Telex Communications, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1989

294 N.L.R.B. 1136 (N.L.R.B. 1989)

1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Telex Communications, Inc. and International
Brotherhood of Electrical Workers, Local No.
2047, AFL-CIO. Cases 18-CA-10438 and 18-
CA-10483-1
June 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 7, 1988, Administrative Law
Judge' Jay R. Pollack issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed a brief in oppo-
sition to the Charging Party's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings," and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Telex Com-
munications, Inc., Rochester, Minnesota , its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
April 5, 1988 . The charge in Case 18-CA-10483-1 was
filed by the Union on May 3, 1988 . Thereafter, on June
17, 1988, the Regional Director for Region 18 of the Na-
tional Labor Relations Board issued an order consolidat-
ing cases , consolidated complaint and notice of hearing
alleging violations by Telex Communications, Inc., (Re-
spondent) of Section 8(a)(3) and (1) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act).
The parties have been afforded full opportunity to
appear, to introduce relevant evidence , to examine and
cross-examine witnesses, and to file briefs. Upon the
entire record, from my observation of the demeanor of
the witnesses , and having considered the posthearing
briefs of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
At all times material herein , Respondent, a Delaware
corporation, has been engaged in the manufacture of
hearing aids at its Rochester , Minnesota plant. During
the 12 months prior to issuance of the complaint, Re-
spondent sold and shipped goods and products valued in
excess of $50,000 directly to customers located outside
the State of Minnesota . Accordingly , Respondent admits
and I find that it is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
The parties stipulated and I find that at all times mate-
rial herein the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
' The Charging Party has excepted to some of the judge 's credibility
,tidings. The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
The judge erroneously reported the citations to Arkansas Lighthouse for
the Blind, 284 NLRB 1214 (1987), and Wright Line, 251 NLRB 1083
(1980).
In adopting the judge's finding that the Respondent did not violate
Sec. 8(aX3) and ( 1) of the Act by discharging employee Rubin , we find it
unnecessary to rely on his discussion at fn . 4 of his decision concerning
employee Coop's testimony.
Warren D. Kaston, Esq. and Marlin O. Osthus Esq., for
the General Counsel.
Kenneth E Ristau, Esq. (Gibson, Dunn & Crutcher), of
Newport Beach, California, for the Respondent.
Mary Harrigan , of St . Paul, Minnesota , for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAY R . POLLACK, Administrative Law Judge. This
case was tried before me at Rochester, Minnesota, on
July 20 and 21, 1988 . The charge in Case 18-CA-10438
was filed by International Brotherhood of Electrical
Workers, Local No. 2047 , AFL-CIO (the Union) on
A. Background and Issues
Respondent manufactures hearing aids at its Rochester
plant and at five other locations including nearby Le
Sueur, Minnesota. Local 949 of the IBEW represented
the employees at Respondent's plant until Local 949 was
decertified in January 1987. The Union, a sister local of
Local 949, began organizing at the Rochester plant in
early 1988. The Rochester plant employs approximately
350 employees.
The complaint alleges that in its response to the orga-
nizing campaign, Respondent threatened employees with
total or partial plant closure , rescission of previously
granted wage increases , damage to their automobiles,
and minimum wages and benefits. Further the complaint
alleges that Respondent discharged employee Vickie
Rubin because of her union activities and disciplined em-
ployee Anna Finger because of her protected concerted'
activity. Respondent denies all such allegations . Further,
Respondent contends that Rubin and Finger were disci-
plined because of violations of nondiscriminatory compa-
ny policies.
B. The Company Meetings
On March 31 , 1988, Randy Lacey, Respondent's as-
sembly manager , held six meetings in which he an-
nounced a general wage increase to groups of Respond-
ent's employees . All hourly employees had received a
294 NLRB No. 87
TELEX COMMUNICATIONS 1137
wage increase of 2 percent effective May 9, and a chance
to receive another 3-percent merit increase after their
next performance review. Lacey used a three-page flip
chart to explain how employees would progress up the
wage scale. Employees at the high end of the scale could
receive a maximum increase of 5 percent, while employ-
ees at the low end could receive as much as 11 percent,
assuming they were not scheduled for a merit review
until 11 months later and progressed up the wage scale
in the meantime . Lacey further explained that the proba-
tionary period was modified. After a formal presentation
of approximately 20 minutes, the employees were permit-
ted to ask questions. It was the employees, and not
Lacey, who first raised the topic of the Union. Lacey re-
sponded to employees' questions about the Union at each
of the six meetings.
