Southwire Co.

National Labor Relations Board - Board Decisions

Jun 15, 1966

159 N.L.R.B. 394 (N.L.R.B. 1966)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize or bargain with us as the representative of its employees who are classi-
fied as OS & D clerks , junior dispatch clerks, junior payroll clerks , junior
inbound clerks, or in any other classification , where Sea-Land has lawfully
recognized , in accordance with the National Labor Relations Act, as amended,
Office Employees International Union , AFL-CIO, Local No. 402, Office
Employees International Union, AFL-CIO, or any other labor organization
other than us, and a question concerning the representation of said employees
may not appropriately be raised under Section 9(c) of the Act , unless we are
then currently certified by the National Labor Relations Board as the repre-
sentative of such employees.
WE WILL NOT adamantly demand or insist that any agreement reached with
Sea-Land Service , Inc., include employees who are not within the unit found
appropriate in Case 24-RC-1971, and WE WILL NOT resort to economic pres-
sure, including strike action or threat of such action , to force Sea-Land to
include in a contract with us employees who are not in said appropriate unit,
so long as the certification issued to us remains outstanding and Sea-Land
insists on confining the negotiations to the employees in said unit.
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, LOCAL 1575,
DISTRICT COUNCIL OF THE PORTS OF PUERTO Rico, ILA,
AFL-CIO,
Labor Organization.
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 members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , P.O.. Box
11007, Fernandez Juncos Station , Santurce , Puerto Rico 00910 , Telephone 724-
'7171.
Southwire Company and International Union of Electrical, Radio
and Machine Workers, AFL-CIO. Case 10-CA-6007. June 15,
1966
DECISION AND ORDER
On February 11, 1966, Trial Examiner Maurice S. Bush 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. cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not engaged in
certain other unfair labor practices alleged in the complaint. There-
after, the General Counsel and Respondent filed exceptions to the
Trial Examiner's Decision and supporting briefs. The 'Charging
Party filed cross-exceptions 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 [Members Fanning, Brown, and Zagoria].
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, cross-exceptions, and
159 NLRB No. 32.
SOUTHWIRE COMPANY 395
briefs, and the entire record in this case, and hereby adopts the find-
ings , conclusions , and recommendations of the Trial Examiner, only
to the extent consistent with this Decision and Order.
1. As found by the Trial Examiner, the numerous unfair labor
practices committed by Respondent in the past in furtherance of its
stated antiunion policy, including discharging employees for engag-
ing in union activity,' amply establishes animus. More significantly,
however, the record in the instant case clearly shows that the
Respondent has neither changed its antiunion policy nor the unlaw-
ful methods it utilizes in the furtherance of that policy. Thus, new
employees are subjected to the Respondent's orientation program,
which includes the motion picture "And Women Must Weep." 2
Furthermore, the record shows that the Respondent has repeatedly
threatened employees with discharge for engaging in union activi-
ties and has denied an employee a merit wage increase because he
was active on behalf of the Union. In addition, at the time of the
events herein, a Board-directed second election was pending, a pro-
pitious time for discriminatory discharges to defeat the Union.
2. We find, contrary to the Trial Examiner, that the General
Counsel has established that Respondent discriminatorily discharged
Timothy Mabry on January 13, 1965. The record shows that Mabry,
who was hired by the Respondent as a "clean up man" on Novem-
ber 7, 1963, was considered a good worker. He was a member of the
union committee, an active union adherent, and Respondent had
knowledge of Mabry's union activities. Approximately 1 month
before his discharge, the Respondent's General Superintendent, Joe
Bass, told Shift Superintendent W. Jones that Mabry was engaging
'in union solicitation during working hours and to keep "a better eye"
on him. Jones relayed this information and instruction to Mabry's
immediate superior, Jerry Johnson.
Respondent's Assistant Personnel Director Grady Lane, who was
investigating the suspected theft of a ratchet set, concluded that since
Mabry's job duties took him to various areas of the plant he had a
better opportunity to steal tools and therefore was a suspect along
with a number of other employees. Lane thereupon suspended
Mabry, pending investigation, telling him that he was suspected "of
breaking company rules of a pretty serious nature."
1 See Southwire Company, 133 NLRB 83 ; Southwire Company, 145 NLRB 1329, enfd. In
pertinent part, N.L R.B. v. Southwire, 313 F.2d 638., It is immaterial that another labor
organization was the Charging Party in Southwire Company, 133 NLRB 83 , since the
matter of union animus is one of general proportions and need not be confined to a specific
labor organization.
2 We find for the reason stated by the Trial Examiner ; and under the circumstances of
this case , that the showing of the film "And ' Women Must Weep" to new employees violates
Section 8 (a) (1) of the Act. Member Zagoria finds it unnecessary in his resolution of the
case to consider this film.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Approximately 4 or 5 days after his suspension, Mabry and the
other suspected employees were given polygraph examinations by
an operator under contract with the Respondent. Lane testified that
the polygraph operator reported that the examination cleared Mabry
of stealing company property. However, Lane further testified that
the operator also told him that after the examination Mabry volun-
teered the information that he [Mabry] had on occasion stolen such
small items from the Respondent as a roll of tape and some knives
and pliers, and that before his employment with the Respondent lie
[Mabry] had been fined $140 for reckless driving and "driving
under the influence." The next morning, January 13, 1965, Lane
terminated Mabry telling him that it was for stealing from the
Company and for falsifying his employment application.3
Before Mabry's union activities came to the attention of the
Respondent, his oral denial of a suspected theft was sufficient to sat-
isfy the Respondent.' However, after Mabry's union activities came
to the attention of the Respondent, its attitude changed. Thus, when
the ratchet set disappeared the Respondent, departing from its past
treatment of Mabry, not only suspended him without informing him
of the charge against him, but permitted a number of other sus-
pected employees to continue working pending the polygraph exam-
ination. This disparity of treatment, which is both in contrast to
that accorded Mabry prior to his union activities and in contrast
with that accorded other employees similarly situated, indicates
that Mabry was treated in such a manner because of his union activ-
ities. In addition, the reason given for his discharge further indi-
cates Respondent's discriminatory motive. According to Lane,
Mabry was discharged for "stealing little things" such as a roll of
tape, knives, and pliers,' a reason which is in direct contradiction to
Lane's statement to Shoemake and Suddeth, discussed, infra, during
their termination interview, that the Respondent was not interested
in whether they "stole little things like screw drivers." It therefore
appears that, by his own admission, Lane considered "stealing little
things," the very basis which he advanced as cause for Mabry's dis-
charge, of no importance.
Upon consideration of all the matters set forth above, including
the Respondent's established union animus and the disparate treat-
ment accorded Mabry after it became aware of his union activities,
3 Mabry had indicated on his employment application that he bad never been convicted.
4 On two previous occasions Mabry's name was mentioned in connection with a sus-
pected theft . The Respondent In the first instance found It unnecessary to investigate
the matter and in the second Instance accepted Mabry's oral denial. The record shows
that the first incident occurred 2 months before Christmas , rather than 1 month before
Mabry's discharge as indicated by the Trial Examiner.
6 Although Mabry was told he was discharged for stealing and falsifying his employment
application , Lane admitted that he discharged Mabry for stealing
SOUTHWIRE COMPANY 397
we are convinced that the reason given by the Respondent was pre-
textual, and that Mabry was discharged because of his union activi-
ties. Accordingly, we find that Respondent thereby violated Sec-
tion 8(a) (3) and (1) of the Act.r
3. The Trial Examiner concluded. that the General Counsel had
not established Respondent's discriminatory motive in the discharges
of employees C. C. Shoemake and Paden Suddeth on February 11,
1965. We do not agree.
The Respondent asserts that Shoemake and Suddeth were dis-
charged for refusing to take a polygraph examination, under the
following circumstances :
About 4 days before these discharges, Respondent's Vice President
Holliday noticed an unsigned timecard which carried the same time
in and time out as Shoemake's timecard. Holliday informed Assist-
ant Personnel Director Lane, and Lane made inquiries of employee
Monty Buck, an electrician who worked in the same crew as Shoe-
make and Suddeth. Buck told Lane about a telephone conversation
he overheard purportedly between Suddeth and Shoemake in which
Suddeth said, "Look, if you can get by the guard at the gate, don't
worry about punching. I'll have a timecard waiting on you, give
you full time." Buck also told Lane that other employees were
involved in timecard cheating. Without any further investigation
of the latter's report, Lane decided to require Shoemake and Sud-
deth to take a polygraph examination.
