Virginia Metalcrafters, Inc.

National Labor Relations Board - Board Decisions

May 19, 1966

158 N.L.R.B. 958 (N.L.R.B. 1966)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because it was filed during the 60-day insulated period. Rather,
as the National Brassiere [122 NLRB 965] case clearly implies,
such a petition must still be dismissed unless the record made at
such hearing establishes that the, existing contract is in fact no
bar for other reasons, and such dismissal is required, whether or
not the issue of timeliness is specifically raised, when, as herein,
the existing contract is adduced in evidence; nor is the necessity
for dismissal in these circumstances obviated by the fact that the
hearing was not held until after the expiration date of such con-
tract.4
It is clear from the foregoing that the Regional Director erred in
directing an election on the basis of the September 30, 1965, petition,
once he was satisfied that the contract in effect at that time was in
fact operative as a bar.-5 As a consequence, the parties have not had
the opportunity to bargain, as contemplated by our Deluxe Metal
rule, free from the "threat of overhanging rivalry and uncertainty"
for a 60-day insulated period. Accordingly, to effectuate the policies
underlying our insulated period rule, the petition herein will be dis-
missed and no new petition for the subject employees will be enter-
tained for a period of 60 days from the date of this Decision on
Review and Order, and then only if a question concerning representa-
tion still exists.
[The Board dismissed the petition.]
Member Zagoria took no part in the consideration of the above
Decision on Review and Order.
4 Stewart Die Casting , 123 NLRB 447, 449. Cf. Pacific Coast Association of Pulp and
Paper Mfg ., 121 NLRB 990 , 994-995. See also Oregon Macaroni Company, 124 NLRB 1001
at footnote 2; and City Cab, Inc., 128 NLRB 493, 495.
6 United Fruit Company, 134 NLRB 287, 293, and Water Tower Inn, 139 NLRB 842,
847 are clearly distinguishable as they involved prematurely filed petitions.
Virginia Metalcrafters, Incorporated and United Electrical,
Radio, and Machine Workers of America . Case No. 5-CA-3196.
May 19, 1966
DECISION AND ORDER
On November 23, 1965, Trial Examiner William W. Kapell issued
his Decision in the above-entitled proceeding, finding that the
Respondc__t had not engaged in unfair labor practices as alleged in
the complaint and recommending that the complaint be dismissed in
As entirety, as set forth in the attached Trial Examiner 's Decision.
158 NLRB No. 90.
VIRGINIA METALCRAFTERS, INCORPORATED 959
Thereaftei, the General Counsel and the Charging Party filed excep-
tions to the Trial Examiner's Decision with supporting briefs
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins]
The Board has reviewed the rulings of the Trial Examiner made
at the healing 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 briefs, and the entire record
in this case, and finds merit in the exceptions Accordingly, the
Board adopts only those findings and conclusions as are consistent
with our Decision herein
The Trial Examiner in dismissing the complaint found that the
General Counsel failed to prove that Respondent had knowledge
"either actual or inferential" of the union activities of Garland
McVey, the alleged discriminatee We are of the opinion that the
undisputed facts heiem logically lead to the conclusion that Respond-
ent did have such knowledge and it was this knowledge which moti-
ated the discharge
The undisputed facts herein show that on June 18, 1965, McVey,
an employee of Respondent for 81/2 years in its polishing and buffing
department , was discharged without prior warning, in mid-afternoon
The Union had since April 1 been engaged in an organizational cam-
paign at the plant gates , of which Respondent was aware and
opposed, as evidenced by its antiunion circulars , and speeches, one of
which speeches was made by Respondent 's President Eckman about
a half hour after McVey 's discharge, in the department where McVey
had been employed McVey had joined the Union , solicited several
fellow employees and signed up one in his own department About
10 a in on the day of his discharge, he had engaged in a heated argu-
ment over the Union with former foreman and current leadman
Trustlow, in the presence of two other employees during a coffee
break in the buffing department During the argument , in answer to
McVey's complaint about the wage scale , Trustlow stated the Union
