Leece-Neville Co.

National Labor Relations Board - Board Decisions

Jun 14, 1966

159 N.L.R.B. 293 (N.L.R.B. 1966)

LEECE -NEVILLE COMPANY 293
The Petitioner's objections 2, 3, 4; and 5 relate to statements by
supervisors and literature distributed by the Employer during the
election campaign. The Regional Director, in overruling these objec-
tions, was of the opinion that with respect to objection 2 the Peti-
tioner had adequately presented its policy with respect to strike bene-
fits, in answer to alleged statements of supervisors, sufficiently for
the employees to evaluate them. We agree. With respect to objec-
tions 3, 4, and 5, the Regional Director was of the opinion that the
literature could clearly be evaluated by the employees as partisan
electioneering. We do not agree.
Our careful review of the literature persuades us that its central
theme was the inevitability* of a strike if the Union won the election
and collective bargaining were to ensue which would result in certain
economic loss to the employees. We are of the opinion that the
aforementioned threats coupled with the literature we have described
impaired the freedom of the employees to makean unfettered
choice. Accordingly, we shall sustain the Hearing Officer's finding
and conclusion with respect to objection 1, and, further, we shall
sustain Petitioner's objections 3, 4, and 5.
In the circumstances, the Employer has engaged in conduct which
in our view interfered with the employees' free choice in the elec-
tion; therefore, we shall set aside the election and direct that a second
election be conducted.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
Leece-Neville Company and Communications Workers of Amer-
ica, AFL-CIO. Cases 10-CA-6233 and 6246. June 14, 1966
DECISION AND ORDER
On March 8, 1966, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision and the General
Counsel filed exceptions and a supporting brief.
159 NLRB No. 29.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of *Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to, a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner, as modified herein.2
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following as new paragraph 1(e) and reletter previous
paragraph 1(e) as 1(f) :
["(e) Promulgating, maintaining, enforcing, or applying any rule
or regulation prohibiting employees during nonworking time from
engaging in union solicitation on Respondent's property or from dis-
tributing union literature in nonworking areas of Respondent's
property."
[2. Add the following to the Appendix as the fifth paragraph:
[WE WILL NOT promulgate, maintain, enforce, or apply any rule
or regulation prohibiting employees during nonworking time
from engaging in union solicitation on company property or
from distributing union literature in nonworking areas of our
plant.]
i We agree with the Trial Examiner that employee Poole was discriminatorily dis-
charged by the Respondent for statements he made in support of the Union at a meeting
and not because he was " insubordinate" or attempted to take over the meeting as alleged
by the Respondent . We note that Poole was not denied permission to speak by Hyslop,
the plant manager, and that his remarks appeared directed more to Hyslop than the as-
sembled employees In view of such finding , we deem it unnecessary to consider the Trial
Examiner 's further conclusion that even if Poole's discharge occurred solely because he
"took over" the meeting without permission , his discharge was unlawful.
S Although the Trial Examiner found that paragraph 9 of Respondent's plant regula-
tions constituted an unlawful "no solicitation" rule , he inadvertently failed to provide an
appropriate remedy. We have , therefore , modified his Order accordingly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated complaint ' pursuant to Section 10(a) of the National Labor
Relations Act, as amended (herein called the Act ), heard by Trial Examiner
Joseph I . Nachman at Gainesville , Georgia, on December 20, alleges that Leece-
Neville Company (herein called Respondent or Company), violated Section
8(a)(1) and ( 3) of the Act, in that during the course of an organizational cam-
paign among its employees , it (1) made coercive statements to said employees;
(2) maintained an invalid rule prohibiting solicitation and distribution on its prop-
i Issued October 18, upon charges filed August 20 and 30 All dates mentioned herein
are 1965, unless otherwise stated.
LEECE -NEVILLE COMPANY 295
erty; and (3) suspended one and discharged another employee because of their
activities in support of Communications Workers of America, AFL-CIO (herein
called the Union). Respondent denied that it made coercive statements to its
employees, and contended that the suspension and the discharges were for cause.
