are based on Leonard 's testimony.
Boyd appeared to avoid any reference to the sub-
ject matter of his conversation with Leonard in his
testimony.
When Boyd had been transferred from the fin
blade area to the screw machines in a different
building on August 18, Kiernan , his inspection su-
pervisor , had told him to leave his toolbox where it
was in the fin blade area until it was determined
how Boyd would make out on the screw machines,
and Boyd had done so . The only thing Boyd needed
from his toolbox while inspecting on the screw
n Neither the reason for the proposed Walkout nor the basis for the
Union's advice was revealed. Counsel, for whatever reason , chose not to
ask questions about it Because of the timing of the walkout, it could be
that it might have had something to do with Sutton or his possible reinstate-
ment Some hearsay evidence suggested that it was an attempt to force
recognition of the Union There are at least two possible bases for the
machines , Boyd testified, were his verniers, i.e.
calipers (mispelled Verneers in the record), which
he usually picked up in the morning after punching
the timeclock. Boyd was under the impression that
starting time on the day of his discharge was 6 a.m.,
but it was established at the hearing that starting
time on August 26, 1969, the day of Boyd's
discharge, was 7 a.m. On that morning, Boyd
testified, he did not pick up his verniers until about
8:30 a.m. "because I went and checked with the
other [night] inspector." Later he fixed the time he
went to pick up his verniers as 7 or 7:30 a.m. The
latter time was fixed on the basis of Boyd's assump-
tion that he had started at 6 a.m. Boyd's estimates
of time were obviously not reliable. It would be un-
likely that Boyd would be detained for 2-1/2 hours
or even for 1 hour while checking with the other in-
spector, even if that incident had taken place. Boyd
testified on cross-examination that he had talked
with the night inspector for one-half hour. How-
ever, the Respondent's evidence disclosed that the
Respondent on August 26, 1969, was operating on
two 9-hour shifts and that the night shift finished at
2 a.m. I conclude, therefore, that Boyd did not
speak with the night inspector at all.
As Boyd related it, when he went to the fin blade
area to get his verniers from his toolbox, "two
Spanish fellows" came to him (inferentially leaving
their machines) and asked him if he had heard
anything about the walkout. He testified, "I told
them exactly what I heard.... That there was going
to be a walkout ... Wednesday at four o'clock."
Boyd testified that this conversation has lasted
about 5 minutes and that about 10 minutes later
(after the conversation or after he left to get his
verniers is not clear) he returned to his job of in-
specting on the screw machine line but was soon
told by Kiernan to go to Steward's office, that,
when he and Kiernan reached there, Steward had
told him that rumors were going around that Boyd
had been talking about the Union, that Steward had
asked if he liked working there and, when he said
he did, that Steward had told him to "shut my god-
damned mouth about the union" and, further, had
said, "Go back out there and cool it. You will be
watched, but it will blow over." Boyd estimated
that he was with Steward for about 20 minutes, that
he then went back to the screw machines but ap-
parently had not gotten back to work when he was
paged over the loudspeaker to come to the office of
John Shanks, employment manager , and that he
had arrived there at 10 a.m.
Steward had already arrived when Boyd got
there. Steward took Boyd to an office where Shipp
and Snyder were. Boyd quoted Shipp as saying that
there had been rumors that Boyd had been going
Union 's advice that the employees might lose their jobs One is a Colorado
law which makes it an unfair labor practice for an employee to take part in
a strike which had not been voted by secret ballot by a majority of the em-
ployees, the other is that the Union might have believed that the walkout,
for the cause relied on, would not be a protected, concerted activity under
the Act.
FTS
around to different buildings talking about the walk-
out that was going to occur and asking why Boyd
was in the other buildings-the weld shop and the
fin blade area . Boyd testified that he had told Shipp
that he had had business in the weld shop, but
although he testified that that was where Steward's
office was and where the blueprints were kept, and
that that was where he punched in, he did not testi-
fy that he had gone to the weld shop for any
purpose except to punch in that morning. He
testified that from the weld shop he had gone to the
fin blade area where he kept his tools. According to
Boyd, Shipp asked him what he knew about the
walkout and that he had said , "Only what I heard
from two fellows on the screw machine lines that
there was going to be a walkout at four o'clock
Wednesday" (August 27) and that he had not then
known the names of these two. Boyd quoted Shipp
as saying that they did not need Boyd causing trou-
ble and organizing a walkout and that Snyder had
agreed and said that Boyd's check would be ready
at 4 p.m. that day. Boyd went home and returned at
4 p.m. for his check. The discharge slip made by
Respondent for Boyd's file contains the following
explanation: " causing disturbance and work slow-
down in numerous areas."
