Kay Electroincs, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1967

167 N.L.R.B. 1104 (N.L.R.B. 1967)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kay Electronics , Inc. and District Lodge 71, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Cases 17-CA-2952 and
17-CA-3058
October 27, 1967
DECISION AND ORDER
By MEMBERS BROWN, JENKINS , AND ZAGORIA
On May 9, 1967, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices alleged in the
complaint and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint and recommended dismissal
as to them. Thereafter,, the Respondent and the
Charging Party filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the
General Counsel filed cross-exceptions and argu-
ment in support thereof.
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. I The Board has considered the
Trial Examiner's Decision, the exceptions, and
brief, cross-exceptions and argument in support
thereof, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the follow-
ing modifications:
We agree with the General Counsel's contention
that the recommended "Notice to All Employees"
is not broad enough and, accordingly, we shall
delete the Notice recommended by the Trial Ex-
aminer and substitute a new Notice attached hereto
and referred to as "Appendix A." We shall further
modify the Trial Examiner's Decision by noting
that all references to the Appendix in that Decision
hall refer to the new Appendix A substituted for
the deleted Appendix.
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, as modified
below , and hereby orders that the Respondent, Kay
Electronics , Inc., Kansas City, Missouri, its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
1. Delete in its entirety the Appendix attached
to the Trial Examiner's Decision and substitute
therefor the Appendix A attached hereto.
2. The Trial Examiner's Decision is further
modified by making all references therein to the Ap-
pendix refer to the Appendix A attached hereto.
We do not agree with Respondent that the consolidation of the two
cases prejudiced that portion of the Respondent's case relating to the
setting aside of the settlement agreement A careful review of the record
shows that there was sufficient and substantial evidence presented in Case
17-CA-3058 to support the recommendation that the settlement agree-
ment be set aside In addition, the rule stated in Larrance Tank Corpora-
tion, 94 N LRB 352, upon which Respondent relies, has been overruled in
Northern California District Council of Hodcarriers and Common
Laborers of Amenca, AFL-CIO, et al (Joseph's Landscaping Service),
154 NLRB 1384 Accordingly, we deny Respondent's motion for a
rehearing and severance of the two cases
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 employees that:
WE WILL NOT discourage membership in
District Lodge No. 71, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by
discharging or otherwise discriminating against
employees in any manner with regard to their
rates of pay, wages, hours of employment, hire,
tenure of employment , or other term or condi-
tion of employment.
WE WILL NOT grant wage increases for the
purpose of inducing our employees to vote
against the Union.
WE WILL NOT engage in surveillance and/or
create the impression of surveillance.
WE WILL NOT encourage our employees to
withdraw from the Union or make unsolicited
offers to prepare letters of withdrawal from the
Union.
WE WILL NOT ask our employees to provide
us with a list of union supporters nor will we
promise our employees any benefits if they do
so.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of their right to self-organization, to
form , join, or assist any union , to bargain col-
lectively through representatives of their own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any
167 NLRB No. 161
KAY ELECTRONICS, INC.
and all such activities, except to the extent that
such right may be affected by an agreement
requiring union membership as a condition of
employment, as authorized in Section 8(a)(3)
of the Act.
WE WILL offer Della Galloway immediate
and full reinstatement to her former or substan-
tially equivalent position, without prejudice to
her seniority and other rights and privileges,
and we will make the said Della Galloway and
Mary Grass whole for any loss of earnings they
may have suffered by reason of the discrimina-
tion against them, with interest thereon at 6
percent per annum.
KAY ELECTRONICS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR
4-5181.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Case 17-CA-2952 originated with a charge filed June
20, 1966, alleging that the Respondent had unlawfully
discharged employees Mary Grass and Margaret Ricker
in violation of Section 8(a)(3) and (1) and by other acts
and conduct violated Section 8(a)(1) of the National
Labor Relations Act, as amended. An amended charge
filed August 25, 1966, repeated the allegations as to
Grass and Ricker (adding further particulars), also al-
leged discrimination against one Patsy Wilson, and again
repeated the generalized allegation of "other acts and
conduct" violative of Section 8 (a)(1). This matter was the
subject of a settlement agreement, executed August 29,
1966, providing, inter alia, that Grass return to work. As
noted below, the agreement was later set aside, and a
complaint issued.
Case 17-CA-3058 originated with a charge filed
November 4, 1966, alleging the discriminatory discharge
of Della Galloway, and "other acts and conduct" viola-
tive of Section 8(a)(1). An amended charge, filed
December 30, 1966, repeated the foregoing allegations
and added an allegation of new discrimination against
Grass for failure to pay her the rate of pay to which she
was allegedly entitled. A complaint issued in Case 3058
on January 16, 1967, alleging the discriminations against
Galloway and Grass as contained in the last charge, and
further alleging that on or about September 3 and 17,
1966, the Respondent granted wage increases to its em-
1105
ployees "to discourage their membership in and/or choice
of the Union [the Charging Party] as their bargaining
representative." An amendment to the complaint, dated
February 8, 1967, added allegations that Respondent, on
January 23, 1967, further violated Section 8(a)(1) by an
unlawful interrogation and an unlawful threat.
