Regency Electronics, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 4 (N.L.R.B. 1985)

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regency Electromcs , Inc and Lula Mae King Case
25-CA-15019
and conclusions3 and to adopt the recommended
Order 4
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 August 1983 Administrative Law Judge
Donald R Holley issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision and a brief in opposition to the
Respondent's exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
i The Respondent contends that the Board should order a hearing de
novo because the judge made an erroneous evidentiary ruling resulting in
the exclusion of evidence crucial to its defense We have carefully exam
fined the record and find that the judge did prevent employee Trammel
from testifying as to whether she had had any other conversation or
conversations with Virginia Tuggle after the October 15 conversation in
the cafeteria on the erroneous basis that such testimony would be hear
say See Fed R Evid 801 The Respondent excepted to this ruling but did
not make an offer of proof as to what Trammel s answer would have
been The Respondents contention calls on the Board to decide whether
the rejection of this evidence was prejudicial to the Respondents case
i e whether the evidence is crucial to an informed legal assessment of
the Respondents defense Associated Milk Producers 259 NLRB 1033
(1982) Operating Engineers Local 18 (Ohio Contractors) 204 NLRB 681
(1973) In its brief to the Board however the Respondent merely asserts
in general terms that it was prejudiced because it was not permitted to
question Trammel about Tuggle s threats to her and that Trammel s
testimony on this point is essential to the judge s understanding of the
case and to the intelligent determination of [Tuggle s] credibility
(The judge relied in part on Tuggle s testimony in concluding that the
Respondent unlawfully refused to rehire the Charging Party )
Contrary to our dissenting colleague we cannot conclude that the Re
spondent s defense has been seriously hindered by the judge s erroneous
ruling We find no merit in the Respondent s contention that it has been
prejudiced by the exclusion of Trammel s testimony because we are
unable to determine from the Respondents vague assertions what the
precise content of that testimony would be and thus what , if any bearing
it would have on the outcome of this case
2 In adopting the judge s finding that the Respondent s personnel di
rector intended to telephone Charging Party King on 17 August 1982
and offer her reemployment as an assembler we draw no inference from
the Respondents reemployment effective 18 August 1982 of assemblers
Breece and Perkins Breece and Perkins received less favorable evalua
tions for prior work performed for the Respondent than King did That
either was rehired in August 1982 does not compel the assumption that
the Respondent would have rehired King at that time but passed over
her however because there is no evidence that the Respondent ranked
employees from best to worst according to their evaluations and offered
them reemployment in the order in which they were ranked Moreover
there is no evidence that Breece and Perkins were sought out by the per
sonnel director rather than hired on their timely application to the Re
spondent s personnel office
The Respondent contends that the judge could not properly have de-
termined that the General Counsels witnesses were credible because he
failed to discuss and resolve the conflict between their testimony that a
document introduced at teal was the grievance submitted by the Charg
mg Party to the Respondents personnel director on 17 August 1982 and
contrary evidence that the document was not the ongmal grievance We
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Regency
Electronics , Inc, Indianapolis , Indiana, its officers,
find no merit in this contention The judge is not compelled to recite all
the evidence in the record or all points on which it conflicts Cray-Burke
Co 208 NLRB 708 (1974) That the judge did not include in his decision
a discussion of the conflict in evidence concerning the grievance does not
raise the inference that he disregarded it or failed to resolve it E g Stan
ley Oil Co 213 NLRB 219 ( 1974) The testimony of Personnel Director
Ward is the only direct evidence that the grievance identified at the hear
mg was not the one submitted to her on 17 August 1982 It is clear from
the judge s decision that he resolved the conflict concerning the gnev
ante by discrediting Ward on the basis of her demeanor and mconsisten
ties in her testimony and crediting the General Counsels witnesses See
Electn Flex Co 228 NLRB 847 (1977) It is the Boards established
policy not to overrule an administrative law judge s crediblity resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect Standard Dry Wall Products 91 NLRB 544
(1950) We have carefuly examined the record and find no basis for re
versing the judge s credibility findings
The Respondent also requests a trial de novo on the ground that the
judges adoption of portions of the General Counsels posthearing brief
indicates that he relied on the brief to the exclusion of his own analysis of
