Southern Electronics Co., Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1969

175 N.L.R.B. 69 (N.L.R.B. 1969)

SOUTHERN ELECTRONICS CO., INC.
Southern Electronics Co., Inc. and International
Union of Electrical , Radio and Machine Workers,
AFL-CIO-CLC. Cases 10-CA-7370 and
10-CA-7370-2
March 26, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 27, 1968, Trial Examiner John M.
Dyer issued his Decision in the above-entitled
proceeding, finding that the 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.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 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 and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
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
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Southern Electronics Co., Inc.,
Moshiem, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified-
1 Substitute the following for subparagraph 1(b)
of the Trial Examiner's Recommended Order:
"(b) Promulgating, maintaining, or enforcing
no-solicitation rules prohibiting employees during
nonworking time from soliciting for the Union on
Respondent's property."
2. Substitute the following for the first indented
paragraph of the notice:
WE WILL NOT promulgate, maintain, or enforce
no-solicitation rules prohibiting solicitation on
behalf of the Union during nonworking time on
our property.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
69
JOHN M DYER, Trial Examiner The International
Union of Electrical , Radio and Machine Workers,
AFL-CIO-CLC, herein called the Union , alleged in a
charge filed May 20, 1968,' that Southern Electronics Co.,
Inc., hereinafter called Respondent or the Company,
discriminatorily discharged employee Kenny Ricker for
his union activities by enforcing Respondent's
"no-solicitation" rule and that Respondent otherwise
violated Section 8(a)(1) of the National Labor Relations
Act. On June 7, the Union filed the second charge herein,
alleging that Respondent discriminatorily discharged Steve
M. Wisecarver on June 5 The Regional Director for
Region 10 issued a complaint on August 6, alleging that
the termination of the two employees violated the Act and
that Foreman Dixon and Vice President Harold J.
"Jerry" Detrick violated Section 8(a)(1) on various dates
in May by interrogating employees concerning the Union
and by various threats of reprisals to be taken if the
employees brought a union into the plant.
Respondent admitted it was engaged in commerce, that
Detrick and Dixon were supervisors within the meaning of
the Act, and that it had discharged Ricker and
Wisecarver , but denied that it had violated the Act in any
instance Thereafter the complaint was amended twice
adding allegations that Respondent violated Section
8(a)(1) by its maintenance and enforcement of a
"no-solicitation rule while allowing employees to solicit
for causes other than the Union and that Vice President
Jerry Detrick on May 10 interrogated and solicited an
employee to spy on and report to the union activities of
other employees , and on May 31, threatened reprisals to
employees if they engaged in union activities
Respondent ' s amended answers denied violations of the
Act but admitted that Respondent maintained , as part of
its rules and regulations , rule 16 regarding solicitations.
The hearing was held in Greeneville , Tennessee, on
September 10 and 11 and all parties were afforded full
opportunity to participate in the hearing , to examine and
cross-examine witnesses , and to argue orally. The parties
waived oral arguments and briefs from the parties have
been received and considered.
Upon the complete record in this case and on my
evaluation of the reliability of the witnesses , based both on
the evidence received and my observation of their
demeanor , I make the following
FINDINGS OF FACT
I THE RESPONDENT'S BUSINESS AND THE LABOR
ORGANIZATION
Respondent is a Tennessee corporation with an office
and plant in Moshiem, Tennessee, where it is engaged in
the manufacture and sale of electronic component parts.
During the past year Respondent sold and shipped
finished products valued in excess of $50,000 directly to
customers located outside the State of Tennessee.
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
Respondent admits and I find that the Union herein is
a labor organization within the meaning of Section 2(5) of
the Act.
'All dates herein occurred in 1968 unless expressly stated otherwise
175 NLRB No. 11
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
has 16 rules and the third page sets forth the holidays.
Resp. Exh. 1 is a 2-page document, the first page
containing 7 items and the second page listing 22 rules.
Respondent admitted that it had added to its rules during
the years as new situations developed and had included,
for example, rules regarding where employees were to eat,
that radios were not to be played in the plant, and that
newspapers were not to be bought prior to the close of the
shift.
Respondent contended that its rule 16, "There will be
no soliciting of any kind on Company property during
working hours," had been included in the rules which had
been posted and should have been known to all employees
since the plant opened.
There was testimony which indicated that copies of the
rules were handed out to all employees about the time of
the first union organizational attempt in 1960. Some of
the General Counsel's witnesses testified that they did not
recall seeing rule 16 or copies of the rules posted on the
plant bulletin boards.
From the totality of the evidence, I find that
Respondent had posted rules including its no-solicitation
rule at least from the time of the Union's organizational
attempt in 1960 and probably had such rules prior to that
time, although the rules may not have been posted
continuously.
