Phillips Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 2, 1965

155 N.L.R.B. 512 (N.L.R.B. 1965)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Elaine McCandless, Norma Milby, Ruby Wright, Margaret
Bishop, Clara O'Bannon, and Mildred D. Robinson their former or substan-
tially equivalent jobs, and pay each of them for wages lost from the date of
their respective discharges until the date of such offer of reemployment. We
shall also compensate Ruby Wright, Margaret Bishop, Clara O'Bannon, and
Mildred D. Robinson for time lost by them through suspension from work on
August 26 and 27, 1964.
WE WILL NOT threaten or interrogate our employees with respect to their
membership in, or activities on behalf of, Retail Clerks Union Local No. 445
chartered by Retail Clerks International Association, AFL-CIO, or any other
labor organization.
WE WILL NOT discriminate against any employee because of membership in
Retail Clerks Union Local No. 445 chartered by Retail Clerks International
Association, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed under Section 7 of the Act,
except to the extent that such rights may be effected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of said Retail Clerks Union Local No. 445
chartered by Retail Clerks International Association, AFL-CIO, or any other labor
organization.
MONTGOMERY WARD & CO., INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any questions concerning this notice of compliance with
this provision.
Phillips Manufacturing Company and International Union, Allied
Industrial Workers of America, AFL-CIO. Case No. 13-CA-
6851. November 2,1965
DECISION AND ORDER
On July 23, 1965, Trial Examiner Harry H. Luskin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.'
1 The Respondent also filed a motion to correct and transpose portions of the record.
The General Counsel filed an opposition thereto, and the Respondent filed a response.
The Board finds the motion without merit. It is accordingly denied.
Our careful review of the entire record satisfies us that the Respondent's allegations
of bias and prejudice on the part of the Trial Examiner are entirely without foundation.
155 NLRB No. 56.
PHILLIPS MANUFACTURING COMPANY 513
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 [Chairman McCulloch and Members Fanning and Jenkins].
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 Exam-
iner's Decision, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Harry H. Kuskin at Chicago,
Illinois, on May 12 and 13, 1965, pursuant to a charge filed on January 18, 1965,
and a complaint issued on March 11, 1965. It presents the questions of whether the
Respondent has since on or about January 8, 1964, maintained in force and effect an
unlawful no-solicitation rule and no-distribution rule in violation of Section 8 (a) (1)
of the Act and whether the Respondent, on or about January 15, 1965, discharged
employee Roy B. Amerson in violation of Section 8(a)(3) and (1) of the Act. A
brief was filed by the General Counsel after the hearing. Upon the entire record 1
and from my observation of the witnesses, including their demeanor while on the
witness stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent operates a plant in Lincolnwood, Illinois, where it is engaged in
the manufacture and sale of machinery cleaning equipment and in the nationwide
distribution of machinery cleaning solvents. During the past calendar year, the
Respondent shipped from this plant directly to points outside Illinois goods and
products valued in excess of $50,000. I find, as the Respondent concedes, that it is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, Allied Industrial Workers of America, AFL-CIO, herein
called the Union , is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and summary of events
The Union began to organize the employees at the Lincolnwood plant in the spring
of 1963. These activities resulted in an election in July 1963, which the Union lost.
In connection with these organizational efforts, the Board, pursuant to a charge filed
by the Union and a complaint issued, found that the Respondent had violated the
Act in several respects (148 NLRB 1420). The Board found 8(a)(3) and (1) in
the discriminatory discharges of two employees in June and September 1963, respec-
tively, and 8 (a) (1) in the interrogation, prior to the July 1963 election, of employees
as to their feelings respecting the Union and the identity of the person behind the
union movement in the plant and in the announcement on the eve of that election
of improvement in employee benefits. Although the Board, in this consolidated com-
plaint and representation proceeding, also set aside the July 1963 election, it allowed
'As corrected by my order correcting transcript dated June 22, 1965.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union to sever the representation case and granted its request for withdrawal
of the petition with prejudice? Shortly after the decision issued on September 29,
1964, Michael Serrano, the business agent of region 9 of the Union, made abortive
overtures to Milton Werner, the vice president and general manager in charge of
the Lincolnwood plant,3 to gain recognition and a contract and to resolve the pending
litigation. Thereafter, in the latter part of October, organizational efforts were
resumed by the Union. At that time, there were in effect company work rules which
had been promulgated in May of that year. These rules regulated employees' con-
duct, including such matters as union solicitation and distribution of union literature.
On December 1, 1964, the Union filed a representation petition with the Board for
an election among the Respondent's employees. On January 8, 1965, Truck Drivers,
Chauffeurs & Helpers Union of Chicago & Vicinity also filed a petition for an
election. On January 15, 1965, Amerson was discharged.
B. The no-solicitation rule and the no-distribution rule
Sometime in May or June 1964, the Respondent distributed a book of work rules
to its employees. Employee Mac Farlane, who was employed subsequently, received
his book of rules shortly after he started working. The rule book was current at
the time of Amerson's discharge. Among these rules were the following:
16. Miscellaneous
Employees will be discharged for any of following acts:
0. Unauthorized peddling, canvassing, soliciting or collecting contributions
on Company premises, for any purpose whatsoever.
