Safety Line, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1980

250 N.L.R.B. 458 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safety Line, Inc. aind International Association of
Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 115. Case 32-CA-1745
July 7, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEII.O
On February 7, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Safety Line,
Inc., Oakland, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case was held November 14, 1979, and is
based upon unfair labor practice charges filed April 26,
1979, as amended May 30, 1979, by the International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No. 115, herein called the Union,
and a complaint issued June 20, 1979, as amended No-
vember 7, 1979, on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director of the Board, Region 32, alleg-
ing that Safety Line, Inc., herein called Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, herein called the Act, by discharging
employee Joseph Fegard because of his union activities,
threatening to discharge Fegard for engaging in union
activities, interrogating employees about their union sym-
pathies and activities, threatening employees with unspe-
cified reprisals if they supported the Union, warning an
employee that there would be no benefit for the employ-
ees to join the Union, and creating the impression that an
250 NLRB No. 75
employee's union activities were being kept under sur-
veillance. Respondent filed an answer denying the com-
mission of the alleged unfair labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs,2 I make the following:
FNI)INIINS o0 FACI
I. H Al I EGE(il) UNFAIR I ABOR PRAC ICE S
A. Background
Respondent manufactures hot line tools, the kind used
by companies that install, replace, or maintain electrical
equipment. It employs from 8 to 12 production employ-
ees.
In April 1979,3 on April II, the Union commenced a
campaign to organize Respondent's production employ-
ees. It held an organizational meeting on this date after
work at a restaurant. This meeting was attended by all of
the production employees. On April 18 another similar
meeting was held after work attended by all of the Com-
pany's production employees. On April 26 the Union
filed a petition with the Board asking that the Board
conduct an election for union representation in a unit of
Respondent's production employees. On June 7, 1979,
such an election was conducted. The record does not
reveal the results of the election.
The leading union adherent among the employees was
Fred Knapp. The alleged discriminatee, Joseph Fegard,
with the Company's other production employees, attend-
ed the April II and 18 organizational meetings. Fegard,
unlike some of the other employees, did not sign a union
card. In addition to attending the union meetings, Fegard
spoke about the Union to Knapp and an employee whose
first name was "Curt." Shortly after the April II organi-
zational meeting Fegard spoke to Curt in the plant
during working hours and learned he was considering
supporting the Union. Fegard went to Knapp, the
Union's organizer in the plant, and got an authorization
card which he successfully solicited Curt to sign. There
is no direct or circumstantial evidence that management
knew Fegard attended the union meetings or that he so-
licited an employee to sign a union card. However, the
record reveals that Robert Diass, the chairman of Re-
spondent's board of directors, who played a major role
in the decision to discharge Fegard, believed that all of
the Company's production employees, including Fegard,
were union adherents.
Respondent stipulated that the Union is a labor organization %within
the meaning of Sec 2(5) of the Act Also. Respondent inl its answer
admits that it meets the National Labor Relations Hoard's applicable dis-
cretionary jurisdictional standard arnd is all employer engaged i cornm-
merce within the meanilnig of Sec 2(6) and (7) (of the Acl
I In agreemenl with the General Counsel, "Motiiri To Strike" I ha'e
not relied upoit pp 18 and 19 of Reespondenlt ' brief ien sofar as the state-
menis therein are wilhoul support in Ihe record
:' All dates hereil, unless olhersr ie specified. refer Il 1979
45X
SAF\FTY lI.NE. INC'
B. The Conduct Direced .lgaiinst Fred Knapp
1. The evidence
The General Counsel contends, as alleged in the com-
plaint, that on April 18 Respondent, through the chair-
man of its board of directors, Robert Diass, violated Sec-
tion 8(a)(1) of the Act by interrogating employee Fred
Knapp about his union activities and by giving Knapp
the impression that the employees' union activities were
under surveillance and further violated Section 8(a)(1) on
April 19 by giving Knapp the impression that it would
be futile for the employees to support the Union.
It is undisputed that on April 18 and 19 Diass spoke to
Knapp about the Union. Diass and Knapp testified about
these conversations. Their description of Diass' remarks
conflict in certain significant respects. I have resolved
this conflict in favor of Diass because he impressed me
as the more credible witness. A description of Diass'
conversations with Knapp follows.
