Neptune Meter Co.

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 87 (N.L.R.B. 1974)

NEPTUNE METER COMPANY 87
Neptune Meter Company and Oil, Chemical and
Atomic Workers International Union, AFL-CIO.
Case II-CA-5512
June 27, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On April 19, 1974, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Neptune Meter Company,
Greenwood, South Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
i In addition to the factors cited by the Administrative Law Judge in his
Decision, we rely on the following uncontroverted; credited, or admitted
evidence in affirming the finding that Respondent discriminated against
certain employees because of their union beliefs and because they were
subpenaed witnesses at an NLRB hearing The employees were warned, if
at all, only that their failure to report to work before and after the hearing
would be considered an unexcused absence. Some of the involved employees
had in the past had unexcused absences without disciplinary consequences,
and the Respondent's plant superintendent stated that discharging employ-
ees for such absences was not ordinary practice. Finally, employees had also
failed without excuse to report to work part of a day and the Respondent's
personnel administrator testified that no one at the plant had ever been fired
for so doing.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This proceed-
ing under Section 10(b) of the National Labor Relations
Act, as amended, was tried pursuant to due notice on Janu-
ary 22 and 23, 1974, at Greenwood, South Carolina.
The charge in this matter was filed on October 9, 1973.
The complaint in this matter was issued on December 10,
1973. The complaint was further amended, at the hearing on
January 22 , 1974 . The issues concern ( 1) whether Respond-
ent has violated Section 8(a)(1) of the Act by threats, prom-
ises of benefits , and by unlawful interrogation , and (2)
whether Respondent suspended and terminated four em-
ployees and reprimanded two employees because of their
union activity and appearance as NLRB subpenaed wit-
nesses at a scheduled hearing, in violation of Section 8(a)(4),
(3), and (I) of the Act.
All parties were afforded full opportunity to participate
in the proceeding . Briefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses , I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and admis-
sions therein.
Neptune Meter Company, the Respondent, is now, and
has been at all times material herein, a New York corpora-
tion engaged in the manufacture and sale of meters, meas-
urement systems, and related items. It has a plant located
at Greenwood, South Carolina, which is the only plant in-
volved in these proceedings.
The Respondent, during the 12-month period ending on
December 10, 1973, which period is representative of all
times material herein, received at its Greenwood, South
Carolina, facility products and raw material with a value in
excess of $50,000 from points-and places directly outside the
State of South Carolina. During this same period, the Re-
spondent shipped and sold finished products with a value
in excess of $50,000 to points and places directly outside the
State of South Carolina.
As conceded by the Respondent and based upon the
foregoing, it is concluded and found that the Respondent is,
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings and admissions therein, it is
found and concluded that Oil, Chemical and Atomic Work- -
ers International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Supervisory Status
The facts are based upon stipulations, pleadings, and ad-
missions therein, and the testimony of witnesses.
At all times material herein, the following named persons
occupied the positions set opposite their names and have
been and are now agents of the Respondent and are supervi-
sors within the meaning of Section 2(11) of the Act.
212 NLRB No. 35
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. P. Thomas-Manager, Industrial Relations
Stan Neely-Personnel Administrator
John Barrett-Foreman, Department 62
Charles Surrett-Foreman, Department 67
Stuart Hink-Plant Superintendent
The General Counsel also alleged in effect that Rocco
Dalessandro was a supervisor or agent of the Respondent.
The Respondent denied this allegation.
Goodman testified to the effect that Rocco Dalessandro
told him that he was a special coordinator of a special
project for Stu Hink, the production manager, that Rocco
Dalessandro told him he was actually a supervisor, that
Dalessandro approached him in late June and told him that
Dalessandro understood that he was affiliated with the
Union, that Dalessandro told him that if Goodman were to
have his name typed upon company stationary stating that
he (Goodman) were no longer affiliated with the Union or
had anything to do with it any more, that he (Dalessandro)
was sure that in a couple of weeks that he could get Good-
man into management. Goodman testified to the effect that
later Dalessandro came to him and told him that he (Dales-
sandro) had looked over Goodman's file, that Goodman
had the education and qualifications to get ajob in manage-
ment, and indicated that if he went ahead and had his name
typed on paper as previously described that such results
would follow.
Excepting for the testimony of Goodman as to what Dal-
essandro had told him, the General Counsel adduced no
evidence relating to fob duties or responsibilities of Dales-
sandro.
The General Counsel argues in effect that since Dalessan-
dro held himself out as an agent for management, that
management is responsible for Dalessandro's conduct. The
evidence in this case does not pertain to the general conduct
of Dalessandro as revealed to employees generally. Agency
status of an alleged agent cannot be established by admis-
sions of such alleged agent. Goodman's testimony is essen-
tially hearsay in nature. Dalessandro's remarks to
Goodman may or may not reflect the truth of the matters
asserted Considering all of the foregoing, I conclude and
find that the evidence is insufficient to establish "agency"
or "supervisory" status of Dalessandro so as to reveal that
the Respondent is responsible for the conduct of Dalessan-
dro
B. Interference, Restraint, and Coercion
1. The General Counsel alleged in effect that; (a) W. P.
Thomas, in late July 1973, threatened an employee by stat-
ing that he was being watched because he was a union
adherent and that said employee had to prove to the Com-
pany that he was no longer "affiliated with union activities,"
and that (b) Rocco Dalessandro in late June 1973, promised
a promotion to an employee if said employee would allow
the Company to type a letter on company stationery re-
questing the Union to remove said employee' s name from
the Union's organizing committee.
The parties (Union and Respondent) executed on Octo-
ber 3, 1973, an informal settlement agreement in Case 1I-
CA-5387 which included agreement that the Respondent
would post a remedial notice and abide by the terms of such at Thomas' home
notice. Such notice revealed in effect Respondent' s agree-
ment not to do certain acts and not to "in any other man-
ner" interfere with, restrain , or coerce employees in the
exercise of Section 7 rights This agreement was approved
by the acting Regional Director on October 5, 1973. This
informal settlement agreement was of the type that is sub-
ject to the Board's compliance policing thereof. The settle-
ment agreement in Case I1-CA-5387 has not been set aside
by the Regional Director. Accordingly, said settlement
agreement generally bars the litigation of whether
Respondent's conduct preceding October 3, 1973, is viola-
tive of Section 8(a)(1) of the Act. It does not bar the litiga-
tion of whether Respondent's conduct, on October 2 and
thereafter, relating to the named employees' attendance as
subpenaed witnesses at the scheduled unfair labor practice
hearing on October 3, 1973, is violative or not. Such conduct
clearly was not within the consideration of the parties at
time of settlement of Case I 1-CA-5387, or approval thereof
by the Regional Director. Accordingly, I conclude and find
that the settlement agreement constitutes a bar to the litiga-
tion of the issues, set forth in complaint paragraph 7(a) and
(b) and set out in effect above, as to whether such conduct
is violative of Section 8(a)(1) of the Act.
