Triana Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1258 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triana Industries, Inc. and Aluminum Workers Inter-
national Union, AFL-CIO. Case 10-CA-12193
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 27, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
Respondent submitted its brief to the Administrative
Law Judge in support of that Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as
modified herein.
The Administrative Law Judge found, and we
agree, that Respondent, as fully set forth in the at-
tached Decision, reacted to its employees' organiza-
tional activities by engaging in violations of the Act.
We find, contrary to the Administrative Law Judge,
that Respondent also violated Section 8(a)(1) by the
following conduct:
Forbidding Discussion of Wages
On May 9, Respondent's vice president and general
manager, George Malone, during an orientation
meeting of new employees, told these employees "not
to go around asking the other employees how much
they were making, because some of them were mak-
ing more than others." The Administrative Law
Judge, while finding that the statement was made,
concluded that Respondent's statement did not vio-
late Section 8(a)(l) because it did not raise to the level
of a rule the breach of which would imply sanctions,
adding that the statement did not occur during the
time of organizational activity. We disagree.
It is axiomatic that an employer violates Section
8(aX1) of the Act where it engages in conduct which
has a natural tendency to restrain employees in the
exercise of rights guaranteed them under Section 7 of
the Act. Further, Section 7, which grants employees
the unfettered right to engage in concerted activities
for mutual aid and protection, encompasses the right
of employees to ascertain what wage rates are paid by
their employer, as wages are a vital term and condi-
tion of employment. Respondent's statement, by di-
recting employees not to engage in such activity (and
thus implying that the Employer does not look with
favor upon employees who engage in such activity),
clearly tends to inhibit employees in the exercise of
their Section 7 rights. We further find it irrelevant
that Respondent's statement did not occur during a
period of organizational activity. An employer who
restrains employees in the exercise of rights guaran-
teed them under Section 7 violates the Act no less
because his employees have chosen to exercise those
rights independent of union representation.' Further-
more, such discussion may be necessary as a precur-
sor to seeking union assistance and is clearly con-
certed activity. Under these circumstances, we
conclude that Respondent's statement prohibiting
wage discussion among its employees violated Section
8(a)(1) of the Act.
Promises of Benefit
The Administrative Law Judge found that Respon-
dent discussed with employees its efforts to obtain a
credit union and certain benefits on their behalf, but
concluded these statements were not promises of
benefit in violation of Section 8(a)(1), but merely
statements as to what efforts Respondent had made
on behalf of the employees prior to the advent of the
organizational campaign. We disagree.
On August 2, 1976, Respondent's officials, Foster,
Malone, and Toney, conducted meetings with Re-
spondent's employees. At these meetings, which were
the same meetings during which Respondent had un-
lawfully threatened employees with plant closure and
reprisal as discussed, supra, Foster and Toney prom-
ised employees a new break area, a microwave oven,
a refrigerator, a table, and also spoke of its as yet
unsuccessful attempts to secure a credit union for em-
ployees.
Contrary to the Administrative Law Judge, we find
these statements to be unlawful promises of benefit in
violation of Section 8(a)(1). Although these benefits
may have been planned prior to the time Respondent
first became aware of the existence of the union cam-
paign, it is also clear that the rank-and-file employees
had never been told by Respondent that these efforts
were being made on their behalf before these meet-
ings of August 2.2 Accordingly, we conclude that the
announced promises of a microwave oven, refrigera-
tor, a table, a break area, and a credit union, coupled
with a threat of plant closure and reprisal if the
Coosa Valley Convalescent Center, 224 NLRB 1288, 1289 (1976).
2Although some employees were aware that Respondent was in the pro-
cess of constructing an additional building, there is no indication that the
employees were aware that Respondent had undertaken construction of the
building to give its employees a break area.
245 NLRB No. 161
1258
TRIANA INDUSTRIES, INC.
Union came in, were for the purpose of dissuading
Respondent's employees from supporting the Union
or engaging in union activities and therefore were vio-
lative of Section 8(a)(1) of the Act.3
Soliciting Employees To Sign An Antiunion Petition
The Administrative Law Judge dismissed an alle-
gation that Respondent solicited its employees to sign
an antiunion petition, based on his finding that re-
view of the record did not reveal any testimony estab-
lishing such an event. We disagree.
The Administrative Law Judge credited employee
Rainey's testimony in its entirety. Based on her testi-
mony, he found that Malone engaged in extensive
unfair labor practices, as described, supra. Employee
Rainey further testified that, in a meeting with Ma-
lone on August 5, Malone stated that he had seen
that Rainey had not signed the antiunion petition
being passed around that Rainey was not helping the
people at all by not signing this petition. Since, as
noted supra, the Administrative Law Judge credited
employee Rainey's testimony in all respects, we con-
clude that the Administrative Law Judge's statement
that the record contained no relevant evidence was
inadvertent error. In light of the fact that Rainey's
testimony was credited in all respects, we deem this
portion also as being credited, and we find that Re-
spondent's statement to Rainey constituted an impli-
cit instruction or direction to Rainey to sign the anti-
union petition and thus to abandon her support for
the Union. Accordingly, we conclude that Respon-
dent thereby solicited an employee to sign an anti-
union petition in violation of Section 8(a)(1) of the
Act.