On April 18 Diass spoke to Knapp about the Union at
Knapp's work station on two separate occasions. Diass
initiated these conversations. No one else was present.
During the first conversation Diass remarked, "1 under-
stand that you are trying to organize the plant," and
asked "why Knapp wanted a union." Knapp indicated he
was in favor of union representation and explained that
his reason for supporting the Union was the difficulty he
had in speaking to Diass about his work problems, that
before speaking to Diass he had to go through Diass'
subordinates. Diass answered that his office was always
open and that Knapp had not said anything which, in
Diass' opinion, indicated "there would be any real bene-
fit to the employees or the Company through having a
union." During the second conversation Diass stated to
Knapp, "I hear there is going to be a meeting at the
Union Hall," and asked whether Knapp intended to
attend the union meeting and whether Knapp objected to
Diass attending the meeting. Knapp stated Diass was
welcome to attend the meeting but might get something
thrown at him. In order to assist Diass in getting to the
meeting, Knapp handed him a piece of paper which indi-
cated the date, time, and location of the meeting sched-
uled for that evening.4 Diass handed the paper back to
Knapp and stated, "No thanks, I was not seriously plan-
ning to attend the meeting." Diass informed Knapp that
he intended to meet with the employees, at which time
he would discuss the Union.
On April 19 Diass again spoke to Knapp at his work
station at which time Diass told Knapp that Diass "did
not see any benefit to the employees or the company for
having a union in the shop," that the employees and
management ought to be able to solve their problems
themselves inasmuch as Diass' office was always open.
Diass stated he intended to hold shop meetings with the
employees, at which time he would present his views
about union representation.
I This paper, announcing the union meeting, hid been lying on
Knapp's workbench Diass. preiousl) that day, had come across ne eof
these announcements in the shopp He had read it and. prior to speaking to
Knapp. had noticed an identical announcementl on Kapp's sorkhbellch I
reject Knapp's testimony that there Aere no wsritten anniouncementls of
the April 18 union meeting
2. Conclusions
As described supra, a high level management official,
Robert Diass, the chairman of Respondent's board of di-
rectors. asked employee Knapp "why [Knapp] wanted a
union" and whether Knapp intended to attend a union
organizational meeting scheduled for that evening. These
questions were not asked for a permissible purpose and
were not accompanied by an assurance against reprisal.
Nor was the interrogation an isolated act, as Diass, as
found infra, during the same time period questioned two
other employees about their union activities.' It is for
these reasons that I conclude that, by interrogating em-
ployee Knapp about the basis for his support of the
Union and whether he intended to attend a union organi-
zational meeting, Diass engaged in the kind of conduct
which reasonably tends to have a coercive effect and
thus intruded into the employee's Section 7 rights. I
therefore find that by engaging in this conduct Respond-
ent violated Section 8(a)(1) of the Act. See Fred Jones
Manufacturing Company, 239 NLRB 465 (1978); CBS
Records Division of CBS, Inc., 223 NLRB 709 (1976). The
fact that Knapp had openly declared his prounion senti-
ments is no defense to what would otherwise constitute
impermissible interrogation. See ITT Automotive Electri-
cal Products Division, 231 NLRB 878 (1977). Likewise.
the fact that Diass testified he questioned Knapp about
the union meeting in a "joking way," or that the ques-
tioning did not seem to dissuade Knapp from supporting
the Union, is no defense.6 See Hanes Hosiery, Inc., 219
NLRB 338 (1975), where the Board stated:
We long have recognized that the test of interfer-
ence, restraint, and coercion under Section 8(a)( )
of the Act does not turn on Respondent's motive.
courtesy, or gentleness, or on whether the coercion
succeeded or failed. The test is whether Respondent
has engaged in conduct which reasonably tends to
interfere with the free exercise of employee rights
under the Act.
In other words, "It is the fact. and not the manner, of
interrogation which interferes with or coerces the em-
ployees in the exercise of their rights." Hanes Hosiery.
Inc., supra at fn. 2, cf. 4. P. Green Fire Brick Co. v.
