Northrup Carolina, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1967

167 N.L.R.B. 649 (N.L.R.B. 1967)

NORTHRUP CAROLINA
Northrup Carolina, Inc. and Drivers Local Union
No. 61 , affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen&
Helpers of America . Case 1 1-CA-3140
September 29, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On May 26, 1967, Trial Examiner John P. von
Rohr issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations- Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Northrup Carolina, Inc.,
Asheville, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Leonard R. Brady immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his seniori-
ty or other rights and privileges, and make him
whole for any loss of earnings he may have suffered
by reason of the discrimination against him, in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
2. Delete from paragraph 2(d) that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
649
JOHN P. VON ROHR, Trial Examiner: Upon a charge
filed on September 30, 1966, the General Counsel for the
National Labor Relations Board, by the Regional
Director for Region 1 1 (Winston-Salem, North Carolina),
issued a complaint on January 5, 1967, against Northrup
Carolina, Inc., herein called the Respondent or the Com-
pany, alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. The
Respondent's answer denies the allegation of unlawful
conduct alleged in the complaint
Pursuant to notice, a hearing was held in Asheville,
North Carolina, on February 20 and 21, 1967. All parties
were represented by counsel and were afforded opportu-
nity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs.
Briefs have been received from the General Counsel
and the Respondent and they have been carefully con-
sidered
Upon the entire record in this case, and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a North Carolina corporation with
its plant and place of business located in Asheville, North
Carolina, where it is engaged in the manufacture of muni-
tions, machinery, solid propellants, and rocket motors.
During the 12 months preceding the hearing, the Respond-
ent sold and shipped products from its Asheville, North
Carolina, plant valued in excess of $50,000 to points and
places directly outside the State of North Carolina. Dur-
ing the same period it received raw materials valued in ex-
cess of $50,000 which were shipped to it from points and
places outside the State of North Carolina.
The Respondent concedes, and I find, that it is and has
been engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Drivers Local Unioh No. 61, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Background. 8(a)(1) Conduct
The Respondent is engaged in the manufacture and
development of explosives, propellants, chemicals, muni-
tions, and the like During the period relevant hereto it
employed approximately 475 maintenance and produc-
tion employees, these under the supervision of approxi-
mately 73 supervisory and managerial personnel.
Beginning in August 1966, the Union undertook an or-
ganizational campaign among the aforesaid employees.
167 NLRB No. 92
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union ultimately lost a Board-conducted election
which was held on December 15, 1966.
The undenied and credited testimony of employees
Carl Clark and Norman Stevens reflects that Foreman
Lee Towery engaged in the following unlawful conduct
during the period of the Union's organizational campaign:
In latter August or early September, Towery took Clark
into his office and asked how he felt about the Union.
Clark said he was "against the damn union." Towery then
asked if he was aware of the attitude of employees Nor-
man Stevens and Don Watts toward the Union. Clark
stated that he thought these employees were against the
Union. The conversation terminated with Towery telling
Clark that he should " listen and find out if they had
anything concerning the Union to say." About a week
later Towery again approached Clark and asked if he
knew whether any of the employees were for the Union.
Clark did not relate his reply, but testified that Towery
finally requested that he go to departments 115, 122, and
124, and the cafeteria, to ascertain the attitude of the em-
ployees toward the Union; further, that Towery said he
was particularly interested in the attitude of the Negroes
in this regard. About a month later, Towery told Clark to
keep employee Charles Biggs under observation and to
ascertain whether Biggs was for the Union. Sometime
thereafter, Towery advised Clark that Biggs was being
transferred to another department for the reason that
"they wanted him [ Biggs] to get away from the crowd
below where he could mix and push the Union." Accord-
ing to Clark, Towery also told him "if I got in too deep
with Charlie, with the Union, that when they let Charlie
go they would let me go with him."' In latter October,
Towery broached Clark concerning a union meeting that
was to be held on a Saturday night. When Clark advised
Towery that he and Biggs planned to attend the meeting,
Towery asked if he would find out some information for
him while at the meeting. Clark said that he would do so.