THE REMEDY
It having been found that Respondent has com-
mitted certain unfair labor practices, we shall order
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the act. We shall order Respondent to offer Par-
ceanur Burgess full reinstatement to her former posi-
tion of employment or, if that job no longer exists, to
a substantially equivalent job without prejudice to
her seniority or any other rights and privileges previ-
ously enjoyed and that it make her whole for any loss
of wages or benefits she may have suffered as a result
of the discrimination against her. Backpay and inter-
est thereon shall be computed in the manner pre-
scribed by the Board in F. W. Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977). 4
'Alvin Metals Company. 212 NLRB 707 (1974).
'See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
With respect to the General Counsel's request for a
bargaining order, the Administrative Law Judge
found that the instant case was inappropriate for the
issuance of such an order in the absence of a showing
of majority status. For the reasons set forth in our
opinion in United Dairy Farmers Cooperative Associ-
ation, 242 NLRB 1026 (1979), we agree with the Ad-
ministrative Law Judge's conclusion and decline to
issue a bargaining order.5
CONCtLUSIONS OF LAW
1. Triana Industries, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Aluminum Workers International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily discharging Pareanur Bur-
gess on or about August 11, 1976. because of her
union activities, Respondent has engaged in an unfair
labor practice within the meaning of Section 8(a)(3)
of the Act.
4. By the foregoing conduct, by coercively interro-
gating employees concerning their union activities, by
threatening them with plant closure should they des-
ignate the Union, by engaging in surveillance of em-
ployees' activity on behalf of the Union, by soliciting
employees to sign an antiunion petition and to influ-
ence others to reject the Union, by offering employees
benefits in order to discourage union activity, by for-
bidding discussion of wages among employees, Re-
spondent has engaged in unfair labor practices within
the meaning of Section 8(a)( ) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Triana
Industries, Inc., Triana, Alabama, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Discharing or otherwise discriminating against
employees because of their interest in or activity on
behalf of the Union or any other labor organization.
(b) Interrogating employees concerning their inter-
est in or activity on behalf of the Union or any other
labor organization.
(c) Threatening employees with plant closure
5 Member Jenkins does not rel, on (tnited Dair Farmers (nperafive 4s
sociation. supra
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should they designate the Union or any other labor
organization as their bargaining representative.
(d) Engaging in surveillance or creating the im-
pression of surveillance of employees' activity on be-
half of the Union or any other labor organization.
(e) Soliciting employees to influence others to re-
ject the Union or any other labor organization as
their bargaining representative or offer to pay em-
ployees to do so.
(f) Offering employees benefits in order to discour-
age their interest in or activity on behalf of the Union
or any other labor organization.
(g) Prohibiting employees from discussing their
wages with fellow employees.
(h) Promising employees a credit union, micro-
wave oven, refrigerator, a table, and the moving of
employees to an air-conditioned area of the plant in
order to induce them to abandon the Union.
(i) Soliciting employees to sign an antiunion peti-
tion.
(j) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Parceanur Burgess immediate and full re-
instatement to her former job or, if that job no longer
exists, then to a substantially equivalent job without
prejudice to her seniority or any other rights and
privileges previously enjoyed, and make her whole for
any loss of earnings and compensation she may have
suffered because of the illegal discrimination against
her in her employment, as herein found in the manner
set forth in the Remedy section of this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination or copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at each of its plants copies of the attached
notice marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
10, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
6 In the event that 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
National 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."
by Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that in all other respects
the complaint be, and it hereby is, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties participated, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act. We
have been ordered to stop committing these unfair
labor practices, to post this notice, and to abide by its
terms and conditions.
Our employees have the right to join Aluminum
Workers International Union, AFL-CIO, or any
other labor organization, or to refrain from doing so.
WE WILL NOT discharge or otherwise discrimi-
nate against any of our employees because of
their activity on behalf of Aluminum Workers
International Union, AFL-CIO, or any other la-
bor organization.
WE WILL NOT interfere with any of our em-
ployees' right to self-organization by: interrogat-
ing them concerning their union activity; threat-
ening to close the plant if they do select the
Union; engaging in surveillance or creating the
impression of engaging in surveillance of our em-
ployees' union activity; attempting to have our
employees influence others to be against the
Union; offering our employees benefits including
wage increases to be against the Union; prohibit-
ing our employees from discussing wages with
each other; soliciting them to sign an antiunion
petition; and promising them benefits to dis-
suade them from supporting the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILL offer Parceanur Burgess immediate
and full reinstatement to her former job or, if
that job no longer exists, then to a substantially
equivalent job without prejudice to her seniority
or any other rights and privileges previously en-
joyed, and WE WILL make her whole for any loss
of earnings and compensation she may have suf-
fered because of the illegal discrimination
1260
TRIANA INDUSTRIES. INC.
against her in her employment as herein found,
plus interest.
