Telecom, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1966

157 N.L.R.B. 104 (N.L.R.B. 1966)

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Telecom , Inc. and International Union of Electrical , Radio and'
Machine Workers, AFL-CIO. Case No. 9-CA-3463. Febru-
ary 25, 1966
DECISION AND ORDER
On September 21, 1965, Trial Examiner James V. Constantine-
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. He also found that Respondent had not en-
gaged in certain other alleged unfair labor practices and recom-
mended dismissal of these allegations of the complaint. Thereafter,,
the Respondent filed exceptions to the Trial Examiner's Decision and
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 and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the additions and modifica-
tions noted herein.
1. The Trial Examiner found, and we agree, that Respondent dis-
charged employees Dorothy C. Mattingly and Lillian O'Daniel in
violation of Section 8(a) (3) and (1) of the Act.
2. The Trial Examiner further found, and we agree, that Respond-
ent discharged employees Mary Kaye Thomas and Mary Louise
Thomas, and failed to recall employee Patricia Evans, all in viola-
tion of Section 8(a) (3), (4), and (1) of the Act, and discharged
employee Mary Brady Roberts in violation of Section 8(a) (4) and
(1) of the Act.
3. The Trial Examiner found, and we agree, that Anna Marceline
Lee was lawfully laid off for lack of work on December 11, 1964.
However, we find merit in the Charging Party's exceptions to the
Trial Examiner's findings that Respondent's failure to recall Mrs.
Lee was not related to her union activity or because she testified in a
prior Board case involving the Respondent.
As set forth in the Trial Examiner's Decision, Lee had been work-
ing for Telecom for over 3 years when she was discriminatorily dis-
157 NLRB No. 8.
TELECOM, INC. 105
.charged on April 3, 1964.1 Pursuant to Board order, Lee was offered
reinstatement and resumed work on November 20, 1964. She con-
tinued working until the December 11, 1964, layoff. Upon her return
to work on November 20, her foreman, Edward Swencki, warned her
that "all eyes would be upon her." Although the Trial Examiner
failed to find in this statement a veiled threat, we find it not without
significance in view of the circumstances under which Respondent
reemployed her, and believe that it should not be overlooked in evalu-
ating Respondent's failure to recall her to work. The inference is
clear that by such warning the Respondent indicated its continued
resentment at the employees' earlier support of the Union by testify-
ing on its behalf and that Lee would be closely watched thereafter.
In the circumstances, in view of Respondent's earlier discriminatory
discharge, its continued opposition to the Union, its further-discrimi-
nation with respect to many of the same employees, whom it had pre-
.viously discriminatorily discharged, and its clear warning to Lee,
we find that the General Counsel established a prima facie case of dis-
criminatory motivation in the Respondent's failure to.recall Lee when
work became available. The existence of such motivation is confirmed
by the absence of an acceptable explanation for Respondent's failure
to recall Lee at that time. We find, therefore, in the .circumstances,
that Respondent violated Section 8(a) (3), (4),, and (1) of the Act.
4. The Trial Examiner also found that Mary Carolyn Mattingly
was discharged for poor production and that there was no proximate
connection between her discharge and her union activity or her testi-
fying at the first hearing. We find merit to the Charging Party's
exceptions to these findings.
Mattingly was first employed by Respondent on August 26, 1963,
and continued working until she was laid off on April 3, 1964. Mat-
tingly had testified in the earlier proceeding where, as indicated, the
Board found that the layoffs of April 3 were discriminatory and in
violation of Section 8(a) (3) of the Act, and ordered Mattingly and
other discriminatees reinstated. Mattingly returned to work on No-
vember 30, 1964, and continued working until January 8, 1965, when
she was again terminated, purportedly because of her low production.
At the time she was terminated in April 1964, Mattingly's job was
the assembly of Tele-Talk units under an assigned quota of 14 units.
Mattingly apparently was the only employee engaged in the assembly
of these units. She regularly made her quota of Tele-Talk units,
although as much could not be said of other jobs to which she was
assigned. Her failure in that regard was never, insofar as the record
i Telecom, Inc., 153 NLRB 880.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows, the subject of any complaint by the Respondent, nor is there
evidence that the Respondent ever warned her that she would be dis-
charged unless her work improved. When Mattingly was reinstated
to her former job in November 1964, her quota of Tele-Talk units con-
tinued at 14, and apparently Mattingly performed satisfactorily inso-
far as meeting her quota was concerned. About mid-December, the
Respondent inaugurated a "new" incentive plan whereby her quota
was raised to 19.2. As Mattingly was unable to produce more than
15 or 16 units, after about 2 weeks Respondent informed her that her
production was not up to quota and that she would have to improve.
Although the matter was mentioned to her again a week later, Re-
spondent did not intimate on either occasion that her inability to meet
her quota might result in discipline or discharge. Nevertheless, she
was discharged the following day. Whether the increase in her quota
was a reasonable one is not established by the record. No comparison
of Mattingly's production could be made with that of any other
employee since no other employee was engaged in the assembly of
Tele-Talk units. In any event, although the Respondent had knowl-
edge of Mattingly's questionable ability to meet certain quotas in the
past, it nevertheless discharged her for failing to meet a new and
higher quota whose reasonableness, as indicated, is not established in
the record. On the facts we believe that the General Counsel has
established a prima facie case of discriminatory motivation. In the
absence of an adequate explanation justifying the change in quota,
and in all the circumstances, we conclude that her alleged failure to
meet the quota was a mere pretext for her discharge, and that the real
reason was Respondent's desire to rid itself of union supporters among
its employees. Accordingly, we find that Respondent's termination of
Mary Carolyn Mattingly on January 8, 1965, violated Section 8(a)
(3), (4), and (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modification : Add the names of Anna Marceline
Lee and Mary Carolyn Mattingly to paragraph 2(a) of the Recom-
mended Order and to the fourth indented paragraph of the notice.]
TRIAL EXAMINER'S DECISION
• STATEMENT OF THE CASE,
This is an unfair labor practice case under Section 10 of the National Labor Rela-
tions Act, herein called the Act. It was initiated by a complaint issued on March 30,
1965, by the General Counsel of the National Labor Relations Board, through the
Regional Director for Region 9. Cincinnati, Ohio, against Telecom, Inc., the Respond-
•ent herein. The complaint is based upon a charge and three amended charges filed
on February 2 and March 4. 11, and 19, 1965, respectively, by International Union
of Electrical, Radio and Machine Workers, AFL-CIO, the Charging Party herein In
substance the complaint, as amended at the hearing, alleges that Respondent engaged
TELECOM, INC. 107
in conduct" violating Section 8(a)(1), (3), and (4), and that such conduct affects
commerce within the meaning of Section 2(6) and (7), of the Act. Respondent has
answered admitting some facts but denying that any unfair labor practices were
committed
Pursuant to due notice this case came on to be heard and was heard by Trial Exam-
iner James V. Constantine on June 9, 10, and 11, 1965, at Lebanon, Kentucky. All
parties were represented at and participated in the hearing, And were granted full
'opportunity to offer evidence, examine witnesses, present oral argument, and submit
briefs. Respondent argued orally and has filed a brief.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Missouri corporation, is engaged at Lebanon, Kentucky, in manufac-
turing electronic sound equipment It is also called the Company or Telecom herein.
During the year preceding the issuance of the complaint, Respondent received mate-
rials and goods valued in excess of $50,000 directly from, and shipped products valued
in excess of $50,000 directly to, points outside the State of Kentucky. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the policies of the Act to assert jurisdiction over
Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein
called the Union or IUE, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR•LABOR PRACTICES
This case involves the alleged discriminatory discharge of nine employees, seven of
whom it was stipulated had appeared and, testified at another unfair labor practice
hearing involving Respondent in 153 NLRB 830. The question is whether any one
or more of said employees was discharged for union activity, or for testifying in that
other Board hearing, or both. It is not alleged or otherwise contended That Respond-
ent engaged in any independent conduct contravening Section 8(a)(1) of the Act.
Events Preceding the Present Case
A formal hearing in another unfair labor practice case (herein referred to as the
first hearing) naming Telecom, Inc., as a Respondent was held before Trial Examiner
Lloyd Buchanan at Lebanon, Kentucky, from July 14 to 17. 1964. That proceeding,
in which IUE is also the Charging Party, was prosecuted as a consolidated trial. It is
reported in 153 NLRB 830. On October 6, 1964, Trial Examiner Buchanan issued
his, and on June 29, 1965, the Board issued its, Decision in the first hearing. It was
stipulated, and I find. that the following employees appeared as witnesses and testified'
on behalf of the General Counsel at the first hearing:
Patricia Evans Jessica Williams Anna Marceline Lee
Mary Louise Thomas Mary Carolyn Mattingly Mary Kaye Thomas
Mary Brady Roberts
Trial Examiner Buchanan found certain violations, including 12 discriminatory dis-
charges, to have been established, and recommended reinstatement of said dischargees
with backpay. Their names are enumerated in the following table. The Board
upheld his decision.
On November 23, 1964, Respondent posted on its bulletin board a notice which, in
material part, bears the legend:
As many of you know, we have been ordered by the National Labor Relations
Board to put 12 employees back to work. We had attempted in good faith to
lay off by ability and service. We are putting these employees back to work even
though it means that employees with more service must be laid off We regret
that some of our employees must suffer in order for us to carry out this unfair
decision. [General Counsel's Exhibit 2.]
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Respondent offered reinstatement to said discriminatees.
said offers and the replies of said employees may thus be summarized:
The dates of
Name of employee Date of offer in 1964 Date of employee reply
Joan Faye Maupm-------- ________ November 18 or 19____ Employee did not return to work.
Mary Kaye Thomas_______________ -----do----------------- Returned to work Nov 30 Laid off 12/11
and subsequently discharged.
Dorothy C. Mattingly_____________ November 18--------- Returned to work 11/20 Laid off 12/11 and
subsequently discharged.
Frances Johnson___________________ November 18 or 19____ Did not return to work.
Judy Marie Mattingly------------- -----do----------------- Returned to work 11/20 Voluntarily quit
2/1/65.
