Midwestern Instruments, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1961

131 N.L.R.B. 1026 (N.L.R.B. 1961)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwestern Instruments, Inc. and Lena Raye Forbes and Claude
Eugene Rogers. Cases Nos. 16-CA-1303-1 and 16-CA-1303-2.
June 7, 1961
DECISION AND ORDER
On May 18, 1960, Trial Examiner John P. von Rohr issued his In-
termediate Report in the above -entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in other unfair labor practices al-
leged in the complaint and recommended that such allegations be
dismissed.' Thereafter , the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the entire
record in these cases , including the Intermediate Report, the excep-
tions , and the brief. The Board finds merit in certain of the Re-
spondent 's exceptions and therefore adopts the Trial Examiner's find-
ings, conclusions , and recommendations only to the extent consistent
herewith.
The Trial Examiner found that the Respondent had promulgated,
maintained , and enforced an unlawful no-solicitation rule in violation
of Section 8(a) (1), and pursuant to said rule had discriminatively
discharged Lena Raye Forbes immediately after it became aware of
her prounion activities.
The no-solicitation rule: For many years, the Respondent has main-
tained a general rule against talking on company time unless such
conversations pertained to the job. Notwithstanding the existence of
the rule, the employees openly and freely engaged in various types of
conversations and solicitations during working time. Sometime prior
to April 17, 1959, International Brotherhood of Electrical Workers,
Local Union No. 584, AFL-CIO, herein referred to as the Union,
began organizing the Respondent 's employees . On April 17, 1959,
the Respondent notified all its employees by personal letters and
posted notices that they would be subject to disciplinary action if they
discussed union matters on company time. On June 11, 1959, pursuant
to a Board -directed election ," the Union was certified as the exclusive
' The General Counsel filed no exceptions to the Trial Examiner 's recommendation that
the complaint be dismissed insofar as it alleged that Respondent discriminated against
Claude Eugene Rogers in violation of Section 8(a) (3) and ( 1). We adopt his recommenda-
tion pro forma
2 Case No. 16-RC-2525 ( not published in NLRB volumes).
131 NLRB No. 127.
MIDWESTERN INSTRUMENTS, INC. 1027
bargaining representative for the production and • maintenance em-
ployees. Thereafter, during a bargaining session on October 8, 1959,
Morrow, the president of the Respondent, remarked that the em-
ployees were talking too much on company time in violation of Re-
spondent's existing rules. The Union's attorney then raised the
question of whether the rule was also applicable to the paid nonwork-
ing coffee breaks, asserting that it should be applied only to actual
working time. The Respondent's attorney disagreed, but as neither
was certain of the law on the subject, the matter was dropped. The
Respondent never notified its employees that its rule was being or
might be extended to cover coffee breaks, nor did it, ever attempt to
enforce such a rule. However, the Union's attorney met with mem-
bers of the Union and informed them that the officers of the Respond-
ent had interpreted its rules as covering coffee breaks and warned
them to be careful.
Based upon the foregoing, the Trial Examiner found that the Re-
spondent's imposition of the rule banning union talk on company
time was a violation of Section 8(a) (1) because: (1) it was instituted
in the midst of the union's organizing campaign; (2) the Respond-
ent's president, Morrow, had conceded that the main purpose of the
rule was not related to production; (3) the Respondent adopted the
"no union talk" rule while tolerating and permitting other types of
conversations and solicitations; (4) the rule applied to the nonwork-
ing coffee breaks; and (5) there were no special production or disci-
pline problems justifying the rule.
In the Board's recent Star-Brite s decision, the Board held that a
rule which prohibits union activity during company time is not
rendered invalid merely because its adoption coincides with the advent
of the union, or because it fails to prohibit other types of outside ac-
tivity. We also noted, in that decision, that to require an employer to
establish that such rules are necessary for production and discipline
would render the presumption of validity worthless. It is thus clear
that, except for the Trial Examiner's reasons regarding the appli-
cability of the rule to the coffee breaks, Star-Brite has invalidated all
of his grounds for finding Respondent's rule unlawful.