N.L.R.B., 326 F.2d 910, 914 (8th Cir. 1964). ("Executives
who threaten in jest run the risk that those subject to
their power might take them in earnest and consider the
remarks to be coercive.")
I do not agree, however, with the General Counsel's
further contention that Diass' remarks to Knapp, "I un-
derstand you are trying to organize the plant," and "I
hear there is going to be a meeting at the Union Hall,"
were reasonably calculated to give the impression that
the employees' union activities had been placed under
surveillance by Respondent.7 Knapp's union activities
"As noted supra. Respondent employed approximalely I0 *r 12 pro-
ductlioll employees: thus, Dias interrogated a substantial number of the
employees about their union acltities
" There is no ecidence that Knapp considered Diass' interrogation as i
joke
The Board has staled. "In determiting whether ai responldent created
an impression of surveillance. the test applied h) the BoRard is . hether
( ,,ool l, d
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were overt and well known throughout Respondent's
small plant 8 and the union meeting had been advertised
by written announcements distributed among the em-
ployees one of which was lying openly on Knapp's
workbench. In other words, Diass' statements to Knapp
that "I understand you are trying to organize the plant"
and "I hear there is going to be a [Union] meeting" were
statements of what Diass and Knapp knew to be
common knowledge in the plant. Under the circum-
stances Diass' statements, without more, did not suggest
that Respondent was spying on the employees' union ac-
tivities. I find that Diass' statements, under the circum-
stances, were not reasonably designed to give the impres-
sion that Respondent was engaging in the surveillance of
the employees' union activities. Therefore, I shall recom-
mend that paragraph 6(e) of the amended complaint be
dismissed.
Likewise, I reject the General Counsel's contention
that Diass' statement to Knapp on April 19 that Diass
"did not see any benefit to the employees ... for having
a union in the shop," violates Section 8(a)(l) of the Act
because it suggested to Knapp the futility of selecting the
Union as the employees' collective-bargaining representa-
tive. As described supra, Diass remarked to Knapp that
he "did not see any benefit to the employees or the
Company for having a union in the shop" because, as
Diass explained to Knapp, the employees and manage-
ment ought to be able to solve their problems without a
union, as Diass' office was always open. There is not the
remotest suggestion in this statement, express or implied,
that if the employees selected the Union as their collec-
tive-bargaining representative that Respondent would
engage in a course of conduct to insure the futility of
collective bargaining. Nor does the context in which
Diass expressed the statement in question warrant the
conclusion that Knapp would have reasonably inferred
that it would be futile for the employees to select the
Union as their collective-bargaining representative. It is
for these reasons that I shall recommend the dismissal of
paragraph 6(b) of the complaint.
C. The Conduct Directed Against Employees Lopez
and Rivera
I. The evidence
Employee Herberto Lopez testified that on April 12,
the day after the April II union meeting, that Robert
Diass, the chairman of Respondent's board of directors,
visited Lopez' work station and asked him about the
union meeting. Specifically, Lopez testified that Diass
stated: "I hear that you went to a union meeting yester-
day." This shocked Lopez because he did not think
Diass had known that Lopez had attended the union
meeting. Lopez answered: "Yes, I went to see what the
[union business representative] had to say." Diass warned
Lopez, "If the Union comes in you know there are going
to be a lot of changes around here." Lopez reiterated, "I
employees would reasonably assume from the statement in question that
their union activities had been placed under surveillance" South Shore
Hospital. 229 NLRB 363 (1977)
" Several employees had informed Diass about Knapp's union activi-
ties.
just went to see what the [union business representative]
had to say." Diass stated, "I am doing the best I can in
wages and benefits . . . and I cannot do any better than
I am doing now." Once again Lopez told Diass he had
gone to the union meeting merely to see what the union
business representative had to say and assured Diass that
he had not made up his mind to support the Union. At
this point Diass left Lopez and went to the next work
station where employee Delfin Peter Rivera was work-
ing.9
Employee Rivera testified that on April 12 Diass vis-
ited his work station and in the presence of employee
Joseph Fegard, who was working at the next work sta-
tion, asked Rivera about the union meeting. Specifically,
Rivera testified that "Bob Diass asked me how the meet-
ing was." Rivera expressed his surprise that Diass knew
he had attended the union meeting and indicated that
certain employees whom he called "backstabbers" must
have given Diass that information.
