General Electric Co.

National Labor Relations Board - Board Decisions

Jun 30, 1958

120 N.L.R.B. 1768 (N.L.R.B. 1958)

1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A '
NOTICE TO ALL MEMBERS OF LOCAL 929 AND OF CARPENTERS' DISTRICT COUNCIL
OF Los ANGELES COUNTY AND EMPLOYEES OF DAVIES, KEUSDER & BROWN
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our members and employees of Davies, Keusder &
Brown that:
WE WILL NOT induce or encourage the employees of Davies, Keusder &
Brown, or any other employer, to engage in a strike or concerted refusal in the
course of their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities, or to
perform any services for their employer, where an object thereof is to force
or require Davies, Keusder & Brown, or any other employer or person to cease
using, handling, or otherwise dealing in the products of The Mengel Company,
or of any other producer, processor, or manufacturer, or to force or require
U. S. Plywood Corp., or any other employer or person, to cease doing business
with The Mengel Company or any other person.
LOCAL UNION No. 929, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA,
AFL-CIO,
Labor Organization.
:Dated------------------- By-------------------------------------------
(Representative) (Title)
CARPENTERS' DISTRICT COUNCIL OF Los
ANGELES COUNTY,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
Dated------------------- Roy FANKBONER, Business Representative.
This notice must remain posted for 60 days from the date hereof, rand must not be
-altered, defaced, or covered by any other material.
Hot Point Co., a Division of the General Electric Company and
Sheet Metal Workers International Association . Case No.
13-CA-2390. June 30,1958
DECISION AND ORDER
On November 15, 1957, Trial Examiner Sydney S. Asher issued his
Intermediate Report in the above -entitled proceedings , finding that
Hot Point Co., a Division of the General Electric Company, herein-
after called the Respondent, had engaged in and was engaging in
certain unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in certain
Other unfair labor practices as alleged in the complaint, and recom-
mended that these particular allegations be dismissed . Thereafter,
the Respondent, the General Counsel, and the Charging Union filed
exceptions to the Intermediate Report, together with supporting
briefs.
120 NLRB No. 221.
HOT POINT CO. 1769
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs filed by the parties, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner only to the extent
that they are consistent with this decision.
With respect to the unfair labor practices, the complaint alleged,
in substance, that the Respondent had discriminatorily discharged
employee John H. Mitchell in violation of-Section 8 (a) (3) of the
National Labor Relations Act and that, in violation of Section 8 (a)
(1) of the Act, it had threatened its employees with discharge for
engaging in union or concerted activities.
1. The Trial Examiner found that the Respondent had not discrim-
inatorily discharged Mitchell and recommended dismissal of this'
portion of the complaint to which the General Counsel and the
Charging Union have filed exceptions. We find that the exceptions
have no merit and we agree with the Trial Examiner on this issue and
adopt his findings and recommendation thereon.
2. The Trial Examiner dismissed other portions of the complaint
alleging violations of Section 8 (a) (1) based on statements to em-
ployees made by Joseph Tarczon, a supervisor of Respondent.' The
Trial Examiner either found that the statements were not made, or,
if made , did not constitute violations of Section 8 (a) (1). The
General Counsel and the Union filed exceptions to these findings. We
agree with the Trial Examiner and find no merit to the exceptions.
3. The Trial Examiner found-that the Respondent violated Section
8 (a) (1) through three statements made by its supervisor, Tarczon,,
to employees Mitchell and King. The three statements were denied
by Tarczon and rest on the uncorroborated testimony of Mitchell and
King which the Trial Examiner credited.
The statements are as follows :
(a) Mitchell testified that in November 1956, when he had a union
handbill "sticking out of his shirt pocket" while at work, Tarczon
approached him and said "You know you can be fired for passing out
union literature on company property or company time." 2
i The - Respondent disputes Tarczon's supervisory status. The recard shows that he bas
full charge of a crew of 7 employees in Respondent 's department 160 and for about 2 hours
in the evening , he supervises 3 employees in department 162. The record shows he
exercises the statutory indicia of a supervisor . It also shows that on December 17, 1956,
he disciplined Mitchell by sending him home and effectively recommended that he not be
reinstated . We agree with the Trial Examiner that Tarczon is a supervisor within the
meaning of Section 2 (11) of the Act.
9 The General Counsel and the Charging Union have excepted to the failure of the Trial
Examiner to pass upon an alleged similar incident in November 1956. Mitchell, with
respect to this incident testified that while at work, he showed King a membership card
in another union and Tarczon came up, looked at the card and stated "You can be fired
for passing out union literature on company time or property ." The Trial Examiner
made no finding on this incident , " in view of King's failure to recall the conversation
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Mitchell also testified that in November 1956, while at work,
Tarczon approached him and said that "when he (Tarczon) was
supervisor up on the line before that some of the guys tried to put
something over on him and the whole department at onetime went
into the office and tried to get him fired and . . . they they couldn't
do it. He [Tarczon] said he kicked ten men off the line immediately
after that." 3
(c) King, an employee who generally worked with Mitchell, testi-
fied that in December 1956 Tarczon told him that "Mitchell was going
to get fired for union activities and if [King] kept fooling with
Mitchell he might get fired too."
The Trial Examiner's determination with respect to the uncorrob-
orated testimony of Mitchell in the two instances above raises a
serious question concerning Mitchell's general credibility as a witness
for the reason that in all other seven instances, involving his credi-
bility, the Trial Examiner failed to credit him. In five of these
instances Tarczon gave testimony contradictory to Mitchell and the
resolution of credibility against Mitchell was based not on Tarezon's
testimony alone but on the testimony of others, including witnesses
of the General Counsel. In two other instances not involving Tarc-
zon, the Trial Examiner likewise credited the testimony of others
over Mitchell. The incidents are as follows :
(1) Mitchell denied that he had been reprimanded by Tarczon in
November 1956 and that he had then stated to Tarczon "Why don't
you fire me." Luttrell, a General Counsel witness,4 testified that
Mitchell had told King and himself that he (Mitchell) had made
the above statement to Tarczon under the circumstances related by
Tarczon.
(2) The episode of Luttrell's production count set forth in the
Intermediate Report which was denied by Mitchell was resolved in
favor of Tarczon, based in part on Luttrell's corroborative testimony.
(3) Mitchell denied Tarczon ever asked him to improve his pro-
duction. Tarczon was credited on basis of Luttrell's testimony.
and the fact that if it did occur, it would be merely cumulative." In view of our subse-
quent disposition of Mitchell's testimony, we find it unnecessary to determine the fact
of the alleged statement, other than to note that King, who from the physical descrip-
tion of the incident could not but help hearing it , failed to corroborate Mitchell.
