Sarkes Tarzian, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1968

169 N.L.R.B. 587 (N.L.R.B. 1968)

SARKES TARZIAN, INC. 587
Sarkes Tarzian , Inc. and International Brotherhood
of Electrical Workers, AFL-CIO. Cases
25-CA-2490, 25-CA-2534, and 25-RC-2308
February 1, 1968
DECISION, ORDER , AND CERTIFICATION
OF RESULTS OF ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 8, 1967, Trial Examiner David Lon-
don issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also recommended that the election held herein be
set aside. Thereafter, Respondent filed exceptions
to the Decision and a supporting brief, and General
Counsel filed a brief in support of the Decision.
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
powers in connection with these cases to a three-
member panel.
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 Examiner's Decision, the exceptions, the
briefs, and the entire record in these cases, and
finds merit in Respondent's exceptions. Ac-
cordingly, the Board adopts the Trial Examiner's
findings, conclusions, and recommendations only
to the extent that they are consistent with the fol-
lowing.
Respondent is engaged in the manufacture of
electrical equipment at three plants in Monroe
County, Indiana. The Union began a drive to or-
ganize the more than 1,600 production and main-
tenance employees at the three plants in April 1962.
In January 1963, there was an election. The Union
lost and filed objections. The Board set aside the
election and directed a second election. I On May
12, 1966, the Board conducted a second election.
Again the Union lost and again it filed objections to
the election. It also filed unfair labor practice
charges. The objections and the unfair labor prac-
tice allegations were consolidated for the purpose
of, a hearing. The Trial Examiner found that Re-
spondent had committed multiple violations of
Section 8(a)(3) and (1), and found further that these
violations warranted setting aside the election.
1. The Trial, Examiner found that Respondent
imposed, and kept in effect until employee Tom
Beech quit, a rule against work relaxation by its
maintenance employees in order to devise a pretext
to discipline said employees for their union ad-
herence . We disagree with this finding.
Tom Beech was one of five maintenance men on
the night shift . He was hired in February 1966. On
this evening of April 14, 1966 , he appeared at work
wearing a union button, the first such button worn
by an employee on the night shift . The same even-
ing Payne , the night foreman , told Beech that he
was being transferred to the day shift because one
of the maintenance men on the day shift had quit.
When Beech complained the lollowingday to Plant
Manager Polley that he could not work days,2 the
transfer order was rescinded , Polleyexplaining that
he had mistakenly thought Beech was a cam man.
There is no contention that this attempted transfer
of Beech violated the Act. On the everting of April
15, Payne called a meeting of the night maintenance
men and told them that henceforward , instead of
being responsible for the maintenance of a particu-
lar set of machines , they would be rotated on dif-
ferent machines , and that they were "no longer to
sit down at all and quit talking to the girls,, to keep
busy at all times and if the new machines were
running properly to find work somewhere along the
lines even if the machines weren 't being operated.
." About a week after this talk by Payne, Beech
quit . It is not contended that Beech's quitting was
caused by Respondent or was unlawful. After
Beech quit , several employees testified, main-
tenance men sat and talked to the girls on the line
"just about every night."
The above facts are not sufficient to justify an in-
ference that the purpose of the rule against "relaxa-
tion" was to devise a pretext to discipline the main-
tenance employees for their union adherence . First,
the rule applied to all maintenance employees and
not only to Beech . And the evidence does not show
that the four other maintenance men were known
adherents of the Union. Second , the rule was
reasonable under the circumstances . The evidence
is that the maintenance work on the night shift was
not being performed properly and that operators as
well as supervisors had complained of laxity. The
rule itself merely required that the maintenance em-
ployees keep busy rather than sit around and talk to
employees as some of them did . Although the
testimony that the maintenance men resumed talk-
ing to production operators after Beech quit creates
some doubt as to the bona fides of the reason for the
rule against "relaxation," it is not sufficient to over-
come the other evidence which indicates that the
rule was adopted for legitimate economic rather
than discriminatory reasons.
2. The Trial Examiner further found that
Respondent violated Section 8(a)(1) by engaging in
surveillance of employees as they entered and
1 157 NLRB 1193. 2 Unknown to Respondent , Beech was attending law school during the
day
169 No. 84
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained in the restroom in order to ascertain their
union adherence or sympathies. Again we disagree.
About 2 years prior to the hearing, Foreman
Payne had promulgated a rule among coilwinders
that two persons from the same group were not to
go to the restroom at the same time. For some
reason, the rule had not been applied to the girls in
quality audit. In April 1966, when two coilwinders
who were members of the Union's organizing com-
mittee were criticized for violating the rule, they
complained that the rule was not applied to girls in
quality audit and they named specifically Anna
Branam and Reva Robertson, two other members
of the organizing committee. As a result of these
complaints, Respondent in mid-April 1966 ex-
tended the rule to the quality audit girls. Thereafter,
Reva Robertson testified, every time she went to
the restroom she was followed by Assistant
Foreman Porter, or a group leader, who remained
there as long as Robertson, and then followed her
out. Anna Branam testified that, on April 14, she
saw Foreman Payne and Assistant Foreman Porter
"sitting on the line directly in front of the restroom.
They had a pad of paper and a pencil and each time
a girl would go in and out they would write down
something on this paper." She also testified that
whenever she went to the restroom she was fol-
lowed by Porter. On April 18, Branam complained
to General Foreman Parish that she was "being fol-
lowed and watched at all times." When asked by
Parish if she had any idea why this was being done,
Branam answered it was because she attended
union meetings. Parish replied that what she did
"after 12:30 is strictly [her] own business."
The Trial Examiner did not find the original rule
against two girls going to the restroom together, or
the extension of the rule to the quality audit girls,
unlawful. As set forth above, the original rule was
promulgated before the Union's organizing cam-
paign and the extension of the rule to quality audit
girls resulted from the complaint of members of the
union organizing committee. The Trial Examiner
found only that Respondent had engaged in surveil-
lance of its employees, relying on the testimony of
Robertson and Branam that they had been observed
and followed into and out of the restroom by super-
visors, and that two foremen had sat outside the
restroom and had written something on a pad each
time a girl went in or out of the restroom. There is
no evidence that the watching of Robertson and
Branam had anything to do with their union activi-
ties. Both had been singled out by other members of
the Union's organizing committee as violating the
rule against employees in the same group going to
the restroom together. When Branam complained
to General Foreman Parish about being watched
and attributed this to the fact that she had attended
union meetings, Parish replied in substance that her
attendance at such meetings was her own business.
Neither girl was reprimanded for engaging in or-
ganizing activities in the restroom. As for the
foremen who made notes outside the restroom,
there is no evidence of what they wrote. It is
sheerest speculation that the surveillance of em-
ployees entering and leaving the restroom was, as
found by the Trial Examiner, for the purpose of
ascertaining the union sympathies or adherence of
employees. An equally tenable inference is that the
surveillance was for the purpose of enforcing the
lawful rule against certain employees going to the
restroom together. Under the circumstances, we
find that the General Counsel has not proved by a
preponderance of evidence that Respondent en-
gaged in unlawful surveillance of its employees.
3. The Trial Examiner found that Respondent
constructively discharged Agnes Felty and Reva
Robertson and discharged Bobby L. Bennett, all in
violation of Section 8(a)(3). We disagree.
