Owens-Corning Fiberglas Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1970

185 N.L.R.B. 75 (N.L.R.B. 1970)

OWENS-CORNING FIBERGLAS CORP
Owens-Corning Fiberglas Corporation and General
Drivers, Warehousemen and Helpers Local Union
509, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 11-CA-3896
August 25, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On November 9, 1969, Trial Examiner John F.
Funke issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner further found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel, Respond-
ent, and Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this proceeding, and hereby adopts
the findings,' conclusions, and recommendations of
' In his decision the Trial Examiner struck certain testimony on the
grounds that it tended to establish violations of the Act not specifically
alleged in the complaint , and the Respondent was therefore not prepared
to rebut such testimony This ruling was erroneous The testimony was
not offered to prove an independent violation, but only as corroborative
evidence of motive with respect to other violations alleged in the complaint
In such circumstances, there is no requirement that the nature of such
testimony and the individuals involved be specified in a complaint Further,
though the Respondent objected to the introduction of the testimony,
it did not request a continuance to prepare a defense to matters testified
to nor did it indicate in what way, if any, it was alleged to be prejudiced
by introduction of such testimony In these circumstances, and as the
testimony was not stricken until after the close of the hearing, we
reverse the Trial Examiner's ruling striking the testimony of Strickland
and Debose and part of that of Hillis, and find that this testimony
may, when appropriate, be relied on in making our findings herein
See, Local 18 Bricklayers, Masons and Plasterers (Union County Building
Contractors Association and the Johansen Company), 170 NLRB No
4, same case at 159 NLRB 303, 310, fn 17
"The Trial Examiner, in striking this testimony, stated that the General
Counsel's introducing it without specific notice to Respondent closely
approached sharp practice " We have, of course, found the introduction
of the testimony proper Even if it had been improper, the worst that
75
the Trial Examiner.2 with the following additions and
modifications.
1. The Trial Examiner correctly found that Grimes
was an authorized agent of Supervisor Bonnet for
purposes of carrying messages to employees and, con-
sequently, that Respondent was responsible for
Grimes' statement to the employees. Nevertheless,
the Trial Examiner found no violation in Grimes
telling the employees-a majority of whom had recent-
ly voted for the Union-that Bonnet had stated that
the men would have to wait 5 years to get the
Union in. The Trial Examiner concluded that even
if Bonnet had made the statement he had not made
it to an employee nor had he directed that it be
delivered to any employees and that Grimes' authority
to bind Respondent would not extend to relaying
remarks overheard in management 's office. Whether
or not Bonnet made the remark is here irrelevant,
for it is clear that Grimes in the normal course
of his duties while delivering "authorized" messages
stated to employees that Bonnet had made the remark.
In such circumstances, the employees were clearly
in no position to determine which of Grimes' state-
ments were "authorized" and which were not. Rather,
we find that Respondent having clothed Grimes with
the authority to deliver messages was responsible
for Grimes' statement that Bonnet said it would be
5 years before the Union got in. We further find
that such comment made in a context of unlawful
threats of onerous working conditions for voting in
favor of the Union violated Section 8(a)(1) of the
Act.
2. Foreman Richard Davis' statements, in a talk
,:o employees the day after the Union won the election,
hat they would have to tighten up on their work
and that they would have to get to work on time
were , we find, made because the employees voted
for the Union. Similar threats had been made by
Foreman Bonnet and were found by the Trial Examin-
er to be violative of Section 8(a)(1). Contrary to
the Trial Examiner, we find that the statements by
Davis were not merely cumulative but rather that
they constituted further violations of Section 8(a)(1).
We also disagree with the Trial Examiner 's conclu-
sion that Davis' statement that henceforth only one
man would be on the glass truck when it went to
the dump was not coercive. That statement was a
part of the above-mentioned talk in which Davis
made various unlawful comments about tightening
up working conditions. Thus, in view of its timing
and context, we find that the statement limiting to
could have been said was that the General Counsel had erred The
additional pejorative characterization is wholly unwarranted, and we reject
it
We do not pass on the Trial Examiner's comments in fn 2 of
his Decision, as we fail to perceive their relevance to this proceeding
185 NLRB No. 21
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one the glass truck employees was not made solely
for economic reasons but rather was a part of Respond-
ent's unlawful conduct in retaliation for the employees
voting for the Union. We, therefore, find that this
statement also violated Section 8(a)(1) of the Act.'
3. We disagree with the Trial Examiner's finding
that the discharge of Jean Wilder on February 11,
1969, did not violate the Act.