On February 10, Lane and Holliday confronted Shoemake and
Suddeth with the accusation of timecard cheating and requested they
take a polygraph examination. Both men denied any such involve-
ment. That evening Shoemake called the Union's lawyer seeking
advice on whether he should take the test, and the next day both
men refused to take the test, each stating that he would not take the
test unless the other did. At this point the Respondent discharged
both Shoemake and Suddeth.
Even though he would find the employees innocent of timecard
cheating, on the evidence presented, the Trial Examiner was of the
opinion that the Respondent had "reasonable grounds to believe
that [they] were involved" and under such circumstances he viewed
the refusals to take the polygraph test as "just cause" for their ter-
mination.7 We find on the evidence herein that Shoemake and Sud-
6 See L E. Farrell Company, Inc., 153 NLRB 40, enfd . 360 P .2d 205 (C.A 2).
7 The Charging Party asserts that the concerted refusal by Suddeth and Shoemake to
take a polygraph examination was for their mutual aid and protection and was itself a
protected activity as a protest against an offensive term or condition of employment and
discharge therefor was a violation of Section 8(a) (1) of the Act . In view of our
determination herein , it is unnecessary to reach this question.
CY
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deth were discharged, not for their refusal to take the test but
because they. were the most active union supporters-a fact well,
known to the Respondent.
The Respondent's treatment of the unsigned timecard situation,
discloses a departure from past company practice. The record
reveals that it is not unusual to have two or more timecards that are,
exactly alike. Further, under normal circumstances when an un-,
signed timecard is discovered, the Respondent goes to the foreman
involved in order to determine which employee failed to sign the
card. However, Holliday did not deal with the unsigned timecards
in the usual manner, but immediately went through all of the time-
cards to find a match, instead of taking the card to the foreman. A
review of Lane's limited investigation also reveals a marked depar-
ture from the Respondent's normal method of investigating suspected
breaches of company rules. Furthermore, Lane relied solely on,
Buck's report of the alleged telephone conversation between Suddeth
and Shoemake and did not attempt to investigate its reliability by
questioning the crew's foreman or the guard, as he would have done
in the course of a normal investigation. The Respondent under nor-
mal circumstances, as is evidenced by the Mabry incident, would
follow company policy and attempt to resolve such a matter by sub-
jecting all affected employees in the department to polygraph exami-
nations. However, in the instant case, Lane, even though he was
informed by Buck that many employees were involved in the time-
card cheating, selected only Shoemake and Suddeth for polygraph
examination.
The discriminatory motive for the foregoing disparate treatment
of Shoemake and Suddeth is underscored by other conduct of the
Respondent directed toward these two known active union adher-
ents including repeated threats to discharge them for their union
activity 8 and the refusal to grant Shoemake a recommended merit
increase and advising him and Suddeth that the raise was withhel&
because he had engaged in union activity. Any significance their
resistance to the administration of the polygraph test may have had
in these circumstances is undermined by the fact that, as demon-
strated in the example of Mabry discussed supra, successful comple-
tion was no guarantee of exoneration nor presumably would it pre-
vent their discharge for engaging in union activities.
The circumstances herein convince us that Respondent's motive for
investigating the timecard incident was to uncover some reason
which on its face would appear to be at least a tenable cause for
ridding itself of the two most active union supporters., When Sud-
8We 'find, in agreement with the Trial Examiner , that Foreman Imback and Dufy's.
threats to Shoemake, on October 21 and November 30, 1964, were violative of Section.
8(a) (1) of the Act.
SOUTHWIRE COMPANY 399
deth and Shoemake fortuitously resisted the test, the Respondent
seized upon their refusal as a "reason" for their discharge. In view
of the foregoing, and Respondent's well known union animus, which
in the past has led to at least 10 discharges found to be in violation
of Section 8(a) (3) as well as other unfair labor practices, we find
that Shoemake and Suddeth were discharged because of their union
activities and not for the reason given by the Respondent, and, there-
fore, Respondent violated Section 8(a) (3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has discriminated against
employees Timothy Mabry, C. C. Shoemake, and Paden Suddeth by
discharging them in violation of Section 8(a) (3) of the Act, we
shall order the Respondent to offer the above-named employees
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and to make them whole for any loss of pay
they may have suffered as a result 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
to the date of reinstatement, less any net earnings during such period,
in accordance with the formula prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289, together with interest on that sum, such inter-
est to be computed in accordance with the, formula prescribed in Isis'
Plumbing eQ Heating Co., 138 NLRB .716.
ADDITIONAL CONCLUSIONS OP LAW
6. By discharging employees Timothy, Mabry, C. C. Shoemake,
and Paden Suddeth for discriminatory reasons, the Respondent has
engaged in unfair labor practices in violation, of Section 8 (a) (3),
of the Act.
ORDER
-Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Southwire Company, Carrollton, Georgia, its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discharging employees or discriminating in regard to their
hire, tenure of employment, or any term or condition of employ-
ment, because they have engaged in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
(b) Discouraging membership of its employees- in' the Interna-
tional Union of Electrical, Radio and Machine Workers,. AFL-CIO,
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other labor organization, by threatening its employees with
discharge if they joined or engaged in activities on behalf of the
said Union or any other union.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and 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, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Timothy Mabry, C. C. Shoemake, and Paden Sud-
deth immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority and
other rights and privileges previously enjoyed.
(b) Make Timothy Mabry, C. C. Shoemake, and Paden Suddeth
whole for any loss of pay they may have suffered by reason of the
discrimination against them, in the manner and in accordance with
the methods referred to in the section above in this Decision entitled
"The Remedy."
(c) Notify the above-named employees, if presently serving in
the Armed Forces of the United States, of their right to full rein-
statement 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.
(d) 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 under the terms of this Order. -
(e) Post at its plant in Carrollton, Georgia, copies of the attached
notice marked "Appendix." 9 Copies of said notice, to be furnished
by the Regional Director for Region 10, shall, after being duly
signed by the Company's representative, be posted by the Company
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. Reason-
able steps shall be taken by the Company 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 10 days from the date of this Order, what steps have been
taken to comply herewith.
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be sustituted for the words "a Decision and Order" the words "a Decree of the
United States Court of Appeals Enforcing an Order."
SOUTHWIRE- COMPANY 401
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 discharge any of our employees or discriminate
in regard to their hire, tenure of employment, or any term or
condition of employment because they have engaged in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL NOT discourage membership in the International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
or any other labor organization, by threatening our employees
with discharge if they join or engage in activities in behalf of
said Union or any other union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own free choice, and to engage in, or to
refrain from engaging in, any or all of the activities specified in
Section 7 of the Act.
WE WILL offer Timothy Mabry, C. C. Shoemake, and Paden
Suddeth immediate and full reinstatement to their former or
substantially equivalent positions without •prejudice to their
seniority or other rights and privileges previously enjoyed.
WE WILL make Timothy Mabry, C. C. Shoemake, and Paden
Suddeth whole for any loss of pay they may have suffered by
reason of the discrimination against them.
SOUTHWIRE COMPANY,
Employer.
Dated-----------=---- By-------------------------------------
(Representative ) ( Title)
NoTE.-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.
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.
243-084-67-vol. 159-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional
Office, 528 Peachtree-Seventh Building, 50 Seventh Street NW.,
Atlanta, Georgia 30323, Telephone 526-5741, if they have any ques-
tion concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in this proceeding are whether the Respondent Southwire Company
has engaged in certain unfair labor practices, more specifically set forth below, in
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended.