Such settlement agreement, however, does not bar the
litigation of the facts relating to such issues as to a determi-
nation of Respondent's hostility or animus as bearing upon
Respondent's motivation for the suspension, reprimands,
and discharges of the employees (Waller, Burton, Good-
man, Patterson, White, and Freeman).
I note at this point, as facts later set out will show, that
the facts relating to W. P. Thomas' statements to employee
Goodman in late July 1973, do establish Respondent's hos-
tility and animus toward the Union and employee union
activity. I note at this point that the General Counsel, as
previously shown, has not established that Dalessandro was
a supervisor or agent of Respondent. Such evidence as to
what Dalessandro said to Goodman does not constitute
evidence bearing upon Respondent's hostility or animus
toward the union or employee union activity.
2. The General Counsel alleged in effect in his complaint,
as amended at the hearing, that Respondent, by W. P.
Thomas, on November 20, 1973, interrogated an employee
as to how said employee felt about the Union
The only witness to this issue was James Brown. Brown
testified to the effect that he had several conversations with
Thomas about the Union, that on one of these conversa-
tions, either a week before or a week after Thanksgiving
1973, Thomas asked him what he thought about the Union
and what he thought about Lucions Waller, that he (Brown)
told Thomas that he did not want to talk about the Union
or Waller, and that this ended the matter.
Respondent's counsel on cross-examination questioned
Brown as to whether he and Thomas had, during such con-
versation, been discussing the weather and the backyard.'
Brown denied that he and Thomas had been discussing the
weather or the backyard. Respondent's Counsel showed
Brown his pretrial affidavit, given to the NLRB on Decem-
ber 20, 1973, wherein a statement therein coupled the inter-
1 The incident took place when Brown was doing some work for Thomas
NEPTUNE METER COMPANY
rogation about the Union and Waller with a discussion of
the backyard and weather. Brown testified that the affidavit
covered more than one statement or conversation, that this
statement was incorrect as to coupling the discussion of the
weather and backyard with the union interrogation.
Brown's testimonial explanation of the inconsistency be-
tween his pretrial affidavit and statements therein as com-
pared to the trial testimony was confusing in nature. In real
effect I do not find that he has explained the inconsistencies
in a persuasive way. Rather, I find him to be an unreliable
witness and discredit his testimony accordingly.
Considering the foregoing, I conclude and find that the
General Counsel has not established that the Respondent,
by Thomas, on November 10, 1973, unlawfully interrogated
an employee as to how he felt about the Union.
C. The Suspension, Reprimands, and Discharges
The facts 2 relating to Respondent's suspension from em-
ployment, issuance of reprimands (Freeman and White)
and discharges (of employees Waller, Burton, Goodman,
and Patterson) may be summarized as follows:
1. Lucions Waller initiated the move to have the Union
to engage in organizational activity at the Respondent's
plant prior to April 23, 1973. On April 23, 1973, the Union
sent a letter to the Respondent whereby the Respondent was
notified that Lucions Waller, Rufus Johnson, Ruby Wil-
liams, Cornell Robertson, Jr., Anthony W. White, James P.
Freeman, Larry Burton, Nathan Goodman, Charlie Jen-
nings, Timothy Patterson , and Samuel Dodgen were mem-
bers of an in-plant organizing committee for the Union. The
Respondent posted this list on a bulletin board in the plant.
Waller engaged in union activity from prior to April 23,
1973, until his discharge. Thus, Waller during such time,
talked on various occasions to employees about the Union,
handed out literature at the gate, and handed out literature
and pens in the cafeteria. As previously set forth, Respond-
ent was notified on April 23, 1973, that Waller was on an
in-plant organizing committee. On one occasion Waller
gave a union pamphlet to Plant Manager Poore.
Timothy Patterson was on the in-plant organizing com-
mittee for the Union, and Respondent was so notified on
April 23, 1973. Commencing in April 1973, Patterson on
various occasions engaged in union activity, passing out
literature at the gate and in the cafeteria. Patterson also
wore a union pm or pocket saver.
Larry Burton was also on the Union's in-plant organizing
committee, and the Respondent was so notified on April 23,
1973. Between that time and the time of his discharge on
October 9, 1973, Burton on various occasions engaged in
union activity of passing out union literature at the plant
gate and in the cafeteria. On occasion Burton engaged in
union activity in the presence of Respondent's supervisors.
Nathan Goodman was also on the Union's in-plant orga-
nizing committee, and the Respondent was so notified on
April 23,'1973. Between that time and the time of his dis-
charge on October 9, 1'973, on various occasions, Goodman
engaged in union activity of passing out union literature at
2 The facts are based upon a composite of the credited aspects of the
testimony of all witnesses.
89
the plant gate and in the cafeteria, talked to fellow employ-
ees about the Union, and wore a union button. On several
occasions Goodman spoke to supervisors while he was en-
gaged in union activity.
Anthony White also was on the Union's in-plant organiz-
ing committee, and the Respondent was so advised on April
23, 1973. No other evidence was adduced of specific union
activity by White.
James P. Freeman also was on the Union's in-plant orga-
nizing committee, and the Respondent was so advised on
April23, 1973. Freeman engaged in union activity otherwise
on various occasions from late summer 1973 until his writ-
ten reprimand of October 4, 1973. Thus, Freeman wore a
union badge and pocket saver, passed out union literature
at the company gate, passed out union matches and pens to
employees, and attended union meetings.
2. Respondent's hostility toward the Union and toward
employees who support the Union is revealed by the follow-
ing credited excerpts from Goodman's testimony.
Q. Directing your attention now to late July, 1973,
did you know W. P. Thomas at that time?
A. Yes, right.
Q. Tell the Court who he is?
A. Thomas is Industrial Relations Manager.
Q. What, if anything, did Thomas say to you at that
time?
Q. (By Mr. Connor) What did Thomas say, if any-
thing?
A. I was in the office discussing raises and promo-
tions and also some job training. He told me that when
I first came to work at Neptune Meter Company that
a lot of people had told him and management that I
would be a good man to move up. But he said that since
I had gotten on the other side of the fence that I had
to prove to the company that I was no longer affiliated
with any union activities at all.