It is conceded that before the November 1968
election Wilder was extremely active on behalf of
the Union and that Respondent was aware of such
activity. The record also shows that after the election
the daily packing quota for yarn was raised from
900 to 1,400 bobbins, that some employees by working
extremely hard could and did make the new quota,
and that Wilder, during the February 1969 check
on her production, only once reached the new quota,
though her production did exceed on all occasions
the previous 900 quota.
Wilder was assertedly discharged for her poor job
performance; and between the date of the election
and date of her discharge she was "written up"
six times , that is, was given six reprimands, for poor
quality or for low production. With respect to low
production, Wilder testified that from the time of
the election until February 14, she was frequently
transferred from packing one type of yarn to another
and that such transfers adversely affected her produc-
tion. Wilder's supervisor conceded she was transferred
to some extent but with respect to the effect of
the transfer on her production stated only she was
not transferred "that much." Wilder also testified
that at least in late November when she was written
up by Arnold for poor production she was receiving
bad yarn which interfered with her doing a proper
job; that she told Arnold the yarn was bad; but
that he was not concerned. She further testified that
on this occasion when she left Arnold's office she
met the day supervisor, Schultz; that she showed
Schultz the yarn she was working on; and that Schultz
conceded it was bad, stated in effect that an employee
could not make production with such yarn, and added
that the Company was working on its yarn. Wilder's
testimony concerning the bad yarn and Schultz's com-
' In view of the Trial Examiner's apparent credibility resolution, we
have adopted his conclusion that Davis ' remarks concerning a wage
increase did not violate the Act We reject however, as wholly unwarranted,
his concurrent statement that the inclusion in the complaint-of an allegation
concerning such remarks reflects an apparent continuation of the General
Counsel's alleged "damned if you do, damned if you don't" policy
The complaint alleged in substance that Davis told employees they would
not receive a wage increase because they supported the Union The
complaint thus alleged conduct which if proven would clearly violate
the Act The fact that the Trial Examiner chose to disbelieve the testimony
supporting this allegation and to credit Davis' contrary testimony cannot,
however, under any circumstances ex postfacto convert a proper allegation
into a condemned policy
ments with respect to the quality and impossibility
of making production was corroborated by packer
Hillis. Schultz did not testify.
On January 6, 1969, Wilder was again written
up for an excessive number of reject bobbins-22
out of 90-on one pallet. However, at the discussion
with her supervisor on the writeup, Wilder stated
that the pallet involved had been partly loaded by
the shift previous to hers and also by another employee
who worked with her on the pallet. She was told
that as her clock number was on the pallet, she
was responsible for it.
On January 17 and February 1 Wilder was again
written up for poor production, and then on February
7 she was written up for putting the wrong label
on some pallets. She testified, however, that there
had been an argument between inspector Smith and
control operator Barksdale over what was the proper
label; that she attached the one Barksdale directed
her to put on the pallet; that she related the above
facts at the writeup discussion; and that Barksdale,
who was there, conceded he had ordered her to
attach the particular label. Nevertheless, she was held
responsible for the mislabeling. Neither Smith nor
Barksdale was called to testify.
Finally on February 11 Wilder was written up
again on the basis of her individual production figures
for the first 10 days of the month showing, as already
indicated, that she had reached the 1,400 minimum
only once. Wilder's request on this occasion that
she be returned to a job she had done previously
on frames was denied and she was discharged for
"poor job performance."
In sum , this case involves the discharge of an
employee, extremely active in the Union, who had
worked satisfactorily for Respondent for 4 years, yet
whose work as reflected by the "write ups" markedly
deteriorated after the Union won the November 1968
election, to the extent that it assertedly necessitated
her discharge in February 1969. However, the undis-
puted testimony shows, as outlined above, that with
respect to one of the "write ups" Wilder was being
reprimanded for conduct-mislabeling-for which she
clearly was not responsible; and with respect to two
others, she was reprimanded for low or poor produc-
tion when there were good reasons for doubting that
the fault was really hers. Furthermore, in each of
these instances , Supervisor Arnold showed no interest
in Wilder's excuses for her poor job performance,
and made no move to ascertain the validity of what
were prima facie justifications of her performance;
rather, he seemed solely concerned with holding her
responsible for matters that very well may have been
beyond her control. With respect to Wilder's low
production figures tallied by Respondent dunng the
OWENS-CORNING FIBERGLAS CORP
first 9 working days of February 1969,° these may
well have been prejudicially affected by bad yarn
and by Respondent's transferring her from machine
to machine during this period as well as earlier.'
Thus, the production figures as to Wilder are not
wholly reliable, possibly being adversely affected by
a variable under management's control.