The case was heard before Trial Examiner Maurice S. Bush, on July 27 and 28,
1965, at Carrollton, Georgia. Briefs were filed by the General Counsel and the
Respondent after the hearing. These have been carefully reviewed and considered.
The complaint herein was issued on May 28, 1965, pursuant to a charge filed by
the Union on February 24, 1965. The answer, as amended, places in issue only
the unfair labor practices-charged by the complaint.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Southwire Company, a Georgia corporation, is engaged in the manufacture, sale,
and distribution of wire cable and related products at its plant at Carrollton, Geor-
gia, which is also its principal office and place of business. In the normal conduct
of its business the Respondent sells and ships products valued in excess of $50,000
from its plant in Carrollton directly to points outside the State of Georgia. It is
found that the Respondent is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION
The International Union of Electrical, Radio and Machine Workers, AFL-CIO,
herein called the Union , is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The issues in the case are as follows:
1. Whether the exhibition of a movie entitled "And Women Must Weep!" to new
employees constitutes a violation of Section 8(a)(1) of the Act?
2. Whether Respondent in violation of Section 8(a) ((1) threatened employees
with discharge for engaging in union activities through certain named supervisors?
3. Whether Respondent in violation of Section 8(a)(3) discharged employees
C.. C. Shoemake and Paden Suddeth for engaging in union activities.
4. Whether Respondent in violation of Section 8(a)(3) refused to grant a wage
increase to the said C. C. Shoemake some six months before his discharge because
of his union activities?
5. Whether. Respondent in violation of Section 8(a)(3) discharged employee Tim-
othy Mabry for engaging in union activities?
B. General background facts
The Company, in business since about 1950, employs approximately 900 employ-
ees at its plant in Carrollton, a town of about 11,000 people. Pursuant to motion
made at the hearing by General Counsel, official notice I is taken of, prior proceed-
1 Southwire Company, 133 NLRB 83 ; 145 NLRB 1329 , enforced for the most part, 352
F.2d 346 (C.A.,5) ; and Intermediate Report dated September 15, 1965, in Case 10-CA-
4546 by Trial Examiner Leo Lightner to which no exceptions were taken.
SOUTHWIRE COMPANY 403
ings before the Board involving the same Respondent. These show, as does the
present proceeding, the Company's open and intractable opposition over the years to
any unionization of its plant.2 In the prior proceedings, it was found that Respond-
ent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3).
The present and past proceedings show that the Company for many years has had a
vigorously enforced "no solicitation" rule aimed primarily at preventing any union
solicitation during working hours. Attempts over the years by unions to organize
Respondent's plant have been unsuccessful.
C. Issue as to whether movie shown to new employees encroached on
employee rights
The complaint alleges that the Respondent since August 26, .1964 has shown to
all newly hired employees at its plant a motion picture film entitled "And Women
Must Weep!" The complaint further alleges and charges that the Company through
the film "threatened its employees' physical and economic security if the Union
were successful in its organizational campaign ," in violation of Section 8(a)(1) of
the Act.
The facts with respect to the showing of the movie are not in dispute. The
evidence shows that the film has been shown by the Company to all of its new
employees over the past three years as part of their "orientation" on their new jobs.
The script of the movie (General Counsel's Exhibit 6); bears the descriptive
heading:
KANSANS FOR THE RIGHT TO WORK
Presents
-AND WOMEN MUST WEEP!
Produced by
CENTRON CORPORATION
A KANSAS CORPORATION
The movie was shown at the hearing. The record contains a verbal description
of the unfolding scenes depicted on the film as related by me during the showing of
the film and accepted by counsel.
The Board has heretofore considered a film of the same title in two representa-
tion cases. Plochman and Harrison -Cherry Lane Foods, Inc., 140 NLRB 130, and
Carl T. Mason Co., Inc., 142 NLRB 480. The film in these two cases were exhib-
ited by the employers to their respective employees prior to representation elections.
The Board in each case held in effect that the film contained misrepresentations of
such prejudicial nature as to vitiate the elections and accordingly ordered new
elections . The same film was also considered by Trial Examiner Thomas S. Wilson
in Bannon Mills, Inc., 146 NLRB 611, on the issue of whether the showing of the
film because of its contents constituted a violation of Section 8(a)(1); that section
of the Act was not involved in the aforementioned Plochman and Mason represen-
tation cases. On appeal the Board in the Bannon Mills case disposed of the mat-
ter without decision on Section 8(a)(1) issue as it deemed it ". . unnecessary to
decide whether the showing of the film was violative of the Act."
Based on appropriate comparisons, I find and conclude that the film here involved
entitled "And Women Must Weep!" is identical with the film of the same title
involved in the Plochman, Mason, and Bannon Mills cases.
The issue in the case with respect to the film is whether the showing of the
movie to new employees as part of their orientation in their new jobs with the
Company constitutes a coercive threat to employees from engaging in protected
activities under Section 7.
The General Counsel contends "that the repeated showing of this film to new
employees conveys to such employees the impression that organization of the
Respondent's plant by a union would seriously threaten not only their economic
9 An example of such company opposition to unionization is reflected in printed matter
distributed to its employees reading as follows "We are convinced that wherever there are
unions there is trouble , strife and discord and that a union would not work to our em-
ployees' benefit but to their serious harm In view of this , it is our positive intention to
oppose unionism by every proper means." See opinion of the Court of Appeals for the
Fifth Circuit , supra, following appeal from Board decision in Southwtre Company, 145
NLRB 1329 , in which right of Company to disseminate the quoted statement to its em-
ployees is upheld under the so-called "free speech" provision of Section 8(c) of the Act.
404- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security but their physical security as well." As authority for his position, General
Counsel relies on the Board's finding in the Plochman and Mason cases for the
probable effect of the film on employees.
The Respondent, on the other hand, contends "that the movie is only informa-
tional, reflecting the employer's views on right to work laws, and that any refer-
ences to violence can only be construed as a mere prediction of adverse conse-
quences which often result from union activity within a company operating under
a union shop contract." [Emphasis supplied.] From the premise that the movie
is merely informational, Respondent argues that its right to disseminate such infor-
mation in visual form is protected by the "free speech" provision's of Section 8(c)
of the Act and cites numerous cases dealing with the rights of employers to engage
in "free speech" in expressing antiunion views to their employees, subject only to
the statutory limitation in Section 8(c) that "such expression contains no threat of
.reprisal or force or promise of benefits."
As heretofore indicated, the nub of the question is whether the movie contains,
directly or by implication, a "threat of reprisal" to employees for engaging in union
activities, contrary to the guarantees of Section 7 and in violation of Section 8 (a) (1)
of the Act.
For a description of the nature and contents of the movie and its emotional effect
on the viewer, I adopt the findings of Chairman McCulloch in his concurring
opinion in the Mason case, supra, which in part reads as follows:
The film is not a documentary. It is a staged production based on a contrived
script, played by professional actors, including an actress who impersonates a
minister's wife, the narrator. The film tells the story of property destruction,
violence, and the near murder of a child allegedly committed by a union dur-
ing the course of a strike ostensibly called for no justifiable reason. It is
organized with sequences skillfully put together so as to achieve the maximum
dramatic and emotional impact. The professional acting is smooth and
extremely lifelike. In fact, the entire production is so well conceived that the
ordinary viewer is likely to consider that it represents the literal truth. -
I have no doubts that among audiences of working men and women, as well as
others, "And Women Must Weep" is emotionally overpowering. It pictures a
'labor dispute as one in which Americanism, religion, family, motherhood, and
innocent childhood are arrayed on one side, and goons, brutes, and murderers
on the other or prounion side -
Discussion and Conclusions
As heretofore noted, the movie is shown by the Company to new employees as
-part of their orientation on their new jobs. The employees are essentially captive
-audiences. As part of their orientation they are also informed that the Company
allows no union solicitations during working hours. From the fact that Respond-
ent's plant is located in a town with a population of only 11,000, it is inferred and
found that most new employees would have advance knowledge of the Company's
,strong opposition to the unionization of its employees and of its successful efforts
to keep unions out of its plant, and of the numerous employees who had been
discharged for proven or suspected union activities.