could not help but McVey insisted it might When Trustlow in reply
stated he didn't see why the employees wanted the UE, that half of
them were Communists, McVey replied "Well, I don't know whether
they are communists or not, for all I know the company might be
part communist too " Employee Estes, who was in the group, testi-
fied that the two disputants spoke in "kind of an angry tone " Four-
teen to twenty men work in the department The record does not
show whether Clem, the foreman, was present during the coffee
break, but it does establish that in the absence of the foreman, Trust-
low is in charge and is "addressed as a foreman 11
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 pm, McVey asked Foreman Clem for permission to go
home as he was not feeling well Clem granted it but requested
McVey to wait for a company-employee meeting which, according to
Clem, would start in about 10 minutes McVey agreed to wait and
went back to his machine About 10 minutes later, Clem approached
him and told him he could leave immediately as he (Clem) did not
know when the meeting would start
McVey thereupon went to the tuneclock where he was met by
Superintendent Miller who told him he was dischai god when
McVey asked for the reason, Miller said, "Your attitude toward the
Company seems like you do not have the Company's interest at
heart " McVey pressed Miller for an explanation of what he meant
by "attitude," and Miller stated it was hard to get McVey to con-
tribute to the Community Fund McVey appealed to Foreman Clem
who was with Miller and Clem stated he had no trouble getting
McVey to contribute during the last such campaign the previous
October McVey also appealed to Clem about his work and Clem
agreed that McVey did special jobs when asked Miller gave McVey
a formal discharge notice which stated he would not be considered
for rehire
McVey then went to Personnel Manager Davis and inquired as to
the reason for the discharge Davis told him he knew nothing about
it and furthermore disclaimed even knowing McVey The following
week McVey managed to see President Eckman who told him he was
discharged because of his attitude toward the Company Specifically
Eckman said McVey gave his foreman a hard time and "had caused
trouble among the employees " He also mentioned that during the
previous winter, McVey had opened windows in the department chill-
ing other employees He refused McVey's request that he intercede
with the foreman and, though he agreed to give McVey a recom-
mendation as a good worker, stated McVey had no chance of getting
back his job In the conversation, Eckman told McVey his "bad atti-
tude" had been building up for a long time, whereupon McVey said
he was not aware of it
Though the discharge notice made no reference to McVey's work
and specifically stated the discharge was because his "attitude and
behavior has not been consistent with the `best interest of the Com-
pany and its employees," we think it relevant to note 1 hat McVey's
work had never been criticised, and that he never received warnings,
reprimands, or disciplinary action in 81/2 years except as follo%N s
About 2 years prior to his discharge, he received a 2-day suspension
for leaving the plant without permission His uncontradicted testi-
mony was that he and about five other employees left on a Saturday
at noon because of a very heavy snowstorm He stated he had asked
for permission to leave but did not receive it Shortly before his dis-
VIRGINIA METALCRAFTERS, INCORPORATED 961
charge, his whole department had been reprimanded by Foreman
Clem for shutting down their machines before the buzzer sounded.
'With respect to the opening of the windows the previous winter,
nothing in the record shows either that he had thereby violated a
rule or that he was reprimanded for it. On the positive side, the
record shows : (1) His foreman, Clem; agreed McVey did "special
work when asked; (2) although he was not required to do so, he
voluntarily helped to train new employees because, as he stated, "If
I' could help them from getting hurt, I would show them," and (3)
President Eckman stated he would give him a recommendation to
the effect that he was "good, hard worker, a steady worker....." 1
It is apparent from the above that McVey's performance of his
work could have had no bearing on Respondent's decision to dis-
charge him. The critical issue, therefore, is what Respondent meant
by McVey's "attitude and behavior"-the assigned reason for the dis-
charge, and what was the real reason for the discharge.'