As for the applicability of a no-solicitation rule to coffee breaks and
other paid, nonworking time, the Board and courts have frequently
held that the fact that employees are paid for a nonworking period
does not justify curtailment of their rights to engage in concerted
activities then 4 The proper test of whether a no-solicitation rule is
S Star-B rite Industries, Inc., 127 NLRB 1008, which issued after the publication of the
instant Intermediate Report
4 I.F Sales Company, 82 NLRB 137; Mad-West Metallic Products Inc, 121 NLRB 1317,
1350; NLRB . v Essex Wire Corporation , d/b/a Essex Corporation of California, 245
F. 2d 589 (CA. 9).
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
invalid is whether it has been made applicable to nonworking rather
than to paid time .5
Although the Respondent may have erroneously interpreted the
phrase "company time" as "paid" rather than "working" time, we do
not in the circumstances of this case predicate a violation of the Act
on this possible error. In this connection, we note particularly that
the applicability of the rule to paid but nonworking periods, was dis-
cussed only once as an incident to other matters at a bargaining meet-
ing, was never announced by the Respondent to its employees, and
that no attempt was ever made to enforce such a rule.
Our dissenting colleague contends we are erroneously relying upon
the Star-Brite decision to reject the grounds on which the Trial Ex-
aminer based his finding that the rule was adopted for a discrimina-
tory purpose. He considers that the Star-Brite rule was presump-
tively valid because it applied only to "working time," whereas the
Respondent's rule in this case is presumptively invalid. We point out,
however, that the "presumptively valid" rule in Star-Brite is identi-
cal, on its face, to the instant rule since they were both issued in order
to curtail solicitation during "company time." It seems clear, there-
fore, that Respondent's rule likewise must be presumed to be valid.
The discharge of Lena Raye Forbes : The Trial Examiner found
that Forbes was discriminatively discharged. Forbes worked as a
production employee in the cable department with a group of six
other women. She was an adequate worker, had a satisfactory em-
ployment record, and was a union adherent. Notwithstanding Re-
spondent's rules against talking, these women freely talked about
various subjects not connected with the job. Toward the end of
September 1959, Goins, an employee in the cable department, who was
not a member of the Union, reported to Harris, the Respondent's
personnel manager, that one girl was making work unbearable in the
department. Goins was referring to Forbes, but refused to reveal her
identity then. On October 15, 1959, Goins again spoke to Harris,
identifying Forbes as the person to whom she had previously referred,
that Forbes was continually attempting to persuade her to join the
Union, and that she made derogatory remarks about the Company
and was sarcastic. Harris urged Goins to think over the serious
nature of her charge and if she still felt compelled to report Forbes'
conduct, to do so in a written statement. Goins did so the next day
and left it with Harris. Harris then called Dalton, the foreman of
the cable department, who confirmed the fact that there had been
trouble in that area but thathe had been unable to discover its source.
Harris then called Forbes into his office and discharged her. Six days
later he wrote the Oklahoma Unemployment Commission that Forbes
5 Odin Industries , Inc, Winchester Repeating Arms Company Division v. N L.R B ,
191 F. 2d 613, at 617 (C.A 5).
MIDWESTERN INSTRUMENTS, INC. 1029
had been discharged for discussing union activities on company time
in violation of company rules.
The Trial Examiner found that prior to Forbes' discharge, the
Respondent had no indication that Forbes was an unsuitable employee
or the cause of the turmoil in her department, and that it had "arbi-
trarily and discriminatorily seized upon the complaint" of Goins who
was an "anti-union employee." He found that additional facts testi-
fied to by Respondent's witnesses which tended to prove that Forbes
was quarrelsome and a source of unpleasantness were not known by
the Respondent until after Forbes' discharge. The Trial Examiner
concluded that in the above circumstances and as the Respondent had
given "shifting reasons" for Forbes' discharge, it was evident she
was discharged because Respondent became aware of her prounion
activities.
