Walls Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1962

137 N.L.R.B. 1317 (N.L.R.B. 1962)

WALLS MANUFACTURING COMPANY, INC. 1317
Walls Manufacturing Company, Inc. and International Ladies
Garment Workers Union, AFL-CIO. Case No. 16-CA-1226.
July 17, 1962
SUPPLEMENTAL DECISION AND ORDER ,
On August 5, 1960, the Board issued a Decision and Order in the
above-entitled 1 proceeding, finding, inter alia, that the Respondent
had not discharged Mary Akey in violation of Section 8 (a) (1) of the
Act, and, accordingly, dismissed the complaint. The basis for the dis-
missal was the Board's holding that it was not established that at the
time of Akey's discharge the Respondent had knowledge of the con-
certed nature of her activity. The Board found it unnecessary to de-
termine whether this activity was or was not protected.
On January 25, 1962, following the filing of a petition for review
by the Charging Party, the United States Court of Appeals for the
District of Columbia remanded the case to the Board with directions
to (a) reconsider the finding as to Respondent's lack of knowledge,
and (b) determine whether Akey's activity fell within the protection
of Section 7 of the Act.2 Thereafter, the Respondent and the Charg-
ing Party filed briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Brown].
The Board has considered the court's opinion, the briefs, and the
entire record in this case, and finds as follows :
The "Knowledge" Issue
The activity of Akey in issue here consisted of her writing a letter
to the Texas health department complaining of alleged unsanitary
conditions in the Respondent's restroom. As previously found by the
Board, two other employees had approved Akey's letter before it was
mailed. The activity, thus, was concerted. The Board, however,
found that prior to discharging Akey for sending this letter, the Re-
spondent was unaware that any employee other than Akey was in-
volved in its mailing, and it was not until after she had been discharged
that Akey indicated to the Respondent that she had written the letter
on behalf of other employees. The Board held that to sustain a find-
ing that an employee has been discharged in violation of Section
8 (a) (1) for engaging in concerted activity it must be established that
1128 NLRB 487
s International Ladies' Garment Workers' Union , AFL-CIO ( Walls Manufacturing Com-
pany ) v N.L R B , 299 F 2d 114 (112 App D.C. 30).
3 We deny the Respondent 's request for oral argument as the record herein, including
the briefs, adequately presents the issues and positions of the parties
137 NLRB No. 134.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to the discharge the Employer knew that the activity was con-
certed. The Board concluded that there was no evidence in the record
to warrant attributing such knowledge to the Respondent.
The court assuming, but without deciding, the validity of the
Board's rule requiring knowledge of the concerted nature of conduct
as a prerequisite to finding an 8(a) (1) violation nevertheless believed
that the rule should not be applied with undue severity where the
employee's claim of having acted in concert with others is made known
to the employer contemporaneously with the discharge,' and the rea-
sonableness and probable soundness of the claim is supported by the
background and the surrounding circumstances.'
On reexamination of the record evidence in the light of the court's
opinion, the Board now concludes that, assuming, but without passing
on, the need for showing knowledge, that requirement was satisfied
by the evidence that at the time of the discharge interview the Re-
spondent knew of the concerted nature of Akey's activity.
The "Protected Activity" Issue
As noted in the original Decision herein the Board found it un-
necessary to determine whether Akey's activity, although concerted,
was or was not protected. In its remand, the court directed that the
Board decide this issue, taking into consideration whether the letter
contained false information and, if so, "whether the falsehoods were
such as to remove the writing from any `protected' status it might
otherwise possess." This letter to the State health department con-
tained the following allegations against the Respondent:
1. Lack of heating facilities.
2. A temperature of below freezing on one occasion.
3. Lack of covered receptacles for lunch sacks, etc.
4. Lack of a sanitary eating place.
5. Cleaning of the washroom only once a week.
6. Lack of hot water.
7. Lack of a dressing room.
8. Possible failure of the Respondent to comply with a State
health regulation.
The record appears to support allegations Nos. 2, 6, and 7; it does not,
however, appear to support allegation No. 5. The remaining allega-
tions are not so easily categorized as true or false on the basis of this
4 The fact that two other employees had approved Akey's letter was reported to Re-
spondent immediately after its words of discharge of Akey had been uttered and before
any other action was taken to effectuate the termination
B As noted by the court, Akey was known as a leader among the employees and at an
earlier period had unsuccessfully sought to organize the employees ; and Respondent sus-
pected that she had written an earlier complaint to the State health department which
on its face represented concerted activity and as to which the letter in issue was a fldlowup.
