P. R. Mallory & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1968

169 N.L.R.B. 42 (N.L.R.B. 1968)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mallory Capacitor Company, A Division of P. R.
Mallory & Co., Inc . and International Union of
Electrical , Radio and Machine Workers,
AFL-CIO. Case 9-CA-4250
January 9, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 17, 1967, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that
Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. The Trial Ex-
aminer also found that the Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint and recommended dismissal as to
them. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings , conclusions,2 and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and or-
ders that the Respondent, Mallory Capacitor Com-
pany, a Division of P. R. Mallory & Co., Inc.,
Glasgow, Kentucky, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Decision.
I General Counsel contends that the Trial Examiner erred in granting
Respondent ' s motion to strike the testimony of General Counsel's witness
Frank Crain because of General Counsel's refusal to produce, under Sec-
tion 102.118 of the Board ' s Rules and Regulations , a statement given by
Crain in connection with the investigation of objections to an election con-
ducted at this plant on December 29, 1966. Crain's testimony consisted
of a statement that he had participated in election campaigns in this plant,
and his identification of a letter , sent to Respondent , naming employee
members of the union organizing committee . Respondent stipulated that
it had received this letter. As Crain's testimony would not effect the deci-
sion reached herein, we find that General Counsel was not prejudiced by
the Trial Examiner' s ruling . See The Borden Company, 157 NLRB 1100,
1101.
2 We do not agree with the Trial Examiner that the Board 's finding in an
barlier proceeding , that the Respondent maintained a rule prohibiting sol-
icitation and distribution of literature during nonwork time in nonwork
areas of the plant in violation of Section 8(a)(1), is resjudicata on the issue
of continued maintenance as alleged in the present proceeding . However
since there is outstanding against Respondent a Board Order to forthwith
rescind the said rule, we find it unnecessary to determine this issue here.
See Fitzgerald Mills Corporation, 139 NLRB 802, 803.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: On charges filed
by International Union of Electrical, Radio and Machine
Workers, AFL-CIO (herein called the Union), the
General Counsel of the National Labor Relations Board
(herein called the Board), on behalf of the Board by the
Regional Director of Region 9 on June 13, 1967, issued
a complaint and notice of hearing in which Mallory
Capacitor Company, a Division of P. R. Mallory & Co.,
Inc., was named as the Respondent. It was alleged that
the Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended (herein called the Act). The
Respondent filed timely answer denying that it had en-
gaged in or was engaging in the unfair labor practices al-
leged.
The case came on for hearing on August 23 and 24,
1967, at Glasgow, Kentucky. Each party was afforded a
full opportunity to be heard, to call, examine and cross-
examine witnesses , to argue orally on the record, to sub-
mit proposed findings of fact and conclusions of law, and
to file briefs. A brief was filed by the Respondent. I
The principal question before the Trial Examiner is
whether the Respondent discharged Darrel B. Van Meter
and Linda Fay Brown on or about January 13, 1967, and
February 23, 1967, respectively, because of their sym-
pathies for, membership in, and activities on behalf of the
Charging Party and for the purpose of discouraging mem-
bership in the Union.2
1 While at the hearing the counsel for the General Counsel stated that
the "General Counsel has no desire to argue orally ," but anticipated the
submission of a brief ; no brief from the General Counsel has been
received by the Trial Examiner . The Charging Party did not file a brief.
2 It was also alleged in the complaint that the Respondent violated Sec-
tion 8(a)(1) of the Act by:
promulgating , publishing , and distributing to its employees a hand-
book containing an unlawful non-solicitation , non-distribution rule
which was and is now maintained and enforced which provides, inter
alia, as follows:
Solicitations , collection of funds, selling among employees,
pledges, subscriptions , circulation of petitions , distribution of
literature , solicitation of memberships or similar activities are not
allowed on company property . Special permission may be
granted in certain instances of recognized charities.
(Footnotes continued on following page)
169 NLRB No. 5
MALLORY CAPACITOR COMPANY
Upon the whole record, and upon his observation of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation engaged in the
manufacture of capacitors in its plant at Glasgow, Ken-
tucky. During the past 12 months, which is a representa-
tive period, Respondent had a direct outflow, in interstate
commerce , of products valued in excess of $50,000 which
it sold and shipped directly to points outside the State of
Kentucky from its Glasgow, Kentucky, plant.
The Trial Examiner finds, as is admitted by the
Respondent, that at all times material herein, the Re-
spondent was an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material
herein a labor organization within the meaning of Section
2(6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Termination of Employment of Darrel B. Van
Meter
Darrel B. Van Meter was first employed in August
1965 as a maintenance and setup man at a starting rate of
$1.35 per hour. About 3 or 4 months later, another em-
ployee was hired for the same job starting at $1.75 per
hour. Van Meter taught the new man the work. Van
Meter was upset and aggravated by the fact that the ju-
nior employee whom he had taught was paid more for the
same job. Van Meter thought it was unfair, and had made
his views known to his superiors.
