North Electric Co., Inc.

National Labor Relations Board - Board Decisions

May 21, 1969

176 N.L.R.B. 1 (N.L.R.B. 1969)

NORTH ELECTRIC CO.
North Electric Company , Incorporated and John G.
Lewis. Case lO-CA-7317
May 21, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 22, 1968, Trial Examiner Eugene
E. Dixon issued his Decision in the above -entitled
matter , finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner ' s Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the Complaint, and
recommended that such allegations be dismissed.
Thereafter , the General Counsel and the Respondent
filed exceptions and supporting briefs, and the
Respondent also filed a brief in reply to the General
Counsel ' s exceptions.
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.
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 briefs, and
the entire record ' in this case, and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner , to the extent consistent with the
Decision herein.
We find , in agreement with the Trial Examiner,
that the Respondent violated Section 8(a)(l) of the
Act by interrogating its employees concerning their
union activities , threatening employees with reprisals
for supporting a union , and by creating the
impression that the employees ' union activities were
being placed under surveillance by the Respondent.
We find merit , however, in the Respondent's
exception to the Trial Examiner ' s finding that an
additional violation of Section 8(aXl) ensued from
the threat made by Security Officer Harold Combs
to employee James Lewis concerning the
Respondent 's intent to rid itself of employee John
G. Lewis because of the latter's union activities. No
allegation concerning this threat was made by the
General Counsel in the complaint , and we therefore
'On January 6, 1969, the Respondent filed with the Board a motion to
strike, contending that certain findings of the Trial Examiner concerning
the Respondent 's willingness to use pretext to rid itself of union adherents,
was in no way relevant , germane or material to his Decision . We disagree
with the Respondent 's contention , and in view of our Decision herein the
motion to strike is denied.
do not adopt the Trial Examiner ' s finding of a
violation of Section 8(a)(1) based on this incident.
We shall , nevertheless, consider the statements made
by Combs to James Lewis as evidence tending to
shed light on the Respondent ' s motivation in
discharging John G . Lewis.
We also find merit in the General Counsel's
exception to the Trial Examiner ' s failure to find that
John G . Lewis was discharged by the Respondent
for his union activities in violation of Section 8(a)(3)
and (1) of the Act. As found by the Trial Examiner,
when John G. Lewis made written application for
employment with the Respondent on March 10,
1967, he stated that he left his prior employment
with Beaunit Mills on March 1, 1967, to attend
school . The facts are that Lewis was suspended by
Beaunit Mills on March 9, 1967, but was not
discharged until March 13, 1967, after he had made
application for employment with the Respondent.
Moreover , as was known to the Respondent at the
time it discharged Lewis , his termination at Beaunit
Mills was subsequently revoked as a result of an
arbitration proceeding , and in May 1967, while
working for the Respondent, Lewis was offered
reinstatement by Beaunit Mills. While the Board
does not condone Lewis ' lack of candor in filling out
his application for employment with the
Respondent, we cannot , upon the record as a whole,
adopt the finding that this was the motivating cause
for his discharge.
The Respondent avers that it had no knowledge
of Lewis ' termination by Beaunit Mills until shortly
before his discharge in February 1968. To this effect
Security Officer Combs testified that he checked
Lewis ' employment history at Beaunit Mills in April
1967. Admittedly, however , and contrary to all of
his prior practice, Combs accepted the statement of
a clerical employee at Beaunit Mills to the effect
that Lewis was "clear" and made no attempt to
review Lewis' personnel records . Approximately 10
months later Combs made a second investigation of
Lewis ' employment history at Beaunit Mills and this
time determined that Lewis had been terminated by
that employer, but that the termination had
subsequently been revoked and Lewis had been
offered reinstatement as a result of an arbitrator's
decision . According to Combs he was impelled to
make the second investigation because of a rumor,
emanating from Foreman Jennings , that Lewis had
been discharged by Beaunit Mills. Jennings in turn
testified that he obtained the rumor from Supervisor
James Cable , and after checking it against Lewis'
employment application, he reported the matter to
Combs . Cable was not called to testify in
verification of the rumor , and the record,
accordingly , contains no evidence as to when or
under what circumstances Cable obtained
information that Lewis had been discharged by
Beaunit Mills. Irrespective of its clear knowledge
that Lewis' discharge by Beaunit Mills had been set
aside, the Respondent discharged Lewis on February
176 NRLB No. 3 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
26, 1968, in strict adherence to its alleged uniformly
enforced policy of discharging any employee found
to have made a false statement on his job
application . Lewis' termination notice also recited
that he was discharged , in part , for violation of the
Respondent ' s rule 35, inefficiency on the job.2
Regardless of whatever prompted the Respondent
to undertake a second investigation of Lewis'
employment history at Beaunit Mills, we are
satisfied that neither the matter of his job
application nor his alleged inefficiency on the job
was the motivating reason for his discharge. Upon
the record as a whole we find that the Respondent,
motivated by strong union animus , threatened its
employees with discharge and other reprisals
because of their union activities , sympathies and
interests . Among the threats made by the
Respondent 's agents to this effect was that uttered
by Security Officer Combs to James Lewis, the
brother of John G. Lewis, prior to the latter's
discharge . After having interrogated James Lewis
concerning his brother's involvement in the Union,
Combs threatened:
... well, John is on the way out and I'm going to
see what I can do to help him.