All parties in interest appeared at the hearing by counsel, and were afforded full
opportunity to introduce relevent testimony, to examine and cross-examine wit-
nesses , to argue orally on the record, and to submit briefs. Oral argument was
waived. Briefs submitted by each of the parties, have been duly considered.
Upon the entire record in the case,2 including my observation of the demeanors
of the witnesses, I make the following:
FINDING OF FACT 3
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. The interference, restraint, and coercion
Respondent's office and main plant is at Cleveland, Ohio. At its Gainesville,
Georgia, plant, the only one involved in this proceeding, the Union began an
organizational campaign in the late spring or early summer of 1965. On or about
July 13, Roy Loehr, an admitted supervisor, called employee Ruby Strickland from
her work station to his desk, and asked Strickland whether she had been
invited to attend a union meeting that, day, and when Strickland replied in
the affirmative, asked, "Are you going?" Strickland replied that she was not.
Loehr then stated, "Please go for me. We want to find out just what it is that
the Union men are offering you people." Strickland refused to do as Loehr asked.
Loehr then replied, "All right, I can't make you go." 4
On or about July 16, Supervisor Loehr approached employee Mary Stargel e
at her work station, and asked if she knew that employees James Wofford, Jennie
Reed, and Evelyn Reed "had turned their self in" to Personnel Manager Rainwater
as adherents of the Union, and stated that he was giving Stargel "the same chance."
Loehr also told Stargel that "he would appreciate anything [Stargel] would tell
him" about the Union.6 The record does not indicate whether Stargel made any
response.
In the latter part of August employee Sue Brackett was interviewed for employ-
ment by Personnel Manager Rainwater. In the course of this interview Rainwater
told Brackett, "I guess you have heard that the Union is trying to organize here
within the Company." When Brackett answered in the affirmative, Rainwater
asked something to the effect, "Have you ever been a member?" Brackett replied
that she had never worked under a union. Rainwater told Brackett, in effect, that
Respondent's reason for maintaining the plant in Gainesville, rather than in Cleve-
land, was that a lower wage rate prevailed in Gainesville, and that the plant could
be moved back to Cleveland if Respondent wished to do so?
The parties stipulated that at all times material Respondent kept posted on its
bulletin boards in the plant, and distributed to its employees, a pamphlet entitled
"Plant Regulations." The preamble to these "Plant Regulations," told employees
2 The Charging Union has filed with me and served on all other parties, a motion to
correct certain errors in the transcript of evidence. No opposition to said motion has
been received. From my examination of the transcript I find that the corrections re-
quested are necessary and proper, and I now grant said motion in its entirety. A copy
of the motion marked "Trial Examiner's Exhibit 1," has been filed with the record.
'No issue of commerce or labor organization is involved. The complaint alleges and
the answer admits the facts which establish these jurisdictional allegations. I find the
facts to be as pleaded.
* Based on the uncontradicted and credited testimony of Strickland, Loehr did not
testify.
5 The transcript of evidence Is also corrected to reflect the spelling of this witness'
name as Stargel, rather than "Stodgill."
9 Based on the uncontradicted and credited testimony of Stargel.
7 Based on the credited testimony of Sue Brackett. Rainwater denied making most of
the statements attributed to him by Brackett, but I do not credit his denials. Asked if
he made any statement to Brackett about Respondent's reason for operating the Gaines-
ville plant, Rainwater replied, "I don't remember making any such statement." When
asked if he may have made the statements, but just did not recall them, Rainwater replied,
"This is correct."
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that said "Regulations " were applicable to them "at all times while on Company
property ," and that failure to observe them "will subject an employee to dis•
ciplinary action or even discharge , depending on the nature of the offense." The
General Counsel contends that paragraph 9 of said "Regulations " constitutes an
unlawful "no solicitation" rule, and therefore violated Section 8(a)(1) of the
Act.8 Paragraph 9 provides as follows:
"Collecting money, selling , circulating petitions , distributing printed matter,
or soliciting of any kind on Company time or property without the Company's
permission."
