Century Electric Co.Download PDFNational Labor Relations Board - Board DecisionsJul 27, 1967166 N.L.R.B. 854 (N.L.R.B. 1967) Copy Citation 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Century Electric Company and United Steelworkers of America , AFL-CIO . Cases 26-CA-2587, 26-CA-2623, and 26-CA-2646 TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE July 27, 1967 DECISION AND ORDER BY MEMBERS BROWN,JENKINS, AND ZAGORIA On March 31, 1967, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceedings, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor prac- tices and recommended dismissal of these allega- tions. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs to certain of the Trial Examiner's findings and recom- mendations. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Century Electric Com- pany, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order. ' The Respondent's and the General Counsel's exceptions are in part directed to certain credibility findings made by the Trial Examiner It is the Board 's established policy not to overrule a Trial Examiner's resolu- tions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We find insufficient basis for disturbing the Trial Examiner's credibility findings in this case The General Counsel excepts to the failure of the Trial Examiner to find that Foreman Jake Billinger's conversations with employee Hollin violated Sec 8 (a)(l) as alleged in the complaint As such findings would be cumulative and would not affect our Order provided herein , we findit unnecessary and make no determination as to the conversations in question FREDERICK U. REEL, Trial Examiner : This case, heard at Lexington , Tennessee , on January 3 1, and February I and 2, 1967, pursuant to charges filed the preceding Oc- tober 25, December 6, and January 9, and a complaint is- sued January 18, presents questions as to whether Respondent , herein called the Company , violated Section 8(a)(3) and (1) of the Act by discharging seven employees for union activity, and further violated Section 8(a)(1) by various acts of interference , restraint , or coercion. Upon the entire record , including my observation of the wit- nesses , and after due consideration of the briefs filed by General Counsel and by the Company , I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company , a corporation engaged at St . Louis, Missouri , and at Lexington , Tennessee , in the manufac- ture of electric motors, annually ships from its Lexington plant (with which we are here concerned) to points out- side the State products valued in excess of $50,000 and is there engaged in commerce within the meaning of Sec- tion (6) and (7) of the Act. The Charging Party, herein called the Union , is a labor organization within the mean- ing of Section 2(5) of the Act. It. THE UNFAIR LABOR PRACTICES Introduction The background of this proceeding may have been fairly stated by the Company's plant manager, Cliff Bul- lock, in a speech he delivered to the plant employees late in October 1966. He said in part: Years of experience with unions in St. Louis created a condition whereby Century Electric Com- pany found it difficult to remain competitive in the manufacture of Electric Motors. So in the trust of you and your community, we relocated here. This should prove to you that anything which is good for the company is good for you and anything that harms the company invariably can only hurt its employees in the long run. The Company started operations in Lexington in the spring of 1965 and moved to its present building there in October of that year. The unfair labor practices here al- leged concerned events which transpired in the last 6 months of 1966. As Bullock's speech and other written and oral statements of company authorities establish, the Company was vigorously opposed to having its em- ployees join a union.' This, of course, is not of itselfan unfair labor practice. Section 8(c) of the Act expressly ' In addition to Bullock's speech , another document indicating com- pany hostility to the Union is a letter from the Company addressed to all employees, dated October 28, 1966, and in the record as G C Exh 4 According to company witnesses , these documents (the speech and the letter) were both preceded and followed by other communications indica- tive of company opposition to union organization of its employees 166 NLRB No. 103 CENTURY ELECTRIC CO. preserves an employer's right to voice his views, argu- ments, and opinions (if unaccompanied by threats or promises), and an employer, whether hostile or friendly to unions , may lawfully discharge employees for any reason whatsoever, except for reasons related to the em- ployee's union or concerted activity. On the other hand, as stated by Chief Justice Hughes for a unanimous Court in Texas and New Orleans Railway Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 559, "Motive is a persuasive interpreter of equivocal con- duct," and in turning, as we now do, to the details of the alleged discriminatory discharges and alleged inter- ference, it is important to bear in mind that the events are set against a background of deep hostility on the part of the Company to the prospect of union organization. A. The Discharges 1. Paul Sumter Sumter , an employee of unquestioned ability despite his lack of formal education, was hired January 3, 1966, and left the Company's employ on October 7, 1966. As early as the spring of that year he had begun discussing with the employees the possibility of union organization, but during this entire period, until after the end of his em- ployment, he had not referred to any particular union. On one occasion , some months