It is equally clear from the record that the
Respondent threatened , and intended , to accomplish
its unlawful object of ridding itself of union
adherence through pretextual means, including 'the
application of its employment rules to reach the
desired result . As credited by the Trial Examiner,
another union adherent , Pamela Mays, was called
into the office of Plant Manager Runyon and
threatened by him as follows:
Well, when I was seated in his office he started
out by - he had the company rule book on his
desk , and he said that they had a lot of rules in it
and the purpose for all these rules was to treat
individual cases as they so desired and that there
were enough rules there that I was bound to
break at least one of the rules sooner or later.
And that he had started watching me particularly
because I have been a strong union supporter.
And that he was bound to catch me at something
sooner or later. That he was watching me and
that he was out to get me, and that I had caused
him a lot of sleepless nights over this matter....
In the light of the Respondent's knowledge of the
union activities of John G. Lewis, its union animus
as expressed in threats to discharge Lewis and other
'Alleged poor work performance was the subject of a warning given to
bin at an earlier time after the Respondent became aware of his union
activities. The form of the warning serves to support the Trial Examiner's
finding that the Respondent was willing to use its imployment rules as
pretexts to discharge or otherwise discriminate against union adherents.
The Respondent's rule 35 specifically requires a warning for the first
offense, a week layoff for the second , and discharge for the third offense.
Nevertheless, contrary to its avowed literal adherence to its written rules,
when the Respondent warned Lewis on the first occasion about alleged
inefficiency on the job, it threatened him with discharge if he made one
further mistake.
union supporters , and its additional threats to apply
its employment rules in a fashion tailored to achieve
this unlawful result ,' we find that the discharge of
John G. Lewis violated Section 8(a)(3) and (1) of
the Act.'
THE REMEDY
In accordance with the above finding, we shall
order that the Respondent offer John G. Lewis,
immediate and full 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 earning he may
have suffered by reason of the discrimination against
him, by payment to him of a sum equal to that
which he normally would have earned from the
aforesaid date of his discharge to the date of the
Respondent 's offer of reinstatement , less his net
earnings during such period. The backpay provided
herein shall be computed on the basis of calendar
quarters , in accordance with the method prescribed
in F. W. Woolworth Company, 90 NLRB 289.
Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in
the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent,
North Electric Company, Incorporated, Johnson
City, Tennessee, its officers , agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner ' s Recommended Order, as herein
modified.
1. Insert the following paragraph as 1(d) and
renumber the subsequent paragraphs:
"(d) Discharging or otherwise discriminating
against John G. Lewis, or any other employee,
because of his interests or sympathies in, or
activities on behalf of the International Association
'As the present record adequately established the unlawful nature of
Lewis' discharge, we find it unnecessary to grant and therefore deny, the
General Counsel ' s motion to remand and reopen the record to receive
alleged newly discovered evidence in further support of this violation.
'Chairman McCulloch , for the following reasons, would not reverse the
Trial Examiner's dismissal of the allegation of a violation of Sec. 8(aX3) of
the Act: The Trial Examiner has found that although the Respondent "was
willing to utilize a pretext to discharge Lewis ," the reason for which it did
discharge him - falsification of his job application - was one for which it
would have discharged him "whether he was a union supporter or not."
The Trial Examiner premised his conclusion upon testimony, which he
fully credited, that the Respondent followed a "uniform practice" of
discharging employees for making false application statements. And Lewis,
it is clear, had falsified the facts concerning the termination of his last
previous employment. As no sufficient reason exists for reversing the Trial
Examiner's basic determination of credibility , it follows that his dismissal
of this complaint allegation should be affirmed.
NORTH ELECTRIC CO.
of Machinists and Aerospace Workers , AFL-CIO,
or any other labor organization."
2. Insert the following paragraphs as 2(a ) and (b)
and renumber the subsequent paragraphs:
"(a) Offer to John G. Lewis, immediate and full
reinstatement to his former or substantially
equivalent position , without prejudice to his
seniority or other rights and privileges previously
enjoyed , and make him whole for any loss of
earning he may have suffered as a result of the
discrimination against him in the manner set forth
in the Remedy provision of this Decision and Order.
"(b) Notify John G. Lewis 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 Universal
Military Training and Service Act, as amended,
after his discharge from the Armed Forces."
3. Insert as the third and fourth indented
paragraphs in the notice attached to the Trial
Examiner ' s Recommended Order the following:
WE WILL NOT discharge or otherwise
discriminate against John G. Lewis, or any other
employee, because of his interests or sympathies
in, or activities on behalf of International
Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor
organization.
WE WILL offer John G. Lewis immediate and
full reinstatement to his former or substantially
equivalent job, without prejudice to his seniority
or other rights and privileges he previously
enjoyed, and WE WILL make John G. Lewis whole
for the discrimination against him by payment to
him of any loss of earnings he may have suffered,
with interest thereon at 6 percent per annum.
