Latex Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1962

136 N.L.R.B. 346 (N.L.R.B. 1962)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language. A more reasonable construction would require than an unlawful
object be so demonstrated and connected with demands made by the Union
during picketing as to provide an acceptable basis for the conclusion that such
activities were, in fact, designed to accomplish the proscribed purpose. This
court can find no evidence of demands , unlawful or otherwise , which can be
fairly identified with the picketing which gives rise to this action . A finding
that "reasonable cause" for belief that such purpose is present must therefor
be a conclusion predicated upon conjecture , speculation and distrust of that
quality of honesty which should be presumed to exist in union organizations to
the same extent that it is presumed to exist in the individuals who compose it.
This court can reach no such conclusion.
Concluding , 10 I find no evidence that the picketing of the Respondent Union herein
was in violation of Section 8(b) (7) (B ) of the Act.
Upon the basis of the above findings of fact and upon the stipulated record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
2. Oakland G. R. Kinney is an employer within the meaning of Section 2(2) of
the Act.
3. Respondent has not engaged in any unfair labor practices within the meaning
of Section 8(b) (7) (B ) of the Act.
RECOMMENDATIONS
It is hereby recommended that the complaint herein be dismissed in its entirety.
la Although the constitutional issue has not been raised before me I believe that an
effort to ban peaceful , truthful , informational picketing , even within the 12-month period
following an election , would be in direct conflict with so much of Thornhill v Alabama,
310 U S. 88 , as has survived the ravishment of subsequent decisions ( See, however,
Osboney v Empire Storage & Ice Co , 336 U.S. 490, International Brotherhood of Teamsters,
etc., Local 309 v. Hanke, 339 U S . 470; Local Union No 10 , United Association of Journey-
men Plumbers , etc v . Graham, 345 U.S. 192 ; International Brotherhood of Teamsters,
at al. v. Vogt, Inc., 354 U.S 284.)
Latex Industries , Incorporated and Mayme Hess . Case No.
8-CA-2484-2. March 19, 196
DECISION AND ORDER
On December 29, 1961, Trial Examiner William J. Brown issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had discharged Mayme Hess in violation of Section
8(a) (1) and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He found further that the Respondent did not violate
Section 8 (a) (3) in such discharge. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
136 NLRB No. 35.
LATEX INDUSTRIES, INCORPORATED 347
ings are hereby affirmed. The Board has considered the Intermediate
Report, the Respondent's exceptions and brief, and the entire record
in this case, and finds merit in the Respondent's exceptions. Accord-
ingly, the Board adopts the findings of the Trial Examiner only to
the extent that they are consistent with the decision herein.'
The only allegation in the complaint pertains to the discharge of
Mayme Hess. The Trial Examiner found no violation of Section
8 (a) (3) on the ground that the evidence did not establish knowledge
by the Respondent that Hess had engaged in activities on behalf of
the Union, with which we agree. We do not agree, however, with his
finding that the discharge was violative of Section 8(a) (1) for the
reasons set forth below.
Following the issuance, in February 1961, of an Intermediate Re-
port in an earlier proceeding finding that the Respondent had violated
Section 8 (a) (1) of the Act by its discharge of Hess and certain other
employees because of their concerted activity in the presentation of
grievances,2 the Respondent reinstated Hess on or about April 5,
1961. She was discharged again a few months later. The Respondent
maintains that the second discharge of Hess was because of her poor
work performance. While the Trial Examiner found that there were
serious deficiencies in her work, he concluded that the real cause of
her second discharge was the concerted activity in which she partici-
pated prior to her first discharge.
Hess had been reinstated in April 1961 to her former position as
catheter dipper. Prior to her first discharge, Hess was, as conceded
by the Respondent, a highly competent dipper. Following her rein-
statement, however, there were many flaws in her work, which the
Trial Examiner attributed to her nervousness after being discharged
and reinstated. In any event, on May 9, about a month after her
reinstatement, she was suspended for 3 days because of the amount of
scrap she was producing. Another dipper, Gloria Laing, who was not
one of the original dischargees, was suspended for the same offense at
this time. These suspensions, which are not alleged to be discrimina-
tory, were in accord with the Respondent's rules. If an employee's
production shows scrap in excess of 10 percent at the first inspection,
and in excess of 5 percent at the final inspection, the rules provide that
this is excessive scrap, which is listed as one of several "major offenses"
subjecting the employee to a 3-day suspension; two major offenses are
considered an "intolerable offense" subjecting the employee to
dismissal.