Case 3058 was originally set for hearing on February
20, 1967, but postponements, the last of which was dated
February 20, put the hearing over to March 13.
Meanwhile, on February 23, 1967, the Regional Director
wrote Respondent, advising that in the Director's opinion
the provisions of the settlement agreement in Case 2952
"have not been carried out or complied with," so that the
Director was withdrawing approval of the agreement. On
February 28 a complaint issued in Case 2952, alleging
interference, restraint, and coercion, and the discharge on
September 2, 1966, of James W. Gable, shipping and
receiving supervisor, "because he refused to engage in
unfair labor practices." This case was also noticed for
hearing on March 13, 1967, and the two cases were con-
solidated on March 1. The answers, filed January 26,
1967, in Case 3058, and on March 10, 1967, in Case
2952, joined issue as to the alleged violations, and in the
latter case also pled compliance with the terms of the set-
tlement agreement.
The consolidated case was heard in Kansas City, Mis-
souri, on March 13 and 14, 1967. At the opening of the
hearing counsel for the Respondent objected to the con-
sideration of Case 2952 on the ground that the Company
was prejudiced in its defense of the allegations so be-
latedly raised. The Trial Examiner, noting that the Com-
pany had been afforded the usual period in which to
answer the complaint in that case, and that the propriety
of setting aside the settlement could not be determined in
advance of the hearing, denied the motion to dismiss Case
2952, but advised Respondent that he would entertain a
motion for a continuance at the end of General Counsel's
case, if Respondent felt so advised. No such motion was
filed. At the conclusion of General Counsel's case,
Respondent renewed its motion to dismiss Case 2952 in
toto. This motion was denied, the Trial Examiner being
of the view that General Counsel had established a prima
facie case of violation of the settlement agreement. How-
ever, upon motion of Respondent and consent of General
Counsel, certain paragraphs of the complaint in Case
2952, alleging specific violations of Section 8(a)(1) were
dismissed for failure of proof. In addition, and over the
objection of General Counsel, the Trial Examiner
dismissed the allegation of violation in the discharge of
Gable. The following decision deals with all the substan-
tive allegations (including that pertaining to Gable), ex-
cepting those dismissed by agreement of the parties.
Upon the entire record in the case, and after due con-
sideration of the briefs filed by the Respondent and by
General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
Respondent, herein called the Company, a Missouri
corporation engaged in Kansas City in the manufacture
of crystal holders, annually sells products valued in ex-
cess of $50,000 to customers located outside the State,
and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Charging Party, herein
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Start of Union Activity and the Discharge of
Mary Grass
Late in May 1966, a number of the Company's em-
ployees became interested in being represented by the
Union. They circulated a sheet of paper to be signed by
the employees favoring union representation; the list bore
13 signatures, the first 3 being those of Mary Grass, Betty
Ennis, and Della Galloway. Grass had the list in her pos-
session on June 14, the day she was discharged. Em-
ployee Sharon Lascon, who signed the list, testified that
Lucy Jenkins, production manager and a supervisor
within the meaning of the Act, told her not to "worry
about it, that they knew within five minutes after
[Lascon] signed it, or for that matter after anyone had
signed it, and that nobody was going to be dismissed over
it o.- anything like that, that there wouldn't be any con-
troversy over it at all." Jenkins also told employee Della
Galloway that "we all know you are working for the
Union.",
On the afternoon of June 14 Jenkins went to Grass and
said, "Mary, you are being terminated." When Grass said
that she knew why, Jenkins responded, "No, it is not on
account of the Union." Grass went to the office of Plant
Manager Thomas Guthrie to pick up her vacation check.
Grass' testimony continues (Guthrie did not testify):
. Tom told me to go home and get myself
straightened out and come back after vacation and he
would talk to me about going back to work, but I
would have to start as a new girl and I said all right
and he said, "Oh, Mary, do you have the union list?"
I said, "Yes." He said, "Will you give it to me?" I
said, "I won't give it to you or anybody." He said, "I
will make it right," and I said, "I am not going to sell
out any girl."
Grass also testified without contradiction that on the
same day Lucy Jenkins had asked her if she had the list,
and Grass had replied that she had it and was not giving
it to Jenkins.