Angela Lockett Smith------------ -----do----------------- Did not return to work.
Anna Marceline Smith (Lee) ------ -----do----------------- Returned to work 11/20. Laid off 12/11.
Mary Carolyn Mattingly__________ -----do----------------- Returned 11/30 Discharged 1/8/65.
Jessica L. Williams________________ -----do----------------- Returned 11/30 Laid off 12/11.
Mary Louise Thomas______________ -----do----------------- Returned 11/30 Laid off 12/11. Later dis-
charged
Sheila D Beavers_________________ ----- do----------------- Did not return to work.
Ann Fay Ruley___________________
-----do----------------- Returned 11/20 Voluntarily quit 11/21.
A. The discharge of Patricia Evans
1. General Counsel's evidence
This employee appeared at the first hearing and there testified for the General
Counsel at a time when she was employed by the Company. She was originally hired
by Respondent in January 1959, and remained out of work, as a result of a voluntary
quit, from May to August 9, 1961.
On November 29, her foreman, Gerald Abell, called on her to accompany him to
the desk of Foreman Harold Stream. However they found he had bad news for her;
that the National Labor Relations Board had ordered the Company to "replace" 12
girls; and in order to "replace" these 12 girls the Company was going to lay off Evans.
Although Wenner asked Evans to sign a "layoff sheet," she refused to do so. She was
laid off on that day. A posted seniority roster showing seniority as of October 16,
1964, lists the name of Patricia Evans thereon as senior to 24 other employees. (Gen-
eral Counsel's Exhibit 3.) Some of the others laid off on November 29 are Hughes,
Wilkerson, and Sherry Abell, all of whom had less seniority than Evans. However,
although Evans has not been called back to work, Wilkerson and Sherry Abell have
been recalled.
Prior to her layoff Evans had received no complaints about the quality of her
work. But she did absent herself from work occasionally. In such instances she took
off for a day or so but did not ever seek to obtain permission therefor or otherwise
report it in advance. Notwithstanding this, she was never reprimanded or warned
therefor; at most her foreman merely asked her where she was during her absence and
she would tell him. Evans also testified that the Company had no policy on clocking
in or out other than she was not to punch in for any other employee; and that she was
never informed orally, in writing, or by posted bulletin that failure to clock out war-
ranted discharge or other disciplinary action.
Since August 1961, Evans assembled intercom systems and performed a little inspec-
tion work, but she also, prior to August 1961, acted as an inspector. Rose Brady
Roberts also did inspection work. Subsequent to the layoff of Evans, Rose Brady
Roberts was discharged about January 8, 1965. Roberts' inspection work thereafter
was performed by Corine Wilkerson. Wilkerson had not previously done any inspec-
tion work, as she had been packing Tele-Talks. At no time since her layoff has Evans
been offered inspection work by the Company.
About 10 a.m. on February 15, 1964, at Club 68, an eating place in Lebanon, while
accompanied by employee Rose Roberts, Evans encountered and spoke to Russell
Anderson, an official of Respondent's parent company, Webster Electric Company.
During the conversation Anderson told Evans that he considered her to be "the Num-
ber One person in the Union," and asked both Roberts and Evans why they wanted to
join the Union. (This was admitted as background evidence only since it occurred
a year before the charge herein was filed on February 4, 1965.) Evans testified that
she was in fact "Number One in the union organizing campaign."
TELECOM, INC. 109
Evans further testified that others were laid off out of seniority. She also was read
the Company's manual on seniority, which was distributed in September or October,
1964, and which she claimed provided for layoffs "according to your ability, skill, and
time." The actual text of the manual states that "In all lay-offs, recalls, and transfers
. the following three factors are considered: (1) ability to perform the work; (2)
physical fitness; and (3) length of service." (General Counsel's Exhibit 4.) At one
employee meeting prior to this, Evans and the employees attending it were told that
only seniority governed the order of layoffs.
At the time she was laid off, no mention was made to Patricia Evans about work
standards. However, her supervisor, Stream, did sometimes talk to her about stand-
ards, but only after Evans asked him to show her the weekly statistics on "everybody's
percentage." She never did make 100 percent, averaging between 75 and 80 percent.
Stream knew this, and knew that it resulted from a lack of materials for which Evans
often waited or obtained herself on her own time. But neither Stream nor any other
supervisor ever reprimanded or warned Evans for producing under 100 percent or for
.her low production. Evans testified that her efficiency was sometimes called to her
attention by Foreman Stream who merely told her, "we should try to go [production]
up if we can," but never reprimanded her therefor.
2. Respondent's evidence
Gertrude Edwards replaced Patricia Evans. The efficiency of Edwards is 100 per-
cent under the new standards. The new standards are about 10 percent higher than
the old. Under the old standards Evans had an efficiency of 70 or 75. A chart in
evidence (Respondent's Exhibit 11) tends to confirm this. This chart influenced
Abell to take back Miss Corine Wilkerson, although Evans had a few days' more
-seniority than Wilkerson. Evans worked mostly under the old standards and has no
appreciable history of work under the new standards which were adopted shortly
before her layoff.
Foreman Abell was asked by his supervisor, Harold Stream, to take back Patricia
Evans after Evans had been laid off. Abell was "hesitant" because Evans had demon-
strated a low efficiency and talked too much while formerly employed there. Rather,
Abell hired Corine Wilkerson. The latter was preferred, and returned as an inspector,
because her efficiency was higher than that of Evans, and also because Wilkerson was a
good packer and could help in packing while working as an inspector. "Sometime
ago" Abell warned Patricia Evans "for excessive talking" and "wrote a report" thereon
to Personnel Director Wenner.
B. The discharge of Mary Brady Roberts
1. General Counsel's evidence
Roberts began working for Telecom on January 6, 1959. On January 8, 1965,
Foreman Stream asked her where she had been the day before and she replied that
because she had been ill she went to see a doctor. Stream also said that, if there was
-anyway possible, he would like Roberts to call in thereafter when she took off. Imme-
diately thereafter Stream told her that Maynard Peterson, Respondent's plant manager,
wanted to see her. When Roberts arrived at the office, she found Peterson, Personnel
Director Wenner, and Company Attorney Gardner awaiting her there. Wenner
asked Roberts where she had been the day before and mentioned that he had a list
of her absences all of which were made without prior notice. Roberts replied that she
had visited a doctor because she was ill. Gardner then said that they "don't tolerate"
absences "up at Racine" and that they should handle the matter in Lebanon as at
Racine. Thereupon Wenner told Roberts that she was terminated as of 4 p.m. that
afternoon, the usual quitting time.
Although she stayed out on January 7, 1965, Roberts did not call in to report that
she would not come to work that day. However, she had been absent on about 10
other days in the past, 5 of them since January 4, 1964. On those occasions she did
not call in to state that she would be absent; all she did was to "tell the Company the
next day" where she had been the day before. Nevertheless, she would tell her fore-
man she intended to be away a half day in the afternoon if she took off only the after-
noon. However, on one other occasion (probably September 11, 1964) Foreman
'Stream suggested that Roberts call in if possible when she intended to take a day off.
At no time was Roberts ever warned,about her absenteeism; nor did she receive or
see any written rules relative to this subject. However, Roberts did read a company
booklet, distributed in October 1964, which, among other things, contained a rule per-
taining to calling in. This rule provides that "If it becomes necessary for you to be
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absent from work, please call the office or your supervisor. Employees absent from
work for 3 days and who have not notified the Company are considered to have quit
without notice " (General Counsel's Exhibit 4, p. 13.)
At an unemployment compensation hearing before the Kentucky Employment Com-
mission, Roberts testified that the reason given her for her discharge was absenteeism
and the failure to call in. She also signed, at the Company's request, a written state-
ment prepared by the Company that the reason for her termination was "absenteeism
and failure to call in."
Brenda Ann Reid, who was hired on August 1, 1962, and voluntarily quit on
June 4, 1965, was employed in assembly and also in the service department. During
that time, and prior to the discharge of Roberts, Reid took a day off occasionally with-
out asking for it or giving advance notice. Yet she was never reprimanded for this or
warned that it constituted ground for discharge. Since the discharge of Roberts, Reid
calls in when she desires to be absent. This is because Foreman Abell since said dis-
charge of Roberts insisted that it be done or else discharge could ensue for Reid
Rose Donahue, an active union adherent, started working for Telecom on August 4,
1959, as an assembler. Her job had a quota; i.e., she was expected to produce a pre-
determined minimum amount of work daily. She always made her quota. Occasion-
ally Donahue took off, but she never called in to notify the Company of this in
advance At no time was Donahue informed orally or in writing that failure to call
in would be cause for discharge. However, in March 1965 she was given a "warning
for not sending word in" by Foreman Abell. This was after the discharge of Roberts.
On June 4, 1965, Rose Donahue voluntarily quit to obtain a better job elsewhere.
2. Respondent's evidence
Victor Wenner is Telecom's personnel director. He claims that Mary Brenda Reid
took off without calling in, denying that she either called in or sent word by someone
else. He testified that these facts appear on Reid's personnel card.
Plant Manager Petersen was in the office when Roberts was terminated. He observed
her sign "the termination form," which is a "regular personnel form." The "super-
visor personnel report" on Roberts (Respondent's Exhibit 9A) discloses that Roberts
was discharged'on January 8, 1965, upon the recommendation of Foreman Stream
because of "failure to co-operate with me and follow the Company rules on calling in."
.But Respondent has introduced no documentary evidence as to when Roberts failed to
cooperate or follow company rules, or the nature thereof, or whether and when this
had been called to her attention, other than two documents dated September 11, 1964
and November 2, 1964.1 But these latter are indefinite as to dates Petersen testified
that he discharged Roberts "based on" the report of Stream, for "absenteeism and fail-
ure to call in."
Rosie Roberts, according to Foreman Abell, was absent "the last shipping day of
one month." The last day of the month is always the "heaviest" shipping day, accord-
ing to him. Roberts was again absent "another day after that. And in between there
was two or three half-days." But Abell never warned her about this.2 On the last
day of the month, referred to above, Plant Manager Peterson asked Abell whether
Foreman Stream had given Rosie a warning for being absent on that day. Abell
replied that he did not know.