During the course of his employment, Van Meter
asked for and obtained a series of wage increases. He had
gradually narrowed the gap in wages between himself and
the other maintenance and setup man until at the time he
quit he was receiving "pretty close to" the same amount
as the other employee. His last wage increase which he
had received prior to his termination was on November
7, 1966. This increase brought his wage to $1.85 an hour.
In December 1966 Van Meter asked for an additional
wage increase. Again around the first of January he asked
for a wage increase from his foreman, Sam Meador. Van
Meter testified: `
I asked him if they turned my raise down, or ac-
cepted it, whichever one it was and if he would let me
know about it because I was planning on quitting if
I didn't get it.
Meador responded that he would find out and let him
know.
(Footnotes continued from preceding page)
In Mallory Capacitor Company, 162 NLRB 1404, the Board held that
the foregoing language was violative of Section 8(a)(1) of the Act and or-
dered the Respondent to "Forthwith rescind its existing rule against sol-
icitation and distribution of literature as published in its employee hand-
book to the extent that it prohibits employees from soliciting membership
in a union organization on its premises during nonworking time or from
distributing union literature during nonworking time in nonworking
areas."
43
The Respondent concedes that Van Meter was "active
on behalf of the Union and wore a union button." He had
signed a union card and "gave out two or three buttons."
When Van Meter arrived for work on January 13,
1967, employees in his department were wearing union
buttons. A short time later Van Meter noticed that the
employees had removed the buttons. About the same
time Foreman Meador appeared and told the employees
that "there was going to be a shortage and that they would
have to let them go that night." Van Meter asked whether
he was included in the group. Meador answered, "[N] of
necessarily," unless he wanted to leave. Van Meter said
that he would stay, which was agreeable to Meador. Later
in the day Van Meter asked certain of the employees, one
of whom was Glenn Fudge, why they were not wearing
union buttons. While Van Meter was inquiring of Fudge,
Fudge replaced his union button. At the time Van Meter
observed Meador "standing over there by the desk look-
ing at [them]." Approximately a half hour later Meador
called Van Meter to "an isolated part of the plant" and
told him that he "understood they turned [his] raise
down and tonight would be a good night for [him] to
quit." Van Meter responded that he "would give them
two weeks notice when [he] did and when [he] decided
to quit." Van Meter described the remainder of the con-
versation, ". . . he said `tonight is when you quit' and I
said `you mean right now?' and he said, `right now,' and
then I asked him, I said, I asked him `you mean I don't
even get to finish the week up' and he said, `no,' and then
he picked up the phone beside the desk and called
someplace and told them that that was it, and I said, `I
don't even have a way home, I ride with another em-
ployee although I could call the wife' and he said, `well,
I'll punch your card out and let you go call your wife' and
as I was leaving he called to me and said, `I'll even go
better than that, I'll put on your card that you gave two
weeks notice."' Van Meter proceeded toward the
lunchroom to telephone his wife; Meador followed. Van
Meter turned to him and asked "if it would be all right" if
he told the lady he rode with that he would be going
home. Meador replied that he would see that she received
the message.
Van Meter filed a claim for unemployment compensa-
tion with the Division of Unemployment Insurance of
Kentucky which was denied.3 Van Meter did not appeal.
A transcript taken before an unemployment insurance
examiner reveals that Van Meter testified:
I made the statement that if I didn't get my next raise
that was due I was planning on quitting, but I didn't
say I was giving a date to quit.
In regard to his conversation with Meador on the day
of his termination Van Meter testified before the unem-
ployment insurance examiner:
He taken me off to an isolated part of the plant and
informed me that my raise had been turned down. I
said, well, I was planning on giving two weeks notice.
And be said that won't be necessary, you can quit
Since it appears that the Board has considered the rule and that an ap-
propriate remedy would not differ from the remedy already imposed by
the Board, in this respect, the matter is res adjudicata
3 The findings were, "The claimant quit because his request for a raise
was denied. There was no violation of contract of hire. Therefore the
voluntary quitting was without good cause."
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tonight. That was approximately ten minutes till
seven. It was on the second shift.
The foregoing facts are drawn from Van Meter's un-
contradicted and credited testimony. Meador was not
called as a witness.