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 application in accordance with the Selective
Service Act and Universal Military Training and
Service Act, as amended , after his discharge from
the Armed Forces.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
EUGENE E . DIXON , Trial Examiner : This proceeding,
brought under Section 10(b) of the National Labor
Relations Act as amended (61 Stat . 136), herein called the
Act, was held at Johnson City, Tennessee , on July 31 and
August 1 , 1968, pursuant to due notice . A complaint,
issued by the Regional Director of Region 10 representing
the General Counsel of the National Labor Relations
Board (herein called the General Counsel and the Board),
on May 29 , 1968, alleged that North Electric Company,
Incorporated , Respondent herein, had violated Section
8(a)(3) of the Act by discharging John G. Lewis, the
Charging Party, on February 26, 1968, because of his
union activities and that Respondent also violated Section
8(a)(1) of the Act by certain other specified conduct.
3
In its duly filed answer , Respondent denied the
commission of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. RESPONDENTS BUSINESS
At all times material herein Respondent has been a
Tennessee corporation maintaining an office and place of
business at Gray Station , Tennessee , where it has been
engaged in the manufacture and sale of communication
equipment. During the calendar year preceding issuance of
the complaint , which is a representative period,
Respondent purchased and received goods valued in excess
of $50,000 directly from points located outside the State
of Tennessee . Respondent is and at all times material
herein has been engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION
At all times material herein International Association
of Machinists and Aerospace Workers, AFL-CIO, hays
been a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Introduction
During 1967 four unions (Teamsters, Machinists,
Communication Workers, and Steelworkers) were
involved in an organizing effort at Respondent's Tennessee
plant. On October 13, 1967, Respondent filed an RM
petition Case 10- RM-482 . Hearings in connection with
this petition were held on November 7 and December 19,
1967. On December 14 the Machinists union wrote
Respondent as follows:
The following listed employees at North Electric
Plant No. 10 have been designated to represent the
International Association of Machinists and Aerospace
Workers at the National Labor Relations Board
hearing set for December 19, 1967 at 10 a.m. at the
courthouse in Johnson City, Tennessee.
Mary V . Watson
Pamela T. Mays
John Lewis
Gregory Chambers
Michael Chandler
Please arrange to have these employees released from
duty that day, or released from work on that day in
ample time to attend the hearing , with the supervisor
notifying them in advance of such permission.
The election was held on January 26 with a majority of
the employees voting against union representation. No
objections were filed to the conduct of the election. On
February 26, 1968 , John G . Lewis , who had appeared at
the representation hearing on December 19 at the Union's
request, was discharged.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interference , Restraint , and Coercion
Pamela Mays, a current employee of Respondent, was
subpenaed by and testified at the request of the General
Counsel. As shown above, Mays was one of the five
people who appeared at the representation hearing on
behalf of the IAM. She had signed an IAM card, had
attended union meetings weekly and wore union insignia
at work. She also was an observer for the IAM at the
election and had made radio announcements on behalf of
the Union.
On February 22, 1968, Mays received a written warning
about her work pursuant to rule 35 of the Company's
handbook.' On the following day in accordance with
established procedure Mays filed a complaint regarding
the written warning in which she stated:
I feel that for my first offense, I deserved an oral
warning instead of a written one. I don 't feel I violated
rule No. 35, since my unit was finished before it
reached a rework girl . To be honest, I probably
deserved an oral warning for talking because there
wasn 't a girl on the line who wasn ' t talking on Feb. 22,
1968. In fact, on these particular units (six) which came
down the line, one station on my side of the line wasn't
finished on any one of the six units . I can't say about
the other side of the line . But I do know there wasn't a
single girl who wasn 't guilty of talking , regardless of
how much. If I deserve an oral warning for talking, I
am not by myself. I applied myself on the job by taking
advantage of extra time and made the effort to finish
my station before the rework girl had to do it, without
hurting anyone 's efficiency.
Regarding this complaint her general foreman, James
Whitman, had this to say which appears on the complaint
form in the space provided for the general foreman's
comment:
The employee has been talked to at least two times that
I know of for talking . At one time, I called her into my
office and explained to her that the reason she wasn't
being picked for a higher classification was because of
her excessive talking . Therefore, I feel that the written
warning is not too harsh.
In this posture Mays had the opportunity to. take up
the matter with Plant Manager Runyun. This they did in
his office on February 26. About what took place at this
time she testified as follows:
Well, when I was seated in his office he started out by
- he had the company rule book on his desk, and he
said they had a lot of rules in it and the purpose for all
these rules was to treat individual case as they so
desired and that there were enough rules there that I
was bound to break at least one of the rules sooner or
later . And that he had been watching me particularly
because I had been a strong union supporter . And that
he was bound to catch me at something sooner or later.
That he had been watching me and that he was out to
get me , and that I had caused him a lot of sleepless
nights over this matter . . . he asked me why I had
sided against the company with the Union.
'Rule 35 involved "inefficiency or lack of application of effort on the
job." The penalties for such conduct was a written warning for the first
offense, one week 's layoff for the second offense and discharge for the
third offense . Mays' offense was that "she was laughing , talking , she did
not complete her work ... in the amount of time ... required ...."
According to Mays ' further testimony on this occasion
Runyun also asked her several questions about why one
ballot had been challenged . He also said to her several
times during the conversation that if they "ever came to
court together that he would deny saying anything that he
said ." Mays flatly denied on cross-examination that when
Runyun said this he said it jokingly.
Mays also testified that following her conversation with
Runyun on February 26 she had several conversations
with General Foreman Whitman . He asked her such
questions as was she "having anything to do with the
Union ." He also told her that if she had anything further
to do with the Union "he would be sure to know about
it."