Agnes Felty
Mrs. Felty was hired in April 1962. She was
given the standard job classification test for new
employees and her performance indicated that she
was best suited for crimp and solder work. As a
result, she was given a crimp and solder pattern. In-
itially she did solder work with a hand iron. About
6 months later, Respondent transferred her into the
production machine shop where she operated a
number of different machines. She remained in this
shop until September 1965, when, together with a
number of other employees, she was transferred to
a production assembly line where she did crimp and
solder work. About a week later, she was trans-
ferred to another assembly line where she per-
formed solder work.
In November 1965, Felty brought Respondent
two statements from her personal physician. In
sum, the statements recommended that Felty be
given a 30-day medical leave of absence because of
her sensitivity to solder fumes. Respondent granted
the request.
On December 13, 1965, Felty returned to work
with clearance from her physician to do so. Respond-
ent assigned her to her former job. Again bothered
by the solder fumes, she saw her physician anq
several days later brought a statement from him,
which said that she was still allergic to solder fumes)
and should not work in this type of atmosphere.
Respondent reassigned her: first, for a day or so
straightening little blades which had been bent in
the tuners; then, in the machine shop; and, finally,
to the initial position on a production assembly line
where she put contacts in solder rings. This last job
required no soldering although some solder work
was performed 5 or 6 feet farther down the line.
On April 18, 1966, the assembly line on which
Felty was working was dissolved. Of the 12 girls
adversely affected by the dissolution, 6 decided to
quit and 6 were reassigned. Felty was transferred to
another assembly line where she did crimp but no
solder work. The next morning Felty reported
SARKES TARZIAN, INC. 589
directly to the plant nurse and complained about
solder fumes which were bothering her. The nurse
then directed her to Production Manager Polley to
whom she repeated her complaint about the solder
fumes. Polley told her, as he had the day before
when she had made a similar complaint, that she
had been hired as a crimp and solder worker, that
the only openings outside of crimp and solder work
were in the machine shop, and these jobs were
being saved for older girls. He then asked Felty to
at least try her new job, for otherwise he would
have to let her go.
Felty went back to the assembly line. Her station
was between two girls who were using solder irons,
although she did only crimping. Fifteen to twenty
minutes later her foreman, acting on Polley's in-
structions, brought her a small adjustable table fan
which solderers normally used to blow away fumes,
and placed it directly in front of her on a conveyor
belt. A short time later she told her assistant
foreman that she did not feel very well and that she
was going to go home at the 9 o'clock break. The
assistant foreman said she would tell the foreman
that Felty was going home at the break. About 8:20
a.m. the foreman returned with a relief girl and said
that if Felty felt that bad she could go home im-
mediately. Felty left the line, checked out through
the dispensary, and went home. On April 25, Felty
returned to the plant with a statement from her
physician which said that Felty had a respiratory
condition which was aggravated by solder fumes
and that she "must not come in contact with such
fumes." After reading the statement, Polley told her
that he was forced to put her on medical leave
because he could not allow the Company to be sued
as the result of her health problems. She never
returned to work.
The Trial Examiner found that Respondent con-
structively discharged Felty on April 19, 1966, by
assigning her to a job which Polley knew was injuri-
ous to her health and which he knew she would not
and could not accept. The Trial Examiner also
found that Respondent was motivated in its conduct
by Felty's union activities.
Felty was a member of the Union's organizing
committee during the 1962 organization campaign
and has' been a member of the Union ever since.
During the 1962 campaign, she passed out more
than 100 union cards. On March 18, 1966, she
passed out 20-30 union cards in the plant and per-
sonally solicited the signatures of five employees to
such cards. She also attended several union
meetings and passed out union literature and union
key charms while working on her line. The Trial
Examiner inferred that since these activities were
carried out openly, Respondent's supervisory per-
sonnel "must have been, and was, aware thereof,"
although Respondent denied such knowledge and
there is no direct evidence of knowledge. In any
event, the Trial Examiner found that on April 25,
6 days after Felty had been "constructively
discharged," Plant Manager Polley knew of her
union membership when she appeared at the plant
seeking reemployment wearing a large button which
identified her as a member of the Union's organiz-
ing committee.
We find it unnecessary to decide whether the
Trial Examiner's finding that Respondent was
aware of Felty's union activities was justified
because, in any event, we find that she was not con-
structively discharged.
Before April 19, there are numerous examples of
efforts made by Respondent to accommodate Felty
and retain her in its employ. When she asked for a
30-day leave of absence, she received it. When she
returned to work with a statement from her doctor
that she was allergic to solder fumes, she was reas-
signed to a job which did not require soldering.
Even when her assembly line was dissolved,
Respondent assigned her to crimp work and not to
soldering. And when Felty complained that solder
work performed by other employees was bothering
her, Respondent asked her to try to make a go of it
and furnished her with an adjustable fan with which
to blow away the solder fumes.3 This conduct on
the part of Respondent is inconsistent with an in-
ference that Respondent was trying to get rid of
Felty as an employee.
The Trial Examiner appears to have believed that
Respondent could have done more to find employ-
ment for Felty which would not bring her into con-
tact with solder fumes. For example, he refers to
the fact that Felty had worked for almost 3 years as
a machine operator where she was not bothered by
solder fumes and could have performed such work
again . However Respondent's uncontradicted
evidence is that Felty had always had a solder and
crimp pattern; that there is a separate pattern for
machine operators which is reserved for people
with high seniority who have difficulty performing
other jobs in the plant; that employees with less
than 6 years' seniority are never considered for a
machine operator's pattern (Mrs. Felty had only 4
years' seniority); that jobs calling for employees
having a machine operator pattern are never filled
with employees having a crimp and' solder pattern
unless there are no employees having the machine
operator pattern available; that Felty together with
other employees having crimp and solder patterns
worked in the machine shop before September 1965
because of a shortage of personnel with the machine
operator pattern; that in September 1965 all girls in
the machine shop having crimp and solder patterns,
including Felty, were transferred elsewhere
' The Trial Examiner found that Supervisor Young so placed the fan
that it blew smoke and fumes into her face But the evidence is that this
was an adjustable fan regularly furnished solderers to draw smoke away
from their faces. Crimp operators do not normally have fans. Felty could
have positioned it any way or shut it off entirely in order to keep fumes
from blowing mto her face.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of a seniority layoff; and that on April 19,
when Felty was transferred to a new line to perform
crimp work, there was no vacancy in the machine
operator pattern except for a temporary opening on
line 4 resulting from the fact that the regular opera-
tor in that position had suffered a back injury and
had to be taken off the line for 2 weeks. Although
Felty presumably could have performed this tempo-
rary work, the job, in accordance with Respon-
dent's policy, was assigned for 2 weeks to a girl with
less seniority than Felty who had been doing the
same work on the recently dissolved line.
The Trial Examiner further found it "incredible"
that with a large payroll, and with its admitted need
for employees for whom it was contemporaneously
advertising, Respondent could not transfer Felty
either to a machine operator's job or to any of the
other jobs which she had held which were not injuri-
ous to her health. However, the evidence is that
there were no regular machine operator jobs availa-
ble during this period, and that there were no other
jobs for which Felty was suitable which would not
bring her into contact with soldering fumes. We
note, moreover, that Respondent had assigned her
to a crimp job, which did not involve soldering, im-
mediately prior to her alleged constructive
discharge. For the foregoing reasons, we are not
satisfied that Respondent constructively discharged
Felty on April 19, 1966, or that it unlawfully
refused to reemploy her on and after April 25.
