International Harvester Co.

National Labor Relations Board - Board Decisions

Jan 16, 1976

222 N.L.R.B. 377 (N.L.R.B. 1976)

INTERNATIONAL HARVESTER COMPANY
International Harvester Company and International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Automotive Chauf-
feurs, Parts and Garage Employees, Local Union
No. 926 . Case 6-CA-7940
January 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On September 29, 1975, Administrative Law Judge
James V. Constantine issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, Respondent
filed cross-exceptions and an answering brief to Gen-
eral Counsel's exceptions, and the General Counsel
filed an answering brief to Respondent's cross-excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,I findings 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER'
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Inter-
national Harvester Company, Pittsburgh, Pennsylva-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in said: recommended Order,
as so modified.
1. Delete paragraph 1(b) and substitute the follow-
ing:
"(b) Threatening employees, with loss of pay, loss
of benefits such as vacation and sick pay, and longer
working hours if the Union became the employees'
bargaining representative."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHERED ORDERED that the allegations in the
complaint not found herein be; and they hereby are,
dismissed.
Respondent filed a motion with the Adlninistrative Law Judge to cor-
rect the transcript in certain respects. The motion was opposed by the Gen-
eral Counsel. The Administrative Law Judge declined to rule on the motion
377
because he was "unable to recall which party's position is correct on said
motion." Instead, he invited Respondent to renew its motion to the Board
which it has done The Board is not in a better position than the Adminis-
trative Law Judge to decide whether the transcript contains an incorrect
version of testimony. The Administrative Law Judge heard the testimony,
the Board did not. If the Administrative Law Judge was unable to decide
whether Respondent is correct in its motion, neither is the Board Accord-
ingly, the Board has no alternative but to deny the motion.
The Administrative Law Judge found that Respondent violated Sec.
8(a)(1) by Branch Business Manager Hotchkiss' interrogation of employee
Jeno as to how she felt about the Union and how she would vote, and by
threatening Jeno with loss of pay if the Union became bargaining represen-
tative In the same conversation, according to the account credited by the
Administrative Law Judge, Hotchkiss told Jeno that if she was trying to get
the Union in for shorter working hours "it can't do that for you. If anything,
you'll . . . end up working longer hours and you'll probably lose benefits
such as vacation and sick pay and the Union would only erupt more in
nit-picking." The General Counsel contends that the foregoing quoted state-
ments by Hotchkiss also violated Sec. 8(a)(1). We agree and so find We
shall amend the Order and the notice to employees accordingly
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees regard-
ing their union activities or how they would vote
as to having a union.
WE WILL NOT threaten our employees with loss
of pay or loss of benefits such as vacation and
sick pay, or longer working hours if the Union
becomes our employees' bargaining representa-
tive.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the excercise of rights guaranteed to them in
Section 7 of the National Labor Relations Act.
All our employees are free to become, remain, or
refuse to become or remain, members of Local 926,
Teamsters, or any other labor organization.
INTERNATIONAL HARVESTER COMPANY
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case litigated pursuant to the
provisions of Section 10(b) of the National Labor Rela-
tions Act, herein called the Act. 29 U.S.C. 160(b). It was
commenced by a complaint issued on May 29, 1975, by the
General Counsel of the National Labor Relations Board,
the latter herein called the Board, through the Regional
Director of Region 6 (Pittsburgh, Pennsylvania), naming
International Harvester Company as the Respondent. Such
complaint is based on a charge filed on December 10, 1974,
222 NLRB No. 61
378 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
by International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers -of America, Automotive
Chauffeurs, Parts and Garage Employees, Local Union
No. 926, herein called the Union.
In substance the complaint alleges that Respondent vio-
lated Section 8(a)(1) and (3), and that such conduct affects
commerce within the meaning of Section 2(6)' and (7) of
the Act. Respondent has answered admitting some of the
allegations of the complaint but denying that it committed
any unfair labor practice.
Pursuant to due notice this cause came on to be heard,
and was heard before me, at Pittsburgh, Pennsylvania, on
July 9, 1975. The General Counsel and Respondent were
represented and participated in the hearing, and had full
opportunity to introduce evidence, examine and cross-ex-
amine witnesses, file briefs, and offer oral argument. They
both argued orally at the close of the case.