Other evidence differed materially from Boyd's
testimony. Inspection Manager Snyder testified that
on the morning of August 26, 1969, he was making
his rounds and that about 7:30 or 7:45 a.m. when
he was in the fin blade area, an inspector named
Mrs. Faye Ketner had told him that Boyd had been
in the fin blade area, talking to operators and caus-
ing a slowdown. Ketner (called as a witness by the
General Counsel) placed the time Snyder was there
as an hour or an hour and a half after Boyd had
been there and testified that an operator on a drill
(a Hungarian) had come to her during the morning
coffeebreak and told her that Boyd had told him
"that they were all going to walk across the street
at four o'clock and the union was coming in."
Ketner testified that this was what she reported to
Snyder. She also testified that Boyd had talked to
several operators. She further testified that several
days earlier she had told Snyder that Boyd had
been in the fin blade area. 23
After receiving Ketner's report, according to
Snyder (although he could not recall, without
refreshment of his memory by his prehearing af-
fidavit, Ketner's telling him what Boyd had been
talking about), he had contacted Steward and
asked if he was aware that Boyd had been out of his
assigned work area that day and also on the day be-
fore (Monday) and on the Friday before. When
Steward had replied that he was unaware of this,
Snyder testified that he had asked him to look into
" Ketner ( the wife of a supervisor) did not speak English as lucidly as
might be desired, and as a result , I am not sure that her meaning was that
her report to Snyder had been made several days earlier or that on August
26 she had reported to Snyder about seeing Boyd on the earlier occasions
also.
CORP. 803
the matter. Steward placed the time of this conver-
sation as about 7:30 a.m., an estimate which ap-
pears to be too early. Steward next called Kiernan
in and asked him if he was aware that Boyd had
been out of his area. Steward then quoted Kiernan
as saying "not that he could recall." Steward then
sent for Boyd and asked him if he had been out of
his work area on Monday. He testified that Boyd
had replied that he had just gone over to pick up
his vernier calipers, that he had then asked Boyd
how long that had taken and that Boyd had said
about 20 minutes. According to Steward, Boyd told
him about an argument Boyd and Leonard had had
about a union meeting which had been held on
Monday night, August 25. Steward testified that, at
this point, he told Boyd to go out to the line, to
keep his nose clean, and to let Steward do some
further checking.
Meanwhile Snyder reported to Shipp what he had
learned from Ketner'24 and they called Ketner to
the office so that Shipp could question her. Shipp
testified that Ketner told him that Boyd had twice
been back in the fin blade area talking with em-
ployees at their machines while they were working
and that one Hungarian man had come over and
told her what Boyd had been talking about, that
Shipp had asked her if any one else had seenn Boyd
and that Ketner had given him the name of an em-
ployee named Elsie Crum, a cleaning woman. Shipp
called Crum in and she told him, according to
Shipp, that on August 26 Boyd was talking to her
while she was cleaning, that he told her that there
was going to be a walkout the following day, and
that she had seen him talking to employees at other
times during working time . According to Crum,
Boyd had approached her where she was cleaning
in the weld shop a few days before August 26 and
had said to her, "We are going to get the Union
in." She asked what he was talking about, but Boyd
had left without saying any more. According to
Crum, Shipp had asked her if she had been talking
to anybody about the Union and that she had told
him what Boyd had said to her. On cross-examina-
tion by the General Counsel, Crum testified that
the conversation with Boyd had lasted only a mo-
ment and that it was rather generally known that
she did not favor the Union. Crum was very vague
about the time of the conversation with Boyd and
thought that it might have taken place before the
election, but she did not remember whether the
conversation with Shipp had been before or after
the election. Ketner's reference to Crum when she
was called in by Shipp and Shipp's testimony are,
however, sufficient to fix the questioning of Crum
as occurring on August 26, 1969. Shipp testified
that, after he had spoken to Crum, he had also
_' Shipp 's testimony was that Vice President Grady Gill had called him
and told Shipp what he had learned about Boyd's actions and had asked
Shipp to get in touch with Snyder, that he had done so and that that was
when Snyder made his report to him
427-835 O - 74 - 52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spoken with Del Porter, the department manager in
the fin blade area, and that Porter had told him that
he had seen Boyd several times "recently" in the
fin blade area but that he had not then known that
that was not Boyd's work area.25
Shipp testified that when Boyd was summoned
and was asked about being out of his area, as Shipp
put it, or asked what he knew about the walkout,
as Boyd put it. Boyd admitted that he had been out
of his area and informed Shipp that there was going
to be a walkout but he also said, according to
Shipp, that he was trying to talk people out of walk-
ing out at 4 o'clock instead of at 4:30 so that
"the company wouldn't have any recourse."
