Triway Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Sep 9, 1969

178 N.L.R.B. 371 (N.L.R.B. 1969)

TRIWAY MFG., INC.
Triway Manufacturing, Inc. and International Union
of Machinists & Aerospace Workers, District
Lodge 69 , AFL-CIO. Case 19-CA-4101
September 9. 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On July 9, 1969, Trial Examiner Robert L. Piper
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent Triway Manufacturing,
Inc., Maryville , Washington , its officers . agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order
'These findings and conclusions are based , in part, upon the credibility
determinations of the Trial Examiner , to which Respondent inferentially
excepts On the basis of our own careful review of the record , we conclude
that the Trial Examiners credibility findings are not contrary to the clear
preponderance of all the relevant evidence Accordingly , we find no basis
for disturbing those findings Standard Dry Wall Products . Inc . 91 NLRB
X44, enfd 118 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
S1 ATEMLNT OF "I HE CASE
ROBERT L.IPIPER, Trial Examiner This proceeding,
under Section 10(b) of the National Labor Relations Act,
as amended. was heard at Seattle, Washington, on
January 9, 1969, pursuant to due notice The complaint.
which was issued on November 7, 1968,2 on a charge filed
August 5 and amended August 26 and October 22, alleged
in substance that Respondent engaged in unfair labor
371
practices proscribed by Section 8(a)(1) and (3) of the Act
by specified acts of interference, restraint, and coercion
and discriminatorily discharging Eldon G. Cook, an
employee Respondent's answer denied the alleged unfair
labor practices The General Counsel and Respondent
filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FAC-1
1. JURISDICTIONAL FINDINGS
Respondent is a California corporation engaged in the
manufacture of aircraft components at its plant in
Marysville, Washington Respondent annually purchases
and receives directly from sources outside the State of
Washington goods and supplies valued in excess of
$50,000 and sells and ships products valued in excess of
$50,000 directly to customers outside the State of
Washington. 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.
IL THE LABOR ORGANIZATION INVOLVED
International Union of Machinists & Aerospace
Workers, District Lodge 69, AFL-CIO (hereinafter called
the Union), is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNi AIR LABOR PRAC1ICES
A. Introduction and Issues
In early May, after a layoff by Respondent, the Union
commenced organizational activities among Respondent's
employees. The Union's only employee organizer in the
plant was Eldon G. Cook On August 3, Respondent
discharged Cook.
The issues, as framed by the pleadings, are interference,
restraint, and coercion by interrogating employees
concerning Cook's union activities and discrimination by
discharging Cook because of his activities on behalf of the
Union.
B. Chronology of Events
On or about May I. Respondent laid off some 50
employees without observing seniority As a result, the
remaining employees became interested in some form of
organization to represent their interests, and one of them
proposed a grievance committee. Because the original
meeting of this proposed committee was scheduled at the
home of a brother of Randall I- Taylor. Respondent's
general foreman of the second or night shift, most of the
employees did not attend and the proposal died for lack of
support. Shortly thereafter Cook, who had been a member
of the Union for some years prior to his employment by
Respondent in December 1966, was asked by the Union if
he would assist it in organizing Respondent's employees.
Cook accepted and was the Union's only in-plant
organizer
Respondent's production department was divided into
three sections, each headed by a foreman, who in turn
were under Taylor, the general foreman in charge of
All dates hereinafter refer to 1968 unless otherwise indicated
178 NLRB No. 57
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production. Cook and Taylor were employed on the
second or night shift from 5:30 p.m to 4 a.m. In early
May, Cook began talking to the other employees about
the advantages of joining the Union, primarily during
coffee and other break periods. At the outset, he asked
Taylor for permission to distribute union literature and
authorization cards at the plant. Taylor replied that Cook
could as long as he did not do so on company time. Cook
kept the union literature and cards he distributed on top
of his open toolbox, readily visible to all. One evening
early in May, Cook for the first and only time discussed
the Union with two other employees during working
hours. Shortly thereafter he observed them talking to their
foreman. The same evening, Taylor asked Cook if he had
been talking about the Union in the shop. Cook replied
that he had. Taylor informed Cook that he could not do
so on company time. Cook replied that he would not do
so again, and the record establishes that he never did.
Respondent had no published rule on the subject of
talking or soliciting, and Cook testified, without
contradiction, that prior thereto as a privilege Respondent
had customarily permitted the employees to talk and visit.