Reva Robertson
Reva Robertson had been employed by Respon-
dent on three different occasions, the last time
beginning on January 31, 1966, as an inspector as-
signed to quality audit on the night shift. Of the four
inspectors on the night shift, three, including
Robertson, were assigned to the coilwinding depart-
ment, and the fourth to the production machine
shop.
Robertson signed a union authorization card on
April 7, 1966, attended a union meeting about a
week later, and became a member of the union or-
ganizing committee on May 4. She wore a union
button conspicuously while at work, and passed out
union designation cards as well as union literature
during nonworking time.
On February 12, Robertson was transferred to
the production machine shop or "stick room," a
small enclosed area. When she brought a doctor's
certification saying she could not stand the dust and
material in the "stick room" she was returned to her
former job as inspector in the coilwinding depart-
ment . In May 1966, Respondent determined to
reduce the number of quality audit inspectors by
one girl . There is no contention that this decision
was discriminatorily motivated. On May 19,
Respondent told Twila Robbins, the inspector then
working in the production machine shop, that, as
she had the least seniority of the inspectors, she
would be laid off, unless she was willing to accept
a job as a coilwinder. This she did. Foreman Parish
then called in the other inspectors and told them
that Robertson, as the inspector with next lowest
seniority, was being assigned to the production
machine shop in place of Robbins. When Robertson
complained that she could not work in that shop
because of the dust and fumes and referred to the
doctor's certificate of the previous February, Parish
offered her a coilwinder job, the same job offered to
and accepted by Robbins. Robertson declined to
accept the alternative job because, about 10 years
earlier, she had been bothered by solder fumes. In-
spector Anna Branam offered to take a "layoff" so
that Robertson could retain her job as inspector; in-
spector Rita Clemmons offered to take the "stick
room" job in place of Robertson. Respondent
refused to accept either offer. Robertson thereupon
quit.
The Trial Examiner found that, as in the case of
Felty, Robertson was constructively discharged on
May 19 because of her union activities. He relied
in part on a finding that Robertson was afflicted
with "asthma bronchitis," and that Respondent was
allegedly aware that she had for that reason been
removed from the jobs which were tendered to her
on May 19; and, further, that Respondent offered
no satisfactory evidence for not accepting the offers
of two of Robertson's fellow inspectors which
would have made a transfer of Robertson from the
coilwinding department unnecessary.
Although Respondent initially offered Robertson
a job in the production machine shop, it did not in-
sist that she accept this offer when she reminded
Respondent of the February certificate from her
doctor. As to the alternative job, Robertson
testified that 10 or 12 years previously she had been
bothered by solder fumes and had brought a doc-
tor's certificate that she was allergic to such fumes.
However, not only was this baneful experience with
solder fumes stale, but, a week previous to May 19,
Robertson had offered to trade jobs for a while with
coilwinders, the same job which Robertson rejected
on May 19, after the coilwinders complained that
the jobs in audit control were easier than their own.
This casts doubt on the legitimacy of Robertson's
reasons for the rejection of the offer of a coil-
winder's job. Finally, Respondent's refusal to ac-
cept a substitute transferee in place of Robertson
must be placed against the uncontradicted
testimony of Respondent that it does not permit em-
ployees to decide for themselves who shall take
layoffs or to choose their own positions. There is no
evidence that Respondent varied this practice for
other employees in other circumstances.
Accordingly, as in the case of Felty, we are not
satisfied that a preponderance of the testimony sup-
ports the Trial Examiner's finding that Robertson
was constructively discharged.
SARKES TARZIAN, INC. 591
Bobby L. Bennett
Bobby Bennett began her employment with
Respondent in January 1966. For the first few
weeks of her employment she performed miscel-
laneous jobs. In mid-February she was assigned to
a rivet base job on line 9. When this line was dis-
solved on May 24, Bennett together with I 1 other
girls was transferred to the stickwinding department
for training. The girls were told that only those who
were able to make a daily rate of 29 trays would be
retained. At the end of 2 weeks Bennett had failed
to make her required rate. As with the other girls
who had similarly failed, Respondent extended her
trial period an additional week. When Bennett still
failed to make the rate (her maximum production
was 16 trays), she was terminated together with
other girls who had also failed to make the rate.
There is no contention that Bennett's transfer to
the stickwinding department or the production rate
set for the stickwinding job were discriminatory.
The Trial Examiner found, however, that Bennett's
discharge on June 15 was motivated by her known
union activities and to discourage employees from
engaging in any ' further attempt to designate the
Union as their bargaining representative. (The
Union had lost the election held on May 12 by 96
votes; it had lost a previous election in 1963 by 699
votes.) In making this finding, the Trial Examiner
stated that, assuming that Respondent properly
removed Bennett from the stickwinding job for
failure to make her quota, it failed to offer testimony
as to why it failed to assign her to several other jobs
which she had previously performed satisfactorily.
He also relied on alleged more favorable treatment
meted out to other employees who were transferred
to the stickwinding department at the same time as
Bennett. As to the availability of other jobs for
Bennett which she had previously performed, there
is no evidence that any such were open. In the case
of employee Betty McLaughlin, the Trial Examiner
found that' when she threatened to quit her
stickwinding job unless she was transferred, back to
her old job on the old production line, Respondent
granted her request. It is difficult to see how this in-
cident proves discrimination against Bennett; the
two situations are not comparable. So far as ap-
pears, McLaughlin was performing the stickwind-
ing job satisfactorily, she was not in fact transferred
back to her, old job on the old line but to another de-
partment, and Bennett had not requested transfer to
another department. Finally, the Trial Examiner
refers to the reemployment on July 20 of Sandra
Laven who like Bennett was discharged on June 15
for failure to make her rate as a stickwinder. How-
ever, the evidence is that, unlike Bennett, Laven re-
peatedly applied to the personnel department for
reemployment after her discharge. Finally, she was
hired at a different job, at a different plant, at
another location, when a position became available.
There is therefore no such discrepancy in the treat-
ment of Bennett, McLaughlin, and Laven, as to
support an inference of discrimination against
Bennett. Accordingly, we find that the General
Counsel has failed to prove by a preponderance of
evidence that Respondent discriminatorily
discharged Bennett on June 15.
4. The Union also filed six objections to conduct
affecting the second election. In agreement with the
Trial Examiner, we find that three of the objections
are without merit.
Two of the remaining three objections allege that
Respondent engaged in unlawful surveillance. In re-
gard to these two objections, the Trial Examiner
stated that his findings in the complaint case war-
rant sustaining the objections. The first of the two
objections involves the alleged 8(a)(1) surveillance
alluded to previously. Our reason for dismissing the
allegation in the complaint likewise applies in over-
ruling the objection.
The second objection was not considered by the
Trial Examiner. It alleges that supervisor Russell
Sloan kept employee union adherents and em-
ployees receiving union literature under open sur-
veillance for the purpose of coercing said em-
ployees. The evidence establishes that Russell
Sloan is the production manager at Respondent's
plant that produces semiconductive devices. Some-
time in April 1966, union supporters began passing
out handbills in the parking lot outside the plant.