IIn the absence of exceptions thereto, the Trial Examiner's recommendation that the
complaint be dismissed insofar as it alleged that the discharge of Mayme Hess was violative
of Section 8(a) (3) is adopted pro forma
2 Latex Industries, Incorporated, 132 NLRB 1. The Board in July 1961 affirmed the find-
ings in that case that Hess and the others were discharged in violation of the Act.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the 3-day suspension, the Respondent became aware not only
that Hess was still producing scrap, but also that her scrap included
some catheters with a defect described as a "split funnel." In a cath-
eter, such a defect is extremely dangerous as it may cause death if used.
The testimony of Grable, the Respondent's production manager, of
Ellis, who was in charge of personnel and quality control, and of
Gloria Laing and one other employee who worked as a catheter dipper,
indicates that if the Respondent's printed procedures posted near the
dippers' work stations are followed, no split funnels will be produced.
The Respondent maintains that Hess was warned on occasions prior
to her second discharge about her production of split funnels. Hess
denied that she was warned about this matter, but admitted that she
did produce some split funnels, and that Grable had talked to her about
split funnels on June 5, 1961.
Grable testified that on June 8, the final inspector pointed out to him
the unusual situation that she was getting catheters with split funnels
which had been passed by the first inspector, Ellen Buehler. An ex-
amination at Buehler's station turned up trays containing more of
these defective catheters which Hess had produced and Buehler had
passed.' Later the same day, Grable and Ellis called Hess into the
office, told her she was being discharged for producing too much scrap,
showed her a number of these defective catheters, and remarked that
they should not have been passed. The discharge slip given to Hess
stated as the reason for discharge "This is your second violation of a
Major offense (Rule No. 3) which constitutes [sic] an intolerable
offense & dismissal, as of June 8, 1961." According to the Respondent's
rules, the offense charged was "Failure to perform work as directed."
As Hess had been suspended in May for producing excessive scrap,
this constituted, as charged, her second major offense, which, under
the rules, subjected her to dismissal.
The Trial Examiner considered it significant that Grable and Ellis
apparently did not expressly tell Hess that she was being discharged
for split funnels, but referred instead to her high scrap production.
A catheter with a split funnel, however, is scrap, and is treated as
such in the Respondent's records. The Respondent maintains further-
more, that split funnel catheters result only when there is a failure
to follow the prescribed procedures, and that the fact that Hess was
producing a number of catheters with this defect showed that she
was failing to perform her work as directed, as indicated on her dis-
charge slip. Moreover, at the time of Hess' discharge, Grable and
Ellis confronted her with some split funnel catheters, which she had,
in fact, produced and which had been passed by Buehler, and remarked
9 Buehler, one of the original dischargees who had been reinstated, was discharged again
on June 9, 1961, the day after Hess was discharged, for passing defective catheters and
falsifying production records A charge filed regarding this discharge (Case No. 8-CA-
2484-1) was dismissed by the General Counsel.
LATEX INDUSTRIES, INCORPORATED 349
that they should not have been passed. We are satisfied, on all the
evidence, that, contrary to the Trial Examiner, there was no real dis-
crepancy between the reason for discharge given to Hess verbally and
the reason indicated on her discharge slip.
The Trial Examiner found that the Respondent did not know at
the time of Hess' discharge that the split-funnel catheters discovered
that day, with which Grable and Ellis had confronted her, were
"traceable to Hess." The record, however, indicates that there were
at least two methods to identify the dipper responsible for a par-
ticular catheter. The only method discussed by the Trial Examiner
involved the markings stamped on each catheter which, when checked
against the daily production records, identify the dipper. In addition,
however, the catheters, while still on the trays going through inspec-
tion and testing procedures, are accompanied by work sheets which
contain the name of the dipper. At least some of the catheters in the
possession of Grable and Ellis at the time Hess was discharged had
been obtained by them from these trays.
