Gould, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1975

216 N.L.R.B. 1031 (N.L.R.B. 1975)

GOULD, INC. 1031
Gould, Inc. and International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America, UAW. Cases 10-CA-10467
and 10-CA-10602
March 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 27, 1974, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge with
the following modifications, and to adopt his
recommended Order as modified herein.
1. We agree with the Administrative Law Judge
that Respondent's discharge of employees Anderson,
Eller, Lusk, and Murphy was discriminatorily moti-
vated in violation of Section 8(a)(3) and ( 1) of the
Act. In doing so, we reject Respondent 's contention
that the evidence fails to establish that it had
knowledge of the union activities of any of these
discharged individuals.
Although- it is true that the record contains no
direct evidence of Respondent 's knowledge , it is well
settled that knowledge can be inferred from sur-
rounding circumstances. Thus, in addition to the
reasons set forth by the Administrative Law Judge
for so finding , we infer Respondent's knowledge of
the union activities of the four discharged individuals
from the following circumstances: (1) Personnel
Director Farris' interrogation of Anderson in June,
from which it can be inferred that Respondent was
I On June 27, 1974, the Regional Director for Region 10 of the National
Labor Relations Board issued a complaint in Case 10-CA-10735 alleging
additional violations by the Respondent of Sec. 8(axl), (3), and (4) of the
Act. On July 11, 1974, counsel for the General Counsel requested the Board
to consolidate that case with consolidated Cases 10-CA-10467 and
10-CA-10602 herein, and to order further hearing on these cases with Case
10-CA-10735. Thereafter , the Respondent filed a motion for summary
judgment and motion for stay of proceedings or, in the alternative,
requested an extension of time for filing exceptions and brief in
consolidated Cases 10-CA-10467 and 10-CA-10602 On September 18,
1974, the Board , by an order of the Executive Secretary, denied the motions
of counsel for the General Counsel and of the Respondent , except to the
extent of granting Respondent 's request for an extension of time.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
receiving reports on talk among the employees about
the Union, and that Farris was actively involved in
ferreting out further information; (2) the timing and
context of General Foreman Looper's inquiry of
Murphy on September 14, "It's coming in, isn't it?"
only 3 days after the employees held their off-plant
union meeting at Murphy's house; and (3) Looper's
September 18 remarks and Farris' September 20
remarks-1 and 3 days, respectively, after the
discharges-to employee Hawkins that they knew
"90 percent of what goes on in town at night," which
contains its own admission that Respondent was able
to keep track of its employees' union activities.
In addition, the conclusion that Respondent was
aware of the union activities of the above-named
individuals and was motivated to discharge them
because of these activities is inescapable from the
circumstances surrounding the discharges them-
selves: (1) 6 days after the employees met at
Murphy's house to discuss the Union and sign
authorization cards, and the Monday following
Looper's late Friday afternoon inquiry of Murphy as
to whether the Union was coming in,4 to which she
gave an affirmative response, Respondent chose to
discharge four of the six employees in attendance at
the union meeting at Murphy's house; (2) although
the Administrative Law Judge found that Respon-
dent had a practice of discharging employees on
Friday, these four individuals were all discharged on
a Monday; (3) the termination slips had not been
completed for any of the discharged employees at the
time they were notified they were discharged, and
Superintendent of Manufacturing Bittner told An-
derson that he did not know what the reason -for
dismissal would be on that employee's termination
slip when it was completed and mailed to him; and
(4) Murphy and Lusk were led away from their work
stations in an atmosphere of secrecy to be told they
were going to be discharged, and Eller was told of
her termination after being clocked out.
Nor is the unusual procedure Respondent followed
in discharging the employees here explained by the
seriousness of, or proximity to, the reasons asserted
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 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Respondent's request for oral argument is hereby denied as the
record and exceptions in our view adequately present the issues and
positions of the parties.
3 Respondent's no-solicitation rule restricts employee solicitation in
"working areas" at all times, and therefore violates Sec. 8 (a)(1) of the Act.
Though the panel members adhere to their respective positions in Essex
International, 211 NLRB 749 (1974), they find it unnecessary to pass on any
further unlawfulness of the no-solicitation rule related to the "during
working time" restriction.
4 Looper and Superintendent of Manufacturing Bittner testified that the
decision to discharge the four employees was made late the same day that
this conversation between Looper and Murphy took place.