Shipp testified that Boyd had said that he
was not trying to organize a walkout-that it was
Ralph Leonard in the screw machine area who had
done so. This was at variance with Boyd's
testimony, where he did not mention Leonard's
name, but if Boyd did say that, I do not believe he
was telling the truth.
Shipp was called as a witness by the General
Counsel on his case, and Shipp later testified on the
Respondent's case and gave a somewhat changed
version of what he had said to Boyd at Boyd's exit
interview. I do not accept the latter, which sounded
more rehearsed than Shipp's testimony on the
General Counsel's case.
The main issue of credibility is as to Boyd's ex-
planation of why he had been in the fin blade area
at the time he was there talking to employees. Since
it was shown that Boyd's testimony with regard to
his conversation with the night inspector could not
be true, an explanation which Boyd advanced for
his being in the fin blade area later than usual in
the morning, I conclude that Boyd's testimony on
this and certain other matters cannot be credited.
On all the evidence, I find the Respondent had
reason to believe that Boyd had gone to the fin
blade area to talk to employees there about the
walkout. I shall, however, reserve judgment on the
merits of Respondent's defense to the alleged dis-
crimination until after Leonard's case has been re-
lated.
b. History of Leonard's employment
Ralph Leonard started working for the Respon-
dent in October 1966 as a trainee operating a
punch press in the fin blade area. He worked up to
milling machines, both straddle and contouring,
and finally to the Kingsbury machines. For a period
of time between March and July 1969, when the
regular setup man was too busy to handle all the
machines, Leonard served in that capacity on the
Kingsbury machines. The General Counsel con-
tends that Leonard had the duties of a leadman as
well as setup man. Leonard did coach the operators
and sometimes changed them from one machine to
another, in addition to the traditional setup work.
His pay, however, remained that of an operator.
Leonard's account of his conversation with Boyd
has been relied on in making my findings hereinbe-
fore. Leonard testified that the two operators who
had listened to his conversation with Boyd were
named Patterson and Labato. Neither, however,
was called as a witness. The inspector who over-
heard the two arguing was Gary Wagner. Wagner
testified that he did not hear what Leonard and
Boyd said to each other but concluded that they
were "more or less arguing." One of the topics of
discussion was how many employees would have to
join the walkout to make it effective. I consider it
not improbable that Wagner heard more than he
revealed, because the Respondent obviously
learned of Leonard's participation in a discussion of
a walkout to make it effective. I consider it not im-
probable that Wagner heard more than he revealed,
because the Respondent obviously learned of
Leonard's participation in a discussion of a walkout
and I would doubt that the Respondent would rely
only on what Boyd claimed to be the facts. Boyd
had approached Leonard, according to Wanger,
and Leonard had continued inspecting parts while
conversing. The first conversation, according to
Wagner, lasted about 3 minutes. The second took
place during the coffeebreak about 9:30 a.m.
After Boyd had told Shipp that Leonard was the
one who had been trying to organize the walkout,
hipp telephoned Leonard's department manager,
Bill Kottkamp, and asked him if he knew anything
about Leonard's being away from his work station
that day or previous days. Presumably, Shipp's
question was prompted merely by suspicion, since
no one had told him up to that time that Leonard
had been away from the Kingsbury area, so far as
the evidence shows. According to Shipp, Kottkamp
told him that he had not seen Leonard out of his
work area that morning but had not spoken to
Leonard's supervisor because he was busy. He told
Shipp that he would investigate and call Shipp
back. Later, according to Shipp, Kottkamp called
him and reported that "Leonard apparently was out
of his work area that morning" and that Leonard
and Boyd had engaged in several heated discussions
in Leonard's work area. Kottkamp was no longer
employed by the Respondent at the time of the
hearing, and he did not testify. Leonard's immediate
supervisor, Emmett Stirn, gave Kottkamp no infor-
mation about Leonard, according to Shipp. Stirn did
not testify either. Hence, it is not apparent who
might have seen Leonard out of his area or under
what circumstances. As the record stands, therefore,
the Respondent's own evidence was no more than
double hearsay that Leonard had been seen away
from his work area. Furthermore, the Respondent
offered no evidence to show that Leonard was im-
I Even when he had worked in the fin blade area , Boyd would not have
been under Porter because the inspectors had their own supervisor.