Diass testified he spoke with Lopez at Lopez' work
station on several occasions and may or may not have
talked with him about the Union. He further testified
that he spoke to Rivera at his work station about the
Union but he has no independent recollection of their
conversation. When asked whether in talking with Lopez
and Rivera he mentioned the union meetings, Diass did
not deny that he brought up this subject but answered,
"I tried to the best of my ability, to have them bring it
up." Finally, Robert Diass, in effect, testified that he
could not have spoken to either Rivera or Lopez about
the Union on April 12 because he had no knowledge of
the Union's organizational campaign until April 17, when
Respondent's vice president in charge of production,
Jack Meinbress, and its president, Carl Diass, phoned
him in Los Angeles, California, and advised him of the
Union's campaign. Neither Meinbress nor Carl Diass cor-
roborated this testimony and earlier in his testimony
Robert Diass inconsistently testified that he had heard
the week prior to April 18 that employee Knapp was at-
tempting to organize the employees on behalf of the
Union. Diass, in testifying about his conversations with
Rivera and Lopez, did not impress me as a credible wit-
ness, whereas Rivera and Lopez impressed me as being
sincere and reliable witnesses. I therefore have credited
their testimony.
2. Conclusions
As described supra, a high-level management official,
Robert Diass, the chairman of Respondent's board of di-
rectors, interrogated employees Rivera and Lopez on
April 12 about their attendance at an April II union or-
ganizational meeting. Diass asked Rivera "how the meet-
ing was" and commented to Lopez, "I hear that you
went to a union meeting yesterday." Both Lopez and
Rivera expressed surprise and displeasure over the fact
that Diass knew they had attended the union meeting.
" Lopez testified he attempted to eavesdrop on Diass' conversation
with Rivera arid, although nolt entirely successful, he did overhear Diass
ask Rivera. "So you went to the Union meeting too)." or words to that
effect
460
SAFEt'TY I.INt. INC
The interrogation " was not conducted for a permissible
purpose and Wils not accompanied by an assurance
against reprisal. To the contrary, in Lopez' case, Diass
threatened the employees with unspecified reprisals if
they supported the Union. Thus, when Lopez acknowl-
edged he had in fact attended the union organizational
meeting. Diass warned him, "If the Union comes in you
know there are going to be a lot of changes around
here." Viewed in context, I am persuaded that Lopez
would reasonably construe Diass' warning as a threat of
economic reprisal if the employees supported the Union.
See Mon River Towing. Inc. v. N.L.R.B., 421 F. 2d 1, 9
(3d Cir. 1969), where the court noted, "[L]anguage may
imply a threat as well as constitute a threat directly," and
since the unspecified "economic dependence of employ-
ees on their employer may cause them to be peculiarly
sensitive to nuances in language which would be lost on
a neutral observer, the possibility that a statement con-
tains an implied threat must be judged from the employ-
ee's point of view." See also N.L.R.B. v. Gi.sel Packing
Co., Inc., 395 U.S. 575, 617, 619 (1969), wherein the Su-
preme Court held that the Board, in interpreting the
impact on employees of employer statements, has a
"duty to focus on the question: What did the speaker
intend and the listener understand . . . in the context of
[the employers's] labor relations setting," taking "into ac-
count the economic dependence of the employees on
their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended
implications of the latter that might be more readily dis-
missed by a more disinterested ear."
Based upon the foregoing, I find that Respondent vio-
lated Section 8(a)(1) of the Act by Diass' interrogation of
employees Rivera and Lopez and further violated Sec-
tion 8(a)(1) when Diass, in speaking to Lopez, threatened
employees with unspecified economic reprisals if they
supported the Union.
D. The Conduct Directed Against Joseph Fegard
The General Counsel contends, as alleged in the com-
plaint, that Respondent violated Section 8(a)(l) of the
Act when Robert Diass, the chairman of its board of di-
rectors, on or about April 15 threatened to discharge em-
ployee Joseph Fegard because of his union activities.