P. Unauthorized distribution of written or printed matter on Company prem-
ises, or the posting, removal or altering of notices, signs, or writings, in any
form, on Bulletin Boards or Company property.
The complaint alleges that the above-quoted rules are invalid in that they prohibit
employees from engaging in union or concerted activities at all times on the Respond-
ent's premises. The rules are so broadly drawn that they impliedly include union
solicitation during nonworking time and the distribution of union literature during
nonworking time in nonworking areas. No evidence was adduced by the Respondent
to indicate special circumstances that would make it necessary to extend these rules
to nonworking time and nonworking areas in order to maintain production or disci-
pline. And, while the rules arguably permit union solicitation or distribution of
union literature, if authorized, this avails the Respondent nothing because an employer
may not predicate the exercise of Section 7 rights on his own authorization. I, there-
fore, find and conclude that the Respondent maintained an invalid no-solicitation
rule and no-distribution rule in violation of Section 8(a) (1) of the Act.4
C. The discharge of Roy B. Amerson
Amerson was discharged on January 15, 1965, by Vice President and General
Manager Werner. At that time, he was summoned to Werner's office and handed a
termination slip indicating his discharge effective as of that date and giving as the
reasons therefor:
1. Work Not Satisfactory. 2. Spoiled Important Job With Important Cus-
tomer (Bell & Howell) Jepordizing [sic] All Future Business.
It is the position of the General Counsel that the reasons assigned were a pretext
and mask the real reason, which was Amerson's union activity.
1. Amerson's employment history
Amerson began his employment with the Respondent in April 1959.5 After 16
months, he quit. Amerson was then rehired in June 1961 and worked continuously
21 take official notice of this proceeding but, like other evidence herein which antedates
the 10(b) period, I consider it only as background.
s The complaint alleges, and the answer admits, that Milton Werner and also Plant
Superintendent Fred Tolzien , mentioned hereinafter, are agents of the Respondent acting
on its behalf and are supervisors within the meaning of Section 2(11) of the Act.
4 Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 616-617 ; Shawnee Industries, Inc.,
Subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451 ; Remington Rand Corpo-
ration, 141 NLRB 1052; Armco Steel Corporation, 148 NLRB 1179; N.L.R.B. v. United
Aircraft Corp. and Whitney Aircraft Div, 324 F. 2d 128 (C.A. 2), enfg. 139 NLRB 39.
6 Unless otherwise indicated, the findings which follow are based on testimony uncon-
troverted in the record.
PHILLIPS MANUFACTURING COMPANY 515
until he was discharged. During both employment periods, he performed assembly
and maintenance work. The latter consisted of general maintenance, carpentry,
painting, plumbing, pipefitting, and electrical work, while the former involved the
assembly of degreasing machines. During the first period he had received several
raises so that, when he quit, he was earning $1.85 per hour rather than his starting
rate of $1.56. During the more recent period, he started at $1.85 an hour and,
during 1963, his hourly rate had reached $2.25 on the day shift and $2.40 on the
night shift. While working on the night shift in 1963, he acted as a group leader
and head assembler. In the middle of 1964 his hourly rate was increased by 10 cents.
During each year of his employment, Amerson received bonuses as follows: a $25
bonus in December 1960 and December 1961; a $50 bonus in December 1962; and a
$100 bonus in December 1963 and in December 1964. According to Milton Werner,
bonuses depend upon whether an employee is performing well. With specific refer-
ence to the last bonus, Werner testified, "When it came to bonus time, I said he was a
good employee otherwise I would have fired him in '63." Plant Superintendent
Fred Tolzien also considered Amerson a good worker. Amerson had never been
laid off or discharged by the Respondent, nor had he ever received a written repri-
mand, written warning, or 3-day layoff, the warning and layoff being required under
the Respondent's rule 13 entitled "Standards of Workmanship." He received as
much as, or more, overtime than any one in the plant. And, at his request, the
Respondent hired his two sons and a son-in-law.
2. Amerson's union activity
Amerson participated in the Union's organizational activity at the Respondent's
plant in 1963. He was given some union authorization cards by Serrano, the business
agent of the Union, signed a card himself, and distributed cards to other employees.
During this period, Amerson had a conversation about the Union with Superintendent
Tolzien at Tolzien's desk, located in the middle of the main plant. After Amerson
told Tolzien, in response to the latter's probing, that the Union is good for the men
and also for the Company, Tolzien said, "They wouldn't like to hear that up there
and nodded towards the office." When organizational activity resumed in 1964,
Amerson became active again. In the latter part of October, Serrano got in touch
with Amerson at his home and gave him about a dozen authorization cards for dis-
tribution. Amerson, in turn, distributed cards at the plant and got employees to
sign them, six of whom are identified in the record. He also handbilled employees
openly on the parking lot adjacent to the rear of the plant, and enlisted the aid of
two of these six employees in the distribution of cards. Amerson testified that his
organizational efforts, which continued up to the time of his discharge, included
discussion of the Union with employees in the plant during lunch periods and breaks,
after work, and sometimes during working hours.
3. Amerson's work on the Bell and Howell job
According to the Respondent, Amerson's discharge occurred shortly after it learned
of his defective work on the Bell and Howell job. In effect, it attributes carelessness
to him in not following established procedures in getting the parts needed for the
job and consequently getting the wrong motor and pulley and mounting them on a
lip vent.