Shortly after Cook began his union organizational
efforts he approached Harold Wilson and a number of
other employees about the Union during a break. Wilson,
who had been a machinist for more than 30 years, replied
that he was not interested and intended to remain strictly
neutral From May to Cook's discharge on August 3, he
regularly discussed the advantages of the Union with his
fellow employees in the plant during coffee and other
breaks, and frequently distributed union literature and
authorization cards before and after work at the plant
entrances. Early in June, Taylor began interrogating
employees concerning the union activities, including who
was signing authorization cards and who was obtaining
the signatures. On June 3, Respondents put into effect a
general pay raise of 30 cents an hour for all production
employees. During June and July, Taylor interrogated
Wilson several times each week about such union
activities. Although Taylor first testified that he had never
interrogated any employees about the Union, on
cross-examination he admitted interrogating Wilson
several times a week about union activities, who was
signing authorization cards, who was getting them signed,
and Cook's union activities. Taylor asked a group of
employees, including Wilson, if they knew that Cook was
active in organizing for the Union. They admitted that
they did Taylor warned them that Cook would be fired if
he was caught engaging in such activities. Taylor also told
them that Cook, because he was an older man and had a
pension, did not care if he was fired for union activity, his
life had already been lived, and he was unconcerned about
the younger men who had to depend on their jobs. Taylor
further told them that Cook was organizing for the Union
in order to become a union steward. James Johnson,
Wilson's foreman, informed Wilson that if the Union got
in the trainees would make much less money and
Respondent would reduce its overtime to a minimum. The
employees were working 58 hours a week at that time.
On June 12, the Union held an organizational meeting
at the local American Legion ball, which was attended by
approximately 14 employees, including Cook, General
Foreman Taylor, and Colin Sweeney. an employee who
was a machine parts inspector for Respondent. Taylor and
Sweeney refused to , sign the attendance roster when
requested by the Union. Cook continued his union
organizational activities on his own time. On August 1
shortly before the night shift began, an employee asked
Cook how the union organization was doing. Cook replied
that it was doing fine and with a few more cards the
Union would be able to file for an election . The employee
refused to sign a card. A few minutes later Cook observed
two signs taped to an air hose, reading- "Cook for
Steward" and "Vote for Cook All the Way." Later that
evening, Cook observed a poem posted on the bulletin
board near the inspection department. It was printed in
large letters on the blank side of a company form called
the "First Article Inspection Report." The first sentence
read: "Eldon Cook is a Union Fink," and without going
into details, its general tenor was that the employees
would lose their jobs if the Union got in . About four
hours later, Cook removed the poem from the bulletin
board and, when the shift ended, checked the printing
against some available samples, because he suspected that
it had been written by Sweeney, who used that form as a
first article inspector.
The next evening, August 2, Cook took the first
machine part he finished to Sweeney for inspection.
Sweeney informed Cook that Sweeney understood that
Cook did not like the poem Sweeney had put on the
bulletin board the previous night Cook thereupon asked
him to sign it, telling him that the author ought to sign his
own manuscript, and the two exchanged "some very hot
words." After Cook returned to his work station, another
night shift employee observed Sweeney and Taylor in a
45-minute discussion in the lunchroom, not during the
lunchbreak. About 2 a.m., Taylor informed Cook that he
was discharged for poor production and because his
attitude in the shop was bad. Cook replied that Taylor
knew that was not true, but Taylor insisted that was the
reason Cook admittedly showed Taylor the poem which
Cook had removed from the bulletin board, written on the
back of Respondent's inspection report form, but Taylor
claimed he did not know who had written it. Cook, whom
I credit, testified that Taylor had never previously
criticized his work or attitude. Cook testified that when he
received the raise of 30 cents an hour on June 3, Taylor
informed him that 10 cents of it was a bonus and that
Taylor and Respondent were pleased with his work
Although Taylor testified that the 30 cents was a general
rate increase , he did not deny making this statement to
Cook. Taylor, whom I do not credit, testified that he had
orally warned Cook about his various deficiencies on
several occasions. Admittedly no one else was present and
Respondent kept no record of such warnings
Taylor originally testified that he discharged Cook for
numerous incidents during the preceding 3 months (the
period of the union organization), primarily for being
away from his work station too much, talking to other
employees, and a drop in his production to less than that
of a 6 months' trainee. Respondent's personnel record,
called a "performance and pay record," revealed that
from February 13, 1967, when Cook was rehired, he was
consistently rated as doing a good job and received
periodic merit raises. The last two entries, March 25 and
June 3, respectively stated that Cook was doing a good
job, and that he received a rate raise of 30 cents. Contrary
to Respondent's customary practice, Cook's performance
and pay record did not contain the date of or any reason
for Cook's discharge, but terminated only with the
comment, "No rehire." This record was prepared and
written by Vernon Spurrier, Respondent's production
manager and Taylor's superior, after consultation with
Taylor. Spurrier admitted that such record customarily
contained the reasons for an employee's discharge but
Cook's did not. Spurrier, who entered the words "no
TRIWAY MFG.. INC.
