General Battery Corp.

National Labor Relations Board - Board Decisions

Apr 26, 1979

241 N.L.R.B. 1166 (N.L.R.B. 1979)

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Battery Corporation and Ronald Merriman,
and Drivers, Chauffeurs, Warehousemen and Help-
ers, Local No. 28, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Cases 1 l-CA-7331,
II CA 7511, and l RC-4499
April 26, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On December 29, 1978, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings.
We also find totally without ment Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full con-
sideration of the record and the Administrative Law Judge's Decision. we
perceive no evidence that the Administrative Law Judge prejudged the case.
made prejudicial rulings, or demonstrated a bias against Respondent in the
examination of Respondent's witnesses or in her analysis or discussion of the
evidence. We find nothing improper in the Administrative I.aw Judge's ques-
tions of Respondent's witnesses, and we note that Respondent raised no
objections at the hearing to her questions. Accordingly, we deny Respon-
dent's request for a trial de noro.
We find merit to Respondent's exceptions to the following inadvertent
errors by the Administrative Law Judge which do not affect the conclusions
herein: (I) In the second paragraph of the Decision, the date of the election
incorrectly appears as April 3, 1978. instead of April 28. 1978; (2) F. 20
contains a finding that on "some" days Cox's production approached 200
percent, whereas the record reveals it approached 200 percent on I day (i.e..
193 percent on February 8. 1978); (3) In sec. C, the Administrative Law
Judge found "there is no evidence that ('ox's supervisor Marvin Pierce. was
consulted about Cox." whereas it appears that the superintendent had talked
to Cox's supervisor; (4) In sec. D, subsec. 2, there is a reference to the
"October 6 meeting" and to Howell's statement to "Merriman." The meeting
was on "March 6" and Howell's statement was directed to "Gosnell:" (5)
Fn. 24 refers to ('ohen's "discharge" on April 12, 1978. whereas the testi-
mony indicates that she may have quit.
2 We do not adopt the Administrative Law Judge's finding of impression
of surveillance as a result of Supervisor Howell telling employee Gosnell that
there would be no further "meetings" in the lab. Gosnell introduced the
union issue by saying to Howell, "Who said we were having any union
meetings in the lab?" To this Howell responded that the plant manager had
received a telephone call. Although Htowell's reference to the plant manager
receiving a telephone call tends to suggest the impression of surveillance,
particularly in view of the lab meeting the night before where union authori-
adopt her recommended Order,3 as modified herein.
We agree with the Administrative Law Judge's
findings that the terminations of Ronald Merriman 4
and David Cox violated Section 8(a)(1) and (3) of the
Act. With respect to Cox, Respondent contends, in
part, that there was no unlawful termination since
there was no disparate treatment of Cox.5 Disparate
treatment is not the only factor which creates an in-
ference of unlawful motivation. We find the timing of
Cox's termination, 3 days after Respondent was in-
formed of his attendance at the union meeting in the
lab, as well as the contradictions in Respondent's evi-
dence and the deficiencies in its asserted reasons for
the termination, discloses a discriminatory motive.
The inference that Cox's discharge was discrimina-
torily motivated is enhanced by the fact that Plant
Superintendent Ravan specified that no final event
following Cox's attendance at the March 6 union
meeting precipitated Cox's termination. Ravan testi-
fied that he terminated Cox for "poor performance
and poor attendance," but Ravan gove Cox a "Fair"
rating (on a scale of "Good", "Fair," or "Poor") on
all items on the termination notice, including "attend-
ance,"6 and indicated that reemployment of Cox was
"conditional." Additionally, Ravan described Cox as
an "overall good employee ... a fair employee." On
March 9, Respondent gave Cox four sets of uni-
forms.7 The Administrative Law Judge credited Cox's
testimony which noted that, on the day of his dis-
7ation cards were distributed, it was a direct answer to an employee ques-
tion, without elaboration. The record shows that dangerous chemicals are
stored in the lab. Thus, it appears that Respondent used safety as a reason to
prohibit all meetings in the lab. See Byrne Dairvy, Inc., 176 NLRB 312. fn. 2
(1969), where the Board made no finding because of ambiguity; compare
Central Power & Light Conmpanv. 173 NLRB 287, 293 (19681.
The Administrative Law Judge concluded that Respondent's asserted
reasons for Ronald Merriman's discharge were mere pretexts used by Re-
spondent to build a record which would superficially support the discharge,
but she neglected to include in her recommended Order a provision requiring
Respondent to expunge from its records the pretextual warnings given to
Merriman on October 19 and 25, 1977. The recommended Order is revised
accordingly.
' While we do not adopt the Administrative Law Judge's finding that it
s as "most probable the open-circuit batter), passed through the hi-rater dur-
ing Merriman's absence," we find it could not be concluded reasonably that
Merriman passed the battery and Respondent's warning of Merriman with-
Out any further investigation supports a finding of its discriminatory motiva-
tion.
'Two other probationary employees were terminated on March 10, and a
third probationary employee had been terminated on January 15. The record
concerning these terminations was not given equal importance, For example,
the termination notices of the other probationary employees were not of-
fered.
I Cox's fourth and final absence on February 24 preceded his attendance
at the union meeting, but there is no evidence that Respondent tx)k any
disciplinary action against Cox at that time for his absenteeism. Addition-
ally, James Branton, former plant superintendent, testified that five absences
in 6 months were not excessive.
The Administrative Law Judge referred to these having been "ordered"
fIr Cox just a few days before his discharge. The record does not disclose
when Cox's uniforms were ordered, but it reflects that it was Respondent's
policy, because of OSHA regulations, to order uniforms for new employees
promptly following their employment. The issuance of a 4-day supply of
uniforms on March 9 supports the Administrative Law Judge's inference
that the decision to discharge Cox the next day was made suddenly.
241 NLRB No. 185
1166
GENERAL BATTERY CORPORATION
charge, Personnel Director Hatchell told Cox that he
was going to get the transfer to the first shift which he
had requested. Ravan's assertion that Cox's produc-
tion records showed "consistent substandard per-
formance" was not supported by Respondent's rec-
ords. In addition, Ravan admitted terminating Cox
without knowing if he had been warned about pro-
duction. Accordingly, we find that these, and other
factors cited by the Administrative Law Judge, fully
support the finding that Cox's termination was in vio-
lation of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, General
Battery Corporation, Greer, South Carolina, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Ronald Merriman and David Cox im-
mediate and full reinstatement to their former jobs or,
if these jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges including those previ-
ously enjoyed, make them whole for any loss of earn-
ings they may have suffered by reason of the dis-
charges and Respondent's discrimination against
them in the manner set forth in this Decision, and
expunge from its records any reference to warnings
given to Ronald Merriman on October 19 and 25,
1977."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERtI) that the election in Case
I -RC-4499, held on April 28, 1978, be, and it
hereby is, set aside, and that a second election be
conducted.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
No rwti l ro EPI.iOYES
POSIEI) BY ORDFR OF ll
NATIONAl LABOR RI.ATI()NS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to
give evidence, it has been found that we, General Bat-
tery Corporation, violated the National Labor Rela-
tions Act, as amended. and we have been ordered to
post this notice. We intend to abide by the fllowing:
Wi WII.l. Not question you about your opin-
ion of, membership in, or activities on behalf of
Drivers, Chauffeurs. Warehousemen and Help-
ers Local No. 28, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization.
WE WII.I. NOT threaten that you will probably
lose any employee benefits if you choose to be
represented by Teamsters Local No. 28 or any
other labor organization.
WE WILL. NOT say or do anything to make you
believe that we are watching your union activi-
ties.
WE WILL NOT discharge you or take any other
action against you because you have joined or
supported, now support, or will support or join
any labor organization, or because you have en-
gaged in other concerted activities.