TRIANA INDUSTRIES, INC.
DECISION
STATEMENT OF HE CASE
JAMES L. ROSE, Administrative Law Judge: This matter
was tried before me in Huntsville. Alabama, on February
14, 15, and 16, 1977, upon the General Counsel's complaint
which alleged, in general terms, that Respondent had en-
gaged in certain activity violative of Section 8(a)( ) of the
National Labor Relations Act. 29 U.S.C. Section 151 et
seq., and had terminated 56 employees in violation of Sec-
tion 8(a)(3) of the Act. Although conceding that the labor
organization involved had never been designated as their
representative by a majority of employees, nevertheless the
General Counsel asked for a bargaining order.
Respondent generally denied the allegations in the com-
plaint, and affirmatively alleged that the termination of 55
employees on August 6, 1976,1 was occasioned by business
considerations and the one discharge on August 11 was for
cause.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel. I hereby
make the following:
I. FINDINGS OF FACT AND CONCLUSIONS OF L.AW
Respondent is principally a service company engaged in
contract production of parts used by other area companies.
In connection with this business, the Respondent annually
performs services in excess of $50,000 for companies who in
turn ship goods, products and materials valued in excess of
S50,000 directly to customers outside the State of Alabama.
Respondent stipulated, and I find, that it is an employer
engaged in commerce within the meaning of Sections 2(2),
(6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Aluminum Workers International Union, AFL-CIO
(herein the Union) is an organization in which employees
participate and which exists in part for the purpose of rep-
resenting employees of employers engaged in commerce,
including Respondent, in matters involving wages, hours,
and other terms and conditions of employment. On the ba-
sis of the record, I find that the Union is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent was established in 1972 principally through
the efforts of the Association of Huntsville Area Companies
(AHAC) which organization was interested in helping pro-
JAll dates are in 1976.
mote and establish "black" businesses. This organization
contacted Clyde Foster, the president and part owner of
Respondent. then and now the mayor of Triana. Visits were
made to the major companies in the area. some of whom
agreed to subcontract production work to Respondent once
it was established.
Thus Triana Industries, Inc., began operations in Octo-
ber 1972 as a "black" business enterprise located in Triana.
Alabama. Triana is a small, predominately "black" farming
community near Huntsville with a population of 400 to 500
within the city limits but a police jurisdiction population of
approximately 1,500. The educational level of Triana is ap-
proximately 6.3 years and it is sufficiently isolated that
there is no public transportation from Triana to any nearby
employment market. The unemployment rate was about 85
percent before Respondent began operations.
It appears from the record that Respondent's principal
customer is G.T.E. Automatic Electric Incorporated (herein
Automatic Electric) although work is also done fr IBM,
Chrysler, and in 1975, AVCO.
The three owners and officers of Respondent are Clyde
Foster, president, George Malone, vice president and gen-
eral manager. and Alonzo Toney, secretary-treasurer. Both
Foster and Toney have full-time jobs elsewhere while Ma-
lone is a full-time employee of Respondent.
The Union's organizational campaign began in June with
Freddie Abernathy. an international representative, con-
tacting employees who in turn contacted other employees
in an effort to get authorization cards signed. The General
Counsel offered into evidence 69 authorization cards found
to be valid. An additional five cards were offered: four of
which I find were forged and one which the General Coun-
sel withdrew for the same apparent reason.' Two cards were
rejected, one was not offered, and two appeared to be
signed by the same person. In any event, even if all the
cards identified were counted, the total would be 78 or less
than a majority of the 165 persons stipulated to he in the
bargaining unit as of August 6. The organizational cam-
paign yielded designation by a substantial number of em-
ployees, but less than a majority.
The General Counsel alleged that beginning in July Re-
spondent embarked on a course of conduct designed to un-
dermine the organizational efforts of the Union and in so
doing committed violations of Section 8(a)(I) and (3) in-
cluding interrogation, promises of benefits, threats, and the
mass discharge of 55 employees on August 6. The General
Counsel also alleged the discharge of a single employee on
August II to be violative of Section 8(a)(3).
B. The Alleged 8(a)(l) Activitv
The complaint alleges 28 separate violations of Sections
8(a)( 1), many of which are overlapping and occurred at the
same time. The allegations will be treated by category.