As set forth above, McVey questioned Superintendent Miller as to
what he meant by his attitude and behavior and he denied the accusa-
tion that he did not have the Company's' interest at heart. Miller's
charge that "it was hard to get McVey to contribute to the Commu-
nity Fund" was immediately repudiated by Clem, and no other spe-
cific conduct which would explain what Miller meant was offered by
either Miller or Clem. The explanation given to McVey by President
Eckman the following week was equally unsatisfactory. Eckman at
first generalized, saying "I don't think there is much explaining to
be done," and "It was your attitude toward the Company.11 " When
McVey pressed him for specifics, Eckman said McVey "'was hard to
get along with the foreman," and that he had opened the windows in
'his department the previous winter causing other workers to`become
chilled. Eckman also said McVey had been working up a bad atti-
tude over the years, again without specifics, and asserted that he had
caused trouble among the employees. As to Eckman's claim that the,
foremen had trouble getting along with McVey, we note that at. the
time of his discharge McVey had pressed the foreman for it reason
and what was meant by attitude and behavior, and neither foreman
claimed they had trouble with him. To the, contrary, Clem agreed
that McVey,did special work when asked. We reject as specious
Eckman's assertion that the foremen had trouble with McVey.' More-
over, Eckman's mention of the window opening, an incident which
occurred the past winter , leads us to believe that Eckman was strain-
ing to avoid giving McVey a real explanation of what Respondent
meant by "bad attitude ." We can relate Eckman's appraisal of
1 Eckman , while agreeing to give the above recommendation, also stated he would have
to note on it McVey's alleged bad attitude.
221-731-64-vol . 158-62 '
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McVey's attitude and his claim of causing trouble among employees
only to the event on the morning of McVey's discharge-McVey's
heated defense of the Union in his argument with leadman Trustlow.
We note, first, the abruptness of the discharge. At 10 a.m. McVey
engaged in an argument concerning the Union with Trustlow in the
presence of other employees. At 2:15 p.m., without any prior, warn-
ing or criticism during his 81/2 years as an employee concerning his
"attitude," McVey was discharged. We also note here that it
appears that McVey's immediate foreman, Clem, was unaware of the
decision to discharge McVey. Thus, on this matter, the record shows
that at 2 p.m. Clem granted McVey permission to leave early, but
requested that he wait, for Eckman's meeting with the employees
scheduled in about 10 minutes. It is, reasonably inferable that if
Clem 'knew of the impending discharge, he would not have asked
McVey to be present at the meeting. Secondly, we note Respondent's
failure to give an acceptable explanation, although pressed for one,
as to what was, meant by, "bad attitude." We note particularly here
that the only specific explanation attempted by Miller was immedi-
ately refuted by Clem, and the effect of this was to leave Miller in
the position of not having given McVey any explanation. As stated
by the court in N.L.R.B. v. C. TV. Radcliffe d/b/a Flo'nedale Tractor
d Equipment Company, 211 F. 2d 309, 314 (C.A. 9) : "The failure
to give a reason , or the giving of evasive, inconsistent, or contradic-
tory reasons by,management for the discharge of employees, prop-
erly, may be considered by the Board- ... in determining the real
motive, which actuated „the discharges.?' Finally, we note that
Respondent was hostile to the Union's organizing campaign, and we
consider it more than coincidental that Eckman saw fit to call his
first antiunion meeting of his employees ( as far as this record shows)
on the same afternoon McVey was discharged in the very department
where McVey had openly expressed support of the Union.