The Trial Examiner found that Hess had produced a great many
split funnel catheters, and that this was "a good reason for discharge,"
but concluded that the Respondent "was unaware of it and did not rely
on it." We are satisfied from the evidence, outlined above, that the
Respondent was aware that Hess had produced a number of split
funnels and did rely on it in discharging her. In accord with his
finding that Hess had been discriminatorily discharged a second time
because of her concerted activity prior to the first discharge, the Trial
Examiner recommended that the Board order the Respondent to rein-
state her to a substantially equivalent position. He recommended
further, however, that, in view of her "substantial" production of
defective catheters, "sound policy precludes compulsory reinstate-
ment" to her job as a dipper because Hess' "admitted nervousness
under Respondent's hostility can only mean a serious threat not only
to Respondent's production but to public safety." We agree that her
production of split funnels is a serious matter, but we find no evidence
that this faulty production was caused either by her nervousness or
by the Respondent's hostility.
Under all the circumstances of this case, therefore, including par-
ticularly the Respondent's awareness of Hess' scrap production record
since her reinstatement; its discovery that she was producing, in ad-
dition to substantial amounts of other types of scrap, catheters with
split funnels; the serious nature of this defect; the Respondent's con-
viction that production of split funnels could result only from failure
to follow established procedures; the absence of knowledge by the
Respondent of Hess' union organizing activity; the fact that Hess was
discharged for her second major offense, and that the discharge, after
two major offenses, was consistent with the Respondent's rules; and
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the remoteness from the second discharge of Hess' concerted activity
prior to the first discharge; we are not convinced that the General
Counsel has established by a preponderance of the evidence that Hess
was discriminatorily discharged on June 8, 1961. We shall therefore
dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter called the Act, was heard before William J. Brown, the duly
designated Trial Examiner, at Medina, Ohio, on September 11 and 12, 1961. The
complaint alleges that on or about June 8, 1961, Respondent discharged and there-
after refused to reinstate the Charging Party, Mayme Hess, because she had, or
Respondent believed that she had, joined or assisted the International Association
of Machinists, hereinafter called the Union, and/or because she engaged in concerted
activities for the purpose of collective bargaining and other mutual aid and pro-
tection. This is allegedly an unfair labor practice within the meaning of Section
8(a)(3) and (1) of the Act. Respondent's answer admits the jurisdictional allega-
tions of the complaint and the discharge and refusal to reinstate Mayme Hess; it
denies the commission of the unfair labor practices alleged. At the hearing all
parties were afforded full opportunity to present evidence and argument on the
issues. Subsequent to the hearing briefs were received from the General Counsel
and the Respondent which have been fully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
It appears from the pleadings and I find that Respondent is an Ohio corporation
maintaining its principal offices and place of business at Chippewa Lake, Ohio, where
it is engaged in the manufacture, sale, and distribution of surgical catheters and
related products. In the course and conduct of its business operations at Chippewa
Lake, Respondent annually sells and ships finished products valued in excess of
$50,000 in interstate commerce to and through States of the United States other than
Ohio. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and assertion of the Board's jurisdiction is warranted.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer of Respondent admits that the Union is a
labor organization within the meaning of Section 2 ( 5) of the Act. At the outset of
the hearing Respondent moved to amend its answer in this regard on the ground
that only by amendment could Respondent raise the question as to whether or not
the Union was actively functioning as a labor organization among employees of
Respondent . Respondent's motion was denied .' I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's operations and summary of events
Respondent's principal product is a surgical catheter. The process of manu-
facturing the catheter entails the use of employees in processes known as dipping,
trimming, and at least two stages of inspection. Mayme Hess, the Charging Party,
was a dipper and in the period immediately prior to her discharge on June 8, worked
in the dipping room together with Gloria Laing. The dipping process appears to
be one calling for considerable speed and dexterity in handling the product. Strict
adherence to Respondent's standard operating procedure posted at or near the
1 Respondent was not precluded from presenting evidence tending to indicate that it
had no knowledge of union organizing among its employees.
LATEX INDUSTRIES, INCORPORATED 351
dippers' work stations is necessary for satisfactory production. The dippers each
produce more than 400 catheters per day. Scrap in excess of 10 percent at the first
inspection and in excess of 5 percent at the final inspection is considered excessive
scrap. Initially hired in 1957, Mayme Hess became one of the more experienced
dippers and in fact was used to train others in the process. Nelson Ellis, Respond-
ent's personnel and quality control manager, conceded that she had the capacity
for becoming one of the most valuable dippers of Respondent.