3. The facts reveal that prior to the events in this case
some employees have had unexcused absences, that some
employees have not reported back to work for portions of
a day, and that none of such employees were disciplined,
received written reprimands, or were fired.
4. There is no evidence that there have been prior inci-
dents of the Respondent's specifically telling an employee
to come to work on a specific occasion, or to return to work
on a specific occasion wherein such employee did not com-
ply-
5. The General Counsel presented testimony through
witnesses Waller and Patterson for the purpose of estab-
lishing that employees had been allowed to take time off for
jury duty, to have car repairs made, and had not been
required to report back to the company upon completion of
said jury duty or car repairs. The testimony relating to such
issues is insufficient in detail to have any probative value.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Waller testified to the effect that Sonia Scott told
him during the week before January 22, 1974, that she had
been allowed time off for jury duty. Such testimony is hear-
say in nature, was objected to, and absent other proof of the
matter asserted, has no probative value.
Patterson testified to the effect that he overheard Sonia
Scott ask a supervisor for time off for jury duty, that Sonia
Scott took time off at such time, and that although the plant
worked on Saturday of that week, Scott did not work on
Saturday. The record does not reveal what the supervisor
told Scott nor the existing circumstances at the time. The
record does not reveal whether or not Scott's jury duty
extended to Saturday. Thus, such evidence lacks probative
value as to the resolution of issues in this case.
Waller testified to the effect that on the same afternoon
that Scott took time off for jury duty,3 he heard Sandra
Burton ask her foreman for time off to have her car fixed,
that Burton took such time off, and that Burton did not
return to work that afternoon. There was no testimony to
reveal what the foreman told Burton, nor was there any
evidence to reveal the surrounding circumstances. Further,
there was no evidence to reveal when the "repairs" were
completed on Burton's car. Under such circumstances, the
testimony has no probative value as to the resolution of
issues in this case.
6. Plant Manager Hink testified in effect that because of
production needs he told employees who were subpenaed to
appear and give testimony at 10 a.m . on October 3, 1973,
in an NLRB unfair labor practice hearing, to report to work
at 7 a.m. on such date, that they would be released in time
to go to the hearing and to report back to work after said
hearing. Plant Manager Hink also testified that he instruct-
ed certain supervisors to relate the same information to
other similarly subpenaed employees.
Evidence was offered for the purpose of supporting the
Respondent's contention that Hink's alleged motivation re-
lating to production needs was substantiated by facts. Thus,
testimony was offered to reveal that Respondent's normal
daily absenteeism was approximately 10 to 12 percent. Hink
referred to the fact that Waller and Burton were out of the
same department which had eight employees, that thus 25
percent of such department would be absent. No one pre-
sented evidence to reveal the precise number of employees
who were employed by the Respondent. Nor did anyone
present evidence to reveal the precise number of employees
who were absent from work on October 3, 1973. The facts,
relating to the employees who were subpenaed for the hear-
ing and the number of employees in the departments in
which such employees worked, reveal that seven employees
were absent (because of attendance as subpenaed witnesses
at the October 3, 1973, NLRB hearing) and that the employ-
ee complement in their departments totaled between 64 and
67. Thus, the absenteeism rate for such employees would
only be revealed to be at the rate of 10 to I 1 percent. Such
rate is within the bounds of normal absenteeism at the
Respondent's plant.
The facts establish that employee Waller, during the week
J There was no testimony or evidence to reveal how Waller knew that the
afternoon that Burton took time off was the same afternoon that Scott took
time off for jury duty
of October 3, 1973, was working regularly from 7 a.m. to
5:30 p.m. Thus, Waller was working 2 hours of overtime
daily. Employee Patterson had worked in addition to a reg-
ular 40-hour work week, 4 hours of overtime on Saturday
for the week of September 9, 1973, 4 hours of overtime on
Saturday for the week of September 18, 1973, and 4 hours
of overtime on Saturday for the week of September 30, 1973.
Excepting with respect to the scheduling of Waller to
work 2 hours daily overtime during the week of October 3,
1973, there is no evidence that any other employee was
scheduled to work overtime during said week. Nor is there
any evidence that any employee was scheduled to work
overtime on the oncoming Saturday. Hink testified to the
effect that he did not know whether all of the employees (in
Waller's and Burton 's department) were assigned to work in
said department on October 3, 1973.
Considering Hink's testimony as a whole, I was not im-
pressed that he was a frank, forthright, and truthful witness.
Hink's testimony as to why it was "urgent" to require em-
ployees to return to work was couched in generalities and
not specifics. If Hink had been concerned about production
needs on October 3, 1973, 1 am persuaded that his actions
on such a date would have been different. Thus, instead of
hardnose directives, I am persuaded that he would have
revealed to the employees a conciliatory and accommodat-
ing attitude . Instead of directives, Hink would have sought
to help the employees solve transportation problems. Fur-
ther, I am persuaded that he would have done that which
is normally done, that he would have gone through counsel
and attempted to work out accommodations with the party
who had subpenaed the witnesses and that resulting solu-
tions would have been arrived at.4
In any question of an employee being absent from work,
there would appear to be a truism that a production prob-
lem existed to some degree. The questions presented are
whether there existed unusual production needs, and wheth-
er Hink was motivated by such in his directions to employ-
ees to "report to and back to work" on October 3, 1973. In
my opinion, the sum of facts do not establish that there were
unusual production needs for the Respondent on October
3, 1973, nor do they establish that Hink was motivated by
"production needs" to direct the employees "to report to
and back to work" on October 3, 1973.
7. Counsel for the General Counsel subpenaed employ-
ees James P. Freeman, Lucions Waller, Larry Burton, Na-
than Goodman, Anthony White, and Timothy Patterson as
witnesses to appear at 10 a.m. on October 3, 1973, for an
NLRB hearing scheduled in Case I I-CA-5387, involving
the Respondent in this case.5
8. On October 2, 1973, employees Freeman, Waller, Pat-
What Hink told the employees and instructed supervisors to tell employ-
ees is set forth later herein
5 The record reveals that an employee named Charlie Jennings was also
subpenaed for the same hearing , that Jennings was referred to as being on
the in-plant organizing committee in the Union's letter of April 23, 1973, to
the Respondent , and that the facts relating to Jennings ' attendance at the
hearing and reprimand thereafter appear similar to the facts relating to
White Jennings was named in the charge filed in this case The complaint,
however, does not allege unlawful conduct relating to the Respondent's
reprimand of Jennings Jennings , however, was referred to in the testimony
of this proceeding 1 note that the General Counsel has not contended in any
way by argument or brief that the Respondent has engaged in unlawful
conduct directed to Jennings
NEPTUNE METER COMPANY
terson, Burton, Goodman, White, and apparently Jennings,
told Respondent's supervisors in effect that they had re-
ceived subpenas and were required to appear as witnesses
in the NLRB unfair labor practice hearings at 10 a.m. on
October 3, 1973 (Case 11-CA-5387). The hearing was
scheduled to take place at the courthouse in Greenwood,
South Carolina.