WE WUIl.L NOT in any other manner interfere
with your rights, guaranteed under the law, to
organize, to form, join, or assist a union, to bar-
gain through the union you may choose, to act
together for your mutual aid or protection, or to
refuse to do any of these things.
WE WILL offer Ronald Merriman and David
Cox immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or to any other rights or
privileges, including those previously enjoyed.
WL WILL pay Ronald Merriman and David
Cox for any loss of earnings they may have suf-
fered as a result of our discrimination against
them, plus interest, and we will expunge from
our records any reference to warnings given to
Ronald Merriman on October 19 and 25. 1977.
All our employees are free to become or remain or
to refrain from becoming or remaining members of
the aforenamed union (Teamsters Local No. 28) or of
any other labor organization.
GENERAL BATTERY CORPORATION
DECISION
JosPHl Nl 11. K.iN., Administrative Law Judge: Pursu-
ant to a charge filed by Ronald Merriman on December 6.,
1977, a complaint was issued against General Battery Cor-
poration (herein called Respondent) on February 15, 1978,
alleging primarily that on October 27, 1977, Respondent
discriminatorily discharged Merriman in violation of Sec-
tion 8(a)(} and (3) of the Act.' A second charge was filed
by Teamsters Local No. 28 (the Union) on April 3, 1978
(amended on May 1. 1978). On May 2, 1978, a consolidated
complaint was issued repeating the allegation concerning
Merriman's discharge and adding an allegation ot discrimi-
natory discharge of David Cox on March 10. 1978, as well
I National .ahr Relations Act, as amended. 29 t1 s ( s51, er seq
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as allegations of interference and coercion in violation of
Section 8(a)(l) of the Act.
On April 3, 1978, pursuant to the Union's representation
petition, an election was held, which the Union lost by a
vote of 67 to 87 (with 2 void ballots and 4 challenged). The
Union thereupon filed objections to the conduct of the elec-
tion. The Regional Director overruled some of the objec-
tions and directed that the remainder be consolidated for
hearing with the pending consolidated complaint.
Pursuant to due notice, a trial was held before me in
Greenville, South Carolina, on July 10 and 11, 1978. All
parties were afforded full opportunity to present oral and
written evidence and argument, as well as to examine and
cross-examine witnesses. Post-trial briefs have been filed on
behalf of the General Counsel and the Respondent.
Upon examining the entire record together with careful
observation of the witnesses and consideration of the briefs,
I make the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a Delaware corporation with facilities
located in South Carolina, including a plant in Greer, South
Carolina, is engaged in the manufacture of dry charge bat-
teries. During the past year, a representative period, Re-
spondent received at its Greer plant goods and raw materi-
als valued in excess of $50,000 directly from points outside
South Carolina. During the same period, Respondent
shipped directly to points outside South Carolina products
valued in excess of $50,000. Respondent is now, and has
been at all times herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
B. The Union is now, and has been at all times herein, a
labor organization within Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Credibility
The issues presented in this case generally are factual.
Since there is considerable conflict of evidence, the present
decision is based mainly on credibility resolutions. At the
outset, therefore, it is appropriate to set forth my basic ap-
praisal of the witnesses' credibility.
In general, all the witnesses for the General Counsel im-
pre:sed me as being conscientious and honest, attempting
to report facts accurately and without exaggeration. On the
other hand, as will appear hereafter from specific represent-
ative examples, there were numerous inconsistencies and
other deficiencies in the testimony of Respondent's wit-
nesses with regard to crucial facts. Thus, where there are
direct conflicts. I credit the General Counsel's witnesses
rather than Respondent's.
The evidence concerning the alleged violations of Section
8(a)( I ) consists generally of testimony by witnesses for the
General Counsel and bare denials by Respondent wit-
nesses. However, in connection with alleged discriminatory
discharges. Respondent adduced considerable affirmative
evidence. It is in this affirmative evidence that the inad-
equacy of Respondent's witnesses clearly appears. Accord-
ingly, the alleged unlawful discharges will be discussed first.
B. The Discharge of Merriman
1. Chronology
Ronald Merriman was hired by Respondent in April
1974 and was discharged on October 27, 1977. He worked
on the first shift in the Dry Charge Formation.
According to Merriman, the employees in that depart-
ment constantly complained among themselves about un-
satisfactory working conditions. Early in June 1977, he and
his seven or eight coworkers "all got together" and agreed
that they should discuss their complaints with Marvin
Beachem, supervisor of the department. Such a meeting,
requested by employee Charles Muriel, was held early in
June, with all first-shift employees in the department at-
tending. Complaints were registered with regard to working
conditions such as unsafe conditions, defective equipment,
and poor pay. Merriman, who testified that he had been a
union member for many years before his employment with
Respondent, confirmed that in the departmental meeting in
June, he said that the employees needed a union in order to
achieve better working conditions.
On July 7, Merriman consulted James H. Phillips, the
Union's Recording Secretary. Merriman testified that in
June and July he frequently spoke in favor of unionization
with employees, both in and out of his department. These
conversations occurred in the canteen and also while work-
ing. However, there is no evidence of an active organizing
campaign until sometime in the first quarter of 1978.
Merriman frequently complained about unsatisfactory
conditions. His most frequent complaints appear to have
been related to his earnings and poor equipment, particu-
larly the conveyor at which he worked. The two matters
were interrelated because employees were paid on an "in-
centive" basis so that breakdowns or inefficiency of equip-
ment could result in a slowdown of production. Beachem,
as well as other employer representatives, conceded that
maintenance of the conveyor was a constant source of diffi-
culty. Beachem testified that he frequently replaced rollers
on the conveyor. He maintained, however, that disrepair of
the conveyor rollers did not slow down production so as to
cause reduced incentive earnings by the employees. How-
ever, he acknowledged that the departmental employee
meeting early in June was a result of the employees' dissat-
isfaction with their reduced earnings, which he attributed to
the recent departure of two employees. He did n, eplain
how those departures could adversely affect the earnings of
the remaining employees, who worked in teams of two.
Beachem was asked why the rollers would be repaired or
replaced if their disrepair caused no slowdown in produc-
tion. His only answer was: "They just wanted to keep the
rollers repaired." When lines were down for repairs, the
employees involved made only their "base pay." with no
possibility of incentive pay.
Woodrow J. Anderson became plant manager of the
Greer facility on September 19. 1977, replacing Eugene D.
Ravan, who was transferred to another of Respondent's
nine plants.2 It appears that Anderson, who previously was
"staff manufacturing engineering manager" for all of Re-
2 Ravan returned to the Greer plant on February 19. 1977, replacing
.lames J. Branton as plant superintendent under Anderson.
1168
GENERAL BATTERY CORPORATION
spondent's plants, was sent to manage the Greer facility
because of its production problems. One of the problems he
found at Greer was inadequate maintenance of equipment,
which he sought to remedy by employing a salaried mainte-
nance manager. Pursuant to Anderson's instructions, the
conveyor in the Dry Charge Formation Department was
repaired, at a cost of nearly $5400.3
On October 6, 1977, Anderson conducted a plantwide
meeting, in which Respondent's Employee Manual was
read aloud in to. Merriman testified that toward the end
of the meeting, he asked if "the Company was going to do
anything about the unsafe conditions at the plant," to
which Anderson replied that he would "see what we can
do." Merriman also specifically asked about the rules gov-
erning smoking-a matter discussed below.
Merriman testified that later that day Anderson spoke to
him alone at his work station. Merriman testified that An-
derson said "if I didn't like the working conditions, I should
quit the job and find another ... Then he said that he had
heard from some employee that I was trying to get a union
in there." According to Merriman, Anderson added that as
long as he was manager, there would be no union in the
plant.
