Northern Telecom, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1977

233 N.L.R.B. 1374 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northern Telecom, Inc. and Communications Workers
of America, AFL-CIO. Case 26-CA-6441
December 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 22, 1977, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. Counsel for the General
Counsel filed cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith and to
adopt his recommended Order as so modified herein.
The Administrative Law Judge found the Compa-
ny's discipline of employees Lee, Caruthers, and
Everett violated Section 8(a)(l) of the Act. In
addition, he found that the Company's discharge of
union activist Lee also violated Section 8(a)(3) of the
Act and that the Company disciplined employees
Tomlin and Patton in order to support its discrimina-
tory discharge of Lee. Accordingly, the Administra-
tive Law Judge found the discipline of Tomlin and
Patton violated Section 8(a)(3).
Our examination of the record persuades us that
the Company's discipline of employees Caruthers,
Everett, Tomlin, and Patton in each case constituted
a violation of Section 8(a)(3) and an independent
violation of Section 8(a)(1) of the Act. In this
connection, we note that the record warrants a
finding that the Company initially suspected that all
five employees had engaged in a walkout over a
condition of their employment, the requirement that
they turn in certain production cards to the day-shift
supervisor. As pointed out by the Administrative
Law Judge, even if the Company erred in this belief,
by taking action against these employees on the
strength of its conviction that they had engaged in
protected activities, the Company violated Section
8(a)(l) of the Act. N.L.R.B. v. Link-Belt Company,
1 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
233 NLRB No. 203
311 U.S. 584, 589-590 (1941). Moreover, even assum-
ing, arguendo, that Donovan concluded, as a result of
his investigation, that employees Tomlin and Patton
had excuses for leaving work early on November 20
and "were not at fault," a fair interpretation of the
Company's subsequent decision to discipline Tomlin
and Patton is that their discipline was intended to
support the Company's action against Caruthers,
Everett, and Lee for having engaged in concerted
protected activity. Clearly, under such circum-
stances, the actions taken against Tomlin and Patton
violated Section 8(a)(l) of the Act.
Similarly, the Company's decision to discipline
Caruthers and Everett constituted violations of both
Section 8(a)(1) and Section 8(a)(3) of the Act. As
indicated previously, the Administrative Law Judge
found, and we agree, that the Company believed
these two employees engaged in protected activity
and disciplined them in the belief that they had done
so. We also agree that the Company seized on this
incident as a convenient excuse to rid itself of a
union activist, Lee.2 We find it reasonable to infer
that, in disciplining Caruthers and Everett along with
Lee, the Company not only sought to punish Caruth-
ers and Everett for their involvement in protected
activity but also sought to use them to mask its
discriminatory discharge of Lee. Employer action
taken against employees for the purpose of giving an
aura of legitimacy to a discriminatory discharge is
itself violative of Section 8(a)(3) of the Act. See
Armcor Industries, Inc., 227 NLRB 1543 (1977).
Accordingly, we find that discipline meted out to
Caruthers and Everett violated that section of the
Act.
We also find independent violations of Section
8(a)(1) of the Act predicated on Respondent's con-
duct in (I) interrogating an employee about her
sentiments in an upcoming representation election,
and (2) interrogating employees about the identity of
the employee who urged them to take part in
protected concerted activities. 3 In connection with
these findings, we note that the complaint alleged,
and the record testimony established without contra-
diction, that on or about June 20, 1976, Supervisor
Brown questioned Caruthers about the Union and
about Caruthers' sentiments with respect to the
upcoming election. Brown urged Caruthers to vote
because if she did not vote it would be "like a vote
for the Union."
2 The Administrative Law Judge correctly found a company past
practice permitting night-shift employees to leave Saturday overtime work
early without specific permission by a supervisor. Hence, the Company's
assigned reasons for its decision to discharge Lee are, to this extent, clearly
pretextual.
3 The Administrative Law Judge failed to pass specifically on either
allegation.
1374
NORTHERN TELECOM, INC.
The second independent violation of Section
8(a)(l) alleged concerns Production Manager Dono-
van's interrogation of the employees involved in the
November 20 incident with respect to the identity of
the employee who instigated the walkout. Even
conceding the Employer's right to ask certain prelim-
inary questions to determine whether or not employ-
ees were engaged in concerted protected activity,
questions aimed at requiring employees to reveal the
instigator of protected activities are plainly coercive
and unlawful.