In view of the foregoing, we reject the Trial Examin-
er's conclusion that Wilder was discharged for poor
job performance, for the evidence shows that the
Respondent was primarily concerned with creating
the appearance of poor job performance by Wilder
rather than with ascertaining whether she was in
fact a poor employee. Consequently, in view of the
threats and other coercive conduct found above which
were directed against its employees for supporting
the Union, we are persuaded that Respondent's assert-
ed reliance on Wilder's job performance as the reason
for discharging her was a pretext and that the dis-
charge of Wilder, a staunch union activist, was a
discriminatory act against Wilder for supporting the
Union and, thus, violated Section 8(a)(3) and (1)
of the Act.
THE REMEDY
Having found that Respondent unlawfully dis-
charged Evelyn Jean Wilder on February 14, 1969,
we shall order it to offer her immediate and full
reinstatement to her former job or, if that 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
earnings she may have suffered by reason of the
discrimination against her, by payment to her of
a sum of money equal to that she normally would
have earned from the date of the discharge to the
date of Respondent's offer of reinstatement, less her
net earnings during such period. The backpay shall
be computed in accordance with the remedial relief
policies set forth in F W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., Inc.,
138 NLRB 716.
As we have found that Respondent has violated
Section 8(a)(3) as well as Section 8(a)(1) of the Act,
we shall order that Respondent cease and desist from
' During the period for which records were kept only 6 out of 16
employees reached the minimum every workday
' Supervisor Arnold explained that he moved Wilder from machine
to machine in hopes a spot could be found where her production would
increase We do not accept this explanation in view of Wilder's uncontested
testimony that production control clerk Barksdale told her she was being
transferred because she was needed at the various machines and in
view of Arnold's refusal at the time he discharged Wilder even to consider
reassigning her to frame work which she had previously done successfully
at the plant
77
in any other manner interfering with , restraining,
or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Owens-
Corning Fiberglas Corporation, Aiken, South Caroli-
na, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Telling its employees because a majority support-
ed the Union that they would have to tighten up
and increase production or be discharged after their
second writeup reprimand.
(b) Telling its employees it would hire no more
colored people because they had supported the Union.
(c) Discharging or otherwise discriminating against
employees because they support and are active on
behalf of the Union or any other labor organization.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer Evelyn Jean Wilder immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights
and privileges and make her whole in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States
of her right to full reinstatement upon application
in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports and all other
records necessary to analyze the amount of backpay
due Wilder.
(d) Post at its plant at Aiken, South Carolina,
copies of the attached notice marked "Appendix."'
Copies of such notice on forms provided by the
Regional Director for Region 11, after being duly
signed by an authorized representative of Respondent,
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to
read "Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board "
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Reasonable steps shall be taken by Respondent
to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 11,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply herewith.
IT Is FURTHER ORDERED that all allegations of
the complaint not specifically found to involve viola-
tions of the Act be, and they hereby are, dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT tell our employees that because
General Drivers, Warehousemen and Helpers Local
Union 509, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
has won the election we will tighten up, require more
production, and fire employees after a second writeup.
WE WILL NOT tell our employees that we will not
hire anymore colored people because we think the
Negroes had gotten together to give the black folks
to the Teamsters.
WE WILL NOT discharge any employee because of
his or her membership in, or activity on behalf of,
the Union or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights
protected by Section 7 of the Act.
WE WILL offer Evelyn Jean Wilder immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position
with all of her rights, without prejudice to her seniority
and make her whole for any loss of pay she may
have suffered as a result of our unlawfully discharging
her.
Dated By
OWENS-CORNING
FIBERGLAS CORPORATION
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 1624 Wachovia Building , 301 North Main
Street, Winston-Salem , North Carolina 27101, Tel-
phone 919-723-2300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
May 12, 1969, by General Drivers, Warehousemen and
Helpers Local Union 509, herein the Union, against Owens-
Corning Fiberglas Corporation, herein the Respondent, the
General Counsel issued complaint dated July 30, 1969,
alleging Respondent violated Section 8(a)(1) and (3) of
the Act.'
The answer of Respondent denied the commission of
any unfair labor practices.
This proceeding, with all parties represented, was heard
by me at Augusta, Georgia, on September 23. At the
conclusion of the hearing the parties were given leave
to file briefs and briefs were received and have been duly
considered.
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying , I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in the
manufacture of fiberglas products at its plant in Aiken,
South Carolina, the only plant involved in this proceeding.