B. The Defections from the Union
Employee Sharon Lascon testified that after she signed
the list of those interested in a union she became con-
cerned over threats she had heard that those who "failed
to carry through and vote for" the Union would lose their
jobs, apparently as the result of union pressure. On July
22, she went to see Company President Jack Kay, who
assured her that no one would lose her job over this, and
that the employees were free to vote as they wished. Kay
took the opportunity to ask Lascon what wages the
Union was promising, and indicated that he would try to
raise wages as the Company grew. Kay also asked her to
write on a sheet of paper the names she had seen on the
prounion list, and to sign and date her paper. When
Lascon complied, Kay took the list, tore it up, and
deposited it in the wastebasket without looking at it,
telling Lascon that "this is what he thought of it, that
nobody was in danger of losing their jobs for it, if we
wanted to vote for the union we were free to do that." At
this time Kay suggested that he would prepare a form
letter, "and anybody that wanted their name removed
from the list could sign it and it would be sent to the union
officials." The next day, Supervisor Jenkins brought
Lascon such a letter, which she signed in triplicate, copies
going to the Company and the Board's Regional Office.
Employee Betty Ennis, who was the second to sign the
prounion list, testified that she heard from nonsuperviso-
ry employees that Kay would fire employees who had
signed the paper . Ennis told Sharon Lascon that she (En-
nis) regretted having signed the petition and wanted
nothing more to do with Union. After hearing Lascon's
story, detailed above, Ennis told Leadlady Juanita Davis
to tell Supervisor Jenkins that Ennis wanted her name off
the list. Jenkins brought Ennis a letter identical to that
signed by Lascon. Ennis signed it in triplicate, returned it
to Jenkins, and the letter was then mailed (presumably by
the Company; at least, not by Ennis) to the Union. Kay
during June or July also called other employees into his
office in groups, and told them, among other things, that
the Company "could not afford a union."
C. The Consent-Election Agreement, the Wage In-
creases, and the Reinstatement of Grass
On August 5 the Union wrote the Company claiming
majority status, asking for recognition and bargaining and
stating that "in the interim it is expected and requested
that all matters remain unchanged unless a mutual un-
derstanding has been reached with the Union." On Au-
gust 8, the Union filed a petition for certification and on
August 29 the parties agreed to an election to be held
September 9. On August 11, the Company prepared a
notice advising its employees of substantial wage in-
creases (approximately 20 cents per hour or 15 percent)
to be effective September 12, but this notice was not
posted until September 12. Also on August 1 1 Company
President Kay sent a memorandum to Plant Manager
Guthrie, enclosing the new wage scale . In the memoran-
dum Kay noted that "according to the letter we received
from the Union," the new scale could not go into effect
"until after the election which we apparently are going to
have," and that the new rates "will go into effect only if
we win the election." The letter concerning the new wage
rates and the memorandum both fell into the hands of the
employees (by what means the record does not reveal) on
the day of the election, which the Union lost 61 to 22.
The election was set aside by the Regional Director on
November 4, in a report in which he found merit in the
Union's objections concerning the granting of wage in-
creases to specific individuals during the week before the
election.
The evidence on which the Regional Director relied
was introduced at the hearing before me in support of the
allegation in the complaint in Case 3058 that the Com-
pany on or about September 3 granted wage increases to
employees "to discourage their membership in, and/or
choice of the Union as their collective bargaining
representative." Also introduced was certain information
which supplemented the data relied on by the Regional
Director; i.e., the Director had wage data covering 37
' Some weeks later Plant Manager Guthrie asked employee Patsy Wil-
son, who had not signed the list, why she was "for the union," adding
"everybody knew [she] was pushing the Union because they would be a
fool not to "
KAY ELECTRONICS, INC. 1107
employees and the supplementary data applied to 35 ad-
ditional employees . The records establish that on the
payday preceding the election the Company granted 8-
cent wage increases to 13 employees , and on the last 3
paydays before the election the Company had given 4-
cent increases to 13 more employees. Of the employees
receiving 8-cent increases , nine had been employed for 4
weeks or less, and of those receiving 4-cent increases
nine had been employed 2 months or less. The pattern of
wage increases prior to this period discloses that the usual
increase was 4 cents an hour , that from 10 weeks to 4
months elapsed between increases , and that the Company
never before gave a comparable wave of increases in so
brief a period.
As noted above, a settlement agreement executed Au-
gust 29 provided for the rehiring of Grass. It expressly
recited that "Her pay rate would be the same as when she
was terminated." Grass, however, was not put back to
work until September 13. By this date the pay raises pro-
vided on the Company's new schedule had gone into ef-
fect, and employees hired at the time of Grass' original
employment received an increase. Grass , however, was
paid only the $1.72 rate she had received before her June
14 discharge , and was treated as a new employee for pur-
poses of vacation and profit sharing Shortly before the
hearing, and after the Regional Director set aside the set-
tlement agreement , Company President Kay sent for
Grass, complimented her on her work, and told her that
as the settlement agreement was set aside he was now
able to raise her pay to the rate of $ 1.95.