Employees Fegard and Knapp testified for the General
Counsel and Diass testified for Respondent in connection
with this allegation.
Knapp testified that on April 19 Fegard came to
where Knapp was working and was in the middle of
saying something to Knapp when Diass interrupted their
conversation. According to Knapp, Diass said one or
two words to Fegard, which Knapp did not specify, and
then "stabbed" his finger at Fegard declaring, "You will
"' I realize that Dias%. il speaking to ILipce. did inot phrasC his renl;rk
ahoult lope/ attendaince at Ihe union mccting ihm the foirm ofr a question
Nonethelss. it is plain that Dias%' statcementl ,ls rcaonabhly calculated Ii
elicit a resplonse from I. ope which would reveal his ullion s mpathies or
activities In fuelt. t ope, as described uprau in respone toi [)lass' remark.
felt compelled to assure DIiass hal he had ilnot decided to suppirt Ihe
Union but had attcnded Ihe uniitii mcciC llg in l Ioi listet l It v hilt Ihe
union husinvss representative had Io say
be the first one fired," and abruptly turned and left the
area.
Fegard testified that on approximately April 16 or 17
he was in the welding department, where Knapp works,
on his way to Knapp's work station whenl Diass stopped
him and asked, "Are you one of the organizers behind
this?" Fegard said nothing. Then. as Fegard was walking
away. Diass, according to Fegard's testimony. told him
"You arc going to be the first one to go."
Diass denies he spoke to Fegard in the presence of
Knapp during the time material to this case. Diass also
specifically denies ever warning Fegard that Fegard
would be the first one terminated
Diass impressed me as a more credible witness than
either Fegard or Knapp, accordingly. I reject their testi-
mony. It is for this reason that I shall recommend the
dismissal of paragraph 6(d) of the complaint.
E. 7he Dischurgc oJ'Jocsph I-'gaurd
I. The evidence T
Fegard worked for Respondent for approximately 6
years. His productivity was excellent and management
regarded him as a very valuable employee. During his
first 3-1/4 years of employment, until December 1976, he
worked full time. Then he shifted to part-time employ-
ment so he could attend school. When Fegard asked Re-
spondent's vice president in charge of production. Jack
Meinbress, to work part time so he could attend school,
Meinbress indicated that the Company did not want to
employ part-time workers but, since business was slow
and since Fegard was a good worker, Meinbress would
talk to Respondent's president, Carl Diass, about Fe-
gard's request. Meinbress consulted with Carl Diass and
they decided to grant Fegard's request to convert from a
full-time to a part-time employee. Thereafter, for the re-
mainder of his employment with Respondent, Fegard
worked approximately 20 hours a week even though he
only attended school for 2 weeks. Fegard did not inform
any representative of Respondent that he was no longer
attending school; rather, he allowed Respondent to be-
lieve that he was still attending school. After having quit
' Ihe charniranl of Respondent' hboard f direclors. Rohert [)lss. Iht
vice preslilde in chahrge of Resp icdenlll's production. Jack Mcilhress, and
the alleged discriminlllc. cemployee Joseph Fegard, leslitfiel Ihoul the
circumitancllt surrouildilng Fegard's lernmllilllon the descTripll on of Ihes'e
circumslances. w hich is set forth ill this sectiOln. is hasled upon I he Ics ll-
mony of Diass iand Mcinhrcss. who impressed nmc ia credible .itnlssecs
In his mininer and demeanor. Fegard did I ol seem ito he ;I reliable "il-
nes% In addition. Fegard',s lesimlony concernilng whether [)iass lid/or
Meinhres. prior to April 20. spoke to hini ahoul working full imne is
charactlrie/d hy sgnilificalt inconlisltilcles At %alrous ilnlcs I 'gard I1tst-
fled Ihal nelither Diass nor Meinhbress. prior lo April 2(1. evser sked him
lo work full lime anld that, 'heii he asked for a pay ralse. he subhlccl of
his working full tine w;',s no( raised hby cither l)ials or Meilbress Ito.-
ever. ll other tlimes. Fegard nlconlistlielly leslified Ihal Diass illd Mcin-
hres,. prior lo April 20. spoke to him ahoul workiln full linle ;ild hliit in
discutssing his rqullesl for i play r;llsc. D)ilss lnd Mcillhress c diioi led
Ihe pay rs.e upon hlls wvrking full time Also. the record revcall Ihat
Fegaird. in Ihe al'fida. ivx lllch he luhnmlllcd tI Ihh Iti;oard during tli 1i-
%esiigation of' the charge i1l Ihls cils. I'AlIel st 1tel ithalt in Mairchi. .lieu
he ilsked for a pas ri lse. F egalrd ;ikcd Respoldltl It rctilssign hll to
full-time emphloymenl Ahlslii iii1 cxpltilailli for ilclopordiiig Ihis ill
trutlh ill hris uffidis ; 1 I caill oiy presuni li t It . ;ii s a done delihberautely il
an Iefforl o help his case
461hl
4t2 1)1 (.l'OICIIONS~ 0I NAt I ONAL ILABOR RIA I JOI NS BO(ARD)
school. Fegard appaireltly used his forimer school hours
t)o work for other employers.