This case presents the following issues:
1. Whether Respondent engaged in conduct violating
Section 8(a)(1) of the Act.
2. Whether Respondent discharged employee Kay Jeno
for discriminatory reasons prohibited by Section 8(a)(1)
and (3) of the Act.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Delaware corporation with an office and
place of business in Pittsburgh, Pennsylvania, which is the
only facility of Respodent involved in this case, is engaged
in the nonretail sale and repair of trucks and farm equip-
ment. During the year preceding the issuance of the com-
plaint said facility shipped goods and materials valued in
excess of $50,000 directly to points outside the Common-
wealth of Pennsylvania. During said period Respondent at
its said facility purchased and received goods valued in
excess of $50,000 directly from States outside the Com-
monwealth of Pennsylvania. I find that Respondent is an
employer within the meaning of Section 2(2) and is en-
gaged in commerce within the purview of Section 2(6) and
(7) of the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction over Respondent in this proceed-
ing.
Ii. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Initially, certain preliminary- matters should be men-
tioned here. (1) Respondent filed a motion dated August 8,
1975, to correct the transcript. It is opposed by the General
Counsel. But I am unable to recall which party's position is
correct on said motion. Accordingly, I do not pass on it.
However, Respondent may renew said motion before the
Board when it reviews my decision. (2) Respondent on Au-
gust 18, 1975, filed an "amended motion to correct tran-
script." I do not pass on said motion for the, same reason.
(3) General Counsel has filed a motion to correct transcript
dated August 8, 1975. In the absence of opposition thereto
said motion is granted.
A. General Counsel's Evidence
Kay Jeno testified substantially as follows as a witness
for the General Counsel. About mid-June 1974, Respon-
dent hired her to be a service center clerk at its place of
business at 1301 Beaver Avenue in Pittsburgh. About the
first of November 1974, the Union commenced a drive to
organize Respondent's clerical employees at said address.
In the first week of November Jeno signed a card for the
Union in the Respondent's ladies room and then placed it
in the cabinet drawer in said room. A day or two before
this she asked three of Respondent's -clerks whether they
planned to sign cards for the Union. And a day or two
after she signed a union card Jeno attended a union meet-
ing at the union office in Pittsburgh.
About a week following said union meeting Jeno spoke
to Respodent's assistant service manager, Martin Wilson,
on official business. During the conversation Jeno told him
"things were going to change shortly because something
was going to happen." Although he asked her what this
meant she replied she could not answer him but he would
find out soon. Almost daily thereafter Wilson asked her
"what was going to happen." Finally, on or about Novem-
ber 22 she answered Wilson by saying "we were trying to
start a union." He replied, "Good Luck." I find no viola-
tion of the Act in Wilson's inquiries.
On November 25 Jeno had a conversation with Paul
Hotchkiss, Respondent's branch business manager. He
told her he had heard a rumor "about someone trying to
start a union in the clerical section" and asked her if she
knew "anything about the union or the rumor." She replied
in the negative. This caused him to remark that he
"couldn't understand it because the Union said they had
over fifty percent majority of the clerical staff and so far
everyone he had questioned had denied any knowledge of
the Union." Then he asked her how she felt about the
Union and how she would vote, but she replied she would
"have to look into it a little more before she made any
decision." Then he added that if Jeno was trying to get the
Union in for shorter working hours "it can't do that for
you. If anything, you'll . . . end up working longer hours
and you'll probably lose benefits such as vacation and sick
pay and the Union would only erupt more in nit-picking."
Continuing, Hotchkiss asked her if she thought that
there was some sort of problem in the office, but she did
not reply. Then he added that if a problem existed she
should have come to him and he would have taken care of
it; and he asked her why she "did not go to him?" She
replied that she did "not think it, would have,done any
good." At some point in the conversation he "mentioned
that the Union couldn't get them an increase in wages. If
anything, they would lose pay."
Later that day about 4:57 p.m. a customer paid his bill
with a check for less than $50 made out to Respondent.
She then placed said check and a copy of the receipt to the
INTERNATIONAL HARVESTER ,COMPANY
customer in her desk drawer and locked said drawer, after
which she went home as her day ended at 5 p.m. As she
was ill the next day, November 26, she did not report for
work until November 27.
