Production Engineering Co.

National Labor Relations Board - Board Decisions

Aug 23, 1963

144 N.L.R.B. 197 (N.L.R.B. 1963)

PRODUCTION ENGINEERING COMPANY 197
7. By the foregoing conduct , by granting wage increases to its employees, by
surveilling the union activities of its employees , by interrogating applicants for
employment concerning their union sympathies , and by asking prospective employees
whether they are willing to cross picket lines at their own place of work, the Re-
spondent has interfered with, restrained , and coerced employees in their rights guar-
anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)( I) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended order omitted from publication.]
Production Engineering Company and Mattie C. Worsham. Case
No. 10-CA-5269. August 23, 1963
DECISION AND ORDER
On June 28 , 1963, Trial Examiner Frederick U. Reel issued his Inter-
mediate Report in the above-entitled proceeding , finding that the Re-
spondent 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 Intermedi-
ate Report . Thereafter , the Respondent filed exceptions to the Inter-
mediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [ Chairman McCulloch and Members
Leedom and Brown].
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 Intermedi-
ate Report , the Respondent 's exceptions , and the entire record in this
case, and hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner.
ORDER
The Board adopts as its order the Recommended Order of the Trial
Examiner.'
'The following shall be added immediately below the signature line in the Appendix
attached to the Intermediate Report:
NOTE -We will 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 of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel at Atlanta, Georgia, on
June 3, 1963, pursuant to a charge filed March 4, 1963, and a complaint issued
144 NLRB No. 24.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 17, 1963, presents a single issue : whether Respondent failed to reemploy the
Charging Party "on or about January 16, 1963, and at various times thereafter"
(complaint paragraph 7), because of her membership in and activities on behalf of
United Steelworkers of America , AFL-CIO, and because she engaged in concerted
activities protected by the Act. After the closing of the hearing a brief was received
from General Counsel . Respondent , although afforded opportunity to do so, filed
no brief.
Upon consideration of the entire record I and upon my observation of the witnesses
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent, herein sometimes called the Company, is a Georgia corporation, en-
gaged at Austell, Georgia, in the manufacture of aluminum lawn furniture and
artificial Christmas trees. The pleadings establish and I find that the Company
annually ships products valued in excess of $50,000, from its plant to points outside
the State and that the Company is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The parties stipulated that United Steelworkers of
America, AFL-CIO, herein called the Union, is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICE
A. Background-Worsham's employment, her union activity, and her discharge
for medical reasons
Mattie Worsham was employed by the Company at various jobs within the plant
from February 21, 1961, until August 12, 1962, when she went on sick leave. At
the expiration of her 2-month sick leave, she was still physically unable to resume
work, and she was discharged at that time. Shortly thereafter upon regaining her
health she sought reemployment, a quest she pressed unsuccessfully from late October
1962, through March 4, 1963. As noted at the outset of this report, it is the reason
for the failure to rehire her in and after mid-January 1963, that is at issue here.
Worsham signed a union card within a week after she was hired and became active
in the Union's efforts to organize the plant. She solicited union memberships dur-
ing her own time, and "talked union" during "breaks" at the plant. She served as an
observer for the Union in the election on May 11, 1962, which the Union lost by 14
votes out of approximately 600 cast. Her union activity was well known to the
Company. Leonard Crawford, who was made a supervisor over the third shift in
late March 1962, testified credibly and without contradiction that on the occasion
of his promotion Assistant Plant Superintendent Kellis and another supervisor, Ben
Sprayberry, told him to keep an eye on Worsham and her son, who was also employed
by the Company, as they were active in the Union, and to see if he could find a
reason to fire them.2
Three of Worsham's supervisors testified on behalf of the Company, all agreeing
that her work left something to be desired, apparently particularly because she would
"wander about" after having made the required minimum amount of production.
In general they viewed her rate of production as satisfactory except for a period
when she was employed in an unfamiliar task. She received several pay raises and
also received bonuses for exceeding required production.
As noted above, Worsham received a 2 months' leave of absence on August 12,
1962, to undergo an operation. Early the following October, she notified the Com-
' Among minor typographical errors In the transcript I note and correct page 16, line 6,
to change "was" to "wasn't." I also correct page 43, line 21, to eliminate the word "by"
and insert: "The evidence may be intended as background to show antiunion animus.
And...
2 Other evidence of company hostility to the Union is found (a) in Crawford's un-
contradicted and credited testimony that Sprayberry told him to get the employees to
sign an antiunion petition, and (b) in the uncontradicted and credited testimony of
S J. Holland, a machinist then in the Company's employ, that company officials asked
him to spy on a union meeting and report to the Company who was there so that the
Company could "get them." These events occurred more than 6 months before the filing
of the charge and are not alleged as unfair labor practices. I refer to them as background
evidence bearing upon the failure to reemploy Worsham and also as bearing upon the
remedy, infra. See N.L.R.B. v. Lundy Mfg. Co., 316 F. 2d 921 (C.A. 2).