Towery thereupon wrote out a note setting forth specifi-
cally the information in which he was interested. The
note, which he handed to Clark, bore the following nota-
tion :2 "Strategy; Promises; Proposals, Attenders, Princi-
ples, Persons (Leaders)." Towery telephoned Clark on
Sunday morning to ask about the meeting, but Clark at
this time advised him that he did not attend the meeting.3
Norman Stevens, a test technician, had occasion to be
in Towery's office in the first week of September 1966, at
which time Towery asked this employee how he felt
about the Union. Stevens replied that he had no opinion
since he had never worked in a union shop. Towery
thereupon asked Stevens if employee Charles Biggs had
talked to him about the Union while they worked together
out on the test range. Stevens replied that he had not.
Two weeks later Towery asked Stevens if he had thought
any more about the Union. After showing him some news
clippings about the Union, Towery then stated that em-
ployee Biggs had been moved to the outside testing area
where there "weren't so many people" because he had
been suspected of working for the Union. At this point
Towery again asked Stevens if Biggs had talked to him
I The uncontroverted testimony of Clark
z This note was received in evidence as G C Exh 2
3 Clark testified that in fact he did not attend the meeting Apparently
Towery did not believe Clark, for Clark testified without contradiction
that Towery again asked him about the meeting when he reported to work
on Monday morning
4 As the Respondent points out in its brief, it is true that only I foreman
out of 73 supervisory employees has been shown to have engaged in
about the Union. Stevens replied in the negative. Finally,
approximately 2 weeks after this conversation, Towery
again broached Stevens and asked if he had given further
thought about the Union. Stevens said that he had not.
Upon the above unrefuted evidence, I find that
Respondent interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act by:
(1) interrogating employees concerning their union activi-
ties and sympathies and the union activities of other em-
ployees; (2) soliciting an employee to report to it the ac-
tivities of a union meeting ; (3) telling employees that an
employee had been transferred to another work area in
order to forestall his union activities; and (4) advising an
employee that he might be discharged for associating with
a suspected prounion employee.4
B. The Discharge of Leonard R. Brady
1. The supervisory issue
The complaint alleges, and Respondent's answer de-
nies, that Leonard R. Brady was discharged on Sep-
tember 27, 1966, in violation of Section 8(a)(3) and (1) of
the Act. In further response to this allegation, the
Respondent during the hearing amended its answer to al-
lege as an affirmative defense that Brady was a supervisor
within the meaning of the Act at the time of his discharge.
I shall first consider the issue thus raised by the Respond-
ent.
Brady began his employment with the Company on
February 21, 1966, as an operator helper at the hourly
rate of $1.44. He was made a leadman about the middle
of April 1966. At the time of his discharge Brady was
paid at the rate of $1.85 per hour, 15 cents of which was
derived from his position as leadman. Respondent's regu-
lar foremen, it may be noted, are paid on a salaried basis.
Prior to Brady's discharge, the Respondent had 11 em-
ployees who were designated as leadmen. It is relevant to
note here that a representation hearing involving the
Respondent and the Union was held on September 26
and October 3, 1966, in Case I 1-RC-2426. At this hear-
ing the Respondent and the Union stipulated that the
leadman on the third shift (the night shift) was a super-
visor within the meaning of the Act. However, the
Respondent did not choose to contend that the remaining
10 leadmen were supervisors within the meaning of the
Act, hence the status of these people was not litigated in
that proceeding.5 It is undisputed that the 10 leadmen
were permitted to vote in the election which was held on
November 16, 1966.