before his termination, he spoke about a union to employee Dickson , whose father- in-law was the plant superintendent, Len Cheek. On two occasions (referred to again below under the discussion of "Interference , Restraint , and Coercion"), Sumler's su- pervisor, Houston Maxwell , raised the subject of a union with Sumter, at one time asking how each of the em- ployees in Sumler's department felt about a union, and at another offering to "take care" of Sumter if would help keep the union out. On Wednesday, October 5, 1966, Sumter in a fit of ir- ritation over having to do work in the province of a higher paid employee told Maxwell that if "things didn 't change" Sumter would be "cutting out on Friday ." Friday did in- deed turn out to be Sumler's last day of work , but the course of events between Wednesday and Friday is not altogether clear because of the conflicting testimony. Ac- cording to Sutrrler, Maxwell came to him the next morn- ing and asked if he "was still planning to quit ." Sumter replied that he could not afford to quit , and Maxwell then said "he had made it official"- i.e., he had reported to the personnel office that Sumter was quitting . The next morn- ing (Friday ), according to Sumter, Maxwell sent him to the personnel office where he saw Plant Superintendent Cheek and Personnel Manager Bobbitt . Cheek told Sumter that he understood Sumter was quitting and that he was sorry to see Sumter leave . Sumter replied that he had not quit and that he needed to work. Cheek told him to "go back to work and forget the whole thing ." Sumter went back to work , but that afternoon he was again sum- moned to the personnel office where Cheek told him that the "president of the plant" had decided to terminate Sumler's employment as "it was company policy to let a man go when he turned his time in." The reference was to the plant manager , Bullock's predecessor, who died sud- denly that very night. Maxwell 's version differs from Sumler's. Maxwell testified that he told Sumter on Wednesday to think the matter over and that he (Maxwell ) would not "turn it in" to personnel until the next day. Maxwell did, however, 855 according to his testimony , mention the matter briefly to Cheek later on Wednesday. Maxwell further testified that on Thursday he checked with Sumler who reiterated his intention to quit, whereupon Maxwell formally reported it to personnel. I credit Maxwell in this respect, and find that Sumter on both Wednesday and Thursday expressed a definite intention to quit. Cheek testified that on Thursday Maxwell reported that Sumter was still deter- mined to quit, but that on Friday Sumter changed his mind. That morning according to Cheek, he told Sumter of the company policy that "once you give your notice you must leave ," but he offered to talk to the plant manager in Sumler 's behalf. In the course of his conversa- tion with Sumter, Cheek ascertained that Sumter, if he remained in the Company ' s employ, would not be "satisfied" unless he received a wage increase . According to Cheek , he discussed the matter with the manager, and they decided reluctantly to let Sumter go rather than keep him on as a dissatisfied employee or raise his wages and upset the wage pattern at the plant. Cheek called Sumter back to the office that afternoon and terminated his em- ployment. I credit Cheek's account of his conversation with the now deceased plant manager. Sunder's case is puzzling because the company representatives , by their own testimony, urged him on Wednesday and Thursday not to quit, and then on Friday, after he had decided not to quit , the Company discharged him. The reason advanced by the Company is that he would have been a "dissatisfied" employee, but this had not prevented him from doing acceptable work in the past, and his feeling that his wage should be increased did not distinguish him from others the Company employed. On the other hand , if his somewhat general union activity had motivated the Company , why did it urge him not to quit? I find that Sumter did express an intention to quit and that ordinarily it is company policy to hold people to their word in matters of this sort. On this record, I am constrained to render a verdict of "not proven" in Sumler's case , and for that reason to dismiss the com- plaint as to him. 2. Cledis Scott and Howard Beecham Scott and Beecham were active proponents of the Union , passing out union cards to other employees in the lunchroom and on the parking lot. Indeed , according to Beecham, he and Scott were "the only two that was really getting the cards signed ." There is no direct evidence of company awareness of the role of Beecham and Scott in the union drive . I cannot, however , credit the testimony of Plant Superintendent Cheek and Personnel Director Bobbitt that they were not aware of any union activity in the plant until November when the men started wearing buttons. Sumter had told them on October 7 of his inten- tion to work for the Union following the termination that day of his employment . Also, within a week after Scott and Beecham were discharged on October 21, Plant Manager Bullock delivered a speech to all employees devoted almost entirely to the union campaign , and the Company sent a letter to all employees discussing the Union's effort to "move in" and get "part of your paycheck." Company efforts to portray these communi- cations as merely general antiunion propaganda spawned by the knowledge of a campaign at a neighboring plant simply cannot survive a reading of the speech and the letter which betray full awareness of the Union 's effort, at the Company's own plant. The incredible denials of 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Cheek