In October 1960, Mayme Hess together with a number of other employees partici-
pated in a group presentation of grievances at which Hess was one of the more active
participants. She was discharged on October 28, 1960. Thereafter the Board
found that this discharge was an unfair labor practice and Respondent was ordered
to offer Mayme Hess and others immediate and full reinstatement with backpay.
Latex Industries, Incorporated, 132 NLRB 1. Respondent is contesting the Board's
decision in the United States Court of Appeals. Mayne Hess was offered reinstate-
ment on or about March 5, 1961, and was reinstated to her position as dipper 2 on or
about April 5, 1961. Shortly after she returned to work, on or about May 7 or 8,
she commenced organizational activities among employees of Respondent on behalf
of the Union and solicited all but one of the production workers.
The General Counsel contends that Respondent became aware of Mayme Hess'
organizational activities by virtue of overhearing her solicitations in the restroom
over Respondent's plant communications system and discharged her on June 8
because of those activities. Respondent on the other hand asserts that it had no
knowledge of any activities on behalf of the Union on the part of Mayme Hess and
that Mayme Hess was in fact discharged for producing a large quantity of seriously
defective catheters.
B. The alleged violation of Section 8(a) (3)
The General Counsel introduced evidence which is uncontradicted and plainly
establishes that in May 1961 Mayme Hess engaged in organizational activities on
behalf of the Union. These were carried on initially in and from her home and
occasionally thereafter on Respondent's premises. The only evidence tending to
indicate that Respondent was aware of these activities on behalf of the Union is
the testimony of Mayme Hess, completely uncorroborated, that on the occasion
of her rehire interview on March 5 (when she was, incidentally, accompanied by
employees Ellen Buehler and Ruth Rozell, the latter two also being interviewed
for rehire as an aftermath of the earlier proceedings) she noticed a "piped music"
system installed throughout the whole building. She testified that on the day in
question while in Ellis' office she heard, over the communication system, voices from
the dipping room and the sound of the timeclocks when they went off. If credited,
it could be inferred from this testimony that Respondent's officials overheard her
subsequent union solicitations.
Respondent, however, introduced evidence tending to show that the communica-
tion system was strictly a one-way system with a single microphone in Ellis' office,
and further, that on the day in question, March 5, the dipping room was shut down
and no operations were being conducted therein. Glen Grable, Respondent's pro-
duction manager, and Ellis both testified that the communication system is strictly
a one-way system with the single microphone in Grable's office.
Additionally Rex T. Brown, a salesman and installation man for Brown Com-
munications Company, testified that he installed the system in question and that it
was strictly a one-way system. There does appear to be some doubt about the date
of installation of the system but this appears due to some inexactness in Brown's
memory. I find that in describing the buzzing of the catheters and the sound of
employees' voices as having been heard over the communication system while
she was seated in Grable's office on March 5, Mayme Hess was either deceived, in
some unaccountable way, or mistaken in this particular .3 In any event the evidence
clearly does not indicate by a preponderance that Respondent had any knowledge
that Mayme Hess was engaged in concerted activities on behalf of the Union.
In view of the lack of preponderating evidence establishing knowledge on the part
of Respondent in this area I shall recommend dismissal of the complaint insofar as
it alleges an unfair labor practice under Section 8(a) (3).
2 Mayme Hess had been promoted to the job of group leader in November 1959 and re-
ceived a 10-cent per hour premium over the other dippers When reemployed in April
1961 she was not paid the premium but it is not contended before me that any significance
attaches to this
3 As noted below I find \layme Hess credible in other material matters
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The violation of Section 8(a) (1)
While it is the primary position of the General Counsel that Respondent had
knowledge of Mayme Hess' activities on behalf of the Union and was motivated
by antiunion considerations in her discharge, the complaint asserts as second cause
of action that Respondent committed and unfair labor practice within the scope of
Section 8(a)(1) of the Act by discharging Mayme Hess for the reason that she
engaged in concerted activities for the purpose of collective bargaining and other
mutual aid and protection. I am convinced from a careful appraisal of the record
in its totality that the evidence clearly preponderates in favor of the conclusion
that Mayme Hess was discharged on June 8, 1961, because of the concerted activities
she had engaged in in October 1960 and that by her June 8, 1961, discharge,
Respondent again engaged in an act of interference, restraint, and coercion of the
rights of employees under the act.4
This conclusion is reached not without considerable difficulty in extricating the
truth from a number of bitterly contested false leads. The Respondent asserts that
Mayme Hess returned to work in April 1961 with the deliberate intention of getting
herself discharged and instituting a new unfair labor practice proceeding to be used
as a vehicle of coercing the Respondent to comply with the backpay provisions of
the earlier adjudication. The Respondent further charges that in this scheme Mayme
Hess was aided, if not encouraged, by representatives of the Regional Office and
that in this matter she acted in collusion with Ellen Buehler, the inspector who
inspected catheters made by Mayme Hess. Respondent's officials have testified that
they discharged Buehler on June 9 for falsifying records including records of the
work performed by Mayme Hess.5 Buehler, present in the courtroom throughout
the hearing, was not called to the stand.