The department in which Brady worked was under the
supervision of Foreman Walter Harris and Supervisor
George Bumgardner. At the time of his discharge, Brady
worked with a group of one to six employees engaged in
the assembly of slider detonators.6 Brady himself was en-
gaged in manual work alongside the group of these em-
ployees. It is undisputed that Brady has no authority to
hire, discharge, promote, or transfer employees or to ef-
fectively recommend any such action. The testimony of
employee Harold Treadway reflects that Brady may in-
8(a)(1) conduct Nevertheless, in view of the flagrant and extensive illegal
antiunion activity engaged in by Foreman Towery, I cannot regard such
conduct as " isolated , insubstantial and insignificant " Nor do I consider
this conduct negated by the fact that on one occasion Towery told Clark
that he (Towery) could be discharged for talking to him about the Union
5 Tr pp 45, 289
6 The detonators are utilized to explode CS-i tear gas grenades
NORTHRUP CAROLINA 651
struct new employees in their job duties and that he may
advise them of safety procedures. Brady receives daily in-
structions from Foreman Harris as to the work to be per-
formed by his group. Upon the completion of any one job,
he does not have authority to start another without first
receiving instructions from Harris. Brady may assign a
particular job function to a particular employee within his
group. As an illustration, Brady testifies: "Say, I wanted
to load a grenade and I had three men working with me,
I would pick the man best suited to work behind the
bord." As the senior man in this department, I think it
clear that assignments of this type are of a routine nature
and hardly require the exercise of any real independent
judgment. Brady testified that he did not have authority
to discipline employees or to issue reprimands, although
he could recommend to the foreman that such action be
taken if the situation required.7
Thus the testimony concerning Brady's functions as
leadman, most of which was brought out under cross-ex-
amination of Brady. Significantly, Respondent failed to
call any supervisor or managerial employee to testify if in
fact any supervisory authority as defined in 2(11) of the
Act was ever bestowed upon him.8 In view of all that has
been set forth above, I conclude and find that Brady was
not a supervisor within the meaning of the Act, but rather
was a leadman who was more experienced and skilled
than' the employees with whom he worked. For a closely
analogous situation, see Northern Virginia Steel Cor-
poration, 132 NLRB 714, enfd. 300 F.2d 168 (C.A. 4).9
2. The facts pertaining to the discharge
In early August 1966, four employees visited a
representative of the Union with respect to undertaking
an organizational campaign at Respondent 's plant. Brady
was one of these employees. Thereafter Brady became an
active union adherent and signed up approximately 40
employees. Brady testified that this activity occurred at
a restaurant down the highway from the plant and also at
the Respondent's parking lot during his dinner hour.
However, there is no evidence to establish that
knowledge of this activity came to the attention of
Respondent ' s managerial or supervisory personnel.
As heretofore stated, a representation hearing was held
on September 26, 1966, before a Hearing Officer of Re-
gion 11. Three of Respondent's employees attended this
hearing and seated themselves three rows from the front.
These included Leonard Brady, Dallas Whitworth, and
Bobby Turner. Appearing for the Union were Union
Representatives James Austill and Loy Young. Present
for the Company, in addition to its attorney, were
Reginald E . Morris, Respondent's industrial relations
manager, and Frank R. Smith, corporate director of in-
dustrial relations . 1° At the outset of the hearing Respond-
ent's counsel asked that the three employees be iden-
tified and also asked if they were to be called as
witnesses by the Union. Union Business Agent Austill
thereupon stated that the persons referred to by counsel
were company employees but that he did not desire to use
them as witnesses. The evidence further reflects that Ar-
nold Runion, a former foreman over Brady who was sub-
sequently made safety and fire inspector, entered the
hearing room and remained for a few minutes. i 1 The three
employees were present during the entire day of hearing.
Before turning to Brady's discharge which occurred on
the day following the representation hearing, it is signifi-
cant to note first that employees Whitworth and Turner
also were the subject of uniquely conspicuous treatment
following their attendance at the hearing. Thus, it was the
unrefuted testimony of Whitworth that it was the practice
of Foreman John Jones to eat lunch on the other side of
a partition which separated his (Whitworth's) working
area from the carpenter shop. On the day after the hear-
ing, however, Jones varied this practice by coming over
and having lunch in the working area where Whitworth
customarily had his lunch. Whitworth testified that Jones
continued to have lunch on his side of the partition for 2
or 3 months thereafter.
Although nothing unusual occurred to employee Bobby
Turner after the first day of the representation hearing,
Turner attended the second and final day of the hearing,
which was held on October 3.12 When he reported to
work at his regular shift at 3:30 p.m. that afternoon he
was taken into the office by his foreman, Harry Walker.
Inside the office Walker handed Turner a notebook and
stated, "I want you to write up what you are doing here
tonight, everything you do, everywhere you go, I want
you to write it in this book." When Turner asked the
reason for this requirement, Walker merely stated that it
was his idea and the idea of Superintendent Farrell, the
head of. the department. Turner had never before been
required to keep such account of his whereabouts and
activities.13 A day later Turner was transferred from the
second shift, which he preferred, to the first shift. This
transfer was sudden and without advance notice to this
employee." There was no explanation for it from
Respondent.
