Hoover Design Corp.

National Labor Relations Board - Board Decisions

Sep 18, 1967

167 N.L.R.B. 461 (N.L.R.B. 1967)

HOOVER DESIGN CORPORATION , 461
Hoover Design Corporation and Roscoe W. Vogt.
Case 26-CA-2635
September 18, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 29, 1967, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 attached Trial Examiner's Decision.
The Trial Examiner failed to find that Respondent
had engaged in certain other unfair labor practices
alleged in the complaint. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief. The General Counsel filed
cross-exceptions together with a supporting state-
ment and answer to the Respondent's brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
1. The record reveals that shortly before Thanks-
giving 1966, Supervisor Maffett announced that
the employees could work the holiday weekend or
take time off and that they would receive per diem
pay, plus overtime for work performed. Thereafter,
when the promised compensation was not paid and
inquiries were voiced, the employees were in-
formed by Maffett that he had erroneously in-
terpreted company policy, and that no extra com-
pensation would be forthcoming for the Thanksgiv-
ing weekend. Several employees, including Vogt,
persisted in complaining to Maffett and began to
discuss among themselves what action could be
taken to obtain the pay promised to them. At one of
these discussions, employee Vogt brought up the
possibility of seeking assistance from the National
Labor Relations Board. Culminating the discus-
As Respondent 's knowledge of the concerted nature of the employee
activity is established on this record, we find it unnecessary to pass upon
whether such knowledge is required . See Halsey W. Taylor Co., 145
NLRB 425, enfd. 342 F 2d 406 (C.A. 6); Walls Manufacturing Co., Inc,
sions on December 7, 1966, was an agreement
among the employees that in order to obtain redress
they would have to act together. As a consequence
of this decision, a letter or petition regarding the un-
paid Thanksgiving weekend compensation was cir-
culated by employee Bendele among the employees
for their signatures. Later that morning, Vogt was
asked by Bendele whether he had taken the matter
up with the Board. Vogt indicated he had not, and
immediately again inquired of Maffett whether the
employees would be paid as promised. When Maf-
fett said they definitely would not be paid, Vogt
stated he would seek the assistance of the Board in
trying to obtain the pay he and the others had been
promised. At this point in time, the Trial Examiner
found, and we agree, Vogt was denounced as a
troublemaker and discharged.
The record clearly establishes that in attempting
to collect unpaid compensation employees were
acting in concert for their mutual aid within the
meaning of Section 7. That Respondent knew the
holiday weekend pay was the subject of such activi-
ty is equally apparent.' For, Maffett testified that
prior to the date in question he knew dissatisfaction
existed among the employees about not receiving
the promised compensation and that he considered
Vogt responsible for the unrest which was being
generated. He further testified that he knew of the
circulation of the petition among employees before
he learned they were considering going to the Na-
tional Labor Relations Board. Maffett's conduct on
the morning after he discharged Vogt, in summon-
ing employee Bendele to his office to ascertain what
had been done with the petition, identifies Respond-
ent's motive as one of interfering with the exercise
by employees of their Section 7 rights. It is ap-
parent that Vogt's threat to file charges with the
Board, which triggered the decision to discharge
him, was an integral part of the concerted activity
demonstrating employee unwillingness to let the
matter drop. His discharge for this threat and for
generating the employee unrest is therefore viola-
tive of Section 8(a)(1) of the Act.
2. The Trial Examiner did not find that Respond-
ent by this conduct also violated Section 8(a)(4) as
alleged in the complaint because a statement of an
intention to seek Board assistance is not specified
on the face of the statutory interdiction. We do not
agree with the Trial Examiner's literal application
of Section 8(a)(4) to only those situations in which
an employee has actually filed charges with, or
testified before, the Board.2 In our view, Section
8(a)(4) is designed to safeguard the procedure
established for the vindication of Section 7 rights by
assuring protection to those who would participate
137 NLRB 1317, enfd . sub nom . International Ladies Garment Workers
Union, 321 F.2d 753 (C A D C), cert. denied 375 U.S. 923. Cf Indiana
Gas and Chemical Corp, 130 NLRB 1488.
z Hydraflo Valve & Manufacturing Co., 158 NLRB 730.
167 NLRB No. 62
462 DECISIONS OF NATIONAL
therein. After Maffett made it known to Vogt that
the Company's decision not to pay was final, seek-
ing Board assistance was the next step contem-
plated by the employees in their efforts to obtain
redress. Although this is a closely connected step in
the line of events which may be considered a part of
the concerted activity, it is also the necessary first
step in instituting Board proceedings, and, as such,
must come under the safeguards for such
proceedings. Thus, discharge of an employee
because he made known a decision to seek Board
assistance on behalf of himself or for himself and
others is an independent violation of Section
8(a)(4).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Hoover Design Corpora-
tion, Nashville, Tennessee, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
1. Add the following as paragraph 1(c) to the
Recommended Order:
"(c) Discharging, suspending, or otherwise dis-
criminating against any employee for filing or stat-
ing he will file charges under the National Labor
Relations Act."