During the past 12 months Respondent sold and shipped
products from Aiken valued in excess of $50,000 to places
outside the State of South Carolina. Respondent is engaged
in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Counsel for the General Counsel stated in his opening
remarks that an election had been held at the Aiken plant
in 1967 in which both the Union and the Glass Bottle
Blowers appeared on the ballot. The Glass Blowers was
' The complaint was amended at the heanng to allege additional
violations of Sec 8(a)(1)
OWENS-CORNING FIBERGLAS CORP 79
eliminated in this election and a runoff election was held
in February 1968, which was won by Respondent. This
election, however, was set aside on objections filed by
the Union An election held November 12 and 13, 1968,
was won by the Union but certification has been withheld
pending Board determination of objections filed by Respond-
ent. Some 1800 employees voted in this election. On October
20, 1969, and after the hearing closed, the Board overruled
the objections and the Union was certified.'
2. Violations of Section 8(a)(1)
Thomas Jenkins testified that he had been employed
by Respondent since January 1967. He was employed as
a fiber control repairman on the D shift. Foreman of
the shift was Gene Bonnet . On November 14, 1968, a
meeting of the shift employees was called by Bonnet prior
to the start of work which was attended by 45 or 50
employees. At this meeting, according to Jenkins, Bonnet
told them most of them knew the Union had won the
election and told them they would have to tighten up,
get to work, or be "written up" and the second time
fired.' Prior to this time Jenkins did not know of any
rule regarding discharge following a writeup.
Jenkins then testified that on January 3, 1969, he and
another employee were told by Charles Grimes, an HFO`,
that Bonnet told him to tell them that they would have
to come in with a higher medium production five times
out of a 7-day workweek or be written up and on the
second occasion be fired Again, Jenkins had heard of
no such rule prior to this warning from Grimes. Jenkins
then testified that Grimes told them, apparently during
this same talk, that Bonnet, in his office, had made the
statement that the boys in the D wing thought the Union
would do them some good but that it would be at least
5 years before the Union came in' Grimes was not called
as a witness.
Bonnet testified that he called a meeting of his employees
after the election because he had heard rumors that there
would be changes in jobs and a tightening up and that
he wanted to tell his men that everything would operate
at normal procedure He told them they would still get
a 10-minute coffee break and 30 minutes to eat, would
run the same jobs, and that no more work would be
required of them.
As to Grimes, Bonnet stated he was not a supervisor
but kept Bonnet posted on what went on in the plant
and relayed messages from Bonnet to the employees. In
For a comprehensive and cogent review of the relative advantages
to the parties of certainty versus delay in Board elections and their
ultimate resolution see "NLRB Elections Certainty and Uncertainty"
in Volume 117, No 2, University of Pennsylvania Law Review by Bernard
Samoff, Regional Director for Region 4
The writing up procedure consisted of an interview between an
employee and his supervisor to discuss a problem it would then be
written up by the supervisor in the form of a report which the employee
could either sign or refuse to sign
Jenkins stated that Gnmes' job was to repair bushings and to relay
messages from Bonnet to the men who worked on the tanks Grimes
was not a foreman and did not substitute for Bonnet at any time
The record does not establish that Grimes was directed to relay
this statement to the employees , nor that it was intended for the employees
January Bonnet had a conversation with Grimes in which
he told Grimes that production was low in the D wing
and asked him to find out what was going on. He denied
that he told Grimes that more strenuous production stand-
ards would be required.
George Johnson testified that he was employed at Owens
since November 1968, and that he was hired by James
Gardner, employed in personnel. On January 14, 1969,
he talked to Gardner about the employment application
of his brother, who had been denied employment on the
ground that he had only a sixth grade education Johnson
argued that other employees had less education, specifically
referring to colored employees in the forming department.
Gardner's reply was that "they" were not hiring any more
colored people because they felt the Negroes had "got
together and give the black folks to the Teamsters."
Gardner testified that he was in charge of personnel
on January 14, that there were some 60 to 70 applicants,
and that, since he was alone at the time, he asked them
to turn in their applications so he could weed them out.
Later that day he had a complaint from an employee
(Johnson) concerning the rejection of his brother's applica-
tion and went over the application, pointing out that the
applicant had less than an eight grade education. Johnson
told him he knew of employees working with less education
and were "dumber" than his brother. He also stated that
Johnson mentioned Negroes as a class with less education.
He did not deny that he told Johnson that Respondent
was not hiring more colored people because they were
giving the "black folks to the Teamsters."
On cross-examination, Gardner testified that he had been
told it was company policy, though not a fixed policy,
not to hire anyone with less than an eighth grade education.