3 The Trial Examiner found the statement to be an implied warning to Mitchell of
reprisal if he engaged in union or concerted activity Militating against this finding is
the fact that though the Trial Examiner found the statement was made in November after
the Union had started its organizational activity, Mitchell testified that the statement
was made "probably about the first of October" at a time prior to his engaging in union
activity in the latter part of October-"Either the last week or the week before " We
note also that the record shows that except for Mitchell, Tarczon never was involved in
the discipline of any employee except that he had recommended the transfer of two men
for drinking on the job Because of our disposition of Mitchell's testimony, infra, we find
it unnecessary to pass on the other issues raised by Respondent with respect to this
statement
4 Luttrell was characterized by the Trial Examiner as a "disgruntled former employee
who before the hearing, in his own words, `got fed up and quit' the Respondent 's employ."
HOT POINT CO. 1771
(4) Mitchell denied he wandered away from his machine and was
reprimanded by Tarczon for such conduct. Tarczon was credited
on the basis of Lutrell's testimony.
(5) Mitchell denied that on December 17, 1956, the date of his
discharge, he stated to other employees that he was going to quit
Respondent's employ. Employees - MacNaice and Luttrell testified
that he -had made the sttteriient and were credited over Mitchell.
(6) Mitchell denied that the conveyor line where he was working
,on the night of December 17 was stopped because he was not properly
doing his assigned work. MacNaice and Waszak, fellow employees
on the line, testified to the contrary and that they had reported
Mitchell's dereliction to their superior, Kittson, who in turn reported
it to Tarczon. They were credited by the Trial Examiner.
. (7) Mitchell denied that after Tarczon had reprimanded him on
the basis of Kittson's report in (6) above, he said to Tarczon, as
he had previously in November, "Why don't you fire me." The Trial
Examiner credited Tarczon.
The Trial Examiner, therefore, credited Tarczon over Mitchell
in five instances where there were direct contradictions as to what
had transpired between them. Likewise in the other two incidents
related above, he refused to credit Mitchell. Thus, in no instance
where there was independent evidence did he credit Mitchell.
The Trial Examiner advances no basis for his resolution of credi-
bility in favor of Mitchell in respect to the two statements found
by him to constitute 8 (a) (1) conduct other than to state that
Mitchell's testimony was more convincing than Tarczon's. Nor does
he set forth the reasons why he credited Mitchell hereon after he
refused to credit him in all other instances.
Mitchell's testimony on these two incidents cannot be judged in
isolation, for as the Supreme Court has stated :
... the facts disputed in litigation are not random unknowns
in isolated equations-they are facets of related human behavior,
and the chiseling of one facet helps to mark the borders of the
next. Thus, in the determination of litigated facts, the testimony
of one who has been found unreliable as to one issue may properly
be accorded little weight as to the next.'
The Board, in Williamson-Dickie Manufacturing Company,6 was
presented with such a situation involving the general credibility of
a witness, Thompson, and not unlike that now presented to us herein.
In that case the Trial Examiner based certain unfair labor practices
upon Thompson's uncorroborated testimony over denials of Respond-
ent witnesses while refusing to credit her in four instances where her
G _V L. R B v. 1%ttshurgh Steamship Company , 337 U S. 656 , at page 659
115 NLRB 356.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
testimony was successfully impeached by the Respondent. The Board
held as follows ( at page 358) :
The Board is always reluctant to disturb the credibility find-
ings of a Trial Examiner who has had the opportunity, which
the Board does not have, to observe the deportment and demeanor
of the witnesses who appear before him." However, although we
do not agree with the Respondent that the General Counsel's
entire case rests u pon Thompson's testimony, we do find, contrary,
to the Trial Examiner, that the foregoing incidents show Thomp-
son to be an unreliable witness. Accordingly, we are unwilling
to give any probative value to those portions of Thompson's testi-
mony which are denied and which are not corroborated by ob-
jective circumstances or the testimony of other credible witnesses..
i Standard Dry Wall Products , Inc, 91 NLRB 544, 545
Applying this rule, we therefore find on the whole record of
Mitchell's testimony that he was an unreliable witness and we are
unable to give any probative value to his testimony as such testimony
is not corroborated either by objective circumstances or the testimony
of other credible witnesses. Accordingly, we shall dismiss those alle-
gations of the complaint.
In view of our disposition of Mitchell's testimony on which 2 of
the 3 findings of 8 (a) (1) violations were made by the Trial Examiner,.
there remains only the finding based on the statement to King. With-
out deciding any other issues raised by the Respondent with respect
to the alleged statement, we find, that at best, it was isolated and that
it would not effectuate the policies of the Act to issue a remedial order
based thereon assuming we would agree with the Trial Examiner that
it was made and if so made that it constituted a violation in the cir-
cumstances. Accordingly, we shall dismiss the complaint in its,
entirety.
[The Board dismissed the complaint.]
MEMBER BEAN took no part in the consideration of the above De-
cision and Order.
INTERMEDIATE REPORT
This case involves allegations that Hotpoint Co., a division of the General Electric
Company , herein called the Respondent , from November 1 to December 14, 1956,
inclusive , through its agent , representative , and supervisor, Joseph Tarczon , threatened
its employees with discharge for union activities ; and that on or about December 17,
1956, through the same agent , it discriminatorily discharged employee John H.
Mitchell and has since failed and refused to reinstate him, because of his member-
ship in, and activities in behalf of , Sheet Metal Workers International Association,
the Charging Party, herein called the Union. It is alleged that this conduct violated
Section 8 ( 1) and ( 3) of the National Labor Relations Act, as amended ( 61 Stat.
136), herein called the Act . After the filing of a complaint by the General Counsel'
I The designation "General Counsel" includes the General Counsel of the National Labor
Relations Board and his representative at the hearing
HOT POINT CO. 1773
and the filing of an answer by the Respondent, a hearing was held before me from
June 18 through 20, 1957, inclusive, at Chicago, Illinois. All partie§ were represented
and participated fully in the hearing. After the close of the hearing, the General
Counsel and the Respondent filed briefs and the Respondent filed an additional
memorandum. These documents have been duly considered.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
There is no dispute, and it is found, that the Respondent is engaged in commerce
within the meaning of the Act and its operations meet the Board's jurisdictional
.standards,3 and the Union is a labor organization within the meaning of the Act.
A. The operations of departments 160 and 162
The Respondent's Chicago plant was, at all material times, divided into depart-
ments. We are here concerned only with departments 160 and 162.
Department 160 is on the ground floor. It is known as the Bench Assembly
Department. There, subassemblies for automatic home laundry machines are
fabricated. The department operates on two shifts. The night shift begins at 4 p. in.
In March 1956 there were about 12 rank-and-file employees working in department
160 on the night shift, but by December 3 this number had been reduced to 7.
The employees of department 160 were paid on an hourly basis, plus a group
incentive bonus.
Department 162 4 is on the balcony. It is called the Crating Department. There,
by means of a conveyor line, completed automatic home laundry machines and auto-
matic dryers are crated and marked. This department also operates on two shifts.
In December there were 7 employees in department 162 on the day shift and 3 on
the night shift.