FTS CORP. 805
properly away from his work station or that he had
disturbed any working employees. Leonard, him-
self, however, testified that he was away from his
work area during working time only once that day,
but he testified that this was when he had had to go
to the tool grinding department to pick up necessa-
ry tools in connection with his setup work. There,
he testified, he had talked with the foreman and
with the man who ground the tools. This apparently
occurred early in the day because, when asked if he
had left his area again , he answered "only for cof-
feebreak at 9:30 [a.m.]."
During his coffeebreak that day, Leonard sat at a
table in the lunchroom and several employees came
to the table to ask Leonard about the walkout.
Leonard explained to them what he knew. If any of
those employees gave the Respondent information
about Leonard or what he said, the Respondent did
not disclose it at the hearing.
About 10 a.m., Leonard's supervisor, Stirn, came
to Leonard and told him that Shipp and Kottkamp
wanted him in Shipp's office. Leonard asked if he
knew what it was about and Stirn said that he did
not. Shipp testified that, after Boyd had brought
Leonard "into this" and after he had received Kott-
kamp's report, he had sent for Leonard. In relating
what had been said once Leonard came to his of-
fice, Shipp testified: "We asked Mr. Leonard if he
had been away from his work area . He said he had
been several times during the day, but again he was
trying to talk the employees out of a walkout." The
latter part of this quotation leads me to believe that
something was omitted, since the answer obviously
goes beyond the question put by Shipp . It is a fair
inference that Shipp , in some fashion , brought the
talk of a walkout into the discussion. According to
Leonard , the first thing Shipp said to him when he
reached Shipp 's room was, "We are terminating
you as of now." Leonard testified that he had asked
Shipp why and that Shipp had replied that Leonard
had had some reprimands and that his attitude was
not the company way of thinking, that Leonard had
been talking of work stoppage or slowdown.
Leonard testified that he had asked whom he was
supposed to have been talking to and that Shipp
had replied that they did not have to give that infor-
mation . Leonard quoted himself as asking if he was
being terminated because of his union activities and
testified that , after beating about the bush, Kott-
kamp had said that it was because of Leonard's ac-
tivities , but that Shipp had corrected Kottkamp and
said that it was not because of Leonard 's union ac-
tivities but because of his attitude because of the
work stoppage. I doubt that either Shipp or
Leonard would be able to quote accurately
everything that was said in Shipp's office , but I am
satisified that mention was made of Leonard's talk-
ing about the work stoppage . Leonard testified that
he offered to bring in witnesses to the fact that he
had been telling people not to walk out because
they could be terminated but that Shipp had
refused and reiterated that Leonard was being
discharged because of his attitude and not because
they questioned his explanation of what he was
telling people. Leonard asked if they would not give
him a 30-day probationary period before deciding
to terminate him. Shipp said he would leave that to
Kottkamp but Kottkamp refused because it would
set a precedent which would apply to everyone.
c. Conclusions regarding Boyd and Leonard
Respondent 's defense is that Boyd was
discharged because of his having been away from
his assigned station on August 26, 1969 , and that
Leonard was discharged because of his attitude. In
each case, the Respondent has avoided placing the
discharge on the ground that Boyd or Leonard had
engaged in a discussion about a walkout; yet, in
each case, it is difficult to believe that their talk
about, or possible promotion of, a walkout, had
nothing to do with their discharge. If Boyd's being
out of his assigned area had been the only reason
for Boyd's discharge, it would appear, at the very
least, to be harsh treatment in view of the fact that
he had not received a written warning theretofor.
The treatment is obviously harsher than in Sutton's
case , because Sutton had received more than one
written warning, and one of them concerned his
being out of his assigned area . The Respondent ad-
mitted treating Sutton more leniently but gave as a
reason that it had leaned over backward because
Sutton had been such a prominent union advocate.
Boyd had not, perhaps, been so obviously active in
union activities as Sutton, but the Respondent knew
that he was a union supporter.
To prove that Boyd's discharge was not a devia-
tion from the norm, the Respondent adduced
evidence concerning the discharge of other em-
ployees who had received no prior written warning.
