Wadco Co.

National Labor Relations Board - Board Decisions

Jan 11, 1978

234 N.L.R.B. 207 (N.L.R.B. 1978)

WADCO COMPANY
Wadco Company and Bonnie J. Harris. Case 8-CA-
10949
January 11, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On November 3, 1977, Administrative Law Judge
John C. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Wadco Company, Wadsworth, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Bonnie Harris immediate and full
reinstatement to her former position or, if it no
longer exists, to a substantially equivalent position,
without prejudice to her seniority and other rights
and privileges, dismissing, if necessary, any employee
hired as a replacement, and make her whole for any
loss of pay she may have suffered by reason of
Respondent's refusal to reinstate her by payment to
her of a sum of money equal to that she would have
earned from April 15, 1977, to the date of Respon-
dent's offer of reinstatement, with interest."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In the recommended Order and notice, the Administrative Law Judge
erroneously referred to a fixed 7-percent interest rate and thereby failed to
apply properly the Board's "adjusted pnme interest rate" formula, which
may vary in the manner prescribed in Florida Steel Corporation, 231 NLRB
234 NLRB No. 37
651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962). We shall therefore modify the recommended Order by deleting the
reference to a specific interest rate percentage which may not necessarily
govern Respondent's backpay obligations in every calendar quarter in-
volved.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees or threaten
to discharge employees because they have ex-
pressed support for a union.
WE WILL NOT interrogate employees about the
union activities or support and sympathies for a
union nor will we ask employees to engage in
surveillance of employees' union activities and
sentiments.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL offer Bonnie Harris immediate and
full reinstatement to her former job or, if it no
longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights
and privileges, and WE WILL make her whole for
any loss of pay she may have suffered because we
discharged her, with interest.
WADCO COMPANY
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER, Administrative Law Judge: On a
charge brought by Bonnie J. Harris, an individual, the
Regional Director for Region 8 issued a complaint on May
26, 1977, alleging that Respondent had discriminatorily
terminated Harris on April 14, 1977, and at various times
in the month of April had, inter alia, interrogated and
threatened employees because of their union activity and
had solicited an employee to engage in surveillance of the
union activity of others, in violation of Section 8(aX3) and
(1) of the National Labor Relations Act, as amended. A
hearing was held before me in Akron, Ohio, on September
12, 1977. At the close of the hearing, Counsel for the
General Counsel amended the complaint to add an
additional subparagraph, 6(F), alleging in substance an
additional violation of Section 8(a)(1) in the interrogation
of Loretta Marty. The Respondent's answer denied the
commission of any unfair labor practices. All parties were
afforded full opportunity to participate, to present relevant
evidence, and to file briefs.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses, and having
considered the arguments of counsel and the briefs submit-
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ted by the General Counsel and by Respondent, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Wadco Company, a Division of Cornwell Quality Tools,
Inc., a corporation duly organized under the laws of Ohio,
maintains a facility in Wadsworth, Ohio, at which it
receives and assembles tools and equipment. The Wads-
worth facility is the only one involved in this controversy.
Cornwell Quality Tools, Inc., annually ships produce
valued in excess of $50,000 directly from points within the
State of Ohio to points outside the State of Ohio. The
Respondent admits, and I find, that it is an Employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
The following factual findings are based on a composite
of the testimony of Lou Roberts, plant manager, Dennis
Roth, an admitted supervisor, and Bonnie Harris, the
alleged discriminatee. On the basis of the witnesses'
demeanor, I have credited the testimony of Bonnie Harris
where it is in conflict with the testimony of Roberts or
Roth.
On April 12, 1977, Supervisor Roth directed employee
Loretta Marty to secure a chair and utilize it in operating
another machine. As Marty was removing the chair,
Bonnie Harris who worked nearby commented that it was
Fay Wyatt's chair and, when told that Roth had instructed
Marty to take that particular chair, Harris commented to
Roth that "he was in big trouble." Fay Wyatt returned
shortly thereafter and inquired what happened to her chair
and, upon being informed by Harris, she went to talk to
Supervisor Roth. She returned, however, without the chair
and started working at her table. Shortly thereafter, Harris,
being somewhat upset at the incident, remarked to Roth
that "it is at times like this that we need a union." This
prompted a heated discussion lasting several minutes after
which Roth ordered Harris back to work. On the following
day, April 13, Harris credibly testified that Roth came to
her and said that if she did any more "union talk" he would
take her to Lou's (Lou Roberts, plant manager) office to be
fired as a "troublemaker" since she could not be fired for
talking union. When Harris inquired of Roth whether Lou
Roberts told him to tell her that he said yes.