At all material times, Raymond Stephens was foreman of departments 160 and 162.
Under him, on the day shift, were 2 section leaders-1 for each department. On
the night shift, Stephens was seldom present in the plant. However, there was a
single section leader for both departments on the night shift.
B. The supervisory status of Joseph Tarczon
From June on, Joseph Tarczon was the section leader of departments 160 and 162
on the night shift , under Stephens . The complaint alleges, and the answer denies,
that he was a supervisor within the meaning of the Act.
Tarczon was paid by the hour and punched a time clock. He occasionally worked
at a machine himself. For example, he testified that in October he operated the
tapping machine "6 hours a day." But his principal duties, as he described them,
were "to assign jobs, and take the count at the end of the day, and to hold up my
production, supply materials and tools with which to work." Tarczon also testified,
and the Respondent's brief admits, that "he could recommend discharge and merit
increase; [and] could reprimand and could change work assignments" of the em-
ployees under him. In addition, he testified that he had at least twice transferred
employees from department 160 to department 162, and that he had authority effec-
tively to recommend the rehire of former employees. In view of the above, I am
convinced, and find, that from on and after June, Tarczon was a supervisor within
the meaning of the Act.
C. The advent of the Union
In October some employees in department 160 decided to try to bring in a union.
John H. Mitchell, one of the employees of that department on the night shift, tele-
phoned to the Union's local office about the matter. A representative of the Union
then came to see Mitchell, who introduced him to other employees. The Union's
representative then gave the employees union cards and Mitchell signed the first one.
He also solicited some of his fellow workers to sign union cards. He carried on
2 The Respondent Is a New York corporation engaged in the manufacture of major
electrical appliances, with its principal manufacturing establishment and offices at
Chicago, Illinois. During the year 1956, the Respondent shipped from Its Chicago, Illi-
nois, factory to points outside the State of Illinois manufactured products valued in
excess of $50,000.
8 All dates refer to the year 1956 unless otherwise noted.
Sometimes erroneously referred to in the record as department 161
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these activities in the plant. In November, representatives of the Union distributed
handbills to the employees outside the plant.
The parties are not in agreement as to what the record shows regarding the timing
of Mitchell's. solicitation of othersemployee_s.to)join: the. Union. The General Coun-
sel's brief states: "It is to be noted that although Dischargee John Mitchell carried
much of his union activity on on company property, he did not carry them on on
company time. Rather, according,to his own testimony and that of his fellow
workers, he carried them on before work and after work, during the `breaks' and at
the lunch period." Conversely, the Respondent's brief contends: "Mitchell by
clear and uncontradicted testimony admitted he engaged in union activities on com-
pany property during working hours," that this constituted "a planned and designed
course of conduct . to engage in union activities during working hours" and that
"it cannot now be said that [he was] engaged in, protected activities."
Mitchell testified that his conversations with other employees about the Union oc-
curred during coffee breaks or lunch periods, and his testimony in this respect was
corroborated by that of other witnesses for the General Counsel. However, em-
ployee Robert MacNaice, a witness for the Respondent, testified that Mitchell told
him and employee Lloyd Kee that the Union was a good thing, and that this took
place in department 162 while they were "working on the [conveyor] line." Mitchell
himself admitted that on one occasion he "started to sign up a guy for the Union on
a card" during working time, but put the card back into his pocket when he saw
MacNaice watching him, and that on another occasion he showed his card in another
union to a fellow employee during working time. The Respondent introduced evi-
dence, discussed below, that on several occasions in November, Mitchell wandered
away from his place of work and engaged in conversations with other employees.
However, it was not shown that these discussions pertained to the Union. The Re-
spondent also introduced evidence that in October, Robert Collett, its manager of
labor relations, instructed the foremen that union activities during rest periods and
lunch hours could not be restricted, but "to make sure that union activity was not
carried on during working hours." This policy does not appear to have been made
known to the employees 5 In view of the above, it is found that Mitchell solicitated
his fellow workers to support the Union, that such solicitation occurred in the plant
during rest periods and breaks, and sometimes during working time, but that it was
not shown that these activities either directly interfered with his production or violated
any specific rule of the Respondent announced to its employees.
In October, Tarczon became aware of the Union's attempt to organize the plant.
Several employees testified that he thereafter stated to them that "he was against the
Union, 100 percent," that "it wasn't any good," and that it " is an awful bad
thing." Tarzson himself admitted telling an employee that he "didn't have much
use for it [the Union] coming in." It is accordingly found that Tarczon was
opposed to the efforts of the Union to organize the Respondent's employees .6 This
finding is not made in a critical sense, but merely as a statement of the fact. For
as the United States Court of Appeals for the Fifth Circuit has said: 7
This is not to penalize the employer because of antiunion bias for we recognize
that antiunion bias, strong convictions against unions or opposition to the
underlying philosophy of the Labor Management Relations Act is not itself
an unfair labor practice. , In a free democracy, it is the citizen, not the
Government, who fixes his own beliefs. The personal views of McGahey, or
his colorful, forceful means of expression, do not, unless voiced in manner of
circumstances warranting the inference of a purpose to thwart, impede or
discourage the plain and statutory rights of employees, violate the law, or
infuse power in the Board to coerce a change of heart. [Cases cited.]
McGahey must, of course, obey the law, but he need not believe in it. He
may carry the McGahey beliefs to a McGahey-marked grave.
5' The legality of these instructions given by Collett is not in issue herein.
E Mitchell testified that certain employees had filed a grievance with the "shop
council" in August , and described Tarczon's angry reaction thereto This testimony (ap-
parently introduced to show Tarczon 's antiunion bias ) was objected to by the Respondent
on the grounds of immateriality and remoteness , but was received on the assumption
that it would later be tied in with relevant matters. However , it was not so tied in.
Accordingly, the Respondent 's objection is now sustained and the above -described testi-
mony is stricken.
7 N L. R. B v MeGahey , etc d / b/a Columbus Marble Works, 233 F 2d 400, 409
(C A 5).
HOT POINT CO. 1775
D. Interference, restraint, and coercion
The complaint alleges, and the answer denies, that. from November 1 to
December 14, through Tarczon, the Respondent "threatened [its] employees with
discharge for union` activities," thereby interfering with , restraining, and ' coercing
them in the exercise of rights guaranteed in Section 7 of the Act. The evidence
dealing with this allegation will be discussed below in the order in which the
General Counsel's witnesses testified.
1. Threats to John H. Mitchell
Mitchell testified that, in November while he was at work, he had a union
handbill sticking out of his shirt pocket. Tarczon approached him and said: "You
know you can be fired for passing out union literature on company property or
company time." He further testified that, later that month while he was at work,
he showed employee Richard King his card in another union. Tarczon came up
and looked at the card, and Mitchell put it back in his pocket. Tarczon then said:
"You can be fired for passing out union literature on company time or property."