the evidence The file of formal papers in this case reveals that the state
ment of facts in the background section of the judges decision is bor
rowed virtually verbatim from the General Counsels posthearing brief It
is the special function of the administrative law judge to prepare for the
Board an independent and careful analysis of the facts and issues in the
case over which he presides Babcock & Wilcox Co 112 NLRB 546
(1955) While we conclude that the judges adoption of part of the Gei
era] Counsels brief is not reversible error we stress that the Board does
not condone this practice See Sec 17415 National Labor Relations
Board Manual Division of Judges Chairman Dotson notes especially
that it makes a poor impression on the bar and the courts and needlessly
consumes Board resources by inviting exceptions grounded on the
judge s apparent failure to exercise independent judgment
a In Interboro Contractors 157 NLRB 1295 ( 1966) the Board held that
a complaint made by a single employee for the purpose of enforcing a
collective bargaining agreement is concerted activity protected by Sec 7
of the Act irrespective of the merit of the complaint In NLRB v City
Disposal Systems 104 S Ct 1505 (1984) issued after the judges decision
in this case the Supreme Court approved the Board s Interboro doctrine
stating that an employee s honest and reasonable invocation of a collet
tive bargaining contract is concerted activity regardless of whether the
employee turns out to have been correct in his belief that his right was
violated Id at 3201 See also ABF Freight Systems 271 NLRB 35 (1984)
(applying City Disposal) the judge s conclusion that the filing of Charging
Party King s grievance was protected by the Act even though King may
not have had a contractual right to use the grievance procedure Chair
man Dotson does not rely on John Sexton d Co 217 NLRB 80 (1975)
cited by the judge in affirming the judge s conclusions
4 The Respondent alleges that counsel for the General Counsel violat
ed Sec 102 112 of the Boards Rules and Regulations by failing to inform
the Respondent by telephone that she had filed her posthearmg brief with
the judge by telex and by serving her brief on the Respondent by mailing
it on the day it was due It accordingly excepts to the judge s acceptance
and consideration of the General Counsel s brief
The Respondent asserts that it received the General Counsel s brief on
the day after the filing date set by the judge The Respondent does not
demonstrate and we cannot conclude that the t uning of service of the
postheanng brief on the Respondent prejudiced its case We therefore
find no merit in the Respondents contention that the judge erred in ac
cepting it See Pacific Grinding Wheel Co 216 NLRB 529 (1975) Ac
cordingly we also deny the Respondents 31 October 1983 motion for
special leave to file with the Board an affidavit from its attorney stating
that he was not informed by telephone or telegraph that the General
Counsels brief was filed by telex
276 NLRB No 2
REGENCY ELECTRONICS
,agents, successors, and assigns, shall take the action
set forth in the Order
MEMBER HUNTER, dissenting
Contrary to my colleagues, I would remand this
proceeding to the judge to allow the Respondent
to further question employee Barbara Trammel re
garding any conversations she may have had with
the Union's chief steward Tuggle after a 15 Octo
ber 1983 cafeteria conversation between Tuggle
and the Respondent's director of personnel Ward
to which Trammel was a witness My colleagues,
at footnote 1 of their opinion, admit the judge was
wrong in preventing Trammel from testifying as to
any further conversations she may have had with
Tuggle but they find this incorrect evidentiary
ruling was harmless error I disagree
A focal point of this case was the witnesses
credibility and a focal point of the Respondent s
claim that Tuggle, whose testimony was credited
by the judge, was in fact, an incredible witness
was its claim that she attempted to intimidate po
tential witnesses to testify falsely The judge noted
certain of Tuggle's actions (described below) and
indeed found that Tuggle may have been overly
zealous in her harassment of witnesses Still, he
concluded that there was no evidence showing she
engaged in "serious acts of misconduct" which
tainted her testimony Clearly, the judge should not
have made this finding until all evidence regarding
Tuggle's activity was before him He did not have
all that evidence because of his erroneous ruling re
garding Trammel
The judge did find that, after the cafeteria inci
dent, Tuggle told Trammel and Vickie Kelly (an
other employee who was present) that, as they had
heard the Tuggle Ward cafeteria conversation,
they were involved and would have to talk to an
attorney and tell him that Ward had stated she
would not rehire the Charging Party because she
had filed a grievance Kelly testified that Tuggle
told her she had to testify to this on at least three
occasions but Kelly testified she could not do this
because that is not what she heard According to
the judge, Kelly was also told by Tuggle that
Kelly `could have a slander laid on her if she
lied, and that she could be put in Jail if she was
subpoenaed to testify and refused' This already
