Waynline, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1958

119 N.L.R.B. 1698 (N.L.R.B. 1958)

1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waynline , Inc. and United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO. Case No. 10-CA-2854. February 25,
1958
DECISION AND ORDER
On August 29, 1957, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, a copy of which
is attached hereto, finding that the Respondent,had engaged in and
was engaging in certain unfair labor practices, and recommending that
it be required to cease and desist therefrom and to take certain affirma-
tive action. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
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 [Chairman Leedom and Members Rodgers and Bean.]
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 Inter-
mediate Report, the exceptions,' and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Waynline, Inc.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, or
any other labor organization, by discharging employees or in any other
manner discriminating against its employees in regard to their hire
or tenure of employment, except as authorized in Section 8 (a) (3)
of the Act.
(b) Interrogating, in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1), its employees concerning
their membership, affiliation, or sympathy with the above or any other
union.
(c) Stating to employees that it knows who the union adherents
are or otherwise suggesting that their union activities are under
surveillance.
(d) In any other manner interfering with, restraining, or coercing
i Respondent contends that Stewart was discha-mmd for cause inasmuch as he did not
report his absence as required by company rule. 'Ply o'idence does not establish clearly
either the existence or content of such a rule. [lowever, assuming a rule requiring
reporting, we find that Stewart had complied with the rule by notifying Thornton, his
foreman, of his sickness and anticipated absence the day previous to his discharge.
119 NLRB No. 220.
WAYNLINE, INC. 1699
its employees in the exercise of their right to self-organization, to
form labor organizations , to join or assist United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their
-own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid and protection , or to refrain
from engaging in such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8 (a) (3) of the Act:
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a)' Offer to William A. Stewart immediate and full reinstatement
to his former or substantially equivalent position and make him whole
for any loss of pay suffered as a result of the discrimination against
him as provided in the section of the Intermediate Report entitled
"The Remedy."
(b) Post at its plant at Jesup, Georgia, copies of the notice attached
to the Intermediate Report marked "Appendix A." 2 Copies of said
notice, to be furnished by the Regional Director for the Tenth Region,
shall, after being duly signed by the Respondent 's official representa-
tive, be posted immediately upon receipt thereof , and be maintained
by the Respondent for a period of at least sixty ( 60) consecutive days
thereafter . Reasonable steps shall be taken by the Respondent to
insure that said notice shall not be altered , defaced, or covered by any
other material.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records , timecards , personnel records and reports,
and all records necessary to analyze the amount of back pay due and
the rights of William A. Stewart under the terms of this Order.
(d) Notify the Regional Director for the Tenth Region in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply therewith.
2 This notice is amended by substituting for the words "The Recommendations of a Trial
Examiner" the words "A Decision and Order ." 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
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order ." This notice is further amended by inserting after
the word " interrogate" the words " in a manner constituting interference , restraint, or
coercion in violation of Section 8 (a) (1)."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges , as amended , duly filed by United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (herein called the Union ), the General Counsel of
the National Labor Relations Board, by the Regional Director for the Tenth Region
(Atlanta, Georgia ) issued a complaint against Waynline, Inc. (herein called the
Respondent or the Company ), alleging that it had engaged in and was engaging in
1700 DECISIONS OF NATIONAL LABOR RELA TIONS BOARD
conduct constituting unfair labor practices affecting commerce within the meaning:
of Section 8 (a) (3) and ( 1) of the National Labor Relations Act, 61 Stat. 136
(herein called the Act ). Copies of the charges , complaint , and notice of hearing
thereon were duly served upon the Respondent . In its answer , duly filed, the,
Respondent denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on June 4, 1957, at Jesup , Georgia, before
the duly designated Trial Examiner . The parties were represented by counsel at
the hearing at which full opportunity to be heard , to examine and cross -examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded all parties..
Counsel waived oral argument at the conclusion of the hearing but later submitted
briefs which I have fully considered.
Upon the entire record in the case , and from my observation of the witnesses,.
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the answer admits, that the Respondent is a Massa-
chusetts corporation and maintains an office and place of business at Jesup, Georgia,
where it is engaged in the manufacture and sale of upholstered furniture . During.
the 12 months preceding the issuance of the complaint the Respondent sold and
shipped finished products valued at more than $500,000 directly to customers located.
outside the State of Georgia . I find that the Respondent is engaged in commerce
within the meaning of Section 2 (6) and ( 7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America , AFL-CIO, is a labor
organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The pleadings
In substance the complaint alleges that about January 29 , 1957, the Company dis-
charged William A. Stewart because of his membership in and activities on behalf
of the Union and that Plant Superintendent Henry Rice interrogated employees at
various times concerning their union membership and also created the impression
among the employees that union meetings and activities were being kept under sur-
veillance. By these acts the Company thereby engaged in violations of Section
8 (a) (3) and ( 1) of the Act.