In his testimony Runyun confirmed that he had talked
to Mays on February 26 or 27 about her grievance.
According to him they talked about "life, love and the
pursuit of anything almost that you can ever think of."
The session lasted for well over an hour during which time
Mays cried some. In substance Runyun testified that he
followed his usual procedure going through the complaint
and the handbook rule involved to make sure that Mays
understood the warning . Mays was nervous and excited:
She felt that she had been discriminated against and that
several others should have received written warnings also.
He explained to her that regardless how many might have
been involved she was the only one caught at it comparing
it to a situation when the teacher suddenly comes into the
room and catches one of the group with the eraser in his
hand.
As for what was further said he testified as follows:
She had not gotten into any kind of trouble at any
other time under any other circumstances . . . she was
an extremely good employee . She was a good wireman,
efficient wireman , high quality . She did as good a job
as any wireman we've had, such a good job that we
transferred her after this complaint from one
department to another, simply because we felt we could
use her talent better . And because we wanted to get her
away from the circumstances and the people and the
activities of the union election, she was in this one
group through the whole thing . And she had indicated
to me that she wanted out, she wanted away from that.
She wanted to get over where she could get a new start.
So we gave her a new start in another department as a
wireman . The same job , same classification , same pay.
And what most of them had done with her throughout
the campaign was they had egged her on , they had let
her be the goat for all of their antics and all their
activities and all their things that they wanted to stir up.
And so she indicated to me she was through with the
Union, she wanted nothing to do with the Union, she
wanted to get a fresh start and this is why we
transferred her over, to give her this fresh start.
When asked who brought up the subject of the Union in
this conversation Runyun answered that it was Mays
testifying as follows:
. she stated that she was glad it was all over, and I
said, what do you mean , and she said , well, the election
and the campaign, and me running out front and
holding a banner and no one following at the end, and
being so much alone at the end. So I asked her why,
why were you involved if you felt this way about it.
Well, she thought this was the right thing to do and
once she got into something she was going to carry it
through to the end. And we talked about how ironic it
NORTH ELECTRIC CO. 5
was, I told her I thought that the day of the counting of
the ballots she was an observer , there were four others
that were observers but she was by the the Board agent,
picked to count the ballots for North Electric
Company , and she had to sit there and say 100, when
others were getting 2' s and 3's and 4' s. And I was
trying to explain to her how sorry I was that she was so
involved in this thing and had to be the one to count the
North Electric ballots and say 100 and give them all the
votes so to speak.
Runyun further testified that he felt sorry that Mays
"was involved in this thing " for the reason that "she was
so intent on winning , so intent on getting out there in
front that she had put everything , every ounce of energy
she possibly could into this thing and she was defeated
and she lost ." He denied telling Mays that the rules were
such that the Company could treat employees in any
manner they wished regarding them . He admitted that he
might have referred to what he would do if they ever got
into court about what they were talking explaining , " it's a
famous expression of mine . And I will say I probably did.
I don 't recall doing it, but I'm sure that if I said it I said
it jokingly , and I cannot swear that I said it this way, but
normally I say it in a joking manner and usually when
I'm saying something about my own personal life." He
explained that the expression he uses is, "if you ever
repeat any of this , I'll deny it in court."
He admitted that he did mention to her a challenged
ballot in the union election when he "was trying to do
some in depth conversation with her." He explained that
notwithstanding that Mays was a good worker she had a
problem with this particular lead girl . The lead girl had
told her that her ballot was the only one out of 600 that
was challenged . So when they "were talking about the
election and her wanting to get out of the Union and what
not, [he] said , well, why did you challenge this particular
ballot...."
In closing 'he gave her what he described as his speech
No. 39 to motivate and inspire people as follows:
She's an extremely intelligent individual , she has all the
talent and all the faculties to be anything that she
desires to be. And we talked about the union in the
conversation . She said she was through, and I said,
Pam, some day you may be faced with another election
and it doesn ' t matter which way you go, but whatever
way you go, stop and think about what way you go,
make it your decision , use your intelligence and your
brains to analyze it and not someone else's and then
whichever way you decide, you use every God-given
talent you have and be the best at that. And that's how
I closed it.
On direct examination Whitman testified that a few
weeks after February 26 on an occasion when he was
working near Mays she asked him "strictly off the
record" if he had heard that she was working with the
Union again . He replied, "no, Pam . . . if you were, I
would have heard it." According to Whitman Mays
replied , "If I ever do start in it again , I'll come and tell
you ... that's the kind of person I am."
I have no doubt that Runyun probably said to Mays
much of what he claims he did in his hour-long discussion
with her about "life, love and the pursuit of anything
almost that you can ever think of." However , I am also
convinced and find that he also said to her what Mays
claimed he said in her testimony. Mays impressed me as
being a forthright and intelligent witness . As shown, she
was positive in her denial that Runyun was joking when
he told her that if the need ever arose he would deny
saying to her the things he was saying . Although
admitting that he did make the comment in question
Runyun was unable himself to swear that he was joking
when he made it. Thus , it would appear and I find that
the remark was made in seriousness as Mays testified.
Such being the case , the implication follows that Runyun
was saying things to Mays he had no legal right to say.
I also credit Mays' version of what was said to her by
Whitman in their conversations . In this connection it
seems to me that there is a certain illogic in what
Whitman would have me believe Mays said.