216 NLRB No. 183
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for their discharges. In every case, the reasons given
had accumulated over a long period of time and in
no instance had there been any serious recent
derelictions on the part of the discharged individuals
to incur the Respondent's further displeasure with
their work habits or conduct. In fact, although
Respondent allegedly discharged Murphy, Lusk, and
Eller because of excessive absenteeism and tardiness,
all three had improved upon their absentee records
just prior to their discharges. And although Ander-
son purportedly was discharged for poor job per-
formance and lack of work, he was never given any
warning about his work performance and had in fact
been complimented about his work by several of the
supervisors, and after his discharge a new individual
was hired by Respondent to fill his job classification.
In these circumstances , we conclude , as did the
Administrative Law Judge, that the reasons ad-
vanced by Respondent to explain the discharges are
not credible and are pretextual in nature.
In view of the foregoing, we find in agreement with
the Administrative Law Judge that Respondent had
knowledge of the union activities of the discharged
individuals, and discharged them for that reason
rather than for the reasons asserted by it .5
2. The Administrative Law Judge inadvertently
omitted from his Conclusions of Law, recommended
Order, and notice certain 8(a)(1) violations which he
specifically found in an earlier portion of his
Decision . Accordingly, we shall incorporate these
additional violation findings in our Order and notice.
Amended Conclusion of Law
Substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. Respondent, through its supervisors, violated
Section 8(a)(1) of the Act by interrogating its
employees, by threatening its employees with black-
listing if they continued their union activities, by
creating the impression that it was conducting
surveillance of its employees' union activities, by
telling employees it could get them any benefits that
the Union could, and, finally, by showing its
employees newspaper clippings depicting plant clos-
ings and telling them that the reason the plants
closed was because the companies and unions
involved could not negotiate."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and -hereby orders that Respondent,
Gould, Inc., Cookeville , Tennessee , its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Add the following paragraphs as 1(a) and (b),
and reletter the remaining paragraphs accordingly:
"(a) Coercively interrogating its employees con-
cerning their knowledge of union activity; creating
the impression among employees that it has ways or
means of identifying its employees who participate in
union activities and of knowing what these activities
are; threatening to blacklist employees so they will
not be able to get another job; interfering with its
employees' union activity by telling them the
Employer could get them anything the Union could;
coercing employees by showing them newspaper
clippings of plants which closed because the compa-
nies could not negotiate with the unions.
"(b) Issuing written warnings to employees for the
purpose of discouraging union activity or concerted
activity protected by the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
S Cf: Wal-Mart Stores, Inc., 201 NLRB 250,252-253 (1973).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we, Gould,
Inc., have violated the National Labor Relations Act
and we have been ordered to post this notice.
WE WILL NOT interrogate you concerning your
knowledge of union activity.
WE WILL NOT attempt to, or create the
impression that we are attempting to, obtain
information about your union activities.
WE WILL NOT use or threaten to use our
influence to prevent any of our employees from
securing employment because we do not approve
of their union activities.
WE WILL NOT interfere with union organization
and employee union activity by telling employees
that we can give anything the Union can get.
WE WILL NOT coerce our employees by showing
you newspaper clippings of plants which closed
because the companies could not negotiate with
the unions.
WE WILL NOT issue written warnings to employ-
ees for the purpose of discouraging union activity
or concerted activity protected by the Act.
WE wiLL expunge from the records of Billie
GOULD, INC. 1033
Hawkins the written warning we issued to her on
February 8, 1974.
WE WILL NOT discharge any employee for
engaging in union or concerted activity for the
purpose of collective bargaining or other mutual
aid or protection.
WE WILL offer to reinstate, if we have not
already done so, the employees named below to
their former jobs or, if such positions no longer
exist, to substantially equivalent positions, with-
out any loss of seniority or other rights previously
enjoyed, and WE WILL reimburse them for any
loss of earnings suffered because of their layoff,
together with 6-percent interest.
James Anderson Brenda Lusk
Deborah Eller Patricia Murphy
WE WILL NOT maintain an invalid no-solicita-
tion or no-distribution rule.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exercise
of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection or to refrain from engaging in
such activities.
All our employees are free to become and remain,
or to refrain from becoming or remaining , members
of any labor organization.
GOULD, INC.