and Bobbitt serve merely to cast a doubt over their veracity in other respects. I find, in short, that the Com- pany was aware of the union activity in its plant when it fired Beecham and Scott on October 21, 1966. And I further find that the Company knew of their union activi- ty, for at the time Cheek fired the two men Scott told him that the real reason for the action was not the assigned cause, but rather was their union activity, to which Cheek responded (according to Scott and Beecham, whom I credit) that he was aware of their union activities (includ- ing their attendance at a union meeting the night before) but that he was not discharging them for that reason. The grounds assigned by the Company for the discharge of Beecham and Scott concern an incident that occurred in the late afternoon of the day preceding their discharge. They both finished work at 3:30 p.m. that day, the regular quitting time, but each of them had to wait (as was by no means unusual) for their respective "riders," fellow employees (one for Beecham and one for Scott) who rode to and from work with them, and who on this occasion, as on many others, had to work overtime. After work, Scott and Beecham went to the plant cafeteria, and about 3:45 Scott left to go back into the working area of the plant in an effort to locate his "rider" and learn how late the latter would have to work. Scott found his man and was returning to the cafeteria when he encountered Beecham, who was on a similar mission. A distant rela- tive of Beecham's who was working there stopped them and spoke to them for a moment, and then the two men continued down the aisle in an effort to find Beecham's rider. At this moment, at 4 p.m. or shortly thereafter, one Betty Dyer, an employee working overtime, greeted them, and when they returned her greeting, she asked if they had heard about a recent robbery in the community. The men had not heard of it, and she proceeded to tell them about it, including what had been stolen, and related matters. Another employee, Barbara Wilson, working with Dyer, also participated in the conversation. The talk turned to their work, and Dyer, who was winding a very thin or fine wire, complained as the wire broke and became tangled, a not unusual occurrence. At this point Scott remarked that the wire "was as fine as a damn frog hair."2 The men watched the girls work for a brief period, during which the men conversed with one another and called to some men in the rear of the building. At this point the girls were filling out their daily worksheets, and Beecham remarked that Bobbitt (the personnel director) "would have to hire him a damn secretary, that he could not keep up with all that God damn work." About this time (it was now 4:25) the two men started back toward the cafeteria, and met Emiel Staeger, foreman of the winding department, who asked them in what department they worked. On being told that they were from the as- sembly department, located at the other end of the build- ing, Staeger told them to return to it. Scott and Beecham returned to the cafeteria where they both saw Staeger, who made no further comment about the matter. The next morning Barbara Wilson complained to her leadman, Jimmy Delaney, that "two men were over using profane language and cursing." She did not identify the men or mention any specific words they used. Delaney mentioned the matter to his supervisor, Van Duke. Duke, who had seen the two men talking to Wilson and knew who they were, reported it to Plant Superintendent Cheek, who in turn sent Foreman Staeger to interview the two girls. Staeger asked each of them, separately, if the men had used profane language, and the girls replied that the men had. Staeger did not ask and neither of them told him what the profane words were. He duly reported to Cheek that the men had used abusive and profane lan- guage. Cheek thereupon sent for Scott and Beecham and discharged them, telling them that it was for their conduct the preceding afternoon. Beecham and Scott denied using abusive or profane language, and asked Cheek to sum- mon the two girls to his office to confront them, but Cheek refused to do so. Beecham at this time, referring to one of the girls, said, "I'll fix her when I get home. I'll tell her husband, and I'll fix her." there is no evidence that Beecham ever implemented that "threat" in any way. The Company contends that Beecham and Scott vio- lated three plant rules and were discharged for so doing; General Counsel alleges that the real reason for their discharges was their union activity. In cases of this nature it must be remembered that General Counsel bears the burden of proof, that union membership and activity give no protection to an employee who is discharged because of his own misconduct, and that where an employee has behaved offensively it is not for the Board to say that the penalty imposed by the employer was too severe. But it must also be remembered that an employer may not seize upon an episode and use it to justify a discharge when his real motivation came not from the employee's conduct in the episode in question, but rather from his union activity. In terms of Beecham's and Scott's case, the question is whether the Company seized upon and developed the episode in question so as to provide itself with an osten- sibly valid reason to get rid of two employees, whereas the real reason was their union activity. We have already noted that the men were active in the Union, and the Company's protestations that it was unaware of this are not to be believed. Cheek and Bobbitt are not to be credited when they deny any knowledge of union activity in the plant. Beecham's