adduced evidence clearly indicates Tuggle was
browbeating these two employees to testify in cor
roboration of Tuggle Yet their testimony does not
corroborate Tuggle as both testified they heard
only part of the Tuggle Ward conversation and
5
neither testified they heard Ward say the reason
she would not rehire the Charging Party was her
filing of the grievance 2 Thus, the question arises
whether Tuggle was attempting to intimidate the
employees to give false testimony or whether she
was mistaken as to what they had heard In any
event, she was clearly browbeating them
In sum, the Respondent was entitled to pursue its
defense which was seriously hindered by the
judge's refusal to allow the Respondent to question
Trammel The excluded testimony was relevant
and necessary for a proper credibility resolution by
the judge Thus, even if an offer of proof had been
made it is impossible to determine how such an
offer would have affected the judge's credibility
resolutions In these circumstances, I would
remand for further hearing on this issue
= The judge found some significance in his conclusion that both Tram
mel and Kelly corroborated Tuggle (over Ward s dental) that Ward had
said she would not hire the Charging Party if Ward were a personnel
director in hell First it appears that only Trammel corroborated Tuggle
on this point Secondly the point is of little importance since the critical
comment that Tuggle indicated Ward made i e that she would not hire
the Charging Party because of the grievance is corroborated by neither
employee In fact, the judge did not note that because of Tuggle s coin
ments to both employees that they were involved in this matter they
went to Ward sometime after the cafeteria conversation to find out why
they were involved Neither employee testified that Ward told them in
that meeting that the Charging Party was not to be rehired because she
had filed a grievance
Sharon Bailin Esq counsel for the General Counsel
Stephen C Cline Esq (Sommer & Barnard) Indianapolis
Indiana for the Employer
DECISION
STATEMENT OF THE CASE
DONALD R HOLLEY Administrative Law Judge On
an original charge filed by Lula Mae King on November
8 1982 the Regional Director for Region 25 of the Na
tional Labor Relations Board issued a complaint on De
cember 3 1982 alleging that Regency Electronics Inc
(the Respondent) had engaged in conduct which violates
Section 8(a)(1) and (3) of the Act the National Labor
Relations Act The Respondent timely filed an answer
denying it had engaged in unfair labor practices The
matter was heard before me in Indianapolis Indiana on
March 15-16 1983 Both parties appeared and were of
forded full opportunity to participate Following the
hearing, counsel for both sides filed briefs which have
been carefully considered
On the entire record, including my observation of the
witnesses when they gave testimony I make the follow
mg
FINDINGS OF FACT
i My reading of the record indicates it was Trammel who testified re
garding the slander and that she testified that Tuggle told her the slander
would be laid on her if she testified not just if she lied
I JURISDICTION
The Respondent admits that it is engaged in the manu
facture, sale and distribution of police and fire depart
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment radio scanners and related products During the
last 12 months it has sold and shipped from its facility
products goods and materials valued in excess of
$50 000 directly to points outside the State of Indiana
During the same time period it received at its facility
products goods and materials valued in excess of
$50 000 directly from points outside the State of Indiana
On these facts I find that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II STATUS OF LABOR ORGANIZATION
It is admitted and I find that International Union of
Electrical Radio and Machine Workers Local 847 (the
Union) is now and has been at all times material a labor
organization within the meaning of Section 2(5) of the
Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Respondent Regency Electronics Inc operates a
factory at Indianapolis Indiana where it manufactures
various types of communication equipment including
police scanners and cable television converters Since
1976 there have been successive collective bargaining
agreements in effect between the Respondent and the
Union covering the Respondents production and mainte
nance employees In late December 1980 the Respond
ent laid off about 140 employees of which 111 were pro
duction employees working in the job classification of as
sembler I The Charging Party, Lula Mae King was
among those laid off At the time of her layoff she had
been employed for only 2 months Under the provisions
of the collective bargaining agreement in effect at the
time laid off employees lost their contractual right to
recall after 1 year 2 In August 1982 3 the Respondent
began manufacturing a new product which resulted in
the need for a much larger work force thus leading the
Respondent to recall all laid off employees having a con
tractual right to recall and to begin hiring a large
number of employees to work as assemblers As reflected
by its February 1 1983 seniority list the Respondent
hired employees as assemblers in August September Oc