Fegard was the only parl-time employee whom Re-
spondeni employed. Respondent normally did not
employ part-rime workers because, as the undenied and
uncontradicted testimony of Robert I)iass and Jack
Meinbress establishes, the employment of part-lime
workers in a small operation such as Respondent's causes
production arid scheduling problems. Thus, it is not sur-
prising that long before the commencement of the
Union's organizational campaign management, on several
occasions, tried to persuade Fcgard to resume working
on a full-time basis.
During 1978, when Meinbress, the vice president in
charge of production, Meinbress, discovered that pro-
duction was not keeping pace with customers' orders, he
asked F:egard on several occasions to resume working on
a full-time basis. Fegard stated that he wanted to contin-
ue working part time. Meinbress, who believed that
Fegard was still attending school, did not insist tihat
Fegard work full time.
In February 1979, Respondent fell behind in its pro-
duction and was receiving complaints from customers
because of this, so, management tried again to persuade
Fegard to resume working full time. Specifically, Robert
Diass, the chairman of Respondent's board of directors,
asked Fegard to work full time instead of only part time.
Fegard refused. Diass, who believed that Fegard was
still attending school, (lid not insist that Fegard work full
time.
Later during February Fegard asked Meinbress for a
$2-an-hour pay raise. Meinbress stated he would have to
consult with the other members of management about
Fegard's request, but indicated he would favorably con-
sider raising Fegard's pay if Fegard would work full
time. Meinbress explained to Fegard that the Company
needed his services full time and, to illustrate this point,
showed Fegard a stack of unfilled production orders.
Thereafter, in late February, Meinbress informed Fegard
that the Company was prepared to grant him a $1-an-
hour pay raise effective April 1 if Fegard, on March 1,
started working full time. Fegard stated he would con-
sider the matter.
On March I, Fegard did not change his status from
part-time to full-time employment. Robert Diass, who
had been infoirmed by Meinbress about the offer of a $1
raise in pay to Fegard if he commenced working full
time, spoke to Fegard early in March about this offer.
Diass told Fegard that the Company needed him to
work full time and could not "keep going" with him
only working part time. Fegard took the position that
the $1-an-hour pay raise offered by Meinbress was an
insult.
During this period of time Fegard, who was working
for another employer, injured himself while working for
this employer and as a result was absent from work for
Respondent from March 15 through April 4. This com-
pounded the Company's production problems and the
result was that there were more customers' complaints
than usual because of the Company's failure to deliver
orders as scheduled. In order to try to alleviate this con-
ditiion Rcspoxidetl, on March 17 aind 26, hlired two addi-
tional full-tinme production workers.
When Fegard returned to work oni April 5 Respondent
learned for the first time that Fcgard was not going to
school but instead xwas working for another employer
auid that it was ain injury incurred while working for this
other employer which had caused his recent absence.