Finally, we shall modify the Administrative Law
Judge's remedy so that interest is computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977), 4 and we shall modify that para-
graph of the notice pertaining to the reinstatement of
employee Bonnie Lee to the extent necessary to
conform the notice to the pertinent provisions of the
Administrative Law Judge's recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Northern Telecom, Inc., Nashville, Tennessee,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph l(c) and
reletter the subsequent paragraph accordingly:
"(c) Interrogating employees about their senti-
ments for or against a union, or interrogating
employees concerning the identity of employees who
have instigated concerted protected activities."
2. Substitute the attached notice for that of the
Administrative Law Judge.
4 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, suspend, or otherwise
discriminate against any of you for supporting
Communications Workers of America, AFL-
CIO, or any other union.
WE WILL NOT discharge or suspend you or issue
any of you a warning for engaging in protected
concerted activity.
WE WILL NOT interrogate any of you about
your sentiments for or against a union, nor will
we interrogate any of you about the identity of
employees who instigate concerted protected ac-
tivity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights under Section 7 of the Act.
WE WILL offer Bonnie Lee immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights
and privileges, and WE WILL make her whole for
any loss of earnings since her discharge, plus
interest.
WE WILL pay Deborah Caruthers, Cindy Ever-
ett, Constance Patton, and Mary Tomlin for the
earnings lost from their November 22, 1976,
suspension, plus interest, and WE WILL remove
from our records the written warnings given them.
NORTHERN TELECOM,
INC.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Nashville, Tennessee, on March 14-15,
1977.1 The charge was filed by the Union on December 2
(amended January 7 and at the hearing), and the complaint
was issued on January 21.
Shortly before a rerun election was held at the plant,
while union objections were pending, the Company dis-
charged employee Bonnie Lee, a "prime pusher" of the
Union, and suspended four other employees after they left
their Saturday overtime work early. The primary issues are
whether the Company, Respondent, unlawfully discrimi-
nated against the employees in order to rid the plant of this
leading union advocate, in violation of Section 8(a)(3) and
(1), and/or disciplined them in the belief that they were
engaged in a walkout which was protected concerted
activity, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
I All dates are from August 1976 through April 1977.
2 Certain errors in the transcript have been noted and are hereby
corrected.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation engaged in the manufac-
ture of telephone apparatus at its plant in Nashville,
Tennessee, where it annually ships products valued in
excess of $100,000 directly to points located outside the
State. The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Lee's Union Activity
Bonnie Lee was a nonsupervisory section leader on the
second (3:30 to 12 p.m.) shift in the teledapt department.
She voted without challenge in the election held at the
plant on September I, after having played an active part in
the Union's organizational campaign.
As revealed by Lee's second pretrial affidavit (dated
December 21 and introduced into evidence as Resp. Exh.
2), the Company instituted a written warning system
during the election campaign and issued Lee a reprimand
in August for talking. "I gave a statement during the
investigation of election objections regarding that incident.
The union does feel that it was an illegal reprimand." (The
rerun election was held in December, following Lee's
November 23 discharge.)
Production Manager Gerald Donovan (who participated
in the decision to discharge Lee) denied personal knowl-
edge that Lee served as the union observer at the Septem-
ber I election, stating that between June 15 and November
1, "I was not here ... I was in charge of shutting down a
plant in Michigan." However, he admitted that at the time
of Lee's discharge, he was aware that she was one of the
leading union adherents at the Tennessee plant, and one of
the "prime pushers" of the Union.
B. Voluntary Overtime Work
Evidently because of the long hours being worked, the
Company permitted employees to work on a voluntary
basis when Saturday overtime work was scheduled. The
timecards in evidence disclose that some of the employees
on the second shift worked until 2 a.m. on 4 nights during
the week of November 15, and that Lee had also been
coming in early, working 10-1/2 to 11 hours those 4 nights.
On Friday, November 19, the Company scheduled
overtime work for Saturday, November 20, from 6 a.m. to I
p.m. The names of 10 day-shift employees were listed on
the "sign-up" sheet. The sheet had the notation, "6-1," by
the names of eight of the employees, showing that they
volunteered to work the full time, and "7-1" and "6-12" by
the other two names, showing the hours they agreed to
work. That Friday evening, Lee took the sign-up sheet
around and wrote down the names of 10 volunteers (from
the 20 or 30 night-shift employees). She did not indicate
how long the Saturday overtime was scheduled and did not
ask them to work any number of hours. Unlike the agreed
working hours written by the names of each of the day-shift
employees on the sheet, there were no hours written by the
name of any of the night-shift volunteers. As employee
Deborah Caruthers credibly testified, the plant practice
had been that the night-shift employees, when working
overtime on Saturday morning, were permitted to go home
anytime they wanted to. (I note that 2 of the 10 names are
marked off, with the notation "A," apparently indicating
that they were absent the next morning.)