Anna Finger testified that she attended a meeting of
the BTE department employees at approximatley 7:30
a.m According to Finger, Lacey responded to employee
questions by saying Respondent "would not stand for an-
other union, to work with another union, and would just
move the product to Le Sueur and other sister plants."
Lacey said there was a 10-percent unemployment rate in
Le Sueur and only a 3-percent rate in Rochester. Re-
spondent could have hearing aids made in Le Sueur at a
cheaper rate or at minimum wage . John Cinelli, Re-
spondent' s plant manager , lived in Le Sueur and would
be more than willing to stay there rather than move to
Rochester. In response to a question about bargaining,
Lacey said that the employees would have to start from
scratch if the Union got back in and he would take the
employees' benefits away.
In notes written shortly after the meeting, Finger
noted that Lacey answered a question by saying work
had been transferred to Le Sueur to keep employees
working, but if the Union got in, the Le Sueur employ-
ees would be trained because Respondent would not
stand for a union . Lacey continued that Respondent was
nonunion and did not want to work with any union.
There was no mention in these notes of minimum wage
or bargaining from scratch. In a pretrial affidavit, Finger
stated that work had been transferred to Le Sueur to
keep employees working and that Lacey said that if the
Union got in these employees would be trained because
Respondent would not stand for a union. Lacey contin-
ued that Respondent was nonunion and did not want to
work with any union.
Lacey testified that he did not say if the Union got in,
Respondent would move the plant to Le Sueur. Rather,
Lacey explained that the Company had to remain com-
petitive and could only pay competitive wages. That if
the Union came in and the Company was forced to pay
more than competitive wages, the Company might have
to move. Lacey told the employees that work had been
transferred from all of Respondent's plants in order to
keep employees at Le Sueur working. Lacey admitted
mentioning the unemployment rate at Le Sueur and that
Cinelli lived there but denied giving that as a reason for
moving the plant. Lacey told employees that bargaining
was a give-and-take kind of thing, wherein the employ-
ees could "win, lose or draw," but that would not neces-
sarily start bargaining from what they were currently
earning. Lacey denied saying employees would be re-
duced to minimum wages or lose wages or benefits if the
Union was voted in. Lacey did not recall if he used the
words "bargaining from scratch." Lacey told the em-
ployees that a union could not guarantee wage increases
and Respondent thought it could do better without a
union because a union contract placed too many restric-
tions on the Company
Timothy Helmgarn testified that he attended the meet-
ing of the 28AC department at approximately 9 a.m. Ac-
cording to Helmgarn, Lacey was asked a question about
a rumor that the plant would close and move to Le
Sueur if the Union came in. Lacey responded by saying
Cinalli lived in-Le Sueur and was the manager for both
plants. Cinelli would rather be living in Le Sueur and
would rather just close up the plant in Rochester and not
have to move his family. Lacey mentioned the high un-
employment rate in Le Sueur compared to Rochester
and said Respondent would be more than willing to find
employees in Le Sueur and that those employees would
be nonunion. As mentioned earlier, Lacey testified that
he explained to employees that Respondent needed to
remain competitive but never said that if the Union won
the election, Respondent would move the plant to Le
Sueur. Rather he said if the Union forced Respondent to
pay wages higher than the competition, Respondent
might have to move. Lacey denied saying Respondent
would move because of Cinelli's residence or the high
unemployment rate.