Briefly stated, the facts with respect to the conversations
between Respondent's supervisors and the employees may
be set forth as follows:
(a) Freeman told his supervisor that he had been subpe-
naed as a witness for the October 3, 1973, NLRB unfair
labor practice hearing at 10 a.m. Freeman's supervisor
asked Freeman if he would like to work from 7 a.m. to 9 a.m.
Freeman indicated to his supervisor that he would work
from 7 a.m. to 9 p.m. on October 3, 1973.
(b) Anthony White told his supervisor that he had been
subpenaed to court at 10 a.m. on October 3, 1973. White's
supervisor indicated to White that this was all right:6
(c) Waller told his supervisor about having a subpena to
go to the NLRB hearing on October 3, 1973. What occurred
is revealed by the following credited excerpts from Waller's
testimony.
Q. What, if anything, did you tell Marsan that day?
A. I told him that I had a subpena to be in court
tomorrow morning at 10:00 o'clock and I asked him if
I could have the day off, and he stated to me "what had
I done"; and he said, "well, if you have got to go, you
have got to go."
And then approximately ten or fifteen minutes later,
he came back and tells me 6'Stu Hink says I have to
report to work tomorrow morning at 7:00 o'clock and
work until 9:15 or 9:30 and get dressed to go to court."
And I informed him to inform him, to Mr. Hink, that
I wasn't intending to wear a suit to court; and at the
machine that I ran, I had a kerosene and oil spray
mixer, and it got on everything; and I told him that if
I wore my suit out there that I would get all greasy and
messed up, and I wouldn't be able to wear it to court.
And so I suppose that he told Mr. Hink. Mr. Hink
came out then and told me, "Lucions, I understand
that you have a subpoena to go to court tomorrow."
I said, "Yes, I do."
He said, "well, do you know that you are supposed
to report to work in the morning at 7:00 o'clock and
return after court is over with? "
I said, "Mr. Hink, I am asking for a day off to go to
court for this purpose."
And he said, "We need you here."
And then I said, "can I change clothes in the locker
room? " And my locker room was filthy. It wasn't big
enough to hold a suit to hang up in it; and he also said,
"well, we expect you back to work in the morning, do
you understand? "
I heard what he was saying but I didn't understand
6 Apparently the circumstances of Jennings ' arrangements to attend the
October 3, 1973, NLRB unfair labor practice hearing were similar to those
of White.
91
why that I would have to report to work in the morning.
He said, "if you don't report, it will be an unexcused
absence, do you understand that? "
I said, "yes, I understand that, that it will be an
unexcused absence."
And then he asked me again would I come in and I
said I wasn't going to assure him that I was going to
come in and I wasn't going to assure him that I wasn't.
Hink 's testimony as to what occurred in his conversation
with Waller is essentially the same as Waller's. Hink 's testi-
mony, and I credit it, also was to the effect that he told
Waller to bring his subpena on the morning of October 3,
1973, that the Respondent needed it for its records.
(d) Burton's credited testimony reveals essentially what
occurred when he told Respondent 's supervisors about his
need to be off to attend the October 3, 1973, NLRB unfair
labor practice hearing as a subpenaed witness. Excerpts
from such testimony are herein set out.
A. About Wednesday, I told Joe Marsan, I phoned
him that I had to go to court. He say, "well, if you have
to go, you have to go" and then about fifteen minutes
later, Stu Hink, the production supervisor told me that
I had to come to work at 7:00 A.M. to leave about 9:30.
Q. What, if anything, did you have to say to that?
A. Well, I told him that I couldn't promise anything.
Q. What, if anything, did he say that you would
receive if you did not report to work?
A. Well, he said that the only action to be taken
against me would be an unexcused absence.
Burton on cross-examination also testified to the effect
that Hink told him that he was to return to work after the
unfair labor practice hearing on October 3, 1973.
Hink, the production manager referred to by Burton,
credibly testified to the effect that he told employees to
bring their subpenas with them on October 3, 1973, since the
Respondent needed the information for its records.
(e) Goodman's credited testimony essentially reveals
what occurred when he reported to his supervisor his need
to be off on October 3, 1973, because he had been subpe-
naed as a witness for the NLRB hearing. Excerpts from such
testimony are herein set out.
A. On the afternoon of October 2nd, about 2:25 or
2:30, I informed my supervisor, John Barrett, that I had
to appear in court the next day.
Q. What, if anything, did the supervisor say?
A. He asked me if I had killed anybody, and I told
him "no, that I had received a subpena to appear here
in court and that I was not allowed to discuss the case
with anybody."
Q. Did any other boss man say anything to you?
A. Well, after Barrett left the production manager
came back to me, and I was running the lapping ma-
chine and he said "Barry informed me that I had to
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear in court the next day," and he wanted to see the
subpena. I told him that I did not have it with me; and
that I would report for work the next day.
Goodman also credibly testified to the effect that Hink
told him that he was to report back to work when the unfair
labor practice hearing was over.
(f) Patterson 's credited testimony reveals what occurred
when he reported to his supervisor that he had a subpena
and had to be off for the NLRB hearing on October 3, 1973.
Excerpts of such testimony are herein set out.
Q. Did you tell your supervisor that you were subpe-
naed?
A. Yes. I told my supervisor, Charles Surrett, at
about 1 o'clock, and he told me, "Did I have the subpe-
na with me? " And I said "No, I left it at home."
And he told he that if he could see the subpena, "if
I could not see the subpena, it would be an unexcused
absence" and then he said "okay"; and then about 3:00
o'clock, he came back and told me that he wanted me
to come to work at 7:00 o'clock and I think leave at
9:00 or 9:30.
And I told him that I wanted to wear a suit; I don't
want to get sweaty wearing a coat.
And he told me "use a shower", and I explained to
him that the shower was filthy.
And he said, "I want you to come in, and if you don't
come in, it will be an unexcused absence", and that was
it.
Patterson also credibly testified to the effect that Supervi-
sor Surrett told him to report back to work after the October
3, 1973, NLRB hearing was over.