I. Interrogation
It is alleged that on four occasions in July. Malone inter-
rogated certain employees concerning their activities on be-
2 The cards of Cassie Jones. Albertia Ross, Alhertia Harris, Katherine
Lacy, and Laura Everson were neither signed by them nor did the) authonrize
anyone to sign on their behalf. This finding is based on their credited testis
mony.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
half of the Union. Malone generally denied having engaged
in such acts. However, I credit the testimony of Parceanur
Burgess, Voilia Rainey, and Carl Fitcheard, all of whom
appeared to be credible and straightforward witnesses, and
whose reasonably detailed accounts appear more believable
than Malone's conclusionary denial.
Burgess testified that Malone called her into his office
and said that he wanted to discuss a raise for her. He asked
if she was aware that a small group of people were trying to
organize the Union and she stated that she was. Malone
then asked her opinion, and she told him "I didn't have any
comment other than I thought it might would benefit em-
ployees." Malone said it would not and that Respondent
was not large enough to have a union nor could Automatic
Electric pay union wages.
Similarly, Malone called Rainey into his office in late
July and said that he was going to give her a 10-cent raise.
He then asked what she knew about the Union. During this
coversation he also said that "he was not going to have no
union telling him what to do." He asked Rainey how she
felt about the Union and asked her who was leading the
organizational drive. Finally Malone asked Rainey to use
her influence on the people to stop the union activity.
Also in the latter part of July, Malone called Carl Fit-
cheard into his office and asked what Fitcheard knew about
the Union. Malone said he knew that Fitcheard was one
who was trying to organize for the Union because people
had told him so. He also asked Fitcheard how many people
had signed union cards and asked if Fitcheard had done so.
Malone talked generally about what he conceived to be the
origin of unions and the fact that one would do no good.
Upon the credited testimony of these witnesses, I con-
clude that in the latter part of July after learning of the
union activity, Malone did in fact embark upon the course
of conduct to interrogate employees about it. This is clearly
unlawful activity and clearly interferes with employees'
rights guaranteed by Section 7 of the Act. Accordingly, I
conclude that Malone violated Section 8(a)(l).
2. Threats
It was also alleged that in late July and early August,
Malone and Foster threatened employees with closing the
plant if they participated in union activity. Again Malone
and Foster generally denied the alleged threats; however I
credit the testimony of employees Rainey, Burgess, Mary
Sue Harper, and Mary Jean Rogers, all of whom appeared
to me to be straightforward witnesses, whereas Malone and
Foster in this were unconvincing in their general denials.
At a meeting on August 2 called by the three owners
(there were two meetings on August 2, one for each shift)
Burgess testified that during his presentation Foster stated
"if the Union came in there that they would have to close
the doors." I find that this was not a prediction of economic
consequences. Rather, in the context of this situation, the
nature of the business, and particularly to unsophisticated
employees, Foster's statement was an outright threat.
Rainey also testified about Foster's statements at the Au-
gust 2 meeting. He had heard that employees were talking
about a union but the people are not ready for one. He said
they had a good thing going but "look like you all is trying
to kill the goose that laid the golden egg." Hte also men-
tioned closing the plant and suggested that were the plant
to close these particular employees would not be able to
find employment elsewhere. I conclude that Foster's state-
ment about the plant closing within the general context of
talking about the Union and trying to dissuade employees
from participating in union activity was an implied threat
to do so.
Harper and Rogers both corroborate the testimony of
Burgess and Rainey with regard to Foster's threat to close
the plant.
Upon the mutually corroborative and generally credible
testimony of these four employees, I conclude that during
the course of this plant-wide meeting on April 2, Foster did
threaten to close the plant should union activity continue in
violation of Section 8(a)( ).
Rainey testified during her July 29 discussion with Ma-
lone, noted above, "He said that he didn't have but one
thing in there that belonged to him and it was a splicing, or
some kind of machine that he had there. And he said before
he would have any union telling him what to do, he said
that he would take the machine and put it in the trunk of
his car and carry it home." I find that this is a threat to
close the plant should union activity continue and was vio-
lative of Section 8(a)(l).
Harper testified to Malone's statements at the August 2
meeting. He asked who would find them another job should
the employees lose the one they had. In the context of this
situation, the three owners attempting to dissuade employ-
ees from union activity, I find that this amounted to a
threat to close the plant should union activity continue and
was violative of Section 8(a)(l).
3. Creation of impression of surveillance
It was stipulated that William Ragland is a supervisor
within the meaning of Section 2(1 ) of the Act. Rainey tes-
tified that in July Ragland asked her if she had seen him at
a fellow employee's house one time when the employees
were having a union meeting. "He said did you see the
company truck, and I said no, I didn't see the company
truck. He said did you see Clyde (Foster) and I was sitting
in the yard, I was sitting, you know, and I told him I didn't
see Clyde and him sitting in no yard."
While Ragland denied this event, I conclude that
throughout the hearing Rainey was a very straightforward
and credible witness. Based upon their relative demeanor, I
find that Rainey's version is more probably truthful than
Ragland's general denial. I accordingly conclude that Rag-
land as a supervisor attempted to created the impression of
surveillance through this discussion, and thereby violated
Section 8(a)(1) of the Act.