We agree with the Trial Examiner that the Respondent did not
know that Forbes was the cause of the turmoil until Goins so informed
Harris on October 15. We also agree with him that it was not until
after Forbes' discharge that other employees confirmed Goins as to
who was the source of difficulties in the department. However, the
Trial Examiner did not take into account other pertinent testimony,
that on at least three different occasions prior to Forbes' discharge,
individual workers had complained about the unpleasantness in the
department. We are satisfied from such evidence that the Respondent
was aware that an employee in the department was disturbing and up-
setting the other employees. Thus the Respondent argues that Forbes
was discharged, not for her union sympathies or activities, but rather
because it had at last discovered the source of unrest in that depart-
ment. We perceive considerable merit in such contentions, particu-
larly since the General Counsel, we believe, has not by a preponder-
ance of the evidence, proved that antiunion considerations motivated
the discharge. The Board and the courts have long recognized the
inherent and fundamental right of an employer to discharge an em-
ployee for cause. Disturbing fellow employees to the point where their
work is affected is certainly to be regarded as a just cause,6 and such
disturbance cannot be transformed into "protected activity" merely
because the dischargee happens to be a member of a union.' We are
satisfied that that is what occurred here. Although Respondent's wit-
nesses testified that Forbes was also discharged for violating company
rules and/or degrading the Company, it is clear that these additional
reasons were directly related to what we find to be the primary motive
for her discharge-namely the disturbance and turmoil she had cre-
ated.' As an indication of the Respondent's true motive, Forbes her-
0 See Continental Overall Company, 116 NLRB 1588, 1589
7 See Frohman Manufacturing Co , Inc, 107 NLRB 1308, at 1326.
8 In any event, under the facts of this case, we regard Respondent 's reasons , individually
or collectively, as valid grounds for Forbes ' discharge.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self testified that the only reason Harris gave for the discharge was
that "I had disturbed five girls until they were so upset they couldn't
do their work," and that she was unaware that she had been terminated
for breaking a company rule until she read a copy of the Respondent's
letter to the Oklahoma Unemployment Commission.9
Accordingly, as the General Counsel has failed to prove that Forbes'
discharge was for discriminatory reasons, we shall dismiss the com-
plaint in its entirety.
[The Board dismissed the complaint.]
MEMBER FANNING, dissenting in part and concurring in part :
I agree with the Trial Examiner that Respondent's rule banning
all union talk on company time violated Section 8 (a) (1). The rule
as promulgated applied to nonworking time, i.e., coffee breaks as well
as to working time. This is established by the testimony of Harris,
Respondent's personnel manager, who promulgated the rule. The fact
that Respondent so applied the rule was made known to employees by
their representative who raised the validity of such an application of
the rule with Respondent's counsel, but was informed that Respond-
ent deemed such application to be valid.
In view of the above facts, which are not in dispute, the rule is pre-
sumptively invalid, because it applies to nonworking time as well as
to working time.10 The burden was therefore on Respondent to rebut
the presumption of invalidity. My colleagues are therefore in error
in relying on the Star-Brite decision," to reject the grounds on which
the Trial Examiner based his finding that the rule was adopted for
a discriminatory purpose. Star-Brite held that, with respect to a
presumptively valid rule, i.e., one that applied only to working time,
the presumption was not rebutted merely by a showing that the rule
was promulgated at the time of the advent of the union, and the
respondent had not shown any actual need for the rule. Without
passing on the merits of the Star-Brite decision as applied to a pre-
sumptively valid no-solicitation rule, it is clear that it has no applica-
tion to the instant case. Here the evidence shows, as found by the
0 We also note that the Trial Examiner , while seemingly relying upon the contents of
this letter as one of the "shifting reasons " for her discharge , discounts an identical letter
written in conjunction with Rogers ' discharge as "largely a matter of form and was not
intended to supply all the details "
10 Walton Manufacturing Company, 126 NLRB 697 , and cases cited in footnote 2 thereof
See also I F Sales Company , supra; Mid -West Metallic Products , Inc., supra ; N.L R B. v.
Essex Wire Corporation, d/b/a Essex Corporation of California, supra
11 Star-Brite Industries, Inc, supra. Here, unlike the Star-Brice case, there is a show-
ing that the rule applied to nonworking time The rule is therefore presumptively invalid
Accordingly, there is no basis for treating the rule as a presumptively valid rule, apply-
tug only to working time, as the Board apparently did in Star-B rite I find it difficult
to believe that the Star-Brice decision was intended to foreclose reliance on factors which
reinforce the presumption of invalidity of a rule that applies to nonworking time
MIDWESTERN INSTRUMENTS, INC. 1031
Trial Examiner , that a presumptively invalid rule (1) was instituted
at the very time the Union was in the midst of an organizing cam-
paign among Respondent's employees; (2) its main purpose was not
related to production; and (3) the rule prohibited only union talk on
company time, not talk about other extensive solicitations not pertain-
ing to work. These factors reinforce the presumption of invalidity
which attaches to the broad rule promulgated by Respondent.
For the foregoing reasons, I find that the Respondent violated the
Act in promulgating the rule against union talk on company time, and
I would issue the necessary cease-and-desist order.12
As found in numerous cases with court approval, and restated in
the Walton decision, the very existence of an invalid no-solicitation
rule constitutes an impediment to self-organization. The fact that
the rule has not been invoked to cause the discharge of an employee
for its violation is not evidence that it has not been in effect, or has
not interfered with employees' rights under the Act. It merely shows
that the rule has been effective in restraining the exercise of such
rights.