On October 19, Merriman was reprimanded for allegedly
smoking in violation of company rules. On October 25, he
was reprimanded for allegedly permitting two defective bat-
teries to pass through test equipment he was operating. On
October 26, Merriman left the plant to attend a hearing on
a workmen's compensation claim which he had filed. He
failed to punch out on leaving the plant. At around 6:30
a.m. the next day, he was discharged, purportedly for the
three alleged derelictions just listed. These events are dis-
cussed in detail below.
2. Antiunion animus
The record leaves no doubt that Respondent was strongly
opposed to the Union. In the months preceding the elec-
tion, Respondent held two series of meetings-one for su-
pervisors and another for employees. In these meetings,
slides and newspaper clippings were presented depicting
corruption and violence by the Teamsters Union. As de-
scribed b supervisor Beachem, the message conveyed con-
cerned "just violence and corruption." There was conflict in
the testimony of Respondent's witnesses as to whether su-
pervisors were given specific "do's and don't's" for the pre-
election period. However, several witnesses for Respondent
testified, in virtually identical words, that they felt the
Union had nothing to offer the employees. Employee Jess
Rogers, who was strongly opposed to the Union. testified
that on March 7. he asked Anderson if signing union cards
was "illegal" or "against company policy," to which Ander-
son replied that it "definitely" was, and that something
could be done about it.'
I Anderson testltied that he "didn't order a new cotneyor belt We ordered
quite a hit of conveyor" However. plant uperintendent James Branton tes-
tified that "a new conveyor was required "
' Resnondent suggests that Rogers should not he credited because befolre
the present trial, he had been dlscharged. and therefore as probahlsy estif
Ing out of hostlit to, Respondent. Hov ever. although Respondent's counsel
was provided ith an affidavit that Rgers had executed before his d-
charge, counsel adduced no mpeachini prior inconsistent statements or
omissltins h R ogers
Thus, without reference to the alleged unfair labor prac-
tices, Respondent's anti-union animus is established. Cf.
Best Products Company, 236 NLRB 1024: "[C]onduct which
may not violate Section 8(a)(1) of the Act may still be used
to show union animus on the part of a respondent." In
addition, it is hereafter found that Respondent did commit
unfair labor practices, as alleged in the complaint.
3. Respondent's knowledge of Merriman's activities
Respondent maintains that there were no union activities
at the plant until February 1978, and that Respondent first
learned of such activities in February, when an employee
gave Anderson a union card.' While it is true that the active
union campaign did not begin until early in 1978, I credit
Merriman's testimony that in June 1977, he made his union
sympathies known to Beachem and that at the plant, in
June and July 1977, he spoke in favor of the Union to many
employees. I also credit Merriman's testimony that on Oc-
tober 6, 1977, Anderson said he knew Merriman was trying
to get a union into the plant. And finally, as discussed be-
low, I credit Merriman's further testimony that, in discharg-
ing Merriman on October 27, Anderson said that Merriman
was a "trouble maker" and was trying to bring a union into
the plant.
4. The purported reason for the discharge
Respondent contends that Merriman was discharged for
a combination of three incidents of misconduct, as follows.
a. The smoking incident
On October 6, 1977, about 3 weeks after he took over as
plant manager at Greer, Anderson called an employee
meeting at which Respondent's Employee Manual was read
aloud in toro. The numerous rules contained therein read, so
far as here relevant:
EArING, DRINKING, AND SMOKING
As a health and safety measure, no eating, drinking, or
smoking is allowed in plant areas. The lunchroom is
provided for those activities.
IIEALTH AND SAFETY
There are several precautions that you can and must
take to help yourself to avoid injury from lead dust,
acid burns, and molten lead burns.
KEEP I AD) DI)tS OtlI OF YOUR MOETII
Refrain from chewing or smoking tobacco while at
work: lead is sure to reach your mouth when you han-
dle your tobacco with unwashed hands.
After the manual was read. Merriman raised a question
concerning the smoking rules. He testified that, under
'Plant Superintendent Branton testified that in January the same em-
ploee had gen him a card. which he passed on to Anderson.
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ravan, employees "couldn't smoke in the plant, but [they]
could smoke outside the door or in the hallway," where the
timecards and lockers were, leading to the lunchroom. Ac-
cording to Merriman, after initially saying that smoking
would not he permitted in that area, Anderson changed his
mind and said that it would be permitted. Anderson, Bran-
ton, and Beachem testified that Merriman's question was
whether the employees could step outside a rear door and
smoke, and that Anderson answered in the negative.,
On October 19, 1977, Merriman and Muriel stepped out-
side the back door. Assistant plant manager Charles S.
Kutschenreuter and production planning manager Thomas
A. Coons the two employees outside, Kutschenreuter testi-
fied that he saw both employees smoking. Coons testified
that he saw Merriman, but not Muriel, smoking. Neither
supervisor said anything to either Muriel or Merriman at
the time. Kutschenreuter, however, reported the incident to
Plant Superintendent Branton, who thereupon summoned
Supervisor Beachem and employees Muriel and Merriman
to the office. At that meeting, both employees denied hav-
ing been smoking.
Unable to convince Branton of his innocence, Merriman
asked to speak with plant manager Anderson. Such request
was in conformity with a section in the Employee Manual
which provides that employees may take up problems or
complaints first with their immediate supervisor and then
with the plant superintendent, with final recourse to the
plant manager. Anderson testified that that provision re-
flects his policy.
Pursuant to his request, Merriman later that day met
with Anderson. Branton, Beachem, and Kutschenreuter.
Anderson, Branton. and Beachem testified that Merriman
admitted having been smoking, but maintained that Kut-
schenreuter could not possibly have seen it. They testified
that Merriman called Kutschenreuter a "lying son of a
bitch." Kutschenreuter did not testify that Merriman ever
admitted the offense, although Kutschenreuter testified that
he did hear Merriman's unpleasant epithet.
At the hearing, Merriman denied having been smoking at
the time in question. He explained that because of the ma-
chinery, the plant, which is not air-conditioned, becomes
very hot, and therefore employees frequently open a rear
door to let some fresh air in, and sometimes the' step out-
side for a bit of fresh air.
The testimony of Branton. Anderson. and Beachem ap-
pears implausible. It seems most unlikely that, having taken
the matter to the plant manager, Merriman then would ad-
mit his guilt. e certainly was rational enough to know that
what was in issue was his alleged smoking. not Kutschen-
reuter's power of observation.
A "Disciplinary Action" memorandum about the inci-
dent was placed in Merriman's personnel file, but he was
neither shown nor told about it. Beachem testified that Mu-
riel received a "verbal warning, the same as Merriman, that
was placed in his record." Beachem further testified that on
a previous occasion he had reprimanded Muriel for unau-
thorized smoking and had placed a memorandum of the
I Branton said: "It was a policy which was posted hroughout the plant
that there was no smoking in working areas"
Beachem testified "he way it was explained during the nieeling was
during an unscheduled hreak, no smoking whatsoever."
action in Muriel's file. Beachem first testified that he had
seen in Muriel's file both Beachem's prior memorandum
and the one by Branton concerning the October 19, 1977
incident. However, almost immediately thereafter, Bea-
chem testified that he had not seen the two smoking notices
in Muriel's file. It appears that actually no written memo
concerning Muriel's alleged smoking on October 19, 1977
was ever prepared. Branton testified that no memorandum
was prepared concerning Muriel "because there was noth-
ing out of the ordinary." Anderson and Branton testified
that no formal action was taken as to Muriel because he
accepted Branton's verbal reprimand and returned to work,
whereas, according to Anderson, Merriman had "take[n]
himself out of the regular routine disciplinary action" by
requesting a meeting with the plant manager. But, as noted
above, such request was specifically provided in Respon-
dent's Employee Manual, and Anderson testified that it was
his policy to permit such appeals.