Vice President Jerry Detrick testified that Respondent
has a system of progressive discipline for rule violations
whereby an employee receives an oral warning for a first
violation; a written warning for a second violation; a
3-day layoff for a third violation; and discharge for the
fourth violation.
In regard to solicitation and enforcement of its rule 16,
Respondent's general testimony was that it gave
permission to disregard the rule when employees sought
permission from management officials to have collections
for people who were sick or had other problems or where
there was a death. According to Jerry Detrick only he or
the plant superintendent could give such permission.
Former Plant Foreman Dixon, who took Wisecarver's
nonsupervisory job as the stockroom foreman following
Wisecarver's discharge, testified that, although he had
seen some plant rules, he did not know there was a rule
against solicitation and freely permitted employees to take
up collections in the plant, feeling that as the plant
foreman he possessed authority to allow such solicitations.
Some of the relief operators testified that they took up
collections and at times did not seek permission to do so.
Estimates of the number of solicitations in the plant ran
anywhere from two to three a week to two or three a
month. The practice was that a box would be set up with
a statement of what the collection was for, and would be
passed down the various assembly lines for the employees
to make a donation if they wished.
In addition to this type of solicitation there was also
testimony that Avon products and Tupperware products
were sold in the lunchroom and that a newspaper known
as Grit was also sold in the lunchroom. There was
testimony from one person that Avon products were
carried through the plant or delivered in the plant during
worktime.
It appears that the volume of solicitations and sales of
goods was such that solicitations became a custom and
that Respondent's rule was honored more in the breach
than in its observance. There is no evidence that
Respondent at any time objected to the various forms of
collections or sales going on in the plant or in the
lunchroom except for Jerry Detrick's testimony that he
The Company produces electronic parts such as
switches for various manufacture on production lines in its
Moshiem plant. During the 15 or so years the Company
has been in business , it has grown from a small operation
to a large plant which was enlarged further within the past
2 or 3 years.
Basically the hierarchy of the plant at the times
material herein consisted of President Detrick, his son,
Vice President Harold J. Detrick, known to the employees
as Jerry, Plant Superintendent Charles Payne, and, at that
time, Plant Foreman Lowell Kenneth Dixon. In addition
to these supervisors, Respondent had a nonsupervisory
employee in charge of its stockroom and on its assembly
lines had relief operators who relieved employees on the
production line and saw to it that production was kept
moving and helped to train new operators.
General Counsel directed my attention to the fact that
on two prior occasions the Board found Respondent guilty
of unfair labor practices. In 1961 the Board (131 NLRB
1411) found that the Employer had committed violations
of Section 8(a)(1) and (3) of the Act and the Board's
findings were enforced (302 F.2d 145) in the United States
Court of Appeals for the Sixth Circuit in 1962. Later in
1961 the Board (134 NLRB 80) found Respondent had
committed further violations of Section 8(a)(1), (3), and
(4) of the Act, but the United States Court of Appeals for
the Sixth Circuit denied enforcement (312 F.2d 255)
determining that the evidence did not substantially support
the Board's findings. The attempt to organize this plant in
1960 was unsuccessful and another attempt in 1966 was
again apparently unsuccessful.
Employee Kenny Ricker worked in the stockroom
under Steve Wisecarver at the time of his discharge.
Ricker had been in charge of the stockroom, but after an
accident and being away from the Company for a month
or more was placed in another department on his return.
He was later transferred to the stockroom under Steve
Wisecarver. Ricker and Wisecarver discussed the
advisability of having a union and about May 1
Wisecarver contacted a local union representative who
advised him to canvass the employees to see how much
union sentiment there was in the plant. Ricker and
Wisecarver apparently contacted a number of employees
and reported back to the Union that there was some
prounion sentiment with some of the employees willing to
serve on an organizing committee. Arrangements were
made for a meeting with union representatives and on
May 9 Wisecarver and Ricker met with Union
Representatives Fisher and Cress. They went to employee
Hinkle's house for further discussions and there the three
employees signed union authorization cards and agreed to
solicit other employees. After the meeting Ricker and
Wisecarver visited some five or six employees, soliciting
union authorization cards.