Mitchell, in his testimony, admitted that he had taken union cards and "two or
three" union handbills into the plant, but denied that he had ever distributed the
handbills on company time. King testified that he never saw any employee distrib-
uting union handbills or cards during working hours. He admitted that Mitchell
had shown him a union card, but believed that this took place during a break.
He could not recall any conversation between himself, Tarczon, and Mitchell.
Tarczon denied that he had seen a union handbill in Mitchell's pocket or a union
card in his hand, or that he had ever discussed the Union or union activities with
Mitchell. He further denied that he had ever seen Mitchell distributing handbills
or union cards to other employees in the plant. With respect to the first incident
described by Mitchell, I was more convinced by - Mitchell's testimony than by
Tarczon's denial, and accordingly find that it occurred substantially as related by
Mitchell. With regard to the second alleged incident, in view of King's failure to
recall the conversation and the fact that if it did occur, it would be merely cumulative,
I make no finding.
The General Counsel would construe .Tarczon's statement "You know you can
be fired for passing out union literature on company property or company time"
as an illegal restraint on an employee's protected right to engage in concerted
activities on his employer's premises during nonworking time. The Respondent,
on the contrary, points in its brief to the testimony of Mitchell that he brought
"two or three" union handbills into the plant, and refers to an employer's "right to
have its plant clean and orderly." Undoubtedly an employer may, in the interest
of cleanliness, nondiscriminatorily prohibit the distribution of literature in its plant,
even during nonworking time. Here, however, there is no evidence that the Re-
spondent had promulgated any rule pertaining to the distribution of literature-
unless, of course, Tarczon's statement itself be deemed such a promulgation by one
authorized to do so.- In view of the Respondent's position that Tarczon "was, at
most, a very minor supervisory employee," it cannot be seriously contended that
he was authorized to establish company policy in such an area. Moreover, in view
of Tarczon's denial that he had ever seen Mitchell distributing handbills in the
plant , no necessity for any such rule has been shown. In any event, the rule as
announced by Tarczon to Mitchell was clearly discriminatory, as the thrust of its
prohibition was limited to union literature alone. Thus, it constituted disparate
treatment as to the subject matter of printed materials allowed to be distributed
in the plant. Under all the circumstances here present, it is found that Tarczon's
statement to Mitchell in November constituted a threat of reprisal which illegally
interfered with, restrained, and coerced Mitchell in his right to distribute union
handbills in the Respondent's plant during nonworking time .8
8 Atlas Boot Manufacturing Co, Inc., 116 NLRB 565, 574; Delta Finishing Company
(Division of J P. Stevens & Co., Inc-Plant No. 3), 111 NLRB 659, 661; and Maekse-
Lovejoy Manufacturing Company, Timber Products Manufacturing Company Division,
103 NLRB 172, 176 See also Commercial Controls Corporation, 118 NLRB 1344 The
cases cited in the Respondent's brief (Tabin-Picker & Co , 50 NLRB 928; North American
Aviation, Inc, 56 NLRB 959; and The Goodyear Aircraft Corporation, 57 NLRB 502)
are distinguishable In all of them a rule had been promulgated by an official presum-
ably authorized to do so, and the rule prohibited the distribution of all literature re-
gardless of subject matter, not merely union literature alone. Moreover, in the Tabsn-
Picker and Goodyear cases the necessity for the rule was shown by evidence that the em-
ployees who were warned had been observed distributing literature in the plant.
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell further testified that, in November while he was working, Tarczon
approached him and said that "when he [Tarczon] was supervisor up on the line
before that some of the guys tried to put something over on him and the whole
department at one time went into the office and tried to get him fired and . they
couldn't do it. He [Tarczon] said he kicked ten men off the line immediately after
that." Tarczon denied making such a statement. Mitchell's testimony about this
incident was more convincing than Tarczon's denial and it is therefore found that
Tarczon made the remark attributed to him by Mitchell. Such a statement that
Tarczon had punished 10 men because of their concerted action, particularly when
made, as here, during the course of a union's organizing drive, carried with it an
implied warning of reprisals for any repetition of concerted activities. It was
therefore coercive.
Mitchell further testified that, in the same conversation, Tarezon stated that if
Mitchell "watched [his] 'step and kept in line with Hotpoint," Mitchell "could get
into the same position he [Tarczon] was in." It is not clear whether the General
Counsel introduced this testimony in an attempt to establish a promise of benefit
to Mitchell if he refrained from union activities. There is no allegation in the
complaint that Tarczon made any promise of benefit to employees in order to induce
them to forego their right to engage in concerted activities. The Board has stated
that "when an issue relating to the subject matter of a complaint is fully litigated
at a hearing, the Trial Examiner and the Board are expected to pass upon it even
though it is not specifically alleged to be an unfair labor practice in the complaint." 9
In line with that rule, it is found that the statement in question, if made, related to
the subject matter of the complaint. However, Mitchell was not cross-examined
with respect to this testimony, nor was Tarczon 'questioned about it. _ Moreover,
neither brief refers to the alleged incident. It is accordingly found that the matter
was not "fully litigated" at the hearing, and no finding with regard to it will be
made.io
2. The threat to Richard King -
In November during the night shift, Tarczon received a telephone call from Mr.
Mangus, described by Tarczon as "the senior man in charge at night." Mangus
informed Tarczon that one of his employees on the balcony was using company
time discussing the Union, and directed him to investigate. Tarczon accordingly
went to the balcony, where he found employee Richard King engaged in conversation
with a plumber employed by the Respondent on the night shift. King was not
working." According to King, Tarczon told them that he had received a telephone
call that they were "talking union," and that if they did not stop they would be
discharged; King then asked who the call was from but Tarczon refused to reveal
this. In -his testimony in chief, King denied that he had been discussing the Union
with the plumber that night. On cross-examination he admitted that he had been
talking to the plumber, but was unable to recall the subject matter of the conver-
sation . Tarczon's version was somewhat different. According to Tarczon, he told
King that he could discuss the Union during lunch hour or break time, but not to
use company time for this purpose, and that he knew better; Tarczon directed King
to get back to work and King complied promptly. Tarczon denied that he had
threatened King with discharge. The plumber in question, described as about 35
years of age, short and heavy with a light complexion, and nicknamed "Georgia,"
was not called as a witness by any party.
The General Counsel contends that Tarczon in effect directed King not to discuss
the Union at all on company property, thus illegally limiting his protected right to
engage in union activities on nonworking time. Even if King's version of this inci-
dent were to be adopted, there would be no merit in this contention. For Tarczon's
warning was made on working time, while King was not working when he should
have been. Moreover, as mentioned above, the employees discussed the Union
freely on their lunch hour and during breaks and were not restricted in this respect.