According to Anderson, Merriman's cardinal sin was his
"outburst" and lack of respect for supervisors, as mani-
fested by the epithet he hurled at Kutschenreuter in the
meeting in Anderson's office. However, other evidence be-
lies Anderson's explanation. Beachem testified that after
the fi:st meeting, but before the meeting with Anderson, he
(Beachem) was told by Kutschenreuter and Coons that
Merriman had been "given a verbal warning and it would
be put into his record." Branton's disciplinary memoran-
dum refers to Merriman's violation of "the posted policy of
no smoking, eating or beverages in the working area" by
smoking "at the back door near the acid storage area."
There was no testimony or other evidence concerning the
storage of acid or any special danger in smoking at or near
such storage area. Nor does it appear that the outside area
was a "working area." Of greatest significance is the fact
that Branton's disciplinary memorandum does not mention
any "outburst" or other alleged misconduct by Merriman
at the meeting in Anderson's office. It is also significant that
the disciplinary memorandum noted that in the Anderson
meeting, Merriman complained of poor equipment.
b. The defeclive hatteries
The second alleged delinquency which purportedly led to
Merriman's discharge occurred on October 25. 1977, when
he allegedly allowed two defective batteries to pass through
the hi-rater, an instrument for testing batteries.
Beachem testified that within 2 or 3 days after Anderson
arrived at the plant, he issued instructions that if any defec-
tive batteries passed the hi-rater and "got out in the field,
the person that was hi-rating would be terminated." Bea-
chem said he immediately transmitted this message to the
employees working under him. However, here, as else-
where, Beachem's testimony was confused. He placed that
event in "October or November. Right after Mr. Anderson
came .... It was two or three days." Beachem fixed the
date by reference to the fact that when Anderson arrived,
Beachem was on vacation, but returned to work within a
few days. But Beachem also testified that he had taken his
Vacation late in November. He persisted in this testimony
even after it was pointed out that Anderson became plant
manager in September.
1170
GENERAI BATTERY CORPORATION
At the beginning of the first shift on October 25. 1977.
Beachem operated the "hi-rater." Merriman testified that at
about 9:30 a.m., Beachem left the hi-rater and Merriman
took over. Merriman also testified, without contradiction.
that the hi-rater was not working properly that day and a
mechanic spent about an hour repairing it. It is not noted
when the repairs were made. It is undenied that the hi-rater
was frequently in poor operating condition.
There was considerable testimony by Respondent's wit-
nesses that in the morning of October 25. two defective
batteries were passed through the hi-rater and their defec-
tive condition was discovered at the finish line, where more
sophisticated testing equipment is used. Respondent attrib-
uted to Merriman the error of improperly allowing the two
defective batteries to pass through the hi-rater. Merriman,
on the other hand, maintained that the batteries had passed
through the hi-rater while he was in the restroom and an-
other employee, J.W. Garner, Jr.. was temporarily doing
the hi-rating. Respondent rejoins that, because of the time
the defective batteries were discovered at the finish line,
they could not possibly have passed the hi-rater while Mer-
riman was temporarily absent.
Merriman testified that he had gone to the restroom at
about 10:40 a.m. ie was away from his work for approxi-
mately 10 minutes. He testified that he later was called to
the office, where Branton said that some defective batteries
had been found on the finish line at about 10:50 or I :(00
a.m. Merriman observed that three people (Beachem, Car-
ter, and Merriman) had operated the hi-rater that morning.'
Beachem first testified that Merriman said he had gone to
the restroom "about 11:00, and the batteries came out
about 10:00." He later testified that the defective batteries
were discovered "[a]bout 10:45" and Merriman said he
went to the restroom a "little after 11:00." He further testi-
fied that he was told about the defective batteries in a man-
agement meeting to which he was summoned "after 11:00,
11:15, 11:30." A disciplinary memorandum prepared by
Branton and placed in Merriman's file says that "the bat-
tery was found 20 to 30 minutes" after 11:00.
Beachem testified that the finish line was "only about 30
feet away, which would only take about 5 minutes to get
there." He added that it normally takes "about 10 minutes"
for a battery to get from the hi-rater to the finish line, with
a maximum of 15 minutes if the line does not run continu-
ously. Branton, however, testified that "there is approxi-
mately a 20-minute lapse . .. in the time the products were
hi-rated and the time it gets to the point on the finishing
line." Beachem and Branton thus were in almost total con-
flict as to crucial facts. If, as Beachem first testified, the
defective batteries were discovered at 10:(00) a.m., it is at
least possible that they had passed through the hi-rater
while he was operating it before Merriman took over. tin-
der Branton's testimony, it was possible that the batteries
had passed through while Merriman was in the restroom.
Anderson testified to the presumably irrefutable fact that
the two detective batteries both could not possibly have
passed the hi-rater during the approximately 10 minutes
that Merriman was away because there was a lapse of 35 to
45 minutes between their arrivals at the finish line. Ander-
' Merriman also testified that when Beachem sopped hi-rating, Merriman
proceeded to do that work. as well as his usual work ot filling h;atteries
son did not attempt to state the precise time each of the
defective batteries actually reached the finish line. The
value of Anderson's testimony was totally destroed b5
Branton, who testified. contrary to both Beachemi and An-
derson, that, while one of the two defecti've batteries "had
an open circuit." and thus could not possibly produce and
record any current, the other one "had a shorted cell" and
could have passed the hi-rater successfully./ Neither Bran-
ton nor any other witness testified as to when either of the
two reached the finish line. Yet the disciplinary memoran-
dum prepared by Branton refers to only one battery errone-
ously passed through the hi-rater. Also, the memorandum
fails to explain why that error was attributed to Merriman.
Additionally, by clear implication, the memorandum con-
firms Merriman's suggestion that the passage of the battery
might have been caused b, a defect in the hi-rater.?
The vagueness of Branton's memorandum is understand-
able. He testified that he asked Beachem who wsas respon-
sible and Beachem named Merriman. However Beachem
did not give Branton any specific times. Branton simply
took Beachem's word as to Merriman's responsibility be-
cause. according to Branton. Beachem "was in the depart-
ment during this time. lie knows the whereabouts of his
people." However Beacherm testified that he was not pre-
sent and knew the time of Merriman's absence only hb ask-
ing Merriman. Furthermore. Branton conceded that the
time lapse would vary if the line broke down, and that ''not
a day goes by without an interruption for various reasons."
In short. when he wrote the disciplinary memorandum.
Branton merely took Beachem's word lor the conclusion
that "Merriman was the operator during the time that this
battery was hi-rated."
Taken together, Branton's testimony and his miemoran-
dum show that it was most probable that the open-circuit
battery passed through the hi-rater during !M1erriman's ab-
sence. Neither Branton nor any other witness provided any
basis for arriving at a different conclusion.
Merriman was not discharged on October 25, when the
defective batteries were found. In the words of Respon-
dent's brief; "Mr. Anderson counseled Merriman about this
quality control problem." But there is no credible evidence
that Merriman was warned of possible discharge, and he
was not informed that a disciplinary report would be placed
in his file. Anderson testified that Merriman was not dis-
charged at that time because he had a pending workmen's
compensation case, which was scheduled for hearing on the
next lax. Anderson did not explain the relevancy of the
Anderson pres .ouslv had esfied unequl.ocall thai "the to htteries
that were caught n the assemhl line could not have passed he test it it had
been done properl "
0 In a pertinent part the memorandum reads:
One particular hatters was too mechanicalls detective Io pass a
hi-rale test When approiached about this matter IMerriman] claimed he
vas in the hathrisonl during the particular time this hatterS was tested.
and that JW. (Garner. Jr.. as the person doing the testing at approxi-
mately 11 AM. the battery Isicl Aas found 20 to 30 minutes later on the
[:lnshing line by the voltage checker. The hi-rate man is totalls respon-
sihle Itr the quality of the product.
Itoweser. based on the time we feel this man was operating the test
equiptnrent sldcl at the time the unit passed the station also, regardless
of the state of he equiptment sicl. the product must not he passed it It
does not indicate;l saii tactors results.