The Company 's answer denies the commission of any such acts and asserts that
Stewart was discharged because he failed to report for work or to report the reason
for his absence.
B. Organizational activities among the employees; acts of interference on the
part of the Company
Stewart, who was employed in the upholstery department , joined the Union before
Christmas of 1956, as a result of a discussion with a friend , M. P. Trull , concerning
the benefits of organization . At the same time Trull gave Stewart about 25 union
cards for the purpose of signing up employees at the plant . Stewart placed the
cards in his car but made no mention of the Union to any of the employees until
sometime after Christmas when the Company announced a reduction in piecework
rates on certain operations . On the morning of the announcement Stewart met
with 4 or 5 of the workers, at the break period, including James Reynolds, Alvernor
Smith, and "Jobbie" Jones, and asked them if they would be interested in joining,
the Union since it might help them . When the men stated they wanted to sign up,
Stewart went to his car and brought back some union cards which he gave to them
to sign and to return to him after lunch. The group then returned to work at the
conclusion of the break . Sometime prior to the luncheon hour , Smith and Reynolds
told Stewart they knew other employees wanted to join and requested more cards,
which he gave to them. All of the cards handed out on these occasions-the number
is not stated-were returned to Stewart later that day, obviously signed by the
employees . The following day and thereafter Stewart passed out all the cards he
received from Trull . Just when his supply of cards was exhausted , Trull came to
Stewart 's home with Ed Guilliams , ' whom he introduced to Stewart as a representa-
I Guilliams ' name appears in portions of the transcript as Williams.
WAYNLINE; INC. 1701
Live of the Union. Stewart informed them he had signed up about 25 workers and
after some discussion on organization Guilliams told Stewart to arrange a meeting of
the employees , which he agreed to do.
Stewart thereupon advised Smith , Reynolds, James P. Harper , and the two
Dennison boys that a meeting was to be held at his home on the evening of January
17, 1957, and to invite employees who could be trusted to attend. The above-named
employees became members of the organizing committee at the plant . The meeting
was held on the above date and 35 or 40 employees were present . At that time
the employees met Guilliams , discussed the benefits and disabilities of unionization,
and scheduled a meeting for January 19, at Stewart 's home. According to Stewart
attendance increased at the second meeting, which was conducted in substantially
the same manner as the first meeting . A third meeting was also held at the home
of Oneida or Geneva Robertson (who lived in the same house as the Stewart
family ) at some undisclosed date but Stewart did not relate the details of this
meeting. Other witnesses testified that a fourth meeting was held at the American
Legion Hall , obviously sometime prior to January 29.
In addition to the above activities , Stewart accompanied Guilliams on visits to
employees at their homes once or twice a week in order to introduce them to
Guilliams and to explain how the Union could be of help to the workers. Stewart
and his committee , shortly after the second meeting, also went into another depart-
ment at the plant during lunch hour for the purpose of soliciting employees to
join the Union . While talking to some of the workers , Ronnie Perkens, foreman,
joined in the discussion and when Stewart asked him how he felt about the Union
he said he did not think it would help him and he was not interested in it. The
committee spent about 15 minutes in the department and then left. Stewart stated
about 60 employees signed union cards during the period prior to his discharge?
The Questioning of Employees by Superintendent Henry Rice
Stewart said that on January 18, apparently in the morning , Rice came to him
while he was working and asked how he felt about the Union. Stewart replied he
,did not know , that he was looking into it, if the Union would do him any good he
was for it, otherwise he was not in favor of it. Rice then stated that the boys at
Morristown , Tennessee , where the Company operates a branch factory , were not
very well satisfied with Stewart , and Rice talked about 15 minutes trying to show
Stewart where he was wrong . Later that day Stewart was called to Rice's office
and they discussed how the Union would and would not benefit the employees.
Rice asked the name of the union representative and when Stewart answered he did
not know or could not remember his name, Rice further inquired if it was McHenry
,and he again answered he did not know for certain . In the course of their discussion,
Rice engaged in a telephone conversation in which he apparently asked his brother
at Morristown the name of the union representative there, but was advised, so he
told Stewart , that they did not have this information . Following the phone call,
Rice stated he could name , within three, all the employees who had attended the
first meeting at this house . In view of this statement Stewart told Rice he was for
the Union and if an election was held he would vote in favor of it. The conversation,
which lasted about an hour , ended.