Returning to the discharge of Brady which occurred on
September 27, the day following the representation hear-
ing, Brady reported to work on this date at his starting
time of 7:30 a.m.15 Upon arriving at work Brady, who
owns two cars, discovered that he had left his safety
shoes in his other car. He thereupon went up to Harold
Treadway, an employee with whom he worked, and bor-
' in this connection Brady testified " I worked right along, just the
same as the next man only it was my respoi , sibility , duty to see that the
work was going on-you know - that the men didn't loaf around , and that
the work was got out I would just more or less warn him about it-I
mean, ask him not to-and then it would be my duty then to go to my im-
mediate supervisor and have him speak to him "
8 It is also significant to note that following Brady's discharge he was
replaced by an employee who was not a leadman
4 Employee Carl Clark was questioned under cross-examination as to
the authority of leadman Bill Weaver However, it was not shown that the
status of Weaver as leadman was the same as that of Brady That there
could well be a difference in the status of the various leadmen is
manifested by the stipulation as to one of them in the representation hear-
ing In any event , I have considered the testimony of Clark and conclude
that it does not establish Weaver to be a supervisor within the meaning of
the Act.
10 Smith was affiliated with the Northrup Corp , parent of the Respond-
ent Company , and came from California to attend the hearing
" Brady testified that a total of approximately I I persons, including
counsel , were present in the hearing room
"Turner testified that Dave Robinson , Respondent's personnel
manager, was present on this day of the hearing
13 Respondent offered no explanation for imposing this new require-
ment on Turner
14 All of the above testimony of Turner is credited and undenied
15 It appears that Brady was absent from work during the entire day of
September 26 while in attendance at the hearing The record does not dis-
close what arrangements , if any, Brady made with his foreman to be ab-
sent on this day
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rowed from him a leg or safety stat. Treadway at this time
had been wearing a safety stat on each leg in lieu of safety
shoes. It may be explained here that a safety stat is a leg
strap which is tied around the leg and shoe. It is designed
to drain off static electricity from the body, which is the
same function and purpose of safety shoes. Brady
testified that he was under the impression that it was
necessary to wear only one safety strap "' Accordingly,
upon taking one safety strap from Treadway, each
proceeded to work wearing a single safety strap on one
leg.
Brady and Treadway at this time, were engaged in the
assembling of slider detonators They did this while
seated next to each other and working at a table behind a
Plexiglas shield.17 At or about 9 a.m. Foreman Walter
Harris came up and asked how the job was progressing.
Observing then that the employees were wearing single
safety straps, Harris asked Brady where his safety shoes
were. Brady explained what had occurred. Harris left the
room and within minutes returned with George Bum-
gardner, a supervisor. Bumgardner inquired of Brady as
to the whereabouts of his safety shoes and Brady related
that he had left them in his other car Bumgardner then
asked if he was not aware that he was not supposed to
remove his safety shoes from the premises and Brady
replied in the affirmative."Brady also explained the
discussion he had with other employees concerning the
wearing of a single safety strap. (See fn. 16, infra.) When
Bumgardner thereupon asked where he had obtained the
single safety strap, Brady said that he had obtained it
from Treadway. At this point the subject turned to some
work that had been done on the previous shift, this in re-
gard to finished detonators which were on the table be-
hind Brady. Brady went to the table and discussed this
briefly with Bumgardner. At this point Bumgardner asked
Brady why he was not wearing safety glasses Brady an-
swered that he did not have any. Brady then advised the
supervisor, as he was about to leave, that he would look
for a pair of safety shoes during his next break period
The foremen then departed. Brady testified that the next
break period came at 10 a m., which was about 45
minutes after Bumgardner and Harris left the area."' He
and Treadway continued to work until the break period
with each wearing one safety strap.