Robert Diass was upset about this allnd told Meinbress
that he thought the fact that Fegard, unkntrowni to the
Company, had been working for another employer in-
stead of going lo school "stunk" anid stated he ,vas un-
happy about the fact that they had no production from
Fcgard for almost 2 weeks due to the accident hec had
suffered while working for this other employer. He indi-
cated to Mcinbress hie wanted( to terminate Fegard and
replace him with a full-time employee. Meinhress took
the position that he did iot want to abruptly fire Fegard
inasmuch as he believed that :e:gard would eventually
agree to work full lime. i2 [)iass did not press the matter.
O()n or about April 7 Meinbress asked Fegard to
change from part-time to full-lime employment. Fegard
either refused to do this or indicated he would consider
the matter. Thereafter, during April, Respondent re-
ceived more complaints than eve" before in its history
from customers about late deliveries, so, on April IX
Robert Diass, the chairman of Respondent's hoard of di-
rectors, and Carl Diass, Respondent's president, informed
the vice president in charge of production. Jack Mein-
bress, that he would have to increase production because
customers were complaining about late deliveries. Mein-
bress stated he had hired additional employees but they
were inexperienced and the only thing he could do to al-
leviate the problem was to have Fegard work full time.
Meinbress, in this regard, stated he was not able to oper-
ate any longer with Fegard working only part time and
that the matter would have to be resolved. Robert Diass
stated that if Fegard did nriot agree to work full time he
would be discharged and that Diass would notify
Fegard
Later, during April 18. Robert Diass spoke with
Fegard at his work station. Diass stated that the Compa-
ny could not continue to operate with Fegard working
part time and would pay Fegard $1 an hour more if he
worked full time. Diass instructed Fegard that he had
until the next day to decide whether to work full time or
terminate his employment. Fegard stated he would think
about it. Also during this conversation, in an effort to
persuade Fegard to work full lime. Diass told him that,
unless he worked full time, he would not be eligible to
vote for union representation. Fegard disagreed, stating
that, as a regularly scheduled part-time worker, he had
the right to vote for union representation.
O()n April 18, after speaking to Fegard. Diass notified
Meinbress that he had told Fegard lo come to work full
'1 Mlillnhrs, lle dll i,. Ii l Illa rtlr lllln }1e did nor- dlichlar gl Ic lgard o01
Apr i l 5 tl1 } n Ic;lrtll td I igalrl hid hli l .III intigIIIgi g illilcid orI g(iliig
I sch.itol Xs as hiltl Mcinihrc,, "\;is hoipinig thll t l:cg.iadl .111.uld (oI11c 1
full LmI1ic It cglard] hidd hccti il lci for h rs , i anti ., p lit iof
Illl.1 IlallllnlIg 11 n11 ill d hi W.lI d A. iiUilh lC Cllplo> C iat uI1 I1i Li d 1 ) I ;IJl11l
Io hrilh hinl ;Isitl"
4h2
SA 1: l Y I INF. IN(
time and nlUlst noltify manlagecmenllt of his dccis1onl hb the
next day
()n April I)' and 2() Fegard worked only part time and
did not indicate to Respondent that he had accepted its
offer of full-time work at all increase in pay. So, on
Friday, April 20, the end of the workweek, Meinbress, at
the end of the workday, asked Fegard whether he in-
tended to work full time Fegard answered no and stated
that he wanted to remain as a part-lime employee. Mein-
bress advised him that he was discharged.
Following Fegard's termination. Respondent, in an
effort to meet the delivery dates for its customers'
orders, hired two full-time production workers, one on
April 23 and another on April 25.
2. Conclusions
As described supra, Respondent discharged employee
Fegard because he refused to work full time. The Gener-
al Counsel contends that this reason is merely a pretext
and that the real reason for the discharge was Fegard's
union activities. I disagree. The record establishes that
due to production and scheduling difficulties which are
caused by employing part-time employees in its small op-
eration, Respondent does not employ part-time workers.
However, as an acommodation to Fegard's schooling,
Respondent had allowed him to work part time for over
2 years. During this period Respondent, on several occa-
sions, asked Fegard to convert back to full-time employ-
ment, even offering him a substantial pay raise to work
full time. Fegard refused and Respondent, which was
under the impression that Fegard's part-time status was
necessitated by his school attendance, did not insist that
Fegard work full time. Then, on April 5, Respondent
learned for the first time that Fegard was not attending
school but instead was working for another employer
during those hours he was not working for Respondent.