Wenner told Stream to reprimand Rosie for being absent on the last working day of
October 1964, and Stream replied that he had already done so. Apparently Stream
did so on November 2, 1964. See Respondent's Exhibit 9C. Later Personnel Director
Wenner discharged Roberts, telling her that she had "a lot of absenteeism, and above
all she was failing to call in ..." Roberts was absent "Something like 10 or 12 days"
after she was married, according to Wenner. She was married in late September 1964.
Apparently the time she took out for her marriage is included in the above "10 or 12"
days. See Respondent's Exhibit 13. These reasons were placed on the employment
record of Roberts and, at Wenner's request, she "signed it." This record is not in
evidence. Roberts admitted she knew of the "rule about calling in" and that she had,
been warned by Foreman Stream.
'A summary of her absences on a piece of scrap paper shows that Roberts was absent
21/ days between October 31. 1964, and January 8, 1965 See Respondent's Exhibit 13.
2 In a period of 61/. years Abell never heard of anyone being discharged for absenteeism
and himself gave but three reprimands and two warnings for absenteeism during that period.
TELECOM, INC. 111
C. The discharge -of, Dorothy C. Mattingly
1. General Counsel's evidence -
This employee was hired by the Company on August 14, 1963. In April 1964,
she was discharged. In the first hearing this discharge was found to have been discrim-
inatory under Section 8(a)(3). Telecom, Inc., 153 NLRB 830. Mattingly was sub-
penaed by the General Counsel and appeared at that first hearing but did not testify
in it . On November 18 or 19, 1964, she was recalled, and on November 20 returned
to work pursuant to that recall.
On December 11, 1964, Personnel Director Wenner and Foreman Abell laid off
Mattingly for lack of work and asked her to sign a statement to this effect. She
refused. The following week, by letter dated December 14, Resident Plant Manager
Petersen wrote her that "because of your refusal to punch your clock card, in accord-
ance with Company policy, your layoff now becomes a discharge."
Mattingly testified that she did not -clock out on December 11 as she left the plant
about 4 p.m., the regular quitting time, following her layoff. But she further testified
that she could not find her card in its accustomed place and that her clock number
had been removed from the rack also. Thereupon she went to the office and asked
Personnel Director Wenner for the whereabouts of her card. When Wenner and she
returned to the rack Wenner found the card in a different place. At this point
employees Mary Kaye Thomas and Mary Louise Thomas were with Mattingly, as
they had also been laid off simultaneously with her. Foreman Abell also was pres-
ent. Nevertheless, Mattingly did not punch out when she found her card. Although
Wenner asked her if she was going to do it, Mattingly replied "No. I won't be back
Monday." Then Wenner said, "If you don't you'll be sorry." At no time had
Mattingly orally or in writing been alerted to the fact that discharge was the penalty
for failing to punch out. Nor had such a rule, if there was one, ever been posted on
the bulletin board or printed in the manual in evidence as General Counsel's
Exhibit 4.3
Neither of the Thomas girls, who were laid off on December 11, clocked out.
Employees Campbell and Wright, who had less seniority than Mattingly, have been
recalled to work since her discharge.
Frances Sapp began working for Telecom in December 1961. She has been active
in the Union. She was laid off on December 11, 1964, for lack of work. When she
went to punch out her card she was unable to find it in its customary place in the
,rack. After unsuccessfully seeking its whereabouts for a few minutes, Sapp went
home without punching out. Another employee who was laid off with Sapp, one
Mary Spaulding, also failed to locate her card.
The following Monday, December 14, Personnel Director Wenner telephoned Sapp
at home to ask why Sapp had not checked out. Sapp replied that her card was miss-
ing from the rack. Wenner accepted this explanation. In March 1965, Sapp and
Spaulding were recalled to work. But nothing has since been said to Sapp about her
omission to punch out. In fact prior to this Sapp had not been told that failure to
punch out merited discharge, nor had she seen any rule posted to that effect. At the
time of her recall, Sapp returned ahead of McNear, although McNear outranked
Sapp in seniority. Sapp was able to do McNear's former work, but McNear was not
able to perform Sapp's former work.
Employee Brenda Ann Reid saw Patsy Buckman, Frances Sapp, and Mary Grace,
who were also laid off on December 11, 1964, leave at 4 p.m. that day without
punching a time card. Nevertheless Sapp and Spaulding have since been recalled.
Sapp was on the union organizing committee in 1963.
2. Respondent's evidence .
Plant Manager Petersen approved the discharge of Mary Louise Thomas, Dorothy
,C. Mattingly, and Mary Kaye Thomas, after Personnel Director Wenner reported to
him the facts relating to their refusals to punch out. Thereupon he,wrofe to all three
terminating them for such refusal. ,
8 The manual refers to "quitting before time" as a "minor infraction or violation"
meriting a warning. It further provides for "more stringent disciplinary action" for "con-
tinued violations ." Failure to clock out is not mentioned as a violation. However, the
manual expressly provides "Please see to it that your card is properly punched whenever
you enter or leave the plant. You should never under any circumstances punch any
time card but your own."
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Abell was present when Dorothy C. Mattingly , Mary Kaye Thomas, and
Mary Louise Thomas failed to punch out on December 11. When he asked them
what was wrong , they replied that their cards were missing from the clock rack.
But Abell "saw that they [the cards ] were in their respective slots" and the girls "then
saw them and recognized them." Thereupon the girls started to leave, but
Wenner "instructed them that they should punch these cards." One of the girls
stated that she did not want to . All three then walked out of the building.
Personnel Director Wenner told the three girls he could not understand why their
cards could not be found at their customary places. When he went to the timeclock
rack with the girls "there the cards were" in their correct place. Then he told the
girls to punch out, but they replied they would not. Wenner reminded them that
"it was a Company rule that they punch out " and that these cards were used for
audit "for the Wage and Hour Law." But they just walked off. This was in the
presence of Foreman Abell.
Dorothy C . Mattingly , Mary Kaye Thomas, Mary Louise Thomas, and a few
others were laid off on December 11, 1964, for lack of work under circumstances
more fully set out in the succeeding three paragraphs.
By memo dated December 8, 1964, Vice President Anderson of Webster Electric
wrote to Telecom 's Plant Manager Petersen . In it Anderson regarded the "imme-
diate outlook ... not good" in view of "our current status and backlog " and added
"you have no alternative but to reduce your work force." Anderson also telephoned"
Petersen to the same effect. On December 8 President Munroe of Webster Electric
also dispatched a memo to Petersen observing that "Due to the backlog of orders
and the increase in your inventory , it is imperative that you make a reduction in
force."
Petersen then called in his foremen to a meeting where he informed them that the
backlog of orders was on a downward trend and efficiency was increasing , so that
some employees would have to be laid off. Then he directed his foremen to prepare
a list of employees whom they could afford to lose "according to skill, ability, physi-
cal fitness , and service ." From this list Petersen selected those who were laid off"
on December 11, 1964, giving effect to seniority where other factors were equal.
Employees so laid off included not only the alleged discriminatees mentioned in the
complaint but others also. Some of the others are Mamie McNear, Frances Sapp,
David Borders, Virginia Quinn, Wilma Hardin , Rebecca Campbell , and Anna
Wright. McNear , a "union adherent ," has since been recalled. Six or seven of those
laid off on December 11 have been recalled, but not Mattingly or either of the
Thomas girls.
At the foregoing meeting of Petersen with the supervisors , employee Helen Grib-
bins had been recommended for layoff by another foreman , Cal Baker , under whom
she worked . However, Foreman Abell felt that she had skills which he could use.
Therefore Abell requested that , instead of laying off Helen Gribbins , the latter be
transferred to his department. Petersen approved this but stated that someone else
would have to be laid off in place of Gribbins . After looking over the list, Petersen
decided to lay off Dorothy C. Mattingly , who had less seniority and ability than,
Gribbins.
D. The discharge of Mary Kaye Thomas
General Counsel 's Evidence
This employee was hired by Respondent about August 1963 . She was laid off in
April 1964, in a manner found by the Board in the first hearing to violate Section
8(a)(3) of the Act. Telecom, Inc., 153 NLRB 830. On November 18 or 19, 1964,
she was offered reinstatement and, on November 30, returned to work.
On December 11, 1964, she was laid off for lack of work along with Dorothy C.
Mattingly , Mary Louise Thomas, and a few other employees . About 4 p .m., the
usual quitting time, Mary K. Thomas sought to punch out but could not find her
timecard in its usual place. Her clock number had also been removed from the
board. After talking to Personnel Director Wenner about this, he came to the card
rack and found the timecard in another location. Employees Dorothy Mattingly
and Mary L. Thomas were with her at the time. When Wenner asked all three
employees if they were going to clock out , Mattingly replied "No , what's the use;
we won't be back Monday anyway ." Thereupon Mattingly and the two Thomas girls
left without clocking out.
A few days later Mary Kaye received a letter , identical in text to that in evidence
as General Counsel's Exhibit 5, informing her that her layoff had - become a discharge
in accordance with company policy "because of your refusal to punch your clock
TELECOM, INC. 113
card ." Mary K . Thomas had never been informed that failure to clock out was
grounds for discharge . In fact , when she was laid off in April 1964, she did not clock
out. Yet she was not disciplined or even warned therefor.
Respondent 's evidence defending the discharges of Mary Louise Thomas and Mary
Kaye Thomas is recapitulated under its version relating to the discharge of Dorothy
C. Mattingly, above.
E. The discharge of Mary Louise Thomas
1. General Counsel 's evidence
Mary Louise Thomas was hired by Telecom in August 1963. She was laid off in
April 1964 , under circumstances found by the Board to be proscribed by Section
8(a)(3) of the Act. On November 18 or 19, 1964 , she was recalled and, on Novem-
ber 30 , returned to work . On December 11, 1964, Personnel Director Wenner and
Foreman Abell laid her off for lack of work together with Dorothy C. Mattingly,
Mary Kaye Thomas , and a few other employees . A few days later she received a
letter from Resident Plant Manager Petersen that her layoff had become a discharge,
"in accordance with Company policy, because of your refusal to punch your clock
card ." Its text is similar to that in General Counsel 's Exhibit 5.