9. On the morning of October 3, 1973, Freeman reported
to work at 7 a.m., worked until 9, and at 10 a.m. was at the
courthouse in Greenwood, South Carolina, for the unfair
labor practice hearing in Case l i-CA-5937, scheduled to
commence at 10 a.m.
Goodman reported to work at 7 a.m. Around 8:30 a.m.,
Goodman spoke to Plant Manager Hink and Supervisor
Barrett about clocking out at 8:30. Plant Manager Hink and
Barrett told Goodman that he could clock out at 9:15 a.m.
Goodman told Hink and Barrett that his wife was picking
him up at 9 a.m., that he had to take a shower and change
his clothes. Hink told Goodman to stay at work until 9:15
a.m. Goodman told Hink and Barrett that he was clocking
out at 8:30 a.m. Barrett, however, told Goodman that he
could do so
Goodman took a shower, changed to dress clothes, and
was taken by his wife by car to the October 3, 1973, 10 a.m.
scheduled NLRB hearing.
Burton, White, Waller, Patterson, and apparently Jen-
nings did not report to work for the Respondent on the
morning of October 3, 1973. The facts reveal that neither
White nor apparently Jennings had been given any instruc-
tions about reporting to work for the first several hours of
October 3, 1973 (7 to 9 a.m.).
Burton , White, Waller, Patterson, Jennings, Freeman,
and Goodman were all present at the Greenwood court-
house, at 10 a.m ., on October 3, 1973, for the scheduled
unfair labor practice hearing in Case 11-CA-5387
10. The General Counsel, Respondent' s counsel, and
representatives of the charging parties negotiated a settle-
ment for disposition of the issues in Case 11-CA-5387 on
October 3, 1973. Said settlement was of the type that is
known as an informal settlement agreement subject to ap-
proval by the Regional Director. It included a clause where-
by the Respondent did not admit having engaged in unfair
labor practices. It included provisions whereby the Respon-
dent agreed not to engage in certain acts.
It appears that the settlement discussions and mechanical
preparations and execution of the settlement agreement
lasted from before or around 10 a in to around 11:50 a.m.
At such time the General Counsel (a Mr. Glenn Bailey)
released the subpenaed witnesses from their subpenas.
Present for the Respondent at the scheduled hearing and
settlement discussions and agreement were Allison, counsel
for the Respondent, and W. P. Thomas, Respondent's In-
dustrial Relations Manager.
Before or around the time that the parties were executing
the agreed settlement , Allison, Respondent's counsel, spoke
to Williams, the union's representative, about the
Respondent 's desire to have the subpenaed employees re-
port to work. This conversation took place in the presence
of the counsel for the General Counsel (Glenn Bailey) and
the subpenaed employees. Apparently W. P. Thomas,
Respondent's Industrial Relations Manager, was also pre-
sent.
Allison in effect asked Williams to have the subpenaed
employees report to work after the case was settled, by
1 p.m. Williams replied in effect that he could not promise
anything, that the employees were subpenaed by the Gener-
al Counsel, and that he (Williams) wanted to take the em-
ployees to lunch. Allison told Williams in effect to take the
employees to lunch but that Respondent wanted the em-
ployees to report to work at 1 p.m. or 1:30 p.m. This was
in apparent response to Williams' statement that he wanted
to take the employees to lunch.
The result of Allison's and Williams' conversation was
that Allison had requested Williams to have the subpenaed
employees to report to work by 1 p.m. or 1:30 p.m., and
Williams had given no assurances that such would be done.
The very nature of Allison 's discussions with Williams, in
the presence of the subpenaed employees and apparently in
the presence of Thomas, and without either Allison or
Thomas speaking directly to the employees, reveals that the
Respondent did not instruct but requested the subpenaed
employees to return to work at I p.m. or 1:30 p m.
Allison spoke to Bailey (Counsel for the General Coun-
sel) and requested that the counsel for the General Counsel
release the subpenaed employees from their subpenas as
soon as possible so that they could report to work. Bailey
released the employees from their subpena 7 around 11:50
7 The overall testimony of the General Counsel's witnesses indicates that
Bailey did not precisely say, "You are released from your subpena " The facts
are clear that Bailey let the employees know that he had no further need of
them with reference to the giving of testimony in the case that had been
settled.
NEPTUNE METER COMPANY 93
a.m. and told the employees that the .Respondent wanted
them at work by 1 p.m.
The subpenaed employees (Burton , Freeman , Waller,
White, Patterson, and Goodman) had lunch with the union
representatives. Later the said employees went to the union
hall and discussed (with the union representatives ) the filing
of other unfair labor practice charges. None of the employ-
ees reported to work at the Respondent on the afternoon of
October 3, 1973. Respondent 's regular shift time for the
employees ended at 3:30 p .m. Employee Waller's regular
shift time ended at 3:30 p .m. However, during the week of
October 3 , 1973, Waller had been working overtime regu-
larly until 5:30 p.m.
11. On October 4, 1973 , employees Waller, Burton, Pat-
terson, Freeman, Goodman , and White reported to work at
7 a.m. at Respondent"s plant.
Around the starting time for work, the Respondent had
each of the above-named employees and Jennings come
into an office for a conference . The conferences were held
individually for each employee . At these conferences Plant
Manager Hink , Personnel Manager Neeley , and each
employee 's foreman were present for the Respondent.
The conferences with Waller , Burton, Patterson, and
Goodman were essentially similar in nature.8 Hink related
to such employea -that either he or their foreman on Octo-
ber 2, 1973, had told them to report to work before the
hearing on October 3, 1973 , that they would be released in
ample time to go to the hearing , and that he or their foreman
on October 2, 1973 , had told them that they were to report
back to work after the October 3, 1973 , hearing was over.
Hink told Burton that he had been told to bring his subpena
in on the morning of October 3, 1973 , and that he hadn't.
Hink or Neeley asked Waller , Patterson , and Burton why
they hadn't reported to work on the morning of October 3,
1973, and why they hadn 't returned to work after they had
been released from the "hearing." 9
Waller, Burton , Patterson, and Goodman told the super-
visors in effect that they had asked for the day off, that after
the hearing was over, they had met with counsel (reference
to counsel for the General Counsel ), that they had had
lunch , that they had had to take care of subsequent business
at the union hall , that they did not have their work clothes
with them, that they had transportation problems concern-
ing going home and getting dressed and back to work, and
that under the circumstances it was too late to go back to
work when they finished their business at the union hall
around 2 : 30 or 3 p.m.10
Production Manager Hink or Neeley told the individual
employees that they were being suspended until October 9,
1973, that they were suspected of being insubordinate, that
the Respondent was going to look into the matter further,
B Waller, Burton, Patterson, and Goodman testified with respect to such
conferences. Their testimony contained some specific detail but did not
appear to reveal the complete details. Hmk testified with general reference
to complete details but not in a specific way. The facts are based upon a
composite of such testimony, the logical consistency of all of the evidence,
and a fair inference therefrom.