1171
DECISIONS OF NATIONAl. LABOR RELATIONS BOARD
compensation claim. Presumably, discharge for a reason-
able cause should not affect a pending claim.
c. Failure to clock out
In April 1976. Merriman filed a workmen's compensa-
tion claim for lead poisoning allegedly contracted in Janu-
ary 1976. According to Anderson, that claim was settled for
$1500. Anderson also testified that in the settlement, Merri-
man waived any further employment by Respondent. How-
ever, according to Anderson. for some undisclosed reason.
Respondent was unaware of all the terms of the settlement,
and Merriman continued in Respondent's employ.
In 1977, Merriman filed a second workmen's compensa-
tion claim for alleged lead poisoning. The hearing on that
claim was scheduled for October 26, 1977. According to
Merriman's uncontradicted testimony, on October 25 he
told Beachem. his immediate supervisor, that he (Merri-
man), would be absent the next afternoon to attend the
hearing. On October 26. Merriman left the plant at noon-
time. Anderson. personnel and safety director Hatchell, and
Merriman all attended the hearing. Upon returning to the
plant, Hatchell noted to Anderson that Merriman's card
was still in the rack, indicating that he had not clocked out.
At 6:30 a.m. the next morning, when he arrived for work,
Merriman saw Anderson in the parking lot. Anderson,
whose usual arrival time at the plant is around 8:00 a.m.,
was present at 6:30 on October 27 for the purpose of dis-
charging Merriman. According to Anderson. Merriman
said that he knew that he was about to be fired for having
attended the compensation hearing. to which Anderson re-
plied that Merriman was being discharged not for the com-
pensation claim, but because of his failure to clock out a
third violation of Respondent's rules within a short time.
Respondent's Employee Manual, under the general head-
ing, "Pay Practices," contains the following provisions:
TIME CARI)S
Any time that a person leaves the plant for any reason,
it is required that the timecard be punched to record
the absence.
1. Each Employee must punch his own timecard.
2. In the event an employee neglects to punch his
timecard, his department foreman must mark the cor-
rect time on the timecard and initial the timecard. It is
the responsibility of the employee to notify his depart-
ment foreman that he has neglected to punch his time-
card.
Timecards are used for the purpose of paying employees.
Paragraph I in Respondent's rules is in conformity with the
virtually universal rule prohibiting employees from punch-
ing one another's timecards. Obviously if that practice were
permitted. there would be considerable temptation and op-
portunity for employees to record hours falsely, either to
obtain unearned pay or to hide absence, tardiness, or early
departure that might result in disciplinary action. However,
as is implicit in paragraph 2 of Respondent's rule, employ-
ees sometimes forget to punch the clock or for some reason
are unable to do so at the appropriate time. In such circum-
stances, to keep pay and attendance records accurate, su-
pervisors are to record the employees' time. This practice
limits abuse. It is thus doubtful whether Merriman's failure
to punch out on October 26 was violative of either the letter
or the spirit of the rule. Certainly he could not be (and has
not been) accused of any dishonest motive. Beachem., his
immediate supervisor; Anderson, the plant manager; and
Hatchell, the personnel director, all knew precisely where
Merriman was. Respondent suggests no reason why Merri-
man's minor lapse could not be easily remedied by Bea-
chem's marking the timecard in accordance with paragraph
2 of Respondent's published rule.
As noted above, at 6:30 a.m. on October 27, Anderson
was waiting fbor Merriman in the parking lot. Respondent
suggests no reason for urgency. In the absence of any expla-
nation by Anderson, the only reasonable inference is that
he was determined not to give Merriman a chance to see
Beachem and remedy the alleged violation of the timecard.
Anderson's unusual conduct is particularly noteworthy in
view of his testimony that he rarely, if ever, becomes di-
rectly involved in disciplinary matters, and that Merriman
was the only employee he personally had discharged.
The General Counsel contends, additionally, that Merri-
man's discharge was caused, in part, by his protected con-
certed activities in the form of complaints about working
conditions on behalf of himself and other employees.' 0 Re-
spondent does not deny that Merriman often complained
about alleged unsafe and undesirable working conditions.
However, Respondent maintains that Merriman's com-
plaints were neither more frequent nor more vocal than
those of numerous other employees. Accordingly. Respon-
dent contends that there is no basis for finding that Merri-
man was discharged for protected concerted activity in vio-
lation of Section 8(a)( ).
The fact that other employees may have engaged in simi-
lar concerted activities and were not discharged or other-
wise disciplined therefore does not negate the fact that Mer-
riman was discharged improperly. It is well established that
discharges need not be made on a wholesale basis in order
to violate the Act. N.L.R.B. v. W. C. Nabors Company, 196
F.2d 276 (5th Cir. 1952). cert. denied 344 U.S. 865;
N.L.R.B. v. Puerto Rico Telephone Company, 357 F.2d 919
(Ist Cir. 1966); Nachman Corp. v. N.L.R.B.. 337 F.2d 421,
424 (7th Cir. 1964).
That Merriman's complaints contributed to his discharge
is shown by the fact that his protests were mentioned specif-
ically in Branton's "disciplinary" memorandum covering
the meeting with Anderson which discussed the smoking
incident. A discharge for such complaints clearly violates
Section 8(a)(1). Cf. e.g., Carhet Corporation, 191 NLRB 892
(1971). enfd. 80 LRRM 3054. 68 LC 12. 845 (6th Cir.
1972).
5. Respondent's further defense
Respondent contends that Merriman is estopped to claim
that he was discharged for union and/or protected con-
certed activities in violation of the Act because on other
0 Despite Respondent's contention to the contrary. the complaint ade-
quately alleges that Merriman's discharge independently violated Sec.
8(a( 1).
1172
GENERAL BATTERY CORPORATION
occasions he contended, inconsistently, that he was dis-
charged for filing workmen's compensation claims.
As noted above, Anderson testified that in the parking lot
on the morning of October 27. Merriman greeted Anderson
by saying that he knew he was about to be fired for his
workmen's compensation claims. It also appears that in
seeking some remedy through the South Carolina Depart-
ment of Labor and Industrial Commission, Merriman al-
leged that he had been discharged for filing the compensa-
tion claims." Merriman admitted having made such claim.
testifying: "That's part of it. It seems awful funny. I went to
the compensation hearing on the 26th, and the 27th, I was
fired from the job." But Merriman also credibly testified
that in announcing the discharge, Anderson said: "You're
nothing but a trouble maker here.... You're trying to get a
union in the plant here."
There is no inconsistency among claims that the dis-
charge was dictated by a workmen's compensation claim,"
by the employee's protected concerted activities, and/or by
his union sympathies or activities.
The fact is that Merriman filed a charge with the Board
and, after investigation, the Regional Director issued a
complaint. Even if Merriman was originally wrong in his
appraisal of the situation, his error cannot foreclose the
Board's Regional Director from investigating a charge and
then filing and litigating a complaint, or cannot foreclose
the Board from finding violations of the Act on the basis of
the evidence adduced in a trial. In passing, it should be
noted that Respondent does not contend that Merriman
was discharged for filing workmen's compensation claims
even though apparently it had sought Merriman's waiver of
further employment as a term of a prior settlement. Be-
cause neither the General Counsel nor Respondent con-
tends that the discharge was in retaliation for the work-
men's compensation claims, it is unnecessary here to
consider Respondent's argument that the filing of a work-
men's compensation claim cannot constitute protected ac-
tivity under the Act.