Soon thereafter, a few employees complained to
Sloan about the passing out of the handbills. One
employee said she was going to take a sock at some-
body. To prevent some sort of confrontation, Sloan
decided to stay in the parking lot at the end of the 4
p.m. shift. On a few occasions he went up to the
men who were passing out the handbills and talked
to them. The conversations were friendly. Sloan
never questioned their right to be there. He never
asked them to leave. In fact, although there was a 5-
year old company rule prohibiting nonemployees on
the parking lot, Sloan allowed men who he knew
worked for RCA to pass out handbills.
On the basis of this evidence, we find no merit in
the Union's objection. Accordingly, we shall over-
rule it.
The final objection, Objection 4, alleges that
Respondent discriminated against Agnes Felty. As
the Regional Director points out in his report on ob-
jections, this objection must fail if the discharge is
found to be' lawful. Having found the discharge law-
ful, we find no merit in this objection and hereby
overrule it.
As the Union failed to receive a majority of the
valid ballots cast, we shall certify the results of the
election.
ORDER
Pursuant to'Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots has not been cast for International Brother-
hood of Electrical Workers, AFL-CIO, and that
the said Union is not the exclusive bargaining
representative of the employees employed by
Sarkes Tarzian , Inc., Bloomington , Indiana, in the
unit herein involved, within the meaning of Section
9(a) of the National Labor Relations Act, as
amended.
That consolidated proceeding, with all parties
represented, was heard by Trial Examiner David London
at Bloomington, Indiana, on September 26-28, 1966, and
was concluded October 28, 1966, when the posthearing
deposition of Jo Belle Robinson was made a part of the
record herein. Briefs from all parties were received on or
about November 18, 1966, and have been fully con-
sidered by me. Upon the entire record of this con-
solidated proceeding,' and other specified proceedings
before the Board involving Respondent of which I have
been asked by the General Counsel to take judical or offi-
cial notice, and upon my observation of the witnesses as
they testified herein, I make the following:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID LONDON , Trial Examiner : Upon a charge filed
in Case 25-CA-2490 on April 21 , 1966, amended on
May 27 , 1966, and another charge filed in Case
25-CA-2534 on June 17, 1966, by International Brother-
hood of Electrical Workers, AFL-CIO, hereinafter
called the Union, the General Counsel of the Board is-
sued two complaints against Sarkes Tarzian , Inc., the
Respondent and Employer herein . The complaint in Case
25-CA-2490 , issued on June 30, 1966 , and subsequently
amended, alleges that Respondent interfered with,
restrained , and coerced its employees in the exercise of
rights guaranteed by the Act, and constructively
discharged its employees Agnes O. Felty and Reva
Robertson by assigning them work which was injurious
to their health and well -being, and thereafter failed and
refused to reinstate them to their former or substantially
equivalent positions , all in violation of Section 8(a)(1),
(3), and (4) of the National Labor Relations Act, as
amended ("the Act"). The complaint in Case
25-CA-2534, issued on July 27, 1966, alleges that on
June 15 , 1966, Respondent discharged , and thereafter
refused to reinstate , Bobby L. Bennett because she also
engaged in activities protected by the Act, thereby violat-
ing Section 8(a)(1) and (3) thereof. On July 27, 1966, the
Board's Regional Director ordered that said cases be con-
solidated . Respondent , by its answers to said complaints,
denied the commission of any unfair labor practices.
During all times mentioned above , a representation
proceeding , initiated on October 5, 1962, and known as
Case 25-RC-2308 , was also pending before the Board in
which the Union was seeking certification of Respon-
dent 's production and maintenance employees . The first
election in that proceeding having been set aside, at the
second election conducted on May 12 , 1966, a majority
of the employees cast their votes against representation
by the Union . On July 7, 1966 , the Union filed timely
"Objections to Conduct Affecting the Results of [that]
Election ." Because four of the objections were based on
conduct alleged to be violative of the Act in Case
25-CA-2490 herein , and two other objections involved
disputed facts, the Board's Regional Director , on August
31, 1966 , ordered that a hearing be held to resolve the
factual issues involved in those six objections. On the
same day, he further ordered that Case 25-RC-2308 be
consolidated with Cases 25-CA-2490 and 25-CA-2534.
' Respondent's undated motion, filed on November 18, 1966, to make
four specified corrections in the official transcript of testimony herein is
granted with respect to items 1, 3, and 4 as specified therein, and denied as
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT-EMPLOYER
Respondent is now , and has been at all times material
herein , an Indiana corporation engaged in the business of
manufacturing electronic equipment at Bloomington, In-
diana. During all times relevant herein , Respondent
manufactured , sold, and shipped from its Bloomington,
Indiana, plants finished products valued in excess of
$50,000 to points outside the State of Indiana . Respon-
dent admits and I find , that it is now, and has been at all
times material herein , an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The testimony is undisputed that, since April 1962, the
Union has been continuously engaged in a campaign to
organize and represent Respondent's production and
maintenance employees. Pursuant to the petition filed by
the Union in Case 25-RC-2308 on October 5, 1962, the
first election in that proceeding was conducted on Janu-
ary 25, 1963, among Respondent's production and main-
tenance employees to determine whether they desired
representation by the Union for purposes of collective
bargaining.
At that election, 510 employees voted for, and 1179
voted against such representation. Timely objections to
conduct affecting the results of that election having been
filed, the Board's Regional Director, on March 20, 1963,
issued his report on objections wherein he recommended
that a hearing be held to resolve the factual issues in-
volved in certain of those objections and by additional al-
leged-interference. Since the matters to be decided in the
representation proceeding were identical with the matters
alleged in a complaint in another unfair labor proceeding
against Respondent, known as Case 25-CA-1666, he
further recommended that those cases be consolidated.
On April 26, 1963, the Board adopted the above-men-
to item 2 thereof. It is further ordered that 11. 24 and 25 on p. 160 of said
transcript be corrected to read as follows: "A. Yes, sir. He told me that
29 trays a day was not impossible , he had other girls making it."
SARKES TARZIAN, INC.
tioned recommendations of its Regional Director and
directed that the recommended hearing be held.
Following that hearing, and a subsequently reopened
hearing, the Board, on March 29, 1966, rendered its
"Decision, Order, and Direction of Second Election" in
that consolidated proceeding (157 NLRB 1193). By that
decision, of which I have taken official notice, the Board
found that Respondent had unlawfully interrogated its
employees concerning their union activities, threatened
them with discharge for engaging in those activities, en-
gaged in, solicited, and encouraged employees to engage
in surveillance of the union activities of other employees,
and had unlawfully discharged or refused to reemploy
two employees for engaging in union activities. Because
of the totality of Respondent's conduct as disclosed by
the record in that proceeding, the Board further ordered
that the election of January 25, 1963, which the Union
lost by a margin of 669 votes, be set aside, and that a
second election be conducted.2
At the second election, held on May 12, 1966, 561 em-
ployees voted for the Union and 657 voted against
representation by that organization. The Union filed
timely objections to conduct affecting the results of that
election ultimately resulting in the order directing that the
instant consolidated hearing be conducted, all as
described in Statement of the Case, supra.