There is no evidence that any employee ever sought to engage in any conduct
proscribed by the aforesaid paragraph 9„ or that Respondent , during the organiza-
tional campaign called said rule to the attention of any employee , other than by
the fact that it was posted as above stated. -
B. The Section 8(a) (3) allegations
1. The suspension of Thomas Meeks
Meeks had been employed by Respondent since April 1962. At the time of
the events hereafter related, he was employed as drill press operator . There is no
evidence that prior to the events hereafter related, Meeks was ever reprimanded,
or that Respondent ever complained about his work performance . Meeks signed a
union authorization card on July 13, and on or about that date attended a
union meeting held in a local motel. While at the motel, Meeks observed Super-
visor Fielders driving around the motel,9 and assumed that his union activity had
thus become known to Respondent . Accordingly , within 2 or 3 days, he went
to Personnel Manager Rainwater and his foreman , O'Dell Forrester , and told
them that he was active on behalf of the Union On August 16, Meeks was sus-
pended without pay for 3 days . Respondent's reason for the suspension was,
"refusing to follow the orders of his leadman " The incident giving rise to the
suspension allegedly occurred the preceding Saturday evening (August 14), and,
according to Respondent , involved a refusal by Meeks to clean up the work area
after work ceased on his shift, in accordance with the directions of his leadman.1e
After the end of the shift at midnight , and after the cleaning operation had been
completed," and the employees had left the plant, the leadman reported to Fore-
man Anderson that Meeks had failed to participate in cleaning up the plant. When
Anderson reported for duty at 3.30 p.m. the following Monday (August 16), he
told General Foreman Forrester what the leadman had advised him regarding
Meeks . The matter was then reported to Personnel Manager Rainwater , and at a
conference which followed between Anderson , Forrester , Rainwater , Plant Man-
ager Hyslop , and Leadman Cross, it was decided that Meeks should be suspended
for 3 days , and that Forrester should notify Meeks of that decision.
Forrester then sent for Meeks , and when the latter reported , asked whether
Meeks had cleaned up the preceding Saturday , adding that Leadman Cross had
reported that he (Meeks ) had failed to obey his order in that regard. Meeks
insisted that he had paiticipated in cleaning the plant , 12 and that Foreman Ander-
son had observed him doing so. Forrester then sent for Anderson . According
to Meeks, when Anderson was asked if he observed Meeks cleaning up the pre-
ceding Saturday , he replied , "Yes, but that was before 11:30 [p.m.]." Forrester
then sent for Leadman Cross, and when the latter arrived, asked if Meeks had
cleaned up. Cross replied , "No." When Meeks insisted that he had cleaned up,
Cross stated , according to Meeks, "Well , I didn't see you clean up ." Forrester
8 Respondent relies upon paragraph 19 of these rules, which prohibits " Insubordination,
Disobedience or Incompentence ," as a defense to the allegations of the complaint that the
discharge of Ben Poole , under the circumstances hereafter related , was discriminatorily
motivated and hence violative of Section 8 (a) (3) of the Act.
3 There is no contention that this constituted surveillance.
io All parties concede that the leadman is not a supervisor within the meaning of
the Act
"Production ceased at 11: 30 p in., a half hour before the end of the shift , to allow
time for cleaning up
12 The cleaning operation is a joint operation in which all employees are required to
participate in the half-hour period set apart for that purpose
LEECE-NEVILLE COMPANY 297
then prepared a document, a copy of which was given to Meeks, stating that he
was suspended for 3 days, without pay, for refusing to carry out the orders of the
leadman, and was warned not to let this happen again.
Considerable evidence, most of it in conflict, was introduced by the parties
relating to whether Meeks did in fact participate in the cleaning of the work area,
during the period set apart for that purpose on August 14, but for reasons here-
after stated, I find it unnecessary to resolve that conflict.