4. Solicitation of employees
The allegation that Malone solicited employees to influ-
ence others to abandon the Union and offered them money
to do so is based on his July discussion with Fitcheard,
noted above. While Malone generally denied the conclu-
sionary allegation, I believe that Fitcheard's recollection of
that conversation is candid and straightforward. I therefore
credit his detailed version over Malone's general denial.
1262
TRIANA INDUSTRIES, IN(C.
In essence, after the discussion in Malone's office referred
to above, Fitcheard went back to his table and then later
went back to Malone's office. During this second trip Fit-
cheard reported what the other employees said and Malone
"told me to get them together and tell them just-just tell
them that wasn't no union coming in there. And he said if I
do it, he would give me more money."
This I find to be an attempt by Malone to solicit employ-
ees to influence others to be against the Union and as such
interfered with employees' right to self-organization free
from interference, restraint or coercion by the employer. I
conclude that by this action, Malone violated Section
8 (aX1) of the Act.
Similarly, in Malone's July discussion with Rainey, noted
above, he asked her to use her influence with the people to
be against the Union. While he did not offer her money, as
he did Fitcheard, he nevertheless did, I find, attempt to
interfere with employees' freedom of choice and did
thereby violate Section 8(a)( 1).
5. Soliciting employees to sign an antiunion petition
The complaint alleges that on or about August 5, Malone
solicited employees to sign an antiunion petition. A review
of the record does not reveal any testimony establishing
such an event. Accordingly, I will recommend that this alle-
gation be dismissed as not having been proved by prepon-
derance of the credible evidence.
6. Promise of wage increases
During his discussion with Rainey, Malone promised her
a 10-cent per hour wage increase. While such might be nor-
mally permissible, I conclude that in the context of his dis-
cussion, wherein he interrogated her concerning union ac-
tivity and asked her to use her influence to dissuade others,
the promised wage increase was an attempt to coerce her. It
was, therefore, violative of Section 8(aX1).
Rogers testified that during the August 2 meeting, Ma-
lone said something to the effect that all employees after
they had been with the Company for 60 days got a raise. I
find that this was a statement by Malone to employees ad-
vising them of the various benefits the Company already
gave them. It was not a promise to employees of a wage
increase should they abandon the union activity and was
not therefore violative of Section 8(aXl).
Similar to Rainey, Burgess was called in to Malone's of-
fice during which time he discussed a raise for her in the
context interrogating her concerning union activity. As with
Rainey, while this may normally have been permissible ac-
tivity, given the context, I find that it was a promise of a
benefit in violation of Section 8(aX)(1).
In his discussion with Fitcheard, noted above, Malone
asked how much of a wage increase the employees were
attempting to get by the Union activity. Fitcheard replied
70 cents an hour. Malone told him to advise the people that
"he wasn't going to give them nothing but a dime more."
Given the general activity of Malone, this amounted to a
promise of a benefit to employees should they abandon the
union activity and was therefore violative of Section 8(a)(1).
7. Other allegations of 8(a)( ) activity by George Malone
Numerous other allegations of 8(a)(l) violations by Ma-
lone in the latter part of July and early August are set forth
in paragraphs 14 and 15 of the complaint. While I believe
these events occurred, at least in substance, they have gen-
erally been covered above, each having occurred during the
various discussions Malone had with employees. These par-
ticular allegations are not substantively' different from the
allegations of 8(a)( 1) activity already found. That is, I con-
clude that during the latter part of July, Malone embarked
on a course of conduct wherein he interrogated employees,
threatened them, promised them benefits, engaged in sur-
veillance of their union activity, and attempted to get them
to influence fellow employees to abandon union activity.
Malone's general course of conduct was fairly extensive and
was violative of Section 8(a)(1). The specific allegations set
forth in paragraphs 14 and 15 are to a large extent redun-
dant and need not be treated in detail.
8. Promises of benefits by Alonzo Toney
As noted above, on August 2 the three owners held two
meetings with employees wherein they dicussed the ongoing
union activity and during which time they advised employ-
ees concerning both benefits the Company had given them,
and the futility of bargaining through labor organization.
During these meetings, Alonzo Toney discussed his ef-
forts to obtain a credit union which is alleged to have been
violative of Section 8(a)(1). While Toney admitted having
told employees that he had attempted to get them associ-
ated with a credit union at the college where he works, I do
not find that this was in any way violative of the Act. It is
clear from the testimony that Tone)y made the attempt to
secure the credit union prior to the time of any organiza-
tional activity. There is nothing unlawful for an employer
to tell employees what efforts he has made on their behalf
prior to the advent of organizational activity. I therefore
conclude that Toney's comments at the August 2 meeting
were not violative of the Act.