At no time had Mary Louise Thomas been told by any supervisor or official of
the Company that failure to punch her timeclock constituted the basis for a dis-
charge or other disciplinary action . Nor has she seen any rule, whether posted or
otherwise , to that effect . In fact , when she was terminated on April 3 , 1964, she
did not punch out.
2. Respondent 's evidence
A "Notice of Adjusted Determination" (Respondent 's Exhibit 2), made in con-
nection with Mary Louise's claim for unemployment compensation , states, under
"Findings ," that "The claimant was discharged for violating a company policy in
refusing to punch out . The request was not unreasonable . Claimant's actions
showed a disregard of the employer 's interests . She was discharged for misconduct
connected with her work."
F. The discharge of Anna Marceline Lee
1. General Counsel 's evidence
Lee was first hired by Telecom in July 1959 . She quit in November 1962 and
was reemployed in November 1963 . On April 3, 1964 , she was terminated, as the
Board found in violation of Section 8(a)(3) of the Act . Telecom , Inc., supra.
She also testified in the first hearing. About November 18 or 19, 1964, she was
offered reinstatement , and, on November 20, resumed work . Upon Lee's return on
November 20, 1964, her foreman, Ed Swencki, warned her that all eyes would be
on her . On December 11, 1964, Personnel Director Wenner laid her off for lack
of work along with several other employees . Some of those laid off on that day have
been recalled, but they had seniority over Lee. Lee claims she had work to do when
she was laid off.
On one occasion since her recall in November 1964, Lee was reprimanded by
Plant Manager Petersen for staying too long in the restroom.
2. Respondent's evidence
Supervisor Melvin Settles complained to Plant Manager Petersen that Marceline
Lee had made a "snotty remark " to him . Thereupon Petersen interviewed Lee in
his office in the presence of Settles and Personnel Director Wenner. Petersen told
Lee that she had better change her attitude if she desired to remain with the Com-
pany . However , Lee said nothing in response.
When Marceline Lee returned to work on November 20, 1964 , her foreman,
Edward Swencki , gave her a short speech to put her at ease, but he did not threaten
her. Specifically, he denies that he warned her all eyes would be on her. Moreover,
Lee was not laid off for this. She was laid off for lack of work on December 11,
1964, under the circumstances described above in connection with the layoffs of
Dorothy C . Mattingly and others.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The discharge of Mary Carolyn Mattingly
1. General Counsel 's evidence
Mattingly started working for Telecom on August 26, 1963. She was laid off on
April 3, 1964, as the Board found, in violation of Section 8(a)(3) of the Act.
Telecom, Inc., 153 NLRB 830. She also testified in the first hearing. Thereafter,
on November 18 or 19, 1964, she was offered reinstatement, and returned to work
on November 30.
On January 8, 1965, Foreman Abell brought Mattingly to the main office where
they found Plant Manager Petersen and Personnel Director Wenner awaiting them.
Wenner told her that she was being terminated because her production was low.
Mattingly's job, that of assembly, had a quota of 14 prior to and on November 30',
and thereafter until an incentive plan was initiated in December. Then it was raised
to a new quota of 19.2. She always made the quota when it was 14, but she failed
to achieve it when it was raised to 19.2. She usually produced 15 or 16 under the
new quota. However, nothing was said to her about this until January 7, 1965. On
that date, the day before her discharge, Abell, her foreman, informed her that an
incentive plan had been instituted, that she had to "make the rates," and that she
was failing to reach her quota. He had also mentioned this about a week before.
But Abell did not even intimate that her inability to attain the quota would result in
a discharge or other discipline. No other person performed the same work after
November 30, so that no comparison of her production could be made with some
other employee engaged at identical work.
On other jobs, Mattingly did not always make quotas. But those jobs, and their
duration, are not specified in her testimony. Nevertheless she was never warned,
on such other jobs, that failure to achieve the quota jeopardized her employment.
2. Respondent's evidence
Personnel Director Wenner spoke to Mary Carolyn Mattingly when she was rein-
stated, telling her that Telecom was now on the incentive system, that records would
be kept of "efficiencies," that she would be expected to "make out on the rates," and
that she "could be terminated " for making less than 100 percent of efficiency.
Mary Carolyn Mattingly worked under Foreman Abell. Mary's efficiency was
"pretty low." After talking to her on two or three occasions about it , Abell reported
it to Plant Manager Petersen . After discussing it together, Petersen and Abell
decided to terminate her.
H. The discharge of Lillian O'Daniel
1. General Counsel 's evidence
O'Daniel was hired by Telecom on January 7, 1959. On December 11, 1964,
Melvin Settles, her foreman , escorted O'Daniel to Baker 's desk . Personnel Director
Wenner was awaiting them there . Wenner asked her to sign a paper containing the
words "voluntarily quit." However, she refused to sign it and gave as the reason
that she had not quit and added that she would give an advance notice when she was
ready to quit. O'Daniel had not previously informed any supervisor or official of
the Company that she was planning to leave its employ. However, O'Daniel did
tell her sister, who was also a fellow employee, that if she, Lillian, found another job
she "was quitting ." But Lillian had neither found nor sought another job by Decem-
ber 11, 1964.
When O 'Daniel applied for unemployment compensation "the second time," 4 Tele-
com claimed at a hearing thereon that she had given a 2-week notice that she was
quitting. But O'Daniel testified that she never gave a notice of,any kind that she
was quitting. O'Daniel belonged to the Union. From September 21-26, 1964, she
attended a union convention in Washington, D.C. Upon her return, Foreman Stream
and Plant Engineer Cloyd discussed the convention and her participation in it with
her. At the time of this conversation she was wearing an IUE button.
O'Daniel further testified that when another girl was being trained on the job,
O'Daniel was directed by Settles, her foreman, to train her. O'Daniel told her fore-
man, as well as her sister and also the trainee, that she would not train this girl.
However, another foreman, Stream, told her it was the foreman's place to train a.
new girl . This incident is mentioned in the unemployment compensation decision
(General Counsel's Exhibit 6) mentioned above.
4 The referee 's decision on'appeal granted O 'Daniel compensation on the ground that
"The claimant did not voluntarily leave her employment."
TELECOM, INC. 115
Some time after December 11, 1964, Telecom, at the request of O'Daniel, gave
her a written recommendation addressed "to whom it may concern." It is signed by
Edward Swencki. (General Counsel's Exhibit 7.)
2. Respondent 's evidence
On November 23, 1964, O'Daniel told Melvin Settles, her foreman, that she was
not satisfied with $1.35 an hour, she was not going to help train the new operator,
and she "was going to quit and go to Richmond." When Settles asked when she was
going to quit, O'Daniel replied, "You have my 2 weeks' notice." Thereupon Settles
wrote out this information on a "supervisor's personnel report." (Respondent's
Exhibit 12.) Then Settles turned in the report and recommended that O'Daniel's
resignation be accepted.
About November 23, 1964, Supervisor Settles told Plant Manager Petersen that
Lillian O'Daniel had given Settles a 2-week notice that she was quitting to take a
job in Richmond, Kentucky. On the same day Settles brought to Personnel Director
Wenner a "written report" stating that Lillian O'Daniel had given a 2-week notice
to quit to go to Richmond, Kentucky. On December 8, 1964, Wenner asked Settles
to bring O'Daniel to him and Settles did so. Then Wenner told O'Daniel that he
"had this statement" and that he was accepting her resignation. O'Daniel "replied ...
that it was true" but also commented that she could show 50 others who "said the
same thing." Whereupon Wenner replied that the 50 others "had not made the
statement to" him and that "if they did [he] would accept their resignation also."
. O'Daniel refused to sign a slip presented to her by Wenner saying that she had
quit. Wenner could not accept O'Daniel's resignation at the end of the 2-week period
because Plant Manager Petersen was out of town at the time, and Wenner could not
"hire or fire or discharge anyone in [Petersen's] absence."
1. The discharge of Jessica L. Williams
Williams did not testify. However, it was stipulated-and I find-that she was first
hired by Telecom on November 11, 1964, and laid off on April 3, 1964; she was an
alleged discriminatee, and appeared as a witness, in the first hearing (153 NLRB 830);
Respondent offered her reinstatement on November 18 or 19, 1964; she returned to
work on November 30, 1964; and she was laid off on December 11, 1964. I further
find, by taking official notice of the Board's decision in Telecom, Inc., supra, that
the Board has found that the layoff of Williams on April 3, 1964, violated Section
8(a) (3) of the Act.
Respondent's evidence is that Foreman Abell recommended the layoff of Jessica
Williams because she was low on both efficiency and seniority. The circumstances
of her layoff and the manner according to which employees were laid off are described
in connection with Respondent's evidence touching upon the layoffs of December 11,
1964, set forth above.
J. Respondent's evidence common to the entire case
Peter J. Arzikovic is personnel director for Webster Electric Company and its
subsidiaries, one of which is Telecom. In such capacity he guides the personnel
policies of Telecom. It is Respondent's policy, as outlined in its policy manual
(General Counsel's Exhibit 4) and as practiced by it, to lay off or recall employees
"based upon their skill and ability, their physical fitness, and their length of service."
This manual is distributed to employees. Qualifications concern Respondent "pri-
marily"; but where qualifications are "relatively equal, then we'll go by seniority."
Arzikovic also personally discussed seniority, wages, and job evaluation with Telecom
employees in groups of 8 or 10.
The manual also has a section on the use of clocks. This was inserted because
the Federal Wage and Hour Division requires accurate time records5 To impress
employees with the importance of maintaining accurate time records Arzikovic has
5In pertinent part the manual provides that "The Federal Wage and Hour Law provides
that accurate records be kept of time actually worked by employees. These records are
maintained by means of time cards and time tickets. Please see to it that your card is
properly punched whenever you enter or leave the plant. You should never under any
circumstances punch any time card but your own. Time tickets must be completed for
each factory job done each day by every employee. . . . Time tickets must be turned in
each day before leaving the plant."