D The Discharge of Gable
James Gable, supervisor of the shipping department,
was discharged on September 2, 1966, when he was told
by Production Manager Manson that Gable was not
doing his work correctly and that the Company did not
need him any more. Gable did not ask for or receive any
further particulars as to the reason for his discharge. In
mid-August Manson had told Gable to discharge all the
shipping department employees "they were not doing
their jobs right." Gable did not carry out this directive Of
the four or five employees in the department, Della Gal-
loway was the only one to wear a union button.
General Counsel alleged in the complaint in Case 2952
that Gable 's discharge violated Section 8(a)(1) as it was
caused by Gable 's refusal to engage in unfair labor prac-
tices. I would have grave doubt that such an allegation
finds adequate support in any charge , either in that case
or in Case 3058. To hold otherwise would extend the
"other acts and conduct " language of the charge to the
point where it all but obliterates the requirement that the
violations alleged in the complaint be "closely related to
the violations named in the charge ." N.L R B. v. Dinion
Coil Company, Inc., 201 F 2d 494, 491 (C.A. 2) See the
discussion of this matter in Champion Pneumatic
Machinery Co , 152 NLRB 300, 303-304. 1 note that all
the charges in Case 2952 had been filed and the case had
been tentatively closed by a settlement agreement before
Gable's discharge. The charge in Case 3058, filed after
Gable's discharge , makes no mention thereof.
In any event , the record is devoid of evidence that
Gable was discharged for a refusal to engage in unfair
labor practices. It may be that his failure to follow the
directive to discharge all the shipping department em-
ployees contributed to his discharge , but there is no
showing that that directive was related to any union ac-
tivity on the part of those employees , only one of whom
was shown to be a supporter of the Union . In short, as-
suming arguendo that the complaint as to Gable is
adequately supported by the charges, I recommended its
dismissal for lack of support in the evidence.
E. The Discharge of Della Galloway
Della Galloway, who had been employed by the Com-
pany since April 1964, was a union supporter . Hers was
the third signature on the prounion list, being preceded by
that of Mary Grass, who was discharged June 14, and by
that of Betty Ennis , who signed a withdrawal letter
furnished her by the Company. Galloway wore her union
button at work, and several weeks before she did so Su-
pervisor Jenkins told her, "We all know you are working
for the Union "
After being employed in the packing department for a
year , Galloway was transferred to shipping , where she
worked under James Gable, who testified that she was a
very satisfactory employee 2 Galloway's proficiency in
her work was also the subject of favorable comment by
Plant Manager Guthrie Galloway testified , referring to
Guthrie (who was not called as a witness):
He would praise me and tell me he was proud of me
and I was sitting at the table one day when girls were
sitting there and he came by and, in fact, he smiled at
me and put his hand on my shoulders . He said, "I am
real proud . You are doing the best- you are doing a
good job. You have done the best job of anybody we
have ever had," and at numerous times, he would
come up to me and tell me how pleased he was.
Gable, Galloway's supervisor, was discharged on Sep-
tember 2, and his duties were temporarily assumed by
Production Manager Manson As already noted, the elec-
tion which the Union lost was held Friday, September 9.
The next workday, Monday, September 12, Manson
sent for Galloway and told her that he was going to inter-
view everyone in the department because there had been
too many mistakes . Galloway's uncontradicted testimony
continues:
And then he said, "Don 't worry , you are not getting
terminated or anything like that. You do good work
and we certainly don't want anything like that," but
he said, "I feel you have some trouble with some
figuring and it might be that we might have to transfer
you out of the department if this continues . I wanted
to talk to you about it." He assured me that he was
talking to all of them , every one of them about it
On this occasion Manson had Galloway sign a "first
warning" notice the import of which was that if the errors
were not eliminated, "a transfer might be in order."
One week later Manson told Galloway she was being
transferred out. Her uncontradicted testimony continues.
I really was surprised ; I said, "What? Have I made
another mistake ?" and he said , "No, Della, you
haven't made a mistake, but we find the work too
heavy for you." I said, "Well, that is news to me; I
didn't know it was too heavy for me."
' Gable at one time blamed Galloway for certain discrepancies in inven-
tory but never reported this to his supervisors and eventually concluded
that she was not to blame
310-541 0 - 70 - 71
1108 DECISIONS OF NATIONAL
Q. What did he want you to do?
A. He wanted me to sign another paper and this
paper said the work was too heavy for me.
Q. What did you tell him about that?
A. Well, [ told him, I said, "Now, the first time
you asked me to sign a paper that I made mistakes
and if I made more mistakes you would transfer me
out and now you are telling me you are transferring
me out anyways and I didn't make another mistake."
Q He acknowledged you didn't make any more
mistakes?
A. Yes. And I, said I wouldn't sign another paper
that would look like I make another mistake. And he
said, "No, I will change it so it will read we are not
transferring you out because you made another
mistake, but because the work is too heavy for you."