and Scott's testimony of their activities in this respect is not con- tradicted. Also, the record contains several references to the fact that in a small town like Lexington word of union activity spreads rapidly. Finally, Beecham and Scott at- tended union meetings, including one the night preceding their discharge at which a company leadman was present. Indeed, according to their testimony, which I credit in this respect, Cheek admitted knowledge of this fact when he discharged them, although he denied that this was the reason for his action. In short, we have the elements of a prima facie case - employer knowledge of and hostility to union activity, and a discharge shortly after the em- ployees engaged in union activity. Turning to the three rules which the Company alleges the employees violated, they included prohibitions against using profane language and against interfering with an employee's performance of duty, and a directive, "When working, remain in your own department ... " The Company included these among its approximately 30 posted rules, which it headed with a warning that "Viola- tion of these rules will subject the employee to disciplina- ry action and possible discharge." Cheek testified that violation of any two of those rules, and probably any one of them, would have led to discharge. Analysis of the record sheds considerable doubt on that statement, for ' The typewritten transcript, p 505, 1. 23, erroneously uses the word "head" for "hair," and is hereby corrected. CENTURY ELECTRIC CO. 857 Cheek dispatched Staeger to inquire into the "profane and abusive language" matter after Cheek was apprised that the men had been out of their department talking to the two girls who were at work. (Cheek had heard this much from Foreman Maxwell on Thursday, and learned further details from Supervisor Duke on Friday, but did not discharge the men until he received Staeger's report.) And Staeger, when he told the men to leave his depart- ment on Thursday, did not consider the "offense" at being there sufficiently important to tell Cheek or to ad- monish them that they were inviting discipline, let alone discharge. All this aside, it seems reasonably clear that Beecham and Scott had not violated either the rule against being out of their department when working, or the rule against interfering with other employees' work. The first rule is inapplicable as they had already finished work and punched out. Their going into the work area on their free time for the purpose of checking on when their "riders" would finish work was not in violation of that rule, and was not an uncommon occurrence. As to their interfering with the work of other employees, the record is clear that the girls initiated the conversation, and that they introduced the subject of the robbery, which rather naturally resulted in prolonging the episode. To be sure, management may not have been aware that the length of Scott's and Beecham's visitwith Dyer and Wilson was at- tributable to the topic initiated by the girls, but the very lack of investigation into the matter suggests that the Company was more concerned with getting rid of Scott and Beecham than it was in ascertaining the details of the episode. In any event, Cheek did not act upon the matter until he had a report on "profanity," and in his discharge interview with Scott and Beecham he placed particular emphasis, if not sole reliance, on their use of profane lan- guage. Undoubtedly, an employer may lawfully discharge an employee for use of profanity. The question on this record, however, is whether this was the real motivation, or whether the Company seized upon it as an excuse to rid itself of two union leaders. Scott and Beecham denied Cheek's accusation in this regard and demanded, but were refused, the right to confront their accusers. This refusal achieves more significance when it is remembered that no one-neither Cheek nor any of his subor- dinates -ever learned what the profane words were. At the hearing before me it developed that the offense con- sisted of Scott's describing certain wire as "as fine as a damn frog hair," and Beecham's statement that Bobbitt would have to hire "a damn secretary" to "keep up with all that God damn work." Such language, while not to be encouraged, is not unusual in a factory. In this connection I note that Cheek, testifying in this proceeding in a county courthouse, and in the presence of several women specta- tors, stated, at one point, "I worked so damn hard to get him hired ... and he was a damn fool to quit," and later: "I caught hell from every foreman out there," and later, that a man was "a damn good sweeper." Cheek himself was so unaware of these lapses that he later testified a man should be discharged for using an expression like "damn good," and Babbitt (who heard all the testimony) also testified that if a man used that expression in the presence of a woman in the plant, Bobbitt would "most likely discharge" the offender. Of course, Cheek at the time of the discharges did not know that the profanity in question was little, if any, more than he himself uses in normal speech. But again the failure to investigate the matter to discover what the profanity actually amounted to indicated that the Company was more interested in building a case for discharge than in ascertaining the facts. Also, Cheek admitted that on "a couple of occa- sions" he had reproved one Gardner for using vulgar or profane language but had not even threatened to discharge Gardner for this offense. Both Scott and Beecham were satisfactory employees, as Cheek himself testified. According to Bobbitt, the Company was not happy over the high rate of the turn- over. Yet, without prior warning or any serious attempt to ascertain the facts, it discharged Scott and Beecham immediately after their union activity had reached the point where it could not have escaped management's notice. Under these circumstances, the case invites the language used by the District of Columbia Circuit in E. Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22,26-27: Such action on the part of an employer is not natural. If the employer had really been disturbed by the cir- cumstances it assigned as reasons for these discharges, and had had no other circumstance in mind, some word of admonition, some caution that the offending lapse be not repeated, or some opportu- nity for correction of the objectionable practice, would be almost inevitable. The summariness of the discharges of these employees, admittedly thereto- fore satisfactory, gives rise to a doubt as to the good faith of the assigned reasosn. On all the facts, including the Company's hostility to the Union, the active union roles played by Scott and Beecham, and the Company's conduct in trying to build a case against them instead of conducting any real in- vestigation into the circumstances and content of the episode relied on, I find that the real motivation for their discharge was their union activity, and that the Company therefore violated Section 8(a)(3) and (1) of the Act. 3. William Carl Hollin Hollin was hired in May 1966, promoted to leadman in a month, and discharged October 22. The Company con- tends that he was a supervisor and that in any event he was discharged because of his lack o pacity to fill the role of leadman. General Counsel argue that he was not a supervisor and that he was disch d because of the Company's fear that he would be an active proponent of the Union. Hollin had no connection whatsoever with the Union and engaged in no union activities. There is some sug- gestion that the Company thought he might be, or become, a cause of employee dissatisfaction (and hence of potential union activity) because he kept in his toolbox, for other employees to see, his pay stubs from afar better paying job he had held with another employer in Northern Indiana. And, according to Hollin, he was discharged by Cheek on October 22, 1966, with the com- ment: "As you know, the Union is getting a toehold here. We have been advised by the company attorney to start with the leadmen and start weeding them out according to the length of time they have been up north and the amount of money they have made." Cheek denied making the statement just quoted, and testified that the Company discharged Hollin because of his lack of ability as a leadman, and particularly because of the high rate of turnover in Hollin's section, which the Company attributed to employees' dissatisfaction in 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working under Hollin. Although I entertain serious reser- vations as to Cheek's general credibility, I am inclined to credit his version rather than Hollin's, particularly as Cheek's testimony is supported by the testimony of Foreman Billinger, whom I find in this respect to be a credible witness. Accordingly, I find that Hollin was discharged for cause. I do not find, however, that Hollin was a supervisor. As a leadman over three employees his duties included giv- ing them training and directions of a routine nature, but nothing in the record indicates that he had any real disciplinary authority over them or authority effectively to recommend promotions or discharges. Leadmen on this record appear to have been considered by all con- cerned to be representatives of management (e.g., Hollin assumed that the men excluded him from conversation about the Union, and Beecham and Scott regarded the presence of a leadman at a union meeting as evidence of espionage). But although a leadman may be regarded by the employees as representative of management, the question whether he is an "employee" or a "supervisor" turns on his duties, not on employee opinion . In this case I cannot find that Hollin or other leadmen were engaged in responsibly directing the men on their crews, or gave them other than merely routine instructions. Cf. DeKalb Telephone Cooperative, 156 NLRB 1381, 1383-84. 4. Stanley Alexander Alexander, hired early in October 1966 to run a lathe in the shaft department, was discharged Monday, November 21. In the course of this brief employment he handed out union cards and literature on the parking lot, and on Friday, November 18, wore for the first time a union button in the plant. Maintenance Foreman Max- well commented on the button that day, and on Monday morning, November 21, Alexander's foreman, Archie Kyle, also engaged Alexander in a conversation about the Union. Kyle, who testified that he was opposed to the Union, asked Alexander "what a union could get that [the employees] didn't already have," and Alexander replied, "higher wages for one thing."3 On this occasion Kyle suggested that Alexander's production was low. A few hours later that day, Alexander was summoned to the office where Cheek told him that as a probationary em- ployee he was being discharged as "we find your work unsatisfactory." A few days later Alexander, returning to get his paycheck, asked Personnel Manager Bobbitt the reason for the discharge, and was told he had been "running too much scrap." The testimony is in some conflict as to the extent to which Alexander's work was deficient in producing an unreasonable amount of scrap. William Adams , the in- spector in the shaft department, testified that in his judgment Alexander's work was average, and that he (Adams) had had occasion to warn another man, but not