On cross-examination Stewart stated it was well known within 2 days that the
Union was attempting to organize the plant and that fact was generally discussed by
the employees as well as the foremen. Stewart also admitted that Rice did not
make any threats to him . In this respect Stewart said that during his conversation
with Rice, in the latter's office , he declared he would probably be fired because of
his interest in and activity on behalf of the Union , but Rice assured him he would
not be fired unles he walked from table to table , talking for 5 or 10 minutes . Stewart
also stated that he invited Clifton Thornton , his foreman , to attend the second
union meeting but was advised by Rice that it would be improper for a supervisor
to attend such a meeting.
Smith, an employee in the upholstery department , said that about the middle of
January, Stewart approached him, while working , and asked if he would sign a
union card . Smith replied he would , so Stewart left a card for him which he signed
and returned to Stewart . Smith attended three union meetings . Shortly after the
first meeting Rice called Smith to his office where they discussed organization, with
Smith taking the position that the Union would be "a good thing" for the employees,
9 The record does not reveal the number of employees during January . However, the
parties stipulated that pursuant to the Board 's direction an election was conducted among
the production and maintenance employees ( with the usual exclusions ) on May 15, 1957,
which resulted in 118 votes against the Union and 68 votes in favor of it.
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while Rice expressed a contrary opinion . Rice also stated he was glad Stewart
was openly active on behalf of the Union rather than being secretive . Smith admitted
Rice made no threats to him.
G. C. Stewart, brother of William Stewart and an instructor in the upholstery
department , signed a union card and attended a few union meetings . Stewart said
that shortly after the employees began holding meetings Rice spoke to him .in regard
to the Union and asked if he and certain employees had attended meetings, how
he felt about the Union and inquired why his wife had refused to sign a union card.
Stewart said he believed he gave Rice the names of a few employees who had attended
meetings . Stewart, his wife, and father were working for the Company at the time
of the hearing.
Iris L . Bishop , an employee in the upholstery department , signed a card and
attended at least two meetings, one at Stewart's home and the other at the American
Legion Hall. Bishop related that following one of these meetings Rice told him:
"I'd better leave the union alone for there wasn't a war on now . But what he
meant by it I couldn 't answer that."
Rice admitted he had conversations with William Stewart regarding the Union,
during January, both in his office and in the plant. He also stated that everybody
was talking about the Union. Rice denied he ever threatened any of the employees;
because of their union activities.
C. The discharge of Stewart
Stewart was first employed by the Company about March 1950, and continued'
in its employ until January 29, 1957, when he was discharged. He testified that he-
worked on January 28, but had a bad cold and his right eye was inflamed and'
swollen. Stewart was working on a piece-rate basis and did not make the rate
because they were working on a new type of furniture , so in the afternoon he
requested his foreman, Thornton, to put him on day pay, which he did. Thereafter-
Stewart worked with Smith learning how to build the new furniture. Later that day
Stewart told Thornton , in the presence of Smith , that if he did not feel better the
next morning he would not report for work. Thornton made no reply and walked'
away. Stewart was still sick the next morning and did not go to work, nor did
he inform the Company of the reason for his absence . Stewart admitted he could
have telephoned from a grocery store about a block away from his home but did'
not do so because he had never called under such circumstances in the past. About
noon that day Stewart 's brother came to his home and advised him that he had been
discharged . Stewart then drove to the plant and asked Rice if his timecard had'
been pulled . Rice replied it had been pulled because he failed to report for work
and that he had two checks made out for him. Rice also gave Stewart a discharge-
notice which stated he was discharged for "Failing to report to work and report
the reason ." When Stewart remarked he had never reported the reason for past
absences Rice told him the Company had rules and regulations governing such-
matters. Stewart declared he knew why he was being discharged and Rice concluded
the conversation by stating Stewart could believe anything he wished. About L
week later Stewart asked Rice if he had any jobs and Rice told him there were no
openings and that "he was going to look and see what the union done before they
hired anybody."
Stewart was unaware of any written or posted rules regarding absenteeism nor
was he ever advised by any official or supervisor as to the Company's policy or
practice in these respects. It was his understanding that if an employee was late-
a couple of mornines he could be fired and he also knew of workers being discharged:
for remaining away from work for more than 1 day. Stewart admitted that on,
occasions he had been late for work but he had never been required to give any
reasons for his tardiness, nor was he disciplined or warned by his foreman. In-
this connection Stewart said that about 1 year prior to the bearing , he overslept one
morning and that the company nurse called at his home and then drove him to,
work.
Smith testified that on January 28 he was working with Stewart, who had a bad'
eye. He also heard Stewart tell Thornton that if his eye was bothering him the.
next day he would not come to work. Smith did not hear any reply from Thornton..
G. C. Stewart said that on the morning of January 29, he was talking to Thornton
when Rice approached them and asked what was the matter with his brother.
Stewart answered he did not know, that he had not seen him the preceding night.
Thornton then said William Stewart had told him, the evening before, that he had
trouble with his eye and might not be in that day. Rice made no reply and left.