221-X374-66--vol. 157-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mentioned this in Teletopics,8 and Telecom Newsletter,? Webster Electric's monthly
publications which are distributed to all Telecom's employees. (Respondent's
Exhibit 4.) Nothing therein, however, suggests that failure to clock, without more
(e.g., attempting to cheat on time actually worked), is cause for discharge. Other
matters, such as policy matters and rules and regulations , are also discussed in said
Teletopics and Telecom Newsletter.
Arzikovic further testified that since the layoffs and discharges herein Telecom's
employment roster has been lower. Charts were received (Respondent's Exhibits 5
and 6) tending to show this. On December 10, 1964, the decision was made to lay
off some employees because business was going down, inventories were increasing,
and shipments and backlog were decreasing for the past month. The preceding
month serves as the criterion for ascertaining whether layoffs should be made in a
current month because the Company's business records are "always one month
behind." The decision to reduce the force on December 11 was made by Vice Presi-
dent Andersen of Webster Electric Co., the parent corporation. On December 10,
when it was decided to make the layoffs, and until February, 1965, plant efficiency
was increasing while the "number of people was decreasing" and overtime was at
its lowest ebb.
Concluding Findings and Discussion
It is incumbent upon the General Counsel to establish his case by a fair preponder-
ance of the evidence. Hence the burden rests upon him to prove the allegations of
the complaint. Rubin Bros. Footwear, Inc., and Rubin Brothers Footwear, Inc.,
99 NLRB 610, 611, set aside on other grounds 203 F. 2d 486 (C.A. 5); N.L.R.B. v.
Murray Ohio Manufacturing Co., 326 F.2d 509, 513 (C.A. 6). Further, union activ-
ity and testifying at Board hearings neither confers immunity from discipline by the
employer (Metals Engineering Corporation, 148 NLRB 88) nor insulates an employee
from discharge for cause (Rubin Bros., supra, 488). On the other hand, the "mere
existence of valid grounds for discharge is no defense to a charge that the discharge
was unlawful." N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d 835, 837 (C.A. 7).
"The fact that a solid basis for the discharge ... for cause exists would not, standing
alone, prevent the Board from finding that [the] discharge was motivated by [the
employee's protected] activity." Portable Electric Tools, Inc. v. N.L.R.B., 309 F. 2d
423, 426 (C.A. 7).
Nor is the assertion of a defense binding upon me ; I am not required to accept a
Respondent 's alleged lawful justification for a discharge merely because it has been
put forward with supporting evidence. N.L.R.B. v. Texas Bolt Company, 213 F. 2d
761, 763 (C.A. 5). But rejection of a defense, without more, is insufficient to sus-
tain the General Counsel's burden of proof; he must establish his case by affirmative
evidence.8 Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.); N.L.R B. v.
Audio Industries, Inc., 313 F. 2d 858, 863 (C.A. 7); Portable Electric Tools, supra.
Finally, as a trier of facts I am not bound to accept uncontradicted evidence, for
questions of credibility are not foreclosed by the absence of contradictory testimony.
Northeastern Malden Barrel Co. v. Binder, 341 Mass. 710, 712, 172 N.E. 2d 123, 124;
Young Ah Chor v. Dulles, 270 F. 2d 338, 341 (C.A. 9); N.L.R.B. v. Howell Chevrolet
Company (C.A. 9), 204 F. 2d 79, 86, affd. on other grounds 346 U.S. 482. See
Wigmore, Evidence, § 2034 (3d ed. 1940).
The foregoing principles have been followed and applied in resolving all issues of
fact and law which have been presented by the record in this case.
1. As to the layoff and failure to recall Patricia Evans
It is my opinion, and I find, that Evans was lawfully laid off on November 27, 1964,
and that no discriminatory motives prompted her layoff. This is because I credit
Respondent's evidence that this layoff became necessary under business conditions
then in effect to make room for the reinstatement of employees ordered by Trial
Examiner Buchanan to be restored to their former positions. This finding is also
supported by the evidence of Evans herself that three other girls were laid off at the
same time, all with seniority inferior to hers.
E Issues for 1960 and 1961 only are in evidence.
7 See preceding note.
8 Affirmative evidence may take the form of inferences, for "direct evidence is not
always obtainable." N.L R.B. v. Putnam Tool Company, 290 F. 2d 663, 665 (C.A. 6) ,
NL.R.B. v. Ellis and Watts Products, Inc, 297 F 2d 576 (CA. 6). See The Radio
Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Com-
pany) v. N.L R B., 347 U S 17, 48-49
TELECOM, INC. 117
But I further find that Evans has not been recalled because she was very active
in the union movement and because she appeared and testified in the first hearing, and
that the reason now advanced for failing to recall her, i.e., a poor production record,
is a pretext to cloak the true reason. In this connection I am unable to accept
Respondent's contention that Evans has not been recalled because her production
record was inefficient. This is so for several reasons, all briefly enumerated in the
next paragraph.
In the first place Evans was not told at the time of her layoff that she would not
be recalled because her production was poor; and at no time since has she so been
informed. This is significant. Nachman Corporation, 144 NLRB 473, 485. Sec-
ondly, Respondent was aware of Evans' production record over an appreciable length
of time. Yet she was not disciplined or warned that this could result in disciplinary
action; at most she was told to watch her rate of production. Hence I find condona-
tion of an allegedly poor production record which is now for the first time asserted
as so unsatisfactory as to preclude a recall. N.L.R.B. v. Longhorn Transfer Service,
Inc., 346 F. 2d 1003, 1006 (C.A. 5). Then, again, two other girls junior to Evans
have been recalled without a showing that they possessed superior skills or higher
production efficiencies. Hence Respondent has failed to establish why it did not
follow its usual seniority rule when ability and physical ability are not involved.
In the case of Gertrude Edwards, who was recalled because of an allegedly higher
production record than that of Evans, Respondent did not consider ability overriding.
However, Respondent has not shown why Edwards, who supposedly had this fine
record, was laid off on seniority grounds only. Finally Respondent contends that
other union adherents were not recalled, and also that, since it knew of the prime
role of Evans in the union movement, it would have discharged her long ago if it had
entertained a union animus toward her. But no evidence was introduced that these
other union adherents testified or appeared at the first hearing or were prominent
in the Union's organizing. Hence, Evans became a target for discrimination because
she testified in the first hearing and was the chief employee protagonist for the Union.
Of course, mere rejection of a defense will not supply the affirmative evidence
necessary to uphold the burden of proof. But I find such affirmative evidence on the
record here. First, the failure to notify Evans at any time that she would not be
recalled because of her poor production record carries probative weight. Second, the
condonation found above cannot be disregarded. Thus there existed no justification
for the failure to recall. Third, the reasons given for the failure to recall wilt under
scrutiny and are found to be pretexts, as noted above. Further, Respondent ignored
seniority when under its own rules became paramount when skill and physical fitness
were not involved.9 Finally, Respondent has engaged in a pattern of discriminating
against other union employees and other witnesses who testified in the first hearing,
as found herein. Nachman Corporation, supra, 474-475.
At the hearing the General Counsel sought to introduce evidence as to the respec-
tive merits of the old and new incentive plans. I excluded this on the ground that
the ingredients composing an incentive plan were not an issue in the case. Further
reflection persuades me that this ruling is correct. Because of the importance
attached to this evidence by the General Counsel, I have briefly mentioned it here so
that the Board may expressly pass upon my ruling.
2. The discharge of Mary Brady Roberts, also known as
Rose or Rosie Roberts
Respondent's director of personnel, Victor Wenner, discharged Roberts in the
presence of company counsel and Plant Manager Petersen, giving as the reason
therefor repeated absenteeism and failure to call in or notify the Company that she
would be absent. But Wenner gave no specific figures or dates. I find that Roberts
was absent about a total of 10 days in the 6 months preceding her discharge (5 of
which were for a honeymoon), that she did not call in prior to such absences, and
that she could have called in on such occasions without serious inconvenience to
'Page 9 of Telecom's manual (General Counsel's Exhibit 4), provides "We place
a high value on the employees who stay with us . . . Consideration is given to all em-
ployees who have the greatest length of service . . . In all lay-offs, recalls, and trans-
fers . . . the following three factors are considered: (1) ability to perform the work;
(2) physical fitness; and (3) length of service . . . In recalling laid off employees . .
senior employees will be recalled first, providing they have the skill, ability, and physical
fitness to perform the work that is available."
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herself. I further find that on January 8 , 1965, Foreman Stream asked her where she
had been the day before , and on two other occasions prior to that (September 11
and November 2, 1964 ) he had told her to call in when she intended to take off.
Respondent's evidence inconsistent with the foregoing findings is not credited. Rob-
-erts also signed a statement that she was discharged for excessive absenteeism and
so stated to the Kentucky Unemployment Compensation Commission on her appli-
cation for unemployment compensation.
But I find that Roberts was discharged because she appeared at the first hearing
-and there testified as a witness for the General Counsel , and that the reason now
assigned , i.e., excessive absenteeism and failure to call in, is a pretext to cloak the
real reason . This ultimate conclusion is based on the whole record and the factors
listed in the next paragraph.
In the first place I find condonation , for on Respondent 's own evidence it neither
gave warnings of impending discharge nor took disciplinary action for absences and
failure to call in which occurred over a period of several months. Cf. Nachman
Corporation, supra, 475. In fact, Respondent's manual, which I find Roberts has
read, provides that "Failure to secure or renew a leave of absence will be considered
as a 'quit without notice."' This manifestly was disregarded by Respondent when
it continued to employ Roberts after her absences. Secondly, Respondent' s manual
classifies "absenteeism" as a "minor violation" or "minor infraction" of rules, for
which "supervisors will issue warnings ." But Roberts was not warned of impending
discharge Thirdly, other employees who had failed to call in or were absent neither
were discharged nor given warnings. I credit the General Counsel's evidence in this
respect. And, finally, I find that nearly all of those discharged or laid off had testi-
fied at the first hearing. I deem it more than accidental or coincidental that so
many who testified at that hearing were discharged not long after Trial Examiner
Buchanan rendered an adjudication adverse to Respondent.