9 There was no hearing actually held, but the reference was to release from
subbenas for the heating scheduled for October 3, 1973.
i Respondent's regular shift ended at 3:30 p in.
and that each employee could submit in writing or bring
forth personally any other evidence on the matter he wished
before October 9, 1973.
A somewhat similar conference was held with Freeman
on October 4, 1973. Present at the conference for the Re-
spondent were Plant Manager Hink, Personnel Manager
Neeley, and Foreman Halpin. As a result of the conference,
the Respondent gave Freeman a warning (written copy
thereof in Respondent's files) for not reporting back to work
after the October 3, 1973, NLRB scheduled hearing. What
occurred at the conference is revealed by the following cred-
ited excerpts from Freeman's testimony.
Q. What did Mr. Hink say?
A. He asked me why I didn't come back to work and
I told him.
Q. What did you tell him?
A. I told him after we finished lunch, that we went
out into the hall; that it was pretty late; and we decided
that it was too late to go back because we couldn't
make it, that it was too late for us to go back to work;
and he told us that if it was even fifteen minutes left,
that theywere expecting us to come, this I didn't know.
A. Yes, sir.
Q. Did he say why he was giving you a warning?
A. No, he just said that he was giving me a warning
for not going back to work.
A somewhat similar conference was held by the Respond-
ent for Andrew White on October 4, 1973. What occurred
is revealed by the following credited excerpt from White's
testimony.
A. On October 4, I returned to work at 7:00 o'clock.
When I got to the plant entrance, Stan Neeley; Mr.
Stan Neeley was waiting at the door and told us that
we had to meet in the conference room, and he called
me in to discuss why we didn't come back to work the
day before.
Stan Neeley, Stu Hink, and my supervisor, Vinnie
Fink, was in the office. And Stu, Mr. Stu, he told me,
asked me, was I told to come to work that morning, and
I told him "no."
He asked me did any of the supervisors or anybody
tell me to come to work in the afternoon, and I told him
"no."
And so he said since I wasn't told to come to work
that morning or the afternoon, that he would give me
one more chance, and the next chance they had, they
would have to terminate me.
Q. He said that if anything like that happened again
that he would have to terminate you?
A. Right.
Q. Did you get a written reprimand put in your fold-
er?
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No, not that I recall.
Q. All right.
MR CONNOR. Will counsel for the Respondent stipu-
late that this man did get reprimand for his file?
MR ALLISON We will accept his answer
MR CONNOR Well, you know, you can look at the
file. I am asking you for a stipulation on that.
MR ALLISON He received one.
12. Waller credibly testified to the effect that the ques-
tion of "termination" arose in a conversation between him
and Neely on October 4, 1973. Such conversation is re-
vealed by the following credited excerpts from Waller's tes-
timony.11
Now prior to October 3rd, or October 4th, Mr. Nee-
ley gave us our checks which were due that week, and
I asked him "were we getting vacation pay?"
Mr. Neeley stated, "No. You get that stuff when you
get terminated " He made that statement twice.
And I said, "You mean we are going to be terminat-
ed?"
And he said, "No, you are not going to be terminat-
ed. You are putting words into my mouth "
Neeley's testimony as to what he told Waller about his
money and termination is revealed by the following excerpts
from Neeley's testimony.
A. Yes, sir, Mr. Waller asked me at that particular
time if this was all the money due him, the vacation
money, the money for the week in question. I would
like to make a remark here that we hold back one week
on our payroll. The check that I gave them on the
fourth was for the preceding week ending Sunday, Sep-
tember 30th; and at that time Mr. Waller asked me if
all of his pay was in there; and I told him that he would
not receive the balance of his pay until he was terminat-
ed; and he asked me again; he asked me at that time
if he was terminated; and I said, "No, sir, you will not
receive your pay until you are terminated."
And at that point, he questioned me and said, "Are
we terminated?"
I said "No, sir. What I mean is that you will not
receive your pay; you will receive your final pay only
if you are terminated.
i--am persuaded that Neeley's reference to receiving the
vacation money "when you get terminated" was an uninten-
tional but meaningful slip of the tongue. It is clear that
under ordinary circumstances employees would receive
their vacation money at an appropriate time other than at
the time of "termination." The coupling of the references to
"vacation money" and termination reveals that Neeley be-
lieved or knew that the termination of Waller was a virtual
certainty.
13. Between October 4, 1973, and October 9, 1973, em-
ployees Waller, Burton, Patterson and Goodman did not
11 Neeley testified essentially to the same effect
present any additional evidence to the Respondent relating
to the events of October 3, 1973.12
14. The Respondent, through its attorneys, ascertained
that Bailey (Counsel for the General Counsel) had released
the subpenaed employees from their subpena at 11:50 a.m.
on October 3, 1973.
15. On October 9, 1973, the Respondent discharged em-
ployees Waller, Burton , Goodman, and Patterson. What
occurred at the time of their discharges is revealed in effect
in a representative way by the conversation that Thomas,
Respondent's industrial relations manager, had with Wal-
ler. Such conversation is revealed by the following excerpt
from Goodman's credited testimony.
A. On October 9, we went back for our last check,
and at this time, I was the first one there, and I went
into the cafeteria and saw Stan Neeley, and he took me
into his office, and at that time, he bought me a cup of
coffee, and I waited a few minutes for Mr. Thomas.
Mr. Thomas came in, and he said, "Lucions, we fin-
ished the investigation. We have decided because you
wilfully disobeyed company supervisors' orders that we
are going to have to terminate you"; and he had a smile
on his face, as he was saying it.
16 Respondent's termination checks for Waller, Burton,
Patterson, and Goodman were dated October 4, 1973.13
Contentions and Conclusions
The General Counsel contends that the totality of the
facts reveal that Respondent discriminatorily issued repri-
mands to Freeman and White on October 4, 1973, discrimi-
natorily suspended Waller, Burton, Patterson, and
Goodman on October 4, 1973, and discriminatorily dis-
charged Waller, Burton , Patterson, and Goodman on Octo-
ber 9, 1973, because such employees engaged in union
activities and were subpenaed as witnesses for an unfair
labor practice hearing on October 3, 1973, and that such
conduct was and is violative of Section 8(a)(4), (3), and (1)
of the Act.