6. Conclusion
As shown above, Respondent's evidence as to the reason
for Merriman's discharge is so riddled with inconsistencies
that it is incredible. As recently stated by the Board in Best
Products Company, Inc., supra, 236 NLRB 1024, 1025:
... in Shattuck Denn Mining Corporation v. N.L.R.B.,
362 F.2d 466, 470 (C.A. 9, 1966), the court stated that
where the trier of fact finds that an asserted motive for
discharge is false he can infer that there is another
motive. "More than that, he can infer that the motive
is one that the employer desires to conceal-an unlaw-
ful motive-at least where the surrounding facts tend
to reinforce that inference."
The record, as a whole, leaves no doubt that Merriman was
discharged because he was a "trouble maker," seeking to
'' T.e evidence of these facts was essentially hearsay in the form of written
statements by representatives of the South Carolina agencies. However, the
evidence appears to be reliable and should be weighed appropriately.
t1 Respondent's brief describes the second compensation claim as "com-
pletely frivolous and vexatious" It appears, however, that Respondent's in-
surance carrier had at least paid Merriman's medical expenses
remedy undesirable working conditions by concerted ac-
tivity of the employees through union representation, if nec-
essary. Cf. American Electro Finishing Company, Inc., 212
NLRB 654, 655 (1974). The three alleged reasons for the
discharge were mere pretexts used by Respondent to build a
record which would support the discharge superfically. Ac-
cordingly, I find and conclude that, as alleged in the com-
plaint, Merriman was discharged in violation of Section
8(a)(1) and (3) of the Act."
C. The Discharge of Cox
David Cox was hired on January 19, 1978, and was dis-
charged on March 10, roughly halfway through his 3-
month probationary period. At the hearing, there was con-
siderable evidence concerning his "probationary" status.
Cox testified that when he was hired he was advised that he
would have a probationary period of 3 months for training
and to prove himself on the job. Respondent, on the other
hand, maintains that the regular 3-month probationary pe-
riod is unrelated to any "training periods," which are infor-
mal and may range from I to 3 weeks. According to Re-
spondent, the provision in its Employee Manual for a
"probationary period" means only that at any time within
his first 3 months, an employee may be discharged if it is
concluded that he is not capable" of becoming a satisfac-
tory employee. If that were its meaning, the provision in the
manual would be superfluous, since there is no doubt that
any employee may be discharged at any time for incompe-
tence or for any other lawful reason, or indeed, for no rea-
son at all. The "probationary period" provision in the Em-
ployee Manual supports Cox's version of what he was told
when he was hired. That appears most cogently in the lan-
guage which equates "probationary period" to a trial pe-
riod." The provision also states that:
. . . If it is determined at any time during this [trial]
period that a person is not making satisfactory pro-
gress. his situation will be discussed with him. [Emphasis
supplied.]
Termination is specified only if "during the first 3 months
satisfactory progress has not been made." Read in its en-
tirety, the manual appears to afford every new employee a
period of 3 months to establish an ability to perform satis-
factorily.'6 There is no doubt that probationary employees
'i In view of this conclusion it is unnecessary to determine whether, as the
General Counsel contends, the discharge also was based on other nonunion
concerted activities. Such an additional finding would not affect the remedy
to be ordered.
4 Presumably, the phrase "or willing" should be added, since Kutschen-
reuter and Ravan indicated that Cox was able to do the job, but for some
reason refused to realize his potential.
'' The provision begins:
It is a policy of GBC that everybody be given full opportunity to
learn his job. Therefore, the first three months you are on the job is
considered to be a probationary period
The trial period gives you the opportunity to become acquainted with
GBC and for GBC to determine that you were properly suited for the
type of work for which you were hired. ... (Emphasis supplied.]
'6 Of course, the provision does not either expressly or impliedly insulate
new employees from discharge for reasons other than inability to do their
jobs.
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are fully entitled to the protections of the Act. Georgia-
Pacific Corporation, 204 NLRB 47, 56 (1973).
As set forth above, Respondent knew of the active union-
organizing campaign in January 1978, when Branton gave
Anderson a union authorization card received from em-
ployee Yearwood. During the 10 p.m. break of the second
shift on the night of March 6, 1978, about 15 employees
assembled in the laboratory at the plant. Union cards were
distributed at that time. Employee David R. Gosnell, qual-
ity control inspector in charge of the lab on the second shift,
then told the employees that there had been a misunder-
standing, and the employees could not hold their union
meeting in the lab at that time. It was agreed that the meet-
ing would be held elsewhere at the end of the shift.
Among the employees who had met briefly in the lab
were Jess Rogers and David Cox. Both of them took union
cards. Cox signed his the next day. Rogers, however,
strongly opposed to the Union, did not sign a card.
Early in the morning of the next day, March 7, Rogers
telephoned Anderson to inform him of the union activities
in the plant and of the meeting in the lab. Since Anderson
was reluctant to discuss the matter by telephone, Rogers
spoke with Anderson at the plant later that day. At that
time, Rogers gave Anderson the union card he had received
in the lab.
In testifying, Rogers named some 5 or 6 employees, in-
cluding Cox, who had attended the lab meeting. Rogers
testified unequivocally that he informed Anderson that Cox
had been at the lab meeting. Despite Anderson's denial, I
credit Roger's testimony. This credibility resolution is based
upon the demeanor of the witnesses, the general unreliabil-
ity of Anderson as a witness, and the fact that Rogers, being
antiunion, would have no apparent reason for withholding
information from Anderson.'7 On March 10, Cox was sum-
marily discharged. Respondent contends that Cox was dis-
charged for low production and absenteeism.
In the Burning Department, employees work in teams of
two; one stacks batteries while the other performs the more
skilled operation of burning. On the second shift, employees
are not regularly assigned to specific machines but, rather,
are moved around among the machines on an ad hoc basis.
Similarly, the composition of the two-man teams frequently
changes. Cox started to work for Respondent on January
19, 1978. Through February 8, he worked as a stacker with
various other employees as the team burner. On February
8, Cox served as a burner for the first time. From February
9 on, Cox served as a burner with employee Bryson as his
stacker.
Assistant plant superintendent Kutschenreuter, who de-
scribed himself as a "trouble shooter." testified that he was
assigned to the second shift in the first half of February
because production on that shift was low. Also, Ravan, as
plant superintendent, returned to the Greer plant on Febru-
ary 19.18 Anderson testified that sometime in February he
issued instructions that some low-producing probationary
employees on the second shift be discharged and replaced.
17 Indeed, Anderson testified that their personal meeting was held at Rog-
er's request
i It was stated that Ravan returned to the Greer plant because of produc-
tion problems. However, there was some suggestion that he had previously
been removed as plant manager because of such problems.
Kutschenreuter testified that he recommended to Ravan
that C'ox be among those discharged for poor perfobrmance.
According to Respondent's witnesses, for the first 4
weeks of their employment, new employees in the Burning
Department are paid for "indirect" labor, i.e., whatever
their production, they receive "basic" pay-the amount
which they would receive for production at 100 percent of
the target. Thereafter they are paid on an incentive basis
and are expected to exceed 100 percent of the basic quota.
Production is the same for the burner and stacker who work
together.
Respondent produced a summary of Cox's production to
establish that his production rate was only "50 percent."
However, Respondent's method of calculating was most
misleading. Respondent computed only the number of days
otn which Cox's team's production exceeded 100 percent
and those on which it fell short of 100 percent. Absences
were included in the latter class. The result was, according
to Respondent's summary. 18 "unsatisfactory days" (in-
cluding four absences) out of' a total of 36 working days.'
With regard to Cox's alleged absences, Branton testified
that, "[a]ccording to Company policy," five absences within
6 months was not excessive. Ravan testified that he would
consider 2 or 3 days' absence as "poor attendance" within
ant employee's 3-month probationary period. He then testi-
fied that the reason for the absences "absolutely" would
affect the determination. But he conceded that when he
discharged Cox he did not know the reason for Cox's four
absences.