Jerry Detrick testified that when the Company began
business some 15 years ago, it established a group of rules
and regulations to guide the employees. Resp. Exh. 4, is
an undated copy of its rules and regulations signed by a
former plant superintendent, Nealis Donn Bunch, who
became plant superintendent around 1958 to 1960. The
first of the 3 pages of this document has a list of seven
items which we will call the regulations. The second page
SOUTHERN ELECTRONICS CO., INC 71
stopped an egg salesman and an insurance salesman from
carrying on their business in the plant
Respondent has specific breaktimes for employees on
the production lines, but has no established breaktimes for
employees in the stockroom, who are permitted to take
breaks when they are sufficiently caught up in their work
to do so
B. The Events of May 10
1. On Friday morning, May 10, according to Ricker
and Wisecarver, they were working in the stockroom when
cleaning lady Lucy Belt came in and sat down at the desk
where Wisecarver was filling out receiving reports. Ricker
was then in the back part of the stockroom working in the
bins Mrs Belt asked Wisecarver if he had heard anything
about a union campaign, saying she had heard of it from
others in the plant and wanted to know what he knew of
it. He said he was for the Union and asked her opinion
She said she did not know. They talked a while longer
before he got three cokes for himself, Ricker, and Howard
Shelton, the three then working in the stockroom. Mrs
Belt was still sitting at the desk and they resumed the
conversation Ricker came over and got his coke and Mrs.
Belt started talking to him about the Union Ricker
walked back behind the shelves and Mrs. Belt followed
him Wisecarver joined them after a moment and heard
Ricker ask Mrs. Belt to sign a card and her reply that she
was afraid to do so and wanted to talk to her husband
about it. Ricker gave her a card and she said she would
take it home with her.
Ricker corroborated Wisecarver's version of the events,
saying that around 10 a m. he saw Lucy Belt talking to
Wisecarver at the desk and after Wisecarver got the cokes
he decided to take his break, went to the desk and picked
up his coke, and started to talk to Wisecarver and Belt.
She asked what he thought about the Union and he told
her it would be a good thing and would benefit her more
if she would work for it since she would not have to do so
many odd jobs. He walked back behind the shelves, taking
his coke, and Belt followed him. He asked her to sign a
union card and she refused saying she would take it to her
husband and let him look at it Ricker gave her a union
card and she left the stockroom. Ricker testified
specifically that he was taking his break at the time he
was talking to Mrs Belt and assumed that she was on a
break since she had been sitting at Wisecarver's desk for
some time
Mrs. Belt said she was not on a break when she went in
the stockroom to get some supplies around 11 a m. A bit
later she testified she has her lunch period about 11 a m.
When asked whether Ricker or Wisecarver were drinking
cokes when she was there, she replied equivocally saying
she would not say whether they were or were not. She
testified her supplies were kept in the stockroom and that
she had heard talk about the Union for several weeks
before the union cards came out. She denied sitting at the
stockroom desk, testifying that she stood there while both
Wisecarver and Ricker talked to her about the Union with
Ricker talking the most. She said she was getting her
supplies from the shelves when Ricker came over to her
and gave her a union card. Mrs. Belt states she told
Ricker she would not sign the card but would think about
it and then left the stockroom taking some materials with
her
Mrs. Belt was not asked about and did not testify
whether the conversation with Ricker in any way impeded
or hindered her in her work. Somewhat to the contrary
she testified that she did all her work.
2. Shortly after leaving the stockroom and before
lunch, Mrs. Belt went to Jerry Detrick and told him that
there would be trouble because they were trying to get the
Union in and gave him the union card. She remembered
he said he would take care of it, after she told him in
response to his question that Ricker gave her the card
She testified she went to Jerry Detrick because she wanted
to tell him that union talk was going on in the plant and
she felt he ought to know what was going on. During
cross-examination Mrs. Belt claimed she knew that
Ricker, in giving her a card, was breaking a plant rule.
Queried further she said she did not know what rule he
was breaking and then said that at the time she did not
know whether Ricker had violated a rule in giving her the
card.
Jerry Detrick testified that his first knowledge of the
Union's organizational attempt was when Lucy Belt told
him on the morning of May 10 that Kenny Ricker asked
her to sign a union card 2 After Mrs Belt left the office he
thought about if for a few minutes and called her back
and asked whether the solicitation occurred on worktime
or breaktime. She told him it was on her worktime. At
this point Detnck's testimony becomes confused as to
whether he called his attorney for advice or whether he
first checked the rules and regulations to verify that rule
16 forbade solicitation on company time. In any event he
did seek counsel and did check the rules and called Lucy
Belt back to his office and questioned her further about
the incident
Mrs. Belt's testimony is not clear as to precisely how
many times she was called to the office, but her testimony
would indicate that after the original conversation she was
recalled only once when she was asked to sign a statement
and did so
3. Detrick testified that following his conversation with
Mrs. Belt he called Howard Shelton to the office and
asked whether he had seen Ricker solicit Lucy Belt and
pass a union card to her. According to Detrick, Shelton
said he saw nothing
Howard Shelton, who is no longer employed by
Respondent, testified that he did see Ricker and
Wisecarver talk to Lucy Belt around 10 a.m. on the day
Ricker was fired. Later that morning he was called to the
office by Detrick, who asked if he had been signing any
union cards He told Detrick that he had not. Shelton
testified that he had signed a union card that morning
during his break but did not say so to Detrick Detrick
asked Shelton if he knew whether Ricker or Wisecarver
were passing out union cards and Shelton said he did not.