On the basis of the foregoing evidence I find that
Respondent interfered with , restrained and coerced
employees in the exercise of rights guaranteed them in the
Act thus violating Section 8 (a)(l) thereof by:
1. Runyun's telling Mays that he was watching her
because of her union activity and that he was bound to
catch her in violation of one of the Company's numerous
rules , which I find was a threat of reprisal because of her
union support.
2. Runyun ' s question to Mays as to why she had sided
with the Union against the Company , which in the light of
Respondent's other unfair labor practices found herein I
find it to have been illegal interrogation of its employees.
3. Whitman 's question to Mays about whether she was
having anything to do with the Union which in the
circumstances here also constituted illegal interrogation.
4. Whitman 's statement to Mays that if she did have
anything further to do with the Union "he would be sure
to know about it" which I find was tantamount to a
threat of surveillance on the part of Respondent of the
employees' union activities.
James Lewis, the charging party ' s brother, was
formerly employed by Respondent as a security guard.
Before he left Respondent ' s employment he had been
reduced along with three other security guards to a
production job at less pay in an economy move.
According to Lewis , in late October his supervisor Harold
Combs called him into the office about which he testified
as follows:
We started talking and he asked me what was this junk
that I hear about your brother John , and I said, sir,
what junk . He said , union junk. I said , well, sir , John is
my brother but he has a mind of his own and he's free
to make his own decisions, and he very angrily said,
well, John is on the way out and I 'm going to see what
I can do to help him . And I told him after that that I
would talk to John and see what I could do.
In his testimony Combs denied that he ever had a
conversation with James Lewis about his brother John. I
credit Lewis here. On the basis of this testimony I find a
threat of reprisal by Respondent in further violation of
Section 8(ax 1) of the Act.
Lewis also testified as follows about several
conversations with Production Foreman James Campbell
under whose supervision he was placed after being
transferred out of the security unit:
(early December 1967)
Well, we more or less started discussing and it led to
the talk about union and I openly stated our views and
he said that North Electric would not pay any more
with the union than they would without one, and I
proceeded to explain my views , that I thought a union
was a good thing, that by means of collective
bargaining all of us being one, united , through a
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agent, we would gain some concessions, such
as holidays and pay raises.
(21 or 22 December 1967)
... again at my work station , . . . we talked at length
again about the union . And we talked about, he said it
was very necessary for us to have a third party involved
in any discussion concerning ourselves . That really all
the union was after was the money from the dues they
received . And then he stated experiences of his
childhood , of being raised in Virginia and having had to
go to school on several occasions looking down the
barrel of a 50 caliber machine gun. And that unions
instigated and caused violence.
(January 1968)
... one time in particular , we discussed , he told me I
was a fairly intelligent young man and I should be able
to weigh the situation carefully and it would seem to
come to his point of view that a union would do us no
good there at North and that North would not pay us
any more, with or without a union.
On cross-examination Lewis admitted that he could not
recall the exact words Campbell had used in their
conversations and further admitted that he was testifying
as to the meaning Campbell conveyed to him in their
many conversations.
I see no violation on the basis of the foregoing
testimony.
Lewis also testified on direct that prior to the election
he had talked to Assistant Foreman Leoda Utsman about
his ambitions to achieve supervisory status with
Respondent . In this connection he had asked Utsman in
effect how she had accomplished it. Utsman told him that
if he "ever wanted to go higher with North Electric .. .
[he] should work and vote against the Union." On a
subsequent occasion , according to Lewis, Utsman again
told him that it would be to his benefit to "vote and work
against the Union ." In Lewis' affidavit, while indicating
that he had told Utsman he wanted to get into
supervision , did not indicate that she had told him that he
would be better off, if he wanted to better himself, if he
voted and worked against the Union.
Utsman, who was no longer employed by Respondent,
testified at the call of Respondent . On direct she was
asked if she ever talked to Lewis about unions and she
answered , "No, sir, he would bring it up and I listen, but
I didn 't answer any questions for him. I referred him to
Jim Campbell." On cross-examination she testified that
Lewis was bitter about his demotion "you could tell by
the way he talked when he said it was done unfair." She
did not know anything about it and told him so. She also
admitted that she talked to some employees about the
Union who would ask her questions and she would try to
answer them as best she could. If she could not answer
them she would refer them to sombody else. She also did
this with Lewis but explained that the questions he asked
she could not answer so she referred them to Campbell.
Apart from the foregoing there was no denial by Utsman
of Lewis' testimony. I credit Lewis and find a further
threat of reprisal by Respondent (i.e., that union activity
would prevent advancement ) in violation of Section 8(a)(l)
of the Act.
According to John Lewis ' testimony , sometime in
November or December 1967 in comments to his
assembled employees Foreman Wayne Jennings said that
"he had worked for a lot of companies and that North
Electric had the best pay system, had the best promotion
system ..." and that if the employees had a union they
"would have to stay on one job at all times" and would
"have no chance for promotion or advancement ." He also
told them that they would "get no more money" if they
had a union.
Jennings testified that he calls periodic meetings of the
employees in his department . As for one of these meetings
in November , in which he claimed that a question was
asked by one of the employees concerning the Union, he
testified as follows:
I believe someone asked why is the wages higher
here , I mean higher in Galion ' than they are here and
why did they have more holidays than we do and why
do they have more benefits?