• Monroe Feed Store, 112 NLRB 1336, 1337. But compare Martell Mills Corporation,
118 NLRB 618, first paragraph in footnote 3 I note the contrary holding in N. L. R. B.
v 1. B S Mfg Co., et at., 210 F 2d 634, 637 (C. A 5). However, with all due respect
for the United States Court of Appeals for the Fifth Circuit, I am constrained to follow
the Board's rule until the United States Supreme Court has ruled to the contrary.
w Ford Radio d Mica Corporation, 115 NLRB 1046, 1075.
ii Although King was ordinarily assigned to department 160, he had that night been
cleaning the glue machine in department 162. The plumber (who was not under Tarczon's
supervision) was repairing a broken steam hose.
HOT POINT CO. 1777
It is accordingly found that, under either King's or Tarczon's version, Tarczon's
warning to King under the circumstances was not violative of the Act.ia
King further testified that, while he was working early in December, Tarczon
approached him and stated "that John Mitchell was going to get fired for union
activities, and if [King] kept fooling with [Mitchell] that [King] might get fired, too."
Tarczon denied that he had made such a statement to King or any other employee.
Based on my observation of the witnesses, I credit King's testimony in this respect,
and find that the event took place substantially as described by him. That this type
of statement made by a supervisor to an employee is coercive is so clear that no
citation of authority is needed.
King further testified that he had been given a performance rating 13 which dis-
pleased him, that he voiced his dissatisfaction to Tarczon on December 17, and that
Tarczon replied that if King "would cooperate with him more," he would give King
a better performance rating "the next time." King also testified that in the same
conversation he complained that he was not receiving enough overtime work and
that Tarczon answered that if King "would cooperate with him, he would see that
[King] got more overtime." The General Counsel's purpose in introducing this
testimony is not clear. It may perhaps have been intended as tending to show a
promise of benefit designed to induce King to refrain from union activities. If so,
it is outside the scope of the complaint. As King was not cross-examined about this
incident and Tarczon was not questioned concerning it, it is found that it was not
"fully litigated" at the healing. Accordingly, no finding will be made with regard
to it.
3. The alleged threat to Carl Luttrell
Carl Luttrell, a witness for the General Counsel, was employed on the night
shift in department 160. He testified that he had had 10 or 15 conversations with
Tarczon about the Union, in 1 of which Tarczon stated that it would be better if
he (Luttrell) did not join the Union, or a "statement along that line." Tarczon
admitted that he had discussed the Union with Luttrell 6 or 7 times in November,
December, and January, 1957, but denied that he had ever indicated to Luttrell that
he might endanger his job if he engaged in union activities. Luttrell's testimony
regarding this alleged remark is open to serious question, both because it was in
response to a leading question propounded by the General Counsel on direct ex-
amination, and because Luttrell was a disgruntled former emloyee who before the
hearing, in his own words, "got fed up and quit" the Respondent's employ. It is
accordingly found that the General Counsel has failed to prove by credible or
convincing evidence that Tarczon indicated to Luttrell on the occasion in question
that he might jeopardize his employment if he engaged in union activities.
4. The alleged threat to Harry L. Vaughn
Harry L. Vaughn, an employee in department 160 on the night shift, testified
that Tarczon on one occasion remarked to him that the Union "wasn't any good"
and then told him not to listen to what Mitchell said. Other than that this took
place on a Friday or Saturday' night, Vaughn was exceedingly vague concerning
the date of this conversation. Tarczon admitted that he had one conversation
with Vaughn about the Union in November but denied that he mentioned Mitchell's
name or that he indicated to Vaughn that his employment was in danger if he
engaged in union activities. Based on my observation of the witnesses, and despite
Vaughn's confusion regarding dates, I credit Vaughn's testimony in this respect,
and find that the conversation took place substantially as related by him, and that
it occurred in November. Did Tarczon's admonition "not to listen to" Mitchell
about the Union amount to an illegal restriction upon Vaughn's protected right to
discuss the Union with Mitchell? I think not. To consider this a prohibition
against all union discussion with Mitchell would be to place an unrealistic, literal,
and altogether strained interpretation upon it. Rather I consider that Tarczon was
merely importuning Vaughn not to be persuaded by Mitchell's prounion arguments.
Hence it is concluded that the statement was protected by the free-speech provision
of 'ection 8 (c) of the Act.
Vaughn further testified that, in December while he was at work, Tarczon asked
him what he thought about the Union and whether he had joined, and that he
replied that he was for it. Tarczon denied that he had ever asked Vaughn if he
13 Haleyville Textile Company, Inc.. 118 NLRB 1157; and Atlas Boot Manufacturing
Co . Inc . supra
13 Each employee received such a rating at periodic intervals.
483142---59-vol. 120-113
1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had joined the Union . The complaint does not allege that Tarczon illegally inter-
rogated employees about their union affiliations , and the General Counsel's brief
states: "General Counsel does not take the position that there was illegal inter-
rogation under the Act." It is therefore found that this matter was not "fully
litigated " at the hearing , and it will not be discussed further.
5. The alleged threat to Lloyd Kee and Orville Stewart
Lloyd Kee was an employee on the night shift who was originally assigned to
department 160 but later transferred to department 162. He was . working in
department 162 on December 17, the night when Mitchell was discharged, as is
more fully described below. Kee testified that at about 8 p. in. on that night
Tarczon stated to him , in the presence of Orville Stewart , another employee of
department 162 on the night shift : "I just discharged John Mitchell. No use to
feel bad about it. He was talking union to the boys . There are a few other guys
who will go out if they don ' t watch their talk." Tarczon admitted that he had
a conversation with Kee that night at about 9:30 p . in. in which he informed Kee
that he had sent Mitchell home , but testified that this was all that he had said
to Kee about the matter. Stewart did not testify . The General Counsel introduced
evidence , which is credited , that Stewart 's whereabouts at the time of the hearing
was unknown to the General Counsel , and that reasonable efforts to locate him
had proved fruitless . Based on my observation of the witnesses , I credit Tarczon's
version as the more accurate , and accordingly conclude that no statement violative
of the Act was made during this conversation.
6. Conclusions regarding interference , restraint , and coercion
The Respondent , in its brief , contends that the remarks described above were not
violative of the Act because "there is no evidence that either of them [Mitchell
and King], . after the statements allegedly were made was in fear of losing
his job. Such statements , even if made , were neither understood nor inter-
preted by the employees involved as `threats' of discharge ." Pointing to the use
by Tarczon of such words as "can" and "might," the brief continues : "Those state-
ments were completely isolated, they were not positive in nature and were nothing
more than conjecture or expressions of opinion within the limits of permissible
free speech ." The Respondent misconstrues the issue . The test is not whether
Mitchell and King were in fact coerced . Rather it is "whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere with the free
exercise of employee rights under the Act." 14 Applying that test, it is clear, and
I find, that the remarks set forth above reasonably tended to interfere with the
employees ' rights. Moreover , they cannot fairly be considered as mere expressions
of opinion within the meaning of Section 8 (c) of the Act. Nor can I agree that
the remarks were "isolated."