On April 14, 1977, at approximately 4:15 p.m., Harris
was directed to go to Roberts' office by Roth where she
was terminated by Roberts allegedly for insubordination
stemming from the chair incident. According to Harris'
credited testimony, Roberts informed her of her termina-
tion because of complaints about her from both buildings
and because she had refused to return to work. She further
testified that she did not refuse to do any work on April 12,
and that in the past, when she had refused to do work, it
was said in jest and she did in fact perform the work. Roth
confirmed Harris' testimony that occasionally she refused
to do work but that it was simply done in jest and that she
always performed the work. When questioned, Harris
credibly denied that she used profanity or swore at Roth in
the discussions about the chair. Roberts testified that Roth
told him Harris said they "needed a God-damn union"
although Roth himself testified simply that Harris used the
term "damn union" and avoided characterizing it as
profanity. The record clearly reflects, however, that the
dominant theme was Harris' remark about the need for a
union and that in clearing Harris' subsequent discharge
with Mr. Moller, president of the corporation, he also
informed him of her remark about the Union.
Roth conceded that Harris was a good worker, that he
did not complain about her work or think about firing her
for the chair incident, and that he did not tell Roberts of
the incident until questioned about it. It was about noon
the next day that Roberts inquired about the incident and
Roth told Roberts about Harris' comments about a union
and that he had to tell her to go back to work. According to
Roth, Roberts did not comment but just walked away. On
that same day, April 13, according to Roth, he warned
Harris to watch her step or she would get fired.
Roberts testified that he heard of the incident through his
administrative assistant on April 13, who in turn had had
complaints from several women about the "ruckus" in the
plant on April 12. He also questioned several employees
who confirmed that there had been a loud discussion and
that Harris and Roth were involved. Roberts stated that
the first he actually heard about union organization in the
plant was from Karen Garrett late on April 13, when after
working hours (shift ended at 4:30 p.m.), she came into his
office and requested to be put on salary so she would not
have to be a member of the Union. He stated that Karen
also advised him that Bonnie Harris was not the one trying
to organize the Union. He advised her that his mind was
already made up to terminate Harris and that, when he
went out in the plant on April 13 to advise Harris of her
termination, employees had already left for the day. When
asked why he did not terminate her the next morning,
Roberts stated he did not know why. He did in fact,
terminate her near the end of her shift at about 4:15 on the
afternoon of April 14.
Roberts' testimony established that only one other
person had been discharged by the Company in the last 6
months and that person was terminated for failure to
report to work. Roberts admitted that no one had been
discharged while on the job and that usually oral repri-
mands were sufficient to get employees to perform. He
further testified that except for an incident 2 years prior,
when Roberts was prepared to terminate Harris for refusal
to perform work, Harris was a good worker until about the
first of the year (1977). Roberts admitted that he did not
talk to Harris about the matter apart from the meeting at
which she was terminated and he stated he did not give
Harris an oral or written warning. He noted, however, that
they had no practice of giving warnings prior to termina-
tion and had no real need for such a practice.
In his initial conversation with Garrett, Roberts conced-
ed that he asked her if other employees felt the same way as
she did or were they interested in the Union. According to
Roberts, Karen thought it was Janice Sinderath trying to
bring in a union. Roberts stated that a couple of weeks
208
WADCO COMPANY
after Harris' discharge he had a conversation with Loretta
Marty who commented that she did not see why people
wanted the Union. Roberts also admitted asking Marty if
she knew anyone else interested in a union or had heard
anymore talk about it.
Roberts also testified that, a few days after Harris'
discharge, Karen Garrett came into the office again and he
asked her if there was anyone on the outside involved in
the union organizational attempts and Karen responded
that she did not know if there was. Roberts conceded that
the name of a truckdriver named Friday may have been
mentioned in the second conversation. He also conceded
that he may have asked Karen to let him know if she heard
anything.
B. Respondent's Defense
With respect to the discriminatory discharge allegations
involving Bonnie Harris, Respondent contends that Harris
was discharged solely for insubordination; i.e., her refusal
to return to work after a heated discussion with Supervisor
Roth over use of a chair. Respondent contends that there is
no evidence of probative value and the 8(a)(3) allegations
should be dismissed.