* * *
I told them I thought that the reason that wages in
Galion were higher was because the efficiency of our
plant was lower, that their cost of producing a unit was
lower in Galion and that possibly the cost of living was
different here than it was in Galion.
* * * * *
I told the men that I thought that the Company had
the best chance for advancement faster than any
company I had ever worked for, that the guys got to
move around on their jobs more than they did, as soon
as they were experienced they got to move around on
the job, and that I had heard that in Galion that you
stayed on the job for a long period of time before you
got to move, and here you were moved around where
that you could get a chance to be promoted faster.
* * * * *
... I told them I didn't know whether they could get
any more money with a union or not, they might and
they might not. That I thought, that I understood that
any raises or any benefits or whatnot, would have to be
negotiated.
I credit Jennings ' version here and find no violation of
the Act on this evidence.
On January 25 William Graham, Respondent's
president, spoke to two different groups of employees
assembled each time in the plant cafeteria . Graham was
not called as a witness but it was stipulated that if he were
to be called he would testify that both of the speeches
were made from a text introduced in evidence as
Respondent's Exhibit 1 and further that his remarks were
tape recorded and that the tape recording (received in
evidence and transcribed by the official reporter into the
record at pp. 285 to 324) "accurately represents what he,
in fact, said in his speech at that time ...."
About what Graham said in his speech Mays testified
on direct as follows:
President Graham was introduced by Runyun, started
out by telling ... what an honor it was to speak before
us, and he told us about the outsiders , meaning the
Union, were troublemakers and he told us, in length
about strikes and violence, particularly at a plant in
Galion that had all the windows broken out during one
such strike. That they were interested in our
pocketbooks and that we would not get one, not get any
money, would not get one red cent unless the company
'Respondent 's Galion plant was operating under a union contract.
NORTH ELECTRIC CO. 7
so desired to give it to us . . . he said that they had
many applications, I'm not sure whether he said
hundreds or thousands, but he indicated that there were
numerous amount of applications in the office . . . that
there were applications in the office, people wanting to
work. That they had no trouble getting employees.
On cross-examination Mays admitted that she could not
recall the exact words Graham had used in his speech.
In his direct testimony James Lewis related in some
detail what Graham had said in his speech. Among the
things Graham said was "most emphatically, that North
Electric would not give one more red cent with a union
than they would without one." According to Lewis, while
Graham "didn't come out and say that they would not
bargain with the bargaining agent" he did say that "there
was no use for a bargaining agent . . . at North Electric"
and that it would do the employees no good to have a
bargaining agent.
On cross-examination Lewis admitted that he could not
recollect Graham's speech "word for word." When given
the copy of the speech received in evidence Lewis was
asked to read from it as follows:
I want you to remember this fact. That I'm not saying
or implying that it would be futile for you to join the
Union. Neither am I saying that we would refuse to
bargain. We would fulfill our obligation in this area.
We would bargain in good faith.
When asked if he recalled Graham making this statement
Lewis testified that he did not recall it but did not deny
that this statement was made admitting that Graham
could have said it. He also admitted that Graham did tell
the employees in the speech that "you might get more, as
the unions have promised, or you might get less."
John Lewis also testified on direct in detail as to what
Graham said in his speech. Among the things Lewis
testified was that Graham had said that the Company
"would not recognize the Union as the bargaining agent
and they would not give . more money. That they
would shut the place down before they would give . . .
anything."
On cross-examination Lewis also admitted that he
could not remember everything said by Graham and that
he had forgotten much of what was said. But Lewis
reiterated Graham's remark and was positive that Graham
had said that the Company "would not recognize the
Union as a bargaining agent and that before they would
give ... any more money, they's shut the place down."
As shown, a typed copy of Graham's speech was
received in evidence together with the tape recordings of
both the speeches he made which were transcribed by the
official reporter into the record. It was stipulated at the
hearing that if called as a witness Graham would testify
that these exhibits accurately reflected all that was said by
him on those two occasions. I credit this representation
and find nothing in his remarks that shows any violation
of the Act.
Discrimination
John Lewis had been hired by Respondent in April
1967 at a rate of $1.55 per hour. On February 26, 1968
when he was discharged his rate of pay was $2.01 an hour.
In early June 1967 he signed a union card and thereafter
attended union meetings about once a week until the
election on January 26, 1968. Along with several hundred
other employees he wore a union button at work and as
shown attended at least one of the representation case
hearings having been released for it at the Union's request
by his foreman Wayne Jennings. Plant Manager Runyun
and Personnel Manager James Fulton were also present at
this hearing.
On September 13, 1967, Lewis filed a grievance on a
company complaint form regarding his having been called
into General Foreman White's office as follows:'
About 3 weeks ago while T. Kleffman was on
vacation and G. White was my supervisor, he asked a
friend of mine , Gregory Chambers, where "goof off"
was. (I had left to get a jack in shipping) A couple of
days later I hurt my back on the job and Mr. White
then said to me in a snotty way that it appeared to him
that I can't do this type of work. I was off for a while
with my back and never heard any more from Mr.
White until Tuesday, 9/12/67, when he called me and
Mr. Kleffman to his office. Mr. Turnbull was also
there. Mr. White asked "what's this about your back?"
After I told him about it, he said "In the first place, I
never believed you hurt your back."