Gene Smith testified that he was employed by Respondent
from 1964 until November 27, 1968 His supervisor was
Richard Davis On November 14, he talked to the employees
of the maintenance department (about 25 to 30) and told
them it looked like the Union was in and that they would
have to tighten up on their work, stay on the job, and
get to work on time. He also, according to Smith, told
them that only one man would be on the glass truck
when it was going to the dump and the other man would
stay and clean up. Davis also told them to let the foreman
know when they would take their breaks which would
be for 10 minutes. Prior to this the employees were allowed
10 minutes but "sometimes we would take a little longer
and there wasn't nothing said about it." Davis told them
if they took longer they would be written up; that they
would have to change clothes and be ready to go to work
at 8 a.m.; that there would be no standing around; and
that they would have to stay on the job. Davis also told
them that if they were out on working time they could
not come in and make up the time-the time they lost
would be lost time and that only three employees in the
D wing would get raises.
Davis testified that within 3 days after the election he
told his employees that the Union had won but that their
jobs had not changed and that the plant would operate
as it had in the past. All employees including those whose
jobs required clothes changes would be ready to go to
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work at 8 a.m. He warned them that it was only necessary
for one man to drive the glass dump truck and that the
helper who assisted the driver in loading it was not to
make the ride to the dump As to raises, Davis told them
"nobody had the authority to honor a raise while a company
is negotiating for a contract." As to makeup time Davis
testified:
Q. Was the other question about work load?
A. The other questions were not pertaining to the
work load.
It was pertaining to a privilege that they have-
it's hard to get through to the people it is a privilege
that everybody in the plant cannot have. We work
from Monday through Friday, and each man has a
specific job to do. Now, if this man comes to me
and tells me that he has an uncontrollable condition,
through no fault of his own, that he has got to be
off, and if he is off as much as three hours in a
work week, Monday through Friday, regular schedule,
and I can find where his particular job, the time
that he was off, had gotten behind, I will allow him
to make up that time. I stressed this, and told them,
"Now, don't get me over a barrel. This does not
mean that you are going to take advantage of me.
I'm giving you every opportunity in the world to
make 40 hours a week, but you cannot come in here
with a toe ache or call me at 6:00 o'clock in the
morning and say you have a toe ache or a toothache,
and come in here at 8:00 o'clock, in the morning
and say at 2:00 o'clock, I forgot I've got a dental
appointment. "Well, if you leave there at 2:00 o'clock,
you have got 21/2 hours, and I'll let him have his
tooth pulled but there's no way I can let the man
makeup that time. It's just not fair."
Q. Was that any change?
A. That's no change.
The General Counsel introduced testimony from two
witnesses, Bobby Strickland and Eulalie DuBose, not to
establish violations of Section 8(a)(1) (the conversations
and changes in working conditions to which they testified
were not alleged as violations of the Act) but to show
the discriminatory motive of the Respondent with respect
to the violation of Section 8(a)(3). The difficulty with
this procedure, as I see it, is that Respondent has nowhere
been advised that such testimony would be offered and
is therefore unprepared to rebut it Had it been offered
as a violation of Section 8(a)(1) (and the testimony prima
facie establishes such violations) the General Counsel would
have been required to name the offending supervisors and
specify the nature of the violation in his complaint. Decision
on the motion of Respondent to strike such testimony
was reserved. The motion is hereby granted.' The testimony
' The General Counsel's citation of The Rubberoid Company, 167
NLRB No 144, is inapposite There the Trial Examiner reluctantly
took evidence not specifically alleged in the complaint on the ground
that it might be adduced within the allegations of the complaint and
stated "that it would have been better practice to formally and specifically
allege the matters asserted, it certainly cannot be held that Respondent
was not on notice of the issue nor does it appear that Respondent
was in any way prejudiced " Here there was no notice to Respondent
as to specific testimony not alleged in the complaint and Respondent,
of Melissa Jane Hillis, insofar as it would establish violations
of Section 8(a)(1) not set forth in the complaint, is likewise
stricken. The Examiner has, on the other hand, taken
administrative notice of the Board's decision in Owens-
Corning Fiberglas Corporation, 172 NLRB No. 70 enfd.
407 F.2d 1357 (March 17, 1969, C A. 4) in which the
Board found Respondent at its Aiken plant guilty of viola-
tions of Section 8(a)(1) and (3) of the Act.
3. Violation of Section 8(a)(3)
Evelyn Jean Wilder was employed by Respondent as
a packer from November 1965, until February 11, 1969,
when she was discharged. Her supervisor was Charlie
Arnold. During the Union's organizing campaign in 1967
she wore a T-shirt (G. C. Exh. 2)with slogans favoring
the Union. Respondent stipulated that Wilder passed out
handbills and was known to be an ardent union supporter.
According to her testimony, Wilder solicited support for
the Union from 1967 until the last election in November
1968. Prior to the 1968 election Wilder never had received
a warning about her productions records, although her
supervisor, either Bobby Barksdale' or Charlie Arnold,
would tell the employees they had to speed up and get
more production.'