2. Delete from paragraph 2(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
3. The telephone number for Region 26, appear-
ing at the bottom of the. notice attached to the Trial
Examiner's Decision, is amended to read:
Telephone 534-3161.
4. Insert the following as the second indented
paragraph in the notice attached to the Trial Ex-
aminer's Decision:
WE WILL NOT discharge, suspend, or other-
wise discriminate against any employee for fil-
ing or stating he will file charges under the Na-
tional Labor Relations Act.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: The complaint in
this proceeding was issued under date of February 3,
At the conclusion of Respondent 's case , after Respondent 's witnesses
had testified as to the reason for Vogt 's discharge , the General Counsel
moved to amend the complaint to allege alternatively that Vogt was
discharged for engaging in concerted activity with other employees for
their mutual aid and protection . Respondent's counsel stated, "as I un-
derstand , he has a right to do that , sir. . I object to it but I don 't think my
objection will be well taken . I can think of several legal grounds on which
to object " The Trial Examiner granted the motion , observing that the
LABOR RELATIONS BOARD
1967. The charge had been filed by Roscoe W. Vogt, an
individual, on December 19, 1967. The complaint alleged
that Hoover Design Corporation, Respondent,
discharged Vogt because the latter said that he would file
unfair labor practice charges with the Board against
Respondent.' Respondent denies the commission of un-
fair labor practices.
The case was heard in Nashville, Tennessee, on March
20, 1967. Both the General Counsel and the Respondent
made oral argument at the conclusion of the case. Neither
party availed itself of the opportunity to file a brief.
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent, at all times material, is a Michigan cor-
poration with its principal office located at Warren,
Michigan . Respondent is engaged in performing engineer-
ing and design services at various locations, including the
Nashville, Tennessee, plant of the Avco Corporation.
In a representative 12-month period, Respondent, in
the course of its business operations, performed services
valued in excess of $50,000 in various States of the
United States.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Roscoe W. Vogt is an individual who was an employee
of Respondent at all relevant times.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Roscoe Vogt had been employed by Respondent since
March 7, 1966, at the Avco plant in Nashville. He was
called a process man or processing engineer and dealt
with the ordering of tools and the routing of manufactured
products. Equipment, that Vogt had at the plant and ap-
parently used, included drafting tools and various
manuals.
Insofar as work capability was concerned, Vogt was
thoroughly competent. Dillon, president of Respondent,
testified that he had known Vogt since 1957 and the
record shows that in the past Vogt had worked under Dil-
lon elsewhere. Dillon stated that there was "no question"
that Vogt could do a better than average job when he ap-
plied himself. According to Dillon, not only he, but also
Stone, a joint Avco and Hoover supervisor in the Nash-
ville plant, were fully aware of Vogt's ability. Maffett, the
group leader who discharged Vogt, testified that, as far as
Vogt's ability was concerned, "Not only would I have
liked to have kept him [Vogt] but I would like to have
had more like him, and that's the truth ... we don't even
have enough qualified people to go around the way it is
right now." Maffett also testified to a comment that Su-
pervisor Bratton had made about Vogt, to wit, "When we
are really in the pinch he [Vogt] can do in three hours
what normally people, a person would take 8 hours, but
issue had been fully litigated . The Examiner stated to Respondent 's coun-
sel, "Now it's true that this particular type of legal theory hasn't been
posed in so many words up to this point . If you feel , in view of that, that
you want to recall any of your witnesses and so forth . .." Respondent's
counsel then stated that he objected to the General Counsel's desire to
tack on another legal theory " but did not avail himself of the opportunity
to reopen Respondent's case
HOOVER DESIGN CORPORATION 463
keeping him working, keeping his performance up is a big
problem."2
In addition to his acknowledged better-than-average
ability as an employee, Vogt had a personal problem in
that he was a drinker As a witness, Vogt acknowledged
this fact and Respondent's witnesses testified to the fact.
Because of his drinking, reflected in tardiness and at-
tendance, Respondent, since the commencement of
Vogt's employment, rated him as a marginal employee,
using the figure 75 as Vogt's rating. Dillon, in testifying
as to Vogt's marginal rating, stated that if Vogt's rating
slipped "any further it would be mandatory that he would
be replaced .. " According to Dillon, Vogt was
retained because he knew Vogt "and knew his capabili-
ties," as did other supervisors, and because it was "felt
that if he could in some way manage to control the drink-
ing problem ... that we [the Company] would have a
good solid employee ......
Vogt continued in Respondent's employ with the
aforedescribed marginal rating. He did not slip below the
75 figure." He was not drinking on the day of his
discharge, nor is there evidence or an assertion that he
was drinking the day before or in the period immediately
before. There is no evidence that Respondent or any of its
supervisors contemplated discharging Vogt on December
7, 1966, or about that time, either shortly before or after,
for any reason or for anything pertaining to his attendance
or his work as an employee.