Karla Wencl testified that she attended a meeting of
the shell lab and auditory trainer departments. Accord-
ing to Wencl, Lacey replied to a question about union-
ization by stating that in his opinion Respondent would
not stand for it. He said that in a year the plant would
shut down. Lacey said employees would not necessarily
get higher wages, rather they would have to bargain
from minimum wage and bargain up for wages and bene-
fits. Wencl clarified this testimony and said that Lacey
said the employees would bargain from scratch. The fact
that work had been transferred to Le Sueur was men-
tioned and Lacey said that Cinelli lived there and would
be more than willing not to transfer to Rochester. The
unemployment rate was high in Le Sueur and that Re-
spondent could find employees there willing to work for
the minimum wage Finally, Lacey said that his job was
on the line if the plant closed and if that happened due
to the Union, "he would be the first one out there
throwing rocks at our car windows." Wencl testified that
this last remark was made "in a joking manner "
Lacey testified that it was a rank-and-file employee
and not he who said "well if the Union gets in and
forces us on the unemployment line, I 'll be out there
throwing rocks at their cars." Lacey jokingly replied,
"I'll be on the unemployment line with you." This
remark was accompanied by laughter from the audience.
Lori Rueb testified that she attended the meeting for
the employees of the 28A's department.' According to
' This department is different that the 28AC department that Helm-
gram works in The 28A's meeting was separate from those previously
mentioned
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rueb, in response to a question , Lacey said if the Union
got in Respondent was thinking of moving the plant to
Le Sueur . Lacey said there was high unemployment in
Le Sueur and there would be no problem finding em-
ployees there . Lacey mentioned that Cinelli lived in Le
Sueur and that the Le Sueur plant would be more con-
venient for Cinelli.
C. The Warning Given to Anna Finger
Anna Finger has been a group leader at the Rochester
plant for 8 years . The parties agree that Finger is an em-
ployee and not a statutory supervisor . At the request of a
former coworker, Sherry Peterson, Finger wrote a letter
of recommendation for Peterson in early March. The
letter stated that Peterson had been a good worker on
the assembly line and that finding a good replacement
would be no easy task . Finger signed the letter with the
designation "group leader" after her name. Apparently
Peterson presented Finger's letter at an unemployment
compensation hearing.
On March 22, Finger was summoned to a meeting in
Lacey's office . Mary Parker , Finger's supervisor, was
also present . Lacey told Finger that she was being disci-
plined for violating a company policy enunciated in a
memorandum issued by John Howe , Respondent's presi-
dent, in October 1986 . Finger had not previously seen
this memorandum . Finger then received a documented
warning, the first step in Respondent 's progressive disci-
pline system . The warning stated that Finger had acted
as a representative of management without having such
authority . On March 23 , Finger requested a copy of the
company policy under which she had been disciplined.
Lacey told Finger, and the warning so states , that no
further discipline would be taken if Finger thereafter
complied with the policy . Lacey told Finger that the
reason for the warning was because her recommendation
could get the Company in trouble . Lacey said he did not
agree with Cinelli's position that Dayton Rued, a super-
visor, be disciplined for writing a similar letter, and
Finger should be treated the same .2 Lacey told Finger
that he had no objection to her testifying at Peterson's
unemployment hearing as an employee. What Lacey ob-
jected to was the giving of a recommendation, acting as
management , when she had no management authority to
give one.
On October. 8, 1986, John Howe, Respondent's presi-
dent, implemented a policy stating:
Our Company policy on providing written or
verbal information about former employees shall be
limited to the period of employment and occupa-
tion . No other information should be provided.
The policy was distributed to members of management.
Finger and the other rank-and-file employees received no
notice of the policy . The purpose of the policy was to
avoid possible lawsuits by former employees.
D. The Discharge of Vickie Rubin
Rubin had been employed by Respondent for 9 years
and had recently been promoted to lead assembler in the
TCA department. Rubin was not a supervisor. Rubin
was one of the most active union supporters in early
1988 . She attended union meetings , solicited union au-
thorization cards, and distributed union literature. In the
spring of 1988 , Rubin posted a greeting card at her work
station from Mary Harrigan , a union organizer, thanking
Rubin for her work on behalf of the Union . This card
was observed by several supervisors . On April 25, Rubin
distributed union literature in the employee lunchroom
prior to work . She was observed by at least one supervi-
sor.
On April 27, Rubin had an incident with fellow em-
ployee Carmen Sexton for which Rubin was eventually
discharged . The various and conflicting versions of this
incident will be discussed in detail below.