2. The discharge of Poole
Poole worked for Respondent from January 1962, until his discharge on
August 26, under the circumstances hereafter stated, concerning which there is
little material dispute. Respondent does not question that until the date of his
discharge, Poole was in all respects a satisfactory employee.
On August 26, while the Union's organizational campaign was in progress, Plant
Manager Hyslop read a prepared speech to the employees who had been assembled
for that purpose.13 On the day in question, Poole arrived at the plant about 3
p.m. and waited in the break room for his shift to start. From that room Poole
heard Hyslop's speech to the morning shift, and heard it again when Hyslop spoke
to the evening shift. In the speech, which the General Counsel concedes is pro-
tected by Section 8(c) of the Act, Hyslop referred to the then current "union
organizing drive," and told the employees, in substance, inter aha, that he had
received reports of threats of physical violence to the person and property of the
employees, and to their job tenure; that such was a common practice of unions
when employees were reluctant to sign cards quickly; that such threats were
unlawful, that any employee who threatened- another employee would be dealt with
firmly by Respondent.
When Hyslop finished his speech, Poole, who was among those nearest to
Hyslop, approaching the desk from which Hyslop spoke, asked, "are you Mr.
Hyslop?" 14 Receiving an affirmative reply Poole said that he did not have a
prepared speech but did want to say a few words. While shaking his finger in the
direction of Hyslop, Poole stated:
First of all I would like to say that I am 100% for [the Union]. Its coming
in and don't you doubt that, if everybody else falls out of it, its coming in if
I have to bring it in by myself.
Then dropping and hitting his hand against the desk Poole added:
If you will stick to what you said it will be O.K.
Don't make any threats.
When Poole completed his statement, some of the assembled employees applauded;
some began crying; Poole resumed his seat; and Hyslop picked up his papers and
left the room. The employees were then told to return to their work stations.15
Poole admitted that while speaking as above set forth, he was "excited," and that
he probably spoke louder than his normal tone of voice. Respondent makes no
claim that Poole's tone of voice was unduly loud.
When Poole reached his work station, General Foreman Forrester approached
him and stated, "Ben, all we expect out of you is your efficiency." Poole replied,
in substance, that all he could promise was his best. Forrester then went in the
direction of the office. Shortly thereafter Forrester returned and asked Poole to
13 The speech was read at different times to the employees on several shifts To those
who worked from 7 a.m. to 3: 30 p in., herein called the morning shift, Hyslop gave the
speech shortly before the end of the shift. To those who worked from 3:30 p.m to
midnight , herein called the evening shift, he gave the speech shortly after the start of the
shift. Poole worked on the evening shift. A copy of the speech is in evidence as Charg-
ing Party Exhibit 2.
'4 This inquiry was prompted by the fact that Hyslop had then been plant manager for
only a few months, and was not personally known to many of the employees.
15 Poole testified that he is active in church affairs, doing some preaching , and that
waving his hand and striking it against the desk is natural with him. In the view I
take of the case , this testimony is irrelevant . There is also evidence , some of it in conflict,
dealing with the distance that Poole was from Hyslop when he shook his finger at the
latter While I believe this is also irrelevant . I shall, for the purposes of decision , accept
Hyslop's testimony that Poole was, at the time he was shaking and pointing his finger
approximately 2 feet away.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go to the office with him. There Personnel Director Rainwater discharged Poole
stating that the reason for the discharge was that the Company regarded his con-
duct at the meeting as insubordination.16
Following the discharge, General Foreman Forrester went with Poole to the
latter's work area to get his tools and other personal effects. After doing so, and
as Forrester was taking Poole to the door, he asked Poole if he had taken all his
tools. Poole replied that he would leave his tools, because he would be coming
back. Forrester insisted that Poole take all his tools, because Respondent did
not want him back, and that if he returned he would be regarded as a trespasser.