Alexander, about producing too much scrap. Foreman Kyle, however, testified that Alexander had a "more than normal" amount of scrappage, although in the same breath he admitted that it was "hard to tell on a new em- ployee" what would be "normal." Although, according to Kyle, the "quality control" department kept records on the amount of scrap, no such records were produced. Kyle had a meeting with all the men in the shaft depart- 3 Kyle denied asking Alexander "about his feelings regarding the Union " I credit Alexander's testimony quoted above. ment in which he urged them to cut down on scrap; ac- cording to his testimony his real target on that occasion was Alexander , but he did not "like to single any one per- son out in front of everybody." Kyle also testified that Alexander 's attitude was unsatisfactory in that he failed to purchase certain tools which the Company expected its shaft department employees to acquire. The Company relies on the fact that Alexander was a probationary employee , in that he had worked less than 90 days and was therefore more subject to discharge than employees who had acquired tenure. It also points out that other employees (none of them "probationary" as far as the record shows ) wore union buttons and were not discharged . Of course , the statute protects probationary employees from discharge for union membership, and the failure to discharge all union supporters is far from con- clusive as to whether union membership was a factor con- tributing to the termination of those who were discharged. See, e.g., N.L .R.B. v. Challenge -Cook Bro. of Ohio, 374 F.2d 147 (C.A. 6), citing Nachman Corp. v. N.L.R.B. 337 F.2d 421,424 (C.A. 7). Upon considering the entire record , I am convinced "that there is considerably more than a coincidental con- nection" between Alexander's wearing of a union button on Friday and his "discharge the following [Monday] af- ternoon." N.L.R.B. v. Condenser Corporation of Amer- ica, 128 F.2d 67, 75 (C.A. 3).4 The fact that he was a probationary employee may have contributed to the Company's determination to let him go although it retained other union supporters, and his work may not have been above reproach . But I find that the critical motivating factor in his discharge that Monday afternoon was his open support of the Union , and the Company therefore violated Section 8(a)(3) and (1). 5, Joe K. Bingham Bingham was discharged the day after Alexander, and the case further resembles Alexander's in that Bingham was a "probationary" employee who started to wear a union button on Friday, November 18. On Monday, November 21, Bingham was sick and unable to go to work . His father so informed the driver of Bingham's car pool, and requested the driver to let the plant know of Bingham 's absence. Two employees testified that one of them , in the hearing of the other, told Bingham 's foreman, Billinger , that morning that Bingham would not be at work that day because he was ill. Billinger testified that he did not remember being advised of the reason for Bingham's absence. The following day when Bingham arrived at work he found his timecard was not in the rack , so he went to the personnel office where Personnel Director Bobbitt told him he was discharged for failure to call in the day before. Bingham further testified that on one or two previous oc- casions he had been absent without letting the Company know the reason. Bobbitt testified that Bingham was discharged for failure to call in , and indeed that he (Bob- bitt) had discussed the matter with Billinger before discharging Bingham . Bobbitt also testified that when he discharged Bingham the latter admitted that he had neither called in nor sent word of his absence. According to Bobbitt , if a probationary employee failed to call in, there was a "good probability" that he would be discharged. 4 The record indicates that the plant operated on some Saturdays. CENTURY ELECTRIC CO. One major difficulty in assessing Bingham's case is that young Mr. Bobbitt, the personnel director, impressed me as a witness whose zealous efforts to help the Company with his testimony outdistanced his candor by a con- siderable margin. Apart from his demeanor on the stand, I note also his sworn testimony that he had no knowledge, and no suspicion of union activity at the plant when the Company sent out a letter to all employees on October 28. This letter recites, in part, ". . . we are not surprised that the Steelworkers Union wants part of your paycheck. The union people will tell you anything in order to use you ." At the same time Plant Manager Bul- lock made a speech to all employees saying in part "The Union will tell you that everyone has signed a card." My disillusionment with Bobbitt's performance on the wit- ness stands does not, of course, alter General Counsel's burden of proof or change the general rule that the Com- pany could lawfully discharge Bingham or any other em- ployee for absenteeism. The timing of the discharge sheds little light on the matter for the fact is that the day of Bingham's discharge was not only the day after his absence, but was also his first regular workday after he put on a union button. I have no doubt that his absence furnished the "handle" for his discharge, but the question is whether his support of the Union was a substantial con- tributing factor. Bearing in mind the Company's hostility to the Union, the fact that Bingham had sent word to his foreman that he was ill (I do not credit Bobbitt's version of his alleged conversation with Billinger- certainly Billinger did not recall it, and Bobbitt is untrustworthy), and that even the zealous Bobbitt let slip that a proba- tionary employee's