Brady found an old pair of safety shoes in the locker-
room during the 10 o'clock break. He returned the other
leg stat to Treadway and-they went back to work. At or
about 2 30 in the afternoon, Bumgardner and Keith Mul-
11 Safety straps were not commonly worn among the employees Thus,
Brady testified that at the time Treadway was issued a pair of safety
straps, he was present when a group of employees discussed the necessity
of wearing one or both straps Brady credibly testified that at this time
Bobby Burrell , a senior employee , stated he always had understood that
it was only necessary to wear one safety strap
This shield contained openings through which the employees could
extend their arms , thereby permitting them to work from behind the
shield
'" Brady said he did not recall his answer to this question of Bum-
gardner's Treadway, who was called as a witness by the Respondent,
testified that Brady answered the question by stating "yes " I credit this
testimony of Treadway
'y The testimony of Treadway, who was called by the Respondent to
testify concerning this incident , was substantially the same as that of
Brady However , Treadway testified that before leaving the area Bum-
gardner and Harris told Brady "as soon as he could to get him a pair of
boots or a pair of shoes or something " Treadway testified that Brady
acquired a pair of safety shoes during the next break , which he said came
in just a few minutes , at which time Brady returned his other safety strap
lins, the latter Bumgardner's superior, came up to Brady
and said they would like to speak to him They thereupon
escorted him to a smoking area, at which point Bum-
gardner stated, as Brady put it, "Due to the fact-due to
this morning when you left your safety shoes at home and
had taken the safety strap from Treadway, you will be ter-
minated today " A short while later, after Brady had
completed the checking out procedure, Bumgardner told
Brady that there was nothing personal about the matter,
whereupon the two shook hands and Brady left the plant
Brady returned on the following day to obtain a dismissal
slip which he needed to apply for unemployment compen-
sation. The slip with which he was furnished gave as the
reason for his dismissal. "Disobeying safety rules and
removing plant property from the premises."
3. Additional facts; analysis and conclusions
The evidence establishes that employees are required
to wear protective footgear in the areas of the plant and
property which are under consideration here. As previ-
ously indicated, the purpose of the safety footgear is to
drain off static electricity from the body, thereby negating
from this source the possibility of an explosive reaction
from the materials and products with which these em-
ployees work. Without questioning Respondent's
prerogative to establish any such safety rules as it may
deem necessary, it may be pointed out that any explosive
reaction from static electricity in Brady's department
(while assembling detonators) was perhaps considerably
less than in other areas of Respondent's plant 211 That this
was recognized by the Respondent is established by the
undisputed fact that employee Treadway was permitted
to wear rubber boots while working in this department
during the first 2 days of his employ.21 Thomas Creally,
a managerial employee called by the Respondent as an
expert on explosives, conceded that rubber boots are in-
effective against static electricity.22
Upon the entire record, I am convinced and find that
Brady's discharge was designed for the purpose of
stemming the union activity and to discourage member-
ship in the Union. There are in particular two undisputed
facets of the evidence which lead me to this conclusion.
First, as has been previously noted, all three of the em-
ployees who attended the representation hearing were
subjected to uniquely conspicuous treatment by the
Respondent following their attendance at the hearing.
Thus, following the hearing, Foreman Jones suddenly
it was my impression that Brady had better recollection than Treadway
concerning the details of this incident and I credit his testimony that he
volunteered to obtain safety shoes during the next break 1 also credit
Brady's testimony that the break was not due until approximately 45
minutes after the foremen departed But even if Treadway's testimony is
accepted , it is undisputed that the foremen left the area while Brady and
Treadway continued working with only one safety strap
20 Thus, it would be necessary for static electricity to enter a vent hole
about the size of a pencil point at the tip of the detonator in order to trigger
an explosion Moreover, the detonators were assembled while the em-
ployee worked behind safety glass which was provided with openings
through which they could work with their arms and hands Although at
this stage the detonators were not attached to grenades , an explosion of
the powder in the detonator could cause injury or loss of fingers or hand
21 The reason for this was that the size of shoes to fit Treadway were
not in stock when he began his employment
12 Brady testified without contradiction that he also wore rubber boots
when he came to the Company, this for the first 2 weeks of his employ-
ment
NORTHRUP CAROLINA
changed his routine and began taking his lunch in the area
on the side of the partition shared by employee Whit-
worth. Employee Turner, immediately after his at-
tendance at the second day of the hearing, was unac-
countably required by his foreman to maintain a written
record of his whereabouts and activities. A day later he
was abruptly transferred to another department. And
Brady, the subject of the dispute herein, was discharged.