Detrick told Shelton to let him know if anybody started
passing out union cards or if they started talking to
Shelton about the Union.
Detrick denied asking Shelton to let him know of union
cards being passed out during worktime.
4. Detrick testified that following the Shelton
conversation he called Mrs. Belt back to the office and
asked if she would sign a statement concerning the events
of that morning and she said she would. After she left
Detrick dictated a statement for Mrs. Belt to his secretary
and after it was completed Mrs. Belt was called back to
the office Mrs. Belt testified that she did not have time to
read the statement before she signed it, saying, "I guess
whatever Jerry Detrick wrote on it was all right with me."
'Foreman Dixon testified that prior to Ricker's discharge he heard about
the Union' s organizing efforts from girls in the plant and he reported this
information to Jerry Detrick
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She said Detrick did not tell her what he had written on
the paper and that she did not read it then and had not
read it in the interim before the trial of this matter.
Thereafter, Detrick took her to get her signature
notarized
5. That afternoon Detrick called Ricker to the office
He told Ricker he had bad news for him and to sit down.
Detrick said he had a sworn statement from the lady that
Ricker gave a union card to on company property and
asked if he denied it. Ricker replied, "I don't know
nothing about nothing." Detrick said he had to fire Ricker
and told him to get his check in the outer office and not
to go back through the plant, but to go around the plant
in order to get his car Ricker did as he was told.
Ricker testified he was not aware of any rule
prohibiting soliciting on company property and that he
had not seen a set of written rules in his 4 years of
employment He said he had heard of some rules from
other employees regarding not punching another's
timecard or eating in the plant, but had not heard of a
rule against soliciting . He testified that he had seen Avon
products sold on company property during work hours
and that boxes were passed down the line for collections
for flowers for people in the hospital, etc.
Shortly after Ricker's discharge, Wisecarver was told to
report to the office where Detrick told him he had dust
fired Ricker for handing out a union card on company
time, adding that he had a sworn statement from the lady
Ricker solicited. Detrick said everything was all fixed up
and he would replace Ricker immediately.
Neither Lucy Belt nor Jerry Detrick testified that at
any time during their conversations either of them
mentioned Steve Wisecarver nor what, if anything, he had
to do with the solicitation or conversations about the
Union Wisecarver at that time was the head of the
stockroom and it seems very unusual that, in
contemplating the discharge of someone in that
department, Detrick would not have contacted the head of
that department to get his version of the events in his
department. Instead, Detrick contacted Shelton, the other
employee in that department.
The fact that Wisecarver was not asked about the
events in his department when it was most logical for him
to be questioned about it, serves, in the absence of any
mention of Wisecarver in their conversation by either Belt
or Detrick, to lend additional credence to Sheltons's
testimony that Detrick asked about both Ricker and
Wisecarver. This action further indicated that Mrs. Belt
and Detrick were not completely candid in their testimony
since neither of them mentioned discussing Wisecarver.
It appears from Detrick's description of his
investigation that it was a one-sided affair with the
purpose not being to determine precisely what occurred in
the stockroom that morning , but rather to secure
sufficient reasons to justify a discharge of Ricker. When
Ricker came into the office, he was greeted with the
words, "I've got bad news for you," a clear indication
that a decision had been made to discharge him.
If an investigation is being made to determine whether
a company rule has been broken i t seems incumbent upon
the investigator to attempt to determine from all who
were present, including the accused and his boss, what
occurred, and not to build a case against an employee by
contacting selected individuals, determining the result and
then telling the accused of the conclusion.
Another factor added after the discharge is that Detrick
a few days later decided to strictly enforce rule 16. The
relief operators were called in and told that from then on
no forms of solicitation would be permitted. Respondent
never offered any testimony nor even suggested that any
of the forms of solicitation engaged in by the employees,
including the solicitation for union cards, ever interfered
with production or caused a disruption or any problems in
the plant. It is clear that this ex post facto enforcement of
its rule 16 was a transparent manuever to disguise the use
of the rule as to Ricker. Ricker's discharge was the first
and only discharge for a violation of Respondent's rule 16
Respondent ignored its system of progressive discipline in
discharging Ricker for a first offense. Detrick sought to
explain this deviation by saying it was a serious matter.