In its brief Respondent stresses that absenteeism constitutes lawful cause for dis-
charge under Section 10(c) of the Act, and that it is not within the province of the
Board to pass judgment on whether the punishment fits the offense . I so find; and
I further find that the wisdom or unwisdom , or the merits, or the justification, of a
discharge may not be reviewed by me or the Board. As long as the actual reason
therefor is not discriminatory , the discharge must be upheld as having been made
for cause , regardless of its soundness . N.L.R.B . v. Prince Macaroni Manufacturing
Co., 329 F. 2d 803, 809 (C.A. 1) ; Fort Smith Broadcasting Co. v. N.L.R.B., 341 F. 2d
874 (C.A. 8); N.L.R.B. v. United Parcel Service, Inc., 317 F. 2d 912, 914 (C.A. 1);
Thurston Motor Lines, Inc., 149 NLRB 1368; Norfolk Tallow Co., Inc., 154 NLRB
1052. But this is not conclusive . It may nevertheless be shown by the General
Counsel that, although cause existed for a discharge such cause was not in fact the
reason why an employee was discharged , and that a discriminatory motive generated
the dismissal . N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d 835 (C.A. 7). In
this connection it is necessary to show only that "one reason for the discharge is that
the employee was engaging in protected activity. It need not be the only reason but
it is sufficient if it is a substantial or motivating reason , despite the fact that other
reasons may exist." N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1);
Wonder State Manufacturing Company v. N.L.R.B., 331 F. 2d 737, 738 (C.A. 6).
As set forth above, I have found that, notwithstanding lawful cause existed justifying
the discharge of Roberts , the motivating cause flowed from her testifying in the first
hearing.
However, I find that Roberts was not discharged for union activity or membership.
This is because no evidence of such activity or membership is disclosed by the record.
Accordingly , I shall recommend that this aspect of the complaint be dismissed.
3. The discharge of Dorothy C. Mattingly
Initially I find that Mattingly was lawfully laid off for lack of work on Decem-
ber 11 , 1964 , and that such layoff was not motivated by antiunion considerations.
This is because I credit Respondent's evidence that not only Mattingly but also
several other employees were laid off on the same day for economic reasons. Gen-
eral Counsel has offered no evidence inconsistent with this ; and I am unable to draw
a reasonable inference that the layoffs of December 11 were prompted by union
animus. I further find that Mattingly was found by the Board to have been illegally
discharged in April 1964, in violation of Section 8(a)(3) of the Act; that she was
subpenaed by the General Counsel and appeared, but did not testify, at the first hear-
ing; that she was offered reinstatement on November 18 or 19, 1964; and that she
returned to work on November 20 , 1964, pursuant to that offer.
TELECOM, INC. 119
But I further find that Mattingly was discharged by letter dated December 14,
1964 (General Counsel's Exhibit 5), while she was on layoff status, for union activity
and membership, and that the purported reason given in said letter of December 14
is a pretext to disguise the actual reason. That Mattingly was a union member and
'engaged in union activity, that Respondent had knowledge thereof, and that she was.
discharged therefor, have already been found by the Board in the first hearing.
Telecom, Inc., 153 NLRB 830. Accordingly I find that Respondent was aware of
Mattingly's union activity and membership prior to December 14, 1964.
Although Respondent wrote to Mattingly that she was discharged "because of your,
refusal to punch your clock card, in accordance with Company policy," I find that
this is a pretext and reject Respondent's evidence that this is the true reason. In the
first place, Personnel Director Wenner, on his own testimony, testified that he merely
"instructed [Mattingly, Mary Kaye Thomas, and Mary Louise Thomas] that they
should punch these cards" because "it was a Company rule that they punch out" and
the cards were used "for audit for the Wage and Hour Law," but it is patent that
he consciously omitted to put them on notice that they were in peril of losing their
jobs if they failed to punch out.10 Further, if Respondent was genuinely concerned
about the wage and hour law, Wenner could easily have punched out for the girls;
in fact, Respondent offered no evidence to show that it was compelled to pay for any
more time (whether at regular or overtime rates) than the time actually worked by
the girls, i.e., a full day, as a result of their refusal to clock out at the end of the day.
Then, again, failure to punch out is not characterized in Telecom's employee manual
as a "major infraction [which] will result in immediate dismissal." But punching
another employee's timecard ... will result in immediate dismissal ." In fact, failure
to punch out at the end of a day is not even depicted in said manual as a "minor
violation"; indeed said manual does no more than to remind employees to "please
see to it that your card is properly punched whenever you enter or leave the plant."
Further, other girls at the same time on December 11 failed to punch out without
being disciplined therefor,11 and I so find; and some girls, including the two Thomas
girls, failed to punch out at other times when they were laid off without suffering
disciplinary measures against them. This disparate treatment of Mattingly and the
two Thomas girls is therefore significant.
Moreover, the abruptness of the discharge of Mattingly and the two Thomas girls,
and the failure to give them an opportunity to defend themselves, are elements which
undermine Respondent's defense. Employee Sapp was given such an opportunity,
and her explanation was accepted. In my opinion, failure to allow or seek an expla-
nation warrants an inference of discriminatory intent. Cf. Illinois Tool Works, 61
NLRB 1129, 1132; Shell Oil Company v. N.L.R.B., 128 F. 2d 206, 207 (C.A. 5).
See Fort Smith Broadcasting, supra, 878. Further, the fact that Mattingly and the
two Thomas girls were discharged precipitously within 2 or 3 weeks following their
reinstatement warrants the inference-and I draw it-that Respondent was disposed
to eliminate those employees whom it had previously unlawfully dismissed and whom
it had reluctantly recalled after an unfavorable Trial Examiner's Decision. Finally,
10 Respondent insists that Wenner warned Mattingly and the two Thomas girls by
telling them, as they left, "you'll be sorry." Wenner did not so testify, but the General
Counsel's witnesses did. I find that he said it. But I do not construe this as a warning
of imminent discharge for two reasons. First, it was made as the girls left after they
had refused to punch out. If Wenner had intended it as a warning, it is reasonable to
infer that he would have uttered it at the moment they refused and would also have
indicated that dismissal was the inevitable result which would cause them to be sorry.
Second , Wenner discussed the matter, as he testified, with Plant Manager Petersen,
recommending dismissal to Petersen. Patently Wenner had not yet made up his mind
that the girls were engaging in serious misconduct or he would have so admonished them.
Hence his statement that the girls would be sorry could not have been a warning of
immediate dismissal . In fact dismissal did not occur until the following Monday and then
only after Wenner discussed the incident with Petersen.
11 Respondent contends that it did not know of these other instances on December 11.
But it learned of these alleged derelictions soon thereafter ( as in the case of employee
Sapp) when their timecards were gathered for payroll purposes. Yet these other girls are
not shown to have been disciplined in any manner for failing to punch out when they
went home at the end of the day of their layoff on December 11. Respondent further
argues that these girls were not told to punch out, so that they were not insubordinate.
But the gravamen of the offense warranting discharge , according to officials Wenner and
Arzikovic, is the failure to punch out for wage and hour purposes, rather than insub-
ordination. Hence this latter argument is unimpressive.
1`20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is more than mere chance that Mattingly and the two Thomas girls were all union
members, were discharged at the same time, and that Respondent within a period
of a month to 6 weeks had discharged only union employees connected in some way
with the first hearing.
Upon an assessment of the entire record and the foregoing subsidiary findings I am
convinced and find that Mattingly was discharged for being a union member and
engaging in union activity. Cf. Louisiana Manufacturing Company, 152 NLRB 1301.
In view of this ultimate finding it is unnecessary to resolve conflicts in the evidence
upon the collateral issues of what transpired and what was said at the timeclock rack
concerning the location of the timecards of Mattingly and the two Thomas girls.
Even if I should accept Respondent's version and discredit the General Counsel's, it
would not induce me to alter or revise the above subsidiary and ultimate finding
touching upon the discharge of Mattingly and the two Thomas girls. Nor do I reach
the question of whether Mattingly and the two Thomas girls were discriminatorily not
recalled following their December 11 layoff since all the evidence points to the con-
clusion that their employment terminated on December 14 when they were discharged.
Hence the question of recall is irrelevent once the discharges have been found to be
unlawful.
4. The discharge of Mary Kaye Thomas
As in the case of Dorothy C. Mattingly, supra, I find that Mary K. Thomas was
lawfully laid off for valid economic reasons on December 11, 1964, and that such
layoff was not prompted by antipathy toward IUE by Telecom or because Thomas
testified at the first hearing This is because I credit Respondent's evidence that busi-
ness conditions` required a reduction in force and that Thomas and several other
employees were selected for layoff in a manner which I find did not offend the Act.
Upon this branch of the case I have credited Respondent's evidence as noted above
,in discussing the discharge of Dorothy Mattingly, supra.
Further I find that Thomas was found by the Board to have been illegally dis-
charged in April 1964, in violation of Section 8(a)(3) of the Act; that she appeared
and testified for the General Counsel at the first hearing; that she was offered rein-
statement on November 18 or 19, 1964, consonant with that offer; and that on
December 14, while on layoff status, Thomas was discharged by a letter which gave as
the reason "because of your refusal to punch your clock card, in accordance with
:Company policy." But I find, for the same reasons stated above relating to the dis-
charge of Dorothy Mattingly, that the reason assigned in said letter of December 14
is a pretext to mask the real reason, and that the actual reason is union membership
and activity and testifying in the first hearing.
While I recognize that Dorothy Mattingly did not testify in the first hearing, I am
persuaded, and find, that the reasons given above in connection with her discharge
apply to Thomas not only as to the finding that Thomas was discharged for her union
,membership and activity but also to the finding that Thomas was discharged as well
for-testifying at the first hearing. It is therefore unnecessary to recapitulate those
reasons as they are fully set forth in the discussion dealing with the concluding finding
as to the discharge of Dorothy Mattingly.