In light of the entire record, I find it unbelievable that the
happenings to these three employees following so closely
after their attendance at the representation hearing came
as the result of mere coincidence. Rather, I think the evi-
dence amply warrants the inference that the action taken
against these employees was motivated by Respond-
ent's animus against the Union.21 Secondly, considera-
tion of other relevant circumstances surrounding Brady's
discharge reflects that any violation of safety rules by this
employee was utilized by the Respondent as a pretext for
his discharge. Thus, as above indicated, less than a week
before Brady's discharge an employee who worked along-
side him for a 2-day period was permitted to wear rubber
boots which admittedly were completely ineffective to
ward off static electricity. 24 Indeed, the testimony reflects
that even the single strap worn by Brady was effective
against static electricity as long as it remained in contact
with the floor.2, But of even greater significance is the
fact that the two foremen, upon ascertaining the situation,
walked out of the department leaving Brady and Tread-
way continuing to work with only one strap. Although
Brady advised them that he would find a pair of safety
shoes during the next break period, surely it is reasonable
to assume that the foremen would have taken immediate
corrective action if the gravity of the situation was such
that it placed Brady or the other employee in any real
danger. Indeed, there is no evidence to reflect that any
foreman later checked back to see if Brady in fact ob-
tained safety shoes during the break period.26 In view of
all the foregoing, including the absence of any explanation
by any of the supervisors involved as to their reasons for
thus affecting Brady's discharge,27 I can but conclude
that Respondent seized on the incident in question as a
pretext to discharge this employee for his known or
suspected support of the Union.28
28 As Respondent well knew, these employees were not at the hearing
at its behest.
24 This employee , Treadway, was hired on September 20, 1966. Brady
was terminated on September 27, 1966.
25 This was most of the time, for Brady worked from a seated position.
The leg strap would not be in contact with the floor only in the event of
crossing legs (one foot off the floor), or walking
26 Brady returned the other leg strap to Treadway during the break
period . Treadway testified that it was not until after Brady's discharge,
which occurred at 2.30 p.m., that Bumgardner came back to the area to
ascertain that Brady had returned his other leg strap
21 Respondent did not call as witnesses any of the foremen or super-
isors who participated in the decision to discharge Brady
28 It may be noted that there is no evidence showing that Respondent
ever discharged any other employee for a violation of any similar safety
rule.
While I recognize the importance of maintaining safety rules , particu-
larly in the type of operation such as engaged in by this Respondent, I am
nevertheless pursuaded by the entire evidence in this case that Respond-
ent would not have resorted to the penalty of discharge but for its suspi-
cion or knowledge , because of Brady's attendance at the representation
hearing , that he was a prounion adherent . Moreover , although Respond-
ent's work rules as set forth in its employee handbook provide that an
employee may be subject to immediate discharge for "willful, negligent or
careless actions which seriously jeopardize the safety of self or others "
653
A further reason given to Brady for his discharge was
the fact that he had taken the safety shoes home with him
from the plant without permission. In this regard Re-
spondent points to a rule in the employee handbook which
provides that employees are to obtain company passes for
the removal of company or personal property from the
plant.29 I would first note that although the handbook par-
ticularizes in some detail the various penalties for breach
of the numerous rules set forth therein, no specific penal-
ty is mentioned for removing property from the plant. In
any event, the testimony reveals that, at the very least,
Respondent was considerably lax in the enforcement of
the rule.31 Thus, it is necessary for employees to pass a
guard stationed at the gates when entering or leaving the
plant. Employee Bobby Turner testified that on a number
of occasions he had driven past the guard on his motorcy-
cle while wearing company boots and a company helmet,
this without question. Turner also recalled an occasion
when he observed Foreman R. O. Rymer come from the
parking lot through the gate while wearing safety shoes.
He testified without contradiction that he called this to
the attention of the guard, Reuben Clark, and that the
guard stated, "Yes, they are safety shoes, they wear them
in and out of here all the time." Employee Norman
Stevens testified that on occasion he would drive past the
gate with company goggles and a company helmet laying
in the back seat of his car. On another occasion he wore
his safety shoes out of the plant and stood at the gate in
the presence of the guard while waiting for an auto ride
home. Employee Carl Clark testified that in August 1966,
he told his leadman that he had left his company safety
shoes at home. This was reported to Foreman Towery
who thereupon provided him with a pair of safety straps.
Clark was not disciplined or reprimanded for this occur-
rence.a't In short, under all the circumstances of this case,
and in view of Respondent's laxity in enforcing the rule,
I am pursuaded that the additionally assigned reason for
Brady's discharge, i.e., his taking home the safety shoes,
is but an afterthought in further attempt to cloak the dis-
crimination practiced against this employee.