In view of the Respondent's union animus' and the lack
of any reasonable explanation as to why Van Meter was
abruptly sent home in the middle of a shift after he had
been allowed to remain even though other employees had
been "let ... go home early" because "there was going to
be a shortage," the Trial Examiner is of the opinion that
Van Meter's precipitous termination of employment was
motivated by union considerations and was touched off
by Meador's observation of employee Fudge's putting
"his button back on" during the conversation with Van
Meter. Moreover, it is reasonable to conclude that
Meador was well aware of the manner in which Van
Meter would react if he were told that his requested wage
increase had been denied and that Meador used Van Me-
ter's anticipated reaction as a pretext for ridding the
Respondent's plant "pronto" of a union partisan. To this
end Meador's action in terminating the employment of
Van Meter was executed in such haste that Van Meter
was never actually given the chance to resign or fix the
time of his resignation. The decision in this regard was
made only by Meador. The record as a whole, all of which
the Trial Examiner has considered, clearly establishes
that the "real motive"5 for the Respondent's conduct
detailed above was because of his union sympathies and
for the purpose of discouraging membership in a labor or-
ganization.
The Trial Examiner finds that by the discharge of Dar-
rel B. Van Meter on January 13, 1967, the Respondent
violated Section 8(a)(3) of the Act.
B. The Discharge of Linda Fay Brown
On July 18, 1966, the Respondent published a policy
on absenteeism. The policy provided that when an em-
ployee was absent for any reason on three occasions in 1
calendar month or on four occasions within 2 consecutive
calendar months, he was to receive a written warning, and
if within a 6-month period following the warning the em-
ployee was again absent on three occasions within 1
calendar month or four occasions within 2 consecutive
calendar months, he would be discharged. The policy also
provided that if an employee was absent for 3 consecutive
days without notifying the Company, he would be
released. The only exceptions to the policy were when an
employee was on a paid vacation or paid holiday or
granted a leave of absence for pregnancy, jury duty, or
forced military service. In the application of the policy, an
occasion of absence was construed as a period of con-
tinued absence and could be a day or several consecutive
days of absence.
Under the policy the Respondent's foremen had no
authority to excuse employee absences or waive the ab-
senteeism policy. Jack Brenner, the plant manager,
testified that the plant manager had only that authority.
" See Mallory Capacitor Company, 162 NLRB 1404.
, "It is the 'true purpose ' or 'real motive ' in hiring or firing that con-
stitutes the test ." Local 357, International Brotherhood of Teamsters,
etc. v. N.L.R.B., 365 U.S. 667, 675.
According to Brenner, the policy had been waived in only
two cases in the past: once when the employee's absence
was due to her house burning down and another when the
employee had to take his daughter to Louisville for treat-
ment of a deformed leg. Personal sickness of an employee
had never been considered a ground for a waiver. Any in-
formation or recommendation concerning a particular
employee's circumstances which might warrant a waiver
of the absenteeism policy came to Brenner's attention
through the plant superintendent, who would have access
to any such information through direct-line supervision.
The foremen, who kept their own records of absentee-
ism, were charged with the responsibility of initiating ac-
tion under the policy. If a foreman failed to issue a warn-
ing or failed to initiate the discharge of an employee who
had violated the policy, chances were he would escape
the consequences of his absenteeism since there was no
monitoring action by the personnel department.
The absentee policy was in effect on February 23,
1967, the date of Linda Fay Brown's discharge, and
Brown was familiar with the policy. Moreover, the
General Counsel concedes that on the date of her
discharge Brown was in violation of the policy and was
subject to discharge thereunder.
Brown worked for the Respondent for about 11 months
as a roller. Her foreman was Dennie Gooden. The
Respondent admitted, ". . . she openly wore a button in
the plant just as she testified. We knew that she was ac-
tive in the union. Her name was in one of the letters we
got." Brown passed out union leaflets, solicited em-
ployees, and served on a "voluntary organizing commit-
tee."
On February 13, 1967, Brown and employee Clara
May Puckett distributed union leaflets at the front steps
of the plant after work; Plant Superintendent Garrison
directed them to distribute the leaflets at the plant gate
rather than on the front steps.
When Brown arrived for work on February 23, 1967,
Brown, at the request of her general foreman, Lloyd Dix-
on, accompanied Dixon to the front office where she
remained seated while he went into Superintendent Gar-
rison's office. Dixon remarked to Brown that she was
being "released for absenteeism" and that he did not want
to tell her that "out front" because he did not "think it
was any of their business."
Dixon reappeared with a sheet of paper on which he
pointed out Brown's absences. She responded that she
had a doctor's statement for the days that she was absent.
He said "doctor's statements don't count." He added "I
guess you know the real reason we are releasing you."
Brown said " . . yes I guess you know I will file
charges. 116 Dixon left.
Betty Williams, an employee of the personnel depart-
ment, appeared and asked Brown whether she had been
"told." Brown answered affirmatively and inquired about
her insurance. She was informed that it would be auto-
matically dropped and that she could get a refund on her
uniforms. Information was also given to her respecting
her bonds. Upon the request of Brown, Williams obtained
6 Dixon's testimony was substantially the same as that of Brown except
that Dixon denied that he said, "I guess you know the real reason I am
releasing you" and "yes and I guess you know I will file charges."