According to Vogt, who, on the whole, impressed the
Trial Examiner as a credible witness, shortly before the
Thanksgiving weekend in November 1966, Maffett told
Vogt and other employees that they could either work
that weekend or could take the time off and that they
could be paid "per diem for Friday and Saturday and
overtime for Saturday." On the following pay day, the per
diem and overtime aforementioned was not in the em-
ployees' checks. Vogt questioned Maffett about the
absence of the money and Maffett said that Avco would
not pay the money and therefore Respondent could not.-5
In a second conversation with Maffett on the same sub-
ject, evidently a day or so after the first conversation,
Vogt said that the cheapest thing, that President Dillon of
Hoover could do, was to pay the employees and forget
about it. Vogt also told Maffett that Vogt and other em-
ployees might possibly take the matter to the NLRB.
Maffett said that he would get in touch with Hoover.
Vogt states that on December 7, Maffett was in his de-
partment and Vogt asked him if Dillon was going to pay
the per diem and overtime. Maffett said, "No" and asked
Vogt if he was going to quit if he did not receive the
aforesaid pay. Vogt said, "No," and Maffett then asked,
"Are you going to the N.L.R.B." and Vogt said, "Yes."
Maffett said, "Then you have automatically quit, I'll get
a check and pay you out of my pocket" and Maffett
referred to Vogt as a troublemaker. This conversation
took place around 10 a.m., according to Vogt. About an
hour later, Maffett returned and handed Vogt a check,
saying, "Your timecard has been picked up and you are
already punched out." December 7 was a Wednesday
and the regular payday was Friday. The check that Maf-
fett handed to Vogt in December was Maffett's personal
check for $37 which, according to Vogt, covered the
aforedescribed compensation for the Thanksgiving
weekend. At some later date, Vogt received a paycheck
from the Company for his regular work up to the time of
his termination on December 7.
After the above events on December 7, and on the
same day, Vogt states that he then went to Fussell, an
Avco supervisor in the plant 6 Vogt told Fussell what had
occurred and the latter said that he had not "run into this
before," [had not encountered such a situation before]
and, according to Vogt, Fussell "didn't know what to do
with it [the situation; Fussell evidently made no meaning-
ful comment or observation]." Fussell did not testify.
Vogt states that he then went back to his area and
started arranging his work so that Supervisor Ruis could
take it over and complete it. Vogt asserts that the particu-
lar project had been a 2- or 3-week job and he gave Ruis
the portions that Vogt had already completed and "ex-
plained it to him." Ruis did not testify.
According to Vogt, it was then about lunchtime so he
ate his lunch and then went to see Stone, the chief tool en-
gineer, a supervisor for both Hoover and Avco. Vogt told
Stone of his conversation with Maffett that morning.
Stone said that he was sorry; that he couldn't do anything
about it and for reasons of discipline he had to back up
Maffett. Stone also said that Vogt had been eating break-
fast on the job and had not shown enough "enthusiasm"
in his work.7 Stone did not testify.
Vogt states that he telephoned his wife and arranged
for her to pick him up at the plant. He finished packing his
own equipment. He then proceeded to leave and noticed
that his timecard was not in the rack. He estimated the
time of his leaving as about 1:30 p.m
Employee Bendele, a tool designer at Respondent's
plant, testified as to Maffett telling the employees prior to
the Thanksgiving weekend that they could take time off
but would still receive per diem. Thereafter, when the em-
ployees did not find the promised compensation reflected
in their paychecks, Bendele as well as other employees
spoke to Maffett about it. Maffett told them he was sorry
but Avco would not pay Hoover and the latter could not
pay the employees.
About a week or so later Bendele and another em-
ployee were discussing the fact that nothing further had
been heard about the Company paying the men for the
Thanksgiving weekend. Bendele pointed out that the only
way that the men could accomplish anything was to stick
together and it was decided to go around to the employees
and solicit signatures on a petition or letter. Bendele also
On cross-examination , Respondent 's counsel asked Vogt
Q Do you know that both Mr Maffett and Mr Dillon, as well
as Mr Stone and his second man, are aware of the fact that you can
do an excellent job, that you can do a job in three or four hours that it
might take somebody else 5 or 6 hours to dog Do you know that they
feel that way about you9
A Well, I have been told by other people that I'm a pretty good
man
L
S At various times, Respondent had spoken to Vogt about his dunking
and had urged him to overcome it Vogt would periodically respond but
then would relapse to what Respondent regarded as a marginal attendance
warranting the same marginal rating
Maffett estimated that Vogt's attendance was about 85 percent
whereas most employees were in the 90's Maffett testified that an em-
ployee's pay was docked one-tenth for each 6 minutes he was late Since
Vogt was hourly paid, he evidently was not paid for hours not worked
Respondent 's relationship with Avco , as far as the record indicates, is
either that of a subcontractor or contractor, with Avco reimbursing
Respondent for its wage costs
8 Avco and Hoover employees and supervisors work more or less side
by side in the plant
' Vogt testified that he was unaware of these particular deficiencies and
that no one had spoken to him along such lines
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observed during this conversation that in an earlier
discussion among the employees, apparently on the same
subject of compensation for the Thanksgiving period,
Vogt "had mentioned something ... about the Labor
Relations Board." Bendele then went over to Vogt's
work area and asked him if he had spoken to the Labor
Board about the matter of the promised Thanksgiving
compensation. Vogt said he had not gone to the Board.