The Respondent , in its brief , further maintains that Tarczon 's acts are not
imputable to it because "no employee under these circumstances would be justified
in believing that the four isolated statements . were made for or on behalf of
Respondent or that they were expressions of Respi mdcnt 's policy by one having
actual or apparent authority to speak for Respondent . . . On the basis of the
undisputed evidence that Respondent never had ki,owledge the statements were
made, it clearly was in no position either to ratify them or disclaim and order
their discontinuance . Similarly, there is no evidence that such isolated state-
ments . . . were authorized , encouraged , or approved by the Respondent or that
they were a part of a program of intimidation or anti-unionism." This defense
lacks merit . Although Tarczon was a minor supervisor , his pronouncements
carried the weight of those of an official possessed of authority effectively to
recommend the discharge of employees working under his supervision . Having
proved this , it was not incumbent upon the General Counsel to go further and
show affirmatively that Tarczon 's utterances accurately reflected the Respondent's
views 15 Under the circumstances here present , it is found that the Respondent
is liable for Tarczon 's conduct.
In view of the above, it is found that , since November 1956, the Respondent,
through Tarczon , has interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act. This conclusion is based
upon Tarczon's remark to Mitchell in November that "You know you can be fired
for passing out union literature on company property or company time"; Tarczon's
statement to Mitchell in the same month that he had penalized 10 employees for
11 N L R. B v. Wilbur H. Ford d/b/a Ford Brothers , 170 F. 2d 735 , 738 (C. A. 6).
15 N L . It. B. v. Globe Wireless, Ltd ., 193 F. 2d 748 , 751-52 ( C. A. 9).
HOT POINT CO. 1779
engaging in concerted activities; and Tarczon's warning to King in December that
Mitchell was going to be fired for union activities and that if King "kept fooling"
with Mitchell he, too, might be discharged.
E. The work record of John H. Mitchell
John H. Mitchell was employed by the Respondent on the night shift in depart-
ment 160 from March until December 17. In July he received an overall perform-
ance rating of "Good," 16 resulting in a merit wage increase of 5 cents per hour.17
All parties agree that until about October or November, Mitchell was, at least,
an average operator and his work during that period was good. It is so found.
The Respondent contends, however, that after October or November his work
"tailed off," as Tarczon expressed it. On the other hand, Mitchell maintained
that his production improved after October.
With respect to Mitchell's work performance Tarczon testified: In June, Mitchell
was broaching tub supports. He also did "quite a bit" of putting a small nylon
tubing on a spring, and also worked a few nights in the cement room as a finisher.
In October an engineering change was made in the fabrication of tub supports, so
that the operation became that of tapping them on an automatic tapper. This
was a one-man job. Over a period of a week or 10 days, Tarczon made a time
study of the tub support tapping operation, as a result of which he arrived at a
production rate of 223 units per hour. Mitchell was assigned to tapping tub
supports during October and November. He was only producing 125 units per
hour. In November, Tarczon observed that Mitchell was away from his machine
during working hours "quite a bit." On one occasion, Tarczon saw Mitchell leave
his place of work for about 20 minutes, during which he went from one employee
to another and engaged some of them in conversation. A few days later, Tarczon
told Mitchell that he was not approaching the production rate "and should try to
stay by his machine more." Mitchell retorted: "If I'm no good, and you say so,
why don't you fire me?" Tarczon replied that he did not want to discharge Mitchell,
he only wanted him to improve his production. After this, however, Mitchell
continued to produce only about 125 units per hour. Late in November, Mitchell
was transferred to crating work in department 162 from 4 to 6 p. in. each night,
after which he worked with King assembling spinner shafts for the remaining 6
hours of each shift. This was a 2-man operation, and Tarczon had determined
through his time study that I man working for 8 hours and another working for
6 hours on this job normally should be able to produce approximately 800 units
per shift. During the week beginning December 10, King and Mitchell produced
between 525 and 550 items per shift-about 200 to 250 items under any other
team performing the same operation. When King was paired with any other
employee on this job, the team produced about 800 items per shift. While
admitting that it was his general rule to talk to all his employees regarding their
production at one time or another, Tarczon testified that Mitchell was the only
employee who failed to produce his "quota" for 4 or 5 successive days.
Mitchell testified that he always produced the required rate, and that Tarczon
had commended him as a good worker and in November told him that he was
the fastest man on the tapper. While admitting that he talked to other employees
during working time, he denied that he ever left his machine during working time,
except to go to the men's room. He further denied that Tarczon had ever asked
him to improve his production, or that he (Mitchell) had ever suggested that
Tarczon discharge him.
King, as has been previously mentioned, was dissatisfied with the performance
rating he had received in July. He testified that, on December 17 after Mitchell's
discharge, he (King) asked Tarczon: "How come Mitchell got a better work record
than I did?" and that Tarczon answered: "Mitchell was a good man." The General
Counsel relies heavily upon this conversation as proof that Tarczon considered
Mitchell a good employee. However, in my opinion, this reliance is misplaced.
The conversation obviously referred to the performance rating given the previous
July, and proved no more than that Mitchell was considered a good workman at
that time. That this is so is further shown by King's admission, on cross-examina-
tion, that Tarczon informed him that he had discharged Mitchell because he was
" There were four possible ratings : excellent, good, satisfactory , and unsatisfactory.
As Tarczon had only recently been made section leader of department 160 on the night
shift, he did not fill out Mitchell's rating ; instead It was done by the section leader
on tho day shift.
'7 Alitchell also received several other wage increases , but none of the others constituted
a merit increase.
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not a good employee. Further, on cross-examination, King at first admitted that,
when he and Mitchell worked together for a week on spinner shafts, Tarczon told
them that their production was too low. Later, however, King testified that on this
occasion he had been paired with someone other than Mitchell.
Carl Luttrell, a witness for the General Counsel, testified on cross-examination
that, late in November or early in December, Mitchell took over a broaching
machine on which Luttrell had been working; that at the end of the day Mitchell
turned in his own count but failed to turn in that of Luttrell, as he was supposed
to do, and that the matter was called to Tarczon's attention. Tarczon partially
corroborated Luttrell's testimony in this respect, but Mitchell denied it. Luttrell
further testified on cross-examination that, late in November in King's presence,
Mitchell related that Tarczon had complained to him about his work and that he
(Mitchell) had told Tarczon "if he didn't like the way he was working, why didn't
he fire him." King neither corroborated nor contradicted Luttrell's testimony
regarding this conversation.
As previously mentioned, Luttrell was a disgruntled former employee of the
Respondent. As such, it is unlikely that he would fabricate testimony favorable to
the Respondent, especially on cross-examination by the Respondent's counsel His
testimony regarding the two incidents related above is therefore credited. Con-
versely, the testimony of Mitchell that Tarczon never asked him to improve his
production and that he (Mitchell) never suggested that Tarczon discharge him is
not credited. I consider Tarczon's testimony about Mitchell's failure to produce his
quota as somewhat exaggerated, particularly because the Respondent neither intro-
duced its production records to corroborate Tarczon's testimony on this point, nor
explained its failure to do so 18 On the entire record, however, I find that in
November, Mitchell wandered away from his machine during working hours, that
when Tarczon reprimanded him for this and for low production he suggested that
Tarczon discharge him but Tarczon did not do so; that on one occasion Mitchell
improperly failed to turn in Luttrell's count on a broaching machine, and that this
incident was known to Tarczon.