DECISION
STATEMENT OF THE CASE
GEORGE L . POWELL, Administrative Law Judge: The
first issue presented by this case is whether Respondent,
through its supervisors and agents , violated Section 8(axl)
of the National Labor Relations Act, herein called the Act
(29 U.S .C. Sec . 151, et seq.), by interrogating its employees
concerning their union membership activities and desires;
by soliciting its employees concerning any union activities
of its employees ; by promising its employees economic and
other benefits if they refrained from joining or engaging in
activities on behalf of the Union ; threatening its employees
with the loss of wages and other existing benefits if they
joined or engaged in activities on behalf of the Union; by
threatening its employees with blacklisting with other
employers those of its employees who were active on
behalf of the Union; and by creating the impression of
surveillance of its employees ' union activities.
A second issue is whether Respondent violated Section
8(aX3) and ( 1) of the Act by discharging four of its
employees , James Anderson , Brenda Lusk , Patricia Mur-
phy, and Deborah Eller, because of their membership in,
and activities on behalf of, the Union.
A third issue is whether Respondent violated Section
8(a)(3), (4), and (1) of the Act in issuing a disciplinary
warning to its employee, Billie Hawkins, on February 8,
1974, because of her membership in, and activities on
behalf of, the Union, and because she engaged in
concerted activities with other employees for purposes of
concerted activities and other mutual aid and protection,
and because she gave testimony in a hearing provided for
under the Act in this case.
The final issue is whether Respondent's rule as set out in
its employee handbook which prohibits "Solicitation,
collection or distribution without pnor company approval
during working time or in working areas ...... violates
Section 8(a)(1) of the Act.
For the reasons hereinafter set forth, I find that the
General Counsel has established by a preponderance of the
evidence that Respondent violated Section 8(a)(l), (3), and
(4) of the Act and that Respondent's no-solicitation rule as
published is violative of Section 8(a)(1) of the Act.
As noted in more detail below, the cases came on for
trial before me in the circuit courtroom of Putnam County,
Cookeville, Tennessee, on February 7, 8, 11, 12, and 13,
1974, and May 9 and 10, 1974. Briefs were filed by
Respondent and General Counsel on March 22, 1974, and
June 10, 1974, relating to the respective trials.
I. PROCEDURAL HISTORY
A. Case 10-CA-10467
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, UAW,
herein called Charging Party or Union, filed a charge on
November 9, 1973, against Gould, Inc., herein called
Respondent, with the National Labor Relations Board,
herein called the Board , which resulted in a complaint and
notice of hearing issued January 10, 1974, by the Regional
Director for Region 10 of the Board, alleging violations of
Section 8(a)(1) and (3) of the Act.
Respondent denied the essential allegations of the
complaint . With the parties represented by counsel, this
case was tried before me in the circuit court courtroom of
Putnam County, Cookeville, Tennessee, on February 7, 8,
11, 12, and 13, 1974. Briefs were filed by the parties on
March 22, 1974.
B. Case 10-CA-10602
Subsequently, the Charging Party filed a charge on
February 19, 1974 , against Respondent with the Board
which resulted in a complaint and notice of hearing issued
March 19, 1974, by the Regional Director for Region 10 of
the Board , alleging violations of Section 8(a)(3), (4), and (1)
of the Act, specifically that Respondent had issued a
disciplinary warning to its employee , Hawkins, because she
had given testimony in the above Case 10-CA-10467.
Respondent denied the essential allegation of the com-
plaint. A motion to reopen the record of the previous case
and consolidate the two cases was granted on April 5,
1974. With the parties represented by same counsel as
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before, the case came for trial before me in the same
courtroom, above, on May 9 and 10, 1974. Briefs were filed
by the parties on June 10, 1974.
Upon the entire record including my observations of the
demeanor of the witnesses, and after due consideration of
the briefs of the parties, I make the following:
FINDINGS AND CONCLUSIONS
II. JURISDICTION
Respondent, Gould, Inc., is a Tennessee corporation,
with an office and place of business located at Cookeville,
Tennessee, where it is engaged in the manufacturing of
heating elements for commercial, industrial, and comfort
heating uses. During the past calendar year, Respondent
sold and shipped finished products valued in excess of
$50,000 directly to customers located outside the State of
Tennessee.