In sum; and as stated above, we belive that Eckman's reference to
causing trouble,, and the references to bad attitude,2 referred to the
union argument with Trustlow in which McVey expressed his pro-
union attitude.3
OSee 1S.L.R.B. v.,M¢irose'Processing Co., 351 F . 2d 693 (C.A. 8), where the court in
enforcing in part a Board order stated: "Finally there is some direct evidence on the
issue. The record contains the curious statement attributed to the plant manager that
`her attitude wasn 't with our ideas .' ' This statement on its face could easily be con-
strued as evidencing certain antiunion motivation." -
8 Assuming arguendo that McVey's attitude toward Respondent left something to be
desired and that this had been building up over•the years, as Eckman told McVey, we
would not reach a different result. Nothing but the union argument happened on June 18
which could have precipitated McVey's discharge, and it has been repeatedly held that an
employer ' s tolerance of an employee 's shortcomings until he engages in union ' activity is
an indieium of discriminatory motivation. N.L.R.B. v. Greensboro Coca Cola Bottling
Company , 180 F. 2d 840, 843 (C.A. 4) ; NL.R.B. v. Peoples Motor Express. Inc., 165 F.
2d 903, 905 (C .A. 4) ; N.L.R.B. v. East Texas Steel Castings Company, Inc., 211 F. 2d
813, 817 (C.A. 5) ; N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 887 (C A. 1).
VIRGINIA METALCRAFTERS, INCORPORATED 963
On the basis of the foregoing, we hold, contrary to the Trial
Examiner, that the General Counsel made out a prima fame. case that
Respondent discharged McVey because of his piounion views in
order to discourage membership in the Union in violation of Section
8(a) (3) and (1) of the Act
The General Counsel having proved a prima fame case, it was
incumbent upon Respondent to come forward and advance a reason-
able explanation for the summary discharge since it is obvious the
real reason "lay exclusively within its own knowledge " 4 Instead,
Respondent chose not to refute or disprove the inference of discruni-
nation and remained silent by testing its case Respondent having
failed to assume the burden of going forward with the evidence,
though the burden of proof on the merits remained on the General
Counsel, it remains to determine whether on the entire record as a
whole, the General Counsel proved his case on the merits by "a pre-
ponderance of the testimony taken " We so find, and conclude, upon
the entire record of this case, that Respondent discharged Garland
McVey because of his union sympathies and thereby violated Section
8 (a) (3) and (1) of the Act
I TIIE EFFECTS OF TiIF UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of Respondent described above occurring in connection
with its operations , have a close, intimate , and substantial relation
to trade, traffic , and commerce among the several States tend to lead
to labor disputes burdening and obstructing commerce and the free
flow thereof and thus constitute unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
ri THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (3) and (1) of the Act, we
shall order the Respondent to cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
purposes of the Act
Having found that Respondent discriminated against Garland
McVey by discharging him, we shall order Respondent to offer him
immediate and full reinstatement to his former of substantially
equivalent position without prejudice to his seniority or other rights
and privileges formerly enjoyed by him and to make him whole for
any loss of pay suffered as a result of Respondent's discrimination
against him from the date of his discharge to the date when reinstate-
ment is offered Computation of backpay shall be computed in
6 Montgomery Ward A Co v NLRB , 107 F 2d 555 560 (C A 7) citing NLRB V
Remington Rand Inc 94 F 2d 862 , 871, 872 (C A 2)
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the formula adopted in F W Woolworth Company,
90 NLRB 289, with interest thereon at 6 percent per annum as pro-
vided by the formula adopted in Isis Plumbing & Heating Co, 138
NLRB 716
Because the discharge here goes to the heart of the Act,-5 we shall
issue a broad cease-and -desist order which in the circumstances we
deem necessary and appropriate to protect employee rights and to
make effective the policies of the Act
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire
record in the case, we hereby delete the Trial Examiner's Conclusions
of Law and make the following Conclusions of Law
1 The Respondent is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act
3 By discriminating against Garland McVey in regard to the ten-
ure of his employment, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (3) of the Act
4 By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed by Section 7 of the Act, Respondent
has engaged in unfair labor practices within the meaning of Section