The following morning, but after production had started, Poole returned to the
plant wearing a large white cowboy hat, cowboy boots, and large wrap-around
glasses. This attire was so unusual as to cause the employees to laugh and talk
among themselves. Reminded by a management representative that he had been
discharged and would have to leave the Company's property, Poole insisted that
he had no proof that he had been discharged. Poole was then sent to Personnel
Manager Rainwater, whom he met in the break room. When Rainwater told
Poole that he would have to leave the Company's property, Poole replied, "I am
not leaving until I get that [separation notice]." Rainwater went to his office and
returned with an envelope containing the separation notice and handed it to Poole
who threw it on the table saying, "This is not worth a flip of your finger." After
some further discussion not relevant here, Poole took the separation notice and
left the plant.17 About 3 o'clock that afternoon Poole returned to the Company's
parking lot, talking to employees as they were reporting for the evening shift.
General Foreman Forrester again told Poole that he was trespassing and would
have to leave the Company's property. Poole then jumped down onto a railroad
track running beside Respondent's property, and stated, in substance, that he
would stay there, because that was railroad property. Since this episode Poole has
not returned to Respondent's plant.
Contentions and Concluding Findings
1. The interference, restraint, and coercion
No citation of authority is necessary for the proposition that the statements by
Foreman Loehr to employees Strickland and Stargel, and the statement by Person-
nel Manager Rainwater to employee Brackett, all as found supra, violated Section
8(a)(1) of the Act.
Also violative of the Act was the rule which Respondent kept posted in its
plant, which prohibited "soliciting of any kind on Company . . . property with-'
out the Company's permission." As this rule could be understood by employees
to prohibit union solicitation on Respondent's property, even in nonwork areas and
during nonworking time, and as there is no contention or evidence to establish that
such a rule was necessary to maintain production or discipline, the rule was too
broad and its promulgation and maintenance was violative of Section 8(a)(1) of
the Act. Harold Miller, et al. d/b/a Miller Charles and Company, 148 NLRB
1579, 1580; Walton Manufacturing Company, 126 NLRB 697, 289 F.2d 177 (C.A.
5). As the violation thus found resulted from the mere promulgation and main-
tenance of the rule, it is immaterial that there is no evidence that Respondent ever
undertook to enforce the rule, or ever invoked it to prevent employees from
engaging in such conduct in nonwork areas or during nonworking time.
2. The 8(a)(3) allegations
a. The discharge of Poole
The speech made to the employees by Plant Manager Hyslop on August 26, was
heard twice by Poole. Although it is conceded by the General Counsel and the
10 Both Hyslop and Rainwater admit that immediately following Hyslop's speech to the
evening shift, they and other representatives of Respondent, including its local counsel,
met to consider what action should be taken against Poole, and that the decision was
made to terminate Poole for insubordination. Rainwater was directed to carry that
decision into effect.
17 The separation notice given Poole at this time was dated August 27, the day follow-
ing the actual discharge, and gives as the reason therefor "Flagrant violation of Com-
pany Rule #19-Insubordination, Took over Company Meeting without permission. Was
disrespectful and riotous." The company rules referred to were those posted in the plant
as set forth, supra.
LEECE-NEVILLE COMPANY 299
Charging Party that nothing in the speech violated Section 8(a)(1) of the Act,
it was certainly a speech which made plain to the employees Respondent's attitude
that the Union's status as the collective-bargaining representative of the employees,
was not an event which Respondent would regard with -favor . Poole 's statement
in front of the assembled employees, where Hyslop made his statements, was
certainly an act on his part by which he sought, through the Union, for his own
benefit, and the benefit of his fellow employees, to bargain collectively with the
employer for their mutual aid and protection. In doing so, Poole was engaging in
concerted activity protected by Section 7 of the Act. A discharge predicated in
whole or in part on the fact that the discharged employee, on his own behalf and
one or more other employees , sought to promote union organization , is a discharge
for engaging in protected union or concerted activity, and therefore is violative of
Section 8 (a)(3) and (1) of the Act. N.L.R.B. v. Washington Aluminum Com-
pany, 370 U.S. 9; Socony Mobile Oil Company, Inc., 153 NLRB 1244; Top Notch
Manufacturing Company, Inc., 145 NLRB 429, 432.