About 9: 30 that morning Stewart, upon hearing that William's timecard had been
WAYNLINE, INC. 1703
removed and that he had been discharged, checked the rack and found his card
had been removed. Just prior thereto Stewart met the company nurse and asked
her if she had been to see William and she answered in the negative. During the
luncheon hour Stewart informed William, at his home, what had happened and
suggested that he go to the factory. Stewart stated that some 3 or 4 years previously
the Company distributed rules covering absenteeism and it was his understanding
that if an employee was absent the company nurse would check on the employee
to see if he was sick and if so to render assistance . If the employee was not ill
or was not at home she would make a report to the Company.
Bishop when questioned about a company rule on absenteeism stated he could
not testify with certainty on this subject and although his foreman or some official
may have informed him of such a rule, he could not remember the occasion. Bishop
said it was his understanding that when a worker was absent the company nurse
would make a check to determine whether he was sick. On the day of Stewart's
discharge or the following day, Bishop asked Rice if an employee could be discharged
for being sick. Rice, after inquiring if he was referring to Stewart , stated an
employee could be discharged for being sick if he did not notify the Company.
Willis R. Parsons, employed in the upholstery department for about 5 years,
signed a union card sometime after the meetings at Stewart's home and the first
meeting he attended was held at the American Legion Hall. These events occurred
before January 29, or while Stewart was still employed. Parsons said he had not
received any instructions regarding company rules or regulations on absenteeism at
the plant. On January 29, Parsons did not report for work and did not telephone
the Company, although there was a phone about a block from his home. When he
returned to work on January 30, neither Rice nor Thornton mentioned his being
absent the previous day. However, on January 31, Thornton told Parsons and other
employees the Company was cracking down on absentees and if they were unable to
work because of illness to call in or send in word before 7 o'clock in the morning.
Prior to this date Parsons had been absent on occasions and although he failed
to give notice of his absence there were no complaints on the part of the Company.
In addition , the company nurse, with one exception , visited Parsons on all these
occasions. He further stated that on Saturday, March 9, 1957, he became ill with
the flu and did not return to work until the following Wednesday afternoon. Parsons
did not inform the Company of his illness but the nurse visited him on Monday
and on one other occasion . When Parsons reported back for work nothing was
said about his failure to notify the Company of his sickness.
The Company's Evidence
Rice testified Stewart worked for the Company about 6 years and on several
occasions when he came in late Rice remarked he should "get a better alarm clock,"
just to inform Stewart that he was aware of his being late. Stewart would smile
and say that he should get a better clock.
Rice stated that on the morning of January 29, he made a routine check of the
time clocks and found that Stewart and another employee in the upholstery depart-
ment , whose name he could not remember, had not reported for work. He then
asked Thornton if Stewart had called in or sent word and Thornton said Stewart
had not done so. Later Rice told Thornton he was going to pay off Stewart for
failure to report or to report the reason for his absence. Around 9 o'clock that
morning Rice pulled Stewart's timecard and had two checks prepared for him.
When Rice returned from lunch Stewart told him he heard his timecard had been
pulled and Rice replied that was right. Stewart then inquired, "Can't a man be
sick and be off from work?" and Rice said, "Yes, but he should report the reason
why he is off." Stewart asked if that was the reason for his discharge and Rice
replied, yes. The men then shook hands, stated there were no hard feelings
between them, and the conversation ended.
Rice, in relating "the company rule with reference to the use of the nurse ," stated
that the Company first employed a full-time nurse about 3 years ago and her duties
consisted of rendering first aid to workers injured on the job and to perform services,
when needed, for an employee or his family at his home. According to Rice it
has not been the rule of the Company to have the nurse check on every employee
who failed to report for work. In this respect he stated:
But if someone had not clocked in, it may be that this fellow has called in and
I know maybe he's sick or somebody died or something, so there's no point in
[the nurse] going out. If he's sick and -he calls in, I'll have her go out and
see about it.
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continuing , Rice related that in instances where the absent employee lives in the
country and has no means of calling in or notifying the plant, he would send the
nurse to his home. However, where the employee could telephone or notify the
plant of his absence through another employee and failed to do so, the nurse would
not be sent to visit him . In the event the employee did notify the plant that he
was sick, then the nurse would be sent to his home . Rice believed the foregoing
rule was known to the employees since it was explained to them at the time the
nurse was first employed by the Company . In addition , Rice said that about a year
or a year and a half prior to the hearing the Company put out a pamphlet entitled,
"You And Your Job," which set forth the company rules and regulations , vacations
and holidays , fringe benefits , and other matters pertaining to employment.3
Rice knew that at the time in question there was a telephone available to Stewart
and that Geneva Robertson , an employee , lived in the same house with Stewart and
his family .4 He also stated that when he talked to Stewart on January 29, he
appeared all right, other than being upset about losing his job.