I agree with my colleagues, for the reasons stated in their opinion,
that the General Counsel has not sustained his burden of proving that
the discharge of Lena Raye Forbes was discriminatorily motivated.
I therefore join in that opinion to the extent it overrules the Trial
Examiner's contrary finding.
I agree also with my colleagues' affirmance of the Trial Examiner's
finding that Respondent did not violate the Act in discharging Claude
Eugene Rogers.
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
12 See Walton Manufacturing Company, supra, enfd 289 F 2d 177 (C A 5).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges, duly filed, the General Counsel of the National Labor Relations
Board, for the Regional Director of the Sixteenth Region (Fort Worth, Texas),
issued a consolidated complaint , dated December 7, 1959, against Midwestern
Instruments, Inc., herein called the Respondent or the Company, alleging that the
Respondent had engaged in certain unfair labor practices within the meaning of
Section 8 ( a)(1) and ( 3) and Section 2(6) and (7) of the National Labor Relations
Act, as amended.
Respondent filed an answer on December 9, 1959, in which it admitted the juris-
dictional allegations of the complaint , but denied the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held in Tulsa, Oklahoma, on February 9, 10,
and 11 , 1960 , before the duly designated Trial Examiner . Briefs subsequently were
submitted by the Respondent and the General Counsel and they have been carefully
considered Based upon the record as a whole, and upon my observation of the
witnesses , I hereby make the following:
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation with its principal office and place of
business located in Tulsa, Oklahoma, where it is engaged in the manufacture, sale,
and distribution of electronic and electromechanical instruments. During the last
year it shipped products valued in excess of $50,000 to points and places outside the
State of Oklahoma. The Respondent admits, and I find, that at all times material
herein the Respondent has been engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union 584, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background: the rule prohibiting union talk on company time or on coffee breaks
At the outset it should be noted that the complaint contained a broad allegation
which charged the Respondent with having promulgated a rule which unlawfully
prohibited any union talk on company time. During the hearing, and over the
objection of the Respondent, the General Counsel amended the complaint by adding
an allegation that Respondent promulgated a no-solicitation rule "which is invalid
on its face in that it states there will be no solicitation or union activities on company
time or on company property.. . . Although the Respondent in its brief pro-
tests that the original complaint did not state an adequate cause of action with re-
spect to the rule prohibiting union talk and that the General Counsel's amendment
pertaining to the rule during the hearing came too late, the record is clear that
all issues concerning the rule were fully litigated at the hearing. Moreover, I find
that the original complaint, as drafted, was sufficient to put the Respondent on
notice that the rule prohibiting union discussion was being attacked as violative of
Section 8(a)( I) of the Act.
At sometime prior to April 1959 (the record is silent as to the exact date) the
Union began an organizing campaign among the Respondent's approximate 550
production and maintenance employees. The evidence establishes that the Re-
spondent was opposed to the unionization of its employees, for it countered and
resisted the Union's organizational efforts by issuing several letters to its employees
which, in substance, and for reasons stated therein, urged the employees not to
accept the Union as their bargaining representative.' In one of these letters, i.e., a
letter dated April 17, 1959, signed by Leo Harris, the Respondent's personnel man-
ager, the Respondent announced what it regarded as a rule banning any union talk
on company time. The pertinent part of this letter is as follows:
There is no person in this company in a position to jeopardize your job if you
do not choose to sign a card. Any threats of this nature shuld be reported to
personnel. 'I might also point out that you do not have to be subjected to a
"union sales" pitch on company time. This is not only a violation of your
personal rights but a violation of your obligation to give 8 hours work for 8
hours pay. It would even subject you to disciplinary action for non-performance
of your job. This, of course, applies strictly to company time.
If the above statement is susceptible to any ambiguous construction, Harris testi-
fied, and I find, that subsequent to the issuance of this letter, the Respondent's fore-
men, pursuant to his instructions, orally notified the employees, individually and in
groups, that there was to be no talking whatsoever about the Union on company
time under penalty of discharge. Some of the employees testified that they were
not so notified by their foreman. Others testified that their foreman did tell them
about the rule. As to the former, it may be that some foremen were lax in giving
the instructions or that these employees were absent. In any event, in view of
Harris' testimony, there can be no doubt but that the rule existed.