Regarding the 8(aX)() allegations, Respondent empha-
sizes the failure of proof as to the various allegations
involving interrogation, threats, and surveillance of union
activities, and especially notes the absence of any employee
testimony.
C. Concluding Findings
The 8(aXl) Allegations
Crediting the testimony of Bonnie Harris, I conclude and
find that Supervisor Dennis Roth did in fact threaten
Harris with discharge as a troublemaker if she continued to
talk about the Union and that such conduct is violative of
Section 8(a)( ) of the Act.
With respect to certain 8(a)(1) allegations contained in
paragraph 6 of the complaint, there is no evidentiary
support in this record to sustain the allegations set forth in
paragraphs 6(B), 6(C), and 6(D) of the complaint. Accord-
ingly, such allegations are dismissed.
The remainder of the 8(aX)(I) allegations are discussed
hereinafter. Paragraph 6(A) of the complaint alleges in
essence that on April 13, 1977, Plant Manager Lou
Roberts, inter alia, interrogated an employee about her
union activities, sympathies, and desires and the union
activities of other employees. On the basis of Roberts' own
testimony, I find that his asking employee Karen Garrett if
other employees felt the same way, or were interested in the
Union, constitutes an illegal inquiry into the union sympa-
thies of its employees and is a violation of Section 8(a)(1) of
the Act.' In so doing, I have taken into consideration that
the conversation about the Union was initiated by Garrett
and conclude that it does not, in any event,justify Roberts'
illegal inquiry into other employees' union sympathies.
Subparagraph 6(E) of the complaint alleged that Rob-
erts, on or about April 26, 1977, solicited an employee to
I Contractors Cargo Co., Inc.. 218 NLRB 549 (1975); Answering, Inc., 215
NLRB 688 (1974).
engage in surveillance of the union activity of other
employees. In his initial testimony, Roberts stated he may
or may not have asked Garrett if she heard anything (about
the, Union) to let him know. Later, when asked if he
remembered telling Tom Nicholas, an investigator for the
NLRB, that he asked Karen Garrett if she heard anything
about the Union to let him know, he conceded that it was
possible that he advised Karen to let him know if she heard
anything (about the Union). In view of these reluctant
admissions by Roberts, I find and conclude that he
attempted to enlist and did solicit the support of Karen
Garrett to keep him informed of the union activities of
employees and that such conduct constituted illegal sur-
veillance of employees' union activities and was therefore
violative of Section 8(aX 1) of the Act.
Subparagraph 6(F) was added as an amendment at the
close of the hearing and alleged that Roberts interrogated
Loretta Marty in or around late April about her union
activities and that of other employees. When questioned,
Roberts conceded questioning Marty whether she knew
anyone else interested in the Union. Irrespective of the fact
that Marty initiated such conversation I find such question
an illegal inquiry into the union sympathies of the employ-
ees and violative of Section 8(aXli) of the Act.2
The 8(aX3) Allegations
For the reasons set forth hereafter, I find and conclude
that Bonnie Harris was discharged because of her publicly
announced support for a union and that such discharge
violated Section 8(aX3) of the Act.
It is clear that Plant Manager Roberts opposed a union
among his employees because he felt that the Union was
not needed in view of existing benefits insuring to employ-
ees. The chronology of events establishes that, although
Roberts was aware of Harris' conduct by the early
afternoon of April 13, he did not in fact discharge her until
near the end of the workshift on April 14. While Harris'
comment may have been innocuous initially to Supervisor
Roth and Manager Harris, it achieved much more signifi-
cance when Roberts actually learned, late in the afternoon
of April 13, that an active union organizational campaign
was underway. I conclude that the reasons given for Harris'
discharge were a pretext and that it was her fervently
announced support for a union at the time when manage-
ment discovered that a union organizational attempt was
underway that, in fact, triggered her discharge.
My conclusion is based on the following factors. The
Respondent did not give an oral or written warning to
Harris but precipitously discharged her despite the fact
that the Respondent had not found it necessary in the past
to discharge employees. While Roberts was aware of the
incident early in the afternoon of April 13, he did not take
action to terminate Harris until he also learned from Karen
Garrett, later on April 13, that active efforts were being
made to organize employees in the plant. While it is true
that Garrett indicated that Bonnie Harris was not the
person attempting to organize the Union, her avowed
support of a union rendered her immediately suspect, if not
I Supra, fn. .