5. The discharge of Mary Louise Thomas
As in the cases of Mary Kaye Thomas and Dorothy C. Mattingly, I find that Mary
Louise Thomas was lawfully laid off for nondiscriminatory purposes on December 11,
,and that such layoff was not instigated by a union animus or because she testi-
fied at the first hearing. The reasons given in finding that Mary K. Thomas and
Dorothy Mattingly were lawfully laid off on December 11, 1964, are equally appli-
cable here; they are adopted and reincorporated, without being reiterated, in finding
that the layoff of Mary Louise Thomas was proper.
Further I find that Mary Louise Thomas was found by the Board to have been
illegally discharged in April 1964, contrary to the provisions of Section (a) (3) of the
Act; that she appeared and testified for the General Counsel at the first hearing; that
she was offered reinstatement on November 18 or 19, 1964; that she returned to work
on November 30, 1964, pursuant to that offer; and that on December 14, 1964, while
on layoff status, Mary Louise Thomas was discharged by a letter giving as the reason
"Because of your refusal to punch your clock card, in accordance with Company
Policy." But I find, for the same reasons recounted above relating to the discharges
of Dorothy Mattingly and Mary K. Thomas, that the reason assigned in said letter of
December 14 is a pretext to cover up the real reason, and that the actual reason is
union membership and activity and testifying in the first hearing. Southwire Com-
pany, 152 NLRB 1594, is distinguishable.
TELECOM, INC. 121
In arriving at the above findings I have not overlooked the decision of the Kentucky
Division of Unemployment Insurance that Mary Louise Thomas was properly dis-
charged "for violating a Company policy in refusing to punch out .... She was dis-
charged for misconduct connected with her work ." Although that decision is
admissible , it is not controlling. Cadillac Marine & Boat Company, 115 NLRB 107,
footnote 1. But it does not lead me to alter my findings made above because (a) I
am convinced , and have found, that Mary Louise Thomas was unlawfully discharged,
(b) the State decision does not discuss the evidence on which it is based, and (c) it
may well be that an admitted refusal to punch out is a lawful ground for denying
unemployment compensation regardless of whether such ground is a pretext under
our Act, for Kentucky is not concerned with unfair labor practices under our Act.
6. The discharge of Anna Marceline Lee
Anna Marceline Lee was first hired by Telecom in July 1959, quit in November
1962, and was rehired in November 1963. On April 3, 1964, she was discriminatorily
discharged contrary to the provisions of Section 8(a)(3) of the Act. Reinstatement
was thereafter offered to her and she resumed work on November 20, 1964. She
testified at the first hearing.
On December 11, 1964, Lee was laid off along with several other employees, includ-
ing Dorothy Mattingly and the two Thomas girls. I find that Lee was lawfully laid
off for lack of work on December 11, 1964, and that such layoff was not inspired by
hostility to the IUE or because Lee testified at the first hearing. The bases for finding
the layoff of December 11 to be lawful are set forth in the discussion of the dis-
charges of Dorothy Mattingly and the two Thomas girls. Repetition thereof at this
point would be supererogatory.
Further, I find that on November 20, 1964, Foreman Ed Swencki warned Lee that
all eyes would be on her. On this issue I credit Lee and reject Swencki's contrary
evidence . I also find that Plant Manager Petersen reprimanded Lee for staying too
long in the restroom . I do not credit Lee that she was constantly watched. But I
further find that the foregoing two statements do not disclose union animus or a veiled
threat to take reprisals against Lee for testifying at the first hearing. Hence I find that
these two statements did not enter into the decision to lay off Lee on December 11.
The fact that Lee had work to do at the time of her layoff does not compel a different
conclusion , because no evidence was introduced that Lee was laid off out of seniority.
Hence Lee 's work may have been assigned to some one senior to her who was retained
on December 11. In fact Lee herself testified that those senior to her have been
recalled, thus implying that some work is available for senior employees even when a
layoff occurs.
Lee has not been recalled since her layoff. But this in itself does not demonstrate
that she has received discriminatory treatment. N.L.R.B. v. Threads, Incorporated,
308 F. 2d 1, 8 (C.A. 4); N.L.R.B. v. Little Rock Downtowner, 341 F. 2d 1020, 1021
(C.A. 8). "An employer's conduct is not unlawful, however, merely because it
results in the termination of employment of a union member." Pioneer Photo Engrav-
ing, Inc., 142 NLRB 1099, 1101. Neither union activity nor testifying at a Board
hearing guarantees permanent employment. Mitchell Transport, Inc., 152 NLRB 122;
Metals Engineering Corporation, 148 NLRB 88; Wellington Mill v. N.L.R.B., 330
F. 2d 579, 586-587 (C.A. 4).
As pointed out above , failure to recall a union member or a witness who has testi-
fied for the General Counsel is inadequate to attribute such failure to a discriminatory
intent. N.L.R.B. v. Covington Motor Co., Inc., 344 F. 2d 136, 138 (C.A. 4). It
must be additionally shown that such failure is proximately linked with the unfair
labor practice in issue. N.L.R.B. v. The Citizen-News Company, 134 F. 2d 970, 974;
Lasko Metal Products, 148 NLRB 876. But I am unable to find that the failure to
recall Lee is related to the other unfair labor practices found herein, or to her union
activity, or to the fact that she testified at the first hearing. Hence I shall recommend
that the complaint be dismissed to the extent that it seeks relief for Lee.
7. The discharge of Mary Carolyn Mattingly
In my opinion Mary Carolyn Mattingly was discharged for failing to make her
quota; i.e., because her production was low. I so find. Mattingly herself testified
and I find, that, after an incentive plan was inaugurated in December 1964, her quota
became 19.2, that she never produced that many, that she usually produced 15 or 16,
that early in January 1965, her foreman instructed her that she "had to make the
rates" and was failing to attain her quota, and that her foreman on January 7, 1965,
again repeated the foregoing admonition . Since she did not make her quota , the dis-
charge of Mattingly must be upheld as having been made for cause unless the evidence
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discloses this is a pretext and that the real cause can be traced to her union activity, or
her testifying at the first hearing, or both. But on the entire record and the following
factors (which I find as facts) I do not find pretext.
a. Respondent gave Mattingly a timely and reasonable warning that she was failing.
in production and a reasonable time to improve the situation. Indeed if Mattingly
had been discharged without granting her a reasonable time to increase her output,
there may have been imputed a discriminatory motive to Respondent by reason of the
abruptness of the discharge. N.L.R.B. v. Elias Bros. Big Boy, Inc., et at., 325 F. 2d
360, 366 (C.A. 6).
b. No condonation is shown. Mattingly did not fail in her production over such a
substantial period of time that it may be found that Telecom overlooked or condoned
her shortcomings. While it may be true that she failed to meet some of her quotas
prior to the inception of the new incentive plan, it is equally true that she made many
quotas during that same period. Hence condonation may not be inferred.
c. Although Mattingly has been found to have been discriminatorily discharged in
April 1964, for union activity, and had testified in the first hearing, I am unable to find'
that these are the actual reasons for her discharge. Rather, I find no proximate con-
nection between her discharge and her union activity or her testifying at the first
meeting. N.L.R.B. v. Covington Motor Co., Inc., supra.
d. It is of no consequence that Mattingly attained some of her quotas under the
standards in effect prior to November 30, the date on which she returned to work.
This is so because the record is barren of evidence that Mattingly's new standards
were instituted for discriminatory reasons; i.e., to be used as a pretext to get rid of her
for being a union member or for testifying at the first hearing, or both. It is true that
I sustained an objection to the General Counsel's attempt to introduce evidence of the
various ingredients of an incentive system. But this was offered by him only to show
the elements of all time studies, and not that a particular time study, such as Mat-
tingly's, was adopted from discriminatory motives. In my opinion the ingredients of
an entire incentive plan are not an issue in this case. Nor did the General Counsel
introduce evidence to show that raising the quota from 14 to 19.2 was discriminatory.
e. Since Mattingly failed to make her quotas, the extent of discipline which she
merited therefor is lodged with her employer and may not be reviewed in this proceed-
ing. N.L.R.B. v. Ace Comb Co. and Ace Bowling Co., Division of Ameruse Corp.,
342 F. 2d 841, 847 (C.A. 8). Hence neither the Trial Examiner nor the Board may
examine or inquire into the severity, or the wisdom, or business judgment, of an
employer who is guided in good faith by nondiscriminatory motives in releasing an
employee. N.L.R B. v. Ace Comb, supra; N.L.R.B. v. United Parcel Service, Inc.,
317 F. 2d 912, 914 (C.A. 7); Thurston Motor Lines, 149 NLRB 1368.
f. Finally, the record discloses no record of disparate treatment of Mattingly; i.e.,
no evidence has been presented by the General Counsel that other employees falling
short on their production quotas were retained. In fact, the only evidence on this facet
of the case, which came from Respondent, indicates that other employees were termi-
nated for poor efficiency records.
8. The discharge of Lillian O'Daniel
It is my opinion, and I find, that Lillian O'Daniel's version of this phase of the
case should be credited, and that Respondent's evidence inconsistent therewith should
not be credited. In this respect I have not disregarded a "supervisor' s personnel
report" dated November 23, 1964 and signed by supervisor Melvin Settles. (Respond-
ent's Exhibit 12.) This document states that Lillian gave Settles a 2-week notice,
that he "recommended" acceptance of her resignation, and that the report "has been
discussed with employee " But I find that Settles never discussed the report with
Lillian. And I further find that no notation appears on said report that O'Daniel's
alleged resignation had been accepted. Further Respondent's witness Wenner testified
that O'Daniel's resignation could not immediately be accepted because Plant Manager
Petersen, with whom he wanted to clear this, was out of town. Yet Settles testified
that he notified Petersen of the alleged resignation about November 23, 1964, which is
the date of Respondent's Exhibit 12, and no reason is given why Petersen did not
then pass on the purported resignation. In fact Wenner testified that Petersen had to
approve hiring and firing, but not resignations. It is for these reasons, plus my obser-
vation of the witnesses, that I credit O'Daniel and reject Respondent's contrary evi-
dence on this segment of the case.