MALLORY CAPACITOR COMPANY
Brown's check which she gave to her together with a
warning slip.7 Brown showed the doctor's statements to
Williams. The conversation ended at this point and
Brown went to the lunchroom, where she called her
sister-in-law to come to get her.
The "Summary of Employee Absenteeism" (July 18,
1966, to April 15, 1967) prepared by the Respondent and
offered into evidence by the General Counsel discloses
a number of cases in which employees should have
received warnings for absenteeism but were not warned
and several cases in which employees should have been
discharged as violators of the policy but were not. One of
these latter employees was Clara May Puckett, who was
a member of the union organizing committee and was
identified by Brown as the one who, with her, distributed
union literature on company property. Brown, according
to the summary, should have received a warning in
respect to three occasions of absence in August, but did
not.
After all parties had rested, the Respondent moved to
dismiss the complaint .9 While, as in the case of Mallory
Capacitor Company, 163 NLRB 383, the circumstances
surrounding the discharge of Brown are of a suspicious
nature when considered in the light of the findings made
in Mallory Capacitor Company, 162 NLRB 1404,
nevertheless, based upon the criterion applied in 163
NLRB 383, the Trial Examiner is of the opinion that the
General Counsel has not established a prima facie case
supporting a violation of the Act in regard to the
discharge of Brown as alleged in the complaint. The
Respondent's motion to dismiss is granted in part and de-
nied in part and the allegations in the complaint involving
Brown are dismissed.
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 relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that the Respondent unlawfully
terminated the employment of Darrel B. Van Meter, it is
recommended that the Respondent, in accordance with
Board policy,10 offer Darrel B. Van Meter immediate and
full reinstatement to his former or substantially
equivalent position and without prejudice to his seniority
9 The warning slip entitled, "Avoid Verbal Orders," dated February
22, 1967, disclosed the following language, "This warning is being given
because of of [sic] your absence on two separate occasions in Jan and
Feb. Jan 9th & 10th & 19. Feb 6th & 22. This is your final warning You
are being released for absenteeism." The statement was signed by D
Gooden.
8 The doctor's statement from Lawrence P. Emberton, M.D., dated
February 22, 1967, noted, "Linda Brown made a call to my office today."
45
or other rights and privileges, and make him whole for
any loss of earnings he may have suffered as a result of
the discrimination against him by payment to him of a
sum of money equal to the amount he would have earned
from the date of his discriminatory separation from em-
ployment to the date of an offer of reinstatement,'' less
net earnings during said period to be computed on a quar-
terly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, and shall in-
clude interest at the rate of 6 percent per annum to be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act , and it will ef-
fectuate the purposes of the Act for jurisdiction to be ex-
ercised herein.
3. By unlawfully separating Darrel B . Van Meter from
employment on January 13, 1967, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, it is recommended that Respondent, Mallory
Capacitor Company, A Division of P. R. Mallory & Co.,
Inc., Glasgow, Kentucky, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from discouraging membership in
the International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization by
discriminatorily discharging any of its employees or dis-
criminating in any other manner in respect to their hire or
tenure of employment, or any term or condition of em-
ployment.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Darrel B. Van Meter immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay which
may have been incurred by reason of the Respondent's
discrimination against him in accordance with the recom-
mendations set forth in the section of this Decision enti-
tled "The Recommended Remedy."
(b) Notify Darrel B. Van Meter if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
9 At the close of the General Counsel' s case-in-chief the Respondent
moved to dismiss "each allegation of the complaint for the reason that the
evidence presented in this case does not sustain the allegations for the
complaint as a whole or in part of the individual allegations of the com-
plaint."
to See The Rushton Company, 158 NLRB 1730, fn. 2.
31 Since the record is not clear as to when Van Meter would have quit,
if at all, backpay is recommended for the entire backpay period.
46 DECISIONS OF NATIONAL
Selective Service Act and the Universal Military Train-
ing 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
under the terms of this Recommended Order.
(d) Post at its Glasgow, Kentucky, plant, copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive 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 said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Recommended
Order, what steps have been taken to comply herewith.13
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.
12 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."
1s In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
LABOR RELATIONS BOARD
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 discourage union activity or mem-
bership in the International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or any
other labor organization by discharging any of our
employees.
WE WILL offer Darrel B. Van Meter, whom we
separated from employment, full reinstatement to his
old job or a substantially equivalent job and we will
pay him any loss of pay which he has suffered
because we treated him in this manner.
MALLORY CAPACITOR COM-
PANY, A DIVISION OF P. R.
MALLORY & CO., INC.
(Employer)
Dated By
(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, Federal Office
Building, Room 2407, 550 Main Street, Cincinnati, Ohio
45202, Telephone 6843686.