On November 27 about 4 p.m. Hotchkiss ordered her to
come to Branch Manager Dwyer's office where she met
both of said men. Dwyer told her she was being discharged
because she had left the check in the desk drawer over-
night. When he stated that Jeno had "been warned repeat-
edly about this subject" she replied that she had "never
been warned about this particular subject." At this point
Hotchkiss stated that he' "had four or five documented
times of when he warned [Jeno] about this particular sub-
ject." Although Jeno insisted she had never previously
been warned, Hotchkiss replied, "it doesn't matter any-
way."
Jeno first started to handle Respondent's cashbox
around the first of September 1974. Her duties required her
to take it out of the vault every morning, bung it to her
desk where she placed it in a locked drawer, and kept the
drawer locked except when she needed the box to serve a
customer. At the end of the day she took the box, which
contained cash and checks, together with her receipt book,
to Hotchkiss who made sure that the "receipts matched up
with the money." Then he took out all the contents of said
box except $50 in cash. The box with said $50 was then
placed by Jeno in the vault.
Once prior to November 25 Jeno had placed the cashbox
overnight with $50 in it in her locked desk drawer. Hotch-
kiss told her not to leave the cashbox in such drawer over-
night. So she obeyed his command thereafter. But he never
warned her not to leave checks in such locked desk drawer.
He also informed her at least once a week that she was not
to work overtime as Respondent "did not want to pay
overtime."
About a week following Jeno's termination on Novem-
ber 27 she, accompanied by Mike Gardener of the Union
and two others, asked Dwyer if Dwyer would take her
back, but he replied he would not. Then Gardener asked
Dwyer why Jeno had been discharged. Dwyer replied it
was because Jeno had "left the check" in Jeno's drawer
overnight. When Gardener asked if there were any other
reasons, Dwyer answered, "No; she was a competent
enough employee, but I can't afford to take chances like
that and she had been warned repeatedly." When Garden-
er stated that Jeno had not been warned about this Dwyer
replied,,"It's just her word against ours." And when Gar-
dener asked Dwyer if Dwyer would recognize the Union,
Dwyer replied, "No." And Dwyer did say that he knew
that Jeno probably had signed a union card.
On cross-examination it was shown that Jeno's affidavit
to the General Counsel did not refer to Dwyer's statement
that he knew that Jeno had probably signed a union card.
(See Resp. Exh. 1.) When asked to explain why it was omit-
ted therefrom she testified on cross, "I didn't think it was
relevant at the time." However, she claimed that "after
reading the affidavit several times, I remembered then that
I had left it out and I told the Union about it . . . in
preparation of this case for trial." And she admitted on
cross that such a statement is not contained in her second
affidavit. (See Resp. Exh. 2.)
Michael Gardener, secretary-treasurer of the Union, was
379
the only other witness for the General Counsel. His testi-
mony may be condensed as follows. His union has repre-
sented Respondent's office clericals since January 1975, as
a result of winning an election conducted by the Board, In
November 1974, said Union conducted an organizational
drive among, and held one meeting for, the clericals. Kay
Jeno was one of those attending said meeting. On Novem-
ber 25 he telephoned Respondent's John Dwyer requesting
recognition of the Union.
A few days after Jeno was dismissed she met with John
Dwyer, Respondent's branch manager, to discuss said dis-
charge., Joseph Stotter, business representative of the
Union, and Gardener were also present. When Gardener
asked Dwyer if Jeno had been terminated for union activi-
ty, Dwyer replied in the negative. Dwyer then gave as the
reason for such dismissal that Jeno had left a check for
$25.46 in her desk, thereby violating company policy to
"leave any monies . . . that is, receipts, in her desk or over-
night and she had instructions to make sure that everything
is locked in the safe." Continuing, Dwyer mentioned that
Respondent had lost "considerable sums of money" in the
past from "previous employees in that same job."