But even if O'Daniel did give a 2-week notice on November 23, 1964, as Respond-
ent contends, it is manifest that it was not accepted until December 11, more than 2
weeks later, and without an intimation communicated to her in the meantime that it
was being or would be accepted. Respondent explains this delay by pointing out that
Plant Manager Petersen, who had to approve the resignation, was out of town on the
TELECOM, INC. 123
14th day following November 23. Yet Petersen knew of the so-called resignation, if
Settles is right, on November 23, and no explanation is given why Petersen had to
defer his decision to accept it until December 11. Moreover Respondent's own evi-
dence shows that Peterson's consent was not necessary to make a resignation effective.
Finally, Respondent has not explained why it insisted on accepting the resignation of
an employee who did not want to leave her employment; for Respondent's evidence
is to the effect not only that O'Daniel refused to sign a paper stating that she had quit,
but also that O'Daniel repudiated or withdrew the so-called resignation and insisted
that she was not resigning.
It has been found that O'Daniel had not resigned. I further find that Respondent's
insistence upon approving her so-called resignation on December 11 amounts to a
dismissal or discharge of O'Damel. On the evidence before me I find that she is a
member of IUE, that she was active on behalf of the Union, and that Respondent
prior to December 11 had knowledge thereof. Finally, I find on the entire record and
,the subsidiary findings relating to O'Daniel, that O'Daniel was discharged for her
union membership and activity. In this connection, I deem the fact that Respondent
persisted in assenting to a nonexistent resignation as tantamount to a discharge with-
out giving a reason therefor. When an employee is terminated without being given
a reason therefor it warrants the inference that the discharge is discriminatory.
N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5); N.L R.B. v. Plant
City Steel Corp., 331 F.2d 511 (C.A. 5); American Grinding & Machine Co., 150
NLRB 1357. While not conclusive, I have taken this fact into consideration.
Hence I conclude as an ultimate fact that O'Daniel was discharged on December I 1
and that her discharge was motivated by antiunion considerations. But see Martin v.
Worcester, 207 N.E. 2d 364 (Mass.).
9. The discharge of Jessica L. Williams
As noted above, this employee did not testify. However, it was stipulated, and I
find, that Jessica Williams was originally hired on November 11, 1963, and laid off on
April 3, 1964; that she was an alleged discriminatee, and appeared as a witness, in the
first hearing (153 NLRB 830); that Respondent offered her reinstatement on Novem-
ber 18 or 19, 1964; that she returned to work on November 30, 1964; and that she was
laid off on December 11, 1964. Further, I find as a result of the Board's decision in
Telecom, Inc., 153 NLRB 830, that the layoff of Williams on April 3, 1964, was dis-
criminatory within the contemplation of Section 8(a) (3) of the Act.
Respondent contends that the layoffs of December 11 were prompted by economic
reasons, and that in selecting employees for that layoff seniority was followed except
that employees of superior ability were retained in preference to less skillfull employ-
ees with greater seniority. I have credited that explanation. Cf Frontier Homes, 153
NLRB 1070. Respondent likewise argues that it followed that same procedure when
it laid off Williams, claiming that, since a reduction in force was dictated by lack of
work, Williams was slated to go because she was low in efficiency as well as in
seniority. In the absence of contradictory evidence, I accept Respondent's testimony
as to why Williams was laid off.
It follows, and I find, that Williams was lawfully laid off on December 11; that no
pretext was contrived to justify this action; and that she was not laid off for union
activity or for testifying at the first hearing. American Grinding & Machine Co.,
supra, does not require a different conclusion. It is distinguishable. In American
Grinding, two employees who did not testify were found to have been discriminatorily
discharged because the evidence disclosed "in all material respects the discharge of
these two employees did not differ from those of other employees found to be dis-
criminatees. In these circumstances, their testimony was not an essential element in
proving that they were unlawfully discharged." But in the case of Williams not only
do the circumstances of her layoff diverge factually from the facts surrounding the
discharges found herein to be discriminatory, but her layoff resembles almost iden-
tically that of other employees found herein to have been lawfully laid off on
December 11, 1964.
Nor do I find that Williams has not been recalled for discriminatory reasons; i.e.,
because she engaged in union activity or testified at the first hearing. This conclusion
emanates from the absence of any credible evidence in the record to warrant such a
finding. Cf. Southwire Company, 152 NLRB 1594.
Accordingly, I shall recommend that the complaint be dismissed in so far as it
prays for relief for Williams.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices, as set forth
in section III, above , occurring in connection with its operations described in section I,
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent has engaged in certain unfair labor practices
prohibited by Section 8(a)(1), (3), and (4) of the Act, I shall recommend that
it cease and desist therefrom and that it take specific affirmative action, as set forth
below, designed to effectuate the policies of the Act . Since the Board has found in
the first hearing ( Telecom, Inc., supra ) that Respondent committed unfair labor
practices , the totality of Respondent 's conduct in that and the instant case reveals a
hostility on Respondent 's part to its employees ' exercise of rights guaranteed by the
Act which goes to the "heart of the Act." The Weston and Brooker Company, 154
NLRB 747. Accordingly , to prevent recurrence of such violations , and in order to
effectuate the policies of the Act , I shall recommend that Respondent be ordered to
cease and desist from engaging in the unfair labor practices found, or in any other
manner from interfering with, restraining , or coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act.
In view of the finding that Respondent discriminated with respect to the tenure of
employment of those employees listed in the margin ,12 the Recommended Order
herein will require Respondent to offer each of them full and immediate reinstatement
to her former position or one substantially equivalent thereto, without prejudice to
her seniority and other rights and privileges , and to make each whole for any loss of
earnings suffered by reason of the discrimination . In making whole said employees
Respondent shall pay to each a sum of money equal to that she would have earned as
wages from the date of such discrimination to the date of reinstatement or a proper
offer of reinstatement , as the case may be, less her net earnings during such period.
Such 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 thereon at 6 percent
as ascertained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB
716. I shall also recommend that Respondent preserve and make available to
the Board or its agents , upon reasonable request, all pertinent records and data neces-
sary to analyze and calculate the amount, if any, of backpay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Sections 2(5) and 8 (a) of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a) and is
engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
3. By discriminating in regard to the tenure of employment of Patricia Evans,
Dorothy C. Mattingly, Mary Kaye Thomas, Mary Louise Thomas, and Lillian
O'Daniel, thereby discouraging membership in the IUE, a labor organization,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By discharging Mary Brady Roberts, Mary Kaye Thomas, and Mary Louise
Thomas, and failing to recall Patricia Evans, for testifying in the first hearing,
Respondent has engaged in unfair labor practices as defined in Section 8(a)(4) of
the Act.
5. The unfair labor practices set forth in paragraphs 3 and 4, above , derivatively are
also unfair labor practices which violate Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices described in paragraphs 3, 4, and 5, above,
affect commerce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not engaged in any other unfair labor practices as alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record herein , and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I shall recommend that Telecom, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in IUE, or any other labor organization , by dis-
charging employees or otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of employment.
"Patricia Evans, Mary Brady Roberts, Dorothy C. Mattingly, Mary Kaye Thomas,
Mary Louise Thomas, and Lillian O'Daniel.
TELECOM, INC. 125
(b) Discharging, failing to recall, or otherwise discriminating against employees
because they have given testimony under the Act.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form, joint, or assist said IUE or any
other labor organization, 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 and all of
such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to each of the employees named below immediate and full reinstatement
or reemployment, as the case may be, to her former or a substantially equivalent
position, without prejudice to her seniority or other rights and privileges previously
enjoyed, and to make each whole for any loss of pay she may have suffered by reason
of the discrimination against her, with interest at the rate of 6 percent, in the manner
provided in the section herein entitled "The Remedy."
Patricia Evans Mary Louise Thomas Mary Kaye Thomas
Dorothy C. Mattingly Mary Brady Roberts Lillian O'Daniel
(b) Notify each of the above-named employees if presently serving in the Armed
Forces of the United States of her right to full reinstatement or reemployment, as the
case may be, upon application in accoidance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records and reports, and all other records neces-,
sary to analyze the amount of backpay due under the terms of this Recommended'
Order.
(d) Post at its plant in Lebanon, Kentucky, copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being signed by the Respondent's duly authorized representative,
be posted by the Respondent and maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are customarily
posted at said plant. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith.14
It is further recommended that the complaint be dismissed in all other respects.
13 If 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 "
u If 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union of Electrical,
Radio and Machine Workers, AFL-CIO, or in any other labor organization, by
discharging any of our employees or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term or condition
of employment.
WE WILL NOT discharge, fail to recall, or otherwise discriminate against any
of our employees because they have given testimony under the National Labor
Relations Act, as amended.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist IUE or any other labor organization, to bargain col-
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lectively through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
WE WILL offer to each of the employees named below immediate and full
reinstatement or reemployment, as the case may be, to her former or substantially
equivalent position without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make each whole for any loss of pay suffered as
a result of the discrimination against her, with interest thereon at the rate of
6 percent per annum.
Patricia Evans Mary Louise Thomas Mary Kaye Thomas
Dorothy C. Mattingly Mary Brady Roberts Lillian O'Daniel
All our employees are free to become, remain , or refrain from becoming or remain-
ing members of the above-named IUE, or any other labor organization.
TELECOM, INC.,
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 or reemploy-
ment, as the case may be, upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, 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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 684-3686.
Copeland Oil Co ., Inc.; Metropolitan Petroleum Company, a
Division of the Pittston Company and Local 648, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case No. 3-CA-P592. February 25, 1966
DECISION AND ORDER
On October 29, 1965, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that they cease and desist therefrom, and take
certain affirmative action as set forth in the attached Trial Examiner's
Decision. He also found that Respondents had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended that such allegations be-dismissed. Thereafter, Respondents
filed exceptions to the Trial Examiner's Decision and a supporting
brief.'
1 Respondents have requested oral argument. Because, in our opinion, the record, the
Trial Examiner 's Decision, and the exceptions and brief adequately set forth the issues
and the positions of the Respondents, this request is hereby denied.
157 NLRB No. 12.