Under these circumstances, I find and conclude that the showing of the movie
here under consideration to new employees has the affect of restraining and coerc-
ing such employees in the exercise of their rights under Section 7 in violation of
Section 8(a)(1) and that the film, being coercive under such circumstances, is not
protected by the "free speech" provisions of Section 8(c) of the Act.
D. Issues as to whether supervisors threatened discharge of certain employees
and as to whether these same employees were later discriminately discharged
The complaint alleges that the Respondent in violation of Section 8(a)(1)
,threatened unnamed employees with discharge through named supervisors the latter
part of 1964 if they joined or engaged in activities on behalf of the Union. The
8I have viewed the film , and personally attest to the powerful emotionally prejudicial
impact of the film.
SOUTHWIRE COMPANY 405
complaint further alleges that the Respondent in violation of Section 8(a)(3)
discharged two employees, C. C. Shoemake and Paden Suddeth, on February 11,
1965, for engaging in union activities.
The two charges will be considered together as much of the evidence relating to
each is common to both.
C. C. Shoemake was hired as a construction electrician by the Company, in
September of 1962. Paden Suddeth was similarly employed by the Company as a
construction electrician on July 14, 1964. The two electricians, who became
friends, worked under the immediate supervision of Foreman Charles Imbach.
Both were discharged by the Company's Vice President Frank Holliday on Feb-
ruary 11, 1965, under the circumstances set forth below. Vice President Holliday,
who has been with the Company since 1952, is in charge of planning and engineer-
ing for the Company.
Upon his employment Suddeth was required to sign an agreement to take a
polygraph examination, the pertinency of which will appear below, whenever
required by the Company. Before undertaking his duties as a construction elec-
trician, Suddeth was given a briefing or orientation on company policies by B.
Cowan of the Company's personnel department. As part of his orientation, he
was shown the aforementioned movie "And Women Must Weep!" He was also
given a booklet of company rules and Cowan specifically called his attention to
one of these rules which reads: "No person will be allowed to solicit or carry on
union organizing activities on the job. Anybody who does so and who thereby
neglects his own work or interferes with work of others will be subject to dis-
charge." In addition Cowan orally warned Suddeth that the Company "frowned
on the Union and not to have anything to do with any Union activity whatsoever"-
and that he would be fired if he became a member of the Union. Suddeth was
also notified that the Company regarded timecard irregularities as a matter of
gravity and ground for discharge.
Notwithstanding these warnings against union participation, the record shows that
Suddeth some three weeks after commencing work with Respondent in July 1964,
became actively involved in efforts to organize the plant in behalf of the Union.
Toward the end of August, Suddeth informed Foreman Imbach while they were
both working high on a scaffold that he believed that the Company needed a union
and that he was for the Union. Imbach warned Suddeth not to engage in such
remarks as the Company "would run him out the gate," if they became known.
Suddeth also expressed his strong prounion views and sympathies to another
Southwnre employee, Grady A. Dickson, of the Company's shipping department.
Although they worked for entirely different departments, the two men became
acquainted through their wives and frequently visited each other's home. At Sud-
deth's last visit to the Dickson home in 1964 around Christmas time, Suddeth
expressed to Dickson hostile feelings about Southwire 's wage scale , expressed a
strong interest in the Union, and told Dickson that he had been engaged in solicit-
ing union cards from employees at the plant. Dickson, having heard that Suddeth
was being considered by the Company as "supervisory material," deemed it his
duty to fully report Suddeth's prounion sentiments and activities the next day to
the Company's personnel director, Marvin Martin, as is revealed by Dickson's
affidavit of record herein.
Shoemake was even more outspoken about his prounion sympathies than Sud-
deth. Although both Shoemake and Suddeth worked under Foreman Imbach,
Shoemake was more intimately acquainted with Imbach than Suddeth. They lived
next door to each other, frequently visited each other's home, and considered them-
selves friends. Shoemake's uncontradicted testimony shows that he conveyed his
strong union views and sympathies to Foreman Imbach as early as the Union's
1962 organizational drive and frequently since then. Just prior to a union elec-
tion in 1963 which the Union lost, Imbach warned shoemake to "lay off" the Union
and advised him that the time to join a Union was after it had gained recognition
and not before. On October 21, 1964, Imbach phoned Shoemake to warn him
to remove a union sticker he had on the automobile he drove to work as this
would cause him trouble with the Company; Shoemake readily complied. On
November 30, 1964, Shoemake was sharply reprimanded by Company Vice Presi-
dent Sherman for failure to wear a safety belt while working aloft. Following
this reprimand, Shoemake sought out Foreman Imbach to tell him in the presence
of several of his coworkers that he wanted him (Imbach) to know that he was a
member of the Union's organizational committee. Imbach requested Shoemake not
to do any unionizing on the job.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the evening of the same day, November 30, Shoemake received a personal
visit at his residence from Charles Duffy, a foreman in another department at
Southwire and personal friend, who stopped his car long enough to say to Shoe-
make who was on his lawn "I don't know how far you have gone with the union
business, but you had better get out of it." Shoemake, who gained the impres-
sion that Duffy had been asked by the Company to make this warning, replied
that he "was in and I was going to stay in."
The record shows that the Union again started organizing the Company in the
early fall of 1964 and that both Shoemake and Suddeth served on the Union's
organizational committee. Meetings of the committee, attended by Shoemake and
Suddeth among others, were held at shoemake's home in the months of October,
November, and December 1964, but efforts were made to keep the meetings secret
from the Company. Both Suddeth and Shoemake were actively engaged in solicit-
ing union cards from employees in the plant. Suddeth personally obtained 20 such
cards by the time he was discharged. From the above findings and the entire
record, it is found and concluded that the union sympathies and activities of both
Suddeth and Shoemake were known to or suspected by responsible company offi-
cials for many weeks prior to their discharge on February 11, 1965.
The Company's defense and stated reason for discharging Suddeth and Shoe-
make was their refusal to take polygraph examinations demanded by the Company
in connection with suspected timecard irregularities. As heretofore shown, Suddeth
upon entering the Company's employment had signed a written agreement 4 to take
such examinations at any time required by the Company. Shoemake, on the other
hand, had not signed a polygraph agreement because the Company was not requir-
ing this at the time he was hired.
The Company's premises is fronted by a guardhouse through which all employees
must pass before entering the plant. The plant is equipped with eight or nine time-
clocks placed at various locations. All employees are required to punch a timecard
just prior to beginning their shifts and at the end of the workday when they are also
required to sign the card and leave it on a rack adjacent to the timeclock for even-
tual processing for payment.• Employees who are late are required to sign a late
arrival roster in the guardhouse before they punch in. From the testimony of wit-
nesses for both General Counsel and Respondent, it is established that is is occa-
sionally possible for a late arrival to get through the guardhouse without signing the
late arrival roster.
The timeclock which Suddeth and Shoemake punched was assigned to a total of
some 60 to 70 employees working the day shift.
About 4 days before Suddeth and Shoemake were discharged, a foreman, whose
responsibility it was to pick up completed timecards at the end of a shift, called the
attention to Vice President Holliday to a timecard which showed a reporting and
quitting time but no signature. The card aroused Holliday's suspicion that some-
one had punched the unsigned timecard for an employee-friend who might be com-
ing late or was planning to leave early. Respondent watches timecard cheating very
closely because it could lead to serious hidden losses.