Respondent contends, however, that Poole was not discharged because of his
prounion statements , but because he engaged in what the separation notice called
"riotous" conduct in taking over the meeting without permission, and was "dis-
respectful," presumably because he shook his finger at Hyslop, and the discharge
was for those reasons, justified . Poole's conduct Respondent argues, to quote from
its brief "could have no effect other than to seriously undermine the dignity and
stature of the top official of the Gainesville plant [and constituted a] challenge of
management's authority . . . so dramatic and forceful that it caused audience
reaction ranging from tears to applause." I find the contention without merit.
In the first place, I must reject the argument that Poole was discharged not for
what he said, but for what he did at the meeting. On the contrary, my considera-
tion of the record as a whole, including my observation of the demeanor of the
witnesses testifying on this issue, convinces me, and I so find and conclude, that
the reason for Poole's discharge was the fact that he had the temerity to speak out
in the presence of Hyslop, in opposition to the antiunion view which the latter
sought to install into the minds of the employees then present.
Moreover, even where I too accept Respondent's argument that Poole was dis-
charged solely because he took over the meeting without permission,18 and shook
his finger at Hyslop, I would still conclude that his discharge was unlawful, and
that Respondent must offer him reinstatement with backpay. Were it otherwise, all
an employer would have to do to defeat the Section 7 rights of employees is regard
the employees ' conduct as "riotous" and "disrespectful ." In this manner an
employee's statutory right to engage in concerted activities truly would become
"only a promise to the ear to be broken to the hope, a teasing illusion like a munif-
icent bequest in a pauper's will" (per Mr. Justice Jackson in Edwards v. California,
314 U.S. 160, 186).
It is true, of course, as the Supreme Court pointed out in Washington Alumi-
num, supra, that not all concerted activity is protected. Plainly, as the Board
stated in Socony Mobile Oil Company, Inc., supra:
A line exists beyond which an employee may not with impunity go, but
that line must be drawn "between cases where employees engaged in con-
certed activities exceed the bounds of lawful conduct in `a moment of animal
exuberance, ... or in a manner not activated by improper motives, and those
flagrant cases in which the misconduct is so violent or of such serious char-
acter as to render the employee unfit for further service."
The decided cases demonstrate that the conduct here involved was not so violent
or of such serious character as to render Poole unfit for further service.
In Beitcher Manufacturing Corporation, 76 NLRB 526, the president of the
company, at a bargaining session with the union, offered to show his books in
support of his contention that the company was losing money. An employee mem-
ber of the union's bargaining committee remarked that books could be "juggled" or
"manipulated." Regarding the remark as in effect calling the company president a
"crook and a liar," and therefore "insulting," the employee was discharged by the
company. On these facts the Board concluded that the employee's conduct how-
is The General Counsel introduced evidence to the effect that when Poole arose and told
Hyslop that he (Poole) wished to say something, that Hyslop stepped back as though
inviting Poole to speak. Hyslop and Rainwater denied this. I find it unnecessary to
resolve the conflict because my conclusion would be the same in either event.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever regrettable, "was not so extreme as to furnish justification for his discharge for
engaging in concerted activities.19
Again in Indiana Gear Works, 156 NLRB 397, the employee, along with others,
to protest the smallness of a wage increase given them by their employer, posted
cartoons about the plant which the president of the company regarded as holding
him up to ridicule in the eyes of the employees. For this conduct the employee
was discharged. The Board held the discharge unlawful because it was based on
the employee's concerted activities, and that the conduct was "not of such serious
character as to disqualify [the employee] from reinstatement."