But this evidence was limited to what was recorded
on termination slips . In all but one or two of these
cases, where there had been discharges without
prior written warning, the reason for the em-
ployee's discharge involved something different
from, or more than, just being away from the em-
ployee's work area in the plant. In the two cases
where additional grounds were not involved, the
evidence shows the following : James Grimland was
discharged on November 4, 1967, the record show-
ing the reason to be: "Left his machine despite
prior verbal warnings ." Alan Weaver was
discharged on July 12, 1968, the record showing:
"Left job without prior approval." No further
evidence of the circumstances was offered in either
case. Hence, it is not known how many verbal
warnings Grimland had received or how long he
was away from his machine, but, in any event, the
comparison with Boyd's case is not of the best, for
ordinarily a machine operator is required to stay
closer to his machine than an inspector is to his
area . In the case of Weaver , it is impossible to
determine whether " left job" means that he merely
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left his machine or that he left the plant.26 On the
basis of such sketchy evidence , I am unable to find
that those cases are evidence that Boyd 's termina-
tion was analogous. Furthermore , in Boyd 's case, I
am persuaded that the reason for his discharge was
not merely being away from his assigned area but
that the subject matter of Boyd 's conversation with
other employees in the fin blade area was a materi-
al factor . If other evidence was insufficient in itself
to warrant this inference , any remaining doubt
would be dispelled by the fact that when Snyder
received Ketner 's report about Boyd and what he
was talking about to employees in the fin blade
area, Snyder reported the matter first to the
Respondent 's vice president. This means that
Snyder was concerned with the possibility of a walk-
out more than merely with disciplining a wayward
employee . If the matter had been an ordinary case
of an employee away from his assigned area, and if
Snyder had merely intended to recommend a
discharge , the procedure would have been to refer
the matter directly to Shipp . Yet it was not until the
vice president directed Shipp to make an investiga-
tion that the latter was brought into the picture.
In Leonard 's case, I am also persuaded from all
the evidence that the Respondent discharged him
because of his participation in talking about a walk-
out. The Respondent went to some lengths to
bring in evidence designed to show that Leonard
had a poor attitude toward his work , that Leonard
was capable of good production but that his
production would not often reach his capabilities,
and that Leonard had once thrown some manufac-
tured parts into a box and damaged them. Leonard
had explained to his supervisor , when he was
criticized for not keeping up to the production ex-
pected of him , that he could only explain it on the
ground that he would get tired on a 6-day week. I
note also, however , that Leonard could likely have
had days when he might have had more difficulty
than on other days keeping the machine within the
proper tolerance and he might have had to retool
more often on some days than on others. Leonard
denied that he had thrown any parts at all, and he
explained that the employees who deburred the
parts he manufactured on his machine were unable
to keep up with his output and that he would set
the parts on the edge of his parts-supply box until
the deburrer could get to them. On one occasion
some of the parts fell into the box. Leonard
testified that he had inspected them and that he
found no damage had been done.
But even if there might have been some sub-
stance to the Respondent's claim about Leonard's
attitude toward his work, I would not give it much
weight , because Leonard had been retained for 3
years, during which time the Respondent ap-
parently tolerated his alleged poor attitude and
even valued his ability enough to give him setup
work , yet on the day of Leonard 's discharge the
only conduct which the Respondent could claim
was a demonstration of Leonard 's "poor attitude"
was his talking to other employees about a walkout.
It was obviously this that triggered Leonard's
discharge . If poor attitude generally had been the
real cause , with no immediate incident on August
26, 1969, one might expect that the Respondent
would have teerminated Leonard at the end of the
week or, at the least, at the end of the day, but the
Respondent chose to discharge him immediately
after it had discharged Boyd , about 10 a.m. on Au-
gust 26 , 1969. This haste is consistent only with the
conclusion that the immediate reason for the
Respondent 's discharge of Boyd and Leonard was a
belief that they were promoting a walkout for the
end of the next day and a decision to discourage it
by the discharges.
The Respondent , in its brief, argues that, assum-
ing that this was in fact the immediate reason for
discharging Boyd and Leonard, nevertheless the
evidence shows that the strike was for an illegal
purpose-to force recognition of a union which had
lost an election only 6 months before. The Respon-
dent argues, in its brief, that "the Board holds that
a recognition strike within one year of an election is
illegal ." It cites no cases in support of this state-
ment , however , but goes on to argue that the walk-
out would be illegal for another reason , that it was
intended to be a "quickie " strike.