With respect to the Respondent's procedures on assembly work of the kind involved
here, Amerson testified to the following: Roman Scoczpanic, herein called Roman,
a group leader, assigned the assembly work for him.6 With a shop order in his
possession, bearing the name of the customer ordering the assembled product, Amer-
son would then, as a rule, go to the stockroom to get the parts to be used 7 and
assemble them at his bench. The parts were kept in a box, tote box, or basket bear-
ing the customer's name and were placed there, in accordance with a parts list, by
Rudy Gorgola, the stockman. An assembler did not always get a blueprint or a
parts list with his assembly work. He had no responsibility to check the parts list,
e The General Counsel requests that no decision be made here on the supervisory status
of Roman , as his status is the subject of a hearing on challenged ballots based on the
election held pursuant to the recent petitions. Since the status of Roman is not critical
to the disposition of the issues deriving from the discharge of Amerson, I make no such
findings here.
° Sometimes the parts involved were already at the machine to be assembled when the
assignment was made.
212-809-66-vol. 155-34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is generally kept on the shipping and receiving clerk's desk, for size, serial
number, etc., as the orders were "to use what was in those boxes." However, when
special sized motors or fans or special equipment was involved, as in the case of
the Bell and Howell job, the instructions were to check the shop order and the blue-
print, if it was available, and if in doubt about how a machine was to be assembled,
the assembler was to take it up with his foreman .8 While he was doing assembly
work, Amerson was checked by Roman, who worked at assembling for 1 or 2 hours
daily and checked assemblers for the rest of each day. Roman and Plant Superin-
tendent Tolzien would then check the machinery after it is assembled.
With respect to special jobs, Milton Werner testified that a blueprint and a parts
list are necessary, that if a job comes through without these documents, the employee
should go to his group leader to see why they are missing, as it is the responsibility
of that assembler to see that all the parts and the correct parts are there. Werner
added that, if an assembler is an experienced man, he might be told by the group
leader to go ahead on a certain part until the other parts can be found or arranged
for; otherwise he would be assigned to another job until the parts are available. He
also testified that he would hold the group leader responsible for all the work which
he oversees. In this connection, Tolzien testified that Amerson would see Roman,
his group leader, if he had any problems; if his group leader could help him, Amerson
would proceed on the instructions given; if not, Tolzien would help him. He added
that Roman would inspect any job that left the plant.
The aforementioned Bell and Howell job, which played a crucial part in Amer-
son's discharge was assigned to Amerson some time in December 1964 by Roman,
his group leader. The job involved assembling a motor on a lip vent for a special
rust inhibitor tank. The lip vent carries fumes away from the tank. It is clear that
Amerson put what proved to be the wrong motor and pulley on this machine under
the following circumstances: Roman assigned the job to Amerson. Amerson there-
upon asked Roman where he could get the motor and both Roman and he went to
the stockroom. In the stockroom, they found three boxes side by side bearing the
Bell and Howell name. They found two motors-a pump motor in one box and
another motor in a second box. Amerson inquired as to whether the latter motor
was the one to be used and Roman said it was. Amerson took the motor and the
pulley from the same box. Amerson had no parts list or blueprint. A parts list
would have included a description of the motor to be used . As to the blueprint,
Amerson testified that "sometimes the blueprint would show the side the motor
went in . . ." and that "a lot of times" it will show the size of the motor to be used.
This was the first time that Amerson had assembled this type of machine . At first,
Amerson could not figure out how the mounting was to be done and he asked both
Tolzien and John Schmiel, a welder group leader, for the blueprint. Upon noticing
what Amerson was doing, Schmiel told him that the motor was on wrong and
explained how it should be mounted. Although Tolzien and Schmiel went looking
for the blueprint and did find it, Amerson had by that time succeeded in assembling
the motor to the lip vent. When Amerson obtained the blueprint, he did not check
it. Milton Werner testified that the Bell and Howell job was tested thereafter only
for tank leaks, and he did not know whether Roman saw the completed job.
About a day or two after the machine was installed at the Bell and Howell plant,
which was located nearby, and about 10 days before Amerson' s discharge, the
Respondent received a complaint from Bell and Howell that the equipment was not
exhausting the fumes fast enough. A check had been installed and that the pulley
was the wrong pulley. The parts required were then installed and the incident was
reported to Milton Werner by Superintendent Tolzien "a day or so" before Amerson's
discharge. According to Werner his concern was twofold; i.e., with the faulty
assembly and the possible damage therefrom by rust to parts being processed and
by fumes to plant personnel and with the possible impact of this incident on future
business with Bell and Howell, a big company. He requested Tolzien to check into
the matter to find out who is responsible and to report to him. When Tolzien
reported that Amerson did the assembly work, Werner instructed Tolzien to check
further with others, mentioning Roman by name, to find out how this could have
happened. Werner learned thereafter from time slips and from Tolzien that Amer-
son had mounted the machine without checking to see whether it was correct.
8 Rule 13, Standards of Workmanship, says in this connection: "When an employee is
in doubt as to the manner in which assigned work is to be performed the employee is
required to request necessary information and instructions from the foreman."