In this state of the law, I can only find and conclude as I do, that Poole's con-
duct was .concerted activity protected by Section 7 of the Act, that his discharge
for such conduct was violative of Section 8(a)(3) and (1) of the Act, and that his
conduct was not of such a serious or flagrant character as to disqualify him from
reinstatement.
b. The suspension of Meeks
The crucial question on this aspect of the case is whether Meek's suspension was
to any degree motivated by his union activity. Upon consideration of the entire
record, I find and conclude that the General Counsel has failed to prove by a pre-
ponderance of the evidence that Meeks' suspension was so motivated. I reach this
conclusion upon the totality of the following factors:
1. Meeks' union activity was known to Respondent for about a month before
the events which led to his suspension. A substantial number of employees,
including Meeks, wore union buttons in the plant and otherwise made known to
Respondent their support of the Union. There is, however, a total absence of
evidence of discrimination against any other employee because of union activity.20
There is no showing that Meeks was particularly active on behalf of the Union, nor
is there any suggestions as to why Respondent would decide to make an example
of Meeks. While it is true, of course, that an employer's lack of discrimination
against other employees does not prove that action against a particular employee
was free of discrimination, it is certainly a factor to be considered along with all
other factors in the case, as evidence of a purpose not to discriminate. This would
seem to be particularly true in view of the long period (about a month), between
the time Meeks made his union activity known to Respondent, and the date of his
suspension, during which period Respondent engaged in no unfair labor practices
that were specifically directed at a particular employee.21
2. Leadman Cross is admittedly a rank-and-file employee, and there is no evi-
dence that he was acting at the behest of management to create some incident to
give an appearance of legitimacy to its discipline against Meeks. The General
Counsel's evidence is as consistent with the theory that Cross, for some motive of
his own, "framed" Meeks, as it is with the theory that he did so to create a pretext
for disciplinary action.
3. It was perfectly natural for Respondent to accept and act upon as fact, infor-
mation given it by the leadman, even though denied by the employee involved,
even assuming that the leadman's report was factually wrong. The crucial fact
is that Respondent acted upon the leadman's report in the belief that his report was
accurate, and there is no evidence that in doing so it acted other than in good faith.
It is for this reason that I find it unnecessary to decide whether Meeks did in fact
fail to take part in cleaning up the work area, for the critical question is not
whether Meeks failed to clean up, but rather whether Respondent in suspending
19 See also National Furniture Manufacturing Company, Inc., 134 NLRB 834, where the
Board held that an employee's vulgar remark to the company's general manager, when
the latter attempted to hand him a letter, was not conduct which made the employee un-
employable, so as to excuse the company's duty to reinstate that employee to remedy the
unlawful discharge.
29 The discharge of Poole stands alone and grows out of a different state of facts
az The statements made by Foreman Loehr to employees Strickland and Stargel were
made about the same time that Meeks disclosed his union activity to Respondent. Rain-
water's statements to employee Brackett, were made some 2 weeks after Meeks' suspen-
sion Poole's discharge was on August 26
LEECE -NEVILLE COMPANY 301
Meeks was motivated by the belief that he did not do so, or by the purpose to
discriminate against him because of his union activity.22
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
II. THE REMEDY
Having found that Respondent has engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the 'Act, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative action designed to eradi-
cate the effects thereof and to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged Ben Poole in viola-
tion of Section 8(a)(3) and (1) of the Act, it will be recommended that
Respondent be required to offer Ben Poole immediate , full, and unconditional rein-
statement to his former or substantially equivalent position, without prejudice to
his seniority or other rights, privileges, or working conditions, and make him whole
for all earnings lost by reason of the discrimination against him, by paying to him
a sum of money equal to the amount he would have earned from the date of the
discrimination to the date of his reinstatement, less his net earnings during such
period, in accordance with the Board's formula as set forth in F. W. Woolworth
Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per
annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act,
and 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 the conduct set forth in section I, A, 1, hereof, Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed to them
by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
4. By discharging Ben Poole on August 26, 1965, Respondent discriminated
against him in regard to his hire or tenure of employment because of his con-
certed activities on behalf of the Union, thereby discouraging membership in the
Union, and thus engaged in and is engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has failed to prove by a preponderance of the evidence
that the suspension of Thomas Meeks was discriminatorily motivated, and the
allegations of the complaint in that regard should be dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Leece-Neville Company,
Gainesville, Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees regarding their activities on
behalf of Communications Workers of America, AFL-CIO, or any other labor
organization.