Rice asserted he discharged two other employees for failure to report for work
or to give the reason therefor , namely, Gyndell Waters and Hugh Byrd. On cross-
examination , Rice testified Waters was fired between January 1 and 15, after he had
been absent for about 3 days without communicating with the Company , and that
Byrd was discharged sometime after Stewart 's termination because he was arrested
and placed in jail for stealing a motor.
Thornton did not testify at the hearing.
Concluding Findings
In brief the General Counsel contends that the interrogation of employees was
unlawful since it occurred in a context of other unfair labor practices and that
Stewart was discriminatorily discharged . On the other hand company counsel
argues that the isolated questioning of employees was not unlawful in view of the
absence of any antiunion background ; that it was protected under Section 8 (c),
and that Stewart was discharged for violation of a well-established plant rule
governing absenteeism.
It is, of course , well settled that an employer 's expression of view, argument, or
opinion on the subject of unionism is protected by Section 8 (c), provided his
expression is of a noncoercive character . Mere interrogation of employees, the
Board has held, is not coercive per se , nor is the questioning of employees concerning
the fact of union activity , where casual and moderate and not unlawfully purposed,
a violation of Section 8 (a) (1) of the Act. However , statements coercive in them-
selves, and interrogation of employees under circumstances which carry an implied
threat of reprisal or interfere with, restrain , or coerce the employees in the exercise
of the rights guaranteed in Section 7, are unfair labor practices . (N. L. R. B. v.
T. A. McGahey , 233 F. 2d 406 , 409-410 ( C. A. 5); Blue Flash Express, Inc., 109
NLRB 591, 593-595; Linn Mills Company, 116 NLRB 96, 99; Keco Industries, Inc.,
118 NLRB 317.)
Here the only issue to be resolved is whether the evidence adduced by the General
Counsel is sufficient to establish the allegations of his complaint for Rice conceded,
without further explanation , that he discussed the Union with William Stewart and
did not deny having discussions on the same topic with other employees , but merely
asserted he did not utter any threats to any of the employees in connection with
their union membership or activities . Accordingly , on the basis of the undisputed
testimony , I find that : ( a) On the day following the first union meeting Rice called
William Stewart to his office where they had a lengthy conversation on the subject
of organization during which Rice announced that he could name, within three, all
of the employees who had attended the meeting at Stewart 's home; (b) Rice asked
G. C. Stewart if he and certain other employees had attended union meetings and
inquired why Stewart 's wife had refused to sign a union card; and ( c) Rice advised
Bishop he had better leave the Union alone as there was no war going on. Had
Rice ceased his activities at this point perhaps a close case would be presented as to
whether or not such activities would be adequate to support a finding of unfair labor
practices . However, he did not limit his acts to interrogation of employees, as well
as statements to them, but, as found below , discriminatorily discharged an active
proponent of the Union . I am, therefore , convinced that the foregoing acts con-
3 Rice did not produce a copy of the pamphlet at the hearing.
4 On cross-examination by company counsel , Stewart testified he could not send word to
the plant by Robertson because she left the house around 5 o'clock in the morning to
carry her child to her mother 's home and he was not awake when she left.
WAYNLINE, INC. 1705
sidered in the context of other related conduct , in line with the principles established
by the above cases, are sufficient to support a finding that the questioning by Rice
plainly impressed upon the employees the Company 's hostility to organization and
inherently constituted interference with , restraint , and coercion of the employees
in the exercise of the rights guaranteed in Section 7 of the Act. (See also N. L. R. B.
v. Fox Manufacturing Company, 238 F. 2d 211, 214 (C. A. 5).5 By reason of these
findings I find and conclude that the Company thereby violated Section 8 (a) (1)
of the Act.
I further find, on the basis of William Stewart's undenied testimony, that Rice
stated he could name practically all of the employees who attended the first meet-
ing, and G. C. Stewart's undisputed testimony that Rice inquired the reasons why his
wife had not signed a union card, that Rice thereby conveyed the impression to the
employees that union meetings and activities were being kept under surveillance.
By engaging in such conduct the Company interfered with, restrained, and coerced
the employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (1) thereof. (Wagner Transportation Company, 110
NLRB 1179, 1180, enfd. 227 F. 2d 200 (C. A. 9); Idaho Egg Producers Inc., 111
NLRB 93, 99, enfd. 229 F. 2d 821 (C. A. 9); Delta Finishing Company, 111 NLRB
659, 662; Aerosonic Instrument Corp., 116 NLRB 1502, 1504, 1508.)