The Respondent contends that the reprimands, suspen-
sions, and discharges of the employees involved herein were
for cause (for willful disobediance of supervisors' orders),
that the Respondent was not discriminatorily motivated in
such action, and that the question of Respondent's conduct
relating to subpenaed employees is one of "accomodation."
Considering all of the facts, I am persuaded that the
preponderance of all of the facts requires a finding that
Respondent's conduct in reprimanding Freeman and White
on October 4, 1973, in suspending Waller, Burton, Patter-
12 The overall facts reveal that they had essentially presented all that they
knew as to what had transpired on October 2 and 3, 1973
13 Neeley testified that the decision to terminate was made on October 9,
1973, that the date October 4, 1973, was coincidental, that he had ordered
the checks prepared on October 4, 1973, to insure that the checks were ready
if a decision to terminate were made , that he had to do so because South
Carolina law required termination checks to he issued within 48 hours of the
termination, that if normal procedures were used, that as of October 9, 1974,
printed checks would not have been available until Thursday (October 11,
1973) 1 find it hard to believe that Respondent could not have issued checks,
normal procedure or otherwise, on October 9, 1973, if it had so desired In
any event , considering Neetey's remarks to Waller about termination, I am
persuaded that Neeley considered that the termination of the employees was
virtually certain
NEPTUNE METER COMPANY
son, and Goodman on October 4, 1973, and in discharging
Waller, Burton, Patterson, and Goodman, on October 9,
1973, was discriminatorily motivated because of their union
activity and their being subpenaed as witnesses for the un-
fair labor practice hearing on October 3, 1973. Such conduct
is violative of Section 8(a)(4), (3), and (1) of the Act. It is
so concluded and found.
The facts similarly reveal, by Thomas' remarks to Good-
man in July 1973, Respondent's hostility toward the Union
and the fact that employees' support for the Union would
result in an attitude of reprisal by the Respondent.
The Respondent argues that the Respondent's obligation
with respect to employees who are subpenaed as witnesses
is merely one of "accomodation." Respondent's obligation,
with respect to subpenaed employee witnesses, is one of
noninterference, nonrestraint, and noncoercion as to such
employees' right and obligation to attend scheduled hear-
ings as subpenaed witnesses, and one of nonreprisal to such
employees because they are subpenaed witnesses.
It is true that, as a practical matter, accomodations are
often worked out between counsel, witnesses, and the par-
ties with respect to time for attendance of witnesses at
NLRB hearings so as to minimize the time that employees
are away from work. Such accomodation arrangements are
normally handled in such a way that counsel who has sub-
penaed witnesses is assured of their attendance,-the witness-
es are assured that the arrangements are consistent with
their obligations as witnesses, and related problems such as
transportation, are solved. 14
Subpenaed employees have the absolute right and obliga-
tion to appear as witnesses at a scheduled NLRB hearing in
accordance with the terms of the subpena. By necessary
implication, such right also covers the necessary arrange-
ments and travel to and from said scheduled hearing.
Rink's instructions to Waller, Burton, and Goodman and
Surrett's instructions to Patterson were to the effect that the
employees had to report to work on the morning of October
3, 1973, at 7 a.m. and work until after 9 a.m. of that day
before going to the scheduled hearing. Hink's and Surrett's
further instructions were to the effect that such employees
were to return to work after the NLRB hearing on October
3, 1973. Such instructions by Respondent's supervisors in
and of itself constituted an interference with the employees'
right and obligation to be at the hearing at 10 a.m. on
October 3, 1973, as directed by their subpenas. The precise
distance of Respondent's plant from the Greenwood court-
house is not revealed.15 It is clear, however, that the
Respondent's instructions created a burden upon the em-
ployees as to transportation arrangements and as to ar-
rangements about clothes. Thus, the employees, who
desired to be presentable and in dress clothes at the hearing,
would have had to appear at the hearing on October 3, 1973,
in work clothes, or would have to bring their dress clothes
to work, shower if necessary, change clothes at the plant or
elsewhere and concern themselves as to where to keep their
extra clothes while at the hearing, and would have to be
concerned about getting to the hearing by 10 a.m. on Octo-
14 See First National Bank of New Smyrna Beach, 204 NLRB No. 11.15 Respondent's exhibit relating to an unemployment hearing has testimo-
ny to the effect that the plant was 6 miles from the courthouse.
95
ber 3, 1973. The employees in composite effect adverted
their supervisors to their concern about transportation,
about not wanting to appear in dirty work clothes, the con-
cern that the "lockers" were too small to properly keep their
clothes,16 and that they considered the shower facilities
dirty. Further, with,respect to the Respondent's instructions
to return to work after the hearing, were the employees to
follow such instructions, such employees would have had to
concern themselves during the hearing with respect to where
to keep their extra clothes, and after the hearing with respect
to where to change clothes and transportation back to the
plant.
Considering all of the foregoing, I am persuaded and
conclude and find that Respondent's hard-nosed instruc-
tions to the subpenaed employees as to reporting to work at
7 a.m. and working until 9 or thereafter, and to returning
to work after the hearing, interfered, restrained, and coerced
such employees as to their attendance as subpenaed wit-
nesses at the scheduled October 3, 1973, unfair labor prac-
tice hearing. Considering the foregoing, the Respondent's
awareness of the employees' problems concerning transpor-
tation, clothes, and shower facilities, the evidence of
Respondent's hostility toward the Union and expression of
reprisal because of union activity, I am persuaded, and
conclude and find that Respondent's insistence upon such
instructions revealed an attempt to interfere with, restrain,
and coerce such employees because Respondent was dis-
criminatorily motivated against such employees because of
their union beliefs and because they were subpenaed wit-
nesses.
Other than prehearing instructions given to the employ-
ees about reporting to work before the October 3, 1973,
NLRB hearing and reporting back after the hearing, there
were no other instructions in such regard. Respondent's
counsel and Thomas at the site of the hearing spoke to the
union representative and to the General Counsel about
wanting the employees to report back to work. Such con-
duct does not constitute giving the employees orders or
instructions about reporting back to work. If the Respond-
ent had intended to give orders to the employees at the
hearing as to returning to work, it would appear that the
employees could have been spoken to directly and in a
simple way. Further, if viewed as instructions or orders,
considering transportation and clothes problems, such in-
structions or orders would similarly interfere with the em-
ployees' rights and obligations under the NLRB subpena.