tober November and January 1983 4 At some time prior
to start of the hiring in early August the Respondent s
management made the decision that it was preferable to
hire employees who had previously worked at Regency
over those applicants who never had
To implement its decision the Respondent distributed
to its front line supervisors the 1980 layoff notices listing
employees who had been automatically terminated in
December 1981 after a year had elapsed without their
recall The supervisors then indicated which employees
they thought should be rehired, and Lula King was one
of the employees recommended for rehire The lists were
given to Annette Ward the Respondents director of
GC Exh 4
a G C Exh 2-Art 36 1 p 27
All dates are in 1982 unless otherwise indicated
4 G C Exh 20
personnel who attempted to contact those chosen by the
supervisors and offer them employment Lula King was
out of town on August 4 and 5 During her absence An
nette Ward called King to offer her reemployment and
upon her return home King learned that Regency had
called On August 6 she went to the Company and
asked Ward about returning to work for Regency In
their conversation on that date Ward confirmed that she
had called King to come back to work but King had not
been home when she called King asked if that meant she
had lost her job and Ward said that it looked that way
Although Ward said she had wall to wall job apple
cants she finally agreed to take another telephone
number where King could be reached
During the following week King had two brief tele
phone conversations with Ward once King called to ask
if the Company planned to begin a second shift and was
told that was correct but Ward did not know when and
the second time Ward simply told King she was too busy
to talk to her On August 17 King met with then Chief
Steward Virginia Tuggle and Shop Steward Barbara
Milton after the local union president Judy Begley
Crmgle had advised her to go to them so that she could
file a grievance Barbara Milton wrote out the grievance
and submitted it that same day to Marsha Varner the
personnel clerk who worked under Ward s supervision
B The August 17 Conversation
The General Counsel s case is bottomed on a conten
tion that Ward after receiving the described grievance
stated on several occasions that she would not rehire
King because she had filed the grievance under discus
sion She sought to prove the contention through the tes
timony of Milton Tuggle and through certain of the Re
spondent s personnel records
Milton testified that after leaving the grievance with
Varner she realized she had failed to indicate the apph
cable section of the contract on the grievance and this
caused her to return to the personnel office during her
1 30 pm break She claims Ward then invited her into
her office and stated I can t believe this girl filed this
grievance Its very untimely she had no right to file
it I will not hire her back now because she filed a
grievance According to Milton Ward handed the
grievance to her after making the above-described coin
ments and she (Milton) then took it to Tuggle indicating
Ward had refused to accept it Noting that Ward had not
signed the grievance Tuggle suggested they return to
the personnel office Thereafter the stewards were
paged by Ward and went to the personnel office as re
quested According to Milton when she and Tuggle
reached Wards office Ward told them both that the
grievance was very untimely that Lula had no right to
file that grievance and that she would not hire her back
now because she filed a grievance and it would look like
the Union was getting her job back and she did not want
that Milton further claims Ward stated I have her
name written down right here I was going to call that
REGENCY ELECTRONICS 7
girl back this very day but I wont call her now be
cause she filed this grievance S
Tuggle corroborated Milton s assertion that Ward mdi
cated during the meeting in her office that she had in
tended to call King to offer her employment but had not
contacted the employee because she had filed the gnev
ance and she corroborated Milton s claim that Ward
told them she would not hire King because it would look
like the Union got her job back for her In addition she
indicated she informed Ward that she had told Kmg
when the grievance was filed that since she had been
terminated under the contract she did not think she had
a grievance
Ward and personnel clerk Varner gave different ver
sions of the conversation which occurred on August 17
Both claimed that Ward discussed the grievance with
Milton in front of Varner s desk rather than in her office
on the first occasion According to Ward she stated the
following during the discussion
I want to take time out to tell you why I will not
accept this grievance I am under no obligation to
rehire Ms King because she has no obhgation
[right] to work here under the contract She has
been laid off for almost two years and she does not
have the right to the grievance procedure
Varner corroborated Ward s claim that Ward discussed
the grievance with Milton at her desk She claims the
conversation was as follows
Barbara Milton came in with a grievance and
handed it to Annette Ward and Annette said well