PHILLIPS MANUFACTURING COMPANY 517
Whereupon, Werner told Tolzien that Amerson was to be discharged and that he,
Tolzien, was to bring Amerson into his office at the end of the workdays Werner
had both a dismissal slip and a check prepared for the 2 day's pay covering Thursday
and Friday, January 14 andl5 (the work period had ended on Wednesday of that
week), and when Amerson appeared with Tolzien, Werner presented them to Amer-
son. Amerson had that morning received his check for the work period ending
on Wednesday.
Tolzien testified that during his investigation of the Bell and Howell job, he spoke
to Amerson asking him whether he had put the motor on the machine, that Amerson
said he had, and that was the extent of the conversation. According to Amerson,
he had a conversation with Tolzien on the Wednesday or Thursday before the dis-
charge in the assembly department. At that time, Tolzien said, "Come here for a
minute Roy and ... Roman, you come on, too, I want you to hear this." Tolzien
then asked him, in the presence of Roman, where he got the motor and pulley for
Bell and Howell job and he replied that both came out of the box marked
"Bell and Howell," out of the stockroom. Whereupon, Tolzien asked whether there
was another pulley in there and Amerson replied that he did not know. At this
point, Roman interjected, "You can't lay that on one man.... There were five of
us involved in this. Mrs. Betty Lascody, Rudy Gorgola (both of them worked in
the stockroom) and Roy put the motor on and ... me and you are supposed to test
the machine out before it went out and we didn't do it." According to Amerson,
nothing else was said by Tolzien, who walked away. Although Roman did not
testify, it was stipulated that if called, he would testify "that he did not tell Amerson,
in substance , that they cannot hold you responsible for the defective work on the
Bell and Howell machine." Tolzien also testified to the same effect.
I find it unnecessary to decide whether this discussion took place in the manner
testified to by Amerson, for it is clear from other testimony as to the Respondent's
established assembly procedures and as to the very procedure followed in the han-
dling of the Bell and Howell job that other individuals, including Roman and
Tolzien, had some responsibility in the matter.
4. The discharge interview and subsequent events
Amerson testified as follows: Tolzien approached him about 3:30 p.m. on Friday
and said that Milton Werner wanted to see him before he went home. He changed
his clothes and sought out Tolzien , who said, as already found , "let's go in and see
what Werner wants." When they arrived in Werner's office, Werner opened the
discussion by saying , "I'm going to have to let you go." Amerson inquired as to
the reason and Werner said, "That mistake you made on that Bell and Howell
machine on that motor." Amerson replied, "Mr. Werner that is too thin there have
been larger mistakes made than that and nobody discharged for it, that won't stand
up." 10 Amerson mentioned that Roman had told him "you can't lay that on no
one man." Werner then handed Amerson his check and said, "We're going to have
to let you go anyhow." Amerson was also handed the termination slip, referred to
above, on which was set forth the reasons for the discharge. According to Amerson,
the reference therein to his unsatisfactory work and putting future business from Bell
and Howell in jeopardy was not commented upon by Werner. Amerson accepted
the check under protest and left. Shortly thereafter, he returned to ask Werner
whether Werner would oppose his getting unemployment compensation and Werner
said he would not oppose it. Amerson noticed thereafter that the check was unsigned.
He tried, without success, on Saturday to get someone at the plant to sign it. He
returned again on Tuesday afternoon. At that time he saw Werner at the front
office of the plant and Werner signed the check. Amerson then made a claim for
some differential pay due him and there was some discussion about it.11 Later that
e Although Werner testified that he had a consultation with Tolzien and the recommen-
dation was that "we would fire Amerson ," Tolzien's testimony is conflicting . Tolzien
testified that Werner did not ask him for a recommendation and that he first learned that
Amerson was to be discharged when Werner told him to call Amerson to his office In
view of Toizien's denial that he was asked for his recommendation and the uncontradicted
testimony of Amerson that Tolzien , just before the discharge , said to him , "Let's go in
and see what Werner wants," I find that Werner made the decision to discharge Amerson
without a recommendation from Tolzien.
io While Amerson detailed two instances as illustrative of other mistakes made by
employees , the record shows that those were service calls which did not involve any error
in the job as delivered by the Respondent.
"The differential pay question was resolved thereafter and payment was made.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, while in the backyard of the plant, Amerson asked Werner for a letter of recom-
mendation for another job at some other place and Werner said, "I will give you a
good recommendation all right but I don't want you to be back out here talking.
to these men."
Werner's testimony varies from that of Amerson in the following respects: Accord-
ing to Werner, he told Amerson at the discharge interview that he was sorry to have
to let him go, that his work was unsatisfactory, and that he had spoiled a very impor-
tant job, the Bell and Howell job, jeopardizing all future business and that a man
of Amerson's experience should not have made a mistake of this type. Werner
testified that he could not recall any remark by Amerson as to bigger mistakes having
been made at the plant by others. He also denied having said, in substance, "Well,
you are fired anyhow." As to the Tuesday meeting with Amerson, when the check
was signed, Werner attributed to Amerson the remark that he, Amerson, had no
hard feelings. Werner did not testify as to any subsequent conversation with Amer-
son that day on the subject of a job recommendation to other employers.
Tolzien's testimony as to the discharge interview was more summary than that of
Werner. He testified, in substance, that Werner discussed the mistake made on the
Bell and Howell job and told Amerson that he was being discharged therefor, and
that Amerson said "something to the effect that there were other mistakes made."