If computations are made by excluding absences and av-
eraging production for the remaining 32 working days,
Cox's production is found to be 100 percent. Apparently
aware of the distortion in Respondent's calculation of Cox's
production, Kutschenreuter testified that he had cautioned
Cox that he must achieve greater "consistency" in his pro-
duction.20
Cox testified that, during his employment, he was compli-
mented for his work by both Kutschenreuter and supervisor
Marvin Pierce. And at the trial, Ravan testified that Cox
was an "overall good employee." Ironically, it was Ravan
who discharged Cox, allegedly on the recommendation of
Kutschenreuter. Kutschenreuter testified that he normally
evaluates employees on the basis of recommendations made
by their immediate supervisors. However, there is no evi-
dence that Cox's supervisor, Marvin Pierce, was consulted
about Cox.' Indeed, Ravan personally filled out the termi-
nation memorandum as Cox's "immediate supervisor," al-
though he was on a third level above Cox.
The termination notice" is a curious document. It states
that the reason for the termination is "Poor Performance in
Probation Period." The printed form lists five elements in
"performance": Attendance, Attitude, Cooperative, Qual-
19 Respondent also excluded the day of Cox's termination, when his pro-
duction appeared to have been quite high during the time he worked.
20 Ravan testified that Cox's production records showed "consistent sub-
standard performance." The actual records, however, do not verify this. On
some days, his production approached 200 percent.
21 Ravan testified that after March 10 he replaced Pierce by Beachem as
supervisor of the second-shift Burning Department. This change was made
because that shift's production was still low.
22 The "notice" was never even shown to Cox.
1174
GENERAL BATTERY CORPORATION
ity of Work, and Ability. On Cox's termination form each
of these five items is rated "Fair"; on not one is Cox rated
as "Poor," despite the fact that, as noted above, Ravan
testified that Cox's attendance and productivity were
"poor." Ravan conceded that nobody reading the termina-
tion document would have any way of even speculating
that Cox's attendance was "poor" or that his production
was "consistently substandard."
The termination form also contains the question:
"Would you recommend this individual for re-employ-
ment." In answer, Ravan had written: "Conditional."
When pressed as to why he might reemploy a worker who
had been so unsatisfactory as to be fired halfway through
his probationary period, Ravan finally acknowledged that
Cox might be good at some other job in the plant. There
was a certain ironic humor in that answer, since the record
clearly establishes that about 95 percent of all employees
hired are originally assigned to the Burning Department on
the second shift. It is thus most improbable that there
would be some other job into which Cox could be hired in
the future.
Cox testified that he persistently had requested transfer
to the first shift and had been encouraged in that regard by
personnel director Hatchell, who had hired Cox. Cox testi-
fied that on March 10, Hatchell said that Cox would prob-
ably soon be put on the first shift and Hatchell, expressed
incredulity when Cox informed him of the discharge.
One other matter warrants a brief comment. Company
uniforms were ordered for Cox just a few days before his
discharge. That fact reinforces the inference that the deci-
sion to fire him was made suddenly, after Anderson was
informed of Cox's attendance at the March 6 meeting in the
lab.
The timing of Cox's discharge, coupled with the deficien-
cies in Respondent's evidence as to the reason therefor. lead
inescapably to the inference that, as the General Counsel
contends, the discharge was motivated by Cox's union sym-
pathies and was designed to discourage union membership
and support by other employees, thereby being in violation
of Section 8(a)(3).
D. 8(a)(l) Violations
As previously stated, I have found the General Counsel's
witnesses generally reliable and Respondent's witnesses un-
reliable. Against this background, only brief comment is
necessary as to the specific allegations of violations of Sec-
tion 8(a)( 1).
I. On the basis of Merriman's testimony, and despite
Anderson's denial, it is found that on October 6, 1977. An-
derson said that "he had heard from some employee that
[Merriman] was trying to get a union in here." This state-
ment created the impression that employees' union activi-
ties were being kept under surveillance. It was rendered
especially coercive because it was accompanied by Ander-
son's advice that if Merriman was dissatisfied with working
conditions. he should "quit and find another job." and by
Anderson's additional statement that there would never be
a union in the plant as long as Anderson was plant man-
ager.
2. On March 7. 1978, Carl A. Howell, supervisor for
quality control, told employee David Gosnell that there
were to be no further meetings in the lab. When Gosnell
asked how Howell knew that union meetings were being
held in the lab, Howell replied that Anderson had received
a telephone call about the meeting held the previous night.
Anderson had instructed Howell to take appropriate action.
Although, as previously set forth, employee Rogers had
volunteered the information to Anderson about the October
6 meeting, and Respondent's knowledge did not result from
active surveillance, Howell's statement to Merriman would
necessarily create the impression that some employees were
keeping an eye on union activities and reporting their ob-
servations to management.
3. Employee Alfreda Cohen testified that near the end of
February or the first of March, she was called into plant
manager Ravan's office. The meeting was called for the
purpose of informing Cohen of a job transfer. However,
according to Cohen, Ravan first asked her "why [she] was
trying to let the union slip on him." She replied that she
"didn't have anything to do with the union, but if [she] was
going to be treated like [she] was being treated, [she] would
consider joining it."l
At that time, Cohen was transferred from the Shipping
Department to the "C.O.S." Department. She protested be-
cause of the high concentration of lead in that Department.
Ravan admitted that the C.O.S. Department was a high-
lead area, and that he knew that Cohen had suffered previ-
ously from lead poisoning. He maintained, however, that
shipments had declined so much that Cohen's services were
no longer needed in the Shipping Department, and there
were no jobs available other than in the C.O.S. Depart-
ment. Cohen said she would have to look for work else-
where.
Ravan's question why Cohen was "trying to let the union
slip in" was obviously designed to adduce information con-
cerning the status of union activities and the extent of
Cohen's involvement therein. Ravan's question was espe-
cially coercive because it was a direct prelude to Cohen's
being transferred to a position which Ravan knew would be
very disadvantageous to her. Accordingly, I find that the
interrogation violated Section 8(a) 1).24
4. Employee James Moore testified that, during the latter
part of March. his supervisor, Bobby Joe Hall,2 asked
Moore how he felt about the Union. Moore replied that he
did not know much about it, since he had heard only the
Company's side of the matter and had not had a chance to
learn the Union's position. According to Moore. Hall pro-
ceeded to say that the plant would continue to operate if
the Union won, "hbut all the raises and everything would
still be made by the Company.... The Union couldn't
change anything." Moore's testimony continued: "[Hall]
said that if we got the union in they would probably take
away the free insurance that we had.... He said we prob-
ably would have to pay six, seven, eight, or ten dollars a
week." Hall's inquiry as to Moore's feeling about the Union
and his accompanying threat that unionization would prob-
: (ohen testified that she attended a union meeting and signed an autho-
nzation card. tolwever. t dtoes not appear whether she did s before or after
her conversation with Ravan.
24 Ravan discharged Cohen on April 12, 1978. The circumstances of the
discharge do not appear. Neither Cohen's transfer nor her discharge is al-
leged as being in violation of the Act.
2 Although Hall identified himself as a "working supervisor." Respondent
admits that he is a supervisor within the satutory definition.
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably result in the loss of an existing benefit were clearly
coercive within the meaning of Section 8(a)(l) of the Act.
5. The complaint further alleges that Respondent vio-
lated Section 8(a)(l) of the Act on March 27, 1978, when
Kutschenreuter "[r]estricted [employee Gosnell] to talking
wiih his fellow employees only about quality of work be-
cause of said employee's involvement in union activity."
Gosnell testified, without contradiction, that in his position
as a quality control inspector, he had frequent occasion to
speak with numerous other employees. He had never been
restricted as to the subjects he could discuss with the em-
ployees with whom he spoke in the course of his work.
However, on March 27, 1978, with the union campaign in a
state of great activity, he was instructed by Kutschenreuter
to limit his conversation with employees to quality control.