PRODUCTION ENGINEERING COMPANY 199
pany that she was not yet able to return to work. On October 12, the Company
notified her that her employment was terminated because of the indefinite nature of
her illness, but that she would be considered for reemployment when she was able.
B. Worsham's unsuccessful efforts to be rehired
On or about October 22, 1962, Worsham obtained a medical certificate attesting
her fitness to resume work. She telephoned Wiley Maloof, the Company's director
of personnel, to request employment, but Maloof said the Company had no openings
for her. (According to Maloof, this was his customary response to applications by
telephone, but he never mentioned to Worsham the need for a written application
until several months later.) Either in the course of that conversation or in another
a few days earlier, she indicated to Maloof that she would like a letter of recommenda-
tion to assist her in her quest for employment elsewhere. Maloof wrote her such a
letter, which stated in part, that Worsham "was a very capable person, able to give
an excellent performance on any task assigned her," that "she stands high in our
regard," and that the Company would "give her the highest of recommendations." 3
On October 24, 1962, the Union filed an unfair labor practice charge in Worsham's
behalf against the Company, alleging that the refusal to rehire her was caused by her
union activity. The Union shortly thereafter dropped this charge as the Company
was undergoing a heavy seasonal layoff.
Worsham continued without success to seek reemployment by the Company, and
also unsuccessfully sought employment elsewhere. She both telephoned the Com-
pany and called in person on several occasions during the fall and winter of 1962-63,
but company personnel officials told her that the Company had employees in layoff
status, and that she would be considered when vacancies arose. On one occasion
in January or February she wrote the Company advising of her readiness and desire
to be rehired'. On March 4 she applied in person but Personnel Director Maloof told
her and other waiting applicants that the Company had no openings for women on
that occasion. He gave her an application form which she filled out, but she has
not reapplied since that date, which is also the date of the charge she filed initiating
this proceeding.
At the hearing before me the Company argued that Worsham was not rehired
because of her failure to file a written application, her failure to submit a medical
release, and her unsatisfactory work. None of these reasons was ever advanced to
Worsham during her repeated applications in the fall and winter of 1962-63, except
for the reference, on March 4, to a written application. On the contrary, company
officials repeatedly told her that she would be rehired if openings were available.
As to this, however, Personnel Director Maloof admitted that in February alone the
Company hired 36 new female employees. Also, although he testified that he hired
no new female employees in January 1963, the record shows that a few jobs at the
plant could be filled either by women or by men. Asked why the Company had not
rehired Worsham, Maloof testified as follows:
A. I couldn't give her a job without her having a release from the doctor.
Q. Did you ask her for a release?
A. I didn't-no, I didn't ask her for one.
TRIAL EXAMINER: How about her failure to file an application Mr. Maloof?
Is that another reason for not hiring her?
A. That's another very good reason.
TRIAL EXAMINER: How about her poor work? Is that another reason for
not hiring her?
A. Well, after we got this first Charge in which Mattie says we discriminated
against her in our termination of her, we did some investigating and this was
after I had prematurely written this letter of recommendation, I found out
really what kind of worker she was. And this added to our decision.
TRIAL EXAMINER: How about the filing of the first Charge? Is that another
reason for not hiring her?
A. It's a damn good reason.
8 Maloof, called as a witness, explained the discrepancy between this letter and the
supervisors' evaluation of Worsham, supra, by the fact that he was relatively new on the
job in October (he had been head of personnel for 5 months), that he made no inquiry
into Worsham's ability as he believed she just wanted the letter to show a potential em-
ployer, and that not until the Union filed its charge in Worsham's behalf, a few days later,
did he Investigate the quality of her work.
`ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Concluding findings
On the facts summarized above, I have no doubt that Worsham's union activities
were a motivating force behind, if not the sole cause of, the Company's failure to
rehire her. Under settled law, therefore, the refusal to rehire her violated Section
8(a)(3) and (1) of the Act. See N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d
725, 726 (C.A. 2); N.L.R.B. v. Minnesota Mining & Manufacturing Company, 179
F. 2d 323, 327 (C.A. 8); David W. Onan et al., d/bla D. W. Onan & Sons v.
N.L.R.B., 139 F. 2d 728; 730 (C.A 8); NL.R.B. v. Wells, Incorporated, 162 F. 2d
457, 460 (C.A. 9); N.L.R.B. v. Texas Independent Oil Company, Inc., 232 F. 2d
447, 450 (C.A. 9), Edward G. Budd Manufacturing Co. v. N.L.R.B., 138 F. 2d
86, 90 (C.A. 3). Among other factors leading me to this result are Worsham's
prominence in the Union, the Company's hostility to the Union and to those active
in it as reflected in the testimony of Crawford and Holland, and the insubstantial
and shifting grounds, put forward to explain the failure to hire her; namely, the
failure to file an application form and a medical release 4-matters never mentioned
to her in her repeated telephone calls and personal interviews; and her allegedly
poor work-a factor not only never mentioned to her but inconsistent with the glow-
ing letter for recommendation written by the personnel director. Cf. N.L.R.B. v.