The record is clear that on this same day, described
above, which was December 7, 1966, the date of Vogt's
termination, a petition or letter, pertaining to the Thanks-
giving matter, was passed among the employees for
signatures. 11
On December 7, after talking with Vogt regarding con-
tact with the NLRB, as described above , Bendele
returned upstairs in the plant. Later, on the same morn-
ing, Bendele received a telephone call from Vogt. Vogt
said he had just been fired. Bendele said, "For what?"
Vogt replied that Maffett "fired me because I said I was
going to go to the Labor Relations Board." Then Bendele
resumed his work, testifying, "was back at my
board-this was before lunch-and I seen Bill [Maffett]
and I says, `Bill, did you fire Rocky' [Roscoe Vogt]."
Maffett replied, "No, I haven't fired Rocky but I'm going
to. I am going downstairs now and let him go." Maffett
said he had a personal check for Vogt for the Thanksgiv-
ing weekend. Bendele was then asked the time of the
above conversation. He said he was not "positive" but
again placed the incident as "before lunch" although say-
ing it could have been before or right after lunch.9
Maffett testified that, as a result of the employees not
having received their expected compensation in the post-
Thanksgiving paychecks, some of them "griped" about it
and expressed their discontent. The witness was then
asked:
Q. Did any of them mention the Board?
A. Not specifically. I heard rumors that one of
them had a petition.
Q. At that time you heard nothing about the
Board; is that correct?
A. Nothing specifically, no one definitely saying
it.
On December 7, according to Maffett on Respondent's
counsel direct examination, he had a discussion with
Vogt in the morning about the nonpayment of compensa-
tion for the Thanksgiving period. Maffett states that the
matter "generated into an argument" and that he told
Vogt that if the money meant that much to him, he. Maf-
fett, would give Vogt his personal check for the amount.
Maffett states that "This was just before lunch time" and
he went upstairs, phoned his wife to bring a check with
her when she came to the plant to pick up her husband,
Maffett, for lunch. Then, after lunch, before he had a
chance to return to Vogt's department and give him his
check, about three people in the plant, including Super-
8 Bendele testified . "Actually, we just passed it around to everybody in-
volved, just passed it around , and some of them told Bill [Maffett] about
it." The record is clear that on the morning of December 8, Maffett sum-
moned Bendele to his office and asked "What have you done with it [the
petition or list of names]." Bendele replied that it had been destroyed Ac-
cording to Bendele , Maffett then said, "if the list is done with [destroyed]
and that 's it, then there is no use talking about it anymore."
9 As to the petition of the employees that had been circulated on
December 7, Bendele testified that when he came to work on the follow-
ing morning , "the guys were all worried about their name being on the
visor Stone, came to him and told him, in substance, that
they understood that he had discharged Vogt. Respond-
ent's counsel then asked the witness:
Q. . Had you mentioned anything to him
[Vogt] that morning about being dismissed?
A. No, I did not fire him.
Then the witness stated that he had telephoned the com-
pany president, Dillon, in Detroit "before I went back
and discharged him [Vogt]" and Dillon had told him that
it was up to Maffett, "if conditions generated to the point
where I [Maffett] personally felt that he [Vogt] should
be discharged I should do it." Maffett testified that he had
telephoned Dillon in Detroit specifically and for no other
reason than to talk about Vogt "because of the general
unrest that was being generated around us .... I talked
to him [Dillon] about the unrest he [Vogt] was generat-
ing." Maffett stated that the foregoing had nothing to do
with Vogt going to the N LRB.
Although Maffett, in the course of his testimony, said
that the discussion on December 7 with Vogt became an
"argument" and that Vogt was "belligerent," he was not
particularly specific as to what led him to use these con-
clusionary terms although he was asked on several occa-
sions to describe the conversation and to tell what was
said and done. However, at one point, Maffett's
testimony reveals the specifics that underlay his own out-
look. He was asked to "just tell us as best you can what
was said and by whom" between himself and Vogt on
December 7. Maffett states that when he came to Vogt's
area in the plant, the latter asked him, "What did you find
out about the checks" for the Thanksgiving period. Maf-
fett asked what he meant. Vogt said, "Well, are we going
to get paid." Maffett said, "no," and that he had previ-
ously told Vogt that Maffett had made a mistake about
the Avco pay policy when Maffett had told the men that
they would be paid for Thanksgiving. Maffett then
testified, "From there it generated into an argument." On
direct examination the witness had used the same general
phrase. But, at this juncture, on cross-examination, he
was asked:
Q. What was the argument about?
A. Mostly he said something to the effect that
"Lynn Dillon is going to be sorry ... I'm going to the
NLRB."
Maffett states that he told Vogt to go ahead and go to the
NLRB if he wanted to.