9. Promises of benefits at the August 2 meeting
It was also alleged that Foster promised a micro-wave
oven, a refrigerator, and a table so that the employees could
eat in an air conditioned portion of the plant.
While Foster did generally discuss these items at the Au-
gust 2 meetings, I again conclude that such were not prom-
ises of benefits in violation of Section 8(a)(I). Prior to the
advent of the organizational campaign, Respondent had
undertaken to construct an additional building which when
completed would include a break area and the break area
would have a vending machine, a refrigerator and a micro-
wave oven. Inasmuch as this began prior to the organiza-
tional campaign, it is clearly not a reaction to it. Respon-
dent can tell employees what benefits it has undertaken on
their behalf, and as such it was not violative of Section
8(a)(1). I will recommend that this allegation in the com-
plaint be dismissed, nothing, however, that I have previ-
ously found that Respondent, through Malone, did promise
employees benefits in violation of Section 8(a)(1).
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. Telling employees not to discuss their wages
It is alleged that on or about May 6, Malone prohibited
employees from discussing their wages with fellow employ-
ees. Betty Bates testified that this occurred during an orien-
tation meeting of new employees. Malone told them "Not
to go around asking the other employees how much they
were making, because some of them were making more
than others."
This statement does not raise to the level of a rule the
breach of which would imply sanctions. Rather it appears
to be a caution by an employer based upon reason. I do not
conclude from Bates' testimony, that the Respondent pro-
mulgated a rule prohibiting employees from engaging in
protected activity, namely discussing wages, as was the situ-
ation in Coosa Valley Convalescent Center, 224 NLRB 1288
(1976), and Jeannette Corporation, 217 NLRB 653 (1975):
enfd. 532 F.2d 916 (3d Cir. 1976). Nor did this occur during
the time of the organizational activity. Accordingly, I will
recommend that this allegation be dismissed.
C. The August 6 Terminations
The principal issue in this matter involves the August 6
terminations of 55 employees. The General Counsel alleges
that Respondent sought to discriminate against employees
because of their union activity in violation of Section
8(a)(3).
It is undisputed that Respondent had knowledge of the
organizational activity at the time of the terminations. In-
deed, on August 5, the day the owners decided to effectuate
the terminations, Foster had received a letter from the
Union demanding that Respondent recognize it as the em-
ployees' bargaining representative. And this demand was
discussed on August 5 when the owners met and deter-
mined to terminate 55 employees. Given the reasonably ex-
tensive unfair labor practices engaged in by the manager,
knowledge of the organizational activity, and the close tim-
ing of the terminations following receipt of the Union's de-
mand letter, I conclude that the General Counsel made out
a primafacie case of unlawful motivation. However, I fur-
ther conclude that Respondent overcame the General
Counsel's prima facie showing of a violation by demonstrat-
ing a substantial business reason for effecting the termina-
tions on August 6. The General Counsel did not offer any
proof to rebut either the necessity for terminations or their
timing.
On August 6, Respondent had 165 employees in the bar-
gaining unit of which 16 were students) At this time, Re-
spondent's principal customer was Automatic Eletric. The
work done by Respondent for Automatic Electric repre-
sented, as far as one is able to determine from the record,
something in the vicinity of two-thirds of its business.
In a letter dated May 27, Automatic Electric advised Re-
spondent that it consistently increased the workload to a
level requiring the employment of over an 100 people. On
the basis of information Automatic Electric had at that
I Respondent hires a number of students whose wages and FICA is paid
by the vanous customers with Respondent making no profit from their pro-
duction. They usually leave in September and for this reason were not in-
volved in the termination.
time, it was anticipated that the workload would require in
excess of an 100 people during the next 12 to 18 months.
This letter followed the May 19 schedule of work to be
done for Automatic Electric covering the period from the
week-ending June 6 through the week-ending September 5.
Then on July 30 Respondent received another letter from
Automatic Electric indicating that on review of its fourth
quarter production plans, Automatic Electric planned to
reduce the "workload at Triana at a level between 75 to 100
people in accordance with my letter to you on May 27,
1976. This reduction from 150 people that you now have
will start the first of September, and we will work out a new
schedule."4
On August 4 a new schedule was submitted to Respon-
dent from Automatic Electric covering the period from the
week ending August 22 through the week ending November
7. An analysis of this schedule does show a reduction, at
least in the total number of parts to be manufactured, of'
about 3 percent.
On the afternoon of August 5, Malone got a call from Ed
McPherson, the Automatic Electric supervisor of assembly
subcontracting, to the effect that two parts, HD 570032-A
and B, which were scheduled to go to zero by the week
ending September 26 would be reduced to zero effective the
next week; and two other parts, HD 660045-A and B were
to be reduced substantially from the levels previously pro-
jected also beginning the next week. Production of part HD
660045-A was to be reduced from 42,000 to 24,500, its pro-
duction having been scheduled to increase to 85,000 by the
week ending September 26. Similarly, production of part
HD 660045-B would go from 18.000 to 10,000. Production
of this part had been scheduled to go to 25,000 the week
ending August 29. McPherson confirmed these instructions
by speed letter dated August 6.