Also in support of its position in this regard Respondent elicited the admission
from Mayme Hess on the stand that she came back to work with the idea of getting
fired It appears from her redirect examination by the General Counsel on this
point however, and I credit her in this regard, that she came back in good faith
and honestly applied herself to her tasks. She was at an early stage given to under-
stand by Ellis, however, that the Company took her back only because it had to and
she had in mind that Respondent's officials were so hostile to her that sooner or later
they would find some pretext for her discharge.
The key to the case is found, in my judgment, in the events occurring on the day
of her discharge Mayme Hess testified that on the afternoon of June 8 she was
called into the office of her immediate supervisor, Grable, Ellis being present, and
was told by Grable that she had high scrap for 4 days and he was going to dismiss
her. According to her testimony, it was only as a more or less incidental thing that
Ellis mentioned that he had some catheters present which obviously should not
have been passed. The Respondent's testimony is that in fact she was discharged
for the production of the defective catheters which Ellis had with him at that
discharge interview and that excess scrap had nothing to do with her discharge.
On the basis of my appraisal of the witnesses, I credit Mayme Hess where her
testimony conflicts with that of Grable and Ellis. Thus I credit her testimony that
on the occasion of the discharge interview, Grable spoke first and said that she had
high scrap for 4 days and he was going to dismiss her.6 Grable, although he testified
at length as to the procedures devised by Respondent and communicated to employ-
ees to prevent split funnels and to the fact that approximately 100 catheters defective
because of split funnels were passed by the first inspector, Buehler, and ultimately
traced back to Mayme Hess, completely failed to assert directly that he mentioned
the split funnel defects to Mayme Hess on the occasion of her discharge as the
reason for the discharge.
Furthermore, Ellis, although he testified very positively to predischarge discus-
sions with Grable about split funnels attributable to Hess' failure to follow pro-
cedure, also failed completely to testify that the split funnels were assigned to her
on June 8 as the reason for the discharge. I find as a fact that on the occasion of
' Since it is the discharge of June 8, 1961, complained of, the 6-month limitation of Sec-
tion 10(b) is no bar herein although the evidentiary material showing the true roa,on
for the action taken on June 8, 1961, antedates the G-month period Paramount Cap
Manufacturing Company, 119 NLRB 785
'Buehler was discharged on June 9, 1961, for passing split funnel catheters but I find
that Respondent did not know on June 8 that these were traceable to Hess.
'It was stipulated by the parties that Mayme Hess' general scrap record was substan-
tially better than that of Gloria Laing, the other dipper, who was not discharged Thus
I find that the reason given her was, as even Respondent concedes, not the true reason for
Respondent's action in discharging her.
LATEX INDUSTRIES, INCORPORATED 353
her discharge, although Ellis had a large number of defective catheters present with
him, neither he nor Grable assigned Hess' discharge to her having produced the
defective catheters. Rather it appears that at that time, all that was known about
the catheters was that they had been improperly passed through the first inspection but
that at that time they could not be attributed to Hess on the basis of records of
records of production.
Mayme Hess conceded that she did produce some split funnels. There is no
doubt, on the record herein, that a split funnel is a dangerous defect, potentially
fatal, in a catheter, and it appears that when, notwithstanding Respondent's inspec-
tion procedures, a catheter with a split funnel gets into the hands of a hospital, a
consequence can well be the cancellation of orders for further deliveries from
Respondent.? The procedure to be used and employed for the prevention of split
funnels is carefully prescribed. Mayme Hess testified that she followed procedures
and still had some split funnels. Geraldine McLennin's testimony that she also
occasionally produced split funnels in her work, is of no substantial significance since
the volume of her split funnels is not indicated Frances Hensel, who observed
Mayme Hess failing to follow established procedure in the course of her dipping,
conceded on cross-examination that her observations were limited to the time
before April 1961.