Holliday made a careful comparison of the unsigned card with the 60 to 70
signed timecards for the same shift and discovered that the only signed card it
matched for both check-in and check-out time was that of Shoemake's. Although
the record is clear that several employees could have identical check-in or check-out
times on their timecards inasmuch as the timeclocks operate on time segments of
one-hundredth of an hour, it is the Company's experience that it is highly improb-
able for any two timecards in a single work shift to coincide precisely for both
check-in and check-out times. This led Holliday to believe that there was a pos-
sibility that Shoemake on the day in question had punched two cards in immediate
succession both at check-in and check-out time and had signed one, but had inad-
vertently left the unsigned card on the rack as well as the signed card.
Vice President Holliday took up the matter of the unsigned card and the matching
Shoemake timecard with the Company's assistant personnel director, Henry G. Lane.
Lane thereupon sought out another company electrician, Monty Buck, who was
indebted to Lane for a favor, to inquire if he knew anything about timecard irregu-
larities in the electrical crew. Lane's testimony, which I credit, shows that Buck
informed him that he had heard Suddeth telephone Shoemake from the plant one
morning and had overheard Suddeth tell Shoemake: "Look, if you can get by the
AA copy of the polygraph agreement signed by Suddeth is shown in Appendix A.
SOUTHWIRE COMPANY 407
guard at the gate, don't worry about punching, I'll have a timecard waiting on you,
give you full time."
By a coincidence, Lane had just prior to this time conducted an inquiry into
Suddeth's background in connection with a promotion Suddeth was seeking to a
supervisory position. To his surprise, the investigation disclosed that Suddeth, the
electrician, had been employed as a truckdriver for a retail furniture store in his last
prior employment and that his former employer had found Suddeth to be an unsatis-
factory worker in that he drank beer on the job, had wrecked a delivery truck, and
had been locked up. He also received information that Suddeth at one time had
been picked up in a nearby county for burglary, but that the charge was eventually
dropped. Lane had this information on Suddeth's background, whether true or not,
when Vice President Holliday came to see him about the unsigned timecard and the
matching Shoemake timecard.
With the receipt of the new information from electrician Buck of also the possible
involvement of Suddeth in timecard cheating, Holliday and Lane on February 10,
1965, called Suddeth and Shoemake in, informed them of the information they
had, inquired as to whether they had participated in any timecard irregularities, and
asked them to submit themselves to a polygraph examination or lie detector test "to
clear" them of any possible implication.
Both men denied any involvement in dishonest timecard practices and indignantly
refused to take the lie detector test. Holliday pleaded with the men to take the
test, and especially pleaded with Suddeth, because of the friendship that existed
between the two men, to take the examination, saying "You know me," to give
added weight to his assurances that his job was secure, if the test cleared him.
Suddeth responded: "If my word don't mean any more than that, I will turn in my
tools." Holliday's spontaneous and instantaneous response to this was: "No, I don't
want you to quit; I want you to take the test." 5
The conferences of February 10, 1965, ended with an agreement by Shoemake and
Suddeth, despite their earlier demurrers, to take the lie detector test the next day.
The next morning, however, the two employees, upon being called in separately to
take the test on plant premises from an outside polygraph operator under contract
with Respondent, refused to submit to the examination. Shoemake refused upon the
advice of an attorney for the Union and on principle and Suddeth declined to take
the test unless Shoemake did. After the lapse of a considerable period of time in
interoffice consultation, Holliday notified Shoemake and Suddeth that they were
being terminated because of their refusal to take the polygraph examination. Their
termination became effective that day, February 11, 1965. Holliday, however, even
after he notified the men of their termination, gave them the opportunity to take
the test and be reinstated if the tests cleared them.
The record shows that Shoemake was almost discharged two years earlier. In
October 1963, Shoemake was notified of his discharge by the Company's aforemen-
tioned Personnel Director Marvin Martin, because of a garnishment against his
wages, as the Company had a rule, then unknown to Shoemake, that a garnishment
was a cause for discharge. At that time Shoemake was engaged in union activities
which were scheduled to culminate in an election within a fortnight. The person-
nel director, however, revoked the discharge before it became effective. Under the
insufficient facts of record herein on the surrounding circumstances of this near dis-
charge, I expressly refrain from drawing any inferences therefrom either in favor of
Respondent or Shoemake, as it is possible that the Company really intended to dis-
charge Shoemake for his then well known union sympathies and activities, but
changed its mind as the discharge could have resulted in unfair labor charges in
connection with the forthcoming election.
Discussion and Conclusions
The first of the two issues here under consideration is whether the Respondent in
violation of Section 8(a)(1) through its aforementioned supervisors, Charles M.
Duffy and Charles Imbach, threatened, and alleged in the complaint, "its employees
g The above findings on the verbal exchanges between Holliday and Suddeth are based
on testimony reluctantly given by Shoemake on cross-examination by Respondent's counsel
on the basis of statements made by Shoemake in prior affidavits to the Board and a union
lawyer. These affidavits, although used in the examination of witnesses, were not offered
in evidence.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in or about the vicinity of its plant that it would discharge its employees if they
joined or engaged in activities on behalf of the union." The evidence of record
relates -these alleged threats only to employees Suddeth and Shoemake.
Section 10(b) of the Act bars the issuance of a complaint based upon unfair labor
practices "occurring more than six months prior to the filing of the charge with the
Board and the service of 'a copy thereof upon the person against whom such charge
is made . . ." The charge on which the allegations of the complaint here under
consideration was issued was filed on February 24 and served on February 25, 1965.
Most of the evidence submitted by General Counsel, although proper as background
material, related to events occurring more than six months prior to the filing of the
charge herein.
The record, however, does disclose two instances of implied threats by Foremen
Imbach and Duffy to Shoemake of discharge for engaging in union activities which
fall well within the six months limitation provision of Section 10(b). The first of
these occurred on October 21, 1964, when Imbach phoned Shoemake to remove a
union sticker from his car which he parked on company premises . This implied a
threat of discharge for engaging in union activities, if Shoemake continued with such
activities. The second of these threats occurred on November 30, 1964, when Fore-
man Duffy made a personal call to Shoemake's residence and there while sitting in
his car warned Shoemake "I don't know how far you have gone with the Union
business, but you had better get out of it." This is also a clear threat of dismissal
if Shoemake did not stop his union activities. I deem it immaterial that the warning
came from his friend Duffy who supervised an entirely different group of employees
(construction workers) than the group (electricians) Shoemake worked in under the
foremanship of Imbach. Shoemake felt that the Company had sent his friend Duffy
to administer the warning, and this was not an unreasonable assumption in the light
of the Company's well known opposition to any unionization of its employees. The
Company did not call upon either Duffy or Imbach 6 to testify in its behalf and
.there is thus no denial that they made the threats here under discussion. Under all
the circumstances, these threats are imputed to the Respondent. The threats were
no less sinister because they came from supervisors whom Shoemake considered his
personal friends. As the two foremen are dependent upon the Company for their
livelihood, their first loyalty is to their employer.
I find and conclude that the Respondent has engaged in unfair labor practices in
violation of Section 8(a) (1) by reason of its threats of discharge through its afore-
mentioned supervisors to its former employee Shoemake for his union activities.
There were no such threats to Suddeth during the 10(b) period.
The second issue here under consideration is whether the Company discharged
Suddeth and Shoemake because of their union sympathies and activities in violation
of Section 8 (a) (3) of the Act.
The basic question under this issue is the determination of Respondent 's true moti-
vation in discharging the two men. General Counsel contends that Suddeth and
Shoemake were discharged because of their union activities. The Company, on the
other hand , contends that Shoemake "was discharged for cause because of his
refusal to take a polygraph test required by the Company in an investigation based
on their reasonable belief that Shoemake was involved in falsifying timecards at the
plant" and that Suddeth was also discharged for his refusal to take the lie detector
test in circumstances under which the "Company had reasonable grounds to believe
that Suddeth either was involved in timecard violations or had knowledge that such
violations were being perpetrated by employees within the electrical gang."