I find, as admitted, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I also find, as admitted, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background and Summary of the Case
A. Respondent's Union Animus
Respondent's attitude toward unions is demonstrated by
its policy of questioning prospective employees at job
interviews as to their union membership or sympathies. Job
applicants were told that Respondent did not have a union
and did not need a union. Frank Howard, a machinist who
at one time had conducted several interviews as the only
representative of Respondent in Cookeville, admitted
asking employees if they had been involved in any union
activities, explaining that he "did not want to be responsi-
ble for hiring or being instrumental in hiring someone with
a union background." He advised one applicant (Ander-
son) to deny the fact that he had once been the vice
president of a local union if anyone asked him.
The "stated Company philosophy" concerning labor
unions was also revealed by Leggin (manager of manufac-
turing) at meetings with employees to be that Respondent
did not desire to have third-party representation "because
we feel like we don't need anyone to speak for [the
employees]."
B. Concerted Activity and Discharges of Alleged
Discriminatees
In June 1973, employee James Anderson began talking
to fellow employees about a union in the plant. He
contacted the Union on August 22, 1973, and met with a
union representative at his home on August 26, 1973. On
August 30, Anderson and fellow employee , Mayberry, met
with the union representative and signed union authoriza-
1 John Hostinpiller gave testimony concerning conversations shortly
after the discharge between him , employees J. B. Davis and Farris. Davis
did not testify and Farris denied the conversations . Hotsinpiller is not
tion cards. They also received literature for distribution to
other employees. Anderson and Mayberry thereafter
visited employees' homes seeking signatures on union
authorization cards. On September 11, 1973, the first
meeting of employees was held at the home of employee
Patricia Murphy. Present at this meeting were Anderson,
Mayberry, Murphy, Brenda Lusk, Deborah Eller, and
Billie Hawkins, all Respondent's employees. Authorization
cards were signed by Murphy, Lusk, Eller, and Hawkins.
On Monday, 6 days after the September 11, 1973,
meeting, Respondent discharged Anderson, Murphy, Lusk,
and Eller.
At the first hearing, beginning on February 7, 1974,
concerning Respondent's alleged 8(a)(1) and (3) violations
above, Hawkins testified as the first witness for the
General Counsel. The following day, on February 8, 1974,
after returning to work, she was given a written warning for
remaining in the restroom an excessive period of time.
Case 10-CA-10467, heard February 7, 9, 11, 12,
and 13, 1974
I find as admitted that the following named persons
occupy the positions set opposite their names and are
supervisors of Respondent within the meaning of Section
2(11) of the Act:
W. Ray Bittner - Superintendent of Manufacturing
Bobby D. Hams - Director of Personnel
James A. Looper - General Foreman
C. The Independent 8(a)(1) Violations
Respondent's conduct, alleged in violation of Section
8(a)(1) of the Act, occurred as follows:
In June 1973, Director of Personnel Bobby Farris
interrogated James Anderson in his office, asking him if he
had heard any union talk. When Anderson replied that he
had, Farris wanted to know who was doing the talking. He
then asked Anderson to be sure and tell him if Anderson
heard anything he thought Farris should know. Anderson's
testimony is credited over that of Farris.'
Employee Billie Hawkins was approached by General
Foreman James Looper on September 18, 1973. He showed
her a newspaper clipping concerning a company in Oneida,
Tennessee, which had closed after its employees had been
on strike for quite some time . Looper then stated that
"that's what happened with a union."
During the third week in September 1973, after the
discharges, and when Anderson was trying to get employ-
ees to sign up with the Union, employee John Mayberry
was told by Bittner to tell Anderson "to lay off what he
was doing if he wanted to get a job in this town"; and that
"Bill Leggitt [chief official of Respondent] has a lot of
friends."
Respondent, through its supervisors, also created the
impression that its employees' union activities were under
surveillance. On September 14, 1973, 3 days after the
employees began meeting outside the plant, General
credited He was biased and his story did not have the ring of truth
necessary in this case , so his testimony is not reported All other witnesses of
the General Counsel are credited unless otherwise noted.
GOULD, INC.
Foreman Looper asked Pat Murphy, "It's coming in, isn't
it?" When Murphy asked Looper what was coming in, he
responded , "You know what I mean ." On two occasions,
September 18 and 20, Billie Hawkins was told by Farris
and Looper that they knew "90% of what goes on in town
at night." On October 1, 1973, during a meeting with a
group of employees in Respondent's conference room,
Farris told the employees that Respondent knew there
were three women and one man trying to get employees to
join a union and sign cards; that Anderson was employed
by the Union; that Respondent knew that some union
cards had been signed ; and that some women employees
had asked him (Farris) how to get their cards back.