There is no doubt, however, that Mayne Hess produced some split funnels both
before and after April 1961 and that her extreme nervousness following her rein-
statement in April 1961 could well have caused her to produce them in a greater
number than she would otherwise do. I credit her testimony that she followed
procedures to the best of her ability and also her testimony that she was conscienti-
ously trying but nervous following her reinstatement
As indicated above, the crucial question is whether Respondent discharged her
because of poor workmanship or because of her participation in protected activities.
As noted above Grable testified that Mayme Hess was discharged for making num-
erous split funnels. He thought that her action in this regard was deliberate and
asserted that after it went on for a couple of days, Respondent found out that the
first inspector was passing them through inspection. Grable and Ellis inferred that this
was a deliberate action on the part of Mayme Hess and the first inspector, Ellen
Buehler, to cause trouble. According to Grable, they discovered the derelictions in
this regard on June 7 and 8 by which time some of the improperly manufactured
catheters had been going through the first inspection down through other inspections
into the shipping line for a period of weeks. He testified they found over a hundred
such catheters and that by virtue of identifying marks on them they could be and were
traced back to Mayme Hess as the producer. He identified a quantity of catheters,
produced in evidence at the hearing and numbering close to 200, as produced by
Mayme Hess during the first week of June.
Grable further testified that on June 8, Respondent' s final inspector, Cora Metz,
pointed out to him that they were having split funnels which was unusual at her
station; in fact Metz had not called his attention to split funnels before.
It was Grable's positive testimony that the catheters in evidence at the hearing
(which were the same ones, according to him, that Ellis had in his possession at the
time of the discharge interview of June 8 ) were produced during the first week of
June 1961. It plainly appears, however, that under the production and inspection
scheduling , the defective catheters allegedly produced the first week of June and
thereafter passed through first inspection by Ellen Buehler would not have come
to the attention of Grable or Ellis by June 8. This conclusion, drawn from the testi-
mony and the records, is confirmed by the following interchange:
Q. (By RECTOR.) How many split funnels would you say that you made the
last few days that you were employed by this Company?
A. (By HESS.) I wouldn't know.
Q. Why?
A. The first inspection sheet would show it and it hasn't 8 come through yet.
Q. We know that. [Emphasis supplied.]
Reference should be made to the "Employee Warning Notice" in evidence as Re-
spondent's Exhibit No. I and given to Mayme Hess at the time of her discharge The
notice refers to her violation as having been one of "defective work" and the "re-
marks" state : "This is your second violation of a major offense (Rule No. 3) which
constitutes an intolerable offense and dismissal as of June 8, 1961. It is signed by
It appears that one split funnel catheter traceable to Mayme Hess was discovered by
a Rutland (Vermont) hospital resulting in a complaint to Respondent's distributor This
complaint was dated August 9, 1961, after Mayme Hess' discharge
8 Obviously this should read "hadn't."
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grable and Ellis. Under Respondent 's rules and regulations , in evidence as Respond-
ent's Exhibit No. 5, offenses are grouped into minor, major, and intolerable. Two
violations of a major rule constitute an intolerable offense and the rules provide that
employees committing an intolerable offense are subject to dismissal . The reference
to rule No. 3 is to the major offense of "failure to perform work as directed ." While
there is a separate major offense listed as major offense No. 4 which is "making
excessive scrap" and rule No. 4 was not referred to in the warning notice of June 8,
I find that the reference to rule No. 3 rather than to rule No. 4 does not on the record
herein necessarily militate against my finding that in fact excessive scrap was referred
to by Grable as the reason for her discharge in their conversation on that day. The
reference to rule No. 3 was, I believe, entered on the notice because that was the
most compendious of all listed violations . If in fact on June 8 the Respondent was
aware of the large number of defective catheters allegedly attributable to Mayme and
intended to rely on them as a basis for discharge , it is inconceivable to me, particu-
larly in view of the forceful declarations of Grable and Ellis that split funnels are
virtually inexcusable , that Respondent would not have relied upon one of the listed
intolerable offenses.