He said he'd seen me a lot of times sitting around,
goofing off and not doing what I ought to do. He said
he was putting me under W. Jennings and he wants
quality and quanity out of me and if I make one
mistake he'll give me my walking papers. He also said
my attitude was bad.
I believe the company is out to get rid of me because
the nurse said she didn't know if I was lying the other
day when I was in first aid. When asked T. Kleffman
about this, he said the company don't like sickly people
and get rid of them in a hurry. Either Mr. Kleffman or
the nurse said the company thought I was using my
back as an excuse for my own personal gain.
When I get finished with what I've been told to do, I
sit around and wait for my next job because I don't
want to mess something up I don't understand. Mr.
Kleffman has spoke to me for this and talking to
someone once in a while . (I remember only 2 times of
Kleffman talking to me.)
After Mr. White talked to me Kleffman told another
man that he had never heard anyone talk to a person
the way Mr. White did to me.
I want my job and to do it right, but I believe the
treatment I'm getting now is unfair and I'll never be
able to avoid making a mistake because everyone does.
I don't have any security now. I request a clearing
up of all this and assurance that I'll be given fair and
right treatment. Also I work for Mr. Kleffman, why
didn't he change my job instead of Mr. White?
On this same form under date of September 15, 1967
White's comments appear as follows:
This employee has been assigned to lighter work in the
NX-2 Test area in deference to his physical handicap
relating to a back injury. His attitude toward
supervision, conduct, and productivity was less than
acceptable; and I firmly advised him that we expected
definite improvement in his new work assignment as a
condition to continued employment. His foreman will
make every effort to assist him in identifying and
correcting his shortcomings in his job performance.
In accordance with established procedure Lewis
subsequently took the matter up with Fulton and White
'On cross-examination , he denied having filed a written complaint in
connection with this matter but identified his signature on the complaint
form and testified that he had no recollection of signing it.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who went over the complaint with him item by item.
On February 26 Lewis was discharged. About this he
testified as follows:
Well, Foreman Jennings came to my desk about 3:20
and said they wanted to see, I thought he said in Jim
Fulton's office, and I said, well, let me put my tools up
because I won't get back in time. So I put my tools up
and me and him went to Bill Turnbull's office and he
was in there and Gene White and he told me and Mr.
Jennings to have a seat.
* *
So after we had a seat, Mr. White said, John, said,
you got two choices. Said, you can either quit or as of
3:30 we're going to fire you. And I said, why. And he
said, well, we got information that you lied on your
application. And I asked him what kind of information
and he said he had information I got fired at Beaunit.
And then he called Mr. Combs in, the security officer
and told Combs to read this stuff off, so he read it off
that I got fired on a certain date. And I said, is that all
it says? And he said, no, it says you got reinstated on
the job. And I said, well, if you give me 2 or 3 days to
think this over, I'll try to come up with the right
decision on it . And he said, you got about 3 minutes. I
said , well, I'm not going to argue with you, I got a load
of passengers to take home and I said, its 3:30, and if
I'm fired, I said, I got to go home now. And I said,
good day gentlemen, and I got up and left.
In this interview nothing was said to Lewis about his
job efficiency. His termination notice however rated him
poor in attendance, efficiency and attitude; fair in aptitude
and interest and satisfactory in safety. It also indicated
that his discharge was for violation of "Employee's
Handbook Rule 31 (misrepresentation of facts in seeking
employment) and Rule 35 (inefficiency on the job)."
Regarding the representations made by Lewis on the
job application that he filed with Respondent on March
10, 1967, the credited evidence shows that he had stated
on the application that he had worked for Beaunit Mills
from August 1, 1962, to March 1, 1967, and that he had
left Beaunit Mills in order to "go to school and couldn't
work shift work." The evidence further shows that as of
March 1, 1967, he was still working for Beaunit Mills and
continued to work for Beaunit Mills until March 9 at
which time he had been suspended from his job.' A few
days later Lewis was informed by Beaunit that through
the Union he was going to be discharged. The Union
apparently filed a grievance on his behalf that went to
arbitration which sometime in May resulted in an award
favorable to Lewis. In the meantime as shown Lewis had
started working for Respondent sometime in April.
Jennings was called as a witness by Respondent. On
cross-examination he testified that he had heard a rumor
that Lewis had been discharged by Beaunit. Checking
Lewis' application he found that there was no such
indication on it. Although he had no reason to believe that
Lewis had lied on his application he wanted the rumor
checked out. Accordingly a day or two after he first heard
the rumor he talked to Security Officer Combs about it,'
'On cross-examination Lewis denied that he had deliberately failed to
reveal the fact of his suspension from Beaunit. In his affidavit he stated,
"on the day I was discharged at North, I pointed out during my
termination interview that if I had put down discharged at Beaunit they
wouldn 't have hired me ." His statement also said, "at the time I applied I
didn't tell the Company I was discharged and I didn 't volunteer this
information."
telling him that if Lewis had falsified his application in
this respect he "thought (Lewis) should be discharged."
Combs testified that when he had checked Lewis'
record at Beaunit in April 1967 the employment manager
with whom he usually dealt was absent. Instead he talked
with a young lady in the personnel department asking her
for a report on Lewis - "his attendance, his attitude and
work habits, et cetera." She returned in a few minutes
with the information that Lewis " was clear ." On this basis
he cleared Lewis' application originally.