No effort was made to show how the violation (taking
Respondent's case at its best) was serious or more serious
than any other infraction of that or another rule Again
no disruption of employees, work duties, or work
schedules was involved The only thing that was serious in
Respondent's view was that this solicitation was for the
Union and not some charitable matter. Such is not a valid
distinction
A prime question for consideration is whether rule 16 is
a valid rule. The General Counsel and the Charging Party
attack the rule as being a vague overbroad rule which on
its face is presumptively invalid, citing Campbell Soup
Company, 159 NLRB 704, as precedent. The
no-solicitation rule there is similar to Respondent's rule 16
which forbids soliciting of any kind on company property
during working hours. The phrases there and here are
broad enough to include breaktimes, areas such as a
parking lot or lunchroom, etc. I find that the rule is
presumptively invalid. Respondent's effort to justify the
rule consisted of its testimony that solicitations of certain
types were permitted in the lunchroom and that it granted
permission for some charitable solicitations on the
assembly line. As noted previously Respondent made no
effort to show a particular need for the rule by
demonstrating that solicitations had caused work or
personnel problems
Considering the evidence before me, I must find that
this rule as maintained by Respondent is invalid and
violates Section 8(a)(I) Further from the manner
described, the rule was applied in a discriminatory fashion
to Ricker. It seems evident from the testimony that
Ricker was on his break at the time he talked to Mrs.
Belt and, from the manner in which she acted, she
appeared to be on a break. Therefore, Respondent under
these circumstances was enforcing its rule against an
employee who was on his breaktime, thereby
demonstrating the overbroadness of its rule and its invalid
interpretation of its own rule.
Since the rule is invalid, the enforcement of it as to
Ricker is also invalid and his discharge thereunder is
violative of Section 8(a)(1). Even if the rule were valid I
would find Ricker's discharge violative of the Act since
the rule was applied to Ricker in a discriminatory fashion
as set forth above; the employer made an effort only to
justify the discharge and not to uncover facts and sought
by later enforcement of the rule to shore up its validity.
Respondent's abandonment of its progressive discipline on
this occasion and its failure to show the seriousness of the
"violation," together with the laxness of rule enforcement
prior to this occasion and the fact that no harm was done
to the individuals or their work schedules while employees
were free to converse, all combine to establish that
Ricker's discharge was an evident attempt to frustrate
union organization by Respondent ridding itself of one of
the two union organizers at the inception of the
movement.
SOUTHERN ELECTRONICS CO., INC. 73
Further I find that the interrogation of Shelton by Jerry
Detrick and his request of Shelton to keep him informed
of any union talk and anyone passing out union cards
violated Section 8(a)(1) of the Act. Detrick's statement to
Wisecarver that Ricker was fired for passing out union
cards is also violative of Section 8(a)(l) as a further
promulgation of an invalid rule.
C. Events Between May 10 and June 5
1. On Monday, May 13, Steve Wisecarver wore a union
button to work. While getting a coke, Plant Foreman
Dixon asked him how they were getting along, how many
cards they had signed. Wisecarver said he did not know.
Dixon said they were friends but he was against the Union
and could not see why Wisecarver would be for it.
Wisecarver asked why he was against it Dixon said if the
Union got in they all may be looking for a job since the
plant would probably close because Detrick would not
allow a union in the plant Dixon said he did not see why
the employees would want a union ; that they should be
satisfied, that they had free coffee if they wanted it and
got time off when they wanted it; and he could not see
why anyone would have complaints about the Company.
2 About a week later Dixon asked Wisecarver how
many cards were signed Wisecarver said signed cards
were sent to the Union by others as well as himself so he
did not know how many they had. Dixon asked when they
would have an election and Wisecarver said he did not
know. Dixon said he wanted it to get over with to see if it
would go union or not
Dixon said he did not remember too much of his
conversation with Wisecarver but did recall saying
something about their continuing to be friends and said he
asked another employee, Hinkle, about how many union
cards were signed Dixon denied saying anything about
being out of a job or the plant closing or their losing
privileges such as free coffee and having time off. He did
not remember saying anything about the job if the Union
came in.
I believe that Wisecarver's memory of the events is the
more reliable, noting that Dixon confirmed some parts of
the conversations after his memory was jogged on
particular subjects. I conclude and find that Dixon
interrogated Wisecarver on two occasions as to how many
union cards were signed in attempting to determine the
extent of the union organization in violation of Section
8(a)(1) of the Act. I also conclude and find that Dixon in
an attempt to stifle union activity threatened that if the
Union came into the plant the Employer might close it or
rescind some of the privileges such as free coffee and
getting time off.
3. On Monday, May 13, while wearing his union badge,
Wisecarver was called into the office by Jerry Detrick who
asked Wisecarver what the badge meant. Wisecarver said
it meant just what it said. Detrick shook his head and said
okay and Wisecarver left the office.