The remaining issue to be determined is whether Stewart was discriminatorily
discharged by the Company. Stewart had been employed for almost 7 years when
he commenced organizing the employees in January 1957. The evidence discloses
that Stewart distributed union cards and signed up employees at the plant, accom-
panied Union Representative Guilliams on visits to the workers, and held the first
two meetings at his home on January 17 and 19, respectively. During this interval
Rice, by virtue of his questioning of Stewart, was fully aware of his union member-
ship and activities. Moreover, Rice, according to the undisputed testimony of
Smith, told Smith he was glad Stewart was openly active on behalf of the Union
instead of being secretive. In view of the evidence herein it cannot be seriously
urged, as appears in the Company's brief, that the Company had no knowledge
that Stewart was a leader in the union movement or that he was no more active
therein than some 60 other workers. I reject this argument and find that the Com-
pany, on and after January 18, had full knowledge of Stewart's activites on behalf
of the Union.
On January 29, within 11 days of the above date and while he was still promoting
the Union, Stewart was summarily discharged. I find, from the undenied testimony
of Stewart and Smith, that Stewart worked on January 28, and as he had a bad
cold and an inflamed eye he advised Foreman Thornton, late in the afternoon, that
he would not report for work in the morning unless he felt better. Stewart was still
sick the next morning and did not report for work nor did he telephone the plant
concerning his absence. Rice thereupon fired Stewart because of his failure to
report for work or to give notice to the Company.6
Neither the General Counsel nor the Company produced any written rule on
absenteeism although both G. C. Stewart and Rice mentioned the distribution of a
pamphlet relating to working rules or conditions at the plant. Stewart fixed the time
of distribution as 3 or 4 years prior to the hearing while Rice placed the date as 12 or
5 The cases cited by counsel in his brief do not support his argument that the interroga-
tion herein was not unlawful. Thus, in N. L. R. B. v. D. Gottlieb & Co. (208 F. 2d 682
(C. A. 7)), the court held that a statement by the plant superintendent to a few em-
ployees in the toolroom (which was not even necessary in the company's operations) about
the advantage to the company if it had not chosen to keep the toolroom operating at a
loss was not a violation of Section 8 (a) (1) because the remark was made some 6 weeks
prior to any union activity and subsequent to that date the superintendent hired a man
whom he knew to be a member of the union. The court also held there was no violation
of Section 8 (a) (5) since it was based exclusively upon a violation of Section 8 (a) (1).
Again, in N. L. It. B. v. Associated Dry Goods Corporation (209 F. 2d 593 (C. A. 2) ), the
court held that inquiries by supervisors as to why employees favored the union, to which
the employees gave their reasons, and nothing more, were simply casual conversations
which carried no implied threats of coercion and were too insubstantial to support an
independent violation of Section 8 (a) (1). The court also pointed out that only 4 such
conversations took place over a period of 7 months and no inquiries were made as to the
extent of union membership, its organization, its„ plan of campaign, its meetings or its
meeting place. These cases as well as others cited are in accord with the principles dis-
cussed herein and are readily distinguishable on factual bases from the present case.
6 Counsel for the Company conceded that Stewart's ability as a worker was not an issue
in the case.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18 months prior thereto. In any event the pamphlet was not offered in evidence
at the hearing.
As set forth above, William Stewart did not notify the plant of his absence
because he had not done so in the past. He admitted he had been late on occasions
but had never been required to give any reasons therefor, nor was he reprimanded
or warned by his foreman or anyone else. On one such occasion, when he overslept,
the company nurse came to his home and then drove him to work. Stewart was
unaware of any written or posted rule on absenteeism, was never informed of
any such rule by his supervisors, and it was his understanding that an employee
could be fired if he was late a couple of mornings.
Parsons was never advised of any such rule and prior to January 29 had been
absent at times, and while he did not notify the Company of these absences, he
was never reprimanded or warned by his supervisors and on all occasions, except
one, the company nurse came to his home. Parsons did not report for work on
January 29, and like Stewart, failed to give any notice, even though he could have
telephoned the Company. When he came in on January 30, neither Rice nor
Thornton spoke to him in regard to his absence, although the following day,
January 31, Rice told him the Company was cracking down on absentees and in
the future to call in or notify the plant, in case of illness, before 7 o'clock. Later,
in March, Parsons did not report for work because of illness and, while he did not
notify the plant of his absence, the nurse came to his home. When he finally
returned to his job no mention was made of his failure to give notice in accordance
with Rice's previous instructions.
Both G. C. Stewart and Bishop testified in substance that it was their understanding
that when an employee was absent the nurse would visit his home to determine
whether he was sick.
The company rule regarding the use of the nurse, according to Rice, required an
employee to notify the plant of his absence by telephone or through another em-
ployee, where these means were reasonably available to him, and failure to do so
meant that the nurse would not be sent to his home. However, if the employee
notified the plant that he was sick the nurse would visit him. The employees were
informed of this rule about 3 years previously when the Company first employed a
full-time nurse.