Finally, Respondent contends that Brady's case must
fall because Respondent has not been shown to have
demonstrated an antiunion attitude. However, the ex-
it appears to me that applicable here is the further rule which specifi-
cally encompasses the "failure to utilize prescribed safety equipment or
procedure." A written reprimand is the only penalty provided for the first
offense of this latter nature
19 The rule states as follows-
To prevent unauthorized removal of material from the plant, the
Company reserves the right to inspect any lunch buckets, packages,
other containers, or any vehicle leaving the plant at any time deemed
advisable
A Company Property Pass (Form NCI-198) properly executed,
signed, and approved will be used for the removal of company proper-
ty from the plant Personal property removal from the plant also
requires a properly executed, signed, and approved Property Pass.
Supervisors will assist their employees in securing and filling out
forms in the event it becomes necessary for them to remove property
from the Plant
'" There is no evidence that any employees were discharged for remov-
ing property from the plant without permission
4i As to each of the incidents described above, Respondent argues that
there was no testimony showing that the employees involved did not first
obtain company passes for the removal of the items in question. Upon
hearing the testimony , however, it was my impression that the employees
did not have passes on the occasions concerning which they testified This
testimony was brought out on direct examination and Respondent, who
was familiar with the rule , did not cross -examine on this point.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tremely flagrant 8 (a)(1) conduct engaged in by Foreman
Lee Towery is a clear manifestation to the contrary.32
Moreover , in itself indicative of discriminatory intent is
the fact that Respondent 's explanation for the discharge
of Brady does not stand up under scrutiny . N.L.R.B. v.
Griggs Equipment , Inc., 307 F .2d 275 (C.A. 5).
In sum , I find that Respondent discharged Leonard R.
Brady in violation of Section 8(a)(3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations set
forth in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, it will be recommended that
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
It will be recommended that Respondent offer to
Leonard R. Brady immediate and full reinstatement to his
former or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered by reason of the unlawful discrimination against
him, by payment to him of a sum of money equal to that
which he normally would have earned, absent said dis-
crimination, from the date of his discharge to the date of
offer of reinstatement, less his net earnings during said
period. Backpay shall be computed in a manner
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and with interest thereon as prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
Because of the serious nature of the unfair labor prac-
tices here involved, it will be recommended that the
Respondent cease and desist from infringing in any
manner upon the rights guaranteed by Section 7 of the
Act.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discriminating in regard to the employment of
Leonard R. Brady, to discourage membership in the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the Act, it
is recommended that Respondent, Northrup Carolina,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with
respect to their union activities and sympathies and the
union activities and sympathies of other employees;
threatening them with discharge for engaging in union ac-
tivity; and requesting employees to report to it the activi-
ties of union meetings which they attend.
(b) Discouraging membership of any employee in
Drivers Local Union No. 61, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization, by discharging or in any other manner dis-
criminating against an employee with regard to his hire or
tenure of employment, or any term or condition of em-
ployment.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Leonard R. Brady whole for any loss of
earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Notify Leonard R. Brady if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ling and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary for the computation of backpay which
may be due under this Recommended Order.
(d) Post at its plant at Asheville, North Carolina, co-
pies of the attached notice marked "Appendix."33 Copies
of said notice, to be furnished by the Regional Director
for Region 11, after being signed by a representative of
the Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for a period of 60 con-
secutive days thereafter, in conspicuous places, including
32 Rarely obtainable in cases of this nature is such evidence as the note
which Towery gave to employee Clark concerning the information which
he requested Clark to obtain while attending a union meeting of the em-
ployees.
33 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
NORTHRUP CAROLINA 655
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.34
39 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in wasting, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT interrogate our employees concern-
ing their union activities or sympathies or the union
activities and sympathies of any other employees.
WE WILL NOT threaten our employees with
discharge for engaging in union activities.
WE WILL NOT ask our employees to report back to
us the activities of union meetings which they attend.
WE WILL NOT discourage membership in Driv-
ers Local Union No. 61, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other
labor organization of our employees, by discriminat-
ing in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
Leonard R. Brady to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings he may have suffered
because of the discrimination against him.
All our employees are free to become or remain mem-
bers of the above-named union or labor organization, or
to refrain from such membership.
Dated By
NORTHRUP CAROLINA, INC.
(Employer)
(Representative ) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16th Floor,
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 723-2911.