Immediately after the election of November 1968, accord-
ing to Wilder, she was moved around in the packing
room, sometimes from coarse to fine yarn and vice versa.
Her testimony as to this changing of assignment after
the election reads:
Q And how often would you say you were moved?
Were you moved every night or every other night,
or once a week, or what?
A. Well, he would move me like tonight, and maybe
tomorrow night, he would move me again , and then
he would leave me two days, and then he would
move me again , and maybe leave me on that one
for a week, and then move me again the next night.
Q Did he tell you why he was doing this?
A No, sir, but I asked him
Q. Can you tell us, please, when you asked him?
A. Well, after I got kind of tired because I was
not making production all the time, and I said, "Bobby,
what do you want to move me for? Move someone
else sometime."
Q. What did he say to that?
A. He said, "We've got somebody out and I need
you to work over there." And that's all he would
say.
without notice that it would be called upon to defend against it, would
certainly have been prejudiced The conduct of the General Counsel
in this specific instance closely approaches what would, when the practice
of law bore some relations to ethical standards, have been considered
sharp practice
' The complaint does not allege Barksdale was a supervisor According
to Wilder, Barksdale gave them a "pep talk" at a preshift meeting
and assigned employees to work stations and relayed instructions from
Arnold I do not find that Barksdale was a supervisor within the meaning
of the Act
' Respondent's records indicate that Wilder had received a writeup
in July 1968, but that this was not directed to her production
OWENS-CORNING FIBERGLAS CORP 81
Q. Now, did this moving around affect your produc-
tion in any way?
A. Yes, sir.
Q. In what way?
A You have to get the feel of the yarn because
it's different weights. These bobbins, some of them
weigh two pounds and some weigh up to seven pounds,
and you have to put so many pounds all the same
weight in one box, etc all down the line. And unless
you were familiar with this yarn, it would slow you
down, because you would have to weigh them until
you would get familiar , and before you would get
familiar with it, then he would move me off again.
In late November 1968, Barksdale told her Arnold wanted
to see her and she received her first "write up" concerning
rejects. Arnold told her they had pulled her pallet and
found 22 of 90 rejects Wilder claimed she had not worked
on this pallet alone and that she was not, therefore , responsi-
ble. Arnold claimed that since her number was on the
pallet she was responsible Later in her testimony she
identified this incident as occurring in January 1969. She
did sign the write up given her at this time because her
name was on the pallet.
After refreshing her recollection from her pretrial affidavit
Wilder testified that she was called to Arnold's office in
November 1968, and told her she was not making produc-
tion. She said she could not because her yarn was bad.
She did, however, sign the write up.
On leaving Arnold's office she met Gary Schultz, day
supervisor, showed him her yarn, and he remarked that
"it sure is bad "' Prior to the election , according to Wilder,
the employees had a quota of nine to ten pallets as a
standard of production, with 90 bobbins to a pallet. After
the election the quota was changed from pallets to bobbins
and the quota was fixed at 1400 to 1700. This, Wilder's
figures are accepted , was a substantial increase in quota.
On January 17, following the rejected pallets interview,
she was called to Arnold's office and told she was not
meeting production and she replied that she was making
9 to 10 pallets a night . Told that the quota had been
raised , she stated that the quota was too high and that
"you can 't hardly get them."
On February 1, she was again called to Arnold's office
and told she was not making production . Her reply this
time was that other girls were getting good stock and
that she was getting the trash . Since her testimony on
Her testimony as to her conversation with Schultz reads
Q Please tell the Court what that conversation was
A Well, I had lust been written up and Gary Schultz came through,
and I stopped him, and I showed him this yarn , and he told me,
he said , "Goodness, it sure is bad" And I said , "Yes, sir, so bad
that I have lust been written up , and I can't help it, with yarn
like this " And Gary Schultz said, "Charlie wrote you up9" And
I said, "Yes, sir, he did " And I said "Now, I can't make production
on this stuff" And I said, "Look, the whole truck is this way"
and he told me, he said, "Well, anybody with any sense could
see that you couldn't make production with this bad yarn" And
he told me that they were working on the yarn, that it had been
bad, and that they were working on the yarn, and to lust do the
best I could And I said, "Yes, but the damage has been done
I have been written up for something I can't help "
this point is difficult to summarize it will be quoted. It
reads:
Q You have testified that Becky Bass and James
Bush had also been working and getting all the good
bobbins, is that right?
A Yes.