Then the witness revealed that because of Vogt's
manifest refusal to drop the matter of his view that he and
the other employees were entitled to the Thanksgiving
pay, Maffett became "excited," particularly since the
firmness was being displayed by an employee such as
Vogt whose personal problems Respondent had so long
tolerated.'° Moreover, in the same portion of his
testimony, Maffett said that he had, in the same conversa-
tion, talked to Vogt "about the unrest he was generating"
letter or on a list" and it was decided to destroy the petition . Then , as men-
tioned above , Maffett called Bendele to his office , asked what he had done
with the petition , and when assured that it had been destroyed, dropped
the matter
19 Although the Respondent's tolerance is not to be deprecated, the
evidence, described previously , reveals that there was at least a degree of
enlightened self-interest in continuing to employ a man of Vogt 's admitted
above average ability in a labor market where men of comparable ability
were evidently not readily available.
HOOVER DESIGN CORPORATION
an obvious reference to the discontent of the other em-
ployees and the circulation of a petition. 1 i
With regard to the telephone call to Dillon in Detroit on
the morning of December 7, Maffett testified that he
spoke to Dillon before lunch about 11:30 a.m.12 The wit-
ness was asked:
Q. You had a conversation with Mr. Dillon where
you told him that Vogt was creating some unrest
among the men over this PD [Thanksgiving per
diem] business; is that right?
A. Right.
Q. Did the subject of discharge come up during
that conversation?
A. Only to the effect that if this generated and it
was left to my decision - it had nothing to do with the
NLRB but it was left to my decision. If he [Vogt]
was going to be hostile about the whole thing, insub-
ordinate, [if Vogt persisted in not forgetting about
the Thanksgiving pay as Maffett thought he should]
then it was my prerogative to let him go.
* * * *
Q. You told him [Dillon] that Vogt had been bel-
ligerent?
A. That's right.
Q. And you told him that you thought maybe he
ought to be discharged because of this?
A. . . . no, not that alone. Like I said, it's a cul-
mination of several things that led up to this point.
Q. But that is the straw that broke the camel's
back; is that right?
A. In effect, this was the last one more chance he
had, yes.
Dillon testified that Maffett, when he telephoned him,
said that Vogt "was causing widespread dissension
among the men because of not being paid the PD for the
Thanksgiving week-end.. ." Dillon states that he told
Maffett that the money could not be paid because of Av-
co's refusal to reimburse Hoover. Dillon was asked, did
he know whether Vogt was discharged "for causing this
dissension." Dillon said he did not know but that in the
telephone conversation with Maffett the import was that
this [causing dissension] was just the culmination, ..."
the final straw in Vogt's long-tolerated marginal status as
an employee. In short, but for the alleged causing of un-
rest on the matter of Thanksgiving pay, Vogt would have
presumably remained the same marginal, but un-
discharged employee, that he had been since the entire
period of his employment. As previously mentioned,
Maffett states that he did not discharge Vogt on the morn-
ing of December 7, but did discharge him at approximate-
" Although the above paragraph paraphrases Maffett 's testimony in
response to the question. "What was the argument about," we believe the
paraphrase is accurate Thus, the testimony -
From the standpoint that he [Vogt] had been probationary . all
along, he had got us between a rock and a hard place several times
He had been given more than one more chance several times and
now, because of something that really hadn't been settled, he was
getting indignant about it [The witness had just testified that he had
told Vogt that the money was not going to be paid and had told him
the same thing previously Maffett never said to Vogt or to any other
employee that the matter of the Thanksgiving pay was still open and
under consideration ] This got me kind of excited about it [Vogt's
firm position] At another point, Maffett testified that he, Maffett,
was "pretty mad" during the conversation with Vogt, and that "it was
in the back of my mind to, believe me to fire him" and that it was
465
ly 2 p.m. on that date. Maffett punched out Vogt's time
card and the time on the card is 14.04.13 After punching
out Vogt's card, Maffett then "came back and I gave him
his check [Maffett's personal check for the Thanksgiving
period] and I said, 'Under the circumstances we don't
have any alternative but to let you go. I'm sorry it had to
work out this way."' This; according to Maffett was the
entire conversation or, as Maffett put it, "That was it." A
few brief words of discharge as aforedescribed, no ex-
planation of the reason to Vogt, and no question or com-
ment by the employee.
Maffett's testimony, in sum , is that in a conversation
with Vogt at or about 10:30 a.m. on December 7 they had
an "argument" about the Company's obligation to pay the
employees for the Thanksgiving period. Vogt made it
clear that he was not content to let the matter drop in
spite of Maffett's statement that the money would not be
paid. Far from letting the matter drop, Vogt said that he
was going to the NLRB and Maffett told him to go ahead.
Maffett was admittedly excited and mad and admits that
he had it in the back of his mind to discharge Vogt. Maf-
fett states that, in spite of his anger and disposition to
discharge Vogt, he not only did not discharge him that
morning but told Vogt that since the money for the
Thanksgiving period evidently meant so much to Vogt,
Maffett would give him a personal check for the money.
Then Maffett went back to his office and made a long
distance call to the president of the Company in Detroit.