Well, I said I really didn't want to sign the paper. I
said, "Why sign it, you are transferring me anyway."
Manson told Galloway that she was to report to the sol-
dering department under Hope Rivera. Galloway told
him that the Company knew her eyesight was not good
enough for soldering small items, but Manson assured her
that she would be given larger plastic parts to work on.
However, when Galloway reported the next morning,
Rivera (who had not been advised of the transfer) placed
her on soldering. When Supervisor Marvin Bunch ar-
rived, Galloway told him the story, and Bunch left to
discuss the matter with Plant Manager Thomas Guthrie.
Again quoting Galloway's uncontradicted testimony:
After a period of time he came back and said, "Tom
wants to see you in the office." So I went down and
talked to Tom and Tom had this paper.
Q What paper?
A. The paper Matt had the day before, and he
asked me to sign the paper saying the work was too
heavy for me. I told Tom I didn 't want to sign the
paper, but if I had to hold my job I would . He said,
"Well, we will forget about that."
I told him what had happened from the time Matt
[Manson] had transferred me out and that I couldn't
do the springs and so I just told him what had hap-
pened up until then and he said- he was real dis-
turbed, in fact, he was irritated. He said Matt had no
business telling me what I was suppose to do in
another department and he said he would talk to
Matt and he would find out about it and for me to go
on back upstairs and he would see what he could
work out.
So, after a period of time I came upstairs and he
called me over and he said, "Della, I have three dif-
ferent jobs you can have your choice on."
He said he had three different jobs and I could have
my choice. One of them he said I could work with
Margaret; however, Margaret hadn't been trans-
ferred into that department, she was still in the old
department He said that I could work with Margaret
and that would only be part-time work; I wouldn't
get to work full-time.
Q. That was in plastics?
A. Yes, that was one choice.
Another choice was I could go on the first floor and
work on a baked plastic press and that would be
LABOR RELATIONS BOARD
nights. The other one was that I could drill carbons.
I chose drilling carbons even though it is a very dirty
job. I wanted to work days and so that was, as far as
I was concerned, the only thing that I- it was my
choice.
Galloway accordingly reported to the supervisor over the
carbon drilling only to be told that the machines were not
yet set up for operation. He told Galloway to "try to stay
busy" by cleaning the machines, washing the floor, wip-
ing shelves, and similar tasks. After several days of that
she complained to a supervisor that she liked to be kept
busy, and as a result was sent to another department for
about a week, until it "ran out of parts." Finally after
working at different jobs, Galloway was told to report to
Juanita Davis the next morning, November 2, to drill car-
bons Galloway's uncontradicted account of this, her last
day of work, follows:
When I reported to Anita she said, "What are you
doing?" I said, "Well, [ am supposed to drill carbons;
that is what they told me I was supposed to do." She
said, "Why did Tom have me train another girl if you
were supposed to drill carbons9" I said, "I don't
know anything about it; all I know is I was sent up
here to drill carbons."
I drilled a few carbons and one of them Anita took
out and she said it didn't pass inspection. She said,
"Della, you are to take this carbon- and they have
a fixture that they put this carbon in- and you are to
put it in this fixture," and she showed me how. She
did it, she put it in this fixture and she clamped it in
and she said, "See how you do it? Be sure you push
down."
I drilled that carbon. Then the bell for lunch rang
and we went out to lunch. I went back and they had
the carbon there. Anita said, "This won't pass in-
spection." I said, "What is wrong?" She said, "I
don't know. Why don't we go back over here to the
freight and packing department."
I went back there and I worked then on freight and
packing the rest of the day. One time in the afternoon
Anita came back and she was looking at my work
and she said, "They look real nice, Della." About
half an hour later she came back and she said, "Del-
la, they want to see you in the office." That was
about five minutes before quitting time
Q. Who did you see there?
A. Tom's secretary.
Q. What did she say?
A. She was sitting there; Tom was busy. I as-
sumed Tom wanted to see me and he was busy. She
said to me, "You are Della Galloway?" I said,
"Yes." She said, "You have been terminated; I have
your pay here which is for three days." I was ter-
minated, but I didn't get my pay. I had to call later
and get all of that. They didn't have any of that for
me.
Q. Who else was in the office when she told you
this?
A. Tom Guthrie was sitting there and Jack Kay
and Jim Sharman was there, however, he walked
away, so [ turned to Tom and I said, "Tom, I would
like a logical explanation as to why I was ter-
minated." He just looked at me. Finally, he said,
"Della, your supervisor found you unsatisfactory."
Well, having just been sent up there I wasn't sure, I
had been transferred and I didn't know who my su-
pervisor was; I hadn't known for sometime. So I
KAY ELECTRONICS, INC. 1109
said, "Well, Tom, who is my supervisor?" He said,
"All of them."