8(a) (1) of the Act
5 The aforesaid unfair labor practices are unfair labor practices
affecting commerce 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 Relations Board hereby orders that
A Respondent Company, Virgiiua Metalcrafters, Incorporated,
Waynesboro, Virginia, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discouraging membership of any of its employees in United
Electrical, Radio, and Machine Workers of America, or in any other
labor organization of its employees, by discharging or in any other
manner discriminating against any individual in regard to hire, ten-
ure of employment, or any terms or conditions of employment
5 N L R B V Rntwistie iffg Co , 120 F 2d 532 (C A 4) enfg as modified 23 NLRB 1058
VIRGINIA METALCRAFTERS, INCORPORATED, 965
because of membership in, activities for, or sympathies, with any such
labor organization
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
of protection, or the right to refrain from such activities
(2) Take the following affirmative action which we find is neces-
sary to effectuate the policies of the Act
(a) Offer to Garland McVey immediate and full reinstatement to
his former or substantially equivalent position of employment with-
out prejudice to his seniority or other rights and privileges pre-
viously enjoyed by him, and notify said employee if at present serv-
ing 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
(b) Make whole Garland McVey for any loss of earnings suffered
by him as a result of the discrimination against him, in the manner
set forth in the section of the Decision herein entitled "The Remedy "
(c) 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 or useful to determine the amount of
backpay due under the terms of this Order
(d) Post at its place of business at Waynesboro, Viiginia, copies
of the attached notice marked "Appendix A"' Copies of said
notice, to be furnished by the Regional Director for Region 5, shall,
after being duly signed by an author iced representative of Respond-
ent, be posted by it immediately upon receipt thereof, and be main-
tained 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 by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material
(e) Notify the Regional Director for Region 5, in writing, within
10 days from the date of this Order, what steps it has taken to com-
ply herewith
E In the event that this Order is enforced by a decree of a United States Court of
Appeals there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order 11
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that
WE WILL NoT discourage membership of any of our employees in
United Electrical, Radio, and Machine Workers of America, or in
any other labor organization of our employees by discharging, or in
any other manner discriminating against, any employee in regard to
hire, tenure of employment, or any term or condition o F employment
because of membership in, activities for, or sympathies with any such
labor organization
WE WILL NOT in any other manner, interfere with, restrain, or
coerce our employees in the exercise of their rights, to self-
organization, to form labor organizations, bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or the right to refrain from such
activities
WE WILL offer Garland McVey immediate and full reinstatement
to his former of substantially equivalent position of employment,
without prejudice to his seniority or other rights and privileges
previously enjoyed by him, and make him whole for any loss of
earnings he may have suffered as a result of the discrimination
against him
VIRGINIA METALCRAFTERS, INCORPORATED,
Employer
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE We shall notify the above-named employee if serving in
the Armed Forces of the United States of his right to full reinstate-
ment 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 comph-
ance with its provisions they may communicate directly with the
Board's Regional Office, 707 North Calvert Street, Sixth Floor,
Baltimore, Maryland, Telephone No 752-8460
VIRGINIA METALCRAFTERS, INCORPORATED 967
TRIAL EXAMINER'S DECISION
STATLMENT OF THE CASE
Upon a charge filed on Tune 30, 1965,1 by United Electrical, Radio, and Machine
Workers of America, hereinafter referred to as the Union the Regional Director
for Region 5 of the National Labor Relations Board, herein called the Board,
issued a complaint on August 24 against Virginia Metalcrafters, Incorporated, here-
inafter referred to as the Respondent, alleging violations of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, hereinafter called the Act,
by its unlawful discharge of Garland McVey and refused to reinstate him because
of this union activities or concerted activities with other employees for the purpose
of collective bargaining or other mutual aid or protection
In its duly filed answer Respondent admitted the discharge of Garland McVey