In substance, Maffett then sought and received
clearance from Dillon for Maffett to discharge Vogt, in
Maffett's discretion, for what Vogt had done up to the
time of Maffett's conversation with Dillon. What Vogt
had done, according to Maffett, was to create unrest
among the employees on the issue of the Thanksgiving
pay. Vogt had told Maffett that he was not dropping the
matter and was going to the NLRB. Maffett also con-
sidered that the employees' petition was part and parcel
of this unrest being generated by Vogt's position on the
pay issue.14
In the aforementioned posture, according to Maf-
fett-Maffett, in a sense, having capitulated to Vogt by
agreeing to pay him for the Thanksgiving period and Maf-
fett neither discharging nor indicating intent to discharge
Vogt - Vogt, thereupon, quickly goes to various other su-
pervisors and at least one employee and tells them that
Maffett has discharged him for saying that he was going
to the NLRB.
This unusual situation of an employee, in effect,
discharging himself or trying to convince people that he
because of Vogt's attitude "his trying to excite other people For a
person who had as many chances as him it was kind of like the guy
you try to help the most turns on you the hardest, this type of thing."
1 2 "I got hold of Lynn [Dillon] around 1 130 "
13 Military time is used in the plant, 14 04 is of course 2 04 p m
14 Although Maffett and Dillon used the term "dissension among the
employees," this is not strictly accurate There is no evidence of dissen-
sion or fights or arguments among employees, i e , one group of em-
ployees against another The dissension was between the employees, or a
substantial number of them, and the Company, on the issue of whether the
employees should be compensated for the Thanksgiving period Vogt was
the bellweather of the employees' belief that they should be paid and he
had refused to drop the matter and had told Maffett that he was going to
the NLRB
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been discharged when he was not, is thus explained
by Maffett:
When Maffett and Vogt concluded their conversa-
tion on the morning of December 7, Vogt, being
"pretty smart ," must have reasoned to himself, ac-
cording to Maffett , that " Bill [Maffett ] is going to go
back upstairs and call Lynn [Dillon] and Lynn is
going to give him permission to fire me , so, if I say
now that he has fired me , go around and say he's
fired me because I was going to the NLRB, they
won't dare let me go."
The foregoing theory is not persuasive to the Trial Ex-
aminer . If Maffett had said nothing about terminating
Vogt, as Maffett contends, and, if Maffett had finally
agreed to pay Vogt for the Thanksgiving weekend, as
Maffett also contends , why would Vogt suspect , let alone
know , that Maffett , as soon as he left Vogt on the morn-
ing of December 7, was going to make a long distance call
to President Dillon in Detroit to secure the latter's
clearance to discharge Vogt . We also consider it unlikely
that if Maffett had not made it clear to Vogt on that morn-
ing that he was either discharged or as good as discharged
because of his unyielding position on the Thanksgiving
pay, and including Vogt 's admitted statement that he was
going to the NLRB , Vogt would have not spoken to three
individual supervisors and at least one employee that
morning, telling them that Maffett had discharged him.
Vogt even went to the point of explaining to Supervisor
Ruis the exact status of work already performed on a long
job that Vogt had been working on so that Ruis could
complete the job. This is surely a rather convincing detail
to support the view that Vogt had been, and genuinely be-
lieved that he had been , discharged on the morning of the
7th.
Moreover, since Respondent states that Vogt was a
clever and smart conniver , we fail to see any cleverness in
any employee saying that he has been discharged and act-
ing as if he has been discharged when, in fact , he has not
been discharged - all with the alleged purpose of prevent-
ing the employer from discharging the employee. Re-
spondent states that Vogt was trying to shield himself by
claiming that he had been discharged because he said he
was going to the NLRB . But if Vogt wanted to clothe
himself in the N LRB context, it was not necessary to pre-
tend that he had been discharged when he had not been.
All Vogt had to do was to do nothing unless and until he
was discharged . If he was not discharged , it would be fine
from his standpoint. If he was discharged , he could say
that what immediately preceded the discharge was his
conversation with Maffett in which Vogt stated, inter
alia, that he was going to the NLRB . How did it serve
any purpose for Vogt to say he was discharged when he
was not . He could easily tie the NLRB reference in, as
described above , without resorting to the alleged
elaborate falsehood that Maffett and Respondent at-
tribute to him. Vogt evidently went to other supervisors
in the hope that they might attempt to reverse the
discharge . Stone , for instance , said that he was sorry but
he could do nothing about the discharge but would have
to stand behind Maffett 's action. Vogt phoned employee
Bendele to advise him of what had befallen Vogt and
probably to alert Bendele and other employees involved
in the petition . Indeed , soon after , on the morning of
December 8, Bendele and the other employees destroyed
the petition shortly before Maffett summoned Bendele to
his office to question him about the petition.
Another aspect of Respondent ' s version that is not
convincing to the Trial Examiner is the following : Maffett
allegedly said nothing to Vogt in the morning about being
discharged; at 2 p.m. Maffett came to Vogt; handed him
a check ; and said , " Under the circumstances we don't
have any alternative but to let you go; I'm sorry it had to
work out this way." No explanation was offered Vogt as
to why he was discharged right then and there although
allegedly nothing had been said about discharge in the
morning. No comment is made to Vogt about his alleged
false statements in the morning to various supervisors
that Maffett had discharged him. The articulate Vogt,
who courageously and firmly stood up for his views that
morning, asks for no explanation , expresses no surprise
at this quick turn of events , but departs.