Upon the receipt of this information Robert Diass, the
chairman of Respondent's board of directors, understand-
ably felt that Fegard had deceived the Company. Diass
wanted to discharge Fegard immediately and replace
him with a full-time employee. The Company's vice
president in charge of production, Jack Meinbress, per-
suaded Diass that Fegard should not be discharged im-
mediately because Meinbress regarded Fegard as a valua-
ble employee whom the Company had spent a lot of
time training and who, Meinbress thought, would even-
tually agree to work full time. This was Fegard's em-
ployment situation immediately prior to the Union's or-
ganizational campaign. Not only did the Union thereafter
commence its organizational campaign but Respondent
also received more complaints than ever before in its his-
tory from customers about the nondelivery or late deliv-
ery of orders. In addition, during this period Fegard did
not change his attitude toward working full time. Once
again Fegard refused Respondent's offer of a substantial
pay raise to work full time. It was only after this that he
was threatened with discharge and discharged. Under
these circumstances, although the timing of the discharge
makes it suspect. I am not persuaded that the record es-
tablishes by a preponderance of the evidence that Fe-
gard's discharge was motivated in whole or in part by
union considerations. 1:i I therefore shall recommend that
the allegations of the complaint pertaining to Fegard's
discharge be dismissed
Upon the basis of the foregoing findings of facts. con-
clusions of law,, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 4
The Respondent. Safety Line, Inc., Oakland. Califor-
nia, its officers, agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union member-
ship, sympathies, or activities.
(b) Threatening employees with economic reprisals if
they join or give their support to a union
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at its place of business located in Oakland,
California, copies of the attached notice marked "Appen-
dix." i s Copies of said notice, on forms provided by the
Regional Director for Region 32. after being duly signed
by Respondent's representatives, shall be posted immedi-
ately upon receipt thereof, and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHIER ORI)I RED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
'' recognize Ihal it is not necessary for a respondenl-employer lo dis-
charge all of its union adherents il support a finding of an unlasv ful dis-
charge However. I cannot help but note that Respondent is not alleged
to have unlawfully terminated or discriminated against any of its other
production employees, all of whom Respondenl believed ,were union ad-
herentl. This includes employee Knapp. who Respondent kne'. ',as the
leading union adherent among the employees I also note in connection
with Respondenl's treatment or Knapp and the other employees whhom it
believed were union adherents Ihat there is no evidence that Respondent
regarded Fegard as more actise in his support of the Union than any of
the other union adherents whom it did nol discriminate against
4 In 1 the event no exceptions are filed as provided by Sec 1(12 46 (of
the Rules and Regulations of the National Labor Relations Board, Ihe
findings, conclusions. and recommended Order herein shall, a, pro'sided
in Sec 102()48 of he Rules and Regulation,. he adopted h) the Board and
become its findings. coincluiois. and Order iliad ill ohlaecti's theretoi
shall he deemed v.vaiicd for ill purposes
'; I1 the c.enli thatl Ihit Order is enforced hb al Judgmnct iof a United
State's Coiurl of App`als, tihe iords iII the notice reading l"P',tcd hby
Orde rof Ihc Naliolal Llhbor Rclatin,is Board" shall read "'Po,ted Puru-
;lilI t 1 a Judgnlcit if the I.iilcd Stiic (C'iurt of Appealls tInforcig all
()rder of thec Natiotnal I ihbor Rclat,,s tti ard "
I)FCISI()NS ()F NA II()NAI. .AH()R RIL.A''IO()NS BO)ARD
APPENDIX
No I it To EMPiI OY IiS
POSII I) BY ORI)IR 01F lIIi
NAiIONAI LABOR RII A TIONS BOARD)
An Agency of the United States Government
Wi Wil I NOt question our employees about
their union membership, sympathies, or activities.
WI: WIt I NOI threaten our employees with eco-
nomic reprisals if they join or give support to a
union.
Wl. Wit.I NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
SAFI-TY LINIE, INC.
4h4