At that same meeting, Farris also stated that Respondent
did not need a union and that if a union came in the
employees would start out with nothing and would have to
negotiate to something; that if the Union came in the
employees would start out at $1.60 per hour; and that the
Respondent could get the employees any benefits that the
Union could. Farris showed employees newspaper clip-
pings of plants that had unions, explaining that these
plants had closed because the companies and the unions
could not negotiate.
Several of the incidents described above, in and of
themselves, are clearly in violation of Section 8(a)(1), such
as the apparent surveillance by Respondent, N.LR.B. v.
Simplex Time Recorder Co., 401 F.2d 547 (C.A. 1, 1968);
N. L R. B. v. Rybold Heater Co., 408 F.2d 888 (C.A. 6, 1969),
and the threatened blacklisting-of Anderson. Furthermore,
the totality of the conduct, including the statement that
Respondent could get its employees any benefits that the
Union could and the newspaper clipping incidents showing
plant closings after unionization, amounts to interference
with, coercion, and restraint of the Section 7 rights of
employees in violation of Section 8(a)(1) of the Act.
D. 8(a)(3) Violations
The union activity of each of the four discharged
employees, Anderson, Murphy, Lusk, and Eller, as well as
the fact that their discharges occurred 6 days after their
first meeting, is set out in the background section above.
Moreover, I conclude that knowledge of that union
activity is established, despite Respondent's protestations
of ignorance, by the following evidence. Respondent knew
of Anderson's union background from his preemployment
interview and Respondent's supervisors stating on two
occasions that they knew "90% of what goes on in this
town at night."
1. James Anderson
Anderson was hired by Respondent in August 1972 as a
flexatherm machine operator trainee and was abruptly
terminated on September 17, 1973, only 6 days after the
first union meeting . The suddenness of the discharge is
highlighted by the fact that Anderson was discharged on a
Monday, instead of on Friday as would normally be done
according to company policy. Anderson was led from his
work station at 3:30 to Supervisor Bittner's office and then
he was told he was terminated. His written termination
notice had not even been completed at the time. He was
1035
told his termination slip and his vacation pay would be
mailed to him, and Bittner told him he did not know what
would be on the termination slip when it was mailed.
The reasons offered by Respondent for Anderson's
sudden discharge are not convincing. He was told by
Bittner on the day he was discharged that he did not meet
Respondent's expectations. His termination slip stated two
other reasons : (1) that his job performance did not equal
the standards set for machinists, and (2) that the flexa-
therm machine operator position for which he was hired
had not materialized. At the hearing, Respondent offered
evidence that Anderson was a slow worker, made mistakes,
left the toolroom without proper authorization, and left
machines unattended. Although evidence regarding Ander-
son's work performance is conflicting, he had not been
warned to correct his behavior or lose his job. As to the
point that the flexatherm job had not materialized, the
record shows that Respondent had hired a new flexatherm
operator. Even assuming inadequate work performance by
Anderson, no credible explanation for his abrupt dis-
charge, which was inconsistent with normal procedure, has
been offered by Respondent. The need to get Anderson out
of the plant on Monday rather than the following Friday
had to do with something bigger than his work perform-
ance. Furthermore, as there is evidence that Anderson had
received compliments from Instructor Howard, Supervisor
Bittner, and Manager Leggitt, such a valuable employee
undoubtedly would have been warned and corrected from
wrongdoing and not preemptorily discharged. Looper,
himself, testified that Respondent was not in the business
of firing employees. I find that Anderson was discriminato-
rily discharged for his union activity. Accordingly, his
discharge violates Section 8(a)(3) and (1) of the Act.
2. Murphy, Lusk, and Eller
Patricia Murphy, Brenda Lusk, and Deborah Eller were
hired by Respondent in late 1972 and early 1973. Their
union activity on September 11, 1973, has been described
above. Lusk and Murphy were terminated on September
17, 1973, and Eller on September 18, 1973. The reasons
given for the discharges were excessive absenteeism and
tardiness.
Haste, similar to Anderson' s case, characterizes these
discharges. The three were discharged on Monday,
September 17, 1973, as was Anderson, although Eller was
not at work that day and therefore was not notified until
the following day. As in the case of Anderson, termination
slips were not prepared at the time of the discharge.
