Sarkes Tarzian, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1964

149 N.L.R.B. 147 (N.L.R.B. 1964)

SARKES TARZIAN, INC. 147
WE WILL rescind the reprimand issued to Betty Gaff for appearing at a
Board hearing to testify, and the warning issued to Virginia Hirschbiel for
presenting a grievance, expunge from their personnel files any matter relating
thereto adversely affecting their job security, and directly notify these employ-
ees that we have taken such action.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of International Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, and its Local 997, or of any other labor organization.
ELECTRIC MOTORS AND SPECIALTIES, INC,
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, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Sarkes Tarzian , Inc. and International Brotherhood of Electri-
cal Workers , AFL-CIO, Local Union 1424 . Case No. 25-CA-
1875. October 26, 196.
DECISION AND ORDER
On July 30, 1964, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter, the Respond-
ent filed exceptions to the Decision and a supporting brief.
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 [Members Leedom, Fanning, 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 Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modifications hereinafter
noted.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent, Sarkes
149 NLRB No. 17.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tarzian, Inc., Bloomington, Indiana, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's.
Recommended Order, with the following modifications :
1. Amend paragraph 1(b), to read as follows:
"(b) Requiring that employees perform work at a production rate
which it knows they are physically incapable of attaining, and build-
ing or attempting to build an adverse employment record against
them to be used as a pretext for discharge for engaging in union or
concerted activities."
2. Add the following as a new paragraph 2(b), the present para-
graph 2(b) and those subsequent being consecutively relettered:
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amend-
ed, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended ( 61 Stat . 163, 73 Stat . 519), was heard before Trial Examiner George A.
Downing in Bloomington , Indiana, on April 1 and 2, 1964 , pursuant to due notice.
The complaint was issued on February 27 by the General Counsel of the National
Labor Relations Board on a charge dated January 13, and alleged that Respondent
engaged in unfair labor practices proscribed by Section 8 (a) (1) and ( 3) of the Act
by discharging John T . Roberts on January 10, 1964, because of his union member-
ship and activities and other protected concerted activities , and that by a course of
specified conduct of interference, restraint , and coercion it fabricated a pretext for
said discharge . Respondent answered , denying the unfair labor practices as alleged.
The issues as-pleaded and tried center around the question whether Roberts was
discharged because of his union membership and activities and/or because Roberts
was one of the plaintiffs to a libel action against Respondent growing out of an
incident during an election campaign , or because (as Respondent contends) of his
low production and poor quality work.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , an Indiana corporation engaged in the manufacture of electronics
equipment , sells and ships annually from its plant at Bloomington to points outside
the State finished products valued in excess of $50 ,000. It is therefore engaged in
commerce within the meaning of Section 2(6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The evidence
This case is concerned entirely with alleged discriminatory treatment accorded by
Respondent to employee John Roberts , who was discharged on January 10, 1964,
after some 7V2 years of employment , for the assigned reason that he was unable to
perform his job duties satisfactorily.
SARKES TARZIAN, INC. 149
Roberts, a victim of cerebral palsy from birth, was seriously handicapped, as his
condition impaired his walking , his dexterity, and his overall coordination. His
physical condition was noted and referred to by both E. M. Sears, Respondent's
personnel manager , and Harry Rushton , service manager , during his employment
interviews in August 1956; and after Roberts assured Rushton that he would not
need time off the job because of his handicap, Rushton assigned Roberts to work
as a troubleshooter on UHF (ultra high frequency) tuners made by Sarkes Tarzian.
Without going into detail, the evidence established that the job involved relatively
light and simple work (Roberts had no prior experience) which Roberts performed
satisfactorily until his transfer on July 8 , 1957, to the job of tube inspector and
technician in the incoming inspection department . The new job , though involving
a different sort of work, was no more difficult than the first one, requiring no more
physical effort and no more dexterity; and that job, too, Roberts performed satis-
factorily until his final transfer on April 8, 1963, to Respondent's Walnut Street
service department as a technician to repair "odd-ball" tuners' That Roberts had
developed as an employee to Respondent 's entire satisfaction up to that time was
demonstrated by the fact that he received, during his tenure on the first two jobs,
pay raises which aggregated 50 percent (from a $1.30 starting rate to an ultimate
$1.95) in 14 separate increases, all except 3 of which were time and merit increases.