Q And did you tell this to Mr Arnold9
A. Yes
Q. What did he say to that, if anything?
A. Well, I told him that Becky and them was taking
the bobbins that they wanted from it to make theirs
and pushing the remainder to the rail, and then they
would claim the whole trucks, and I would be working
the trucks and only get so many bobbins And I said,
"If you don't believe me, you watch her " And he said,
"All right, I will." So she was about completed with a
truck, and she pushed it out, and I told Charlie, I said,
"You just watch her " And he said, " 0 K " So he
walked up toward the front of the room, and to me it
appeared-
Q Well, don't tell us what it appeared, dust tell us
the facts as you know them.
A. All right. He walked to the front of the room and
he didn't bother to look at her She pushed the truck
right back out again and he didn't do anything about
it And James Bush would get the good packing
trucks-if you don't get the packing trucks, you don't
get the pallets and bobbins-and he would let James
Bush pull trucks up against the rail, then hold two or
three and put two trucks inside the packing room;
therefore, it made it difficult for me to get any stock to
pack, good stock I would have to wade through the
trash to get what I was getting And it took longer and
I couldn't make production and I told him
On February 7, she was called to Arnold's office and
told she had put the wrong Daytex label on a box. Wilder
admitted this but was also told she was not the only
one who had made this mistake. Wilder stated this was
her first mistake on labels and that she did not deserve
a writeup for it.
Her last trip to Arnold's office was on February 11.10
This time Arnold told her she had made production only
once in her last 8 days and that she was fired. She told
him she was being fired because of her union activity
and asked to be returned to her old work on the frames.
The discharge stuck without, apparently, further discussion.
Melissa Jane Hillis was employed by Respondent as
a packer since 1965. She testified that in December 1968
Barksdale told the employees they would be on a new
quota basis and would be expected to turn out between
1400 and 1700 bobbins, although their previous quota,
set in September 1968 had been 10 pallets or 900 bobbins.
No explanation was given the employees-they were told
they would meet the new quota or be replaced. Hillis
testified that she could meet the new quota but had to
work hard - "I mean work in a sweat and stay that way
all day to get it." She corroborated Wilder's testimony
10 Each time she was summoned it was Barksdale who advised her
and who went to the office with her where he remained during the
discussions
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that in November 1968 Wilder was working on poor yarn
and that Schultz admitted the yarn was poor. On February
7, she too was reprimanded along with Wilder and Majorie
Cook for putting the wrong label on boxes. The testimony
by both Wilder and Hillis as to whether the wrong label
was put on under directions from Barksdale contributes
little to the discharge issue.
On cross-examination Hillis admitted that she had been
among the first to wear a union button and a T-shirt.
The witness did testify, although her testimony on this
point is not free from some confusion, that in February
she averaged between 1400 and 1700 bobbins, thus making
the quota.
Hillis also testified that if an employee was "moved
around" her production would necessarily drop and that
this had happened to her in September 1968 and that
when Wilder was being moved around she was given bad
yarn to handle.
For Respondent, George Brelsford, personnel manager
of the Aiken plant, testified that in December 1968 the
production record of the "A" shift in the packing room,
the shift on which Wilder was employed, was very slightly
below the record of the other shifts and that in January
1969 it was considerably below the other shifts. This produc-
tion review was made as a part of Respondent's investigation
of the discharge of Wilder." Also as a result of this investiga-
tion it was shown that four other employees on the "A"
shift were written up during January. They were Hilda
Morris, reprimanded for poor performance, Sadie Simpkins,
Bernice Lewis, and Frances Hutton."
Charles Arnold testified that he had been supervisor
of the "A" shift for about one year and a half prior
to the hearing and that production on that shift declined
during January, 1969 As a result Arnold started keeping
production records of individual employees in February.
(Resp. Exh. 7)" According to Arnold, Jean Wilder had,
until her discharge on February 11, the worst production
record of any individual employee on her shift."
This summarizes those portions of the testimony which
I consider relevant to the discharge of Jean Wilder.
B. Conclusions
1. Violations of Section 8(a)(1)
I credit the testimony of Thomas Jenkins that, immediate-
ly following the election, Foreman Bonnet told his men
that they would have to tighten up, and get to work
and that they would be discharged after a second writeup.