On April 28 , Rubin was called into Lacey 's office with
her supervisor, Mike Boysen . According to Rubin,
Lacey said he had received a complaint that Rubin had
pulled Sexton's hair and had jerked her neck. Lacey said
the Company had a strict policy against employees
touching one another . Rubin explained to Lacey that she
had merely turned Sexton's head and urged her to get
back to work. According to Rubin , Lacey told her that
if she had touched a male, she could be charged with
sexual harassment . Lacey said he was going to talk to
other witnesses and was going to confer with Cinelli
before deciding whether to terminate Rubin.
On the morning of April 29, Respondent distributed an
informational letter to employees alleging that the Union
was refusing to return authorization cards to employees
who had changed their minds . In the presence of em-
ployees and her supervisor, Mike Boysen, Rubin took
issue with the letter and called it a "crock."
That afternoon , Rubin was called into a meeting with
Boysen and Cindy Lund, Respondent's personnel direc-
tor. Boysen told Rubin that she was being terminated for
gross misconduct . When asked by Rubin if he thought
the termination was fair , Boysen refused to respond. .
Carmen Sexton testified that on April 26 she had a
conversation with Rubin about Sexton 's absences. The
conversation ended with Rubin stating "I wouldn 't laugh
because I can make your life miserable here." The next
day Sexton was working with employee Angie Thomas.
Thomas was showing Sexton how to cut and buff a hear-
ing aid . That morning after Sexton turned to her left to
ask Thomas a question, Rubin came from behind her and
grabbed her head , twisted it, and shoved it toward .the
machine . Rubin told Sexton to get back to' work.
Sexton complained to her supervisor, Boysen, about
Rubin's threat of the previous day and acted out the
twisting and shoving of her head . Sexton was concerned
that her hair could have been caught in the buffmg ma-
chine, causing serious injury. 3 Later that afternoon
Sexton complained to Lacey.
a Based on the physical demonstration at the hearing and the credible
$ Rued, a supervisor , also wrote a letter of recommendation for Peter- evidence of several witnesses, I find that the buffing machine can cause
son and received a warning for doing so. serious injury and could pull out a large section of one's hair.
TELEX COMMUNICATIONS
Rubin denied that she had done anything other than
gently direct Sexton's head towards her work. Accord-
ing to Rubin, she lightly turned Sexton's head and rotat-
ed it towards the work station and said "Let's get back
to work." Rubin testified that Sexton's hair was in no
danger. However, Thomas, whom I credit, corroborated
Sexton's testimony. Thomas testified that while Sexton
was asking a work-related question, Rubin put her hands
on each side of Sexton's head and pushed it towards the
machine. Contrary to Rubin's testimony, Thomas testi-
fied that this was not a gentle maneuver. On the day fol-
lowing the incident, Boysen questioned Thomas and she
reported what she had seen. Based on the credible testi-
mony of Thomas, a disinterested witness, I credit Sex-
ton's version of this incident over the testimony of
Rubin.4
Lacey testified that he decided to terminate Rubin,
with Cinelli's approval, based on Boysen's investigation.
Boysen reported that Sexton complained on April 27
that Rubin had physically grabbed her head, twisted it,
and shoved it forward. Boysen questioned Thomas who
confirmed Sexton's story "exactly." Boysen had Sexton
act out the incident for him, outside of Thomas' pres-
ence. He then had Thomas act out the incident outside
of Sexton's presence. Based on these statements and dem-
onstrations, Boysen concluded that "Rubin was grossly
negligent in physical [sic] reprimanding an employee."
Lacey testified that he decided to terminate Rubin,
rather than give her a written warning, because her ac-
tions constituted willful misconduct.
Respondent's employee handbook contains a policy
prohibiting sexual harassment . It further provides for
progressive discipline with "willful misconduct" as an
exception. Although the handbook gives theft and dis-
honesty as examples of willful misconduct, it is clear that
those are not the exclusive definitions of willful miscon-
duct.
General Counsel argues that Respondent had previous-
ly condoned casual touching of employees. Assuming
such a policy, that does not help General Counsel's case.
The instant case does not involve casual or consensual
contact. Rather the credible evidence establishes a physi-
cal attack deemed violent by the recipient.