rehire" on Cook's performance and pay record, was
unable to explain why such record varied from the
customary procedure. Spurrier first testified that
Respondent's Exhibit 1, a photostatic copy of a 3 by 55
inch card allegedly signed by Taylor August 2 stating that
he had terminated Cook that night and the reasons
therefore, had been given to Spurrier by Taylor August 3
and incorporated in Cook's personnel life. Ilowever,
Spurrier subsequently stated that the exhibit was not the
note Taylor gave him at the time but was furnished to
him by Taylor a few days later. Respondent was unable to
produce the original of its Exhibit I or explain its absence,
and failed to furnish it in response to the General
Counsel's suhpena requesting all of Cook's personnel
records. Although Taylor was called to testify twice, he
was never asked to identity the card or his signature, to
authenticate its contents, or whether he had placed it in
Cook's personnel tile. The photostat of the card contained
the word "over" near the bottom, with an arrow pointing
to the bottom, but the photostat did not include the
reverse side
The photostat of the card allegedly signed by Taylor
stated that Cook was discharged because he spent more
time talking with the men in the shop than on his lob, had
developed a very bad "attitude" towards his job and the
company in tie last 3 months, and his production had
dropped off to less than that of a 6 months' trainee When
Taylor was recalled to the stand by Respondent, after
Respondent's Exhibit 1 allegedly containing Taylor's
reasons for Cook's discharge had been identified by
Spurrier and received in evidence, Taylor added to his
reasons for discharge Cook's had "attitude" contained
therein but not mentioned by Taylor during his original
testimony. Finally. Taylor, whom I do not credit, testified
that Cook's union activities had nothing to do with his
discharge. Nick Veszelovsky, under Taylor, was Cook's
immediate foreman Two days before the hearing in this
proceeding, Veszelovsky informed three employees.
including Wilon, who were discussing the reasons for
Cook's discharge, that Cook was not fired at all because
of the quality or quantity of his work, which was above
average
C Interference , Restrain! , and Coercion
The complaint alleged that on or about June 3 and
frequently thereafter Respondent , by Taylor. interrogated
its employees concerning Cook ' s union activities. As
hereinabove found, Taylor admitted frequently
interrogating Wilson about th4 union activities of Cook
and other employees It has also been found that Taylor
interrogated other employees , present with Wilson, about
Cook's organizing activities , warned them that Cook
would be fired if he was caught engaging in such activities,
and informed them that Cook did not care whether he was
fired for such activities because he was an older man, had
a pension , his life had already been lived, he was
unconcerned about the younger men who had to depend
on their jobs for a livelihood, and that Cook was
organizing so that he could become a union steward. The
record establishes, and I find, that Respondent
interrogated its employees about Cook's union activities,
thereby interfering with , restraining , and coercing its
employees in violation of Section 8(a)(I) of the Act.
D Discrimination in Hire or Tenure, Terms, or
Conditions of Employment
The complaint alleged that on or about August 2
373
Respondent discharged Cook and thereafter failed and
refused to reinstate him because of his activities on behalf
of' the Union. Respondent and Taylor contend that he
discharged Cook because of his spending too much time
away from his job talking with other employees, his "bad
attitude" towards his job and Respondent, and his
substantial drop in production to less than that of a 6
months' trainee The record establishes that after the first
incident in early May, when Cook began his
organzational activity and was warned by Taylor not to
discuss the Union with other employees during'uring company
time. Cook never again did so, but confined his
discussions with other employees to coffee and other
break periods and regularly distributed union literature
and author17ation cards at the plant entrances on his own
time. Although received in evidence, Respondent's Exhibit
1, because of the facts above delineated, is entitled to very
little if any weight. Respondent and Taylor never
explained what he meant by Cook's "bad attitude"
towards his job and Respondent, and there is nothing in
the record to support this self-serving conclusion, unless it
be Cook's activities on behalf of the Union
The record clearly establishes that Cook's production
not only had not dropped off but was better than average.
Respondent produced no production records to support its
contention Respondent's performance and pay record of
Cook established that he was uniformly rated as a good
worker, received several merit increases, and on June 3. 1
month after his alleged deficiencies commenced, received a
30-cent an hour raise, at which time he was told by Taylor
that it included a 10-cent bonus and that he and
Respondent were pleased with Cook's work. It has also
been found that Cook was never warned about such
alleged poor production and other deficiencies. Perhaps
the most convincing evidence with respect to Cook's
production was the undenied admission of Veszelovsky,
Cook's immediate foreman, that Cook had not been
discharged because of the quality or quantity of his work,
which was above average Respondent did not call
Veszelovsky to testify. Thus the record establishes, and I
find, that Respondent's alleged reasons for Cook's
discharge were untrue, unsupported by facts, and patently
pretexts.