He did not recall Werner having said, in substance or effect, "I'm going to fire you
anyhow." 12 He was not present during the other meetings between Amerson and
Werner.
Upon a careful appraisal of the foregoing evidence and, in light of my findings
hereinafter as to the shifting nature and unreliability of Werner's testimony as to
the factors which persuaded him to discharge Amerson, the fact that, contrary to
Werner's denial that Amerson talked about other mistakes having been made,
Tolzien corroborated Amerson, and from my observation of these witnesses, I am
persuaded that Amerson's account of the interview is the more credible. In crediting
Amerson, I take into consideration that, at one point during his cross-examination,
Amerson denied, and then admitted, that Werner had told him during the interview
that he, Werner, was going to have to let him go because of the mistake on the Bell
and Howell job and that the mistake should not have been made. However, since
Amerson's admission was not significantly different from what he had already testi-
fied on direct, I do not regard this lapse or temporary contradiction as undermining
Amerson's veracity. 1, therefore, find that the interview occurred substantially as
Amerson testified, and that Amerson did say that the mistake on the Bell and Howell
machine as a reason for the discharge was too thin and that there had been larger
mistakes made without discharge of the individual involved. I find, further, that
Werner then replied, "We're going to have to let you go anyhow." I also credit
Amerson and find that, when Werner signed the check for Amerson the following
Tuesday, he did not say to Werner that he had no hard feelings. Additionally, I
credit the uncontradicted testimony of Amerson that, later that day, Werner, in
response to a request by Amerson for a letter of recommendation to other employers,
said that "I will give you a good recommendation but I don't want you to be back
out here talking to the men."
Thereafter, Amerson filed a claim with the Division of Unemployment Compensa-
tion of the State of Illinois and completed a form in that connection. Although the
form bearing Amerson's name which was introduced as Respondent's Exhibit No. 1
shows a checkmark in the box saving that Amerson lost his last job because of lack
of work; Amerson denied that he put the mark there. The form also has a box
upon which can be indicated "other reason" but that box is vacant. According to
Amerson, he had indicated as the reason, "cut off," and he did not see the above
checkmark on the form when he signed it. In view of Amerson's denial and the
record facts showing that lack of work was clearly not the reason for the discharge,
and in the absence of evidence showing that Amerson put the checkmark on the form
or concurred in the marking thereon, I credit Amerson's denial.
5. Conclusions
The Unconvincing Reasons Given by the Respondent for Amerson's Discharge
As already indicated, at the time of his discharge Amerson was given the general
reason of unsatisfactory work and the more specific reason of having spoiled the
Bell and Howell job, a very important job, thereby jeopardizing all future business
with an important customer. Werner's testimony at the hearing, however, was that
Amerson was discharged for two reasons; i.e., the burning up in January 1963 of
12 Although one Eli Smith was present during the discharge interview, he did not testify.
According to Tolsien, neither he nor Smith made any statements during the interview.
PHILLIPS MANUFACTURING COMPANY 519
the degreaser intended for its customer, Alcoa, and the "second big mistake" on the
Bell and Howell job. Werner did not testify as to the circumstances of the Alcoa
job, but Amerson did. According to Amerson, he was then a group leader on the
night shift in charge of assembly work. His orders were to leave alone, and not
interfere with, the Alcoa machine (an ultra-sonic machine), which was in the
assembly department, as the ultra-sonic men upstairs would take care of it. The
assembly crew had therefore left the machine alone. On the occasion in question,
the assembly crew was working in the welding department and Amerson had no way
of knowing that the machine was burning up. When Amerson did go up to the
assembly department after supper, he smelled the machine burning and "pulled the
plug out." Amerson was not given any "memorandum of criticism or warning" by
the Respondent, but he acknowledged being told by Werner that he, Werner, felt
that Amerson was responsible. Werner testified that he fixed the responsibility on
Amerson because "he was the group leader at the time the machine burned up and
regardless of what else happened, Amerson was the man in charge of the night shift
that night, in that department. If there was a machine being run or tested he should
have been in there watching it and I was holding him completely responsible for it."
Although it appears that Amerson was reprimanded at the time, I credit his testimony
that he was blameless in the matter.13 In any event, I am not persuaded that the
Alcoa incident was an operative factor in the Respondent's decision to discharge.
Thus, the incident had occurred more than 2 years before and, since that time, Amer-
son had been rewarded with pay raises and bonuses in recognition of his good work.
Indeed, Werner testified as to the bonus in December 1964, "when it came to bonus
time, I said he was a good employee otherwise I would have fired him in '63." Fur-
thermore, Werner made no reference to the Alcoa incident during the discharge inter-
view. For all these reasons, I conclude that the Alcoa incident was injected at the
hearing by the Respondent as an afterthought.