An atmosphere of secrecy also characterized their
discharges. James Looper came over to Murphy and told
her to get her personal belongings, come with him, and be
real quiet. He led her to the door and then, after clocking
her out, told her she was terminated. Looper also told Lusk
to get her purse and tools and come with him. He refused
to explain until they had reached the timeclock that she
was terminated.
Eller, who was absent that day, came in the next
morning, found her timecard missing, and went over to
collect some of her personal effects and some of Lusk's,
who had not been allowed to get them the day before.
As noted above, the reason for all three being terminat-
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed, as recorded on their termination notices , was "excessive
absenteeism and tardiness." The transparency of Respon-
dent's pretextual justification for the discharges was well
demonstrated . Although the three did have absenteeism
problems during their employment with Respondent, a
marked improvement was shown during the period
immediately preceding the discharges . Respondent at-
tempted to change its reason at the hearing by explaining
that the three girls continuously strayed from their work
stations and that this also was considered "absenteeism."
However , the usual company definition for absenteeism, as
was clearly shown , is limited to those occasions when the
timeclock is punched late or not at all. Absenteeism and
tardiness data are taken each day from the timecards and
reported to the personnel office. Absence from the work
location , however, is not recorded at all. The fact that none
of the termination notices mentioned wandering from the
work area substantially detracts from Respondent 's credi-
bility. Neither is the suddenness of the discharges ade-
quately explained.
The fact that the timing of none of the four discharges
was satisfactorily explained makes the possibility of
coincidence virtually nonexistent . In light of the nearness
in time to the union meeting that they all attended, the
conclusion that the discharges were discriminatory and
based on their union activity is inescapable . Accordingly,
the discharges of Murphy, Lusk, and Eller violate Section
8(a)(3) and (1) of the Act.
Case 10-CA-10602 heard May 9 and 10, 1974
The 8(a)(1), (3), and (4) Violation
Billie Hawkins' employment at Gould and union activity
have been pointed out above . She gave testimony at the
first hearing on February 7, 1974, concerning Respondent's
unfair labor practices.
Returning to work on February 8, 1974, she worked
almost the whole day on an assembly line near two of her
coworkers until approximately 3:10 p.m. She then bor-
rowed a cigarette , lit it, and said she was going to the
restroom . The two other girls on her line testified that they
looked up at the clock on a pole above the line and it read
2:10 p.m. (which actually indicated 3:10 since the clock
had not been moved forward due to daylight savings time).
Hawkins went straight to the restroom , seeing Supervisor
James Looper on the way . Two other of her coworkers saw
her inside the restroom but did not know what time she
had come in. When Hawkins came out of the stall in the
restroom, she put out the cigarette she had borrowed,
washed her hands, spoke briefly to the two girls who were
in the lounge , and walked out. The entire episode , from her
account, could not have taken over 6 minutes . Looper
stopped her on her way back to her work station and told
her to come to the personnel office with him and Ken
Klingler. It was then approximately 3:13 p.m.
Looper's account, diametrically at odds with Hawkins' is
as follows : He saw her enter the restroom at approximately
3 minutes before 3 and decided to time how long she
2 It is interesting to note that both gave the same time when asked by
Looper the time when Looper had told them Hawkins had entered the
restroom . Neither Davidson nor Klingler had seen her enter the restroom.
stayed inside. He asked Ralph Davidson and Ken Klingler
what time it was and they both said 2 or 3 minutes to 3.
After waiting for Hawkins for about 10 minutes he went to
the first aid room located nearby and called George
Harber, the personnel man at the time. Hawkins exited the
restroom soon after Looper returned from the first aid
room. He asked Ralph Davidson and Ken Klingler the
time. Davidson told him it was approximately 10 after 3
and Klingler told him it was approximately 12 after 3.2
Looper and Klingler then accompanied Hawkins to the
personnel office for a conference with Harber.
There is little conflict in testimony over the events from
then on. When the three arrived at the personnel office,
Looper told Hawkins that he was going to give her a
written warning . Harber demanded that she sign the
warning admitting that she had been in the restroom too
long. She refused to sign and asked Looper to talk to her
two coworkers who would testify that she had only been in
the restroom for a few minutes . Looper refused to do so
and accused her of calling him a liar. Harber then told her
that she could not come back to work the following
Monday.