Harris testified that the rule applied not only to working time, but that it was
applicable also to the 10-minute coffee breaks which the employees enjoyed in the
morning and in the afternoon. The Respondent paid the employees full time for
the coffee periods.
Before reaching General Counsel's contention that the rule prohibiting union talk
on company time was promulgated by the Respondent for the purpose of discrim-
i No violation of the Act, based upon these communications , Is alleged
MIDWESTERN INSTRUMENTS, INC. 1033
inating against the Union , there remains to be considered other facts and circum-
stances which are pertinent to the issue.
Harris testified that when he first came to work for the Respondent in June 1957,
there existed a verbal plant rule which "involved no talking during working hours
about matters not pertaining to work." As previously noted , the rule specifically
prohibiting union talk on company time was promulgated during the period of the
Union's organizational campaign . With respect to the purpose of inaugurating the
rule at this particular time, M. E. Morrow , chairman of the Respondent 's board of
directors ,2 testified that the rule was put into effect because the Respondent regarded
union talk as a controversial subject . Moreover , according to Morrow , the rule pro-
hibiting union talk on company time was enacted notwithstanding the fact that there
already existed an oral rule prohibiting talk about any matter not pertaining to work
because, as he put it, "we needed to emphasize this union thing." When asked
whether the rule against union talk had anything to do with productivity , Morrow
replied, "Of course it would have something to do with production , but that wasn't
the prime purpose."
Although the Respondent sought to strictly enforce the rule prohibiting any union
talk on company time, as evidenced by its application of the rule to Lena Raye
Forbes, whose discharge is discussed below, the evidence shows that the rule pro-
hibiting talk about any matter not pertaining to work was not enforced . There is ,
no need to detail the voluminous testimony proffered by the General Counsel to
show that all manner of talk and solicitation abounded among the employees during
their working time. The evidence is clear and unrefuted that the employees openly
and freely , on company time, engaged in many and various forms of solicitations.
These included baseball and football pools, check pools, raffles , collections for
birthday and wedding gifts , collections for employees who were sick , for employees
leaving the Company , and the like. Further , the evidence is unrefuted that foremen
and supervisors , as well as the employees , participated in the various solicitations
during working hours. Nor were these solicitations of an infrequent nature, for the
unrefuted testimony shows that the solicitations were often a weekly and , at times,
a daily occurrence .3 Finally, the evidence clearly reveals , and I find, that it was a
common practice among the employees to discuss personal and outside matters
with each other while they were working.
B. Conclusions re the foregoing rule
Legally applicable to the instant situation is Delta Finishing Company,4 wherein
the Board stated , "as working time is for work , a rule which prohibits union dis-
cussion during working hours is presumed to be valid in the absence of evidence
that it was adopted for a discriminatory purpose." 5 From all of the evidence dis-
cussed in the foregoing section it is clear, and I find , that the rule prohibiting any
union discussion on company time was promulgated by the Respondent as a device
to impede the employees ' right to self-organization and that Respondent thereby
violated Section 8(a)(1) of the Act. I base this finding upon the following consid-
erations : ( 1) The rule was instituted at the very time the Union was in the midst
of an organizing campaign among the Respondent 's employees ; (2) Morrow
conceded that the main purpose of the rule was not related to production , but that
"we needed to emphasize this Union thing;" and ( 3) the Respondent , who opposed
the Union , promulgated the rule prohibiting union talk on company time but at the
same time tolerated and permitted other talk and other extensive solicitations not
2 M E Morrow was formerly president of the Company In his capacity as chairman he
remained active as an executive head Harris testified that he always consulted "higher
management" before taking any action and the record is clear that he frequently con-
sulted with M E Morrow concerning matters affecting the employees
3 Harris testified that Respondent permitted solicitation for humanitarian purposes, but
that other forms of solicitation were against company policy With respect to enforce-
ment of any no-solicitation rule , Harris testified only that on some occasions he removed
football pool cards from the bulletin board and , further, that he would go to Mr Keeney,
the production superintendent, "to find out if he knew of any activity in his department "
On only one occasion , that of a guard who raffled a car on company time, was any repri-
mand given From the unrefuted evidence , I find that solicitation among the employees
was open , continuous , and unimpeded
A 111 NLRB 659
S See also Walton Manufacturing Company , 126 NLRB 697 , Republic , Aviation Corpora-
tion v . N L R B, 324 US 793
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pertaining to work or to the Respondent 's business to continue unabated during
working hours.