Malone testified that it takes approximately 23 employ-
ees to produce 40,000 of part HD 570032-A in a week, and
36 to 37 to produce 40.000 of part HD 570032-B. Malone
calculated that to stop or reduce production of the four
parts would require a reduction in work force of approxi-
mately 60 people.
Malone testified that at the meeting of the three owners
on the evening of August 5, they determined to terminate
55 employees rather than the 60 he calculated, in order to
have 5 surplus employees to fill in for absences.
There is nothing in the record to suggest that Malone's
testimony with regard to the instructions he received from
Automatic Electric or the number of people required to be
terminated should not be credited.
While the documentary evidence is not fully explained,
and therefore is to some extent ambiguous, its total thrust
tends to support Malone's testimony. Thus, the schedules
show that Respondent manufactures 52 different parts for
Automatic Electric. On these schedules some parts are not
to be manufactured at all in a particular week, whereas
production of others ranges from as few as 75 to as many as
' Unexplained is why the figure 100 employees is used in the May 27 letter
and 150 is used in the July 30 letter. Since Automatic Electric is Respon-
dent's major customer, and Respondent did have some 165 employees total,
it would appear that the 150 figure more accurately reflects the employee
requirement for Automatic Electric's work until the August 5 reduction. This
is supported by Malone's testimony and the schedules.
1264
TRIANA INDUSTRIES. INC.
85,000. Malone's testimony suggests that the number of em-
ployees required to manufacture any given number of these
parts in a week varies, according to the part. Thus without
explanation, analysis of the documentary evidence can at
best give only gross indications of what the August 5
instructions meant in terms of reduced employee comple-
ment. Nevertheless, the August 5 communication reflected
a 21 percent reduction beginning with the week ending Au-
gust 15 from the May 19 schedule and a 20 percent reduc-
tion beginning with the week ending September 5 from the
August 4 schedule. In short, the documentary evidence
tends to support Malone's testimony that a substantial por-
tion of its work for Automatic Electric was to be curtailed
beginning with the week ending August 15.
Malone further testified that Respondent had to effect
the terminations as of Friday, August 6, or else they would
have employees at work Monday, August 9, with no work
to perform. Again, Malone's testimony in this respect tends
to be supported by the documentary evidence and the Gen-
eral Counsel brought forth no rebuttal evidence from which
to conclude that either Malone was not being truthful or
that the documentary evidence from Automatic Electric is
not reliable.
In order to find that Respondent did not have a substan-
tial business justification for terminating a substantial num-
ber of employees on August 6 would require me to con-
clude that the documentary evidence submitted by
Respondent without objection from the General Counsel
should not be credited. There is no basis on which to make
such a finding. I therefore conclude that in fact Respondent
had a business justification which it knew about on August
5 to terminate a substantial number of employees on Au-
gust 6. The necessity for some kind of termination is further
supported by the fact that Respondent's work force has
remained low, 87 at the time of the hearing. I conclude that
the necessity for the mass terminations occurred coinciden-
tally with the demand for recognition and was not caused
by it.
Nor do I find anything in the manner of these termina-
tions which would justify an inference that employees were
chosen for termination because of their union activity or
otherwise to discourage union activity. Of Respondent's 165
employees, 55 were terminated on August 6. Twenty-six of
those terminated had signed one of the 69 valid authoriza-
tion cards whereas 29 has not. The remaining 43 employees
who had signed valid authorization cards were not termi-
nated. Respondent stated that it determined to make the
terminations by seniority' which it apparently did, and in so
doing more noncard signers than card signers were termi-
nated; and, twice as many card signers remained as were
terminated. Neither the method and manner of the termina-
tions nor its effects imply a discriminatory motive.
It might be noted that in anticipation of the increased
work to be contracted from Automatic Electric, Respon-
dent had both built an additional building and had began
hiring additional employees. Thus, those employees termi-
nated on August 6 were hired between April 19 and August
4. Such tends to support Malone's testimony and the docu-
As indicated above students who had low seniorit) were retained because
their tenure would shortly run out.
mentary evidence that Respondent's workload was increas-
ing, but was substantially reduced on August 5.
Based upon the foregoing, I conclude that while the Gen-
eral Counsel did make out a primafacie case of unlawfully
motivated terminations, the Respondent did in fact show a
substantial business reason for effecting the terminations at
the time indicated. Inasmuch as the General Counsel came
forth with no evidence to rebut these facts, I conclude the
General Counsel did not finally establish that the 55 termi-
nations on August 6 were unlawful. I will recommend that
this allegation be dismissed. N.L.R.B. v. Great Dane Trail-
ers, Inc., 388 U.S. 26 (1967).