The five alleged discriminatees, Lee, Caruthers, Cindy
Everett, Constance Patton, and Mary Tomlin, worked that
Friday night until midnight. Caruthers clocked back in
Saturday morning at 7:20 a.m., and the other four
employees, between 5:49 and 5:58 a.m.-after being away
from the plant less than 6 hours.
Several of the night-shift employees were not feeling well
that Saturday morning. Tomlin had been up all night (after
leaving the plant) with a sick baby, and Patton was
suffering with the cramps. Both of them told Lee that they
wanted to go home. Lee had a headache from the solder
and paint fumes, and she was planning to leave about 11
o'clock. Caruthers "did not feel like working," and said at
the 8 o'clock break that she also would be leaving. Everett
"had to leave at 11:00 . . . to pick my brother up from
work."
On most occasions, when section leader Lee had previ-
ously left early on Saturday mornings (as indicated in her
pretrial affidavit, Resp. Exh. 2), "some of my girls leave
with me," presumably because "they do not know anyone
that works on the day shift or the supervisor, Lynch, that
well." Upon leaving, Lee passes around the EHO (expected
hourly output) cards to the night-shift employees for them
to fill in. When they leave work on Saturday mornings
without Lee, as Caruthers credibly testified, they would
usually ask Lee. "We never had to go directly to a
supervisor." (This practice, of course, did not apply to their
regular work hours. As Lee credibly testified, "Everybody
knew that they had to check out with their supervisor on
our ... weekly shift.") Lee admittedly had no authority to
give permission to leave, but on Saturday overtime, "When
we got ready to leave in the past, whenever we wanted to
leave, we just left." (William Lynch, who supervised the
Saturday overtime work, was not called to testify.)
C. Leaving Work Early
On this Saturday morning, November 20, the regular
day-shift section leader was working, and Department
Supervisor Lynch assigned night-shift section leader Lee to
doing production work, soldering. After the 8 o'clock
break, Lee's headache became worse and she decided to
leave about 9 o'clock (instead of 11 o'clock as she had
planned). She stopped soldering and began writing the
night-shift employees' names on the EHO cards in prepara-
tion to leave. Lynch observed her doing so. He expressed
no objection to her leaving, but told her, "I'm supposed to
be getting credit for you alls work that you do on Saturday.
It's supposed to go on my efficiency report for the day."
Lee said "that's news to me ... I never have turned them
over to you before ... I'm going to call Wanda Brown [the
night supervisor] and ask her." Lee discussed this with
1376
NORTHERN TELECOM, INC.
some of the night-shift employees and tried to get Brown's
telephone number, but could not get it.
As Lee credibly testified, "I kind of got peeved at him
because I didn't want him getting our earned credit for the
day." (Lee's second shift had been ranked first in plant
productivity for a number of months; and "one of
management's aims," as acknowledged by Production
Manager Donovan, was for the employees to take pride in
their productivity. In Lee's view, keeping "operator manu-
facturing efficiency up [is] what it's all about." Lee
proceeded to fill out her own EHO card (for her soldering
work), started distributing the cards to the night-shift
employees, and announced that she was getting ready to
go.
By this time, Tomlin had already clocked out at 9
o'clock, without filling in her EHO card. A second
supervisor, Dan Dalton (who did not testify), asked Tomlin
why she was leaving and she replied that her baby was sick.
When Lee announced that she was leaving, Caruthers,
Everett, and Patton said they were leaving too. Caruthers
filled out her EHO card, and "I put it on Bill Lynch's desk
as he was sitting there." Lynch did not say anything.
Everett put her card on Night Supervisor Brown's desk and
Lynch asked where she was going. She replied that she had
to leave at 11 a.m. anyway. Both Lynch and Supervisor
Dalton spoke to Patton. Lynch commented, "Y'all leav-
ing," and Patton replied that she was not feeling well. After
she clocked out, Dalton "asked me why I was leaving, and
I told him I was sick." She then told Dalton that employee
Carolyn Roper rode with her, and Dalton informed Roper
and gave her permission to leave with Patton.
Lee and Everett clocked out at 9:08 a.m. (8 minutes after
Tomlin clocked out), Caruthers left at 9:09 a.m. and Patton
at 9:10 a.m. Neither Supervisor Lynch nor Supervisor
Dalton expressed any objection to their leaving. This
acquiescence confirms the fact that the night-shift employ-
ees were permitted to leave the Saturday overtime work
without specific supervisory approval.
D. "Extraordinary" Investigation
Evidently believing that there may have been a connec-
tion between his dispute with union organizer Lee over the
EHO cards and the employees leaving early, Supervisor
Lynch notified Production Manager Donovan that morn-
ing, and the Company conducted a major investigation.