I further find that the Respondent violated Section 8(a)(1) of the Act by its
application of this rule to the employees' coffee breaks. Thus, the Board stated in
Walton Manufacturing Company, supra, "No-solicitation or no-distribution rules
which prohibit union solicitation . . . on company property by employees during
their nonworking time are presumptively an unreasonable impediment to self-
organization, and are therefore presumptively invalid both as to their promulgation
and enforcement." [Emphasis supplied ] 6 Finally, I am convinced and I find, upon
consideration of all the evidence, that no special circumstances existed at Respond-
ent's plant to make the rule necessary in order to maintain production or discipline.
Accordingly, it must be included that the rule was adopted for a discriminatory
purpose
C. The discriminatory discharge of Lena Raye Forbes
The complaint alleges that Lena Raye Forbes, who was employed by the Re-
spondent as a production worker since July 14, 1958, was discriminatorily discharged
on October 16, 1959.
During the period prior to her discharge, and at the times relevant hereto, Forbes
worked with a group of approximately six girls in the cable department For the
most part these employees worked close together while seated on benches. The
evidence is clear that these female employees freely engaged in discussing various
outside matters with each other while in the performance of their work, this not-
withstanding any company rule to the contrary.
No question is raised concerning Forbes' ability to perform her job, for Harris
conceded that she was an adequate worker.? Moreover, the evidence shows that
Forbes had a satisfactory employment record with the Respondent in every respect,
at least until the time of her discharge.
Throughout the period of the Union's organizational campaign, and until the day
of her discharge, Forbes was an active union adherent. Although she did not solicit
employee signatures to union authorization cards, there is no question but that
she advocated the Union and spoke in its favor among her fellow employees. This
latter fact was, as will be seen, the very reason for her discharge.
At this point it should be mentioned that the Union was certified as bargaining
representative of Respondent's production and maintenance employees on June 11,
1959, in Case No. 16-RC-2525. Bargaining negotiations were in progress at the
time Forbes was discharged and by that time the employees had voted to authorize
strike action.
Now to the incident leading up to the discharge. On October 15, 1959, Lucille
Goins,8 an employee who worked with Forbes in the cable department, came to the
office of Personnel Manager Leo Harris to register a complaint against Forbes.
Harris' testimony concerning the substance of what Goins reported to him at this
time is best reported in his own words:
She said that Lena Raye Forbes in the beginning was very nice to her and she
had no objection to working next to her. As time went by Lena Raye would
do one of two things, either she would attempt to persuade her to join the
Union or make sarcastic remarks about things of an upsetting or irritating nature,
and would at other times without reference to the Union. She was constantly
making remarks about the "no good company" was her words. The working
conditions, the lousy pay, the advantages that could be gained by having a union
in the place.9
Goins was also called upon by the Respondent to testify with respect to this office
visit. According to Goins, Forbes had been talking to her about the Union for quite
some time. On the day in question, according to Goins, Forbes pursued the subject
to such extent that she found it necessary to go to the restroom where she became so
8 See also N L.R B v The Babcock & Wilcox Company, 351 U S 105
'The evidence in fact establishes that Respondent utilized Forbes to assist in the
training of new girls
8 Her present married name is Lucille Goins Thompson
e Harris also testified that Goins at this time complained that Raye continued to take
credit for work which she (Goins) had performed Since this alleged conduct is nowhere
asserted by the Respondent as a basis for Raye's discharge, no purpose will be served by
discussing it further Suffice it to say that Respondent conceded Raye was a satisfactory
worker
MIDWESTERN INSTRUMENTS, INC. 1035
upset that she cried . When she came out she received permission to see Harris.
Concerning the discussion which then ensued in Harris' office , Goins testified : "I told
him about how she had been treating me, the things she had been saying, the threats
she had been making . she told me that if I didn 't join I wouldn't have a job.
That they had us outnumbered and that they were going to beat us anyway. She
said they were going on strike."
During the conversation , Goins also related that Forbes was the person whom she
had in mind on a previous occasion when she (Goins ) came to Harris ' office to
register a complaint 10
According to Harris, when Goins completed narr4 *.ing the grievance against Forbes,
he told her that her statement was of a "serious nature" and that "she [should] go
home and think it over and after thinking it over if she was still willing to testify
that Lena Raye was of that caliber , that she could no longer work with her, she
should give me a statement to that effect. ..."