A consideration of all the evidence persuades us that,
on December 7, Maffett , in a conversation with Vogt,
became disturbed and angry at Vogt ' s refusal to
acquiesce in the Company 's position that compensation
for the Thanksgiving weekend would not be paid as
originally promised by Maffett . Maffett viewed with
dislike and alarm the burgeoning unrest and discontent
among the employees on the issue , as manifested by the
circulation of a petition on December 7. In Maffett's
mind Vogt was connected with the petition activity and
Vogt furtier confirmed Maffett 's view of him as the spark
plug of the employee unrest by Vogt 's statement that he
was going to the NLRB because of the Company's
refusal to pay the previously promised compensation.
While Maffett perhaps did not say in so many words
that Vogt was discharged if he went to the NLRB or per-
haps did not equate termination solely with Vogt's ex-
pressed intent to resort to the Board , it is our opinion that
Maffett ' s words and actions were based on a package of
circumstances attributed to Vogt and this package in-
cluded Vogt 's statement that he was taking the matter to
the Board.
We believe that on the morning of December 7, Maf-
fett, by the end of his conversation with Vogt, had made
it clear to Vogt that because of Vogt's attitude on the
Thanksgiving pay issue , which had stirred up and was
stirring up general discontent among the employees
because of the nonpayment, Vogt was finished as an em-
ployee of Respondent.15 Vogt's statement that he was
going to the Board was , in context , and, in Maffett ' s mind,
the capstone of what Maffett regarded as Vogt's defiant
attitude and indicated that, far from being convinced that
the employees should drop the entire demand for pay,
Vogt was further escalating the entire problem of em-
ployee discontent.
Maffett was particularly incensed because Vogt's own
firm demand or defiant attitude and the sparking of the
dissent among the employees was attributable to a mar-
ginal employee like Vogt, concerning whose deficiencies
in the past , the Company, including Maffett, had been
quite tolerant. Vogt was viewed in effect as biting the
15 The words may well have been as testified to by Vogt Perhaps other
phraseology was used but the message was terminal as to Vogt's employ-
ment status
HOOVER DESIGN CORPORATION 467
hand that had fed him and, admittedly, Maffett viewed
Vogt's attitude regarding the pay issue as the straw that
broke the camel's back.
Before actually and formally terminating , Vogt, Maffett
sought and secured clearance from Dillon in Detroit for
the discharge. The punching out of Vogt's timecard by
Maffett and the tendering of Maffett's check to Vogt for
the money for which Vogt had been contending were ter-
minal acts that simply confirmed the earlier impartation
to Vogt that he was finished as an employee. 16
The evidence is clear, in our opinion, that, whatever the
version of the actual events, Respondent discharged Vogt
for creating and adding to unrest both as to himself as an
employee and as to his fellow employees. The evidence
also shows that the unrest of Vogt and the other em-
ployees was dissatisfaction with the Company's nonpay-
ment for the Thanksgiving weekend. The dissatisfaction
manifested itself in the conception and circulation of a
petition and in Vogt's firm adherence to his views that the
Company should pay, culminating , when he was again
told by Maffett that the money would not be paid, by
Vogt's assertion that he was going to the NLRB about the
matter. Maffett was incensed by all this, particularly since
the unrest and discontent, which he attributed basically
to Vogt, was coming from an employee whose personal
problem had been tolerated for so long by the Company.
Vogt was discharged on December 7 whereas he would
not have been discharged on that day but for the unrest
relating to the pay issue. Vogt was no more or no less a
marginal employee as to attendance on December 7 than
he had been throughout his employment. Of course the
Company could have discharged Vogt at any time during
his employment for poor attendance or for any other
reason but they could not legally discharge him for his
protected concerted activities on the pay issue or
discharge him under circumstances when Vogt's pro-
tected activity was the precipitating, proximate, and
material cause of the discharge. Since Vogt was
discharged for the reason stated above, we find the
discharge to be in violation of Section 8(a)(1) of the Act. 17
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. Roscoe Vogt is an employee within the meaning of
the Act.
3. Respondent discharged Vogt in violation of Section
8(a)(1) of the Act.18
THE REMEDY
Having found that Respondent has violated the Act we
shall recommend the conventional remedy for such dis-
criminatory conduct.
It is recommended that Respondent offer to Vogt im-
mediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniori-
ty and other rights and privileges, and make him whole for
any loss of earnings suffered by reason of the discrimina-
tion against him by payment of the amount of money he
normally would have earned from the date of his
discharge to the date of the offer of reinstatement, less his
net earnings during said period, with backpay computed
on a quarterly basis with interest at 6 percent.19
The Trial Examiner commends to the parties the fact
that in the event the employee accepts reinstatement he,
as well as the employer, will have the normal status of
their respective positions as employer and employee,
with the respective normal rights, duties, and obligations
of their positions.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, it is recom-
mended that Respondent , Hoover Design Corporation,
its officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging legitimate concerted activities of its
employees within the protection of Section 7 of the Act
by discharging an employee or employees for engaging in
such activity.