General Counsel alleged this as an unlawful act of
interrogation I make no such finding Wisecarver was
proclaiming his union allegiance by wearing the badge
Detnck's question while demonstrating some animus,
merely sought oral confirmation of what the badge
established. Wisecarver confirmed it. I do not consider
this unlawful interrogation
4. About 2 weeks after Ricker's discharge, Howard
Shelton told Jerry Detrick he had signed a union card
during breaktime on the day Ricker was fired, and asked
Detrick if he would get fired for it. Detrick replied that it
was real senous and was a pretty senous offense. Shelton
testified Detrick acted upset.
Detrick testified that Shelton told him he had signed a
union card and asked what it meant. Detrick testified he
told Shelton that in signing the card he was asking the
Union to represent him at the Company and this was a
serious thing. Shelton asked if he liked it and Detrick said
he was not really pleased with it
I have earlier credited Shelton as against Detrick and
do so here again. It is evident that from the first
questioning Shelton was apprised of Detrick's animus
toward the Union to the extent that he hid the fact that he
had signed a union card He would not have asked
Detrick if he liked the Union. Ricker's discharge had
provided the answer to any such question.
Detrick's testimony is an attempt by changing a few
words to confirm the event but change its meaning
completely. I credit Shelton and conclude and find that
Detrick threatened Shelton with unspecified reprisals for
joining the Union in violation of Section 8(a)(1). Detrick
did not give Shelton any assurance that he would not be
fired for signing the union card but rather left an
impression that Shelton had somehow violated a company
rule or otherwise had done something harmful to the
Company which Detrick would remember and seek to
have atoned.
D. The Discharge of Steve Wisecarver on June 5
Near the end of May, Jerry Detrick had a conference
with Steve Wisecarver, in which, according to Wisecarver,
Detrick asked whether he was having problems or what
was wrong since he was late to work so often. Wisecarver
said his baby had been sick. Detrick said he wanted
Wisecarver and his wife (she worked for Respondent in
another department) to come to work on time for 1 week
so he could show his father their timecards without any
lateness. Detrick told Wisecarver that people who were
strong against the Union and wanted to see Wisecarver
thrown out of the plant were pressuring him, and his
father had told him to do something about the
Wisecarvers' tardiness. He added that if he could show his
father they were getting in on time that it would be all
right Wisecarver said this was the only time he was
spoken to about being late.
Detrick did not dispute Wisecarver's version of this
conversation but did say that he had spoken to Wisecarver
more than once about his tardiness. Mrs. Wisecarver was
not personnally spoken to about this matter. Detrick
testified that Wisecarver's record was good until about the
last 15 weeks of his employment. The company records
show that in that time he was late some 29 times and
absent 8 days
If the complaint allegation concerning Detrick's
purported May 31 threat of reprisals for union activities is
based on the conversation of Detrick and Wisecarver
related above, I find that the Act was not violated in that
conversation and that there is no other evidence to
support the allegation.
On Saturday, June 1, Wisecarver was scheduled with
two other employees to inventory the stockroom. His
timecard shows that he punched in at 10:45 a.m. and left
at 6:15 p.m. There is no dispute between the parties that
he was supposed to start that morning at 7 a.m. and that
the other two men reported at that time and were assigned
other work when he was not there. The inventory was not
completed that day and Respondent felt it would have
been if Wisecarver had reported on time.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisecarver was absent on Monday and Tuesday, June 3
and 4, and was called to the office on Wednesday to talk
to Detrick. Jerry Detrick asked Wisecarver what was
wrong and where he had been. Wisecarver said the baby
had been sick on Monday and Tuesday and that he called
in about it. Detrick said that was all right but wanted to
know where he had been on Saturday. When Wisecarver
said he worked on Saturday and came in about 10 a.m.,
Detrick asked why he had not been there earlier.
Wisecarver testified that when he said he had a cold and
did not feel like coming in before 10 a.m., Detrick got a
written reprimand form and told him to sign it. According
to Wisecarver the form noted that if the rule violation
continued he would be subject to a 3-day layoff and a
subsequent violation would mean a discharge. He stated
he objected to the form saying he had not violated any
rule since overtime work was not required. Detrick said
that whether he worked overtime might determine whether
he got fired or not and again told him to sign the paper.
Wisecarver refused saying he had not violated any rule
and Detrick fired him telling an office clerk to pull his
timecard and pay Wisecarver off. The reason given for his
discharge on his termination slip was a high extent of
absenteeism.
Detrick testified that in questioning Wisecarver on his
late appearance on Saturday, he was given an insufficient
reason and asked Wisecarver to sign a written reprimand.
When Wisecarver declined saying he did not have to sign
it, Detrick testified, "Well, I knew this so I did not press
the issue." They discussed it further and he received
negative responses from Wisecarver. The discussion
became heated and he fired Wisecarver summarily for
absenteeism and insubordination. Asked about the
insubordination, Detrick said that consisted of the refusal
to sign the written reprimand and a couple of nasty
remarks. The latter according to Detrick consisted of
Wisecarver saying he did not have to work overtime
unless he wanted to, but no bad language was used.