As explained by Donovan at the hearing, the Company
was aware that section leader Lee was "very active" in the
union campaign, and it took "extraordinary or extra
caution" because of that fact. "Everyone in the manage-
ment was aware" of her union role, and that a wrong
decision "could be reversed in a court of law such as this.
Therefore . . . we investigated it much [morel thoroughly
than what we normally would in probably . . . a normal
case."
Donovan went to the plant that morning and had
Supervisor Lynch make out a written statement. The
statement asserted that the five employees "consented to
work" from 6 a.m. to I p.m. (despite the absence of hours
beside their names on the sign-up sheet), "walked off their
job," clocked out about 9 a.m. (without indicating that
Tomlin clocked out 8 minutes before the others), and "left
the plant without permission" (without mentioning the past
practice). The statement also asserted that the employees
stated nothing to him except that Patton said she was sick
and was going home "when I asked her what was going on"
(without indicating that neither he nor Supervisor Dalton
expressed any objection to their leaving). The statement
did not mention the EHO cards, or any dispute with
section leader Lee about whether the day shift would get
credit for the work.
That Saturday afternoon, Donovan notified Plant Man-
ager Gordon Fowler. On Monday, November 22, Donovan
talked with four employee witnesses who "volunteered"
information to him and who later made written statements,
in evidence (each statement reciting that it was given
voluntarily). Donovan also held a management meeting
with Fowler and Labor Consultant Connie Quinn, and
conferred by telephone with Division Manager Michael
Terhune in New York. The management group decided "to
inform the second shift employees that they had been
involved in a walkout" (emphasis supplied), and decided
that Donovan and Night Supervisor Brown would question
each of the five employees individually that afternoon.
From the information already received from Supervisor
Lynch and the four employee witnesses, Donovan pre-
pared a list of 10 questions which he used in interrogating
Caruthers, Everett, Patton, Tomlin, and then Lee. (Dono-
van's notes of the employees' answers are in evidence.) The
decision to discharge Lee and suspend the other four
employees was made on Tuesday, November 23, when
Donovan met again with Fowler and Quinn, along with the
company attorney, and conferred with Terhune again by
telephone; and when the "personnel action" (discharge)
and "corrective interview" (suspension) forms, in evidence,
were prepared.
The investigation substantiated the dispute over whether
the day shift should get credit for the night-shift employees'
Saturday overtime production. The written statement given
that Monday by night-shift employee Sue Jones quoted
section leader Lee as stating, before leaving Saturday
morning, that she did not want to solder and let the (day
shift) "get credit for it." Jones added, "It seems as though
she had planned the whole thing." Jones also reported in
the statement that Lee asked her if she was going home
(with them), and "I said no but I may go around 11:00"-
thereby indicating Jones' belief as well that the night-shift
employees were permitted to leave early when working
overtime on Saturday morning.
In the questioning of Everett that Monday afternoon,
Production Manager Donovan learned that Everett as well
as Lee was concerned about the night-shift employees'
EHO credits being given to the day shift for the Saturday
work. Donovan's notes of the interrogation state that when
he asked Everett the second question on the list, "Why did
you leave?", Everett answered, "Understood could come
when wanted & leave when wanted ... Also didn't like Ist
shift getting credit." (Emphasis supplied.) Everett also
stated, according to Donovan's notes, "When leaving the
building [Lee] was mad at Bill [Lynch] for the job that he
put her on & also that Ist shifi was going to get credit."
(Emphasis supplied.)
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Donovan had evidence from employee-witness
Jones that before leaving Saturday morning, Lee stated
that she did not want to solder and let the shift "get credit
for it," and from Everett that after clocking out, Lee was
angry at the supervisor for giving the day shift credit for the
work. In addition, Everett admitted that a reason for her
leaving with Lee was that Everett "didn't like Ist shift
getting credit" for the night-shift employees' work. Al-
though Lee told Donovan that she left because of the
"Headache from soldering," and that it was not her idea
that the others left, Donovan testified that he did not
believe Lee's denials-as indicated by the wording of the
termination slip that Lee was discharged in part for
"coercing or inducing other employees to leave work
without permission." The Company's position that Lee led
a walkout was explained in Donovan's pretrial affidavit,
submitted in the Company's defense. (Attached to the
affidavit were the statements given by Supervisor Lynch
and the four employee witnesses, the timecards and EHO
cards, and the termination and suspension slips.) Donovan
stated in the affidavit:
The investigation also indicated that Lee was upset
about 2 things and Ifeel these things are the reason she
staged the walkout. They were:
(1) She didn't want to do the soldering job that
Lynch had put her on.