Then, replying to another question of Gardener's, Dwyer
asserted that no cash was left in the desk by Jeno and that
the payee named in said check was Respondent. Dwyer
also stated that, although this was the only reason for dis-
missing Jeno, "there are other things but we don't want to
talk about it . . . . We have some documents, but we're
not going to use them unless we really have to." Then Gar-
dener requested that Dwyer reinstate Jeno but Dwyer re-
fused to do so. Gardener also asked Dwyer to recognize the
Union. But Dwyer refused to do so and stated he preferred
an NLRB election to determine if the Union represented a
majority. Dwyer added that he knew the Union had ob-
tained signed cards from five employees, one of whom was
Jena
On cross-examination Gardener admitted that he did
not mention in his affidavit to the Board that in his conver-
sation with Dwyer the latter stated he had some documents
which he, Dwyer, "could use" but was "not going to use
unless we really have to" in order to sustain the discharge
of Jeno. Gardener further testified he did not remember
this at the time he gave said affidavit but did remember it
"later on." When asked on cross "how much later on did
you remember," he replied, "A hundred years later."
B. Respondent's Defense
At the Pittsburgh branch of Respondent involved in this
case Paul Hotchkiss is branch business administrator. He
gave testimony for Respondent which may be summarized
as follows. Kay Jeno was hired in June 1974 as a service
center clerk with the responsibility of receiving the "daily
time tickets" of the mechanics and computing how many
hours they worked. In addition she had other duties which
he described, but only one need be set out here. This one
required her "to bill the customer" for "work orders" per-
formed for such customer and to see that such customer
either pay for the work or charge it if he had a charge
account "before he could take his truck" which had been
serviced by Respondent.
On or about September 4, 1974, following her 60-day
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probationary period , Jeno was given written instructions
"regarding the handling of company funds." He reviewed
said instructions with her . She also signed a form stating
she had received $50 to be used in making change in con-
nection with cash transactions and also stating that she had
received a copy of said instructions . (See Resp . Exh. 4.)
Hotchkiss further testified that about October 12 he
warned her because when she went home the day before
she had left the petty cashbox in her desk. She had also
received a similar warning about November 11, 1974, and
was at that time told that he "couldn 't tolerate the leaving
of company funds in a desk overnight . It belonged in the
vault and the next time it happened she could be terminat-
ed." And she was also "warned . . . more than once .. .
regarding the turning in of company funds promptly after
receiving them on C.O .D. orders . . . . You receive it to-
day, I want it to-day. I don't want it tomorrow." This last
warning was occasioned by her failing to turn "funds in on
the same day that it was received . . . as many as three to
five days . . . both cash and checks." However, her desk
drawer was always locked.
On November 25, 1974, Jeno had received about $17
from a cash customer . But it was not "turned in" by her
until November 27. And prior to this "there had been
problems at the Pittsburgh truck sales branch regarding the
handling of company funds . . . and that was the reason
that I [Hotchkiss] was brought to Pittsburgh."
"On November 25 Jeno did not come to work," accord-
ing to Hotchkiss (I believe he meant November 26, since in
the immediate paragraph above he said she received a pay-
ment on November 25). As a result the service department
called him that there was a customer to be served. So he
went to her office "to figure a C.O.D. for a customer" and
"opened her desk drawer where these would be kept."
However, he found the desk drawer locked before he
opened it. He found "this check and the paid copy of the
service invoice" in said desk . This caused him to "blow his
stack" and say to himself, "That's it. I'm through."
Then on November 27 the weekly meeting of the mana-
gerial employees was held . He attended it and "brought
out at this meeting that I think that she should be terminat-
ed." However , he , "was not aware" on this occasion "that
Kay Jeno was engaged in Union activity"; but he knew
that on November 25 Dwyer had received a telephone call
from Gardener "indicating that the clerical office had in-
tended to organize." Nevertheless, "the fact of the Union
activity [did not] have any influence on the recommenda-
tion" to discharge Jeno.
The last previous time that "Jeno was warned regarding
the handling of C.O.D. items prior to the incident which
resulted in her discharge ," according to Hotchkiss, "was
the week ending November 15. She was warned during that
week with respect to . . . being more prompt and turning
the money in on a daily basis." She had not been turning
the money in on a daily basis, he declared in his direct
testimony.
On cross Hotchkiss testified that Jeno prior to being dis-
charged received 2 warnings not to leave the cashbox in
her desk overnight and between 5 and 20 warnings for not
turning in cash on a daily basis. He also asserted on cross
that on November 25 he told Jeno that Dwyer had just
received a telephone call from Gardener and Hotchkiss
thereupon asked Jeno if she knew if there was any truth to
the rumor that Hotchkiss ' office force was going to orga-
nize a union . Jeno replied , "Where I came from in Califor-
nia we didn't need a union. I'd have to give that some
thought."