for cause but denied the commission of any unfair labor practices
Pursuant to notice a hearing was held before Trial Examiner William W Kapell
in Waynesboro, Virginia, on September 30 All parties were represented and
afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs Upon the conclusion of the General Counsel's
case, Respondent moved to dismiss the complaint for failure to present a prima
facie case When decision was reserved, Respondent rested The motion is dis-
posed of consistent with the findings made herein Oral argument was presented
by both parties and General Counsel submitted a brief
Upon consideration of the entire record,2 the brief filed by General Counsel, and
upon my observation of the demeanor of the witnesses testifying before me, I make
the following
FINDING OF FACT
I THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a Virginia corporation, operated a
place of business in Waynesboro, Virginia, where it is engaged in thi business of
manufacturing grey iron castings During a representative 12 month period,
Respondent in the course and conduct of its business operations shipped goods
and materials valued in excess of $50,000 from its place of business in Waynesboro,
Virginia, directly to points located outside the Commonwealth of Virginia
Respondent admits, and I find, that at all times material herein, Respondent was
an employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that at all times material herein the Union has
been a labor organization within the meaning of Section 2 (5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
In April the Union began an organizing campaign at Respondent's plant On or
about June 6 it began to distribute union leaflets entitled "Time to Join UE" at the
plant gates The leaflets also urged employees to fill out and mail to the Union an
authorization card which was attached to it in the form of a mailable postal card
About 200 leaflets and attached cards were distributed that morning at the start of
the plant shift, and about once a week thereafter similar leaflets with attached
cards were handed out during the balance of Junes In response to the Union's
organizing campaign, Respondent also distributed leaflets to its employees In a
' All dates hereinafter refer to the year 1965 unless otherwise noted
2 Subsequent to the hearing General Counsel filed a motion to correct the transcript
which was unopposed by Respondent The motion is hereby granted and the transcript
is corrected as moved In addition the transcript is hereby also corrected to change
"Eddison" to "Estes" on p 21, 1 24
s These findings are based on the uncontradicted testimony of John J Holmes, a field
organizer for the Union
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaflet dated June 30, it characterized the Union as insulting and irresponsible and
urged the employees to ignore it, and to refuse their handouts and their
weasel-worded cards.
B. The alleged discriminato,y discharge of Garland McVey
As indicated , supra, the only witnesses who testified were called on behalf of the
General Counsel. Garland McVey testified that he began working for Respondent
about •8t years ago as a buffer and polisher in the gift department. Approximately
12'to 14 employees worked in that department under the supervision of Foreman
Don Clem .4 On the morning of June 7, McVey was handed a union leaflet when
he appeared for work ; and he filled out the • attached authorization card and
returned it by mail to the Union. He spoke in favor of the Union to several of
Respondent's employees, including two employees who worked at the foundry
located about 2 miles from the plant, two unidentified colored boys who worked
in the buffing room, and to • his coworkers Roger Trustlow, his brother Charles
Trustlow and Ervin Estes, and solicited authorization cards from some of them.
He, however, admitted.that he never spoke to Clem, Miller, or any other super-
visor about,the Union, and that no supervisor to his knowledge saw him engage
in union activity or indicated to him that he was aware of such activity.
On or about 10 a.m. on June 8 during a coffee break near their work station,
McVey, in a discussion with employees Ervin Estes, a new unidentified employee,
and Charles Trustlow,5 complained that the new employees were making $1.80 and
$1.85 an hour whereas the base pay of the older employees in the buffing room was
$1.82 an hour. The -conversation then.turned to the Union and Trustlow stated,
"Well, I don't know what you all want with the UE because half of them are Com-
munists." McVey replied "Well, I don't know if they are Communists or not. For
all I know the Company here might be part Communist too." The conversation
became somewhat heated, but ended when the horn sounded signifying the end of
the coffee break, and the employees resumed working. Later that afternoon about
2 p.m: McVey asked Foreman Clem to be excused because he was not feeling well.