(2) She didn't like the idea of turning in the EHO
cards so that the second shift production credit would
be going to the first shift. [Emphasis supplied.]
The interrogation of the three remaining employees,
Caruthers, Patton, and Tomlin, did not reveal any indica-
tion that the EHO cards played any part in their decision
to go home early. Donovan's notes show that Caruthers
answered that she left because "not feeling too well,
thought Bonnie [Lee I in charge ... because the rest of the
girls left." Patton answered that she left "because of the
cramps," and because Lee said O.K. after talking to Lynch.
Tomlin answered because "baby was sick" and "Bonnie
said it was O.K."
One of the 10 questions which Donovan asked each of
the five employees gives some indication that Donovan was
already aware that night-shift employees had previously
left early when working overtime on Saturdays. The third
question which he asked was, "Did you leave before?"
Donovan's notes show that Lee answered yes, on Septem-
ber 25; that Everett answered, "Left before once at least 3-
4 weeks ago. Gave card to Bonnie & worked at least 4 hrs";
that Caruthers answered, "Always worked 4 + hrs on Sat";
that Patton answered, "Yes but rec'd supervisor's permis-
sion"; and that Tomlin answered no.
All five of the employees explained to Production
Manager Donovan that they thought they were permitted
to leave as they did, and/or that Lee indicated to them that
it was all right. Donovan's notes show that when he asked
Lee "What led you to believe you should leave?', Lee
answered, "Headache & past practice." Everett, who told
Donovan that she "understood could ... leave when
wanted," also informed Donovan that Supervisor Lynch
"asked her where she was going" and she "replied that
[she] had to leave at 11 AM anyway." Donovan's notes
show that Caruthers answered that "felt she was in her
right to leave whenever she wanted to leave," that Saturday
overtime was not the same as work on a regular day, and
"[T]hought giving the EHO card to Bill was same as asking
to go home" (although Donovan added, in his notes,
"however the card was placed on the desk & she immedi-
ately turned and went to time clock"). Patton told
Donovan she thought Lee had gotten Supervisor Bill
Lynch's permission, and that as Patton was leaving, "Bill
said y'all leaving & she replied she wasn't feeling well & put
the card on Bill's desk."
Donovan's own notes reveal that when he interrogated
Tomlin, he agreed that she was not at fault in leaving. The
notes show that Tomlin said that about 9 o'clock, "she told
Bonnie that her baby was sick & she wanted to leave.
Bonnie said it was O.K. ... no production card given to
her by Bonnie so [she] just clocked out. Dan asked why
leaving. She replied that baby was sick." (As found above,
she clocked out at 9 a.m., 8 minutes before Lee and
Everett, the two employees concerned about the EHO
cards.) Donovan's notes also show that Tomlin told him
that she believed she should leave because "Bonnie said
O.K.," and that nobody urged her to leave. At the bottom
of the page, Donovan's notes state, "My impression is not
herfault," followed by his initials. (Emphasis supplied.)
Yet, notwithstanding Production Manager Donovan's
conclusion that Tomlin was not at fault in leaving early, on
the next day Donovan and Plant Manager Fowler (when
meeting with the labor consultant and attorney, and
conferring by telephone with a higher official) decided to
give Tomlin, as well as Patton, afinal warning and a 6- or
7-hour suspension (for hours not worked that Monday).
The suspension ("corrective interview") slip stated that
Tomlin and Patton "failed to follow proper procedure for
obtaining permission to leave plant." Under the question,
"What did you tell the employee?", Tomlin's pretyped slip
stated, "Explained to the employee that if she had a
personal problem at home she should explain this to her
supervisor and ask his or her permission to leave work."
Patton's read: "Explained to the employee that if she
became ill at work, that she should explain this to the
supervisor and seek his or her permission before leaving
work."
The pretyped suspension slips for Caruthers and Everett
read: "Employee left plant without permission from super-
visor .... Explained that this was a very serious breach of
company policy. Further misconduct of this type will not
be condoned .... Employee should be put on final
warning and a two-week suspension without pay .. ." On
Everett's slip, under the question, "What were the employ-
ee's comments?", was written in ink, "Indicated she didn't
know she couldn't work casual hours Saturday."
Lee's termination ("personnel action") slip stated, effec-
tive November 22, "Termination for leaving work without
permission from the supervisor; coercing or inducing other
employees to leave work without permission; communicat-
ing permission to leave plant to other employees without
supervisor's authority and without authority to do so."
1378
NORTHERN TELECOM, INC.
E. Contentions of the Parties
The General Counsel contends that by disciplining the
five employees, the Company "rid itself of a leading union
adherent (Lee)," and that Lee's "union membership and
activities" were a factor behind the Company's actions.