this child doesn t have right to the grievance proce
dure she hasn t worked here for two years And
Barbara said, oh I didn t reahze that
Ward agreed the second conversation with Steward
Milton and Chief Steward Tuggle occurred in her office
She testified the following occurred
I would say the first conversation took place
prior to my lunch which is from 1200 to 100 The
second conversation because I paged them to come
up took place after my lunch say 1 00-1 30-2 00 I
don t know
she does not have the right and that s why I would
not accept it
And Ms Tuggle said well I told Judy that she
didn t have a grievance anyway
C The October Conversations
1 King and Ward
After August 17 the Union took no further action on
King s grievance Kmg learned that the grievance had
been dropped sometime in the week following its filing
According to Kmg after the grievance had been filed
she called the Company several times each time asking
either Marsha Varner or Ward if the Respondent was
hiring to which the response was always no On
Monday and Tuesday around October 11 and 12 King
went to the personnel office and was advised by Varner
that the Company would be hiring assemblers and that
King would have to file a new application Varner ad
vised King to telephone the office about getting rehired
rather than to continue to come there The following
Friday October 15 King called the Company and talked
to Ward Kmg testified that she identified herself to
Ward and told her that she was calling to see about
filing a new application for a job Ward replied that she
knew who King was and said that since King had filed a
grievance against her and caused all the trouble King
would never work at Regency so long as Ward had any
thing to say about it She clamis Ward also said I hate
to see all the trouble you d cause if I brought you back
in this shop
Ward s version was that between August and Octo
ber King telephoned and visited the personnel office re
peatedly speaking or attempting to speak with Ward
about getting her job back According to Ward at the
same time the personnel office was inundated with job
seekers to the extent that at one time it was necessary
to obtain police assistance to clear crowds away from
the office Ward testified that she began to feel frustrated
by King s continuing calls and visits She claims she told
King on October 15 that she would not hire her because
she was hassling her but denied mentioning King s gnev
ance during the telephone call
I paged Virginia and Barbara I try very hard to
communicate with those members of the bargaining
unit and I try very hard to work out problems with
the President or the Chief shop stewards so never
do I call one steward without the Chief so I call
them both
And I told her that I had been talking to Barbara
previously I told her what I felt about the gnev
ance that the girl did not have a right to the gnev
ance procedure And I said that I explained this to
Barbara I in not trying to get into your duties but
5 As noted by the General Counsel in her brief on August 18 the Re
spondent reemployed former employees Cynthia Breece and Beverly Per
kins who like King had worked 2 months and had subsequently lost
their recall rights Significantly both had been rated as average in all
categories while King had been rated good in all categories See G C
Exhs 6 5 7 10(a) and (c) and 11(a) and (c)
2 The cafeteria discussion
King testified that on the same date that she had
talked to Ward she telephoned Tuggle that evening and
told her what Ward had said The following day Tuggle
initiated a discussion concerning Lula Mae Kmg with
Ward while they were in the cafeteria in the presence of
employees Trammel and Kelly According to Tuggle
she told Ward that she had received a telephone call
from King the previous night and that King still wanted
to get her job back She testified Ward replied that as
long as she remained the personnel director King was
never going to work for the Company again because she
had filed a grievance Tuggle claims Ward went on to
say that even if she died and was personnel director
down below and King came there she still would not
hire her
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two other employees testified at trial as to the cafete
na conversation Barbara Trammel who did not hear the
whole conversation does remember Ward saying that
she would not hire her (meaning King) if she were per
sonnel director in hell Vickie Kelly who was eating
lunch with Trammel testified she did not hear all the
conversation but she heard Ward say she would never
hire this girl back as long as she was personnel director
Ward claims she stated in the cafeteria that she would
not rehire King because she had hassled her She denies
she mentioned King s grievance and denied she made
reference to what she would do if she went down
below
Analysis and Conclusions
Obviously the conflicting testimony given by wit
nesses presented by the General Counsel and the Re
spondent requires me to determine which witnesses
should be credited For the reasons set forth below I
conclude that generally speaking the General Counsel s
witnesses were more reliable than the Respondents wit
nesses
The Respondent strenuously contends that Chief
Union Steward Tuggle caused the General Counsel s