On January 29, Rice knew that Stewart and another unnamed employee, whom
I find to be Parsons, were not at work, so he asked Thornton if Stewart had called
in and Thornton replied he had not. Later Rice advised Thornton that he was
going to fire Stewart because of his unreported absence and around 9 o'clock he
removed Stewart's timecard and had two checks prepared for him. When Stewart
'came to the plant about 1 o'clock, Rice discharged him for the above reason.
Here the General Counsel proved that Stewart, a known protagonist of the Union,
was suddently discharged for an unreported absence or lateness for work, without
prior warning,7 when there was no established rule or practice providing for dis-
charge under such conditions. Moreover, it is undisputed that Parsons, a nonactive
union member, was absent or late the same day under identical circumstances, but
he was neither disciplined nor discharged by the Company. From the credible evi-
dence thus adduced I have no difficulty in finding and concluding that the discharge
of Stewart was unlawful, unless he was terminated by the nondiscriminatory en-
forcement of a company rule or practice covering his conduct. Rice's testimony
does not establish that the Company maintained and enforced any rule or practice
in respect to absenteeism or lateness. He simply testified that the Company had
an oral rule "with reference to the use of the nurse," which amounted to nothing
more than an explanation of her duties and the circumstances under which she would
render services to the employees. Further, the so-called rule was brought to the
attention of the employees by Rice on only one occasion and he made no mention
at that time or thereafter that the failure of employees required to report their
absence to the plant would result in any disciplinary action being taken against
them. Nor is there any evidence that any employees were disciplined in the past
for neglecting to comply with the rule. On the contrary, the credible testimony
of William Stewart and Parsons unmistakably shows that the Company never even
mentioned their failure to follow the rule much less subjecting them to disciplinary
measures. Indeed, Rice plaintly stated that failure to comply with the rule merely
resulted in the nurse not visiting the employee. It follows, and I find, that at
7 Company counsel's attack on Stewart's record for tardiness is completely refuted by
Rice who merely stated that Stewart was late on several occasions and even then he did
not reprimand or warn him.
WAYNLINE, INC. 1707
the time in question the Company had no definite or effective rule providing for
:the discharge of employees for absenteeism , lateness, or failure to report absences.
Consequently, I find that the discharge of Stewart under the circumstances was
plainly motivated by a desire to eliminate an active union adherent in order to
discourage organization by the employees and therefore in violation of Section
8 (a) (3) and (1) of the Act.
But assuming the Company maintained and enforced a rule as described by Rice, I
would still reach the same conclusion. It is obvious from Rice's testimony that he
.himself was somewhat confused as to the precise terms of the rule and the manner
.in which it was applied, but it seems apparent that his chief complaint against Stewart
was the fact that Rice did not have any knowledge of Stewart's absence on January
29. This point is stressed in the Company's brief where it is argued that Stewart
.could have telephoned the plant or sent word through Robertson or his wife. Stewart
gave plausible reasons why he did not communicate by telephone or through Robert-
son and there is no evidence at all indicating his wife could or could not have notified
the plant. According to Rice's version of the rule it was only necessary that the
Company be notified of the employee's absence. The record fully supports the con-
clusion that the Company, through Thornton and Rice, were cognizant of Stewart's
absence on January 29. As already found, Stewart was sick on January 28, and in-
formed Thornton, late in the afternoon, that he would not work the next day unless he
felt better. Both Stewart and Smith testified Thornton made no reply, which indi-
cated that this was satisfactory, otherwise he certainly would have made known any
objection he might have had to Stewart's expected or probable absence, or, if he con-
sidered it at all necessary, he would have instructed him to call in the next morning.
Manifestly, this action constituted clear notification of absence, and I so find. More-
over, Rice was also advised of Stewart's absence on January 29. Thus, G. C.
Stewart testified that while he was talking to Thornton early that morning Rice came
to them and asked what was the matter with his brother. Stewart replied he did
not know, but Thornton told Rice that William Stewart had previously informed him
he had a bad eye and might not be in that day. Rice said nothing and left. Rice
did not deny or question G. C. Stewart's testimony. I accept and credit this evidence
and find that Rice knew the reason for Stewart's absence prior to his decision to
discharge him.
Again, Rice made it abundantly plain that he discriminatorily enforced his rule
against Stewart. Admittedly, he knew Stewart and Parsons were both absent, yet
when he checked with Thornton in respect to Stewart, he made no inquiry about Par-
sons . Rice made no further mention of Parsons in his testimony. However, Parsons
was not discharged for his unreported absence, and he, too, had been absent on
previous occasions, nor was his dereliction of the rule even mentioned by Thornton
or Rice when he came to work on January 30. Finally, despite a warning by Thorn-
ton on January 31 that the Company was cracking down on unreported absences,
Parsons did not work for a few days in March, without reporting; nevertheless when
he returned to work nothing was said about his failure to notify the Company in ac-
cordance with its rule. Rice did not contest or dispute Parsons' testimony. It is
therefore accepted and credited.