B. The Violations of Section 8(a)(1) of the Act
In February 1966, while the Union was engaged in its
continuing campaign to organize Respondent's em-
ployees, Respondent hired Thomas Beech, a student at
the law school of the University of Indiana in Blooming-
ton, Indiana, where Respondent's plants are located.
Beech was employed as a machine maintenance man on
the night shift, 4 p.m. to 12:30 a.m., and voluntarily quit
that employment on April 22, 1966.3 During that period,
he attended four or five union meetings and, on the even-
ing of April 14, was the first employee to wear a union
button on that shift.
About 7:30 p.m., the same evening, Assistant Foreman
Grace Porter told Group Leader Sharon George to watch
Beech and "if he sat down to report him." About an hour
later, Foreman Payne told Beech that effective the fol-
lowing Monday he was being transferred to the day shift.
When Beech complained to Payne that Respondent was
informed by Beech when he was hired that he could only
work nights, Payne replied that he had nothing to do with
the transfer, but that it had been ordered by Jennings Pol-
ley, Respondent's production manager . Polley was the
same man who, together with other officials and super-
visors of Respondent, had been found guilty in the prior
proceeding (157 NLRB 1193) of spying upon, and induc-
ing employees to spy upon, other employees with respect
to their union sympathies. Before reporting for work on
the following afternoon, Beech went to Polley's office and
repeated what he had told Payne the prior evening. Polley
rescinded the transfer order.
Prior to April 15, it was the practice of the main-
tenance employees to "relax" during their work period
until they were called upon by machine operators to
repair the machines. Shortly after the night shift reported
2 The court of appeals ordered full enforcement of this Board Decision
and Order. Sarkes Tarzian, Inc. v. N .L.R.B., 374 F . 2d 734 (C.A. 7).
' Unless otherwise indicated , all references to dates herein are to the
year 1966.
4 George, a witness for Respondent , testified that Porter instructed her
593
on April 15, Payne called all the maintenance employees
to a meeting and instructed them that they "were no
longer to sit down at all ... to keep busy at all times
[even] if the machines were working properly." From
that time on, until Beech quit his employment a week
later, Porter, Payne, and Group Leader Sharon George
constantly "kept an eye on [him] wherever [he] went,
even when [he] went, even when [he] left [his set of
machines] and went down to the far end of the plant
where no one was present, one of them would drift
down."4 After Beech left his employment, maintenance
men sat and talked to the girls on the line "just about
every night."
On April 14, 1966, in a departure from the existing
practice, Respondent also promulgated a rule that "no
two friends or any close relations [sic] that worked
together were to go to the restroom together." Thereafter,
Reva Robertson, one of the alleged discriminatees herein,
observed that every time she went to the. restroom she
was followed by Assistant Foreman Porter, or a group
leader, who remained there as long as Robertson, and
then followed her out.
Anna Branam, employed by Respondent at the time of
the hearing herein, became a member of the Union's or-
ganization committee in the latter part of April 1966 and
thereafter, while at work, wore a large button identifying
her as a member of that committee. On April 14, 1966,
Branam observed Foreman Payne and Porter "sitting on
the line directly in front of the restroom. They had a pad
of paper and a pencil and each time a girl would go in and
out they would write down something on this paper."5
Branam further testified, and I credit her testimony not-
withstanding Porter's denial thereof, that whenever she
went to the restroom she was followed by Porter.
On April 18, Branam went to the office of General
Foreman Parish and told him that she could not continue
to work "under the pressure" to which she was being sub-
jected. Parish asked her to explain, and she told him that
she was "being followed and watched at all times." When
Parish asked whether she had any idea why this was
being done, she answered it was because she attended
union meetings. Parish did not deny the accusation, his
only comment being that what she did "after 12:30 is
strictly [her] own business."
On the entire record I find that on or about April 14
Respondent imposed, and kept in effect only until Beech
quit on April 22, its rule against "relaxation" by its main-
tenance employees, its purpose being to devise a pretext
to discipline said employees for their union adherence. By
that conduct, Respondent violated Section 8(a)(1) of the
Act. I also find that on and after April 14 Respondent
violated the same section of the Act by engaging in sur-
veillance of its employees as they went into and remained
in the restroom, in order to ascertain their union ad-
herence or sympathies.
C. The Discharge ofAgnes Felty
Agnes O. Felty, alleged to have been constructively
discharged by Respondent on April 19 , 1966, because of
her union activities , began her employment with Respon-
dent in April 1962. After 6-7 months in crimp and solder-
"to watch the maintenance employees and make sure that they were
working all the time."
5 Porter did not deny this testimony, and Payne was not called as a wit-
ness.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing work's she was transferred to the machine shop where
she operated shaft machines , base machines , drill presses,
"and just about any kind of machine they had." She
remained in the machine shop until 1965 when she "went
back to crimp and solder."
In November 1965, the solder fumes and smoke
generated by solder work irritated her nose and throat,
choking her so that she could not speak above a whisper.
She consulted a physician, Dr. K. Hibner, who, on.
November 23, 1965, gave her a certificate reading as fol-
lows: "[Agnes Felty] is under my care for nasal and
upper respiratory inflammation . This is most likely due to
or aggravated by soldering fumes. She should therefore
be transferred away from such fumes ." On November
29, 1965, she received another statement from Dr.
Hibner certifying that she was in his "care for an upper
respiratory allergy" and she should have medical leave
for approximately 30 days. Both of these documents were
delivered to Della Haynes, Respondent ' s personnel
assistant and plant nurse.
Felty remained away from work until December 13,
1965, at which time she gave Haynes the following cer-
tificate from Dr. Hibner: "[Agnes Felty] is under my
care for respiratory allergy. She is definitely sensitive to
soldering fumes and should not work in this type of
atmosphere ." Upon returning to work on December 13,
Felty was given various assignments on machine shop
jobs and on an assembly line, none of which required her
to do any soldering or brought her in close contact with
solder fumes.
On April 19 , line 8 , which Felty and about 40 girls
were working , "was broken up," and she was again as-
signed to line 4 and a job close to soldering fumes. Mar-
garet Hopkins, also on line 8 but who had been employed
by Respondent only 4-5 months, was put on a "rivet
base" job. Other girls were transferred to the tube room,
and some were retained as "extras ," filling in for absent
workers . Felty complained of the assignment to Polley,
Respondent 's production manager and apparently the top
man in the plant, who told her she was a "crimp and
solder" worker. Though he admitted that he was aware of
her condition and also that he had other jobs which she
could safely perform, he was unable to assign her to any
of those jobs as he was "saving them" for older em-
ployees. Instead , he directed her to return to line 4 and re-
port to Vance Young, her foreman. Felty returned to that
line where Young , who had charge of about 200 em-
ployees, placed her between two girls using soldering
irons.
After Felty punched in at 7 a.m., the following morn-
ing, April 20, she went immediately to Haynes and told
her that she would "have to be moved out of solder
[because she] just couldn 't take the solder fumes and
smolie ." Haynes told her she could not do anything for
her and directed her to Ann East, Polley's administrative
assistant in charge of work assignments . East , however,
also told her she could not do anything for her and took
her to Polley's office. When Felty asked Polley to
transfer her out of solder, he told her she was a "crimp
and solder" worker, and that was all he had for her, if she
could not do that work, he would "probably have to let
[her] go." Felty remonstrated that she could not work in
e Respondent , in its brief, described this work as follows: "Crimp work
is work performed by an operator through the application of a tool upon a
part and wrapping , crimping, or cutting of the part. The soldering work
... consists of the use of soldering iron in making electrical connections
solder fumes and that he had her doctor's statement certi-
fying thereto. Polley thereupon instructed her to go back
to her line, told her he would see what could be done for
her, and repeated that while he had other jobs he could
put her on, he did not intend to do it, he had to save them
for older girls.
Felty reported back to Young who again put her "right
back between two soldering irons." About 15 minutes
later, pursuant to instructions from Polley, Young came
to Felty's work station and placed a small 6-8 inch table
fan on the back side of the conveyor line, facing Felty,
where its current blew the smoke and fumes into her face.
At about 8 a.m., after she had complained to LaVerne
Banks, assistant foreman, that she "just couldn 't stand
that smoke," Young came to her with a relief girl and told
her that, if she felt that bad, she could go home im-
mediately. Felty thereupon left the plant and on April 21
caused the Union to file the charge in Case 25-CA-2490,
alleging that Respondent on April 19 , in violation of Sec-
tion 8(a)(1) and (3) of the Act, had transferred her to a job
she was not capable of holding. Respondent received a
copy of that charge on April 22, 1966.
Felty returned to the plant on Monday, April 25, re-
ported to Haynes and showed her Dr. Hibner's certificate
certifying that she was under his care "for a respiratory
condition which is aggravated by solder fumes. Therefore
she must not come in contact with such fumes." Haynes
told her she could do nothing for her and that she would
have to see Ann East. The latter, however, also told her
she could do nothing for her and instructed her to report
to Polley's office, where Polley read the doctor's state-
ment and immediately left his office. He returned about
10 minutes later and asked her to accompany him to
Haynes' office.' There, he asked Felty whether she had
her tools with her and she replied affirmatively, adding
that she would check them in. Polley, however, told her
that he would himself check her tools in, and would mail
her insurance papers and leave of absence to her. Upon
informing him that she would come to the plant on Friday
to pick up her check, he rejected that suggestion and told
her that the check would also be mailed to her. As they
left the personnel office, Felty told him she wanted to
return into the plant to pay the girl with whom she shares
rides to work. Polley, however, denied her request, re-
marking that he had to get her out of the plant, and
escorted her to the front door of the plant lobby.
In the following June there was an exchange of cor-
respondence between Felty and counsel who represented
Respondent at the instant hearing. In this correspon-
dence, Felty repeatedly stressed her continuing desire
from April 19 forward to return to any job which did not
"directly expose" her to solder fumes, jobs in which she
had experience, and which were filled and being filled by
employees with less seniority. Respondent's counsel,
however, on June 15 informed her that she would be
reemployed only upon presentation of a certificate from
her doctor "that contact with solder fumes will no longer
be injurious to [her] health and that [she] may therefore
be assigned to a job where [she] may be in contact with
such fumes." This was supplemented by Respondent
counsel's letter of June 28 stating that in order to return
or the use of solder pot which applies the bulk solder."
7 Polley testified that during this 10-minute interval he "checked" with
Haynes and Woods, company counsel , about the "possible ramifica-
tions."
SARKES TARZIAN, INC. 595
to work she would "be required to furnish an
unconditional clearance to work from [her] doctor."
On the entire record I find that Respondent construc-
tively discharged Felty on April 19, 1966, by assigning
her to a job which Polley knew was injurious to her health
and which he knew she would not, and could not, accept."
I further find that this assignment and termination was
imposed because of her union activities. In arriving at this
conclusion, I have been fully mindful that the April 19
termination may not be adjudged violative of the Act only
upon a showing of union activity by Felty which factor
Respondent apparently concedes has been established by
the record herein. In order to prevail, it is incumbent
upon the General Counsel to establish by a preponde-
rance of the evidence that Respondent had knowledge of
Felty's union activities and made the assignment of which
complaint is made in order to discourage such activities.
Though the record does not establish by direct evidence
that Respondent on April 19 had knowledge of Felty's
union activities, proof of such knowledge maybe
established by circumstantial as well as by direct
evidence. Here, a finding that Respondent had such
knowledge is fully warranted and required.
The testimony is undisputed that Felty became a
member of the Union's organization committee during
the 1962 campaign and has been a member thereof ever
since. During the 1962 campaign she passed out more
than a hundred union cards. On March 18, 1966, follow-
ing a meeting of the Union's organizing committee, she
passed out 20-30 union cards in the plant, and personally
solicited the signatures of five employees to such cards.
At each union or committee meeting she attended on
March 23 and 31 and April 6 and 14, 1966, she delivered
to union officials additional union designation cards
signed by other employees. During the same period,
while working on her line, she also passed out union
literature and union key charms. None of these activities
were carried on in a clandestine manner and warrant the
conclusion that supervisory personnel must have been,
and was, aware thereof) By reason of all the foregoing, I
reject Respondent's contention that it was unaware of
Felty's union activity and find that it had such knowledge
prior to the time Felty was assigned to work which Polley
knew she could not perform without serious injury to her
health.
In any event, on April 25, when Polley denied Felty's
request to return to work and instead escorted her out of
the plant thereby clearly indicating that her further
presence in the plant would no longer be tolerated, Polley
was openly apprised of her union activity. On that occa-
sion she wore a large round button, 2 inches in diameter,
identifying her as a member of the Union's organizing
committee.
Turning now to Respondent's refusal to assign Felty to
work she, could safely perform, Respondent, in its brief,
admits "that Mrs. Felty had worked in the machine shop
where apparently she was not bothered by solder fumes,
and that on line 8, the line upon which she was working
immediately prior to April 19, 1966, she worked on a sub-
assembly rivet base job upon which she made no com-
plaint of solder fume iritation." Respondent contends,
however, it could not assign her to a machine shop job
because she had always carried a "pattern," or classifica-
tion, as a "crimp and solder" worker, and not a "machine
operator pattern." The latter "pattern," Respondent con-
tends, is "held for high seniority people who have difficul-
ty in performing other jobs in the plant."
The testimony is undisputed, however, that Felty
transferred to a machine operator's job in the fall of 1962
after being employed only for 5-6 months and continued
as a machine operator for almost 3 years thereafter. It is
also significant that on April 19, 1966, when line 8 was
broken up, Margaret Hopkins, who had been in Respon-
dent's employment only 4-5 months, was transferred to
a machine operator's job, others were transferred to the
tube room where there was no direct contact with solder
fumes, while others were retained as "extras." Respon-
dent's failure to make a similar transfer for Felty is espe-
cially significant in light of the testimony of Everett Sears,
Respondent' s personnel manager, that it is "company
policy that if an employee has difficulty, or a problem
with a particular type of job that they have been working
on, that the Company will give them an opportunity to try
another job and thus stay with" Respondent, a policy ad-
mitted by Sears to be well known by its employees, and
announced personally by Sarkes Tarzian, its president.
I find it incredible that Respondent, with a payroll of
approximately 1,500-1,600 employees in three different
plants and continuously advertising by radio and
newspaper, "on and off" since January 1966 to the time
of the hearing herein, was in need of help10 and could not
transfer Felty, an undisputedly satisfactory and com-
petent employee, to either a machine operator's job or to
any of the other jobs she formerly held, none of which
were injurious to her health. On the entire record, I find
that by transferring Felty to line 4 on April 19, 1966,
when Polley was well aware that she could not work
there, Respondent constructively discharged her. I
further find that this discharge and Respondent's refusal
to reemploy her on and after April 25, a matter which was
fully litigated, were both imposed in order to discourage
Respondent's employees from supporting the Union at
the impending election which the Board had ordered only
a few weeks before. By that conduct Respondent violated
Section 8(a)(3) and (1) of the Act.'1
D. The Discharge of Reva Robertson
Robertson has been employed by Respondent onAiiree
different occasions, the last time on January 31, 1966.
She signed a union authorization card on the following
April 7, attended a union meeting on April 13, and
8 "Plainly, § 8(a)(3), when it speaks of `discrimination in regard to .
condition of employment,' includes an unreasonable and improper condi-
tion for retaining employment ." N.L.R,B . v. Ra-Rich Mfg . Corp., 276
F.2d 451,454 (C A. 2).
' Though the burden of establishing such knowledge rests on the
General Counsel, it is worthy of note that Polley, while testifying at length
herein in behalf of Respondent , was never asked by its counsel whether he
had knowledge of Felty's umon activities . In the prior proceeding (157
NLRB 1193), Polley admitted with respect to employee Wilber, found by
the Board to have been discharged for his union activities , that he had
heard rumors that Wilber was "pretty" active in the Umon. The Board
also found that Polley had engaged in extensive espionage activities seek-
ing to ascertain the union views and interests of Respondent's employees
10 Sears admitted that "people are in scarce supply in this community "
11 Having so found, I deem it unnecessary to further consider or pass
upon the additional allegation of the amended complaint that Respondent
violated Section 8(a)(4) of the Act by refusing to reinstatement Felty on
June 20, 1966, because unfair labor practice charges had been filed in her
behalf.
350-212 0-70-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
became a member of its organizing committee on May 4.
Robertson wore a union button similar to that worn by
Felty and also had a large button, 3 inches in diameter,
reading "Vote I.B.E.W." attached to her purse, which
.she kept exposed at her work station where William
Payne, her foreman, drank his coffee. "Everytime" dur-
ing this period, when she had occasion to go to the
restroom, Robertson was followed by Grace Porter,
assistant foreman, or one of the group leaders, who
remained in the restroom as long as Robertson was there
and then followed her out. Commencing about May 5,
she passed out union designation cards and about May 10
began circulating union literature during her supper hour
at 8 p.m. During this period, when Robertson complained
to Payne that she and employee Anna Branam were being
watched by Porter, Payne commented on the union but-
ton Robertson and Branam were wearing and told them
that he knew how they "stood before [they] started wear-
ing union buttons" and that Robertson had been watched
by Porter.12
According to Respondent's records, when Robertson
was rehired on January 31, 1966, her pattern or classifi-
cation was that of an inspector and she continued in that
work until Saturday, February 12, when she was as-
signed to the "stick room," a small enclosed room. After
working in that room for about 2 hours, she had to be
"taken out" of that room because of the prevailing
fiberglass dust. On the following Monday, she brought
her doctor' s statement to Payne, certifying that the
"wheezing, coughing, etc.," of which she complained was
"due to the large amount of dust and material in the air"
and recommending that she be removed from that area.
She thereupon was taken off that job and resumed her
work as an inspector.
On May 19, Robertson and other employees were
called to the office of Wilbur Parish, general foreman in
charge of quality control. There, she was told by Payne
that their staff was being reduced and, since Robertson
was lacking in seniority, she would either have to take the
job in the stick room from which she had been removed
on the preceding February 12, or a coil winding job which
would bring her in contact with soldering fumes. With
respect to the stick room job, Robertson told Payne that
she had the doctor's statement of February 12 and he
acknowledged that he was aware thereof. With respect to
the alternative, she complained that during earlier em-
ployment by Respondent she had to be taken off that job
because she "couldn't take the solder fumes." When Anna
Branam , an inspector who was present, volunteered to
take a layoff so that Robertson could keep her job as an
inspector, Payne replied that there would be "no layoffs."
Rita Clemmons, who had greater seniority than Robert-
son, also vounteered to take the stick room job tendered
to Robertson but the latter was told that the matter would
have to be taken up with Polley, who apparently was not
present. Robertson called Parish the following morning
and was told that he had not yet talked to Polley. During
the afternoon, however, Parish called and told her that
there was no change in the situation.
On the entire record, and for substantially the same
reasons I concluded that Felty had been constructively
discharged, I also find that Robertson was similarly
discharged on May 19 because of her union activities and
to discourage Respondent's other employees from engag-
ing in such activities.
Robertson was afflicted with "asthma bronchitis," and
Respondent was aware that she had for that reason been
removed from the jobs she was tendered on May 19. Nor
was there any satisfactory evidence offered by Respon-
dent why it did not accept Branam's offer to take a layoff
so that Robertson could retain her job as an inspector or,
in light of its policy on transfers, it did not accept Clem-
mons' offer to take the job which Robertson could not ac-
cept without injury to her health. I conclude that Respon-
dent constructively discharged Robertson on May 19 for
the reasons indicated above thereby violating Section
8(a)(1) and (3) of theAct.
E. The Discharge of Bobby L. Bennett
Bennett began her employment with Respondent on or
about January 13, 1966, and, for a period of 3-4 weeks
thereafter, was engaged in a number of "odd jobs" of
which no complaint was or is made. At the end of that
period, in approximately mid-February, she was trans-
ferred to a rivet base job on line 9 and remained there
until May 24. While so engaged, she had a "rate" or
quota of performance which she met and of which no
complaint is made.
On May 24, she was transferred to a stick winding job
where the daily rate was 29 trays, a quota which she
never achieved, her maximum performance being 16
trays. On or about June 8, she was called to Foreman
Trinkle's office, informed of her failure to make the rate,
and asked if she could achieve it if given another week.
Bennett attributed her failure to make her rate to a con-
stant shifting from one machine to another, machines that
were not working properly. During one of these days, be-
fore noon, she performed her work on 7 different
machines.
On June 15, Bennett's group leader told her to report
to Trinkle's office where she was instructed to proceed to
the office of Della Haynes. There, Haynes told her that
she was being discharged because she had not made her
rate. Bennett remonstrated that she had made her rate on
the rivet base job and that there was no complaint con-
cerning her work on that job, a fact of which Haynes
acknowledged she was aware. Apparently construing this
as a request by Bennett that she be transferred back to
that job or remain in Respondent's employment in
another capacity, Haynes told her she didn't "have
anything else except night shift on stick winding," 13 the
very operation which she had just been declared to be in-
capable of performing satisfactorily.14
Bennett designated the Union as her collective-bar-
gaining representative on March 29, 1966, on a card
given to her by Felty. She attended all union meetings ex-
cept the first, became a member of its organizing commit-
tee in April 1966, and wore its button since about 2-3
weeks before the May 12 election. During the campaign,
she passed out union cards and literature in the restroom
or before work in the morning.
About 2 weeks before the election, Bennett and about
15-20 girls were called to the "chapel" for an address by
Sarkes Tarzian. When Tarzian told the employees that
they "didn't need a third party" to tell them what to do,
12 Payne was not called as a witness.
11 Bennett 's entire testimony warrants the conclusion that she was em-
ployed on the day shift.
14 Haynes was not called upon to testify in the instant proceeding. In
the prior proceeding against Respondent (157 NLRB 1193) she was found
guilty of extensive surveillance and spying upon Respondent's employees.
SARKES TARZIAN, INC.
Bennett publicly announced she was "100 percent for the
Union and hoped that when the [election ] came those
girls would make the right decision." Three or four days
before the May 12 election, Mary Tarzian, the wife of
Sarkes Tarzian and vice president of Respondent, also
called a meeting of employees in the chapel . During "a
question and answer period" at that meeting , Mrs. Tarzi-
an asked Bennett whether she ever belonged to "the
Union and she replied that she was 100 percent for the
Union." During a discussion concerning working condi-
tions at the nearby RCA plant whose employees were ap-
parently represented by a union , Mrs. Tarzian named Sue
Crowe as an employee who "was fired from RCA within
3 days after she went there," and that she, Mrs. Tarzian,
had proof of the conditions that prevailed at RCA. In the
discussion , Mrs. Tarzian told Bennett that "maybe [she]
should go where they have [a union] and see what its
like," quickly adding, however, that she did not want
Bennett to quote her as saying that she had been "told.
.. to leave," as Respondent would "like to have [her]
stay anyway."15 On the following day, Bennett was called
to Mrs. Tarzian's office, and , pointing to a girl then
present, Mrs. Tarzian said : "Here is the girl that can tell
you." The girl , though not otherwise identified, was not
Sue Crowe . According to Bennett , "all this girl succeeded
in telling [her ] was that some woman ... at RCA had
been absent from work because of illness of her child . .
" At that point, Bennett's testimony was abruptly
broken into and diverted , and it seems reasonable to infer,
from Mrs. Tarzian's remarks of the day before, that the
girl had been summoned to Mrs. Tarzian 's office for the
purpose of relating to Bennett some disciplinary action
imposed upon her.
On the entire record , I find that Bennett was denied
further employment by Respondent on and after June 15,
1966 , because of her union activities and her firmly an-
nounced " 100 percent" support of that organization.
Respondent does not deny , as indeed it could not deny,
being aware of Bennett 's active interest in the Union for,
insofar as the record discloses , Bennett and Felty were
among the most active union propagandists employed by
Respondent . Assuming that Bennett 's failure to meet her
quota on the stick winding job was due to her inaptitude
thereby justifying her removal from that task, Respon-
dent offered no testimony to establish why, contrary to its
established policy and its continuing advertising cam-
paign seeking new employees , it failed to assign her to
any of the several other jobs Bennett had performed
satisfactorily before she was transferred to a job she ap-
parently could not perform.
Respondent made such transfers with respect to Betty
McLaughlin who was transferred to stick winding at the
same time as Bennett . When McLaughlin told Foreman
Trinkle that she would quit unless she was transferred
back to the job she formerly had, Trinkle sent her back to
her old job. Respondent also applied its policy and gave
considerate treatment to Sandra Laven who was first em-
ployed by Respondent on or about May 19, 1966 . Laven,
like Bennett , was discharged on June 15 for failure to
make her rate as a stick winder. Unlike Bennett, how-
15 Neither Sarkes Tarzian , nor Mrs. Tarzian , were called upon to testify
herein.
16 The vacation period began at about that time.
17 In another proceeding against Respondent not previously referred to,
but of which I have taken official notice , the Board found Respondent
guilty of violating Section 8 (a)(3) of the Act by requiring an employee to
597
ever, Laven was told by Haynes when she was
discharged on June 15,16 that she would "see if something
might come up later." Accordingly, and again unlike
Bennett, Laven was reemployed on July 20 doing test
work, and was so engaged at the time of the hearing
herein.
I am convinced and find that Respondent discharged
Bennett on June 15 without any intention of ever employ-
ing her in any capacity because of her union activities and
to discourage its employees from engaging in any further
attempt to designate the Union as their collective-bar-
gaining representative . Respondent was aware on June
15 that the Union had reduced the margin of 669 by
which it lost the first election in 1963, to 96, by which
number it lost the election on May 12, 1966. It ac-
cordingly had reason to believe that the union campaign
for recognition , which had been continuously waged since
April 1962, was mounting and would not abate . To defeat
that campaign , Respondent on June 15, as it did with
respect to Robertson on May 19, resorted to the most
powerful weapon it possessed , a major stratagem of those
bent on interfering with the exercise of employees' rights
to organize , the discharge of a bold and forceful advocate
in behalf of the Union. By that conduct, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.17
THE OBJECTIONS TO THE ELECTION
Of the Union 's six objections to the election which I
am required to consider , I find no probative evidence suf-
ficient to sustain Objections 1,3, and 7. Objections 2 and
6 deal with unlawful surveillance of Respondent's em-
ployees of which I have heretofore found Respondent
guilty and as being violative of the Act. In accordance
with those findings , I sustain the Union ' s Objections 2
and 6 . 18 Objection 4 is concerned , inter alia , with the ef-
fect that the discharge of Felty had on the outcome of the
election. It having previously been found that Felty was
discriminatorily discharged prior to the election and while
the Union's campaign was pending , I accordingly sustain
its Objection 4. On the basis of the foregoing findings and
rulings, I further find and conclude that Respondent inter-
fered with the election of May 12, 1966 , and deprived its
employees of their freedom of choice . I therefore recom-
mend that the election of May 12, 1966 , be set aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above , have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it will be recommended that it be
perform work which it knew he was incapable of performing. Sarkes Tar-
zian, Inc., 149 NLRB 147
is While Objection 2 complains of the surveillance of "non-union
adherents," I am convinced that this was an inadvertent description, and
that its intent was to complain of the effect on union adherents.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered to cease and desist therefrom and that it take cer-
tain affirmative action designed to effecutate the policies
and purposes of the Act.
It is recommended that Respondent offer employees
Agnes O. Felty, Reva Robertson, and Bobby L. Bennett
immediate and full reinstatement to their former or sub-
stantially equivalent positions, positions that will not be
injurious to their health and which it knows they can per-
form, without prejudice to seniority and other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them, by payment to them of a sum of money
equal to that which they would have earned as wages
from the date of the discrimination against them to the
date of offer of reinstatement, less interim earnings, in a
manner consistent with Board policy set out in F. W.
Woolworth Company, 90 NLRB 289, and Crossett
Lumber Company, 8 NLRB 440, together with interest
at the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
I further recommend that Respondent preserve and
make available to the Board or its agents, upon request,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records,
and reports, and all other records and reports necessary
to analyze the amount of backpay due and the right to
reinstatement under the terms of these recommendations.
In order to make effective the interdependent guarantees
of Section 7 of the Act, I recommend that the Respondent
cease and desist from , in any manner, infringing upon the
rights guaranteed in that section . N.L.R.B. v. Express
Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532 (C.A. 4).
Upon the basis of the above findings of fact and upon
the entire record in the proceeding , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce 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 discriminating in regard to the rehire or tenure
of employment of Agnes O. Felty, Reva Robertson, and
Bobby L. Bennett, thereby discouraging membership in
the above Union, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
4. By engaging in interference, restraint, and coercion
of its employees in the exercise of rights guaranteed in the
Act, Respondent has engaged, and is engaging, in unfair
labor practices as proscribed by Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]