It was apparent at the hearing that, although the Respondent's rules and regula-
tions were in effect at the time of Amerson's discharge, the Respondent decided upon
this discharge independently of its rules. Thus, rule 13 entitled "Standards of
Workmanship" would have required a written warning for the first offense, a 3-day
layoff for the second offense, and a discharge for the third offense.14 Werner admitted
that he did not give Amerson any written notice with respect to the Bell and Howell
job. It is significant, too, that, when specifically questioned about the rules, Werner
indicated that he tried to enforce them, yet he conceded at the same time that he had
read the rules not more than once. And with specific reference to the rule or rules
invoked by him in discharging Amerson, Werner testified, "I don't know if it was a
specific rule." Further, when pressed by counsel for the General Counsel on cross-
examination, as to whether any specific rule was, in fact, violated, Werner testified
variously that rule 7 was the only rule violated and that several rules were violated.
Rule 7 is entitled "Destruction of Company Property" and provides that: "Defac-
ing or destroying or willfully neglecting company property is prohibited. First
offense: Discharge." Werner indicated that in referring to this rule, he had in mind
the destruction of property relating to the Alcoa job and that was the reason.15 He
then testified that the combination of the burning up of the tank and the mistake on
the Bell and Howell job which jeopardized the Respondent's business was reason
enough, but admitted that the Respondent had no rule similar to the reason given
to Amerson at the time of his discharge. He concluded this portion of his testimony
by indicating that the discharge falls under the following: rules 7 and 13 and provision
2 on page 5 of the rule which says, "Where a single incident of employee conduct
violates more than one rule, the employee shall be deemed to have committed sep-
arate violations of the rules involved." It is patent, however, that the Alcoa job and
the Bell and Howell job involved separate incidents and neither job incident could
13 See footnote 16, infra
14 This rule reads as follows:
13. Standards of Workmanship
Employees are expected to maintain their workmanship according to Company
methods and standards. The standards and requirements of all work assigned to
employees are known by their supervisor. When an employee is in doubt as to the
manner in which assigned work is to be performed, the employee is required to request
necessary information from the foreman.
First offense: Written Warning
Second offense: Three-Day Lay Off
Third offense: Discharge
15Earlier he bad testified that while it was the only rule violated, it was not the only
reason for the discharge.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have brought these two rules into play. Furthermore, Werner's expressed concern
over the impact that the mistake on the Bell and Howell job would have on future
business is not borne out by the record. Thus, as far as the record shows, Bell and
Howell complained that the motor was not performing properly and the matter was
soon corrected by the Respondent. There is no evidence of any untoward conse-
quences to the business relationship between the Respondent and Bell and Howell
or of any intimations thereof from Bell and Howell. Nor is there record support
for Werner's claim that the mistake was a very dangerous one, in that, as Werner
testified, if the fumes did get out into the plant it could be dangerous to plant per-
sonnel. In this connection, the parties stipulated that if Peterson, the advance manu-
facturing supervisor of Bell and Howell were called as a witness, he would testify
that Bell and Howell does not use any poisonous or toxic substance in its inhibitor
tank. It was also stipulated that "Oakite 98 was used and that it is non-toxic,
non-poisonous."
In all the circumstances, I find unconvincing the reasons given for the discharge of
Amerson and reject them. Thus, (1) the asserted gravity of the mistake attributed to
Amerson on the Bell and Howell machine must be considered in the light of the facts
that Amerson had first asked his group leader about the motor to be used and had
used the motor he was told to use, all of which was proper procedure, that Roman
and/or Tolzien had apparently failed in their responsibility to inspect the finished
job, as existing procedures required,16 and that Werner had answered Amerson's
minimization of the mistake with "We're going to have to let you go anyhow"; (2) the
remaining reasons deriving from the mistake on the Bell and Howell job do not ring
true, there being both a patent exaggeration of, and lack of support for, the claims
that the mistake was very serious because plant personnel might be injured by toxic
fumes and because the future business relationship with Bell and Howell would be
jeopardized; (3) the Alcoa job was injected as a reason for the discharge as an after-
thought; (4) the Respondent took shifting positions on whether any rule or rules
were, in fact, violated by Amerson; and (5) Amerson's employment record showed
that he had received numerous raises, had received bonuses annually in recognition of
his good work, and was considered a good employee by both Vice President Werner
and Plant Superintendent Tolzien.
The Respondent could point to only one instance in which it discharged an
employee for a mistake made on a machine. This occurred in June or July 1963 and
involved a welder who was discharged for bad work on a tank. In that instance,
'unlike here, the welder was warned and was not discharged until he had made a
second mistake a few days later.
6. The real reason for the discharge
I have found that the discharge of Amerson was not motivated by the reasons
assigned by the Respondent. To establish a violation of the Act, however, more than
this is needed. While the General Counsel contends that the real reason was Amer-
son's union activity, he has the burden of proving that such was the case.
I have already found that Amerson's organizational activity in behalf of the Union
dates back to 1963 when the Union began its first organizational effort at this plant.
Amerson then signed a union authorization card and, at the union business agent's
request, distributed cards to employees. At that time, he told Plant Superintendent
Tolzien, when queried about his thoughts on a union in the plant, that he was in favor
of it. Thereafter, when organizational activity resumed in October 1964, Amerson
took an active role again. He was again enlisted in this activity by the business
agent of the Union and, so far as appears, he was the keyman in this organizational
drive at the plant. He distributed cards and succeeded in getting at least six of them
signed, obtained the assistance of other employees in the distribution of cards, and
discussed the Union with employees in the plant during lunch periods and breaks,
after work and sometimes during working hours. He also distributed leaflets openly
in the parking lot, adjacent to the rear of the plant.