WALLS MANUFACTURING COMPANY, INC. 1319
record. However, even assuming their inaccuracy, neither these
allegations nor allegation No. 5 warrant a holding that the writing
and mailing of the letter was not protected.
Employees do not forfeit the protection of the Act if, in voicing
their dissatisfaction with matters of common concern, they give cur-
rency to inaccurate information, provided that it is not deliberately
or maliciously false.' In the instant case, we note that all of Akey's
complaints concerned sanitary conditions of common concern and
were directed solely to the State regulatory agency which polices such
matters. There is no cogent evidence that the allegations were made
with intent to falsify or maliciously injure the Respondent, that they
were defamatory or insulting in character, or that they were mani-
festly destructive of discipline.' In these circumstances, and not-
withstanding the inaccuracy of any allegation, we find that the ac-
tivity here was protected conduct within the meaning of Section 7 of
the Act.
On the basis of the foregoing, we find that the Respondent violated
Section 8(a) (1) of the Act by discharging Mary Akey.
THE REMEDY
Having found in this Supplemental Decision that the Respondent
has engaged in unfair labor practices in violation of Section 8 (a) (1)
of the Act, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act. It has been found that the Respondent has discriminated against
Mary Akey by discharging her in violation of Section 8(a) (1) of the
Act. We shall therefore order the Respondent to offer her immediate
and full reinstatement to her former or substantially equivalent posi-
tion, without prejudice to her seniority or other rights and privileges,
and to make her whole for any loss of pay she may have suffered as a
result of the discrimination against her, by paying her a sum of
money equal to the amount she normally would have earned as wages
between the date of discharge and date of issuance of the Intermediate
Report, and date of the issuance of this Supplemental Decision and
Order to the date of Respondent's offer of reinstatement, less her net
earnings during said periods, with backpay to be computed on a
quarterly basis in the manner established by the Board in F. W.
Woo?.vorth Company, 90 NLRB 289.'
9 Marlin Forearms Company, 116 NLRB 1834 , at 1839-1840, and cases cited therein.
7 Marlin Forearms Company, supra . Cf. The Patterson-Sargent Company, 115 NLRB
1627, and cases therein cited.
9 The Supplemental Decision, pursuant to remand , rejects the dismissal recommenda-
tion contained in the Intermediate Report and also reverses the original Board Decision
dismissing the complaint In these circumstances , we are tolling Akey's backpay from the
date of the Intermediate Report to the date of this Supplemental Decision and Order
Cf. A.P W. Products Co, Inc, 137 NLRB 25.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, it is hereby ordered
that the Respondent, Walls Manufacturing Company, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discharging employees or discriminating in regard to their
hire, tenure of employment, or any term or condition of employment,
because they have engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to engage in, or to refrain from
engaging in, any or all of the activities specified in Section 7 of the
Act.
2. Take the following affirmative action which will effectuate the
policies of the Act :
(a) Offer to Mary Akey immediate and full reinstatement to her
former job without prejudice to any rights and privileges previously
enjoyed.
(b) Make whole Mary Akey for any loss of pay she may have suf-
fered as a result of the discrimination against her, to the extent and
in the manner set forth in the section of this Supplemental Decision
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 plant at Cleburn, Texas, copies of the notice at-
tached hereto marked "Appendix." s Copies of such notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
B In the event that the Board 's Order is enforced by a decree of a United States Court of
Appeals , the notice shall be amended by substituting the words "Pursuant to a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a
Decision and Order "
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1321
APPENDIX
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discharge any of our employees or discriminate in
regard to their hire, tenure of employment, or any term or condi-
tion of employment, because they have engaged in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to engage in, or to
refrain from engaging in, any or all of the activities specified in
Section 7 of the Act.
WE WILL offer Mary Akey immediate sand full reinstatement to
her former job without prejudice to any rights and privileges
previously enjoyed.
WE WILL make whole Mary Akey for loss of pay suffered as a
result of her discharge.
WALLS MANUFACTURING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edi-
son 5-5341, Extension 284, if they have any question concerning this
notice or compliance with its provisions.
Local 282, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Acme Concrete
& Supply Corp . Case No. 2-CC-653. July 17, 1960
DECISION AND ORDER
On January 23, 1962, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
137 NLRB No. 137.