One other matter should be mentioned here. Tarczon testified that MacNaice,
one of the employees in department 162, requested him to replace Mitchell with
someone else in department 162, but that he (Tarczon) declined to do so. MacNaice,
also a witness for the Respondent, could not recall having had such a conversation
with Tarczon. I deem it unnecessary to make any finding with regard to this alleged
incident.
F. The discharge of John H. Mitchell
1. Facts
On December 17, Mitchell worked, as usual , in department 162 from 4 to 6 p. M.
Working with him those 2 hours were 3 regular employees of department 162 on
the night shift: Lloyd Kee, Robert MacNaice, and Orville Stewart. In addition,
two employees of department 162 on the day shift were working overtime. There
were Robert Kittson, a section leader, and Anthony Waszak, a nonsupervisory
employee Between 4:30 and 5.30 p in Mitchell told MacNaice, in Kee's presence,
that he was going to take off a week to go home at Christmas. MacNaice asked:
"Well, what if they fire you?" Mitchell replied that he did not care, that he was going
to get a job at Sunbeam when he came back.19 Mitchell was assigned that night
is At the end of each day, the employees verbally reported their "count" to Tarczon, who
recorded this information on sheets Tarczon testified : "We kept the sheets a short
period of time, six months or so" A copy of the chaige herein was served upon the
Respondent on December 21, when the records concerning the months of October, No-
vember, and December were presumably still available. Tinder these circumst'inces, the
Respondent's unexplained failure to produce records presumably in its possession gives
rise to an inference that, if produced the records would not have been favorable to the
Respondent. 2 Wigmore, Evidence (3d ed.) sec. 284; and N. L. R. B. v. Waitick, et al.,
198 F 2d 477, 483 (C A 3)
19 The findings of tact with regard to this conversation are based upon MacNaice's
credited testimony Kee neither corroborated nor contradicted MacNaice on this point
Mitchell admitted that he told someone he had filled out an application at Sunbeam before
coming to work for the Respondent, and also admitted that he had planned to go home
for Christmas, but testified that he "was pretty sure" that he never stated that he in-
tended to leave the Respondent's employ and go to wok at Sunbeam His denial in
this regard is not credited. In this connection, it is noted that Luttrell, a witness for
the General Counsel, admitted on cross-examination that Mitchell might have said that
he was dissatisfied with his job with the Respondent and was going to quit.
HOT POINT CO. 1781
to inserting corner posts in cartons before they were sealed. Because the corner
posts were not being inserted rapidly enough to keep up with other crating opera-
tions, the conveyor line in department 162 had to be temporarily stopped several
times between 4 and 6 p. m. until the corner posts were caught up.°° During the
6 p. in. break, Mitchell left department 162 and, as usual, returned to department
160. Meanwhile Kittson, Waszak, and MacNaice gathered in department 162.
Kittson asked Waszak how he liked the night shift. Waszak replied that it was
not "so good," because the employees did not all cooperate. Pressed by Kittson
for details, Waszak explained that there was one employee, Mitchell, who was not
doing his work. He added that they would rather work alone than have somebody
who was not helping them do the job. Kittson then asked MacNaice why he
(MacNaice) had not told him (Kittson) that Mitchell was not doing his work.
MacNaice responded that he had not reported the matter because Mitchell had
said he was going to quit the Respondent's employ and go to work for Sunbeam.
A few minutes later, Kittson told Tarczon that the employees in department 162 had
complained that Mitchell was not doing his work and that, if Tarczon did not have
anyone else to send to department 162, "we would just as well leave him [Mitchell]
downstairs [in department 160] because the fellows came and said they were doing
most of the work anyway, so they would rather do it alone." Tarczon promised
to "have a talk with" Mitchell. Tarezon then went to Mitchell, who was operating
a broaching machine in department 160. It was then about 6:10 or 6:15 p. m.
There are two different versions of the conversation which ensued. According
to Mitchell, Tarczon said: "Mitchell, they say you are no good upstairs." Mitchell
asked: "Who says I'm no good?" Tarezon answered: "They all say you are no
good. You are no damn good down here, either. Are you going to change your
attitude in the shop here?" Mitchell replied: "I don't know what you mean by
attitude," and Tarczon retorted: "All right, you are fired." Mitchell denied that
he suggested that Tarczon discharge him. Tarezon gave a somewhat different ver-
sion. According to Tarezon, he told Mitchell that he had been getting complaints
from "upstairs" that Mitchell was "not cooperative up there," and added: "Your
work down here isn't much good. Are you going to improve it or do something
about it?" Mitchell asked: "Who told you my work upstairs was no good?" Tarczon
answered: "The men you work with " Mitchell then stated: "Well, if they said
so, it must be so. Why don't you fire me?" Remarking that this was the second
time that Mitchell had asked that question, Tarczon then directed Mitchell to go
home. He also informed Mitchell that he should report to the personnel office the
next morning, and that he could "appeal the case or see the foreman." Based on my
observation of the witnesses, and the similarity of the question Tarczon attributed to
Mitchell ("Why don't you fire me?") to the question Mitchell had asked of Tarczon
in November, as found above, I credit Tarczon's version of this conversation as
substantially more accurate than that of Mitchell.
After this conversation, Mitchell left the plant. Tarczon then prepared the fol-
lowing report, which he left on Stephens' desk:
12-17-56.
Mr. STEPHENS: Last night I was told by Kittson that the man I sent up from
4 to 6 wasn't co-operative while up there but tried to loaf his time away. When
he came down I approached him with a possible reprimand in mind for him,
he wouldn't listen to me instead asked me to fire him. He pulled the same
thing on me about three weeks ago, so this time I did fire him. His work was
below standard for over a month. He couldn't get alcng working with others.
I kept him on jobs where he worked alone, but there was friction on the least
bit of contact he had with others. He got into an argument last Thursday, when
an operator before him left a count on a tag on the machine. If I wasn't present
they may have come to blows.
I could write many pages on what a problem he was, but just asking Kittson or
Mack [MacNaice] upstairs on his character will be self-explanatory. So please
don't reinstate him.
His name:
John Mitchell-160041.
He wore a brown hat all the time and had a spring to his walk.
Thanking you,
I'm fully aware I should be building up my personnel.
JOE.
20 This finding is based on the credited testimony of Waszak and MacNaice, witnesses
for the Respondent , corroborated by that of Kee , a witness for the General Counsel
Mitchell denied that it was necessary to stop the conveyor line on December 17. His
denial in this respect is not credited.