witnesses to falsely testify in support of King because
Tuggle was campaigning for the presidency of the Union
when the King matter arose and she desired to make
Ward and the then incumbent president of the Union
look bad thus enhancing her chances of winning the
union election While the Respondent made the de
scribed contention it offered insufficient evidence to es
tablish its claim The only evidence offered which would
remotel) suggest that Tuggle attempted to shape the tes
timony of her fellow employees was adduced through
witnesses Trammel and Kelly Both testified that after
the Ward Tuggle cafeteria conversation concluded
Tuggle told them Ward had discriminated too often and
as they heard the conversation they were involved in the
matter and would have to talk to an attorney and tell
him that Ward had stated she would not rehire King be
cause she had filed the grievance Kelly added that
Tuggle subsequently told her she could have a slander
laid on her if she lied and she could be put in jail if she
was subpoenaed to testify and refused In sum it appears
Tuggle may have been overly zealous but was not
shown to have engaged in serious acts of misconduct
which should cause me to find that the testimony given
by the General Counsels witnesses is tainted
Although it attacked Tuggle s credibility the Re
spondent offered no evidence which would suggest that
Milton and King were not credible witnesses I noted
nothing in the demeanor of either when they appeared as
witnesses which would indicate they were telling any
thing other than the truth as they recalled it as they
spoke openly and answered questions put to them with
out hesitation With respect to Milton I note she indicat
ed during her testimony that King was a stranger to her
prior to the day she filed the grievance It thus appears
that by representing King after the grievance was filed
Milton was simply performing her normal union steward
duties Noting that Milton and Tuggle as well were both
active employees at the Respondent when they partici
pated in the trial I conclude it is unlikely that either
would falsify their testimony Similarly I found King to
be an impressive witness who appeared to be making an
effort to describe her various contacts with Varner and
Ward honestly and openly In contrast when she ap
peared as a witness Ward gave accounts of her discus
sions with Milton and Tuggle on August 15 her tele
phone discussion with King on October 15 and her re
marks to Tuggle in the cafeteria on October 16 She was
evasive with respect to the October 15 discussion with
King as she originally denied telling the employee she
would never rehire her but finally admitted doing so
when confronted with a November 9 1982 letter ad
dressed to the Regional office in which she stated inter
alia
she [King] called a number of times and I told
her I was not going to be hassled by her and I was
not going to hire her
Similarly Ward denied that she told Tuggle on October
16 during the cafeteria discussion that she would not hire
King if she were a personnel director in hell but em
ployees Kelly and Trammel whose sentiments were
clearly with the Respondent rather than King or the
General Counsel both testified she made the remark at
tributed to her by Tuggle
In sum in critical areas I conclude that the testimony
of Milton King and Tuggle is more reliable than that
given by Ward and her secretary Varner I thus credit
the testimony of Milton King and Tuggle which is to
the effect that Ward (1) told Milton and Tuggle on
August 17 that she had intended to rehire King that day
but had decided not to rehire her because she filed the
grievance and it would look like the Union had gotten
her job for her and she did not want that 6 (2) told King
during their telephone conversation on October 15 that
since she had filed a grievance against her and caused all
the trouble she would never work at the Regency so
long as she had anything to say about it that Ward
would hate to see all the trouble she would cause if she
brought her back into the shop and (3) told Tuggle in
the cafeteria on October 16 that she would not rehire
King if she were the personnel director in hell
The Respondent argues that assuming arguendo
Ward did inform Milton Tuggle and King she would
not rehire King because she filed the August 17 gnev
ance no violation was committed because King had no
contractual right io file the grievance and the effect of
such announcement or statement on Milton Tuggle and
other employees would be de minimis I find the conten
tions to be without merit
6 1 note that Wards actions on August 17 and 18 in particular lend
support to the stewards claim that Ward pointed to King s name on a list
that date and told them she had intended to rehire King that day until
she received the grievance filed by the employee Thus , as noted supra,
former employees Breece and Perkins , who had formerly worked for the
Respondent for a short time had lost their recall rights and had been
rated average whereas King had been rated good were apparently
rehired on August 18 At that time King had done nothing to hassle
Ward other than file her grievance Consequently it seems probable that
Ward was more disturbed by the King grievance than she admits.