Finally there is nothing in the record to support a finding
that Respondent discriminatorily refused to recall any or all
of the employees terminated on August 6.
D. The Discharge of Parceanur Burgess
Parceanur Burgess was discharged on or about August
I I, allegedly because she had engaged in union activity and
to discourage union activity. Respondent contends that it
discharged her because she had been absent several days
while taking care of a very ill daughter. Respondent con-
tends that Burgess was discharged because of absenteeism.
Having credited Burgess' testimony with regard to her
meeting with Malone in late July, find that Malone did
know that she was sympathetic to the Union. On reviewing
Respondent's exhibit concerning her attendance record, I
conclude that other than the weeks of August 7 and 14. her
attendance was good. Nor does Respondent deny that her
absence in August was excused. Respondent contends that
it needed all available employees and that it had a right to
discharge her for absenteeism.
The reason advanced by Respondent is clearly pretext-
uous. Respondent tolerated some absenteeism. Note, for in-
stance, Malone's testimony that rather than terminating 60
employees on August 6 he terminated 55 so as to keep 5
employees in reserve to take care of absences. Given Re-
spondent's tolerance of absenteeism, Burgess' credited testi-
mony that she had permission and certainly a legitimate
reason to be absent during this period, the fact that Respon-
dent knew of her union sympathies, along with the other
unlawful activities engaged in by Respondent, I infer that
the real motive was to discourage union activity. Shattuck
Denn Mining Corporation, (Iron King Branch) v. N.L.R.B.
362 F.2d 466 (9th Cir. 1966). The discharge of Burgess was
therefore violative of Section 8(a)(3).
Finally, I conclude that the unfair labor practices found
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and 2(7) of the Act.
REMF.DY
It having been found that Respondent has committed
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. Respon-
dent will be ordered to offer Parceanur Burgess full rein-
statement to her former position of employment. or if that
job no longer exists, to a substantially equivalent job with-
out prejudice to her seniority or other rights and privileges
and make her whole for any loss of wages or benefits that
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she may have suffered as a result of the discrimination
against her in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
The General Counsel also contends that only a bargain-
ing order can remedy Respondent's substantial unfair labor
practices notwithstanding that the Union was at no time
designated by a majority of employees. It is argued that the
unfair labor practices were so pervasive as to make it im-
possible for the Union ever to have been designated by a
majority, but it would have been but for Respondent's egre-
gious acts.
In addition, the General Counsel argues that a bargain-
ing order ought to issue because of demeaning racial com-
ments made by Foster at the August 2 meeting. While Fos-
ter's statements may have been gross and illadvised I
cannot conclude that such would justify, much less require,
a bargaining order, or that he committed an unfair labor
practice by making the statements.
The General Counsel concedes that at no time did the
Union represent a majority of employees in the bargaining
unit. Nevertheless the General Counsel contends that, but
for the unfair labor practices the Union would have been
designated by a majority and therefore the only way to
remedy the unfair labor practices is to order bargaining,
citing N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969).
While there is some dicta in Gissel to the effect that a
bargaining order might be appropriate even though the
union at no time had designations from a majority of em-
ployees, such was not the holding in Gissel. Nor has the
Board ever so held. The Board has always required some
demonstration, at one time or another, that the union in
fact had been designated by a majority of employees as a
predicate for a bargaining order. E.g., Beasley Energy, Inc.,
d/bla Peaker Run Coal Company, Ohio Division 1, 228
NLRB 93 (1977).
It may well be that the Board will ultimately determine
in an appropriate case that the only way to remedy a re-
spondent's unfair labor practices would be to order it to
bargain with a union that has not demonstrated its majority
status. And this question has been specifically reserved.
E.g., Herbert Halperin Distributing Corporation, 228 NLRB
239 (1977). However this is not, in my judgment, the appro-
priate case to do so.
The General Counsel states, but does not offer proof, that
but for Respondent's unfair labor practices the Union
would ultimately have been designated by a majority of
employees. Such does not necessarily follow. The mere fact
that an employer engages even in outrageous unfair labor
practices does not imply that absent such unfair labor prac-
tices, a majority of employees would have designated the
union. Most representation elections are conducted in an
atmosphere free of coercion-where the "laboratory condi-
tions" prevail. In many a majority of employees vote for no
union. This experience suggests that the absence of coercive
conduct does not mean that a majority of employees will
designate a particular union. It follows, therefore, that the
presence of coercive conduct does not necessarily mean that
the coercive conduct prevented a majority of employees
from designating the Union. The mere existence even of
substantial unfair labor practices as here does not prove
that the Union would have been designated by a majority.
In short I cannot, on the record here, deem that the Union
represented a majority. Accordingly, I reject the General
Counsel's argument that a bargaining order ought to be
entered in this case and recommend that it not.
[Recommended Order omitted from publication.]
1266