William Leggitt , Respondent 's plant manager , when told
of the situation later that day, fired Harber for giving
Hawkins such an ultimatum on grounds it was contrary to
company policy. He then called Hawkins' mother and left
a message for Hawkins to come in to work on Monday.3
The following Wednesday, 5 days later, Hawkins was in
the conference room with Leggitt, Klingler, and Looper to
meet with Leggitt. Leggitt asked for her side of the story
and then asked Looper for his side. Leggitt then offered to
tear up the warning slip in return for her promising never
to abuse the restroom policy . She again denied that she had
done anything wrong and asked Leggitt to check out her
story with her two coworkers. She said she wanted him to
know she was not guilty of abusing the restroom policy. He
said he would do so and promised to get in touch with her
on Friday.
On Friday, she met again with Leggitt, this time with
Ray Bittner also present . Leggitt told her that he had
looked into it, that there were conflicting stories, and that
therefore he would put the warning in her personnel file.
The record shows that the two accounts of the events
result from conflicting accounts between Looper on the
one hand and Hawkins and her two coworkers on the
other. As to when she actually went into the restroom,
neither Klingler nor Davidson remembered seeing her go
in and all witnesses were in substantial agreement as to
when she left. I credit Hawkins' testimony for the following
reasons: she declined the opportunity to have the warning
slip torn up by Leggitt if she would promise not to abuse
the privilege again , and she stoutly maintained her
innocence ' and requested an investigation. Her two
coworkers, who corroborated her, had little to gain and
much to lose by testifying in her behalf, particularly in light
of how Hawkins had been treated by Respondent the day
after she had given testimony . Looper is not credited as
against Hawkins and her two coworkers . Looper was the
3 The only phone number where Hawkins could be reached was her
mother's number.
GOULD, INC.
only person who testified that she was in the restroom
when he asked Davidson and Klingler the time when they
said 3 minutes to 3. He knew she had testified at the
hearing the day before. He also testified that he did not
look at the overhead clock above the duct line.
Regardless of whose story is credited, however, it is clear
that Hawkins was singled out for punishment. Looper had
testified that he was having a very difficult and busy day.
At about 2:30 p.m. he had a problem which caused the
duct line to be idle for 15-20 minutes. After getting the line
back into operation, he was summoned to the toolroom to
see about an electrode for a welding machine. Looper
started for the toolroom because, as he himself testified,
Turner's problem in the toolroom was important. Yet,
when he saw Hawkins go to the restroom, he decided to
personally time the period she was there. On his way to the
toolroom, he observed other employees going to the
restroom before Hawkins. He did not time them, however,
and did not know whether they had stayed in the restroom
longer than Hawkins. Nor did he remember who they
were.
As Looper testified that he had no personal animosity
toward Hawkins and as he was not checking who else was
going into the restroom and how long they remained there,
I can only conclude that he checked Hawkins in a
discriminatory effort to give Hawkins a written warning in
order to lay the groundwork for a subsequent discharge. I
conclude that he did this because she had given testimony
the previous day. Clearly, this action violates Section
8(ax1), (3), and (4) of the Act, and I so find.4
E. Respondent's No-Solicitation Rule
Respondent's plant rule for solicitation and distribution
as published in its employee handbook entitled "Your Job
and Ours" is as follows: "Solicitation, collection or
distribution without prior approval during working time or
in working areas is strictly prohibited. This includes, but is
not limited to, notices, pamphlets or handbooks."
To the extent that a no-solicitation rule can be
reasonably interpreted as prohibiting solicitation in work-
ing areas on nonworking time, it is presumptively invalid,
absent a showing by Respondent of special circumstances
or a showing by Respondent that it is necessary for
production or discipline. Respondent has made no such
showing. Stoddard-Quirk Manufacturing Co., 138 NLRB
615,617 (1962).
Furthermore, Respondent's rule requires that its employ-
ees obtain permission prior to any solicitation. An
employer may not predicate the exercise of Section 7 rights
upon its authorization, without showing that it is necessary
for production or discipline. J. R. Simplot Company Food
Processing Division, 137 NLRB 1552, 1553 (1962). Respon-
dent has made no such showing. Respondent's no-solicita-
tion rule is therefore invalid and violates Section 8(a)(1) of
the Act.
Upon the foregoing findings and conclusions and upon
the entire record ,5 I make the following:
4 Respondent's use of the he detector is interesting , but due to the type of
questions used and a polygraph 's general unrehability I find it had little
weight in the total evidence , and its conclusionary results are not adopted.
CONCLUSIONS OF LAW
1037
1. Respondent, Gould, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. And the Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. W. Ray Bittner, James A. Looper, and Bobby D.