In the meantime Roberts had become an active adherent of the Union, cam-
paigning openly in its favor and wearing on the job a badge which bore the legend
"IBEW-Organizing Committee." In addition Roberts was one of three parties
plaintiff (the other two of whom are also no longer in Respondent's employ) to a
damage suit for $5,000,000 filed on January 22, 1963, against Respondent and cer-
tain of its officers and foremen claiming a libel against the employees in the bar-
gaining unit by reason of the following:
On January 16, 1963 , the local newspaper published a news story concerning
the shooting through the front window of the home of Respondent 's foreman, John
McHenry , in which McHenry's wife was quoted as attributing the shot to the "work
of union organizers ." Roberts and the other employee plaintiffs met with repre-
sentatives of the Union , with the Union 's attorney , and with other members of the
organizing committee , discussed the damage which the article did in discrediting
the Union in the impending election ,' and authorized the filing of a class action on
behalf of themselves and other employees in the unit.
Respondent received a copy of that complaint at the time it was filed and was,
of course , thereby fully apprised that Roberts was one of the plaintiffs . In addi-
tion , both Harry Rushton , service manager, and James Long , foreman (supervisor)
of the service department on Walnut Street , admitted knowing of Roberts' union
membership and adherence . Long testified that he and Rushton discussed the mat-
ter as early as January 1963 (as well as the union sympathies of William Hobbs,
Vic Girerd, and "Corky" Sallee ), and Rushton admitted that they "most likely"
discussed Roberts' union affiliation before Roberts came into the service department.
Respondent concedes that Roberts ' supervisors were aware of his union activities.
Long testified further that in March 1963, Rushton informed him that Roberts
was being transferred to the service department , that Rushton knew Roberts would
not be able to do the work properly, that Roberts was being brought there in order
to be terminated , and that Long should keep a good file on Roberts so that after
the termination there would be a record as to why Roberts was terminated. Rush-
ton continued that after Roberts was terminated , Sallee would be transferred to the
department and that if in Long 's opinion Sallee could not do the job properly, he
could be terminated in the same way because Sallee was prounion.
Around April 1 Earl Gardner, head of the department in which Roberts was em-
ployed , informed Roberts that Rushton needed all the technicians he could get at
the Walnut Street plant , that Roberts was to report to Rushton the following Mon-
day, and that in the meantime Roberts was to each a girl his operations.
Rushton in turn informed Roberts that he would be troubleshooting odd-ball
tuners and that after a period of time he would be expected to repair and align 10
tuners a day . Again without going into detail as to the operations which he per-
formed , the new job was much more difficult than Roberts' former jobs . In brief,
it required Roberts to make all repairs on the tuners , including soldering many
'A term used to denote those made by manufacturers other than Respondent. It was
stipulated, however, that Roberts also possibly repaired some of Respondent's tuners on
that job.
2 The Union lost the election held on January 25, 1963. Union observers included
"Corky" Sallee and Vic Girerd, whose names figured in the evidence.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
points and terminals which were close together; it was detailed work which re-
quired a great deal of dexterity and coordination. Though Roberts was able to do
the work, his physical handicaps were obviously such as to place him at a decided
disadvantage in competing with other (unhandicapped) employees and in meeting
production quotas which were based on the output of the latter. Indeed, Roberts'
output was only half of the assigned rate, for during the remaining 9 months of his
tenure he averaged only around five tuners a day, and this despite undisputed evi-
dence that Roberts frequently worked during rest or break periods and during part
of his lunch time.
There was also testimony by Long that Rushton directed him to keep a good file
on Roberts' work record to reflect the progress and quality of his work; that in June
he discussed with Rushton the matter of Roberts' performance; and that Rushton
himself prepared a di aft of a warning notice which Long recopied in his own hand-
writing and delivered to Roberts after warning him verbally that his work was not
satisfactory. The notice warned Roberts about the quality and rate of his produc-
tion and informed him that "vast improvements must be made" by July 30, when
the "situation" would be reviewed again.
On August 5 Rushton prepared, and Long recopied and delivered, a further
warning which again recited deficiencies in quality and rate of production and which
informed Roberts he would be on trial until September 6. Long testified that some-
time later he spoke to Rushton again about the fact that Roberts was not producing
satisfactorily and asked what was to be done about him. Rushton replied that he
would call Mr. Woods (a staff attorney), and when Long inquired later whether
Rushton had further information, Rushton replied that he did not and that he
"guessed they were afraid to fire [Roberts]."