As previously indicated, Respondent contends in effect
that its orders and instructions about reporting to work
before the October 3, 1973, hearing, and reporting back to
work after the hearing were because of production needs.
As previously indicated, I reject such contention. Were the
Respondent to have had such production needs, I am per-
suaded that its efforts would have been conciliatory in na-
ture and would have been accompanied by offers of a
helpful solution. Further, I find the immediate suspension
of such employees, prior to the alleged investigation of all
facts, to be indicative that production needs were not severe.
The Respondent very well may have thought that the
16
The credited testimony revealed that the shower facilities were dirty and
the lockers too small to properly hang the employees' clothes in.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subpenaed employees could have returned to work before
the shift ended at 3:30 p.m.17 on October 3, 1973. The facts
are clear, however, that Respondent was motivated by the
employees' failure to abide by the instructions concerning
reporting to work at 7 a.m. and working until 9 a .m. or later,
and reporting back after the hearing, and not by a fine
distinguishment of simply not returning to work by 3:30
p.m. or 5:30 p.m. (as to Waller). In sum , the facts reveal that
the Respondent discriminatorily suspended Waller, Burton,
Goodman, and Patterson, on October 4, 1973, and discrimi-
natorily discharged such employees on October 9, 1973,
because of their union activity and because they were sub-
penaed as witnesses at an NLRB unfair labor practice hear-
ing on October 3, 1973. Such conduct is violative of Section
8(a)(4), (3), and (1) of the Act. It is so found and concluded.
For substantially similar reasons, the facts reveal that the
Respondent discriminatorily reprimanded Freeman and
White (with written reprimands in Respondent's file). Un-
like the other employees, White was neither told by a super-
visor to report to work on the morning of October 3, 1973,
or to report back after the hearing. Freeman reported to
work on the morning of October 3, 1973, and worked. Free-
man was not told to report back to work after the hearing
on October 3, 1973
For the same reasons previously set forth, Respondent's
Counsel and Thomas did not order or instruct the employ-
ees to report back to work. And if viewed as instructions or
orders, to require the employees to report back by I p.m. or
1:30 p.m. would constitute interference with, restraint, and
coercion of subpenaed witnesses.
Hink in his testimony asserted that the reason for the
reprimands to Freeman and White was because said em-
ployees might have been confused as to the instructions to
return to work. Respondent thus operated on a basis as if
instructions or orders had been given to the employees to
return to work. As previously indicated, such orders or in-
structions as given by the Respondent to the subpenaed
employees were discriminatorily motivated. For such rea-
son, the facts reveal that the Respondent discriminatorily
reprimanded Freeman and White because of their union
activity and because they were subpenaed as witnesses.
Such conduct is violative of Section 8(a)(4), (3), and (1) of
the Act. It is so concluded and found.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Employer's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that the Respondent terminated the em-
17
Or 5. 30 p m as regards Waller 's work
ployment of Lucions Waller, Larry Burton, Nathan D.
Goodman, and Timothy Patterson on October 4, 1973, in
violation of Section 8(a)(4), (3), and (1) of the Act, the
recommended Order will provide that Respondent offer
each reinstatement to his job, and make each whole for loss
of earnings within the meaning of and in accord with the
Board's decisions in F W Woolworth Company, 90 NLRB
289; and Isis Plumbing & Heating Co, 138 NLRB 716,
except as specifically modified by the wording of such rec-
ommended Order
Having found that Respondent placed written repri-
mands in the personnel files of Anthony White and James
Freeman on October 4, 1973, in violation of Sections
8(a)(4), (3), and (1), it will be required that such reprimands
be expunged from such files.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Neptune Meter Company, the Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. By terminating the employment of Lucions Waller,
Larry Burton, Nathan D Goodman, and Timothy Patter-
son on October 4, 1973, because such employees had en-
gaged in union activity and had attended a scheduled
NLRB hearing as subpenaed witnesses, the Respondent has
violated Section 8(a)(4), (3) and (1) of the Act.
4. By the foregoing, thereby interfering with, restraining,
and coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act. Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) of the Act
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
Respondent, Neptune Meter Company, its officers,
agents, successors, and assigns shall-
1. Cease and desist from:
(a) Discharging, reprimanding, or otherwise discriminat-
ing against employees in regard to hire or tenure of employ-
18 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
NEPTUNE METER COMPANY
meet, or any term or condition of employment because of
their union or protected concerted activities, or because
such employees attend a scheduled NLRB hearing as sub-
penaed witnesses.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer to Lucions Waller, Larry Burton, Nathan D.
Goodman, and Timothy Patterson immediate and full rein-
statement to their former positions or, if such positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights previously en-
joyed, and make each whole for any loss of pay suffered by
reason of the discrimination against each in, the manner
described above in the section entitled "The Remedy."
(b) Expunge from their records any reprimands against
Anthony White or James Freeman which have been placed
in such records by reason of the discrimination against them
because of their union or protected activity, or because they
were subpenaed witnesses at an NLRB hearing.
(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, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms and this
recommended Order.
(d) Post at Respondent's plant, at Greenwood, South
Carolina, copies of the attached notice marked "Appen-
dix." 19 Copies of said notice, on forms provided by the
Regional Director for Region 11, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, aad be maintained by Respond-
ent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 11, in writ-
mg, within 20 days from the date of receipt of this Order,
what steps the Respondent has taken to comply herewith.
The allegations of violative conduct not found herein are
dismissed.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
97
WE WILL offer to Lucions Waller, Larry Burton, Na-
than D . Goodman, and Timothy Patterson immediate
and full reinstatement to their former positions or, if
such positions no longer exist , to substantially equiva-
lent positions without prejudice to their seniority or
other rights previously enjoyed, and make each whole
for any loss of pay suffered by reason of the discrimina-
tion against each in the manner described above in the
section entitled "The Remedy."
WE WILL NOT discharge , reprimand, or otherwise dis-
criminate against employee in regard to hire or tenure
of employment , or any terms or condition of employ-
ment because of their union or protected concerted
activities , or because such employees attend a sched-
uled NLRB hearing as subpenaed witnesses.
WE WILL expunge from our records any reprimands
against Anthony White and James Freeman which
have been placed in such records by reason of the
discrimination against them because of their union or
protected activity , or because they were subpenaed wit-
nesses at an NLRB hearing.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act.
All our employees are free to become or remain, or re-
frain from becoming or remaining members of any labor
organization.
NEPTUNE METER COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with is provisions may be directed
to the Board's Office, 1624 Wachovia Building, 301 North
Main Street , Winston -Salem, North Carolina 27101, Tele-
phone 919-723-2300.