While there is no direct testimony that any of his union activity on the part of
Amerson came to the attention of the Respondent, there is other evidence which
bears upon this issue. Such evidence consists of the following: (1) the plant is a
19 Significantly, while the Respondent would hold Amerson responsible for the Alcoa job
because he was the group leader on duty, it did not fault Roman for the Bell and Howell
job, even though he was at the time Amerson's group leader. There is no justification in
this record for such diversity. In these circumstances, the failure also to fault Roman
serves to detract from the validity of the reasons urged for the discharge.
PHILLIPS MANUFACTURING COMPANY 521
small one, having about 30 employees; and Superintendent Tolzien was, I find,
afforded ample opportunity to observe much of Amerson's organizational activity
during breaks and during lunch, as Tolzien's desk was located in the center of the
plant and Tolzien usually had lunch at his desk; (2) there is credited testimony by
Amerson that when he requested a job recommendation from Werner, the latter
said, "I will give you a good recommendation but I don't want you back out here
talking to the men";- (3) the Respondent maintained a no-solicitation and no dis-
tribution rule found unlawful herein, which barred such activity as Amerson was
engaging in, unless authorized; (4) the reasons assigned for the discharge are uncon-
vincing; (5) Amerson was considered a good employee and had, during the month
before this discharge, again been paid a year-end bonus in recognition of his good
work; and (6) the discharge of Amerson was effected in a manner constituting a
departure from the Respondent's rules. Also significant on this issue are the Respond-
ent's background of unfair labor practices 18 and the parallelism here. Thus, those
unfair labor practices consisting, inter alia, of two discriminatory discharges occurred
during the Union's first organizational campaign and one of the discharges occurred
while an election was impending, and the instant discharge took place at a time when
a second organizational effort by the same Union was in progress and during the
pendency of its representation petition with the Board. All the foregoing demon-
strates to me, and I infer, that the Respondent had knowledge of Amerson's interest
in, and activities on behalf of, the Union and discharged Amerson therefor.
Accordingly, upon what I am convinced is a preponderance of the evidence and in
light of the unfair labor practice found in the maintaining of invalid no-solicitation
and no-distribution rules, and upon the entire record, I conclude and find that the
reasons given for the discharge of Amerson were pretextuous and that the Respondent
discharged Roy B. Amerson because of his interest in, and activities on behalf of,
the Union, thereby discouraging membership in the Union and interfering with,
restraining, and coercing employees in the exercise of their self-organizational rights
in violation of Section 8 (a) (3) and (1) of the Act.19
IV. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices violative of Section 8 (a) (1) and (3) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative action as set forth below,
designed to effectuate the policies of the Act. The Respondent's unfair labor prac-
tices go to the heart of the basic rights guranteed employees under Section 7 of the
Act 20 Because of the nature of the unfair labor practices found and the background
of prior unfair labor practices by the Respondent, the danger of further unfair labor
practices may reasonably be anticipated. The preventative purposes of the Act will
be thwarted unless a remedy coextensive with the threat is directed. Accordingly, in
order to make effective the interdependent guarantees of Section 7 of the Act, I shall
recommend an order requiring the Respondent to cease and desist from in any manner
infringing upon the rights guaranteed employees by Section 7 of the Act21
17 This statement is, in my view, more consistent with a discharge in retaliation for
union activity than a discharge of an employee who performed unsatisfactory work
15 The fact that Amerson was present at the hearing in that case at the same time as
management representative does not, contrary to the General Counsel, support a finding
of knowledge of union activity Since Amerson did not testify, his presence there could
have been merely that of an observer and is therefore too ambiguous
19 American Grinding & Machine Co., 150 NLRB 1357; Tru-Line Metal Products Com-
pany, et at., 138 NLRB 964, 966, enfd. 324 F. 2d 614 (C.A. 6) ; and Wiese Plow Welding
Co., Inc., 123 NLRB 616, 61,8.
See also for an inference of knowledge based on smallness of plant, Quest-Shop Mark
Brassiere Co., Inc., 80 NLRB 1149, 1150, enfd. 185 F. 2d 285 (C.A. 2), cert. denied 342
U.S. 812; Angwell Curtain Company, Inc. v. N.L.R.B, 192 F. 2d 899, 903 (CA. 7) ; and
N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C.A. 1). While N.L.R.B. v.
Chicago Perforating Co., 346 F. 2d 233 (C.A. 7), is contra, that case is distinguishable in
that, inter alia, unlike here, the respondent had good cause for the discharge and the
employee involved was a highly unsatisfactory employee.