Long also testified that in the latter part of the summer Rushton directed him to
have Joe Hash (who was then making the final inspection) make an "extra good"
inspection of Roberts' tuners and have him reject as many as he could, but not to
let Hash know why he was doing it. Long passed the orders on to Hash, and testi-
fied that he had personal knowledge that Hash inspected the tuners of certain em-
ployees more carefully than others, naming, in addition to new employees or train-
ees, Roberts, Hobbs, and Girerd.
The warnings continued. On September 6 Long placed in Roberts' file a memo-
randum that he had conferred with Roberts and informed him his probation would
be extended for a few days. On December 12, Rushton delivered a memorandum
which reviewed Roberts' record, which recited that no apparent attempt had been
made at improvement, and which gave final warning that unless by January 10 he
produced a tuner in every 48 working minutes and improved the quality of his
workmanship, he would be terminated. On January 10, Roberts was called to
Rushton's office where Rushton informed him his work was not satisfactory, that he
would be allowed no more time, and that he was through. The termination notice
assigned as the reason, "Unable to perform job duties satisfactorily."
In the meantime, Long left Respondent's employ on September 30, but sometime
before he left he informed two employees of Respondent's plan concerning Roberts.
William Hobbs testified that Long informed him that Roberts would not "be with us
long" because he was there for only one purpose and that was for termination be-
cause of his union activities and because of the suit which he had filed. June Query,
Rushton's secretary, testified that Long informed her that Rushton had directed him
to have Hash check Roberts' tuners more closely than others for the purpose of
rejecting as many as possible in order to lower his production rate. Query testified
also that in the fall and winter of 1963, Rushton frequently asked her to bring him
Roberts' attendance card and that it was not his practice to check on such cards
except in cases where employees were absent or tardy a lot.
Other evidence which bore significantly on Respondent 's treatment of Roberts was
furnished by the disparate treatment which it accorded to Earl Keller, Jr., another
handicapped employee who was hired in 1962 and who openly disclosed his anti-
union sentiments by wearing a "Vote No" badge on the day before the election.
Keller was afflicted by arthrogryposis , a congenital defect in the genes, which af-
fected his muscles, his coordination, and his dexterity. Though the cause of his
condition differed from that in Roberts ' case, the effects on their respective condi-
tions (and as outwardly manifested) were much the same.
Keller was first assigned to the service department and put to repairing odd-ball
tuners, the same work which Roberts was assigned to on his last job . Keller testi-
fied that when he was able to select all of a certain type of tuner to work on, he
SARKES TARZIAN, INC. 151
could produce from 8 to 10 a day, but his overall average when he worked on all
kinds of tuners was only some 4 or 5 a day. He could not remember that he was
assigned a quota, and he testified that after some 2 or 3 months he was transferred
from that department into the testing department, where he did the same kind of
work as a troubleshooter as Roberts formerly did when he was working in the
UHF department.
Finally there was testimony by Long that shortly before the hearing Rushton
called him at home to come to the office, where Rushton discussed with Long the
latter's anticipated appearance as a witness in this case.' Rushton referred to a
"rumor going around" that Long had made a statement, and when Long made an
evasive reply, Rushton continued, "You don't want to say anything to get yourself
in trouble or get me in trouble," and that Long should not "say anything." Long
again answered evasively, and Rushton proceeded to tell Long about a new process
of cleaning tuners which the Company was developing and volunteered to let Long
"in on it" so that he could use it himself after it was worked out. Rushton also
gave Long advice on where to get parts for his business, and then took him on a
tour of the plant where they visited with employees with whom Long had formerly
worked.
I make no findings herein on testimony by some of the General Counsel's wit-
nesses concerning statements made by Curnel Nikirk, for I find him to be an em-
ployee, not a supervisor.
Respondent's case rested mainly on the testimony of Harry Rushton, who was
manager of the service department at both of its locations (South Walnut Street
and East Hillside Drive). Rushton admitted some portions of Long's testimony
(e.g., their discussions of Roberts' union activities), denied some of the more damn-
ing portions (e.g., the reasons for bringing Roberts into the department; the making
of a record to support Roberts' termination), and failed to deny others (e.g., the
call to Woods and the result; the discussion of Long's anticipated appearance as a
witness herein).