Then, in February 1968, when Jennings had told him
about Lewis' rumored discharge and his feeling that
Combs ought to reinvestigate he did so. At this time he
learned that Lewis had been discharged on March 9 and
that he had been offered reinstatement on the basis of an
arbitration award but that he had indicated to Beaunit
that he did not want reemployment because he was
employed elsewhere. This information Combs conveyed to
Personnel Manager Fulton who instructed him to inform
White of his findings for the purpose of discharging
Lewis.
Fulton testified that during his 14 years' experience
with Respondent it has been a rule or policy to discharge
anyone who may have been found to have made a false
statement on his job application.' He further testified that
this policy has been "uniformly enforced throughout all
North Electric plants." In this connection Fulton named
three people (Josephine Barnett, Lewis Kayler, and Ann
Kathleen Trollinger) who had been discharged for making
false statements on their job applications. Kayler's job
application was dated August 22, 1966. He was hired
October 21, 1966, and discharged on June 20, 1967, when
it was discovered he had falsified his application in
connection with an arrest. Barnett's application was dated
June 23, 1966. She was hired August 1, 1966, and
discharged on March 15, 1967, for her failure to disclose
on her application a prior industrial accident. Trollinger
had been discharged about 2 weeks after she was hired
when she produced a birth certificate which showed a
4-year discrepancy between her application and her birth
certificate regarding the date of her birth.'
Conclusions
In my opinion the evidence will support an inference
that Respondent was willing to utilize a pretext to
discharge or otherwise discriminate against an employee
because of his union activity.' Nevertheless I am unable to
find on this record that Lewis' discharge involved such a
pretext. Considering Respondent's uniform practice of
discharging employees for making false application
statements, it is obvious that Lewis would have been
discharged whether he was a union supporter or not.
'At first he testified that Combs was the only one he mentioned this
matter to, then he conceded that he "might have mentioned it to Mr
Runyun" on the same day.
'Not only does rule 31 provide for such penalty but the application form
itself states, " I understand that, in the event of my employment by the
company, I shall be subject to dismissal if any of the information I have
given in this application is false."
'No exhibits accompanied Fulton 's testimony regarding Trollmger's
discharge because, as he explained , Respondent does not retain files on
people who are discharged during . their probationary period At first he
testified that Trollinger was 4 years older than her application showed.
Later when asked for more detail he testified that her application showed
her date of birth as being 1929 when in fact she was born in 1933.
'This conclusion is implicit in Runyun 's remarks to Mays.
NORTH ELECTRIC CO.
Thus, to hold that his union activity played a part in the
discharge would be nothing more than surmise and
speculation - no basis upon which to make a finding.
Nor, in my opinion, does the failure of Respondent to
mention rule 35 (inefficiency on the job) to Lewis at the
time of his discharge militate against this conclusion.
There is no question, as Jennings in effect testified, that
the reason and only reason Lewis was discharged was the
false statement on his application. The addition of rule 35
on Lewis' termination form thus is of no particular
significance. In any event the appraisal of Lewis'
performance appearing on the form seems consistent with
whatever evidence appears in the record regarding his
performance.' Accordingly I find that Lewis' discharge
was not discriminatory within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent did not violate Section
8(a)(3) of the Act I shall recommend dismissal of that
allegation.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
Conclusions of Law
1. At all times material North Electric Company,
Incorporated has been a labor organization within the
meaning of Section 2 (2) of the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, at all times material
herein has been a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as found above, Respondent has
engaged in unfair labor practices within the meaning of
Section 8 (a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. As found herein Respondent has not discriminated
against its employees in violation of Section 8(a)(3) of the
Act.
'The uncontroverted evidence shows that the wage increases received by
Lewis during his employment were all automatic and not based on merit in
any respect.
RECOMMENDED ORDER
9
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding, I recommend that North Electric Company,
Incorporated, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from-
(a) Illegally interrogating its employees about their
union activities, membership, or sympathies.
(b) Threatening its employees with discharge or other
reprisals because of their union support or its success in
organizing the employees.
(c) Creating the impression among its employees that it
is engaging in surveillance of their union activities.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to bargain collectively
through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its plant at Gray Station, Tennessee, the
attached notice marked "Appendix."" Copies of said
notice, to be provided by the Regional Director for
Region 10, after being duly signed by an authorized
representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith."
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the receipt of this Decision the Respondent
notifies the aforesaid Regional Director, in writing, that it
will comply with the foregoing Recommended Order, the
National Labor Relations Board issue an order requiring
it to take such action.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 10, in writing , within 10 days from the date of this Order, what
steps Respondent 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 illegally interrogate our employees
concerning their union activities, membership, or
sympathies.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with discharge
or other reprisals because of their union support of its
success in organizing our employees.
WE WILL NOT attempt to create the impression that
we are engaging in surveillance of our employees' union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of the rights to self-organization, to form, join , or assist
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization,
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.
All of our employees are free to become , remain, or
refrain from becoming or remaining members of the
aforesaid union or any other labor organization.
Dated By
NORTH ELECTRIC
COMPANY,
INCORPORATED
(Employer)
(Representative ) (Title)
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 Board 's Regional Office, 730 Peachtree
Street NE., Atlanta, Georgia 30308, Telephone
404-526-5741.