General Counsel argues that Respondent condoned
other forms of willful misconduct. However there is no
evidence that Respondent condoned action such as took
place here. Respondent did not terminate employees in-
volved in sexual harassment claims because persons com-
plaining did not want to be identified but Respondent at-
tempted to take corrective action. Respondent did not
terminate an employee engaged in misconduct while in-
toxicated. Lacey believed that Respondent had to at-
tempt to offer. counseling before discharging such an em-
ployee In sum , there was no credible evidence that a
similar incident had occurred or that Respondent had
condoned such conduct.
Finally, I find no support for General Counsel's case
in the reinstatement of two employees who had been dis-
4 The testimony of employee Sharon Coop further indicates that Rubin
was angry with Sexton on the dates in question This anger may well ex-
plain the threat of April 26 and the incident of April 27
1139
charged for falsifying timecards in April. The evidence
established that Cinelli reinstated the employees because
they convinced him that prior to their discharge the
company policy was inconsistent. Cinelli immediately re-
instated the policy and announced that, in the future, fal-
sification of timecards would result in termination.
Analysis and Conclusions
1. The statements to employees
The Supreme Court in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), established certain standards for de-
termining whether an employer 's statements about the ef-
fects of unionization are permissible. The Court stated
that any evaluation of employer's statements must take
into account the economic dependence of the employees
on their employers, and the necessary tendency of the
employees to pick up implications that might be more
readily dismissed by a more disinterested person.
.. an employer is free to communicate to his em-
ployees any of his general views about unionization
or any of his specific views about a particular union
so long as the communications do not contain a
"threat of reprisal or promise of benefit." He may
even make a prediction as to the precise effects he
believes unionization will have on his company. In
such a case, however, the prediction must be care-
fully phrased on the basis of objective facts to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization. . . If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
to him , the statement is no longer a reasonable pre-
diction based on available facts but a threat of retal-
iation based on misrepresentation and coercion and
as such without the protection of the First Amend-
ment. Id. at 618
Based on the credited testimony of Lacey, I find that
Lacey said that if the Union won and Respondent were
forced to pay higher wages than it could afford, then
Respondent might have to move. Under Gissel, Lacey
was free to give his belief as to the economic conse-
quences of unionization. The question here is whether
Lacey implied that mere unionization would result in a
move to Le Sueur. Lacey's reference to the high unem-
ployment and Cinelli's residence in Le Sueur imply that
Respondent would move based on these already existing
facts if the employees added the Union to the equation.
Thus, put in context, Lacey's remarks imply that Re-
spondent has not moved in the face of these factors but
would do so because it "would not stand for a union."
Under Gissel, such remarks will be deemed to be threats
rather than permitted predictions See Arkansas Light-
house for the Blind, 284 NLRB 1214 (1987); Standard
Products Co, 281 NLRB 141 (1986).
The credible evidence establishes that Lacey told the
employees that a union could not guarantee a wage in-
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crease and that he thought Respondent could do better
without a union contract with its restrictions on manage-
ment. Lacey told employees that bargaining was a give-
and-take situation and that employees would not neces-
sarily receive more wages and benefits as a result of the
Union. Lacey told the employees bargaining would not
necessarily start from the current levels of wages and
benefits. I discredit the testimony alleging that Lacey
said employees would receive minimum wage or that
employees would be hired in Le Sueur at minimum
wage
In S. E. Nichols, Inc., 284 NLRB 556, 577 (1987), the
Board stated as follows:
It is well established that "bargaining from
ground zero" or "bargaining from scratch" state-
ments by employer representatives violate Section
8(a)(1) of the Act if, in context, they reasonably
could be understood by employees as a threat of
loss of existing benefits and leave employees with
the impression that what they may ultimately re-
ceive depends upon what the union can induce the
employer to restore. On the other hand, such state-
ments are not violative of the Act when other com-
munications make it clear that any reduction in
wages or benefits will occur only as a result of the
normal give and take of negotiations.
Lacey told the employees that bargaining involved
give and take. He indicated that employees did not nec-
essarily receive higher wages and benefits He said em-
ployees might "win, lose or draw." I find such comments
to be permissible expression of opinion and not a threat
that the employer would automatically reduce wages.
See UARCO, Inc., 286 NLRB 55 (1987).
As to the allegations concerning a threat to throw
rocks, I find that such threat was made by an employee.
Lacey's facetious remark that he too would be on the
unemployment line was greeted by laughter. I cannot
find by such conduct that Lacey threatened employees
with physical harm. I shall recommend dismissal of this
complaint allegation.