The General Counsel also contends that the Company
unlawfully disciplined the employees because of the correct
or erroneous belief that they had engaged in protected
concerted activity.
The Company denies that "Lee's union activities played
any part whatsoever in Respondent's decision to terminate
her," and contends that in the absence of proof that the
Company accurately or inaccurately believed that Caruth-
ers, Everett, Patton, and Tomlin engaged in union activi-
ties, "there can be no finding of a violation of Section
8(a)(3)" as to them.
Concerning the separate 8(aXl) allegations, the Compa-
ny contends that "the General Counsel has totally failed to
prove that any of the five employees named in the
complaint were engaged in any protected concerted activi-
ty on November 20"; that each of the five employees made
an "independent, personal decision" to leave work for
reasons totally unrelated to any matter involved with their
wages, hours or working conditions; and that the "disci-
plinary action was imposed on each of the five employees
consistent with the nature of their offense." In its brief the
Company drops one of the grounds stated on the termina-
tion slip for Lee's discharge ("coercing or inducing other
employees to leave work without permission," indicating
that Lee induced a walkout). The Company substitutes
other grounds ("attempting to encourage other employees
to leave without any reason for doing so," or "apparently
attempting to encourage other employees to leave with her
for no protected reason" - to accord with its contention
that each of the employees made an "independent, person-
al decision" to leave). The Company also argues that "Two
of the alleged discriminatees [Patton and Tomlin] testified
that Lee gave them permission to leave early on November
20. Lee admitted that she knew that she had no such
authority .... Such an abuse of authority clearly justified
discharge for a legitimate reason."
The Company also argues in its brief: "In an effort to
manufacture some form of protest concerning working
conditions, the General Counsel apparently theorizes that
Lee's decision to leave, as well as that of the other
employees, was to protest having to turn in their EHO
cards to Lynch, the day supervisor." (Emphasis supplied.)
Later in the brief, after disputing this "theory," the
Company attempts to nullify the admissions in General
Manager Donovan's pretrial affidavit, given on December
21 in the Company's defense of the case. It states that "the
General Counsel apparently bases his entire case on the
statement in Donovan's affidavit given during the NLRB
investigation that he 'felt' that Lee didn't like turning in the
EHO cards so that the first shift would get credit for the
second shift's work." (Before considering the Company's
defenses to Donovan's admissions, I note that the brief
incorrectly represents what Donovan stated he "felt." The
affidavit does not state that Donovan "felt" that "Lee
didn't like turning in the EHO cards" to Lynch. The
affidavit states that Donovan's investigation indicated that
Lee was upset about turning in the EHO cards, and that
this was one of the two things "I feel" was the reason that
Lee "staged the walk-out." As quoted above, Donovan
stated in the affidavit: "The investigation also indicated
that Lee was upset about 2 things and I feel these things are
the reason she staged the walk-out .... 2) She didn't like
the idea of turning in the EHO cards so that the second-
shift production credit would be going to the first shift.")
The Company's first defense to Donovan's pretrial
admissions is his testimony (which I discredit) that "the
statement in his affidavit was based on knowledge which
he had received after Lee had been terminated" on
November 23. (Emphasis supplied.) To the contrary, the
affidavit clearly states that the "investigation" (referring to
his interviews between Saturday morning and the following
Tuesday when the discharge occurred) "indicated" the two
bases for Lee's being upset; and furthermore, it is undis-
puted that Donovan talked on Monday (the day before
Lee's discharge) with employee-witness Jones, who said in
her subsequent written statement, also dated that Monday,
November 22, that Lee did not want to solder and let the
day shift "get credit for it," and "lilt seems as though she
had planned the whole thing." Next, the company brief
argues, "Moreover, that statement [about the EHO cards
being a reason for Lee staging the walkout] would support
a finding only that Lee attempted to persuade other
employees to leave-not that any other employees left
because of Lee's urging." The Company cites Donovan's
testimony (which I discredit) that the investigation
"showed that none of the girls were upset about EHO
cards" (ignoring Donovan's own notes revealing that when
he asked Everett on November 22 "Why did you leave?",
she answered that she understood that she could leave
when she wanted and "didn't like Ist shift getting credit").
The brief then contends that "even if Donovan had such
'feelings' as to the reason for Lee's walkout on November
22, he did not convey his 'feelings' to the other manage-
ment officials who made the decision to discharge Lee and
discipline the other employees"-despite the fact that
Donovan admitted that he participated in the decision, and
admitted that he presented all the written statements
(including Jones') to the group making the decision.