Respondent unquestionably was aware of Cook's union
activities from their outset. inasmuch as at that time he
requested Taylor's permission to distribute union
literature, which Taylor granted provided that it not be
done on company time Such knowledge by Respondent
does not establish, as it argues, that Cook's discharge was
not because of his union activities From the outset Taylor
interrogated a number of the employees about Cook's and
their union activities, in an obvious attempt to ascertain
who might be active in organizational activities in addition
to Cook and who was signing authorization cards. Taylor
accompanied his interrogation with both explicit and
implied threats of reprisal, including the threat that Cook
would be fired if caught On August 1, after Taylor's
statement to employees that Cook was organizing for the
Union because he wanted to become a union steward,
someone posted signs in the plant reading "Cook for
Steward" and "Vote for Cook All the Way," and
Sweeney posted the derogatory poem concerning Cook
and the Union on Respondent's bulletin board.
During the shift which began the following night.
August 2, and terminated at 4 a.m. August 3, Cook and
Sweeney had a heated discussion about the latter's posting
of the poem. Not long thereafter Sweeney and Taylor
374 DECISIONS OF NATION At. LABOR RELATIONS BOARD
were observed in a discussion which lavted some 45
minutes About 2 a in. August 3. Taylor informed Cook
that he was discharged for the above found unsupported
reasons Cook showed the poem to Taylor and challenged
the latter's reasons for discharge, but Taylor merely
reiterated them without substantiation and denied
knowledge of the authorship of the poem. A
preponderance of the reliable, probative and substantial
evidence in the entire record convinces me, and I find,
that Respondent's alleged reasons for discharging Cook
were pretextual, and that Respondent's real reason for
discharging Cook was his union activities, thereby
discriminating against him in violation of Section 8(a)(3)
and (1) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce,
and the Union is a labor organization. within the meaning
of the Act
2. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3 By discharging Cook because of his union activities,
Respondent engaged in discrimination to discourage
membership in the Union, thereby engaging in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
TILE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action of the
type which is conventionally ordered in such cases as
provided in the Recommended Order below, which I tind
necessary to remedy and remove the effects of the unfair
labor practices and to effectuate the policies of the Act.
Because of the character and scope of the unfair labor
practices found, I shall recommend a broad cease and
desist order '
Upon the foregoing lindings of fact. conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby issue
the following.
RECOMMENDED ORDER
Triway Manufacturing, inc., its officers, agents,
successors, and assigns, shall.
1. Cease and desist from-
(a) Coercively interrogating its employees concerning
their and their fellow employees' union activities.
(b) Discouraging membership in International Union of
Machinists & Aerospace Workers, District Lodge 69,
AFL-CIO, or any other labor organization of its
employees, by discharging or in any other manner
discriminating against employees in regard to hire or
tenure of employment or any term or condition of
'N L R B v Exprers Publishing Company, 312 U.S 426, N L R B v
Entwistle Mfg Co , 120 1•.2d 532 (C A 4), Consolidated industries Inc,
108 NLRB 60, and cases cited therein
employment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act
2. Take the following affirmative action which will
effectuate the policies of the Act.
(a) Offer Eldon G. Cook immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he
may have suffered by payment to him of a sum of money
equal to that which he would normally have earned from
the date of his discharge to the dale of such offer of
reinstatement, less his net earnings during said period
(Crossett Lumber Co., 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner established
by the Board in F. W Woolworth Company, 90 NLRB
289, together with interest thereon at the rate of 6 percent
per annum (Isis Plumbing & Heating Co., 138 NLRB
716).
(b) Notify Eldon G. Cook if presently serving in the
Armed Forces of the United Slates of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to determine the amount of backpay
due under this Order.
(d) Post at its plant in Marysville, Washington, copies
of the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional Director
for Region 19, after being duly signed by Respondent's
representative shall be posted by Respondent immediately
upon receipt thereof. and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 19. in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals. the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
TRIWAY MFG., INC.
Wa^WILL NOT discourage membership in International
Union of Machinists & Aerospace Workers, District
Lodge 69, AFL-CIO, or any other labor organization
of our employees, by discharging or in any other
manner discriminating against employees in regard to
hire or tenuie of employment or any term or condition
of employment.
WE WILL NOT coercively interrogate our employees
concerning their or their fellow employees' union
activities.
WE WILL. NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of any
of the rights guaranteed them by the National Labor
Relations Act
WE WILT offer Eldon G. Cook immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of pay which he may have suffered as a result of our
discrimination against him.
All of our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named or any other labor organization, except to
375
the extent that such right may be affected by an
agreement conforming to the provisions of Section 8(a)(3)
of the National Labor Relations Act.
TRIWAY
MANUFACTURING, INC.
(Employer)
Dated By
(Representative) (Title)
Note: Notify Eldon G Cook if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced.
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 583-7473.