International Furniture Company, 199 F. 2d 648, 650 (C.A. 5). Any lingering
doubt that her union activity played a leading role in the Company's decision not
to rehire her is dispelled by Maloof's frank admission that the Union's filing of a
charge in her behalf furnished "a damn good reason" for not hiring her. Cf.
N.L.R.B. v. Moss Planing Mill Co., 206 F. 2d 557, 559-560 (C.A. 4). The fervid
manner with which Maloof uttered this statement on the witness stand left me
with no doubt that he felt far more strongly about this last "reason" than he did
about the others he had mentioned.
THE REMEDY
I shall, of course, recommend that Respondent offer Worsham employment and
make her whole for wages lost as a result of the discrimination against her. As the
complaint fixes the date of discrimination as "on or about January 16, 1963, and
at various times thereafter," backpay should commence with the date of hire of the
first new employee hired on or about January 16, 1963, or thereafter for work
Worsham was qualified to do. The amount of Worsham's recovery should be com-
puted in accordance with the formulae set forth in F. W. Woolworth Co., 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Because discrimination "goes to the very heart of the Act" (N.L.R.B. v. Entwistle
Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), and also because of the background against
which this discrimination occurred-company surveillance of a union meeting, spon-
sorship of an antiunion petition, and instruction to supervisors to find reasons for
discharging union adherents (see Lundy, supra, footnote 2)-I shall recommend a
broad cease and desist order.
CONCLUSIONS OF LAW
By failing to rehire Mattie Worsham because of her union and concerted activity
the Company has engaged in an unfair labor practice within the meaning of Section
8(a) (3) and (1) and Section 2(6) and (7) of the Act.
6 Worsham testified that late in October 1962, she gave the medical release to a neighbor,
Jimmy Yother, who worked at the plant, and asked him to give it to Maloof. She further
testified that when she called Maloof shortly thereafter he said that his subordinate in
the office, one Mitchell, had the release. Yother, called as a witness, was not interrogated
on this point Both Mitchell and Maloof denied having seen any such release. Although
I am disinclined to credit Mitchell on any subject in view of his evasiveness, if not down-
right false testimony, on the number of new people hired, I have no reason to discredit
Maloof on this matter. Worsham may well have confused the matter of the medical re-
lease with her letter of application some months later which she had Yother deliver, as
to which Yother corroborated her But, although I find that Worsham did not furnish
the medical release, this was patently not the reason for the refusal to rehire her, for
Mitchell, Maloof, and she all testified that she made at least weekly telephone calls to
the plant seeking employment, but she was never once told that the lack of a medical
release stood in her way.
PRODUCTION ENGINEERING COMPANY 201
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that the Respondent , Production Engi-
neering Company, its officers, agents, successors , and assigns , shall:
1. Cease and desist from discriminating against employees or applicants for em-
ployment, because of their activity on behalf of United Steelworkers of America,
AFL-CIO, and from in any other manner interfering with , restraining , or coercing
its employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer Mattie Worsham immediate employment at her former or a substan-
tially equivalent position , and make her whole in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its plant at Austell , Georgia, copies of the attached notice marked
"Appendix." 5 Copies of such notice, to be furnished by the Regional Director for
the Tenth Region , shall, after being duly signed by an authorized representative of
the Respondent , be posted immediately upon receipt thereof, and be maintained by
it for a period of 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.
(d) Notify the Regional Director for the Tenth Region , in writing within 20 days
from the date of the receipt of this Intermediate Report what steps the Respondent
has taken to comply herewith.6
' If this Recommended Order should be adopted by the Board , the words "as ordered
by" shall be substituted for "as recommended by a Trial Examiner of" in the notice. In
the further event that the Board ' s order be enforced by a United States Court of Appeals,
the words "A Decree of the United States Court of Appeals , Enforcing an Order of" shall
be inserted immediately following "as ordered by."
6In 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of the rights guaranteed them in
the National Labor Relations Act:
WE WILL NOT refuse to hire, or refuse to rehire , or discharge or take any other
action against any employee because he is a member of or supports United
Steelworkers of America , AFL-CIO, or any other labor union
ALL OUR EMPLOYEES have the right to form, join , or assist any labor union,
or not to do so. WE WILL NOT interfere with our employees in the exercise of
these rights.
WE WILL offer immediate employment to Mattie C. Worsham and we will
give her whatever backpay she lost as a result of her not being rehired when
work became available for her.
PRODUCTION ENGINEERING COMPANY,
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, 528
Peachtree -Seventh Building , 50 Seventh Street NE ., Atlanta 23 , Georgia, Telephone
No. Trinity 6-3311 , Extension 5357, if they have any questions concerning this notice
or compliance with its provisions.