Farris are supervisors within the meaning of Section 2(11)
of the Act. Frank Howard was a supervisor and an agent
of Respondent within the meaning of Section 2(11) and
(13) of the Act when hiring for Respondent.
3. Respondent, through its supervisors, violated Section
8(a)(1) of the Act by interrogating its employees and
creating the impression of surveillance of its employees.
4. Employees James Anderson, Patricia Murphy, Bren-
da Lusk, Deborah Eller, and Billie Hawkins were engaged
in concerted activity for the purpose of union organization
and other mutual aid and protection, and Respondent had
knowledge of this protected activity.
5. By discriminatorily discharging James Anderson,
Patricia Murphy, Brenda Lusk, and Deborah Eller on
September 17 and 18, 1973, for engaging in protected
union activities, in order to discourage membership in a
labor organization, Respondent violated Section 8(a)(3)
and (1)• of the Act.
6. By issuing a disciplinary warning to Billie Hawkins
on February 8, 1974, because of her concerted activity and
because she testified at the February 7, 1974, hearing,
Respondent violated Section 8(a)(4), (3), and (1) of the Act.
7. Respondent's no-solicitation rule as published in its
manual for its employees is too broad in that it may
reasonably be interpreted to bar solicitation in work areas
on nonwork time , and, in that it requires employees to
obtain Respondent's permission prior to any solicitation,
and accordingly its publication by Respondent violated
Section 8(a)(1) of the Act as it interferes with and restrains
employees in exercising their Section 7 rights under the
Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section II, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
1. Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (4) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
S General Counsel's unopposed motion to conform the exhibit, dated
May 29, 1974, is hereby granted . This modifies Resp . Exh. 1 to show
markings placed thereon by witness Looper in the consolidated hearings.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Having found that Respondent discharged James
Anderson , Patricia Murphy, Brenda Lusk , and Deborah
Eller on September 17 and 18 , 1973, and refused to permit
them to work thereafter because they engaged in union
activity , and in order to discourage union activity, and in
order to provide a restoration of the situation , as nearly as
possible , to that which would have obtained but for the
illegal discharges , I will recommend that Respondent be
ordered to reinstate James Anderson, Patricia Murphy,
Brenda Lusk , and Deborah Eller to their respective former
or substantially equivalent positions without prejudice to
their seniority or other rights and privileges, discharging, if
necessary , anyone hired in their stead , and make them
whole for any loss of earnings they may have suffered by
the payment to each of them of a sum of money equal to
the amount each normally would have earned as wages
from September 17, 1973, to the date of an offer of
reinstatement less net earnings during that period, with
backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), including interest at a rate of 6 percent
per annum to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
I shall also recommend that Respondent be ordered to
remove from its records the disciplinary warning given
Billie Hawkins on February 8, 1974.
I shall also recommend that Respondent be ordered to
revoke or rephrase its no-solicitation rule, as published in
its employee handbook , in a manner consistent with this
decision.
I shall also recommend that Respondent preserve and
make available to the Board, upon request, payroll and all
other records necessary to facilitate determination of the
amount due under this Order.
In view of the nature of the unfair labor practices
committed , I am of the opinion that the commission of
similar unfair labor practices may be reasonably anticipat-
ed. I shall therefore recommend that Respondent be
ordered to cease and desist from infringing in any other
manner upon the rights guaranteed its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the Act , I hereby issue the
following:
" 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.
ORDERS
Gould, Inc., Cookeville , Tennessee , its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Maintaining and enforcing an illegal no-solicitation
rule.
(b) Discharging any employee because of his union
activity for the purpose of discouraging union or concerted
activity protected by the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
labor organizations, to bargain collectively through repre-
sentatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer immediate reinstatement to James Anderson,
Patricia Murphy, Brenda Lusk, and Deborah Eller, to their
respective former positions or, if those positions no longer
exist, to substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges,
discharging, if necessary , anyone hired in their stead, and
make each whole in the manner set forth in the section
entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in computing the amount of backpay
due under the terms of this Order or determining
compliance with any provision hereof.
(c) Expunge from its records the warning given Billie
Hawkins on February 8, 1974.
(d) Post in its plant in Cookeville, Tennessee , copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 10 , after being duly signed by Respondent, shall be
posted by it for a period of 60 consecutive days thereafter,
in conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
r In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."