209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an organizer, at least that of a fervent supporter. In view
of Roberts' testimony that he was "shocked" to learn of the
union activity and his avowed opposition to any union for
the employees, I conclude and find that the reasons
proffered for the discharge of Harris were a pretext. While
Roberts testified that Harris was discharged solely for
insubordination, he later offered other reasons.
He first stated that 2 years prior Harris had refused to do
certain work and that, although he was prepared to
terminate her, she gave him an acceptable excuse (she had
undergone an operation) and he did not terminate her. In
the present incident, he did not talk to Harris to get her
version, and did not give her a verbal or written warning
despite acknowledging that she was a good worker. While
attempting to relate her discharge to her refusal to do work,
Roberts also stated that, since the first of the year,
employees in both buildings had complained about her.
Such complaints were somewhat vague and appeared to
center on Harris' talking or otherwise disturbing employees
while they were at work. Yet, Roth testified that apart from
the discussion about the chair he had voiced to Roberts no
complaints about her work. In fact, as previously related,
Roth had not taken any complaint about the chair incident
to Roberts nor recommended Harris' firing nor any
disciplinary measures for her conduct. It appears clear, and
I find, that Harris seized upon the incident as a pretext for
discharge. Whatever his inclination to dismiss Harris'
comment about the need for a union as mere shoptalk, it
became of great significance once Roberts learned that
there was in fact an active union campaign going on.
Based on the above factors, including the credited
testimony of Harris and the discredited testimony of
Roberts and Roth where it conflicts with Harris, I find that
the reasons proffered for Harris' discharge were a pretext
and that her discharge was for expressing a fervent need
and thus support for a union. Accordingly, I find that her
discharge was discriminatorily motivated and in violation
of Section 8 (a)(3) of the Act.3
It. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section I1,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to burden and obstruct
commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Wadco Company, a Division of Cornwell Quality
Tools, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By interrogating employees Karen Garrett and Lor-
etta Marty about the union views and sympathies of fellow
3 Farah Manufacturing Company, Inc., 202 NLRB 666 (1973); Concourse
Porsche Audi, Inc., 201 NLRB 181 (1973).
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
employees, the Respondent, through the conduct of its
agent and Plant Manager Lou Roberts, violated Section
8(aXl1) of the Act.
3. By requesting Karen Garrett to advise him of any
union activities or development, the Respondent, through
the conduct of its agent and plant manager, engaged in an
informal program of surveillance and thereby violated
Section 8(aX 1) of the Act.
4. By threatening employee Bonnie Harris with dis-
charge if she continued to talk union, the Respondent,
through the conduct of its agent and supervisor, Dennis
Roth, violated Section 8(aX1) of the Act.
5. By discharging employee Bonnie Harris for express-
ing a need for a union, the Respondent, through its agent
and plant manager, Lou Roberts, violated Section 8(a)(3)
and (I) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent, through its agents
Lou Roberts and Dennis Roth, violated Section 8(a)(3) and
(1) of the Act, I shall recommend that it be required to
cease and desist from such violations and take certain
affirmative action designed to effectuate the policies of the
Act. It is recommended that the Respondent make Bonnie
Harris whole for any loss of earnings as a result of her
discharge and offer her reinstatement to her old position or
a comparable position in the event such position no longer
exists.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 4
The Respondent, Wadco Company, a Division of Corn-
well Quality Tools, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or threatening to discharge employees
because they voiced sympathy or support for a union.
(b) Interrogating employees about the union views and
sympathies of their fellow employees.
(c) Requesting employees to advise Respondent of any
union activities or developments and thereby engaging in
an informal program of surveillance.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Bonnie Harris immediate and full reinstate-
ment to her former position or, if it no longer exists, to a
substantially equivalent position, without prejudice to her
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
210
WADCO COMPANY
seniority and other rights and privileges, dismissing, if
necessary, any employee hired as a replacement, and make
whole for any loss of pay she may have suffered by reason
of the Respondent's refusal to reinstate her by payment to
her of a sum of money equal to what since would have
earned from April 15, 1977, to the date of the Respondent's
offer of reinstatement including 7-percent interest,5 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 and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under the
terms of this recommended Order.
(c) Post at its Wadsworth, Ohio, plant where the dispute
arose copies of the attached notice marked "Appendix." 6
I Florida Steel Corporation, 231 NLRB 651 (1977); F W. Woohvorth
Company, 90 NLRB 289 (1950).
s 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
Copies of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by the
Respondent's representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notice is not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
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."
211