unexcused absence raised only a "good probability" of discharge, I find that Bingham's open support of the Union played a substanital role in the Company's determination to discharge him, and that the discharge therefore violated Section 8(a)(3) and (1) of the Act. 6. Larry Gordon Scott Larry Scott, son of Cledis Scott, was discharged December 22, 1966, allegedly because of excessive ab- senteeism culminating in an unreported absence the day before. Young Scott had worked at various jobs for the Company during the 8 months of his employment, and ap- parently his performance left something to be desired as he displayed a propensity to operate a towmotor when his job did not call for such activity, and he also was respon- sible for damaging some equipment. He displayed a union button during the last month of his employment, and had an altercation With a leadman over doing so. The Company contends that it put up with young Scott 5 Bobbitt's own counsel expressed incredulity over some of his testimony. Note the attempt on direct examination to rehabilitate him from the error into which his zeal for his Company's case, as he conceived it, had led him: Q. When was the first time that you knew a labor organization was within the Century Electric plant? A When they wore buttons to work one day. Q. Did you suspicion it at anytime before that? A We had heard there was some activity at Metal Products next door Q. I'm not talking about Metal Products. I'm talking about just your plant. A No. Q. You didn't have any suspicion at all that the Union was solicit- ing employees at Century Electric? 859 as long as it could, particularly because the discharges heretofore discussed had resulted in the filing of charges, but that his absenteeism in December was the "straw that broke the camel's back." The record shows that Scott was absent once in September and twice in November, but that those three absences were excused. He was also absent on December 1, 17, and 21, but the second of those occurred on a Saturday, which was not a regular workday. The term "excessive absenteeism " seems a lit- tle strong for an employee who had only four unexcused absences in 8 months, but three of these did occur in the last 3 weeks. Assessment of motive is always difficult in these cases, and young Scott's support of the Union may have been one of the straws on the camel's back. Ap- parently, however, he had been warned about absentee- ism only a few days before the final episode, and his failure to report or to get word to the Company on the last occasion would seem almost to invite the ultimate penalty which befell him. Scott's case is by no means free from doubt. When an employer, openly hostile to the union , discharges a known union adherent ostensibly for so subjective a reason as "excessive absenteeism ," doubt necessarily arises as to whether the employer is advancing the real reason, and my reservations on the credibility of Cheek and Bobbitt , the Company's two chief witnesses, are not calculated to allay these doubts. It does not follow how- ever, that every union adherent discharged by an antiu- nion employer is discharged for unlawful reasons. Moreover, if Company witnesses testify falsely, the law provides appropriate remedies and penalties, but my task is not to mete out such punishments but only to decide each matter placed in issue before me , without being un- duly influenced by my overall judgment as to the character of the Company and its witnesses. In short, granting that the Company is antiunion, and that Cheek and Bobbitt are untrustworthy witnesses , I find that in the case of the younger Scott his discharge was in fact at- tributable to his December absences and not to his union activity. B. Other Interference, Restraint, and Coercion As noted above, the record leaves no room for doubt that the Company had a deep and abiding hostility to the Union's efforts to organize the plant. Hostility to or- ganization is not of itself an unfair labor practice, and the statute expressly permits employers to state their views, arguments, and opinions, providing they refrain from threats or promises. On the other hand, the discrimination against several employees because of their union activity constitutes unlawful interference, restraint, and coercion, A. We suspected that they might be interested, yes, because they were right next door. It would be very unusual if they weren't in- terested. Q. Repeat again, if you will, or cover the subject again with me, if you will When was the very first time that you absolutely knew that employees in your plant wanted a Umon9 A. The day they wore buttons to work. Counsel's use of the expression "you didn't have any suspicion at all" and his later use of the expression "absolutely knew" are a tribute to his adroitness , but Bobbitt was unwilling to stay extricated . He insisted on cross-examination that he "first knew of the Umon interest at Century Electric" when the employees wore buttons , and prior to that time never "had any realization that there was a union at Century or that there was even any union feeling at Century." 