In either case, the Respondent , in effect , is rais-
ing an issue as to whether or not the actions be-
lieved to be an attempt to cause a walkout were
protected , concerted activities. If there were in fact
concerted activities in this case, the purpose was, so
far as the sketchy evidence shows, to get recogni-
tion, not for members only, but for the Union,
which not only had lost an election only 6 months
earlier but which still claimed no majority and
which had advised its members against a walkout.
The walkout , if it had occurred , would , therefore,
have been by a minority group to gain an unlawful
objective . The Respondent apparently believed, not
without some grounds, that this is what Boyd and
Leonard were doing during working hours. Their
discharge under such circumstances would not have
been for the purpose of discouraging either union
membership or protected, concerted activity.27
But legality of a strike aside , the evidence as a
whole , I find , is insufficient to show that Boyd and
Leonard were working together in talking about a
walkout, and there is no proof that others were act-
ing in concert with either one . Judging by the argu-
ment between Boyd and Leonard on the morning of
their discharge, I deduce that they were not of the
18 One employee , William Dice , was discharged without prior warning
when he clocked out before quitting time.
27 Cushman Motor Delivery Co., 141 NLRB 146.
FTS CORP. 807
same mind. Since the Union had not approved of a
walkout, I am led to conclude that Boyd and
Leonard were not engaged in union activity on Au-
gust 26, 1969. If the General Counsel's theory was
that Boyd and Leonard were engaged in protected,
concerted activity, the burden was on him to show
it. I find that the evidence as a whole falls short of
proving either concerted or protected, concerted
activity on their part.28
Whether or not I should have reached the same
conclusions as the Respondent as to credibility of
Boyd, Leonard, and other employees it interviewed
before discharging Boyd and Leonard is im-
material. Even if the Respondent was mistaken in
its conclusions, this would not convert the
discharges into a violation of the Act. It may
discharge an employee for a good cause, a poor
cause, or no reason at all so long as the discharge is
not in violation of either Section 8(a)(1) or (3) of
the Act. I find that the discharges of Boyd and
Leonard were not a violation of either Section.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed
in Section 7 of the Act, to the extent found in sec-
tion IVA of this Decision, Respondent has violated
Section 8(a)(1) of the Act.
4. The Employee Representation Plan,
established by the Respondent, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
5. Since on or about June 17, 1969, and at all
times thereafter, Respondent has dominated and in-
terfered with the administration of said Employee
Representation Plan in violation of Section 8(a)(2)
and (1) of the Act.
6. Respondent has not discouraged membership
in a labor organization by discriminating in regard
to the hire or tenure of employment of Martin Sut-
ton, Ottis Boyd, or Ralph Leonard within the mean-
ing of Section 8(a)(3) of the Act.
7. To the extent that unfair labor practices have
herein been found to have been committed by
Respondent, such unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions
of law, and upon the entire record in the case, and
pursuant to Section 10(c) of the National Labor
Relations Act, it is hereby ordered that Respon-
dent, FTS Corp. (Division of HITCO), its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Dominating or interfering with the adminis-
tration of, or contributing financial or other support
to, the Employee Representation Plan or to any
other labor organization of its employees.
(b) In any manner interfering with, restraining,
or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act
(a) Withdraw and withhold recognition from and
completely disestablish the Employee Representa-
tion Plan as the representative of any of its em-
ployees for the purpose of dealing with it in respect
to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of em-
ployment.
(b) Post at its Denver, Colorado, plant copies of
the attached notice marked "Appendix."29 Copies
of said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
an authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.30
IT IS RECOMMENDED that the complaint be
dismissed insofar as it contains allegations of unfair
labor practices not herein found.
28 See Kennecott Copper Corporation, 121 NLRB 801 Neither Boyd nor
Leonard admitted doing more than repeating rumors I do not regard such
gossip as protected, concerted activities
2B In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes in the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading " Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
-1 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 27, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT dominate or interfere with the
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
administration of, or furnish financial or other
support to, the Employee Representation Plan,
or any other labor organization.
We hereby withdraw all recognition from
and completely disestablish the above-named
labor organization as the representative of any
of our employees for the purpose of dealing
with us con cerning grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of the
right to self-organization, to form, join, or
assist labor organizations, to bargain collective-
ly through representatives of their own choos-
ing, and to engage in other concerted activities
for the purpose of collective bargaining or
other mutual aid or protection, or to refrain
from any or all such activities except to the
exxtent that such right may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
FTS CORP. [DIVISION OF
HITCO)
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 260 New Custom House, 721 19th
Street, Denver, Colorado 80202, Telephone
297-3551.