See also for use of unfair labor practice background in evaluating unfair labor practices
alleged, The Wm. H. Block Company, 153 NLRB 616
20 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
21 May Department Stores d/b/a Famous-Barr Company v. N.L.R B., 326 U.S 376;
Consolidated Industries Inc., 108 NLRB 60, 61.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent discriminatorily discharged Roy B. Amerson, I
shall recommend that the Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority or
other rights, privileges, or working conditions, and make him whole for all earnings
lost by reason of the disciiminatinn against him, by paying to him a sum of money
equal to the amount he would have earned from the date of the discharge to the date
of a proper offer of reinstatement, less his net earnings during said period. Backpay,
with interest at the rate of 6 percent per annum, shall be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By maintaining in effect a rule which prohibits solicitation of union membership
on its property during the employees' nonworking time and by maintaining a rule
which prohibits its employees when they are on nonworking time from distributing
union literature in nonworking areas of its property, the Respondent has engaged in
interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of Roy B. Amerson by termi-
nating his employment on January 15, 1965, because of his interest in, and activities
on behalf of, International Union, Allied Industrial Workers of America, AFL-CIO,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing 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 the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, Phillips Manufactur-
ing Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union, Allied Industrial Workers
of America, AFL-CIO, or any other labor organization of its employees, by dis-
criminatorily discharging, or in any other manner discriminating against any employee
in regard to his hire, tenure, or any other term or condition of employment.
(b) Maintaining in effect a rule which prohibits employees from engaging in solici-
tation of union membership during their nonworking time on company property.
(c) Maintaining in effect a rule prohibiting its employees, when they are on
nonworking time, from distributing handbills or similar literature on behalf of any
labor organization in nonworking areas of Respondent's property.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist labor orkaniza-
tions, to bargain collectively through representatives of their own choosing, and
engage in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer Roy B. Amerson immediate and unconditional reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or other
rights, privileges, or working conditions, and make him whole for any loss of earn-
ings he may have suffered in the manner set forth in the section thereof entitled
"The Remedy."
(b) Notify Roy B. Amerson 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 Service and Training Act of
1948, 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 records, timecards,
personnel records and reports, and all other records necessary or useful to determine
or compute the amount of backpay due, as herein provided.
PHILLIPS MANUFACTURING COMPANY 523
(d) Post at its plant premises in Lincolnwood, Illinois, copies of the attached
notice marked "Appendix." 22 Copies of said notice, to be furnished by the Regional
Director for Region 13 (Chicago, Illinois), shall, after being duly signed by the
Respondent's representative, be posted by the 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 the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of the receipt of this Decision, what steps the Respondent has taken to comply
herewith 23
211n 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. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice shall be further amended by the substitution of the
words "a Decree of the United States Court of Appeals, Enforcing an Order" for the
words "a Decision and Order."
11 In the event this Recommended Order is adopted by the Board, this provision shall be
modified to read "Notify the aforesaid Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, Allied Industrial
Workers of America, AFL-CIO, or any other labor organization, by discriminat-
ing as to the hire, tenure, or any other term or condition of employment of any
of our employees.
WE WILL NOT maintain in effect any rule which prohibits solicitation of union
membership on company property during nonworking time. Insofar as rule
16 (0) on page 11 of our Working Conditions and Employee Rules and Regula-
tions so restricts the rights of employees, it is hereby rescinded.
WE WILL NOT maintain in effect any rule prohibiting our employees, when
they are on nonworking time, from distributing handbills or other literature in
behalf of any labor organization in nonworking areas of our property. Insofar
as rule 16 (P) at page 11 of the above company rules so restricts the rights of
employees, it is hereby rescinded.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist a labor organization, to bargain collectively through a bargaining agent
chosen by themselves, to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from
any such activities (except to the extent that the right to refrain is limited by
the lawful enforcement of a lawful union-security requirement).
WE WILL offer Roy B. Amerson his former or substantially equivalent job,
without prejudice to seniority or other employment rights and privileges, and
WE WILL pay him for any loss suffered because of our discrimination against
him.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
PHILIPS MANUFACTURING COMPANY,
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 reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, 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.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street, Chicago , Illinois,
Telephone No. 828-7572.
L & S Construction Company, Inc. and Metropolitan D. C. Paving,
Highway and Construction Materials Council , Petitioner. Case
No. 5-RC-5194. November 2,1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
M. Louise Felton. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Thereafter,
the Employer filed a brief in support of its position.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer contends that it does not meet the Board's stand-
ards for assertion of jurisdiction. L & S Construction Company is a
Maryland corporation wholly owned by A. H. Smith. Its headquarters
and place of business are located, together with other A. H. Smith
enterprises, in a large complex of facilities at Branchville, Maryland.
The Company is engaged in the construction and installation of curbs
and gutters, and the performance of grading operations and similar
tasks in the construction of roads. During the past year, the Com-
pany's purchases from outside the State of Maryland amounted to less
than $50,000. Work performed outside the State was minimal, but
during the past year L & S received in excess of $50,000 for services
performed in the construction of several Federal, State, and county
highways within the State of Maryland. The Board has long held that
construction of intrastate and State highways affects commerce within
the meaning of the Act, and services so rendered are considered as hav-
ing been performed for an instrumentality of interstate commerce.'
Under these circumstances, we find that the Employer's operations
satisfy the Board's nonretail jurisdictional requirements and it will
effectuate the policies of the Act to assert jurisdiction herein.2
'International Hod Carriers ', Building and Common Laborers' Union of America, Lo-
cal 89 J, AFL-CIO, ( Thorpe Construction Company and Lomelo Construction Company),
148 NLRB 55 ; Spears -Dehner, Inc., 139 NLRB 922, 923; Mohican Trucking Company,
131 NLRB 1174, 1175; Madison County Construction Co., 115 NLRB 701.
2 See Siemons Mailing Service, 122 NLRB 81.
155 NLRB No. 49.