From the facts as found above, I am of the opinion that Stewart did not violate
-the rule in question, although considering Rice's testimony in the most favorable light
it might be inferred that Stewart technically violated the rule by failing to notify the
Company of his absence a second time on the morning of January 29. Under the
circumstances, however, it is immaterial whether Stewart technically violated the rule
for, from the foregoing findings, I have no difficulty in further finding that Rice
discriminatorily enforced the rule against Stewart and that he seized upon the alleged
violation merely as a pretext for the purpose of removing a known union adherent in
order to discourage further union activities of its employees.8 (Southern Desk
Company, 116 NLRB 1168 enfd. 246 F. 2d 33 (C. A. 4); Mitchell Plastics, Inc., 117
NLRB 597; Watson Sea Food and Poultry Company, 117 NLRB 1369; Langlade
Veneer Products Corporation, 118 NLRB 985.) Accordingly, I find that the Com-
pany discriminatorily discharged William A. Stewart in violation of Section 8 (a) (3)
and (1) of the Act.
8I have considered other arguments advanced by company counsel, such as the lack of
antiunion background and the fact that the Company discharged only 1 union member out
of a total of GO members in its employ, and find these arguments to be without substance
or support in the record. I also find that the reasons for which Rice tired Waters and
Byrd bear no resemblance whatever to the circumstances under which Stewart was
.discharged,
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in interrogation of employees con-
cerning the Union, has created the impression that union meetings and activities of its
employees were being kept under surveillance, and has interfered with, restrained,
and coerced its employees in derogation of their rights secured by Section 7 of the Act,
I shall recommend that it cease and desist therefrom.
Having found that the Respondent on January 29, 1957, discriminatorily dis-
charged employee William A. Stewart and has since failed to reinstate him, I shall
recommend that the Respondent be ordered to offer him immediate and full rein-
statement to his former or substantially equivalent position without prejudice to his
seniority and other rights and privileges, and make him whole for any loss he may
have suffered because of the discrimination against him by payment of a sum of
money equal to the amount he normally would have earned as wages from the-
date of the discrimination to the date of the offer of reinstatement, less his net
earnings during said period, with back pay computed on a quarterly basis in the.
manner established by the Board in F. W. Woolworth, 90 NLRB 289. The Respond-
ent shall, upon request, make available to the Board or its agents payroll and other-
records to facilitate the checking of the amount of back pay.
In view of the nature of the unfair labor practices committed, the commission.
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in,
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)-
and (7) of the Act.
2. The Union is a labor organization as defined in Section 2 (5) of the Act.
3. By discriminatorily discharging William A. Stewart the Respondent has.
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging 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 com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee for
the purpose of discouraging membership in United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, or any other labor organization.
WE WILL NOT interrogate our employees concerning their . membership,
affiliation , or sympathy with the above or any other union.
WE WILL NOT state to our employees that their union affiliation is known to
the Company or otherwise suggest that the employees ' union activity or affili-
ation is under surveillance.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively through representatives
INTERNATIONAL HARVESTER COMPANY 1709
of their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , and to refrain from
any or all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to William A. Stewart immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of the discrimination against him.
All our employees are free to become , remain, or to refrain from becoming or
remaining members in good standing in the above -named Union or any other labor
organization , except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
WAYNLINE, INC.,
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.
International Harvester Company and International Associa-
tion . of Machinists for and in behalf of District No . 94, Local
No. 1186, AFL-CIO, Petitioner. Case No. 21-RC-4931. Febru-
ary 25, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William G. Wilkerson,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in conunerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. Petitioner seeks to represent a group of automotive mechanics,
their helpers, and apprentices at the Employer's truck service and
sales branch at Montebello, California, excluding all other employees,
on the ground that these employees constitute a craft. The Employer
agrees with the Petitioner as to the craft status of the mechanics.
Because of our prior decisions,' in which the Board held that auto-
motive mechanics were not craftsmen, we granted the Petitioner's
request for oral argument.' Insofar as our decision herein is.
inconsistent with these prior cases, they are hereby overruled.
'Armour i Company, 110 NLRB 587; Gulf Oil Corporation, 108 NLRB 162; Key
System Transit Lines, 105 NLRB 526; C. K. Williams & Co., 106 NLRB 219.
'The Petitioner's motion was granted on January 2 and oral argument heard on
January 16, 1958. The notice of hearing was sent to American Federation of Labor and
119 NLRB No. 218.