Kutschenreuter denied having restricted the subjects of
Gosnell's conversations. He testified that on the evening in
question, contrary to usual practice, some assembly work
was being performed on the second shift because a new
welding machine had been installed. Kutschenreuter then
testified: "I thought Mr. Gosnell was spending too much
time in the casting area, and I asked that he go up to the
assembly line and spend more time on quality up there,
unless he was dealing specifically with a quality problem in
casting." Kutschenreuter then testified that the new welding
machine had presented quality problems "for a good
while." On further examination, he testified that he believed
Gosnell had simply been "chewing the rag" in the Casting
Department. Kutschenreuter conceded that he had never
previously spoken to Gosnell about talking to other em-
ployees or about "chewing the rag." Although Kutschen-
reuter acknowledged that it was part of his duties as a
"troubleshooter" to know about the union activities in the
plant, he denied having known about the union meetings at
the plant on the evening of March 6.
Although the matter is not entirely free of doubt, and I
am not prepared to credit all of Kutschenreuter's testi-
mony, I believe that Gosnell's testimony is insufficient to
establish that he was, or that Kutschenreuter thought he
was, talking about the Union to the employees in the Cast-
ing Department. While the General Counsel is undoubtedly
correct in stating that "Respondent would not want Gosnell
moving throughout the plant talking to employees about
the Union," I find that, on balance, the evidence is insuffi-
cient to establish that Kutschenreuter's conduct amounted
to an unlawful restriction on union solicitation.
Conclusions
Particularly when accompanied by two discriminatory
discharges and several captive audience meetings devoted
to the alleged corruption and violence of the Teamsters
Union, the coercive conduct described in sections , 2, 3,
and 4 above, cannot possibly be deemed "isolated," as Re-
spondent argues. Similarly, it cannot be held that Respon-
dent's conduct was lawful because there is no direct evi-
dence that any employees were actually coerced or
intimidated thereby. See, e.g., Plasticrafts, Inc. v. N.L.R.B.,
586 F.2d 185, 190 (10th Cir. 1978):
It is settled that Section 8(a)(1) is violated by conduct
of an employer that tends to coercively interfere with
activity protected in 29 U.S.C. §157 (1970) whether or
not it results in changed employee behavior. The
NLRB need not prove that individual employees were
in fact successfully coerced.... This is true regardless
of the number of employees involved.
Or, as recently stated by the Court of Appeals for the Third
Circuit in Frito-Lay, Inc. v. N.L.R.B., 585 F.2d 62 (1978):
"The test is whether the questioning tends to be coercive,
not whether the employee is actually coerced."
Finally, it cannot be said that the conduct referred to was
rendered noncoercive or nonviolative because much of it
occurred in "friendly" conversations. See, e.g., Pittsburgh
and New England Trucking Co., 238 NLRB 1706 (1978),
where, in holding that an employer had unlawfully solicited
employees to abandon a strike, the Board said: "[B]ecause
those solicitations came from a 'friend' who is part of man-
agement, the impact thereof probably was greater in view
of the authenticity and credibility of the source." See also
Coach and Equipment Sales Corp., 228 NLRB 440 (1977),
and Wichita Eagle & Beacon Publishing Co., Inc., 199
NLRB 360, 370 (1972).
III. THE REPRESENTATION CASE
As stated above, some of the Union's objections to the
conduct of the election (2B, 2C, 2D, 2E, and 5) were con-
solidated with the present complaint for hearing. Objections
2B and 2C relate to the conversation between employee
Moore and Supervisor Hall, discussed in section II, B, 4,
above. Since it has there been found that Hall's conduct
constituted unfair labor practices under Section 8(aX)(), it
follows, afortiori, that such conduct interfered with the em-
ployees' right and ability to make a free choice concerning
union representation. Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-87; Bush Hog, Inc., 161 NLRB 1575,
1596 (1966), enfd. 405 F.2d 755 (5th Cir. 1967). The same
considerations are clearly applicable to Objection 2E,
which alleges the unlawful discharge of Cox on March 10,
1978.
Since I have found that the evidence is insufficient to
establish that Kutschenreuter unlawfully restricted Gos-
nell's conduct within the plant, I recommend overruling the
Union's Objection 2D, which is addressed to that alleged
misconduct.
Objection 5 reads:
For the reasons listed in Paragraphs I through 4 above
and by other conduct the company destroyed the labo-
ratory conditions in which the Board has repeatedly
held that elections must be conducted.
This "other conduct" allegation embraces the Ravan-Co-
hen conversation covered in section II, B, 3, above. The
only question concerning resolution of this objection con-
cerns the date of the alleged misconduct. The representa-
tion petition was filed on March 8, 1978. In his Report on
Objections, the Regional Director states that, "t]he Em-
ployer places the date of [the Ravan-Cohen] incident as on
or about March 20." At the present hearing, Ravan testified
that the incident occurred "in early March." Cohen testified
that it occurred "around the latter part of February or the
first of March." On the testimony in the present trial, I find
that the Union has failed to establish that the interrogation
1176
GENERAL BATTERY CORPORATION
of Cohen occurred in the critical preelection period follow-
ing the filing of the Union's charge.
Accordingly, it is recommended that the Union's Objec-
tions 2B, 2C, and 2E be sustained, and Objections 2D and 5
be overruled.' 6
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(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 interrogating employees concerning their union ac-
tivities and sympathies, by creating the impression that em-
ployees' union activities are being kept under surveillance,
and by threatening loss of benefits if its employees choose
to be represented by a union, Respondent has committed
and is committing unfair labor practices within the mean-
ing of Section 8(a)( ) of the Act.
4. By discharging employee Ronald Merriman on Octo-
ber 27, 1977, and employee David Cox on March 10. 1978,
and by failing and refusing to reinstate them, Respondent
has engaged in unfair labor practices within the purview of
Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are those affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has committed and is
committing unfair labor practices, I recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action, as is customarily required to effectuate
the policies of the Act. Since Respondent's unlawful dis-
charges of employees Merriman and Cox strike at the heart
of the Act, I shall recommend issuance of a broad cease-
and-desist order, as the Board customarily does in such
cases.
Having found that Merriman and Cox were discharged
unlawfully, I recommend that Respondent be ordered to
offer them reinstatement to their former jobs, or, if such
jobs no longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority and other rights and privi-
leges, and make said employees whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them, by paying to them sums of money equal to
those which they normally would have earned absent the
discrimination. to be computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest as provided in Florida Steel Corporation, 231 NLRB
651 (1977).2'
It also will be recommended that the result in the election
of April 28, 1978 be set aside and a new election be sched-
uled by the Regional Director for Region II, at such time
as he deems the circumstances permit a free choice by the
employees as to representation.
2 Overrulihg of Objection 5 does not imply rejection of the conclusory
allegation that "the company destroyed the laboratory conditions in which
the Board has repeatedly held that elections must he conducted."
' See. generally., Iis Plumbhing & Hearing Co, 138 NLRB 716 (1962)
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and in accordance with
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER'
The Respondent, General Battery Corporation, Greer,
South Carolina, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Coercively interrogating employees with regard to
their union activities and sympathies.
(b) Threatening employees with the loss of benefits if
they elect to be represented by a labor organization.
(c) Engaging in any conduct which may give the impres-
sion that employees' union activities are being kept under
surveillance.
(d) Discharging or otherwise discriminating against any
employees because of their union activities or sympathies or
because they engage in protected concerted activity.
(e) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Ronald Merriman and David Cox immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of ernings
in the manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or any of its agents, all records necessary to analyze
the amount of backpay due Ronald Merriman and David
Cox under the terms hereof.
(c) Post at its plant in Greer, South Carolina, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion I 1., after being signed duly by an authorized represent-
ative of Respondent, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region I1, in writ-
ing. within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted b) Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment or the United States Court o Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
1177