Respondent also called John Dwyer as a witness. His
testimony may be abridged as follows . He is branch man-
ager of Respondent 's truck sales branch . Hotchkiss,
Respondent 's branch business administrator at its branch
where Jeno was employed , brought to Dwyer 's attention at
a managerial meeting on November 27, 1974, that Hotch-
kiss found a check in Jeno's desk and requested that "for
that she should be discharged. Also, at that time, Mr. Burk-
head brought to my attention several other reasons why
she should be discharged." It was decided at said meeting
to dismiss Jeno.
Later that day Jeno, accompanied by Hotchkiss, came to
Dwyer's office. Dwyer thereupon informed Jeno that, "af-
ter several warnings which she had failed to heed, we had
again found another violation, namely, the check which
Mr. Hotchkiss had at that time in his hand and for that
reason we were going to discharge her." Jeno responded
that "she didn't know of several offenses , but she only
knew of one and that in this specific instance [and] . . . she
didn't have enough time to place it [the check] in the vault
or turn it in to Mr . Hotchkiss ." Then Jeno left.
At the time of the above meeting Manager Dwyer was
"not aware of any Union activity in which Ms . Jeno was
engaged." But he "was aware that there was within the
office work force some Union activity" as he had received
a call on November 25 from Gardener, the Union's secre-
tary-treasurer.
Following Jeno's discharge Gardener came with Jeno to
Dwyer's office on December 9, 1974. Dwyer informed
them that he did not recognize Gardener as a representa-
tive of the office clerical force and that he "did not ac-
knowledge that he did recognize [Gardener], that [Garden-
er] was merely a friend of Kay Jeno's coming up there and
that I [Dwyer] had a reasonable doubt that he [Gardener]
did represent the employees ." But there was no discussion
about union cards; and Dwyer denies that he said that he
knew that Jeno had signed a union card . At one point in
the discussion Gardener threatened "to take the office
work force out on strike" and added , "Okay, we're going to
put you out of business in Pittsburgh. Dwyer, you'll never
do any more business ." I credit the General Counsel's evi-
dence that Dwyer said he probably knew that Jeno had
signed a union card and do not credit Dwyer 's denial
thereof.
On cross, Dwyer testified that when he discharged Jeno
he told her that it was based on not only leaving a compa-
ny check in her desk drawer overnight , but also because in
the past she had "improperly handled cash, that she left the
cash box there, that there were several occasions of this
type of incident and this is the last and final occasion as far
as I was concerned and I couldn 't tolerate it any more."
Although he previously had learned of these prior malfea-
sances of Jeno's from Hotchkiss , he never mentioned them
INTERNATIONAL HARVESTER COMPANY
to Jeno until the day he discharged her. And Dwyer further
stated on cross that Hotchkiss orally warned Jeno about
said past unsatisfactory performances , and that the inci-
dents giving rise to such warnings are recorded in Jeno's
personnel file.
C. General Counsel's Rebuttal
Kay Jeno was recalled by the General Counsel to testify
on rebuttal. Such testimony may be adequately com-
pressed as follows. Hotchkiss never told her that she would
be discharged it she left the cashbox in her desk drawer.
And only once did she ever fail "to turn in a C.O.D.
promptly ... that is, on the day it was turned in [to her] by
a customer." But this occurred only because she received
"it" late in the day and, not having "time to turn it in," she
put it in her cashbox, locked the box, and placed the box in
the vault. Hotchkiss told her he disapproved of this. This
was the only time Jeno was "ever warned . . . about failing
to turn in a C.O.D. promptly." And Jeno on this occasion,
i.e. on November 25, did not take "the check" up to the
vault on the second floor as this would have caused her to
work a few minutes overtime (it was 5:01 p.m. when she
received "the check.") But she had been instructed 'not to
work overtime as overtime was against company policy.
On cross Jeno admitted that on still another occasion
prior to November 25 she left "an excess amount of cash"
in her cashbox. (See Resp. Exh. 5.) And at least one other
time she did not turn in cash the same day she received it.