Two factors favor General Counsel's contention that Suddeth and Shoemake were
discharged because of their union activities. The first is that the record leaves no
doubt that the Company was well aware of the union sympathies and activities of
the two men. The second is that the Company has a reputation in Carrollton for
relentless opposition to any union participation by their employees which in a num-
ber of instances has exceeded the bounds of fair labor practices and in the past
resulted in orders by the Board to the Company to cease and desist from a number
of unfair labor practices, including the discharge of numerous employees for engag-
ing in protected union activities.
It is possible that the Company as the result of long experience has developed in
the case of employees Suddeth and Shoemake a highly refined and sophisticated
method for terminating employees for union activities without a seeming infraction
of Section 8(a)(3). But on the basis of the record made in this proceeding and
6 Foremen Imbach and Duffy were not called as witnesses by any of the parties.
SOUTHWIRE COMPANY 409
the impressions gained from the witnesses, I find and conclude that the Company
had just cause for terminating the services of the two men and that they were not
discharged because of their union activities. It should be noted at once, however,
that we are not here determining whether Suddeth and Shoemake are guilty of time-
card cheating. On the contrary, if that question were before me, I would find them
innocent on the basis of the present record. The issue here, however, is not whether
Suddeth and Shoemake are guilty or innocent of timecard cheating but whether the
Company had, as it contends, "reasonable grounds to believe that Shoemake and
Suddeth were involved" in such practices and whether the refusal of the two employ-
ees to take a lie detector test on their possible involvement in timecard irregularities
constitutes under the circumstances revealed by the record in this case the real rea-
son for their discharge, rather than a subterfuge for discharging them for union
activities.
It is at once apparent that employee falsification of timecards for the purpose of
causing an employer to pay wages for time not worked would be a matter of grave
concern for any employer . Undetected on a small scale it could lead to insidious
effects on a company's financial health, and on a large scale it could cause bank-
ruptcy. As a matter of self-preservation, it is within the right of any employer to
jealously guard against timecard cheating, to enforce strict rules with respect to time-
cards to prevent falsification, and to take vigorous action to protect its resources
whenever timecard cheating is suspected.
In the instant case the fact that the Company found an unsigned timecard that
exactly matched the signed timecard of Shoemake for reporting time and quitting
was not questioned by Shoemake or Suddeth. Although it is not unusual for two
or more timecards to show either similaneous punch-in and punch-out times, the
record- is clear that in the Company's experience it is most unusual for it to find
two matching cards among the 60 or more employees using the same timeclock,
which match each other precisely to the hundredth of an hour on the timeclock
with respect to both reporting time and quitting time. In view of this experience,
the finding of such an unsigned card which exactly matched Shoemake's fully
punched card aroused the Company's suspicions and gave it a reasonable ground for
believing that Shoemake was involved in timecard irregularities. This suspicion was
reinforced by information it had received from another electrician in Suddeth's and
Shoemake's crew that he had overheard Suddeth tell Shoemake over the telephone
"Look, if you can get by the guard at the gate, don't worry about punching, I'll
have a timecard waiting on you, give you full time." This new information in turn
also gave the Company reasonable grounds for believing that Suddeth was also
involved in timecard irregularities, a suspicion which was enhanced by unfavorable
information it had uncovered about Suddeth's background as shown above in a rou-
tine prior investigation in connection wtih consideration being given Suddeth for
advancement to a supervisory position.
Notwithstanding the above information, the Company did not arbitrarily then and
there discharge Suddeth and Shoemake, but instead gave them the opportunity "to
clear" themselves by taking the lie detector test. It is not here our purpose to dis-
cuss the fallibility or infallibility of the polygraph examination or the ethics of sub-
jecting employees to tests of such controversial accuracy. Although the results of
such tests are not admissible in evidence in judicial proceedings, the test appears to
be widely used in industry and my attention has not been directed to any authority
under the Act which bars an employer from requiring an employees to take such an
examination or be fired for refusal where such action is not used as a cover for a
discriminatory discharge. The right of an employer to discharge an employee for
any reason except protected union activities under the Act is too well established to
require citation.
On the issue of the motivation for the discharge, the Respondent not only
had reasonable grounds for suspecting Suddeth and Shoemake of complicity
in timecard irregularities, but the Company's conduct leading up to and subse-
quent to the actual discharges corroborates the conclusion that the two employees
were discharged solely for failure to cooperate with the Company in what it
deemed a reasonable method for ascertaining the truth or falsity of their sus-
picion that Suddeth and Shoemake were involved in timecard cheating. There
is no evidence that the Company peremptorily ordered the two employees to either
take the polygraph examination or be fired. On the contrary, the record shows
that Vice President Holliday personally pleaded with the men to take the test
"to clear" themselves. The sincerity of these pleas as recited by Shoemake in
pretrial affidavits came through Shoemake's reluctant testimony thereon at the
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present proceeding. The record even shows that Holliday especially pleaded with
Suddeth because of the friendship between the two men to take the test and
"clear himself, giving him the assurance of his personal word that he would not
be fired if he passed the test. Even after the discharge Holliday gave the two
employees the chance to" take the test and be retained if the tests were negative.?
Shoemake and Suddeth nevertheless declined to take the test. Their refusal to
take the lie detector examination was their voluntary decision and inasmuch as
they were discharged for refusal to take the test, the cause for their discharge was
solely within their control. This is not, however, to be interpreted as a criticism
of the two employees for their refusal to take the test. Suddeth and Shoemake
were essentially on the horns of a dilemma. Although they asserted innocence
and there is no legal proof that they were not innocent, if the tests, conceded by
many to be unreliable, showed them guilty, their employment record could be
besmirched for all time. If they failed to take the test, they could be fired. They
chose, as many honorable and intelligent employees would, the latter.
In summary, I find that General Counsel has not sustained the burden of proof
to show that Suddeth and Shoemake were discriminately discharged in violation
of Section 8(a)(3) and (1) of the Act.
E. Issue as to whether Respondent discriminatorily refused to grant a
wage increase to Shoemake
The complaint alleges and the answer denies that Respondent discriminatorily
"on or about October 4, 1964, failed and refused to grant a wage increase to its
employee C. C. Shoemake, "who is the same Shoemake heretofore referred to
under other issues of the case.
The Company has a system of periodic merit wage increases. The record
shows that Shoemake received successive periodic merit wage raises throughout
the more than two-year period he worked for the Company, except for the
10-cents-per-hour increase recommended for him by his immediate superior, the
aforementioned Foreman Imbach, in July 1964, which if granted would have
become effective on or about August 21, 1964. This effective date for the merit
increase Shoemake might have received if the Company had approved Imbach's
recommendation therefor was supplied for the record by Respondent 's counsel at
the request of General Counsel and made the subject of a stipulation by General
Counsel. The stipulation was entered into by General Counsel with full aware-
ness that the stipulation could result in a barring of the charge here under con-
sideration under the 6-month limitation provision of Section 10(b) of the Act.
This would arise from the fact the charge here under consideration under which
the complaint was issued was filed on February 24 and served on February 25,
1965, whereas the merit raise was due on or about August 21, 1964.
General Counsel in his brief concedes that "the merit increases came out a very
short time prior to the beginning of the 10(b) period in this case" but argues that
I "may conclude from the testimony of Shoemake and Suddeth that the state-
ments of [Foreman] Imbach to them concerning Respondent's basis for not giving
Shoemake a wage increase were made within the 10(b) period." Without deciding
whether these statements, hereinafter described, are legally sufficient in themselves
to sustain the discrimination charge here under consideration, I find that the
statements in question were made by Foreman Imbach to Shoemake and Suddeth
within a day or two of August 21, 1964, and are therefore, like the Company's
failure as of on or about August 21, 1964, to grant Shoemake a merit wage
increase, also not timely under Section 10(b).