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and indeed warrants the issuance of an order interdicting any future violations of Section 8(a)(1) and (3). N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). The specific additional violations of Section 8(a)(1) found below are therefore cumulative. Plant Manager Bullock's speech to the assembled em- ployees shortly after he assumed his duties in Lexington contained thinly veiled threats that the men would be jeopardizing their jobs if they selected the Union as their bargaing representative. Bullock told them that the Com- pany had moved to Lexington to get away from unions, and then drove his point home by stating: "This should prove to you that anything which is good for the Com- pany is good for you, and anything that harms the Com- pany invariably can only hurt its employees in the long run." The clear implication is that the Company would leave again to get away from unions and thus choice of the Union would "hurt the employees in the long run."6 Employee Thomas Crawford testified that when he was being interviewed for a job, Foreman Staeger asked him if he was for a union, and on, receiving Crawford's negative reply, continued: "Well, this Company is strictly not for a union." I credit Crawford over Staeger's denial. Such interrogation at the time of hiring, a particularly sen- sitive moment, violates Section 8(a)(1). I credit Paul Sumler's testimony that his foreman, Houston Maxwell, on one occasion offered "to take care" of Sumler if he would help keep the Union out, and on another occasion asked Sumler how each individual in Sumler's department felt about the Union. I further credit Cledis Scott's and Beecham's testimony that Plant Su- perintendent Cheek told them he knew who had attended the union meeting the previous evening. These episodes of interrogation, offer of benefits, and creating the impres- sion of surveillance are likewise violative of Section 8(a)(1). CONCLUSIONS OF LAW 1. By discharging Cledis Scott , Howard Beecham, Stanley Alexander, and Joe K. Bingham because of their union membership and activity , the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. Sy interrogating employees as to _ their own and their fellow employees' union sympathies , by threatening that selection of the Union as a bargaining representative might result in the moving of the plant, by promising benefits to employees if they would assist management in combating the Union and by creating the impression that the Company was keeping union meetings under surveil- lance , the Company engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Company cease and desist from violating Section 8(a)(1) and (3), that it reinstate 6 The complaint alleges that Bullock in this speech told the employees it would be futile to select the Union as their representative. I find he went even further than that. The full text of the speech is in evidence, and as the matter was thus fully litigated I see no material or prejudicial variance between the pleading and the finding. 7 In the event that this Recommended Order is adopted by the Board, Cledis Scott, Beecham, Alexander, and Bingham with backpay, and that it post appropriate notices. Backpay shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend, pursuant to Section 10(c) of the Act, issuance of the fol- lowing: ORDER Respondent, Century Electric Company, Lexington, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because of membership or activity in United-Steelworkers of America, AFL-CIO, or any other labor organization. (b) Coercively interrogating employees as to their union activity or that of fellow employees, threatening that advent of the Union may cause the closing of the plant, promising benefits to employees if they would help defeat the Union, creating the impression that union meetings are being kept under surveillance, or in any, other manner interfering with, restraining, or coercing any employee in the exercise of his right to join or assist a labor organization. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to reinstate Cledis Scott, Howard Beecham, Stanley Alexander, and Joe K. Bingham to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner descirbed in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimina- tion against them. (b) Notify any of the above-named employees who may be serving in the Armed Forces of the United States of their right to full reinstatment upon application in ac- cordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 to analyze the amount of backpay due under the terms hereof. (d) Post at its plant at Lexington, Tennessee, copies of the attached notice marked "Appendix."7 Copies of such notice, to be furnished by the Regional Director for Re- gion 26, after being duly signed by an authorized representative of the Respondent, shall be posted im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." CENTURY ELECTRIC CO. 861 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith." B In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." WE WILL NOT take or threaten to take any action against them for engaging in union activity, coercive- ly question them as to their union activity or that of fellow employees, promise benefits if they will help keep the Union out of the plant, create the impres- sion that we are keeping union meetings under sur- veillance, threaten that the plant may close if the Union becomes their bargaining representative, or in any other manner interfere with, restrain, or coerce them in their exercise of their rights under the Act. CENTURY ELECTRIC COMPANY (Employer) APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL offer Cledis Scott, Howard Beecham, Stanley Alexander, and Joe K. Bingham, their former jobs and pay each of them for wages he lost as a result of his discharge. ALL OUR EMPLOYEES have the right to join or assist United Steelworkers of America, AFL-CIO, or any other union . They also have the right not to join or assist any union. Dated By (Representative ) (Title) NOTE: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 746 Federal Office Building , 167 North Main Street, Memphis, Ten- nessee 38103, Telephone 534-3161. Copy with citationCopy as parenthetical citation