Rushton testified that at the time of Roberts' transfer he needed four technicians
in his department; that two of the vacancies were filled by transfer and two from
outside; and that Roberts came from quality control, whose manager, Al Gardner,
informed him that Roberts was available.' Admitting that he told Long to keep a
good file on Roberts, Rushton testified that the reason was that Long was complain-
ing about the poor quality of Roberts' work and that he gave Long similar instruc-
tions concerning William Hobbs and Vic Girerd, of whom Long made similar
complaints. Admitting that he later drafted the warning notice, Rushton testified
he did so because Long had trouble wording it properly because it was the first
warning he had ever made out. Denying that he gave Long instructions to have
Roberts' work inspected any differently from that of other employees, Rushton ad-
mitted he told Long to give special attention to Roberts' work and to others like
him whose work was unsatisfactory and who were having quality problems.
Concerning Earl Keller, Rushton testified that he originally agreed to try Keller
out for 2 weeks to see whether he could perform the job of repairing odd-ball tun-
ers and that Keller worked on nothing else. Some 2 weeks later Rushton discussed
the matter further with England, assistant personnel manager, feeling that Keller
might be able to handle the job, and Keller's probationary period was extended to
the normal 90 days. After about 2 months, however, Rushton had a request from
the production department for technicians and transferred Keller to it. At that
time he had reached no final conclusion on Keller's capabilities. He testified that
Keller produced at about the same rate as Roberts later produced, or possibly a
little more. Keller returned to Rushton's department in January or February 1964,
where he is now analyzing and troubleshooting tuners, but he is now working on
the Sarkes Tarzian brand, not on the odd-balls.
3 Long left Respondent's employ on September 30 to enter (or continue) his own busi-
ness. Respondent's termination report stated the reason to be, "Requested to resign due
to conflicting business interests."
4 E. M. Sears, personnel manager, corroborated that testimony, testifying that Gardner
reported that Roberts' position could be adequately handled by an unskilled person and
that there was no need to have a technician doing that job. It was actually filled by a
woman after Roberts' transfer at a rate of $1.28 as against Roberts' rate of $1.95 at the
time.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though testifying at first that he could not answer whether it was more difficult
to work on odd-ball tuners than on Sarkes Tarzian's, Rushton admitted that the
production quota on the former was 10 a day but on Sarkes Tarzian's it was an 18
minimum . Admitting finally that the work on Sarkes Tarzian tuners was more
simple, Rushton testified that was because the equipment made it so and because
the Company did not check its own product for quality but assumed it.
Sears corroborated Rushton's testimony concerning the actual transfer of Roberts
to the service department (see footnote 4, supra), and testified that Rushton never
discussed with him any plan to transfer Roberts to the service department to termi-
nate him. Sears testified further that at the time Roberts was discharged, there
were no jobs available for which he was qualified and that Roberts' former job in
quality control had been abolished through a reorganization in the department.
Respondent's witnesses also included Joseph Hash- (the inspector mentioned by
Long), James Combs, who made inspections after Long left, and Gerald Trusler, a
foreman who followed Long. All of them testified that there was no discrimina-
tion as regarded the type of inspection which was made of Roberts' work and no
instruction to inspect his work any differently than of other employees who were
doing work of poor quality. However, Hash's testimony contained no mention of
Long's name and no denial that Long instructed him to make "an extra good" in-
spection of Roberts' work.
Further testimony by Hash and Combs concerning the quality of Roberts' work
bordered on the fantastic. Thus Hash testified that he rejected 80 percent of
Roberts' tuners as against 10 percent in the case of qualified technicians. Combs
in turn described the quality of Roberts' work as "brutal" and testified that he re-
jected from 60 to 70 and up to 80 percent of it. Though much of that almost in-
credible record of incompetence was being made during Trusler's tenure as fore-
man, Trusler testified that he never recommended that Roberts be transferred to an
easier job or that he be put on less complicated work which he could handle better.
B. Concluding findings
It is plainly apparent from the foregoing summary of the evidence that if Long's
testimony is credited, this case represents one of those rare instances where direct
proof of a discriminatory motive was presented. Cf. N.L.R.B. v. Southland Manu-
facturing Company, 201 F. 2d 244, 245-246 (C.A. 4) and cases there cited. We
therefore turn immediately to the issue of Long's credibility, which Respondent at-
tacks on the ground that his propensity for lying was demonstrated by the following:
1. Long represented in his application for employment that he received an honor-
able discharge from the Navy, whereas he in fact received an "undesirable" dis-
charge.
2. When interviewed by Respondent's counsel on Friday before the hearing, Long
denied he had been instructed to discriminatorily inspect Roberts' work or to direct
someone else to do so. Admitting that he was lying at the time, Long testified that
he was not then under oath.