The Company introduced evidence tending to establish
that certain "Polaris" work which Galloway had been
handling in the shipping department evaporated at the
time she was transferred out of that department, that the
remaining work required heavy lifting, and that Galloway
has not been replaced in the shipping department by a
full-time employee.
F. Concluding Findings
I find that after entering into the settlement agreement
which contained an undertaking by the Company not to
engage in subsequent violations of the employees' Sec-
tion 7 rights, the Company invaded those rights by grant-
ing wage increases in the period immediately preceding
the election "for the purpose of inducing employees to
vote against the Union ." N.L.R.B . v. Exchange Parts
Co., 375 U.S. 405, 409. In the light of this finding, I find
it unnecessary to pass on whether the announcement of
a new wage schedule after the election likewise violated
the Act . To be sure , these new rates were announced im-
mediately after the election , to which timely objections
were thereafter filed, and under the Board ' s Decision in
Ambox, Incorporated , 146 NLRB 1520 , set aside on this
ground 357 F. 2d 138, 141 (C.A. 5), the Board (unless it
decides to follow the court in A mbox) might hold the an-
nouncement unlawful. On the other hand the new rates
had been decided on a month before (the anniversary date
of the last previous increase ), and it might be argued that
the employer had simply delayed announcing his normal
annual wage review until after the election . Cf. Wausau
Steel Corporation , 160 NLRB 635, footnote 7. Had the
Union won the election , of course , the new rates could
not have gone into effect without giving the Union an
opportunity to bargain with respect thereto.
A further postsettlement violation inheres in the Com-
pany's failure to pay Grass at the appropriate rate for the
period following her reinstatement . The tenor of the set-
tlement agreement was that the charge in behalf of Grass
would be dropped if she were reinstated While this was
something less than a finding of discriminatory discharge,
it was something more than a dismissal of Grass' case.
See Poole Foundry and Machine Company v . N.L.R.B.,
192 F.2d 740, 742-743 (C.A. 4), cert . denied 342 U.S.
954; N.L.R.B. v. Stant Lithograph , Inc., 297 F 2d 782
(C.A.D.C. ), W. B Johnston Grain Company and John-
ston Seed Company v . N.L.R.B ., 365 F.2d 582, 586-587
(C.A. 10). The settlement agreement expressly required
that Grass be taken back at her existing rate of pay, but
this simply reflected that she was not to be treated as a
newly hired beginner , not that she should not receive in-
crements in pay which employees at her grade received
between the date of the settlement and the date Grass
returned to work.
Further, as more fully discussed below , I find a viola-
tion of the settlement agreement in the discharge of Della
Galloway.
In the light of these violations of the settlement agree-
ment , the Regional Director acted within his discretion in
setting it aside and issuing a complaint in Case 2952. The
Wallace Corporation v. N.L.R.B., 323 U.S. 248,
254-255.
1. The discharge of Grass
Turning to the allegations of that complaint , I find that
Grass was discharged on June 14 for union activity, and
not for poor work . The Company rests its defense on an
exhibit introduced by General Counsel which shows that
in the 32 days preceding Grass' discharge she had 41 "re-
jects" whereas during the same period 4 other employees
had 25, 31, 28, and 43, respectively.' Grass testified that
the large number of "rejects" were caused by faulty
materials, and that her relatively high proportion was
caused by the fact that she produced at a higher rate than
the other employees . The statistics appear to bear out her
claim, for they show that in the period in question, Grass
produced at a rate in excess of her quota while the two
other employees for whom full statistics are available
were under their quotas.4
Further supporting Grass' defense of her work record
is her uncontradicted testimony that Jenkins told her
some of the rejects were not her fault, and that Juanita
Davis, her leadlady, had told her to "do the best you can"
with certain materials which Davis said were faulty.5
Indeed , the Company itself apparently conceded in a
proceeding before the Missouri Division of Employment
Security that the materials furnished the employees were
faulty, and that agency sustained an award in Grass' favor
against the Company's contention that "many of the 41
rejects which the claimant had were due solely to faulty
workmanship of the complainant."
I also deem it significant that the Company issued no
warning to Grass about her allegedly poor work although
it had a system of warning notices with a special form for
indicating "defective and improper work ." Cf. E.
Anthony & Sons, Inc v. N.L.R.B., 163 F.2d 22, 26
(C.A.D.C.).