Goins did just this, for the next morning she left a note on Harris' desk in which
she stated:
OCTOBER 15, 1959.
Here is my written testimony concerning the pressure being forced upon me
in this manner, a union activity , Lena Ray Forbes , in the department trying to
sell union membership during working hours. At first she tried to be very
convincing by constantly degrading the company , later she used threats which
is effecting my working condition.
[Signed ] LUCILLE GOINS.11
When Harris found the note on the morning of October 16, he contacted Leon
Dalton , foreman of the cable department, and told Dalton what had occurred.
According to Harris , Dalton "confirmed" that there had been "an unusual amount
of tension and unsettled feeling in that particular area," but that "he [Dalton] had
been unable personally to pinpoint it to Lena Raye Forbes."
Harris next spoke to Morrow, explained the situation to him, and recommended
that Forbes be discharged . According to Harris, Morrow then told him that he was
"hired to do the job" and "if she was an undesirable employee she . . . certainly
she should be gotten rid of immediately."
Having cleared the matter with Morrow, Harris called Forbes and Dalton to his
office. Concerning the conversation which then ensued with Forbes, Harris testified:
I told her I had had an awful lots of reports about her attitude and performance
on the job and that I had a specific complaint charging her with violating the com-
pany rule of selling the union on company time, plus attempting to tear down
morale by degrading the company and its operation . [Emphasis supplied.]
Harris testified further that Forbes "denied the charges " but that he told her in view
of the findings he had made he had no choice but to terminate her. Forbes ' discharge
was thereupon effected.12 Subsequently , Respondent sent the following letter to
the Oklahoma Employment Security Commission:
1o Harris testified that Goins at various times came to his office for the purpose of pro-
curing "nerve pills " On one of these occasions , in the latter part of September, Goins
complained that she no longer could "hold up under the stress of working in that particu-
lar department because the feeling of tenseness was present continuously . . that through
the efforts of one girl it was becoming unbearable " However , according to Harris, Goins
refused to disclose the name of any particular person at that time.
11 Goins testified that while discussing with Forbes what might occur if she crossed a
picket line in the event of a strike , Forbes allegedly stated "the women don ' t have to do
anything . It's the men that use the clubs " However, the testimony of both Goins and
Harris, concerning the office visit in question , show that Goins did not report any such
alleged threat to Harris Further , Respondent does not claim to have discharged Forbes
for having made any threat of physical violence . The only possible threat reported by
Goins to management was that she was told she would not have a job if she did not
join the Union
Further, I do not believe Forbes made any physical threat to Goins In this connection,
I credit Forbes' testimony which is that on one occasion Goins asked what would happen
if she crossed the picket line , that she ( Forbes ) answered by saying it was a new experience
for her , and that they would just have to wait and see.
.2 During the discharge conversation Harris advised Forbes that lie had a signed state-
ment from an employee , but he did not disclose the name of the employee to Forbes.
Forbes did say to Harris , however , that site knew iiho signed the statement As Forbes
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OCTOBER 22, 1959.
GENTLEMEN: We have just received Notice of Application for Unemploy-
ment Compensation on the above named person.
We do not feel the claim is justified as Mrs. Forbes was terminated for dis-
regarding company policy of discussing Union activities on company time.
Thank you for your consideration.
Sincerely,
L. E. HARRIS, Personnel Director.
D. Conclusions re Lena Raye Forbes' discharge
I would first point out that the asserted shifting reason or reasons given by the
Respondent for the discharge of Forbes, in themselves, render suspect the real reason
for her discharge.13 Thus, as noted above, Harris testified that he told Forbes she
was being discharged because he had a complaint charging her with violating a rule
of selling the Union on company time plus the fact that she was "degrading" the
Company. Later in the hearing Harris testified that he discharged Forbes for a dual
purpose-one, because she caused disruption among the employees, and two, because
she talked about the Union on company time. At yet another point in the hearing,
which was after the General Counsel's case-in-chief, the following colloquy occurred
between the Trial Examiner and counsel for the Respondent:
TRIAL EXAMINER: The reason I ask is this. As I understand, the Company's
position is that Lena Raye was discharged for discussing union activity on com-
pany time. Now, is that correct?
Mr. COFFEY: No. No. No. The Company's position is that Lena Raye was
discharged by reason of the fact that she had proved herself to be an unsuitable
and unsatisfactory employee by reason of the disturbance and the turmoil that
existed in that department at the plant. The union activity and the discussions
of the union business and her union membership only indirectly has any bearing
upon it, but she was discharged by reason of the fact that we had a department
out there that was practically going to pot.