(b) Asking employees to attend any union meeting and report back the events
occurring at such meeting.
(c) Threatening employees with removal of the plant if they select a bargaining
representative.
2 N L R 13 v Burnup and Sims, Inc, 379 U S 21, is not apropos here In that case
the conduct, which the company mistakenly but in good faith thought the employee in-
tended to engage in, related to his concerted activity. Here, the suspension was based on
the Company's belief that Meeks had failed to perform assigned duties unconnected with
his concerted activities.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Discouraging membership in Communications Workers of America, AFL-
CIO, or any other labor organization of its employees, by discriminatorily dis-
charging, or in any other manner discriminating against any employee in regard to
his hire, tenure, or other term or condition of employment.
(e) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights to self-organization, to form, join or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action found necessary and designed to effec-
tuate the policies of the Act:
(a) Offer to Ben Poole immediate, full, and unconditional reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights, privileges, or working conditions, and make him whole for any loss
of earnings he may have suffered, in the manner set forth in the section hereof
entitled "The Remedy."
(b) Notify Ben Poole if presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training 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, time-
cards, personnel records and reports; and all other records necessary or useful in
computing the amount of backpay due, as herein provided.
(d) Post at its plant in Gainesville, Georgia, copies of the attached notice
marked "Appendix." 23 Copies of said notice to be furnished by the Regional
Director of Region 10 (Atlanta, Georgia), shall, after being duly signed by its
authorized representative, be posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, Or covered by
any other material.
(e) Notify the aforesaid Regional Director, in writing, within 20 days from
receipt of this Decision, what steps it has taken to comply herewith.24
IT Is FURTHER RECOMMENDED that the complaint herein, to the extent that it
alleges that the suspension of Thomas L. Meeks was discriminatorily motivated, be
and the same is, dismissed.
231n 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 be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
24 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the aforesaid Regional Director, in writing, within
10 days from the date of this Order, what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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 coercively interrogate our employees regarding their activities
on behalf of Communications Workers of America, or any other union.
WE WILL NOT ask our employees to attend union meetings and report to us
the events of such meetings.
WE WILL NOT threaten our employees with removal of our plant from
Gainesville, Georgia, if they select a union as their collective-bargaining
representative.
WE WILL NOT discourage membership in Communications Workers of
America, or any other union, by discriminatorily discharging, or in any other
LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS 303
manner discriminating against any employee in regard to his hire, tenure, or
other term or condition of employment.
WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the above-named Union or any other
union, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and all such
activities.
WE WILL offer Ben Poole immediate, full and unconditioned reinstatement
to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any loss of
earnings he may have suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named union or any other labor organization.
LEECE-NEVILLE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this Notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele-
phone 526-5741.
Local 18, Bricklayers, Masons and Plasterers ' International
Union of America, AFL-CIO and Jesse Bulle and Union County
Building Contractors Association and The Johansen Company,
Parties to the Contract . Case 22-CB-784. June 14, 1966
SUPPLEMENTAL DECISION AND ORDER
On June 8, 1965, the National Labor Relations Board issued its
Decision and Order r in the above-entitled proceeding, affirming the
Trial Examiner's finding that the General Counsel failed to establish
that Respondent violated Section 8(b) (1) (A) and (2) of the
National Labor Relations Act, as amended, as alleged in the com-
plaint, and granting Respondent's motion to dismiss the complaint in
its entirety. Thereafter, on September 14, 1965, the Board issued an
order granting the Charging Party's motion for reconsideration,
vacating its prior Decision and Order, and remanding the proceed-
ing for further hearing before the Trial Examiner.
Pursuant thereto a further hearing was held and, on January 3,
1966, Trial Examiner Thomas F. Maher issued his Decision 2 herein,
3152 NLRB 1280.
2 The attached "Trial Examiner's Decision" of January 3, 1966, is in fact a supplemental
decision.
159 NLRB No. 31.