The above-mentioned statements by Foreman Imbach to Shoemake and Suddeth
are as follows. Taking up first the statement by Imbach to Shoemake, Shoemake's
testimony shows that he had been informed by Imbach that Vice President Sherman
had informed Imbach that he was disapproving the recommended August merit
raise for Shoemake because Shoemake "was mixed up in the Union." Shoemake's
testimony as to when Imbach had relayed this statement by Sherman to him is
conflicting. At one place in his testimony he said Imbiach gave him this informa-
tion in October or November 1964 whereas later in his testimony Shoemake said
he received this information from Imbach within a day or two of August 21. As
7 The testimony of Holliday, on the one hand, and Suddeth and Shoemake, on the other,
show without any conflict that Holliday pleaded with Suddeth and Shoemake to take the
lie detector test.
SOUTHWIRE COMPANY 411
it seems logical to believe that Shoemake would have asked about his failure to
receive the merit raise on or close to the day it was due , I accept Shoemake's last
testimony that he received the information from Imbach as to why Sherman had
said he was disapproving his wage increase within a day or two of August 21, 1964.
Referring now to the statement made by Foreman Imbach to Suddeth on the
subject of merit raises, the record shows that Imbach informed Suddeth that man-
agement had indicated that it had disapproved his (Imbach's) recommended wage
increase for Shoemake because of Shoemake's "connection with the Union" or
suspicion of such a connection . Suddeth also was a little confused in his dates
as to when Imbach had relayed this information to him, but a careful reading of
his testimony leaves no doubt that the information was conveyed to him on or
about August 21 when the merit raises came out or within a day or two thereof,
as one would naturally expect, and I so find.
Respondent's cross-examination of both Shoemake and Suddeth brought out the
strong possibility that Shoemake was denied a merit wage increase in August
because of his failure to take expected safety precautions against falls when work-
ing at hazardous heights. However, Respondent did not press this defense by
calling company officials to testify thereon, preferring to rely on the time bar
of Section 10(b) to the charge here under consideration.
Although Shoemake was denied a merit increase in August, the record shows
that he was awarded a merit raise in the following December.
In summary , it is found and concluded that the Company 's refusal in August
1964, to give Shoemake his recommended pay raise is barred as a basis for a
Board order under the provisions of Section 8(a)(3) and ( 1), by reason of being
untimely under Section 10(b) of the Act. Similarly , it is found and concluded
that the statements made by Foreman Imbach to Shoemake and Suddeth "con-
cerning Respondent 's basis for not giving Shoemake a wage increase " are also
barred from relief because untimely under Section 10(b).
F. Issue as to whether Respondent discriminatorily discharged Timothy Mabry
The remaining issue is whether Respondent discriminatorily discharged an
employee by the name of Timothy Mabry on January 13, 1965, in violation of
Section 8(a)(3) of the Act. The Company's defense is that it terminated Mabry
because of stealing company property and falsification of his employment application.
Mabry, a young Negro in his early twenties, was hired by Respondent as a
"clean-up man" on November 7, 1963, and discharged on January 13, 1965. As
a clean-up man, Mabry's job was to pick up scraps and debris with the aid of
a lift truck throughout the plant. Because of the nature of his job, he was not
stationed at any particular section of the factory but had the run of the plant,
including the employees' locker room and the department where tools were kept.
During his tenure with the Company, he acquired the reputation of being 'a good
worker and of being a pleasant and cooperative employee.
Mabry did not testify. Counsel for General Counsel stated at the hearing that
he had mailed -a registered letter to Mabry at his home in Carrollton some two
weeks in advance of the hearing , notifying him of the hearing and requesting
that he come in for a prehearing discussion . Government counsel further reported
that Mabry failed to contact him and that he learned at the eve of the hearing
that Mabry was out of the State, working in Columbus, Ohio, although his wife
and children continued to reside in Carrollton.
Through the testimony of Robert Best, business agent for the Union, it is
established that Mabry was a member of the Union and actively functioning on a
union committee just prior to his discharge on January 13, 1965.
Mabry during his tenure at Respondent's plant worked under the immediate
supervision of Jerry M. Johnson, leadman in the Company's drawing and strand-
ing department. Johnson in turn worked under W. Carl Jones, shift superin-
tendent for the entire plant. Jones in turn worked under Joe Bass, general superin-
tendent of the entire plant. The shifts at the plant work on a rotation basis;
Mabry thus worked under the same supervisors at all times.
The undisputed evidence shows that about a month before Mebry was dis-
charged on January 13, 1965, General Superintendent Bass received information
from an unidentified source that Mebry had been seen soliciting is union card
from another employee during working hours contrary to company rules. The
record further shows that Bass had passed this information along to Shift Super-
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent Jones with instructions to keep "a better eye" on Mabry; and that Jones
in turn had relayed the information to Mabry's immediate superior , Johnson.
From these evidentiary facts, I find and conclude that at the time of Mabry's
discharge on January 13, 1965, and for some weeks prior thereto the Company
suspected Mabry of being actively engaged in union organizational work at the
plant.
Two plant incidents in which it was reported Mabry might be involved came to
the attention of Shift Superintendent Jones in the last quarter of 1964. In Novem-
ber 1964, Jones received a report that Mabry and another employee had been
seen rummaging through the lockers of other employees . Upon inquiry, Mabry
denied any part in the reported incident and Jones , having no reason to doubt
Mabry's word , dismissed the matter from his mind.
The other incident occurred about a month before Mabry's discharge of Janu-
ary 13, 1965 Jones on that occasion received a telephone call at his office from
a guard at the Company 's guardhouse , J C. Ackers, that he had witnessed that
morning a tall colored man running through the guardhouse Ackers reported
that the running man had his face covered with a ski mask , wore a black trench
coat, and that he had dropped a small tool upon entering the door of the guard-
house. None of the witnesses at the hearing were able to recall whether the
running man had retrieved the tool or abandoned it. This telephone call to Jones
from the guard was received in the presence of Johnson , Mabry's aforementioned
immediate superior . Johnson, from Acker's description of the running man,
thought he might have been Mabry. Mabry was known to have been seen wearing
such a ski mask around his face at the plant , sometimes startling those who saw
him. Jones never inquired of Mabry if he was the man who had been seen
running through the guardhouse and never reported the incident to any one else
in the Company . Johnson never found any shortage in tools charged to Mabry.
Jones in a pretrial affidavit in evidence herein states- "At no time did I have any
reason to doubt the integrity , honesty and loyalty of Mabry . .
Shortly before Mabry's discharge, the aforementioned Henry G. Lane, assistant
personnel director, was investigating the theft of a $100 rachet set that had
mysteriously disappeared almost immediately after its purchase. According to
Lane's testimony , a number of factors led him to put Mabry under suspicion for
the theft . He believed that Mabry would have a better opportunity than most
employees for theft of company tools as in his work he had the run of the plant,
including the tool department and employees' locker room where employees fre-
quently kept their tools upon completion of their shifts. He also recalled the
guardhouse incident involving a colored man with the ski mask running through
the guardhouse as had been casually mentioned to him by the guardhouse attend-
ant, the aforementioned J. C. Ackers, a few days after the event. He further
recalled that Mabry had been suspected of being involved in the reported locker
rummaging incident. For these reasons , Lane , as his testimony shows, concluded
that Mabry "has been stealing these darn tools ." He thereupon called Mabry into
his office, told him that he was suspected "of breaking company rules of a pretty
serious nature ," and suspended him pending an investigation , but gave Mabry no
indication of what misbehavior he was suspected of. Lane decided on an investi-
gation by a polygraph examination of Mabry.
Within a few days Mabry and other employees also suspected of stealing com-
pany property were subjected to polygraph examinations by an outside operator
under contract with the Company at which all company officials were excluded.
Although the polygraph operator did not testify herein , Lane's testimony shows
that the polygraph operator reported to him that the lie detector test had cleared
Mabry and the other suspected employees of stealing company property , but that
Mabry in a subsequent conversation with the operator had confessed to the
operator that he had on occasion stolen such small items from the Company as
a roll of tape and some knives and pliers . The operator also reported to Lane
that Mabry had told him that prior to coming to work for Southwire he (Mabry)
had been arrested for such offenses as gambling and wreckless driving and had
once been fined $140 for an unidentified offense.