Detrick acknowledged again that Wisecarver did not
have to sign the reprimand and appears to agree that a
notation to that effect on the written reprimand would
have provided a sufficient basis for future disciplinary
action if it became necessary. Further he did not tell
Wisecarver he would be fired if he did not sign the
reprimand but then stated that he fired Wisecarver
because he refused to sign it, and would have given him
another chance if he had signed it.
Detrick did not remember if Wisecarver was wearing a
union button when he was fired but admitted he knew
Wisecarver was a union supporter and one of the three or
four employees who did wear a union badge. In addition
to the above Respondent proffered testimony that it had
received complaints about Wisecarver's running of the
stockroom, asserting it was in a mess. The General
Counsel sought to soften this claim by showing that the
stockroom was undermanned and that Shelton who had
recently been hired had not turned out to be a capable
employee.
In any event these claims are added "window dressing"
since the issue is whether Detrick discharged Wisecarver
at least in part for his union activities, and the essential
parts of the discharge are not in significant dispute. The
question of motivation must be answered by a common
sense appraisal of those facts and the attendant
circumstances.
The setting of this discharge includes the following:
1. Wisecarver was one of the few active union
proponents and so known by Detrick.
2. Detrick had discriminatorily discharged another
known union proponent 3 to 4 weeks previously and had
violated Section 8(a)(l) of the Act then and thereafter and
had a substantial animus toward the Union.
3. Detrick had warned Wisecarver about his tardiness
the previous week or so stating that the antiunion
sentiment was very strong and he was pressured to do so.
4. Respondent had a progressive discipline system
which consisted of an oral warning, written warning, 3-day
layoff, and discharge for repetitions of rule violations.
5. Respondent used this system except as to Ricker and
was using it with Wisecarver at the second step when
Detrick abandoned it and discharged Wisecarver for not
signing the written reprimand, noting that Wisecarver
would not have been discharged if he had signed the
reprimand.
6. Detrick admitted that Wisecarver did not have to
sign the reprimand and he did not tell Wisecarver he
would be fired if he did not, but then discharged him
because he did not sign the reprimand.
Wisecarver from his own testimony appears to have
merited discipline for his tardiness on Saturday and
Detrick was in the process of disciplining him. It is
possible that Detrick may have felt under pressure to
discipline Wisecarver, as his previous conversation with
Wisecarver indicates, in order to show other employees
that he was not being pushed around or afraid of
Wisecarver' s union advocacy. It is further possible that
Detrick felt that Wisecarver believed his union advocacy
protected him from discipline and led him to the stand
that he did not have to report for overtime work. If so,
Detrick disabused Wisecarver of that thought when he
told him that his maintenance of such a position might
lead to his discharge.
The question then remains whether Detrick would have
abandoned the progressive discipline and fired Wisecarver
for not signing the reprimand if Wisecarver had not been
a union proponent.
Under the circumstances set forth above, I find and
conclude that Detrick would not have fired Wisecarver if
it had not been for the latter' s union involvement.
Common sense dictates that Detrick could have
followed the progressive discipline system by merely
noting on the reprimand that Wisecarver had been given
the form and refused to sign it and had been informed
that a further breach of the rules would mean a 3-day
layoff. Detrick testified that two other persons had been
discharged for a high absentee record and that the
progressive discipline system had been followed as to
them. Why then was it abandoned here? Detrick gave no
plausible reason but retreated to a firm position that
Wisecarver was fired for high absenteeism and
insubordination. The total of the insubordination was
Wisecarver's refusal to sign the reprimand from since he
felt he had not broken any of the company rules. The
common sense answer was to warn him and make an
appropriate notation. Detrick did neither but apparently
became incensed and fired Wisecarver.
I do not know whether he fired Wisecarver primarily to
rid himself of a union proponent or because he was afraid
of being accused of being soft on a union man. In either
event Wisecarver's union predilections was a moving
factor in causing Detrick to abandon the progressive
discipline and fire him. I believe it is safe to assume that
if Wisecarver had not been an open union proponent, he
would not have been discharged under these
circumstances.
SOUTHERN ELECTRONICS CO., INC. 75
Accordingly, I conclude and find that Wisecarver's
discharge was violative of Section 8(a)(3) and ( 1) of the
Act.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's
operations described in section 1, 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.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
I have found that Respondent discriminatorily
discharged Kenny Ricker and Steve Wisecarver on May
10 and June 5, 1968, respectively, because of their union
sympathies, activities, and desires and recommend that
Respondent offer them immediate and full reinstatement
to their former positions or if those positions are
unavaliable due to a change in Respondent ' s operations,
then to a substantially equivalent position, without
prejudice to their seniority or other rights and privileges.