(b) In any like or related manner, interfering with,
restraining , or coercing its employees in the exercise of
their rights under Section 7 of the Act to engage in con-
certed activities for their mutual aid and protection or to
refrain from such activities.
2. Take the following affirmative action to effectuate
the policy and remedial purpose of the Act:
16 We do not regard the exact time that Vogt left the plant or the time on
the timecard as of material significance . Vogt said he left at or about 1.30
p.m. and his card was not in the rack at that time . Maffett's testimony con-
firms that , prior to Vogt 's leaving , his card had been removed from the
rack . Maffett states that he punched Vogt 's card at 2 p . m. and the card so
states . Maffett asserts that Vogt was still in the plant and did not ac-
tually leave until "close to 3 o'clock."
A week or so subsequent to Vogt' s discharge, the Respondent did make
compromise payments to the other employees for the Thanksgiving.
I7 In his testimony , Maffett , many times, referred to the unrest or dis-
sension that he believed that Vogt was creating . The witness said nothing
about "company time." Again, Maffett and Dillon, in describing their
telephone conversation about Vogt refer to the employee unrest as re-
ported by Maffett to Dillon . They do not refer to "company time." At a
later point in his testimony , Maffett did refer to Vogt's generating "unrest
by circulating with the other employees on Company time . .." We are
unsatisfied , however , that the concern was primarily about the unrest as
such , whether the employees were discussing their dissatisfaction on
breaktime , lunchtime , or on company time . If the latter had been the prime
concern , a simpl"fder to get to work or not discuss nonwork matters
while working,would have been effective.
When Maffett spoke to Bendele on December 8, his prime concern was
the petition . ; His opening words were, "What have you done with it
[where is the petition ]." Bendele hastily assured him that it had been
destroyed . Maffett had not started the conversation by admonishing
Bendele that the petition was not to be circulated on company time. He
opened the conversation as described above and then, assured that the
petition had been destroyed , he said , as described by Bendele , that "he
was worried about it being done on Company time ." Then Bendele was
asked the following leading question in cross-examination.
Q But he didn't object to your passing any kind of petition if you
wanted to , did he?
A. No, he never said anything to me that would influence me
either way, no [he never said in so many words you can circulate a
petition on nonworking time nor did he say you cannot ("never said
anything to me that would influence me either way")].
Bendele and the other employees , however, had alyeady received the
message of Vogt 's discharge on December 7 and they destroyed the peti-
tion the first thing on the morning of December 8. Moreover , as Maffett
testified , it was Bendele and not Vogt who had circulated the petition, al-
beit Vogt was regarded as the basic instigator of this and other unrest.
18 On its face, Section 8(a)(4) of the Act interdicts discharge of an em-
ployee because "he has filed charges or given testimony under the Act "
Vogt had not filed charges or given testimony but had said, in effect, that
he was going to do so
19 F. W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heat-
ing Co., 138 NLRB 716
310-5410-70-31
468 DECISIONS OF NATIONAL
(a) Offer Roscoe Vogt immediate and full reinstate-
ment to his former or substantially equivalent position
without prejudice to his seniority or other rights and
privileges previously enjoyed , and make him whole for
any loss of pay he may have suffered by reason of his
discharge , in accordance with and as set forth in the sec-
tion of this Decision entitled , "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , all payroll and other records necessa-
ry to compute the earnings of Vogt if he had not been
discharged.
(c) Post at the Avco plant in Nashville , Tennessee, the
Owner , Avco Corporation, willing, copies of the attached
notice marked "Appendix . -20 Copies of said notice, to be
furnished by the Regional Director for Region 26, after
being duly signed by Respondent 's representative, shall
be posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter , in con-
spicuous places , including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered , defaced , or covered by any other material. In the
event that Avco, as the owner of the plant , is unwilling
that Respondent post the notices in the plant, then
Respondent shall take appropriate steps to give each of
its employees , including any joint Hoover and Avco em-
ployees, an individual copy of said notice for perusal and
retention by the employee or, alternatively, if the notices
cannot be posted in the plant , Respondent may mail in-
dividual copies of the said notice to each employee as
aforedescribed at the respective home of each employee.
(d) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith.21
20 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing , within l0 -days from the date of this Order , what steps Re-
spondent has taken to comply herewith."
LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage legitimate concerted ac-
tivities that our employees may engage in for pur-
poses of collective bargaining or other mutual aid or
protection on matters pertaining to their wages,
hours, and other conditions of employment by
discharging any employees because of the exercise
of such rights.
WE WILL offer to employee Roscoe Vogt im-
mediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges previously
enjoyed, and WE WILL pay to Roscoe Vogt with in-
terest at 6 percent any wages he has lost by reason of
his discharge and covering the period from the date
of his discharge to the date of our offer of reinstate-
ment.
HOOVER DESIGN
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Ten-
nessee 38103, Telephone 3-8103.