The record leaves no room for doubt that Grass was
one of the leaders of the Union, the Company was aware
of this, and the Company was opposed to the advent of
the Union. Unquestionably, Grass had a substantial
number of rejects in the period before she was fired, and
not all of them were the result of poor materials. But the
question in the case is whether the rejects were the cause,
or merely the pretext, for her discharge N.L.R.B. v. Solo
Cup Company, 237 F.2d 521, 525 (C.A. 8). The Com-
pany's knowledge of Grass' union activity, its opposition
to the Union, and its failure to warn Grass of her alleged
shortcomings might be said to give rise merely to a suspi-
3 The exhibit contains an error in addition, the total rejects for Grass
are as stated above
" Each employee 's quota is expressed in terms of 100 percent per day
As an average , in this period , Grass produced 102 percent of her quota,
Boyer about 98-1/2 percent of her quota , and Lascon about 91-1/2 per-
cent of hers Boyer had been hired in January 1965, Lascon in April 1966
Issue is joined as to whether Davis was a supervisor Uncontradicted
testimony establishes that the " lead ladies" assign work , rate the work,
and recommend promotions, raises , and discharges This evidence would
seem to establish that they are supervisors within the statutory definition
See Ohio Power Company v N L R B , 176 F 2d 385, 387 (C A 6), cert
denied 338 U S 899 The Company relies on their eligibility to vote in the
consent election , discussed below , but this is not conclusive Furrs, Inc
v N L R B, 381 F 2d 562 (C A 10), N L R B v Elliott-Williams Co ,
Inc, 345 F 2d 460,463 (C A 7) N L R B v Montgomery Ward & Co,
Inc , 242 F 2d 497, 501-502 (C A 2), cert denied 355 U S 829
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cion of antiunion motivation . But when to this is added
the fact that at the very time Guthrie gave Grass her final
check he asked her for the union list and offered to "make
it right" if she would give it to him, I find that the
evidence preponderates in favor of finding that Grass'
union activity played a significant part in her discharge.6
2. Violations of Section 8(a)(1)
As already noted , I would dismiss the complaint in-
sofar as it alleges a violation of Section 8(a)(1) in the
discharge of Gable. I find , however , that the Company
violated Section 8(a)(1) by Jenkins' statement to Lascon
that the Company knew within 5 minutes after anyone
signed the union list , and by Jenkins' statement to Gal-
loway (when the latter claimed she had not Talked to a
union man) that the Company knew she was working for
the Union . These episodes imply, if they do not actually
establish , company surveillance of union activity, and
even implied surveillance interferes with employee rights
under the Act . Hendrix Manufacturing Company, Inc. v.
N.L.R.B ., 321 F.2d 100, 104-105, footnote 7 (C.A. 5),
Filler Products , Inc. v. N.L.R. B., 376 F.2d 369, 374-375
(C.A. 4). Likewise violative of Section 8(a)(1) was
Guthrie's statement to Grass that he would "make it
right" if she would turn over the union list to him, this
was a promise of benefit designed to interfere with the
employees ' right not to reveal to management their sup-
port of a labor organization.
The complaint alleges that the Company violated Sec-
tion 8 (a)(1) by encouraging employees to withdraw from
the Union, and by offering to prepare and preparing let-
ters of withdrawal. The episodes specified in the com-
plaint concerned Kay's interview with Lascon on June 22
and Jenkins' conversation with Ennis on June 23. The
first episode I find violated the Act , for the suggestion
that the Company make up a form letter for the em-
ployees to sign if they wished to withdraw from the Union
originated with Kay. Ennis , on the other hand , initiated
her own withdrawal request , as did the employee in
North American Aviation, Inc., 163 NLRB 863, foot-
note 1. In the instant case the Company mailed Ennis'
letter for her but this seems an insubstantial difference
from North American as Ennis authorized the Company
to do so.
3. The discharge of Galloway
The Company 's position is that Galloway's work in the
shipping department was terminated because of the end
of the "Polaris " work , that her eyesight was not good
enough for much of the other work in the plant, and that
5 In reply to Grass ' written inquiry as to the reasons for her discharge,
the Company adverted not only to her "rejects" but also to her attendance
record (allegedly including eight occasions in 18 weeks on which she was
absent or tardy) and to her taking a complaint directly to the plant
manager rather than following lines of authority These grounds, rejected
by the State agency , were not pressed before me No attendance records
are in evidence , and the "authority " episode , for which Grass was
suspended a day and a half, had occurred 2 months before and appears to
be unrelated to her discharge Finally , the Company points out that under
Missouri law , it is liable both criminally and for punitive damages if it did
not set forth the true reasons for Grass ' discharge in its letter to her But
this somewhat "bootstrap" argument establishes no more than that an em-
ployer who will violate the Federal law by discharging an employee for
union activity may compound his violation by declining to furnish direct
it tried in vain to find a place for her. The record does in-
dicate that Galloway's services are not needed in her old
department , and she had not been replaced by a full-time
employee. Nevertheless , the record smacks of an effort
on the Company 's part to "get" Galloway . Her troubles
began , right after the election , with a warning and threat
of transfer if she continued to make mistakes in figuring.
Shortly after , she was transferred for a totally different
reason, inability to do the heavy work required , and the
Company attempted repeatedly , but unsuccessfully, to
obtain her signature on a statement setting forth that
ground . She was moved to areas where the Company
knew she was unable to do the work, to areas where there
was no work except janitorial tasks, and to areas where
the supervisors did not expect her or need her . Finally
she was discharged on her first day's attempt to drill car-
bons, rather short shrift for an employee who had been
employed for over 30 months and had received high
praise from the plant manager.