(See Resp. Exh. 6.) And counsel for Respondent brought
out on cross that Jeno sometimes did not turn in cash to
Respondent the same day she received it from customers.
(See Resp. Exh. 7, 8, 9, and 10.)
D. Concluding Findings and Discussion
1. As to the discharge of Kay Jeno: Upon a critical
study of the entire record it is my opinion, and I find, that
Ms. Jeno was discharged for cause, i.e., for not turning in
some cash and a check, received by her on November 25,
1974, at the end of said day as required by Respondent's
policy, and that the reason given for her discharge is not a
pretext to disguise her union activity as the true cause for
terminating her. While this ultimate finding is based on the
entire record, it is also derived from the following subsid-
iary findings, which I hereby find as facts.
a. Jeno was instructed to turn in receipts, whether of
cash or checks, the same day she received them. Admitted-
ly she did not do this on November 25. Her excuse is that
she did not do so as it would require her to work a few
minutes overtime contrary to company policy. But I am
not impressed by this excuse, as I cannot understand how
she would lose any more than a few cents by working an
extra minute or two without claiming overtime.
b. She was discharged as soon as her failure to turn in
such receipts was discovered on November 27, the next day
that she returned to work. Hence it cannot be said that
Respondent condoned her conduct on November 25 and
later discharged her for union activity. Of course, it has
been held that a trier of facts may find a discriminatory
intent when a discharge is effected abruptly upon ascer-
381
taming unsatisfactory performance. N.L.R.B. v. Montgom-
ery Ward & Co.,242 F.2d 497, 502 (C.A. 2, 1957) cert. de-
nied 355 U.S. 829 (1965). But I am unable to make such a
finding in this case as the General Counsel has failed to
convince me that Jeno should have been permitted to work
until the end of the week. Cf. State Asphalt Company, Inc.,
219 NLRB No. 172 (1975).
In this connection I have not overlooked the principle of
law that "Direct evidence of a purpose to discriminate is
rarely obtained." Corrie Corporation of Charleston 'v.
N.LR.B., 375 F.2d 149, 152 (C.A. 4, 1967). "Nowadays it is
usually a case of more subtlety." N.L.R.B. v. Neuhoff Bros.,
Packers, Inc., 375 F.2d 372, 374 (C.A. 5, 1967). Neverthe-
less, I find that Respondent's purpose in terminating Jeno
was not to discriminate against her for her union activity.
Cf. Whitcraft Houseboat Division, North American Rockwell
Corporation, 195 NLRB 1046, 1048 (1972).
c. I recognize that "management is for management
.... Management can discharge for good cause, or bad
cause, or no cause at all ... [but] it may not discharge
when the real motivating purpose is to do that which Sec-
tion 8(a)(3) forbids." See N.L.R.B. v. T.A. McGahney, Sr.,
T.A. McGahney, Jr., Mrs. Altie McGahney Jones and Mrs.
Wilda Frances McGahney Harrison, d/b/a Columbus Mar-
ble Works, 233 F.2d 406, 413 (C.A. 5, 1956). However, I
find that Jeno was discharged for cause, although it may be
that another employer might have retained her because her
conduct was not too reprehensible. Cf. N.L.R.B. v. United
Parcel Service, Inc., 317 F.2d 912, 914 (C.A. 1, 1963). And
I also find that "the real motivating purpose" was not dis-
criminatory within the purview of Section 8(a)(3) of the
Act. Cf. Miller Electric Manufacturing Co., Inc. v. N.L.R.B.,
265 F.2d 225; 226-227 (C.A. 7, 1959).
d. I have not disregarded Respondent's union animus
and unfair labor practices as found elsewhere herein. This
is material on the question of whether Jeno's discharge was
impelled or induced by purposes interdicted by Section
8(a)(3) of the Act. Nevertheless I find that such antiunion
conduct by Respondent did not enter into the decision to
terminate Jeno.
e. I credit Jeno that Dwyer on November 9 said he knew
that Jeno "probably had signed a Union card," and thus
find that Respondent had knowledge of this extent of her
union activity. But it is significant `that Jeno on cross ad-
mitted that she did not mention said knowledge of Dwyer
in either of her two affidavits given by her to the Board
and that she first "told the Union about it ... in prepara-
tion of this case for trial." This convinces me that if Jeno
really believed that her unionism caused her dismissal she
would have told the Union or the Board about such knowl-
edge long before being interviewed for the hearing. I do
not credit Gardener that in this conversation Dwyer said
that Dwyer "knew" that Jeno had signed a union card.