Respondent shall make them whole for any loss of pay
they may have suffered by reason of Respondent's
discrimination against them by payment to them of a sum
equal to that which they would have received as wages
from the date of discharge until the date Respondent
reinstates them less any net interim earnings. Backpay is
to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company,
90 NLRB 289, with interest at the rate of 6 percent per
annum to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. I further
recommend that Respondent make available to the Board,
upon request, payroll and other records in order to
facilitate checking amounts of backpay due and the rights
of each of these employees.
Respondent also interfered with its employees' rights by
maintaining and enforcing a discriminatory written
no-solicitation rule and I recommend that Respondent
cease and desist from promulgating or enforcing its
discriminatory no-solicitation rule and that it not enforce
discriminatorily any no-solicitation rule. Respondent
threatened its employees that the plant might close if the
Union was successful in organizing the plant and that
present privileges might be abolished . Respondent also
interrogated some of its employees regarding their union
activities and the union activities of others and asked one
of its employees to report on the union activities of others.
Respondent amply demonstrated its animus toward the
Union by the statements made and the positions it took,
some of which I have found violated the Act. There is a
possibility that Respondent with its antiunion predilections
and prior history might commit further unfair labor
practices but I am not convinced, considering the few
employees involved in the unfair labor practices, that
Respondent engaged in a wholesale attack against the
Union. I therefore recommend that Respondent be placed
under an enjoinder to cease and desist from violating the
Act in the same or a manner similar to the violations
found.
On the basis of the foregoing findings and the entire
record , I make the following:
CONCLUSIONS OF LAW
1. Southern Electronics Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Kenny Ricker on
May 10 and Steve Wisecarver on June 5, 1968, and not
thereafter having reinstated them to their positions
because of their union activities and desires, Respondent
has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
4. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(l) and 2(6) and (7) of the Act by:
(a) Keeping in force and enforcing its rule forbidding
solicitation of any kind on company property during
working hours, which rule is kept in force and was
enforced in the circumstances found above for the primary
purpose of interfering with union activities.
(b) Interrogating its employees concerning their union
activities and requesting employees to report to
Respondent concerning the union activities of other
employees.
(c) Threatening employees that if they chose a union
the plant might close or certain benefits extended by
Respondent might be stopped.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case
considered as a whole, it is recommended that Southern
Electronics Co., Inc., Moshiem, Tennessee , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging and refusing to reinstate employees in
order to deter them and other employees from being or
becoming union members.
(b) Keeping in force and enforcing a discriminatory
written no -solicitation rule the prime purpose of which is
to inhibit union activities.
(c) Interrogating employees concerning their union
activities and requesting employees to report to
Respondent on the union activities of other employees.
(d) Threatening its employees with a possible plant
closure or the rescinding of benefits they have enjoyed, if
they were successful in organizing the Union.
(e) In the same or any similar manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist International Union of
Electrical, Radio and Machine Workers, AFL-CIO-CLC,
to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Kenny Ricker and Steve Wisecarver
reinstatement in accordance with the recommendations set
forth in the section of this Decision entitled "The
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remedy."
(b) Make whole Kenny Ricker and Steve Wisecarver
for any loss of pay they may have suffered by reason of
Respondent's discrimination against them in accordance
with the recommendations set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the other rights and privileges accorded to Ricker and
Wisecarver as set forth in the section of this Decision
entitled "The Remedy."
(d) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(e) Post at its Moshiem, Tennessee, plant, copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by Respondent 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. Resonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
'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."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : " Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX
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:
Following a trial in which the Company, the Union,
and the General Counsel of the National Labor Relations
Board participated and offered their evidence, it has been
found that we violated the National Labor Relations Act.
We have been ordered to post this notice and to abide by
what we say in this notice.
WE WILL NOT keep in force nor enforce an illegal
no-solicitation rule the main purpose of which is to stop
lawful union activities.
WE WILL NOT ask employees about their union
activities.
WE WILL NOT ask employees to report on the union
activities of other employees.
WE WILL NOT threaten that if employees are
successful in bringing in a union that we may close the
plant or stop benefits they now enjoy.
WE WILL NOT discharge, layoff or refuse to hire or
rehire any of our employees in order to try to
discourage our employees from being or becoming
members of International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC.
WE WILL offer Kenny Ricker and Steve Wisecarver
their former jobs with all the rights and any backpay
due them.
WE WILL notify the above- named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All our employees are free to become or remain union
members.
Dated By
SOUTHERN ELECTRONICS
CO., INC.
(Employer)
(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
directly with the Board's Regional Office, 730 Peachtree
Street, N.E., Room 701, Atlanta, Georgia 30323,
Telephone 404-526-5760.