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the next day, December 18, Stephens filled out a "termination record" which
showed the involuntary separation of Mitchell at 6:15 p. in. on December 17, and
checked the reason as "incompetent ." 21 It also rated Mitchell as "Fair " in produc-
tion, quality of work , skill, and dependability , and as "Poor" in cooperation and
conduct. On the same day , Mitchell returned to the plant and asked an unidentified
girl in the personnel office if he "could see somebody about the job." After making
a telephone call, the girl told Mitchell to go to the payroll office and obtain his pay-
check. He complied . Mitchell has not returned to the Respondent 's plant since then.
2. Contentions and conclusions regarding Mitchell's discharge
The complaint alleges, and the answer denies, that Mitchell was discharged on
December 17 because of his activities in behalf of the Union . At the hearing and
in its brief , the Respondent admits that Mitchell was discharged by Stephens on
December 18 on Tarczon 's recommendation , but contends that neither Tarczon nor
Stephens had "knowledge of Mitchell 's union membership or activities at the time of
the discharge."
Tarczon denied that, prior to December 17, he knew that Mitchell was a member
of the Union , or was engaged in any union activities. On the other hand , Mitchell
testified that early in November he told Tarczon : "Most of the places I worked
have been union and I have always been a union man." Mitchell 's testimony in this
respect is credited . Moreover , it has been found above that in November , Tarczon
warned Mitchell (who had a union handbill sticking out of his shirt pocket) : "You
know you can be fired for passing out union literature on company property or com-
pany time ." It has been further found above that early in December , Tarczon warned
King that Mitchell "was going to get fired for union activities ." Finally, it has been
found, above , that in November , Tarczon importuned Vaughn not to be persuaded
by Mitchell 's prounion arguments . It is accordingly found, contrary to the Respond-
ent's contention , that since November , Tarczon had been aware of Mitchell's union
adherence . This finding does not, of course, dispose of the matter of Mitchell's
discharge . There remains the issue of whether or not Mitchell's known union activi-
ties were a substantial or motivating reason for his discharge . And on this issue, the
General Counsel has the burden of proof.
There are factors which militate in favor of the General Counsel 's position.
Tarczon was shown to have been opposed to the unionization of the Respondent's
plant, and to have made a number of statements violative of Section 8 (a) (1) of
the Act. This , however, is not alone sufficient to support a finding of an illegal
discharge . 22 One of the statements found violative of the Act was Tarczon's
warning to King in December that "Mitchell was going to get fired for union
activities ." If considered in isolation , this statement undoubtedly lends support to
the General Counsel's contention that Mitchell 's discharge was discriminatory.
However, it cannot properly be viewed in a vacuum. Rather it must be considered
in the context of other events , including the fact that Mitchell, in November,
wandered away from his machine during working hours, and especially the circum-
stances of the discharge itself.
Before turning to the actual discharge , let us first consider two prior incidents.
On one occasion , when Tarczon spoke to Mitchell in November about his produc-
tion, and when Mitchell retorted : "If I'm no good , and you say so, why don't you
fire me?" Tarczon , in the face of this insolence , merely replied that he did not
want to discharge Mitchell, he only wanted him to improve his production. On
the. other occasion, when Tarczon learned that Mitchell had failed to turn in
Luttrell 's count on the broaching machine, there is no evidence that Tarczon either
disciplined Mitchell or reported the matter to his superior . Had Tarczon been
anxious to be rid of a known union supporter , he might well have seized upon
either of these two events as a pretext for doing so. Instead , he held his peace.23
Let us now examine the discharge itself. Waszak and MacNaice , two fellow
employees , had complained to Kittson about Mitchell 's work. Kittson in turn had
relayed their protests to Tarczon , Mitchell 's immediate superior 24 Under such
21 Other reasons provided on the report , but not checked, were "careless," "Irregular
attendance," "lack of work," "violation of company rule ," and "other."
22 N L . R. B. v McGahey , etc , footnote 7, supra.
22 With regard to Mitchell's alleged poor showing on the spinner shaft operation with
King during the week beginning December 10 , Tarczon testified on cross-examination that
he did not issue a reprimand slip because "I was giving him an opportunity to work it
out, possibly with different job change or something."
21 It is unnecessary to determine whether or not the complaints were justified. If is
sufficient for our purpose to find that they were , in fact, made.
GIBBS OIL COMPANY 1783
circumstances, Tarczon could not properly ignore the incident. He did what any
normal responsible superior would do, namely, discussed the complaints with the
employee in question. Tarczon testified on cross-examination that his "original
intention was just to reprimand the man" but that "when he shot the same question
at me, `Why don't you fire me?' he provoked me to fire him. . . As far as I was
concerned he was sent home that day for the second question he threw at me
why I don't fire him . he was provoking every means in his power to get me to
fire him, to come up, I believe, and give him the words, `You are fired."' Tarczon's
explanation of h_s motives-that he originally intended only a reprimand but was
goaded into more drastic action by this second indication of Mitchell's insubordinate
attitude-is reasonable and convincing. It is therefore credited. In this connec-
tion, the fact that Tarczon advised Mitchell regarding his right to appeal indicates
that. the discharge was not summary.25 Moreover, union activities were not men-
tioned by Tarczon when he sent Mitchell home, or in his written report of the
matter to Stephens. After carefully weighing all the factors on each side, I am
convinced, and find, that the General Counsel has failed to prove by a fair prepon-
derance of the evidence that Mitchell's known union activities constituted a substan-
tial or motivating reason for his discharge.26
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sheet Metal Workers International Association is, and at all material times
has been, a labor organization within the meaning of Section 2 (5) of the Act.
2. By threatening its employees with reprisal if they engage in concerted activities,
thereby interfering with, restraining, and coercing them in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the meaning of Section 2 (6) and
(7) of the Act.
4. The allegation of the complaint that the Respondent discriminated against
John H. Mitchell has not been sustained.
[Recommendations omitted from publication.]
25 The fact that Mitchell failed to take any appeal, of course, is 'immaterial
s Luttrell, a witness for the General Counsel, admitted on cross-examination that
Tarezon stated that he had discharged Mitchell because when he ( Tarezon ) had com-
plained that Mitchell 's work was unsatisfactory , Mitchell had responded " if [Tarczon]
didn 't like the way his [Mitchell 's] work was going on, why didn't he [Tarczon ] fire him
[Mitchell]." This self-serving statement by Tarezon is mentioned in passing, but is
not relied upon in arriving at a determination regarding the reasons for Mitchell's
discharge."
Gibbs Oil Company and ' Henry and Paul Gibbs d/b/a Boulder
Transportation Company I and Local 68, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case No. 1-RC-5159. June 30, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Edwin J. J. Dwyer,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby 'affirmed 2
' Ileiein called Gibbs and Boulder, respectively.
i At the hearing Gibbs and Boulder moved to dismiss the petition on the ground that
the Petitioner had not complied with Section 9 (f), (g), and (h) of the Act. This con-
120NLRB; No. 202.