3. Asserted bias by Long against the Company because he operated a competing
or conflicting business and because his resignation had been requested for that
reason . See footnote 3, supra.
Though those matters are plainly relevant for consideration, they are heavily out-
weighed by other facts in the record which support and corroborate Long and which
require instead the rejection of Rushton 's conflicting testimony.
First to be noted is that Rushton failed to deny significant portions of Long's
testimony, such as his report to Long concerning his call to Woods and his more
damning attempts to influence Long's testimony. Secondly, undenied testimony by
Hobbs and Query corroborated Long by establishing that Long told each of them
of the part he was playing as Roberts' supervisor and on Rushton's orders to effect
Roberts' termination. Furthermore, their testimony refutes the claim of bias, be-
cause Long's statements were made to them before his resignation was requested
and thus before the occasion for his alleged animus arose. Indeed, Long's state-
ments when made were against his interest as a supervisor who might be held ac-
countable for his own conduct in the matter.
It is also to be noted that Rushton's testimony was implausible and inconsistent
in certain respects. Thus after first disclaiming knowledge whether the work on
odd-ball tuners was more difficult than on Sarkes Tarzian's, Rushton admitted that
work on the latter was more simple. And though disclaiming knowledge again
SARKES TARZIAN, INC. 153
whether a less competent person could perform acceptably on Respondent's product,
it was to the latter that Rushton assigned Keller upon his return to the department.
The comparable physical conditions and performances of Keller and Roberts sug-
gests no reason why Roberts could not also have performed acceptably on Respond-
ent's brand from the time of his transfer to Rushton's department, and Rushton
admitted that it was he or Long who made the decisions as to whether a given em-
ployee should work on odd-balls or on the Company's brand.
Aside from the foregoing the record as a whole supports Long's testimony for it
contains additional indicia of discriminatory motivation. The prime example was
the disparate treatment which Respondent accorded to Keller, whose condition and
whose situation generally were comparable with Roberts' save in the single cir-
cumstances that Keller was openly against the Union while Roberts was openly for
it. Keller, who was placed initially on the same kind of job to which Roberts was
finally assigned and whose performance on that job was comparable with Roberts',
was transferred to the same kind of easier job on which Roberts had performed ac-
ceptably. Shortly after the election and the institution of the libel suit, however,
Roberts was transferred from the easier job to the harder one, on which Keller's
performance plainly served as the basis of Rushton's knowledge that Roberts would
be unable to do the job properly. Then for some 9 months, while Rushton patiently
compiled a record, Roberts was permitted to continue on a job where he consist-
ently produced only half of the assigned quota and where his performance was so
fantastically poor that the inspectors were rejecting up to 80 percent of his work.'
Yet from the evidence of Roberts' prior performance and from its experience with
and treatment of Keller, Respondent well knew there was work available which
Roberts could perform acceptably.
For the foregoing reasons I credit Long's testimony, and I find here the direct
proof of a discriminatory motive which is so rarely obtainable in unfair labor prac-
tice cases. N.L.R.B. v. Southland Manufacturing Company, supra. As I reject Rush-
ton's testimony to the extent it conflicts with Long's, I find that Respondent's evi-
dence wholly failed to support its defense that Roberts' low production and poor
quality work were the sole reasons for his discharge. Though there was no sub-
stantial issue as to the character of Roberts' performance on his last job (the point
to which much of Respondent's evidence was directed), Long's testimony and the
other evidence established that that was only pretext and that Rushton deliberately
fabricated a record against Roberts to screen Respondent 's plan to eliminate an ad-
herent of the Union who had also joined as party plaintiff in the libel action against
it. Evidence concerning the abolishing of Roberts' former job and of the un-
availability of other work which he was qualified to perform was wide of the mark
in the light of the direct proof of discriminatory motivation. Furthermore, on the
latter score, Respondent's contentions were plainly refuted by its retention of Keller,
whose seniority was far short of Roberts'.
I therefore conclude and find, on the basis of the entire evidence, that Respond-
ent discharged Roberts because of his union membership and activities and be-
cause of his participation with other employees and with union representatives in
the filing of the libel suit, the taking of which action was itself a protected con-
certed activity. Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d
325, 328 (C.A. 9) (and cases there cited), enfg. 99 NLRB 849. By said conduct
Respondent engaged in discrimination within the meaning of Section 8 (a)(3) and
thereby engaged in unfair labor practices proscribed by Section 8(a)(3) and (1)
of the Act.