After thinking about the matter over night, Lane 's testimony shows that he
decided to discharge Mabry, notwithstanding Mabry's good working record in the
past year and half and his good natured cooperation in taking the lie detector test,
because of his belief that "stealing is stealing" even though Mabry "stole little
things."
SOUTHWIRE COMPANY 413
At his termination the next morning Lane told Mabry that be was being fired for
stealing from the Company and for falsifying his employment application, but that
in the interest of not harming his future employment possibilities, the report of his
termination to State authorities would only show that he was terminated for falsify-
ing his employment application.
Mabry's preemployment application to the Respondent contains a question asking
if the- applicant had ever been "convicted of violating any law" to which Mabry
had replied "None." The application did not ask whether the applicant had ever
been arrested . Mabry's admission to the polygraph operator of arrests as distin-
guished from convictions would not reflect any falsification of the application, but
Mabry's admission of having been fined $140 for an unidentified offense (unidenti-
fied as far this record is concerned ) does indicate a conviction and Mabry 's answer
of the word "None" to the question of whether he had ever been convicted of any
violation of law was in this respect a falsification of his employment application.
The Company suffers an annual loss of about $50,000 by theft of tools and
supplies.
The record shows that the Company has from time to time discharged employees
for falsification of employment applications.
As heretofore noted, Mabry did not testify, presumably because he was working
out of State, and accordingly we do not have the benefit of his testimony on the
issue of whether he had been discriminatorily discharged.
Discussion and Conclusion
The central issue with reference to M'abry's discharge, as in the case of Suddeth
and Shoemake, is the Company's real motivation for firing an employee it regarded
as a good worker and a pleasant and cooperative employee.
The Company's stated reasons for Mabry's discharge, as noted above, was his
admission , after' being cleared by a lie detector test, that he had pilfered a few
small hand tools, and the falsification of his preemployment application by his fail-
ure to disclose therein a conviction for an unidentified violation of law for which
he had been fined.
The predischarge background shows, however, that the Assistant Personnel
Director was seeking to terminate Mabry, even before he made his confessions to
the polygraph operator, on thin suspicions of theft in the locker room and guard-
house incidents which Mabry 's own Shift Superintendent Jones, by reason of his
more immediate contact with and responsibility for Mabry, believed groundless, as
"at no time," in the more than the year that Mabry worked under him did he have
any reason to doubt the integrity, honesty and loyalty of Mabry."
In the light of'this predischarge background, the termination of Mabry for the
stated reasons of his petty pilfering and what appears as a harmless falsification of
his preemployment application (offenses which most employers would only repri7
mand in,these times of labor shortages ) is suspect ,as pretext for the firing of Mabry
for suspected union' activity.
The difficulty, however, 'with finding 'such-a' discriminatory motivation is that the
evidence is too scant and circumstantial to. support a, conclusion that Mabry's dis-
charge- was in any part due to his union activities.
There'are dnly two evidentiary facts which could be urged to support the con-
clusion that Mabry was discharged for union activity. The first is that the Company
had information which 'led it 'to believe that Mabry was active in behalf of the
Union in that it had an'unconfirmed report that he had been observed soliciting a
union card, from another employee during working hours. This caused the general
superintendent of the plant to alert the shift superintendent and Mabry's leadman to
keep "a better eye" on Mabry. But this fact in and of itself does not support an
inference that Mabry was fired because of suspected union activity. As shown
above, the Company for many 'years has had a rule prohibiting the solicitation of
union membership on company time which is well known to its employees and
strictly enforced by the Company. This rule is not challenged here, nor was it in
prior Board proceedings involving the Southwire Company. Mabry was observed
in what appeared to be an infraction of the Company's no-solicitation rule. Under
these circumstances, the Company had the right to take measures to assure itself
against the infraction of the rule by instructing Mabry's supervisors to keep an "eye"
on him. This is all the Respondent appears to have done in the case of Mabry,
and no inference can properly be drawn from the mere instruction to keep an eye
on Mabry that the Company intended to fire him for union activity unless such
inferences is supported by other facts or circumstances of record herein.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only other circumstance in the case which might support an inference that
Mabry was discharged for union activity is the Company's long and well known
antiunion position. But it is at one evident that the mere fact that an employer
opposes the unionization of his employees would not,,in and of itself support a
conclusion that a discharge by such an employer was discriminatory. There
must necessarily be additional evidence which however indirect shows that the
employer's discharge of an employee was motivated by the desire to be rid of the
employee because of his union sympathies or activities. There is no such evidence
in the instant case. Since neither the fact of the Company's instructions to
Mabry's supervisors to keep an eye on Mabry to prevent his • infraction of the
Company's no solicitation rule during working hours, nor the fact of Company's
antiunion -position, in and of themselves support a conclusion that Mabry was
discharged for union activities, these two facts in combination cannot support
such a conclusion, where as here the employee did not appear to deny the thefts
he was said to have confessed or otherwise explain the circumstances surround-
ing his discharge.
In the absence of testimony by Mabry who had, he appeared and testified
might have thrown an entirely different light on the record, I must conclude on
the present record that Mabry was discharged solely because of admitted pilfer-
ing and misstatement on his preemployment application. While Respondent's
judgment in discharging an employee for,such minor pilfering and inconsequential
application falsification seems questionable, the right of an employer to dismiss
an employee for any reason except protected union activity is, as heretofore
noted, absolute.
At the hearing Respondent moved for the dismissal of the portion of the com-
plaint charging the Respondent with the discriminatory discharge of Mabry' on
the ground of failure of proof. The motion, taken under advisement, is hereby
granted. •
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, found to be violative of the Act as set forth in
section III, above, occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and substantial relation 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
It having been found that the Respondent engaged in unfair labor practices
in violation of Section 8(a)(1), it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It will be recommended that Respondent forthwith cease and desist from
exhibiting to employees or prospective employees the picture film entitled "And
Women Must Weep!"
It will also be recommended that Respondent cease and desist from threaten-
ing its employees, directly or indirectly, with discharge if they join a union or
engage in union activities.
It will also be recommended , in view of the nature of the unfair labor prac-
tices the Respondent has engaged in, that it cease and desist from infringing in
any manner upon the rights guaranteed employees in Section 7 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. The Respondent , Southwire Company, is an employer engaged in com-
merce or in an industry affecting commerce , within the meaning of Section 2(6)
and (7) of the Act.
2. The International Union of Electrical Radio and Machine Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise
of rights guaranteed, them by Section 7 of the Act, to the extent found above,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
TRW SEMICONDUCTORS, INC. 415
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
5. Respondent has not discriminated with respect to the hire and tenure of
employment , and terms and conditions of employment , of C. C. Shoemake,
Paden Suddeth , and Timothy Mabry, within the meaning of Section 8(a)(3)
and (1 ) of the Act.
[Recommended Order omitted from publication.]
TRW Semiconductors , Inc., a Subsidiary of TRW, Inc. and Inter-
national Association of Machinists and Aerospace Workers,
AFL-CIO. Case 31-CA-27 (formerly 21-CA-6f25). June 15,
1966
DECISION AND ORDER
On January 24, 1966, Trial Examiner Maurice M. Miller issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found that the Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint. Thereafter, the Respondent filed exceptions to the
Trial Examiner's 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 [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision and the entire record in this case , including
Respondent 's exceptions and brief , and hereby adopts the findings,
conclusions , and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'The Respondent has requested oral argument . This request is hereby denied because
the record , the exceptions , and the brief adequately present the issues and the positions
of the parties.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
Upon a charge and amended charge filed October 9 , 1964, and November 18,
1964, respectively , and duly served thereafter , the General Counsel of the
National Labor Relations Board caused a Complaint and Notice of Hearing to
be issued and served upon TRW Semiconductors, Inc., a subsidiary of TRW,
Inc., which will be designated as Respondent in this Decision . The complaint
was issued June 7, 1965; therein , Respondent was charged with unfair labor
159 NLRB No. 43.