Respondent 's brief has correctly analyzed the issue as one of the credibility of
Mayme Hess. It has attacked her credibility on a number of grounds. Thus
Respondent elicited her admission on cross-examination that she actually never
was a member of the JAM, this supposedly contrary to the statements in her
charge. But the charge embraces also activities on behalf of the IAM , which she did
unquestionably engage in . Respondent also seeks to make much of the fact that
although she could only state at the hearing at one stage of her cross-examination
that she believed the charge to be true, yet in fact she signed the statements under
the penalties of perjury . But a good-faith belief is all that is required for signing
of a charge.
Respondent also attempted to impugn her credibility by refuting her denial con-
cerning warnings received by her from officials of the Respondent which warnings
were recorded on official forms; this attempt loses significance when it is recognized,
as clearly appears from the evidence , that these written memorandums were in fact
never shown to nor served upon Mayme Hess.
With respect to the attack on her credibility based upon her admission at the
climax of cross-examination that she "came back to get fired ," it clearly appears
on the appraisal of her testimony in toto that she intended to acknowledge no more
than that at all times since her rehire she was under the apprehension that sooner
or later she would be discharged . Gloria Laing's testimony that Mayme Hess told
her that the Labor Board told her to come back and get fired and not to quit does
not establish that Mayme Hess came back with the deliberate purpose of getting
fired but only with the deliberate purpose of not quitting . In any event I do not
find Gloria Laing a credible witness where her testimony conflicts with Mayme
Hess.
I agree with Respondent that the case turns on Mayme Hess ' credibility. Her
demeanor on the stand impressed me as that of a person telling the truth despite her
nervosuness . There is no compelling reason for my deviating from my inclination
based solely on her demeanor to credit her in all instances except that relative to
the communication system . There I do not believe that she lied, but I must find that
the preponderance of evidence is not in favor of the General Counsel 's position.
In short , the case is one where Respondent apparently had a good reason for
discharge but was unaware of it and did not rely on it . The reason for the discharge
can only be found in the fact that she previously was a leader of concerted activity
and Respondent never forgot it.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent found to constitute unfair labor practices as set
forth in section III, above , occurring in connection with the operations of the
Respondent described in section I, above, have a close , intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
In view of the finding herein that Respondent has engaged in unfair labor practices
defined in Section 8(a)(1) of the Act, it will be recommended that Respondent
cease and desist therefrom and take such affirmative action as is necessary and
appropriate to effectuate the policies of the Act. In view of the finding herein that
the discharge of Mayme Hess on June 8, 1961 , constituted an unfair labor practice,
TEXAS GAS CORPORATION 355 ,
it will be ordered as a necessary and appropriate remedy that Respondent offer her
immediate and full reinstatement to a position substantially equivalent to her
former position, without prejudice to her rights , and make her whole for any loss of"
pay suffered as a result of her discharge on June 8, 1961, by payment to her of a.
sum of money equal to that which she would have earned from that date to the
date of Respondent 's offer of such position less net interim earnings to be com-
puted on a quarterly basis in the manner estabilshed by the Board in F. W. Wool-
worth Company, 90 NLRB 289. In view of the fact that Mayme Hess' production:
of defective catheters appears to have been substantial, I believe that sound policy
precludes compulsory reinstatement in her former position of dipper. Her admitted
nervousness under Respondent 's hostility can only mean a serious threat not only to
Respondent's production but to public safety.
Upon the basis of the foregoing findings of fact, and upon .the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Mayme Hess for the reason that she engaged in concerted
activities looking to the mutual aid and protection of herself and of fellow em-
ployees and to collective bargaining, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices under Section 8(a)(3)
of the Act as alleged herein.
[Recommendations omitted from publication.]
Texas Gas Corporation and Oil, Chemical and Atomic Work-
ers International Union , Local 4-243. Case No. 23-CA-1240.
March 19, 1962
DECISION AND ORDER
On November 17, 1961, Trial Examiner Paul Bisgyer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Respondent filed exceptions to the
Intermediate Report, together with a supporting brief. A limited
exception was filed by the Charging Party, together with a brief in
support of the Intermediate Report.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record 2 and
I The Charging Party's sole exception relates to one sentence of the Intermediate Report,
which the Charging Party contends varies from the evidence in the record. We find no
material variance and deny the Charging Party's exception.
2 Respondent's request for oral argument is denied, as the record and briefs fully set
forth the Issues and positions of the parties.
136 NLRB No. 38.
641795-63-vol. 136-24