I conclude and find further that Respondent engaged in interference, restraint, and
coercion within the meaning of Section 8(a)(1) by the conduct of Long and Rush-
ton in fabricating a pretext for Roberts' discharge by (a) requiring that Roberts
perform work at a production rate which they well knew he was physically inca-
pable of attaining and (b) attempting to build and building an adverse employment
record against Roberts , consisting of written and oral warnings and placing and
keeping him on probation. I find, however, that the General Counsel did not
5 The only explanation which the record suggests for those incredible circumstances was
supplied by Long's testimony concerning Rushton's report back to him after the call to
Staff Count,el Woods that Rushton believed the Company was afraid to fire Roberts. Of
course, the filing of the libel action and Roberts' open adherence to the Union would
plainly have given it pause in that regard
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish by a preponderance of the evidence the complaint allegations that Re-
spondent directed inspectors to disparately reject Roberts' work, that Roberts' work
was in fact disparately rejected, or that Roberts' attendance records were dispar-
ately checked.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action which is conventionally ordered in such cases, as provided in the Recom-
mended Order below, which I find necessary to remedy and to remove the effects
of the unfair labor practices and to effectuate the policies of the Act. For reasons
which are stated in Consolidated Industries, 108 NLRB 60, 61, and cases there
cited, I shall recommend a broad cease-and-desist order.
I shall recommend that Roberts be offered reinstatement to a job and to work of
the types which he performed prior to his transfer on April 8, 1963, or the sub-
stantial equivalent thereof.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8 (a)( I) of the Act.
2. By discharging John Roberts on January 10, 1964, because of his union mem-
bership and activities and because of his participation with other employees and
with union representatives in the filing of the libel suit against it, Respondent en-
gaged in discrimination to discourage membership in the Union, thereby engaging
in the unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I recommend that the Respondent, Sarkes
Tarzian, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Electrical Work-
ers, AFL-CIO, Local Union 1424, or any other organization of its employees, by
discharging or in any other manner discriminating against employees in regard to
their hire or tenure of employment or any term or condition of employment.
(b) Requiring that employees perform work at a production rate which it knows
they are physically incapable of attaining, and building or attempting to build an
adverse employment record against them to be used as a pretext for discharge.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist said Inter-
national Brotherhood of Electrical Workers, AFL-CIO, Local Union 1424, or any
other labor organization, to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all of such
activities.
2. Take the following affirmative action:
(a) Offer to John Roberts immediate and full reinstatement to a job and to
work of the types which he performed prior to his transfer on April 8, 1963, or the
substantial equivalent thereof, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay which he may have suffered by
payment to him of a sum of money equal to that which he would normally have
earned from January 10, 1964, to the date of the offer of reinstatement less his net
earnings during said period. (Crossett Lumber Company, 8 NLRB 440), said
backpay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon
at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.
(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 this Recommended Order.
SARKES TARZIAN, INC. 155
(c) Post in its offices at Bloomington , Indiana, copies of the attached notice
marked "Appendix A."' Copies of said notice, to be furnished by the Regional
Director for Region 25, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places, including all places where notices
to employees ale customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered , defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 25, in writing, within 20 days from
the date of the receipt of this Decision , what steps Respondent has taken to comply
herewith:
0In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United State Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
I In the event that this Recommended Order be 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 A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify you that:
WE WILL NOT discourage membership in International Brotherhood of Elec-
trical Workers , AFL-CIO, Local Union 1424 , or in any other labor organiza-
tion, by discharging employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of employment.
WE WILL NOT fabricate a pretext for discharging employees by requiring that
they perform woik at a production rate which we know they are physically in-
capable of attaining or by attempting to build and building an adverse employ-
ment record against employees.
WE WILL NOT in any other manner interfere with , restrain , or coerce em-
ployees in the exercise of their right to self-organization , to form, join, or
assist said International Brotherhood of Electrical Workers, AFL-CIO, Local
Union 1424 , or any other labor organization , to bargain collectively through
representatives of their own choosing , or to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection or to
refrain from any or all such activities
WE WILL offer to John Roberts immediate and full reinstatement to a job
and to work of the types which he performed prior to his transfer on April 8,
1963, or the substantial equivalent thereof, without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees are flce to become or remain, or to refrain from becoming or
remaining , members of the above -named or any other labor organization.
SARKES TARZIAN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE-We will notify the above-named employee if presently serving in the
Aimed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921, if they have any question concerning this notice or compliance with its
provisions.