Galloway's case may be less clear than that of Grass.
But a consideration of all aspects of the Galloway matter
- including the fact that hers was the third name on the
union list,7 that she prominently displayed her union but-
ton, and that the Company was aware of her union activi-
ty and was opposed to the Union - leads me to conclude
that her union activity played a substantial role in the
Company's treatment of her, ending with her discharge.
This is not to say that union membership furnishes pro-
tection to an employee whom the employer would
discharge for cause . But direct evidence of a purpose to
violate the statute is rarely obtainable , and the circum-
stances in Galloway 's case warrant the finding of dis-
crimination . Kitty Clover, Inc. v. N. L.R.B., 208 F.2d
212, 214 (C.A. 8); N.L.R.B. v. Melrose Processing Co.,
351 F.2d 693, 698 (C.A. 8); N.L.R. B. v. International
Union of Operating Engineers , et al. [Sub Grade En-
gineering Co.], 216 F.2d 161, 164 (C.A. 8).
CONCLUSIONS OF LAW
1. By discharging Mary Grass and Della Galloway
because of their union activity the Company engaged in
unfair labor practices affecting commerce within the
meaning of Sections 8 (a)(3) and ( 1) and 2(6) and (7) of the
Act.
2. By granting wage increases for the purpose of in-
ducing employees to vote against the Union , by telling
employees it knew who had signed prounion lists and who
was supporting the Union , by suggesting that employees
send letters of withdrawal from the Union , by offering to
prepare and preparing such letters without being
requested to do so by employees , and by promising
evidence of that fact Counsel suggested that the Missouri statute is
unique , to which a fair answer may be that notwithstanding that statute,
Missouri employers have not shown themselves to be equally unique, and
are apparently as prone as those in other States to counter union activity
by discharging the leaders thereof
] The failure to discharge others on that list sheds little light on the
legality of Galloway' s discharge Nachman Corp v N L R B , 337 F 2d
,121, 424 (C A 7) N L R B v Challenge-Cook Brothers of Ohio, Inc ,
374 F 2d 147. 151-152 (C A 6), NLRB v W C Nabors, 196 F 2d
272, 276 (C A 5), cert denied 344 U S 865 Similarly the fact that a
number of other employees (unidentified as to name or length of employ-
ment) were discharged in the last half of 1966 sheds little light on whether
Galloway was discharged for cause
KAY ELECTRONICS, INC. 1111
benefits to employees who would furnish a list of union
supporters , the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company cease and desist
from violating Section 8(a)(1) and (3) of the Act, that it
reinstate Galloway with backpay, and that it make Grass
whole for wages lost since the date of her discharge, in-
cluding losses sustained since her reinstatement at a rate
less than she would have received had her tenure been
uninterrupted. The order will contain the conventional
notice-posting, recordkeeping, and "Armed Forces"
provisions, but in view of Galloway's impaired eyesight
the latter will be omitted from the notice which I shall
recommend; see B.V.D. Company, Inc, 157 NLRB 978,
footnote 6. Backpay due Galloway and Grass shall be
computed in accordance with the formulas set forth in F
W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 N LRB 716. '
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, I therefore
recommend, pursuant to Section 10(c) of the Act, is-
suance of the following:
ORDER
Respondent , Kay Electronics, Inc., its officers , agents,
successors , and assigns, shall
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee because of membership or activity in Dis-
trict Lodge 71, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization.
(b) Granting wage increases for the purpose of induc-
ing employees to vote against a labor organization.
(c) Telling employees that it knows who has signed
prounion lists or is supporting the Union.
(d) Suggesting that employees send letters of
withdrawal to a labor organization , or making unsolicited
offers to prepare or unsolicitedly preparing such letters.
(e) Promising benefits to employees if they would
furnish a list of union supporters to the Company.
(f) In any other manner interfering with, restraining, or
coercing any employee in the exercise of his right to join
or assist the above-named or any other labor organiza-
tion.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to reinstate Della Galloway to her former or
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her
and Mary Grass whole in the manner described in the
portion of the Trial Examiner's Decision entitled "The
Remedy" for any loss of earnings suffered by reason of
the discrimination against them.
(b) Notify Della Galloway if presently serving in the
Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) 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 to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant at Kansas City, Missouri, copies
of the attached notice marked "Appendix."" [Board's
Appendix substituted for Trial Examiner's Appendix.]
Copies of such notice, to be furnished by the Regional
Director for Region 17, shall be duly signed by an
authorized representative of the Respondent, and shall be
posted immediately upon receipt thereof, and be main-
tained by it 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith. 9
" 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 "
I In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "