Southern Devices Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1968

173 N.L.R.B. 1436 (N.L.R.B. 1968)

1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Devices Incorporated and International
Brotherhood of Electrical Workers , AFL-CIO.
Case 11-CA-3561
December 31, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 21, 1968, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, 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
Decision attached hereto. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision
together with a supporting brief, and the Charging
Party filed an answering Brief.
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 this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions, brief, answering brief and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
iner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the Order
recommended by the Trial Examiner, and orders that
Respondent, Southern Devices Incorporated, Morgan-
ton, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act, as
amended, was heard at Morganton, North Carolina, on July 22,
1968, pursuant to due notice. The complaint which was issued
on April 25, 1968, on charges filed on March 1, alleged that
Respondent engaged in unfair labor practices proscribed by
I Respondent , a North Carolina corporation engaged in the
manufacture of electrical fixtures , purchases annually directly from
Section 8(a)(1) and (3) of the Act by specified acts of
interference, restraint, and coercion and by discriminatorily
discharging Linda Ann Fox on February 8, 1968. Respondent
answered on April 30 denying said unfair labor practices.
Upon the entire record in the case and from my observation
of the witnesses, I make the following'
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS, THE LABOR
ORGANIZATION INVOLVED
I find on complaint allegations admitted by answer that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act' and that the Charging Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
The Union engaged in an extended campaign to organize
Respondent's 600 employees which culminated in an election
on December 5, 1967, lost by the Union. The complaint herein
concerned alleged instances of interrogation, threats of sur-
veillance, and solicitation to engage in surveillance which
occurred before the election, and the discharge on February 8,
1968, of Linda Fox.
Respondent offered no denial of testimony by the General
Counsel's witnesses concerning the alleged 8(a)(1) violations,
leaving as the sole contested issue herein the alleged dis-
criminatory discharge of Linda Fox.
B Interference, Restraint, and Coercion
Clarence J. Martin was employed as a security guard until
his termination in February 1968. Martin testified that in early
September 1967 he was directed by Personnel Manager Roy
Lookadoo to "make the rounds" during the evening meetings
at the nearby union hall and to write down the license
numbers and makes of the cars parked at the hall. Martin
complied with that direction "a good many times" up until the
election, reporting back to Lookadoo each time, and Looka-
doo sometimes checked the information against papers in his
filing cabinet. On one occasion also Lookadoo participated
with Martin in checking on the Company's parking lot the
license numbers of cards against the list which Martin had
compiled. Lookadoo also took care of Martin's duties on
occasions when Martin was making the rounds at the union
hall.
Martin testified further that Fred McGhee, a foreman in
ceramics, also sometimes checked behind him, using his car,
after Martin had made some of his own checks at the union
hall.
Brenda Morgan, an employee who worked under Foreman
Jim Hegler, testified that on September 14 Hegler informed
her that she had been seen at union meetings at the union hall,
that he knew every one who had been there, that she should
extrastate points materials valued in excess of $50 ,000 and sells and
ships annually to extrastate points finished products valued in excess of
$50,000.
173 NLRB No. 225
SOUTHERN DEVICES INC.
not try to be a hero or a martyr and that she had better watch
out 2
Louise Smith, who worked in assembly under Foreman
Baxter Jaynes, testified that on December 6, the day after the
election, Jaynes came to her work station and asked her why
some 242 people (the number who voted for the Union)
needed the Union Smith replied she could answer only for
herself, and thereupon they entered into a discussion of the
merits of unionism which lasted some 10 minutes. Smith
admitted that she was an active and open supporter of the
Union.
Concluding Findings
The foregoing undenred testimony establishes, and I find,
that Respondent interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in Section 7
of the Act by the following conduct
1. Lookadoo's solicitation of Martin to engage in sur-
veillance of employees in attendance at union meetings, the
participation of Lookadoo and McGhee with Martin in actual
surveillance, and Hegler's statements to Morgan, which were
plainly calculated to give the impression that Respondent was
engaging in surveillance of employees in attendance at union
meetings and his threat that she had better watch out.
2. Jayne's interrogation of Smith concerning the union
sentiments of employees. If the latter conduct stood alone, it
might be regarded as an isolated act of insufficient import to
warrant a remedial order, but here it was mixed with a flagrant
course of surveillance and with Hegler's warning to Morgan.
C. Discrimination
Linda Fox was employed from June 13, 1966, to February
8, 1968, after working for Respondent in a prior employment
at an old plant at a different location. She openly espoused the
Union and was known to Respondent to be one of its most
active supporters. Among other things she was on the
organizing committee, she attended the representation hearing
as a witness for the Union (though she did not testify), and she
was an observer for the Union at the election.3
Fox testified that around the first of December her
foreman, Leon Pittman, told her at a time when she was not
wearing her union button he hoped he could win her over to
his side. She testified further that on the day following the
election a Mr. Styles, whose supervisory status was admitted
by Respondent's answer, commented on the fact the Company
won the election and stated he hoped she would be more
satisfied with the Company.
Fox was discharged on February 9, 1968, for an alleged
violation of company rules, specifically that on the previous
day she was away from her department during working hours
without permission. The evidence was not in conflict as to the
circumstances leading to the discharge save on the single point
whether Fox was in assembly without permission on the
morning of February 8, there being no dispute that she went
there twice in the afternoon with permission for both visits.
2 Morgan, who was a section leader at the time, was cross -examined
at length in an effort to establish supervisory status. I find on the entire
evidence that such authority as Morgan exercised was of a merely
routine nature not requiring the exercise of independent judgment.
Indeed the record indicates that Morgan 's position and her authority
1437
Thus Fox's testimony was undenied that Foreman Joe
Clark asked her to work overtime on February 8 and that
twice during the afternoon she obtained permission to go to
assembly to inform Louise Smith that she would not be riding
home. She applied first to Foreman Lonnie Loveland in Clark's
absence but being then unable to find Smith in assembly, she
applied later to Clark himself. On the second visit she spoke
with Smith at the latter's work station and delivered a note to
her husband and her car keys.
Smith corroborated the latter testimony and both Smith
and Fox denied that Fox visited with Smith in assembly at any
time in the morning. Further corroborative testimony was
given by Margaret Fender, who worked in the same section of
the same department as Fox, with only one work station
between them. Fender testified that on the morning of
February 8 she did not see Fox leave her station to go into
another area but did see her leave in the afternoon. No
supervisor questioned her about whether Fox left her area.
Fender admitted that she was busy doing her own work and
could not "swear" that Fox did not leave and that she would
not necessarily have known, for example, if Fox went to the
ladies' room.
On the next day Clark again asked Fox to work overtime
and she agreed. Around 3 p.m., however, she was summoned
to the personnel office where there were present Clark and
Harper Whitington, supervisor of her department. Whitington
charged Fox with being in the assembly department between
10.15 and 10:30 on the morning of the 8th, but Fox denied it,
explaining she had been there twice in the afternoon, with
permission. Whitington insisted, however, he had three "re-
liable" reports that Fox had been talking with Louise Smith in
assembly in the morning and said he would have to terminate
Fox. Whitington refused as unnecessary Fox's request that he
check with the girls she worked with but asked Clark whether
Fox was in her own department between 10 15 and 10.30 in
the morning. Clark replied that he was not present and did not
know. Without more, Whitington discharged Fox, delivering a
typed separation notice which bore Lookadoo's signature.
Whitington did not testify (having left the Company) and
Clark's testimony was in substantial accord with Fox's. He
testified that Whitington, who was his superior, did not consult
with him concerning the decision to discharge Smith.
Respondent's case rests on the testimony of Floorladies
Lena Burgett and Linda Hallyburton. They testified that upon
returning from a conference with supervisors on the morning
of February 8 they saw Fox talking with Smith in the
assembly department around 10.20 a.m., that they did not
know whether Fox had permission to be there and that they
made no report at the time. They saw Fox again around 3.15
p.m., and this time they reported to Foreman Baxter Jaynes
that they had twice seen Fox in the department. Though
testifying that their instructions as floorladies were to report
the presence of employees from other departments, Hallyburton
explained her failure to report the first visit on the
compared closely with those of Floorladies Lena Burgett and Linda
Hallyburton whom Respondent contended were not supervisors
It is further to be noted that Morgan's testimony was purely
cumulative on surveillance , whatever her status was.
3 Fox testified to, but did not explain , a temporary aberration in her
sentiments when she wore for part of a day a "Vote No" button.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground that she was busy and forgot and that she thought the
second visit was more serious because, "[W] e couldn't let this
continue to happen."
Jaynes in turn reported to Fox's supervisor, Harper Whiting-
ton. Burgett, who was present, testified that Jaynes asked
whether Fox had permission to come to assembly and
Whitington replied he would check and find out. Some time
later Personnel Manager Lookadoo requested Burgett and
Hallyburton to make written reports on what they had seen.
They did so and turned the reports in to Jaynes who similarly
prepared at Lookadoo's request a report on what the floor-
ladies had told him.
Jaynes' testimony was in accord with that of Burgett and
Hallyburton, and he testified he had no authority over Fox
and had nothing to do with her discharge.
We now turn to the matter of Respondent's rules. On or
about August 1, 1967, Respondent posted on its bulletin
board a notice bearing that date which listed a total of some
25 rules in two separate groupings under the heading "Em-
ployee Conduct," but which did not purport to cover
everything expected in the way of proper conduct. Rule
number 8 in the first group read as follows- "Being in an
unauthorized area during working hours." Other rules covered,
by way of example, such things as insubordination, fighting,
stealing, destroying or defacing company property, and prac-
tical jokes or horseplay.
The notice was silent on the subject of the disciplinary
action to be imposed, whether for single or repeated violations,
and Respondent made no attempt to develop from its
witnesses what its policy was in that regard or even that it had
any. Cross-examination in turn by the General Counsel also
failed to develop anything definite in the way of a policy, and
the only practice appeared to be one of giving oral warnings
and sometimes written reprimands Furthermore the evidence
was such that no real consistency in practice can be found.
Testimony by the nonsupervisory floorladies, Burgett and
Hallyburton, was indefinite and uncertain. Both knew they
were supposed to report employees who came into the
department from elsewhere, but Burgett testified she could not
say "for sure" whether she was told what disciplinary action
was to be imposed in such a case. Though testifying she knew
that some sort of disciplinary action would follow the breaking
of a rule, Burgett added that, "[A] lot of times it would be
through verbal warnings, sometimes written warnings, just
different things." Claiming knowledge also of a rule concerning
three written warnings, Burgett testified it was not a written
rule and she was unable to state how she was made aware that
such a rule existed. Burgett was also vague as to the types of
violations on which she was supposed to write a report or
warning and testified she was never informed what types
would result in discharge for a first offense.
Foremen Clark and Jaynes testified to nothing of substance
concerning Respondent's policy or practice. Foreman Harold
Camp (called only in impeachment of Fox's testimony on a
collateral point)' testified he was informed of the penalty to
be imposed for violations but he was not questioned as to what
the penalty was. Camp testified that though no one ever told
him so, each of the rules was in his opinion just a important as
any other, that his understanding was that there was a
distinction between a warning and a reprimand and that a
reprimand, given orally, would be followed by a written
report. Camp agreed that four warnings which Respondent
introduced concerning earlier conduct by Fox were not formal
reprimands.
Concluding Findings
As is seen the only fact in dispute is whether Fox went into
the assembly department without permission on the morning
of February 8. It is not disputed that she went there twice on
the 8th and that she got prior permission for her visits.
Testimony by Burgett and Hallyburton is in accord that Fox
was there twice but they fixed the first visit in the morning
when Fox neither had nor claimed to have permission. No
other witnesses were called to substantiate their testimony.
For the General Counsel, however, Smith corroborated Fox's
denial of a morning visit and Fender testified she did not see
Fox leave her area in the morning.
Despite the positive claim of the floorladies that they saw
Fox in the morning, all the testimony in this case can be
reconciled by the finding, which I make, that they were
mistaken as to the time of the first visit and that though they
in fact saw Fox twice, both occasions were in the afternoon.
Indeed, the record suggests no reason why Fox, who carefully
obtained permission to go to assembly on two occasions,
would have failed to obtain permission for an alleged third
visit.
We turn then to the issue of motivation. The General
Counsel plainly made out a prima facie case of a discrimina-
tory discharge. Fox had long been to Respondent's knowledge
one of the leaders of the organizational drive and it showed its
concern by Foreman Pittman's attempt to win her over and by
Styles' expression of hope after the election that she would be
more satisfied with the Company. The discharge was made
suddenly and summarily for an alleged rule violation in the
face of Fox's repeated denials, rejecting her request that
Respondent check with fellow employees. Even perfunctory
compliance with that request would have developed corrobora-
tion of Fox's denials. Certainly some further investigation was
called for because Clark himself was unable to certify to
Whitington that Fox had left her own area in the morning. Yet
Whitington proceeded with the discharge, handing over a
formal typed notice of termination, obviously prepared in
advance, signed by Lookadoo.5
4 Respondent sought to attack Fox's credibility generally by
impeaching her claim on direct examination that she got no warnings or
reprimands about rules violations . On cross-examination Fox admitted
she was reprimanded for absenteeism during her prior employment in
1965 She admitted further that in 1967 she was one of a group of girls
who played a practical joke on a fellow employee and that she also
sometimes punched in late, but she testified she could not recall that
her foreman , Harold Camp , gave her any warning or reprimand
concerning that conduct. Camp testified to the contrary that he warned
Fox about the possibility of disciplinary action if the offenses were
repeated.
Respondent specifically disclaimed reliance on any of the foregoing
conduct as constituting part of the reason for the discharge I do not
find that the limited impeachment on a collateral point was sufficiently
serious to require the discrediting of Fox's other testimony , particularly
since much that she testified to was either admitted or was not denied
and since in other respects her testimony was corroborated by Louise
Smith and Margaret Fender.
5 Though Lookadoo participated actively in building the record
against Fox , he did not testify concerning the discharge . His disposition
to engage in unlawful conduct was fully disclosed by his undemed
participation in surveillance as found in section B, supra
SOUTHERN DEVICES INC. 1439
The circumstances thus suggest that once it obtained
reports which suited it and would serve as ostensible ground
for discharge, Respondent did not care to risk the opportunity
by making a more careful investigation which might result in
evaporation of its case against Fox.
Furthermore Respondent's evidence not only failed to
overcome the prima facie showing established by the General
Counsel's evidence, but tended instead to confirm the con-
clusion that the moving cause of the discharge was antiunion
discrimination. As has been seen Respondent made no showing
of a policy or practice concerning rule violations and none that
employees were informed of penalties to be unposed or
disciplinary action to be taken. Neither did Respondent's
evidence suggest that there was any precedent for discharging
for a first violation of rule 8, nor for that matter for other
obviously more serious violations of the rules against theft,
falsification, fighting, or destruction of property. Though
sound reason for the rule and for requiring compliance with it
obviously existed, there was no showing that it was more
important than such other rules or which would justify
summary discharge without warning for a first offense. Indeed,
the floorladies themselves did not regard the alleged morning
visit serious enough to warrant a report and it was the second
visit (sanctioned by Clark himself) which moved them to
report to Jaynes. Furthermore Smith's undenied testimony
concerning visits with other employees and her 10-minute
discussion of unionism with her foreman disclosed the lack of
seriousness with which Respondent regarded the interruption
of Smith's work.
In sum this is a case in which Respondent's evidence itself
tended to confirm, not to refute, the inference of discrimina-
tory motivation for it furnished part of "reasonable cause for
believing that the ground put forward by [it] was not the true
one and the ground was because of union activity." N.L.R.B.
v Texas Bolt Company, 313 F.2d 761, 763 (C.A. 5). Not only
was the discharge effected with knowledge that Fox had
permission for two visits to assembly, but Respondent acted
precipitately, tendering a preprepared termination notice, and
rejected Fox's request for an investigation which would have
shown her guiltless.
I therefore conclude and find on the entire record that
Respondent seized with alacrity on the mistaken report of a
rule violation as a pretext for effecting a discharge whose
moving cause was antiunion discrimination. Cf N.L R B. v. C
& J Camp, Inc., 216 F.2d 113, 115 Thereby Respondent
engaged in discrimination to discourage membership in the
Union in violation of Section 8(a)(3) and (1) of the Act.
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 em-
ployees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1).
2. By discharging Linda Fox on February 9, 1968, to
discourage membership in the Union, Respondent engaged in
unfair labor practices within the meaning of 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.
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 as
provided in the Recommended Order below which I find to be
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, Inc., 108
NLRB 60, 61, and cases there cited, I shall recommend a broad
cease-and-desist 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 hereby issue the following
RECOMMENDED ORDER
Southern Devices Incorporated, its officers, agents, suc-
cessors, and assigns shall-
1. Cease and desist from
(a) Interrogating coercively its employees concerning the
union sentiments of themselves and of other employees.
(b) Discouraging membership in the Union, or in any other
labor organization of its employees, by discharging them or in
any manner discriminating against them in regard to hire or
tenure of employment or any term or condition of employ-
ment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist International Brother-
hood of Electrical Workers, AFL-CIO, 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.
2. Take the following affirmative action
(a) Offer to Linda Fox immediate and full reinstatement to
her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have suffered
by payment to her of a sum of money equal to that which she
would have earned from the date of her discharge to the date
of the offer of reinstatement, less her net earnings during such
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 records, timecards, personnel records and
reports, and all other records necessary to analyze the amount
of backpay due under these regulations.
(c) Post at its plant and offices at Morganton, North
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carolina, copies of the attached notice marked "Append X.,,6
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by Re-
spondent's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
6 In the event that this Recommended Order is 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 is enforced by a decree of a
United States 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."
7 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 11, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations, to
join International Brotherhood of Electrical Workers,
AFL-CIO, 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 Linda Fox immediate and full rein-
statement to her former or substantially equivalent posi-
tion, without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of earnings she
may have suffered by reason of our discrimination against
her.
All our employees are free to become or refrain from
becoming members of International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor organization.
SOUTHERN DEVICES
INCORPORATED
(Employer)
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 Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees coercively
concerning the union sentiments of themselves or of other
employees.
WE WILL NOT discourage membership in International
Brotherhood of Electrical Workers, AFL-CIO, or in any
other labor organization of our employees by discharging
them or in any other manner discruninating in regard to
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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board ' s Regional Office, 1624 Wachovia Building,
301 North Main Street , Winston-Salem , North Carolina 27101,
Telephone 723-2300.