REGENCY ELECTRONICS
King engaged in "union" activity as well as "protected
concerted activity" by approaching the Union and caus-
ing it to accept a grievance which protested the Re-
spondent's failure to reemploy her. As noted by the Gen-
eral Counsel in her brief, it is well settled that the merit
of a grievance is irrelevant to the determination of
whether an employee's conduct is protected under the
Act so long as the grievance was not filed in bad faith.
Thus, the 'Board stated in John Sexton & Co., 217 NLRB
80 (1975), inter alia:
The Board has consistently held that Section 7 of
the Act protects employees' attempts . . . to imple-
ment the terms of bargaining agreements irrespec-
tive of whether the asserted contract claims are ulti-
mately found meritorious and regardless of whether
the employees expressly refer to applicable con-
tracts in support of their actions or, indeed, are
even aware of the existence of such agreements.
Here, the record fails to reveal that King acted in bad
faith when she filed her grievance with the Union.
As Ward announced her intention to discriminate
against King to two union stewards , and Tuggle alleged-
ly publicized the situation to gain office in the Union, I
find the Respondent' s de minimis argument to be without
merit. -
For the reasons stated, I find that the Respondent re-
fused to rehire Lula Mae King on August 17, 1982, be-
cause she filed a grievance protesting the Respondent's
refusal to hire her. I further find the reason advanced by
the Respondent for its actions to be a pretext and con-
clude that the Respondent violated Section 8(a)(1) and
(3) as alleged. As Ward's conduct had the natural effect
of discouraging the Respondent's employees from utiliz-
ing the contractual grievance procedure, I find that the
Respondent, through Ward's described actions, -deferred
employees in the exercise of their Section 7 rights, there-
by engaging in independent violation of Section 8(a)(1)
of the Act as alleged.
I CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the unlawful acts described in sec-
tion III above , the Respondent has engaged in, and is en-
gaging in , unfair labor practices within the meaning of
Section 8(a)(1) and (3 ) of the Act.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it shall be recommended that
it be ordered to cease and desist therefrom and to take
certain affirmative action necessary to effectuate the poli-
cies of the Act.
9
Having found that the Respondent unlawfully refused
to rehire Lula Mae King, it will be recommended that
the Respondent offer Lula Mae King immediate employ-
ment, in the same position' she would have been em-
ployed absent the discrimination against her or in a sub-
stantially equivalent position; with -seniority dating back
to August 18, 1982, the date she would have begun
working. The Respondent must make her whole for any
losses of earnings she suffered by reason of the unlawful
discrimination against her by payment of backpay equal
to the amount which she. would have earned from the
Respondent from August 18 to the date of reinstatement,
less any net earnings during such period, with the back-
pay and interest thereon computed in the manner pre-
scribedin F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).7
On these findings of fact and conclusions of law and
on the, entire record, I issue the following recommend-
ed8
ORDER
The Respondent, Regency Electronics, Inc., Indianap-
olis, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
'(a) Discouraging membership in International Union of
Electrical, Radio and Machine Workers, Local 847, or
any other labor organization, by refusing ,to rehire em-
ployees who utilize the grievance procedure.
(b) -Informing employees - that former employees will
not be rehired because of the filing of a grievance.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
.2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a)'Offer Lula Mae King immediate and full reinstate-
ment to the job available on August 18, 1982, or to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her
whole for any loss of earnings she may have suffered
from August 18, 1982, in the manner set forth in the sec-
tion of this decision entitled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Indianapolis, Indiana facilities copies of
the attached notice marked "Append"x."e Copies of the
7 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
8 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
e If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice -reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice on forms provided by the Regional Director for
Region 25 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in International
Union of Electrical Radio and Machine Workers Local
847 or any other labor organization by refusing to
rehire employees who utilize the grievance procedure
WE WILL NOT inform employees that former employ
ees will not be rehired because of the filing of a gnev
ance
WE WILL NOT in any like or related manner interfere
with restrain or coerce employees in the exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act
WE WILL offer Lula Mae King immediate and full re
instatement to the position she would have been hired
for on August 17 1982 or to a substantially equivalent
position if that job no longer exists without prejudice to
her semonty or other rights and privileges enjoyed and
WE WILL make her whole for any loss of earnings she
may have suffered as a result of our unlawful action
REGENCY ELECTRONICS INC