Clem approved of his request but asked him to stay on for an employee-company
meeting which was scheduled to start in about 10 minutes. McVey agreed to
remain but about 10 minutes later Clem advised him that he did not know when
the meeting would start and he could leave immediately. McVey thereupon pre-
pared to leave and then approached the timeclock where he found Foreman Miller
who said, "I hear you are going home a little early. Being as you are going home
early we will make this official as of now. You are discharged from the Company,.'
We meant to make it at 4:15, but as you are going early we will make it as of
now." McVey asked why and Miller replied, "Well, your attitude toward the
Company seems like you do not have the Company's interest at heart," and also
mentioned- that it was hard to get him to contribute to the Community Fund.
McVey then turned to Foreman Clem, who was also present during this conversa-
tion, and asked whether he had-any difficulty getting him to contribute to the Com-
munity Fund during their last campaign. Clem replied that he did not. Miller then
handed McVey an envelope containing' his paycheck and a notice from the
Company.6
McVey thereupon went up to the office of Personnel Manager Davis and inquired
of 'him as to--the reason for his'discharge. Davis disavowed any knowledge about
his case or even knowing him: On Thursday of the following week, McVey
returned to the plant and • saw Eckman, the Company's president, and inquired as
*Respondent stipulated that Clem was the immediate supervisor of McVey, and that
Ralph Miller is Clem 's supervisor.
5Trustlow, a former foreman in 1958 , at all times material herein was known as a'
leadman for new employees. He worked under the supervision of Clem and Miller, and
his duties included training new employees , and instructing and directing them in their
work in the absence of the foreman.
e The notice dated June 118, 1965, addressed to McVey stated:
You are 'discharged effective 4: 15 p.m. today. Enclosed is a check paying you for'
this week's work, one week's vacation pay and one week's severance pay given in
place of notice.
Your attitude and behavior have not been consistent with the best interest of this
company and its employees , and you will not be considered for rehire
/s/ R. A. Miller
Gift Dept. Mgr
VIRGINIA METALCRAFTERS, INCORPORATED 969
to why he was discharged Eckman told him that it was his attitude toward the
Company, that he did not get along with the foreman, and that he had caused
trouble among other employees, mentioning that he had opened windows during
the preceding winter chilling other employees Eckman also advised him that his
chances of getting his job back were nil
On cross-examination McVey admitted that he had been laid off for 2 days
over a year ago because he left work at noon on a Saturday without permission,
during the past month the foreman had stopped by his machine to complain about
his quitting woik before the buzzer had rung, which was in violation of a com-
pany rule appearing in its handbook, during the preceding winter he had been
spoken to about three or four times in connection with opemng windows, which
caused other employees to complain, and on his application for unemployment
insurance, he had stated he had been discharged because of his attitude He,
however, claimed that the foreman had spoken to each employee about quitting
early because two thirds of them had been doing it
Ervin Estes, a polisher for the past 18 years, who worked in thu same depart-
ment with McVey, testified that he overheard the conversation on June 8 between
McVey and Tiustlow in which Trustlow stated all the new men should get the
same pay as all the old men, that McVey disagreed saying "maybe the Union
would help," that Trustlow replied the Union could not help and he thought about
a half of them were Communists to which McVey responded "Well, maybe half
the Company could be too," and that the conversation was carried on in angry
tones
Estes testified further that about 3 p in on that afternoon a meeting, attended
by about 25 or 30 employees and his foreman, was addressed by Eckman, who
volunteered to take a lie detector test to see whether he or the union representative
was lying in connection with a debate which had been proposed between them,
and that it was either at this meeting or some other meeting that Eckman told the
employees the Company could do as much for them as the Union could
Conclusions
Respondent contends that General Counsel has failed to make a prima facie
case in that the evidence failed to establish that Respondent had knowledge of
McVey s union support or activities or that his discharge was due to such activi-