f. Jeno's union activity is, on her own testimony, quite
minor , i.e., she signed a union card, attended a union meet-
ing, and asked three employees whether they planned to
sign cards for the Union. Hence,' I cannot infer that she
was discharged as an active protagonist of the Union in
order to retard the Union's organizational drive or to chill
employees from joining the Union. Consequently, I find
that cases like N.L.R.B. v. Longhorn Transfer Service, Inc.,
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
346 F.2d 1003, 1006 (C.A. 5, 1965) do not require a con-
trary conclusion.
2. As to the alleged violations of Section 8(a)(1) of the
Act: Crediting Jeno, I find that on November 25, 1974,
Branch Manager Hotchkiss asked Jeno whether she knew
anything about someone trying to start a union in the cleri-
cal section. He also told Jeno that he had questioned cleri-
cals but they denied any knowledge of the Union. Continu-
ing, he inquired of Jeno how she felt about the Union and
how she would vote. I find that such interrogation is pro-
hibited by Section 8(a)(1) of the Act. Also in this conversa-
tion Hotchkiss told Jeno that the Union couldn't get them
an increase in wages and, "if anything, they would lose
pay." I find this statement exceeds "the expressing of any
views, argument, or opinion" protected by Section 8(c) and
that it contains a threat of reprisal which contravenes Sec-
tion 8(a)(1) of the Act.
Respondent's branch business administrator, Paul
Hotchkiss, testified, and I credit him on this aspect of his
testimony, that on November 25, 1974, he told Jeno that
Dwyer had just received a call from Gardener of the Union
and Hotchkiss then asked Jeno if she knew whether there
was "any truth to the rumor that [his, i.e., Hotchkiss] office
force was going to organize a union." I find that this inqui-
ry seeks to ascertain information regarding the Union's or-
ganizational drive. Hence I find it is improper interroga-
tion proscribed by Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operations described in section I,
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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in un-
fair labor practices, I shall recommend that it cease and
desist therefrom and that it take specific affirmative action,
as set forth below in the recommended Order, designed to
effectuate the policies of the Act. The conduct of Respon-
dent in my opinion does not reflect a general disregard of
or hostility to the Act, and I so find. Accordingly, I find
that a broad remedial order against Respondent is not war-
ranted. Rather, I find that it will accomplish the policies of
the Act to enjoin Respondent from repeating the transgres-
sions found above to be unfair labor practices and similar
or like conduct.
Upon the foregoing findings of fact and the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an Employer within the meaning of
Section 2(2) and is engaged in commerce as defined in. Sec-
tion 2(6) and (7) of the Act.
3. By questioning office clerical employees regarding
union activity among them and how they were going to
vote as to having a union, Respondent engaged in coercive
interrogation violating Section 8(a)(1) of the Act.
4. By telling its office clerical employees that the Union
could not get them an increase in wages and, if anything,
the Union would cause them to lose pay, Respondent ex-
pressed views containing a threat of reprisals and thereby
infringed Section 8(a)(1) of the Act.
5. Respondent has not committed any other unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER'
The Respondent, International Harvester Company,
Pittsburgh, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a). Questioning employees regarding union activities or
how they would vote as to having a union.
(b) Telling employees that a union cannot get them an
increase in wages and, if anything, a union would cause
them to lose pay.
(c) In any similar or like manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to of-'
fectuate the policies of the Act:
(a). Post at its place of business at Pittsburgh, Pennsyl-
vania, copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by an au-
thorized representative of Respondent,'shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily displayed. Reasonable steps shall be taken to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(b). Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not found herein.
1 In the event no exceptions are filed as provided by Sec. 102 46 of the
Board's Rules and Regulations, the findings, conclusions, recommenda-
tions, and recommended Order herein shall, as provided in Sec 102 48 of
said Rules and Regulations, be adopted by the Board and become its find-
ings, conclusions , and Order, and all objections thereto shall be waived for
all purposes
2 In the event 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 "