(Donovan impressed me as being less than a candid
witness, and I discredit his testimony that the statement in
his affidavit was merely "my off the top of my head
opinion" at the time he gave the NLRB affidavit, and also
his testimony, "I did not feel the same way on the twenty-
third [of November] when we discharged" Lee.) In addi-
tion, the Company argues that "Even if the employees had
protested Lynch's instructions, the proof clearly shows that
there is no way that turning the cards in to Lynch could
have affected the employees or their employment status at
all," and "the proof clearly shows that such activity could
not have been protected under Section 7 of the Act since
there was no 'collective bargaining or other mutual aid or
protection' involved whatsoever." I consider this conten-
tion to be frivolous. The submission of the EHO cards to
the day supervisor was a condition of employment.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Concluding Findings
Employees on the top-efficiency second (3:30 to 12 p.m.)
shift had been working long hours and were not required to
work the full overtime shift on Saturday morning when
they voluntarily came in, after working Friday night. They
were permitted to leave without specific authorization from
Day Supervisor Lynch, and had sometimes left early with
night-shift section leader Lee, or after checking with her.
(Lee did not have authority to grant permission for
employees to leave their regular shift work.)
On Saturday morning, November 20, section leader Lee
and employees Caruthers, Everett, Patton, and Tomlin
were working with other day and night-shift employees on
an overtime shift which began at 6 a.m. (6 hours after they
left the Friday night shift). Tomlin, after checking with
Lee, left at 9 a.m. because of a sick baby. Patton had told
Lee that she had the cramps and wanted to go home.
Caruthers "did not feel like working" and had said she was
leaving. Lee and Everett planned to leave at 11 o'clock.
Lee had been assigned to doing production work,
soldering. Because of a severe headache, she stopped
soldering and began writing the night-shift employees's
names on the EHO (efficiency) cards in preparation to
leave. Supervisor Lynch did not express any objection to
her leaving, but got into a dispute with her over whether his
first shift was entitled to get credit for the work on the
night-shift employees' EHO cards. Lee said she was going
to ask Night Supervisor Brown about it, and began
discussing the matter with other night-shift employees.
After failing to get Brown's telephone number, Lee an-
nounced that she was getting ready to leave. Caruthers,
Everett, and Patton said they were leaving too, and the four
of them clocked out about 8 minutes after Tomlin. Neither
Lynch nor another supervisor on duty expressed any
objection.
It was under these circumstances that Supervisor Lynch
notified Production Manager Donovan of the "walkout,"
and the Company under "extraordinary or extra caution,"
investigated the incident much more thoroughly then
normally because it involved Lee, who was "very active" in
the union campaign.
Inasmuch as Supervisor Lynch had not objected to the
employees leaving early on this occasion, and had permit-
ted Lee and other night-shift employees to leave Saturday
overtime work together on previous occasions without
specific supervisory approval, there was no reason for
Lynch to notify Donovan, and for the Company to
conduct the unusally "thorough" investigation, except for
the fact that union-organizer Lee was involved and the
belief that Lee may have "staged a walkout" over the
dispute concerning EHO cards.
All five of the employees indicated to Donovan in his
investigation that they thought they were entitled to leave
as they did. However, Everett admitted that one reason she
left was that she "didn't like Ist shift getting credit" for
their work. Believing that Lee staged the walkout because
she "didn't like the idea of turning in the EHO cards" to
Lynch for the day shift to get credit for the work, and
having an admission from Everett that she left for that
reason, the Company proceeded to discharge Lee, assign-
ing as one of the reasons her "coercing or inducing other
employees to leave work without permission." The Compa-
ny also gave a final warning, and a 2-week suspension, to
Everett as well as to Caruthers (because, as Donovan
testified, "they gave me no apparent reason that they were
leaving"), evidently believing that both of them had
engaged in the "walkout" in protest of the requirement that
the EHO cards be turned in to Lynch. Thus, the Company
discharged Lee, and gave Caruthers and Everett final
warnings and 2-week suspensions, in the belief that they
engaged in protected concerted activity-a walkout to
protest a condition of employment (Lynch's requirement
concerning the EHO cards). As often held, "the Act is
violated if an employer acts against the employees in the
belief that they have engaged in protected activities,
whether or not they actually did so." Henning & Cheadle,
Inc., v. N.L.R.B., 522 F.2d 1050, 1052 (C.A. 7, 1975). I
therefore find that the Company discharged Lee and
disciplined Caruthers and Everett in violation of Section
8(a)(l) of the Act.