ties Respondent also asserts further that McVey's discharge was due to his vio-
lation of company rules and other objectionable conduct, despite warnings, and
that his statement on his application for unemployment insurance that his discharge
was due to his attitude, confirms that his later claim of having been disciiminato-
rily discharged was an afterthought
General Counsel contended at the hearing that company knowledge of McVey's
union activities can be inferred primarily from the fact that Charles Trustlow's
former position as a foreman created a close rapport between him and manage-
ment, which carried over to the time of McVey's discharge, and that, therefore,
Trustlow's knowledge of McVey's prounionism can be imputed to Respondent
I find this argument too tenuous to support his conclusion In his brief General
Counsel takes the position that a discriminatory discharge may be found in certain
circumstances even though the employee did not participate in any union activities
or the employer had no knowledge, either actual or inferential, of such activities,
and cites numerous cases in support thereof In several of these cases 4 where
groups of employees were discharged, the employer had knowledge of the union
activities of at least some of these employees, the Board held that the mass firing
tended to discourage union membership and activities of the nonunion members
no less than the discrimination against the known union adherents In the instant
case only one employee was discharged and no evidence was introduced to estab-
lish company knowledge of the union activities of any employee In other
cases 8 cited by General Counsel, the employers knowledge of the discriminatees'
union activities was found to be seasonably inferable from the small size of the
7Arnoldware, Inc, 129 NLRB 228, Ellis and Watts Products Inc 130 NLRB 1216
American Bottling Company 99 NLRB 345, enfd 205 F 2d 421 (C A 5) Moore Dry
Kiln Company 133 NLRB 1256, Robert Jackson d/b/a Capital City Candy Company 71
NLRB 447 and Homedale Tractor & Equipment Company 111 NLRB 167
s,Stokely Foods Inc, 91 NLRB 1267 Bituminous Materials ct Supply Co 124 NLRB
945 and Quest Shon Mark Brassiere Co Inc 90 NLRB 1149
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plants, and union hostility was established by findings of independent 8(a)(1)
violations. The plant involved herein employs about 200 people, and there was
neither any allegation nor proof of 8(a)(1) violations, other than a derivative
violation stemming from McVey's alleged discriminatory discharge. In one cited
case 9 the Board found extensive and conspicuous union solicitation in the plant
by the discharged employees-60 union authorization cards were obtained from
172 employees in the plant-and held it was reasonable to infer that such activity
was observed by supervisors. Although McVey engaged in some campaigning
and solicitation, it was neither widespread, conspicuous, nor observed by any
supervisor. I, accordingly, find that the cases cited by General Counsel are
inapposite.
Despite the fact that some suspicion arises from the timing of McVey's discharge
and the arguable insubstantiality of the reasons advanced therefor, I find that the
General Counsel has failed to establish by a preponderance of the evidence that
Respondent had knowledge, either actual or inferential, of McVey's union activities,
and that his discharge was motivated by his union activities or support. "Circum-
stances that merely raise a suspicion that an employer may be activated by unlaw-
ful motives are not sufficiently substantial to support a finding." N.L.R.B. v. The
Citizen-News Company, 134 F. 2d 970, 974 (C.A. 9); Beaver Valley Canning
Company v. N.L.R.B., 332 F. 2d 429, 433 (C.A. 8). In view of the foregoing,
I conclude that the General Counsel has not demonstrated a prima facie case of
discriminatory discharge in violation of Section 8(a)(3). Accordingly, I shall
recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. At all times material herein, Respondent has been an employer engaged in
business affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
2. At all times herein, the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.]
e Ingram Forrest, at al. d/b/a Golden Rod Broilers , a Division of Alabama Poultry
Enterprises , 122 NLRB 1100.
Grand Central Super Valu and Local 216, Amalgamated Meat
Cutters & Butcher Workmen of North America , AFL-CIO.
Case No. 17-CA-770. May 19,1966
DECISION AND ORDER
On March 10, 1966, Trial Examiner Phil Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) Of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
158 NLRB No. 98.