This is a clear statement that discipline would be stricter
and, in view of its timing, taken in reprisal for the employees'
prounion vote. I also credit his testimony that the employees
" This production resume was received as Resp Exh 2
2 Resp Exh 3, 4, 5, and 6 Of these Sadie Simpkins and Frances
Hutton were discharged, Bernice Lewis went on maternity leave, and
Hilda Morris was still in the employ of Respondent at the time of
the hearing
" A summary of this exhibit was received as Resp Exh 8
" On rebuttal General Counsel offered testimony of Hillis, who had
started to keep her own production records, to show discrepancies with
those kept by Respondent The records kept by Hillis were too fragmentary
to serve any purpose
in Bonnet 's department would have to meet higher levels
of production. Although this order was relayed from Bonnet
through Grimes the record establishes that Grimes was
an authorized agent of Bonnet for the purpose of carrying
messages to the men and Respondent must, therefore, accept
responsibility. On the other hand there is no evidence
that Grimes was authorized to tell any employee that
Bonnet had stated that the men would have to wait 5
years to get the Union in. This remark, if made, was
not made by Bonnet to any employee nor, on Jenkins'
testimony, was it intended to be conveyed to any employee.
There must be a limit to Grimes' authority to bind Respond-
ent and I would not extend that limit to the relaying
of remarks overheard in management offices.
I also credit, because it is uncontradicted, the testimony
of George Johnson that Gardner told him that the Respond-
ent was not hiring any more Negroes because it thought
they had turned the black employees over to the Teamsters.
This, too, indicates a reprisal against an entire class of
employees for having been suspected of voting pro-Union.
As to the testimony of Gene Smith that his foreman,
Richard Davis, also told his men on the day after election
that they would have to tighten up, stay on the job, and
get to work on time, I find this, to the extent that it
constitutes coercion or restraint, merely cumulative to that
of Jenkins, supra. I do not regard the statement of Davis
that only one man would ride the dump truck to the
dump thereafter as coercive. I credit Davis that this had
been a recurring problem which he had been trying to
solve and, union or no union, he was entitled to resolve
it. Like Davis, I believe it may be necessary for two
men to load a dump truck but not for two men to unload
it. Davis' explanation of his remarks regarding make-up
time were logical rather than coercive. As to the statement
by Davis that Respondent could not grant a wage increase
during negotiations, I thought this, until the General Coun-
sel alleged it as a violation, a simple statement of acknowl-
edged and time-honored Board law. It would appear that
the General Counsel intends to continue his "damned if
you do, damned if you don't" policy condemned by the
court in N.L.R.B. v. Dorn's Transportation Company, 405
F.2d 706 (C.A. 2).
2. Violation of Section 8(a)(3)
The case for the General Counsel rests on the assumption
that Respondent, by discharging one admitted union adher-
ent some 3 months after the last election held at the
plant, sought thereby to discourage union membership in
a plant of some 1800 unit employees. Stated as a naked
proposition it has little rational appeal. The testimony con-
cerning good and bad yarn, moving the dischargee around,
and cheating in the selection of materials by other employees
I find unsusceptible of factual resolution. I find those facts
which are subject to proof do not sustain the allegations
of the complaint.
Wilder had been, as had her friend Hillis, and early
and ardent advocate of the Union. Nevertheless she had
not been subject to harassment of any kind during the
years of 1967 and 1968 when the union campaign was
presumably in full swing. Since her activity was open she
OWENS-CORNING FIBERGLAS CORP 83
was never interrogated about it nor was she ever warned
to restrain it or threatened if she pursued it. She was
discharged solely for the reason that her record for produc-
tion was the poorest of any employee on her shift in
the packing room during the period in February when
she was still employed. I cannot reject the Respondent's
production records for either shift production during Janu-
ary nor individual production during February without
some evidence of error or falsification . Wilder, in fact,
admitted poor production blaming it either on the quality
of her yarn or on excessively high standards . Hillis and
other employees, however, were able to meet those standards,
although Hillis testified it required diligent effort. There
is nothing in the Act which forbids an employer to require
diligent efforts of his employees whether or not they have
engaged in union activity . Further dissertation would involve
surplusage . I find Respondent did not discharge Jean Wilder
in violation of Section 8(a)(3) and (1) of the Act.
IV. THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices it shall be recommended that it cease and
desist from the same and take certain affirmative action
necessary to effectuate the policies of the Act.
While it might be argued that the unfair labor practices
found herein are neither flagrant nor widespread and were
addressed to small groups of employees out of a unit
of some 1800 , I believe that , following the unfair labor
practices found by the Board in Owens-Corning Fiberglas,
supra, a remedial order is warranted
CONCLUSIONS OF LAW
1. By telling its employees on the day after the election
that they would have to tighten up and that they would
be fired after the second wnteup ; that they would have
to increase production or be fired after a second wnteup;
and by telling an employee that Respondent was not hiring
any more colored employees because it felt the Negroes
had gotten together to give the black folks to the Teamsters,
Respondent violated Section 8(a)(1) of the Act.
2. Respondent did not violate Section 8 (a)(3) of the
Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]