The evidence also reveals that the Company had a
further discriminatory motivation for discharging union
organizer Lee. (As mentioned above, union objections to
the September I election were then pending.) The Compa-
ny not only discharged Lee for leading the "walkout," but
it indicated on her termination slip that she was discharged
also "for leaving work without permission from the
supervisor" and for "communicating permission to leave
plant to other employees without supervisor's authority
and without authority to do so." Supervisor Lynch had
previously permitted her and other night-shift employees to
leave together on Saturday morning, and permitted others
to leave after checking with her, without obtaining his
specific approval. And on this occasion, neither he nor
another supervisor on duty expressed any objection to their
leaving, thereby implying that his approval still was not
required on Saturday.
Moreover, at the same time the Company discharged
Lee, it gave final warnings and part-day suspensions to
Tomlin and Patton although, as Production Manager
Donovan admitted, "we felt that both girls had a reason for
leaving" ("Tomlin's baby had been sick all night, and she
was tired and wanted to go home," and "This isn't the first
time [Patton has] had a medical problem with the
cramps"), and although Donovan had recorded his conclu-
sion in writing, upon interrogating Tomlin, "My impres-
sion is not herfault." (Emphasis supplied.) The Company's
stated reason for disciplining Tomlin and Patton, as typed
on their suspension slips, was that they "failed to follow
proper procedure for obtaining permission to leave plant."
Yet, even if specific approval from the supervisor were
required before leaving early on Saturday as well as on the
regular weekday shifts, Donovan admitted at the hearing
that it is customary for a section leader (like Lee) to take
"such a request to leave early" from a production employee
to the supervisor, and that "the section leader would
convey the supervisor's response back to the employee."
Tomlin (whom Donovan found not at fault) had informed
Donovan that she had told Lee about her sick baby and
wanting to leave, and Lee had "said it was O.K."; and
Donovan's notes indicate that Patton said she told Bonnie
Lee she "didn't feel well, Bonnie said she would check with
1380
NORTHERN TELECOM, INC.
Bill to see if OK to leave" and Lee returned and "said OK
to leave after she talked to Bill." Nevertheless, the
Company suspended each of them for the remainder of the
day, and gave them final warnings.
After considering all the circumstances and weighing all
the evidence, I find that the additional stated grounds for
discharging union organizer Lee (leaving the Saturday
overtime work without supervisory approval and permit-
ting other night-shift employees to leave) were not real
reasons for discharging her, but were motivated (contrary
to Donovan's denial) by a discriminatory determination to
rid the plant of this "prime pusher" of the Union before
any rerun election could be held. I also find that the
Company gave Tomlin and Patton the final warnings and
suspensions in an attempt to support the discriminatory
discharge of Lee. I therefore find that the Company
discriminatorily discharged Lee and disciplined Tomlin
and Patton to discourage union membership in violation of
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Bonnie Lee and giving final warnings
and 2-week suspensions to Deborah Caruthers and Cindy
Everett, effective November 22, in the belief they engaged
in protected concerted activity, the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
2. By discharging Bonnie Lee because of her active
union support, and by giving final warnings and 6- or 7-
hour suspensions to Constance Patton and Mary Tomlin
on November 22, in an attempt to conceal its discriminato-
ry motivation for discharging Lee, the Company violated
Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Respon-
dent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Respondent having discriminatorily discharged employ-
ee Lee, I find it necessary to order her full reinstatement,
with backpay computed on a quarterly basis plus interest
at 6 percent per annum in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of proper offer of reinstatement.
Respondent having unlawfully suspended employees Ca-
ruthers and Everett for 2 weeks and given them final
warnings, and having unlawfully suspended employees
Patton and Tomlin for 6 or 7 hours and given them final
warnings, I find it necessary to order it to reimburse them
for lost earnings, plus the 6 percent interest, and to expunge
the "corrective interview" forms, dated November 22, from
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
its records. Inasmuch as Respondent's unlawful conduct
goes to the very heart of the Act, I find it necessary to issue
a broad Order, requiring Respondent to cease and desist
from infringing upon employee rights in any other manner.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER3
The Respondent, Northern Telecom, Inc., Nashville,
Tennessee, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging, suspending, or otherwise discriminating
against any employee for supporting Communications
Workers of America, AFL-CIO, or any other union.
(b) Discharging, suspending, or otherwise discriminating
against any employee for engaging in protected concerted
activity.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Bonnie Lee immediate and full reinstatement to
her former job or, if her job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for any loss of pay or other benefits in the manner set forth
in the "Remedy" section of this Decision.
(b) Expunge from its records the written warnings given
Deborah Caruthers, Cindy Everett, Constance Patton, and
Mary Tomlin, and reimburse them for the earnings lost as
a result of their suspensions in the manner set forth in the
"Remedy" section.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Nashville, Tennessee, copies of the
attached notice marked "Appendix." 4 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
I In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
1382