2. The warning given to Anna Finger
It is well settled that "an employee's action in aid of a
fellow employee's attempt to obtain unemployment com-
pensation benefits is concerted activity for the purpose of
mutual aid or protection within the meaning of Section 7
of the Act." S & R Sundries, Inc., 272 NLRB 1352, 1357
(1984); Supreme Optical Co., 235 NLRB 1432, 1433
(1978).
In the instant case, Finger's letter of recommendation
was not limited to the unemployment hearing. Rather it
was a general letter of recommendation addressed "to
whom it may concern." The letter was contrary to com-
pany policy. However it is undisputed that employees
such as Finger had no notice of the policy. Under these
circumstances, Finger's warning indicated that she had
improperly held herself out as a supervisor and that she
had no authority to give recommendations as a supervi-
sor:
In my view, whatever technical violation might have
occurred was cured by Lacey's explanation to Finger
that she could testify on behalf of employees at unem-
ployment hearings but could not hold herself out as a su-
pervisor or give recommendations that appeared to be on
behalf of the Company. Further, Finger was told that
nothing would happen if she did not violate the policy
again.
The evidence on the whole indicates that Respondent
was not motivated by Finger's participation in the unem-
ployment hearing but rather the writing of a letter of
recommendation which implied that Finger was a super-
visor or manager. The company policy existed before the
incidents of this case and was not intended to interfere
with employee Section 7 rights. Lacey did his best to
communicate the distinctions involved herein. Under all
of the circumstances, I shall recommend dismissal of this
allegation of the complaint.
3. The discharge of Vickie Rubin
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of
8(a)(1) turning on employer motivation. First, the Gener-
al Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a "mo-
tivating factor" in the employer's decision. Upon such a
showing, the burden shifts to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board's
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-403 (1983). -
Assuming that Respondent had knowledge of Rubin's
activities, I cannot find that General Counsel has estab-
lished a prima facie case. The evidence indicates that
after a complaint from Sexton, Boysen attempted to in-
vestigate. He questioned Sexton and Thomas separately
and asked Rubin for her version. Based on corroboration
by Thomas, Boysen concluded that Sexton had truthfully
related the events. Based on this investigation , Respond-
ent quickly discharged Rubin.
Against this business reason for the discharge, the
General Counsel has not established by credible evidence
that the discharge was motivated by antiunion consider-
ations. General Counsel argues that Rubin was treated
disparately but there is no evidence to support that con-
tention. There is no evidence of similar conduct by any
other employee. While casual touching has been con-
doned, the credible evidence establishes that this incident
involved more than casual contact. The threat made the
day before gives' reason to believe that willful miscon-
duct was involved. There was no animus shown against
Rubin for her union activities. The remarks made by
Lacey at the employee meetings do not support a finding
that Respondent's opposition to the Union was so strong
as to impel it to violate the law to keep the-Union out.
Moreover, even if the General Counsel were deemed to
have established a prima facie case, the evidence over-
TELEX COMMUNICATIONS
whelmingly establishes that Rubin would have been dis-
charged even in the absence of her union activities
CONCLUSIONS OF LAW
1. The Respondent, Telex Communications, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers,
Local No. 2047, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. By impliedly threatening employees with moving or
closing the Rochester plant if employees chose the
Union, Respondent engaged in conduct in violation of
Section 8(a)(1) of the Act.
4. Respondent engaged in no other conduct violative
of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Telex Communications, Inc., Roches-
ter, Minnesota, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees that Respondent would
move or close its Rochester plant for the purpose of dis-
couraging union activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Rochester, Minnesota plant copies of the
attached notice marked "Appendix "s Copies of the
5 All outstanding motions inconsistent with this recommended Order
are denied If no exceptions are filed as provided by Sec 102 46 of the
Board's Rules and Regulations , the findings , conclusions , and recom-
mended Order shall, as provided in Sec 102 48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
1141
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by its authorized rep-
resentative, shall be posted immediately upon receipt and
be maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notice to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed in all respects other than that specifically found.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives all employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT threaten employees with moving or
closing our Rochester plant in order to discourage their
union activities
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
TELEX COMMUNICATIONS, INC.