The fact remains that, aside from the report which Harris received from Goins
(which will be dealt with later), there is not one scintilla of evidence to show that
prior to Forbes' discharge Respondent had any reason to believe that Forbes was an
unsuitable employee or that she was the cause of any turmoil in her department
To the contrary, and further demonstrative that much of Respondent's asserted
basis for the discharge of Forbes came as an afterthought, is the very fact that Re-
spondent called four employees as witnesses for the purpose of testifying about their
working relationship with Forbes, yet each of these witnesses conceded, as did the
Respondent, that nothing in their testimony was told to or came to the attention of
the Respondent until sometime after Forbes had been discharged.14 Accordingly,
the testimony of these witnesses cannot now be advanced as any justification for Re-
spondent's discharge of Forbes. Further refuting Respondent's contention that it
discharged Forbes because she allegedly was responsible for causing disruption in her
department, is Harris' own testimony that when he spoke to Foreman Dalton con-
cerning Goins' complaint about Forbes, Dalton reported that there had been an
"unusual amount of tension and unsettled feeling in that particular area," but that
"he had been unable personally to pinpoint it to Lena Raye Forbes " It is thus clear
and I find, that Forbes' immediate supervisor, who certainly would be in the best
position to know, had no cause to complain about Forbes' deportment with her
fellow employees. Significantly, Respondent did not call Dalton as a witness nor
did it offer any reason for failing to do so. From this I must conclude, particularly
in view of Harris' testimony, above, that if called, Dalton would not have testified
later testified, she surmised the person to be Coins because she knew that Coins had gone
to the office on the preceding day, and on the morning of her discharge Coins refused to
speak to her.
13 The giving of implausible, inconsistent, or contradictory explanations of a discharge
may be considered in determining the real motive ; it is a circumstance indicative of anti-
union motivation. NLRB v Condenser Corporation of America 128 F 2d 67, 75
(CA. 3) ; N L.R.B. v C. W. Radcliffe, et al , d/b/e Homedale Tractor & Equipment
Company, 211 F 2d 309, 314 (CA 9) ; Sandy Hill Iron f Brass Works, 69 NLRB 355,
377-378, enfd 165 F 2d 660 (CA 2)
"'These witnesses were Augusta Williams, Linda Shook Baker, Freda LaVonne Bollinger,
and Francis M Pliant Respondent's attorney and/or Harris interviewed these em-
ployees and took affidavits from them sometime subsequent to the discharge of Forbes.
MIDWESTERN INSTRUMENTS , INC . 1037
to anything but that Forbes was a satisfactory employee. Accordingly , and in view
of all the foregoing , I find that the evidence does not sustain Respondent's con-
tention that it was motivated to discharge Forbes because she allegedly caused dis-
ruption in her department.
To be sure , Lucille Goins did register a complaint about Lena Raye Forbes. The
substance of her complaint, however , was that Forbes pestered her with prounion
talk. There was nothing in Goins' complaint to Harris from which Respondent
could reasonably conclude that Forbes was the source of general disruption in her
department . Indeed, this was verified by Dalton to Harris.
As has been seen in the foregoing section , Respondent promulgated a rule pro-
hibiting union talk on company time, including break periods , as a device to impede
the employees ' right to self-organization . The evidence establishes that this rule,
which I have found was discriminatorily adopted, was further utilized by the Re-
spondent as a device for discriminatorily discharging Forbes when Respondent be-
came aware of her prounion activities . Thus, as previously noted , Respondent also
had a rule which prohibited any talk not related to work on company time, a rule
which necessarily would encompass any other form of solicitation among the em-
ployees. Yet, and notwithstanding the many forms of abundant solicitation in which
the employees freely and openly engaged , the evidence establishes that Respondent
never invoked the latter rule by discharging any employee for engaging in such
activity , except for the case of the guard who raffled a car ( and he was but orally
reprimanded , not discharged ). Respondent permitted such extracurricular activi-
ties to continue unrestrained and unabated . It must therefore be concluded, and I
do so conclude , that Respondent , who had demonstrated its opposition to the Union,
arbitrarily and discriminatorily seized upon the complaint of an antiunion employee 15
as an excuse for ridding itself of a prounion adherent by invoking the extreme
penalty of discharge.is
On the entire record I conclude , and find , that Respondent discharged Forbes on
October 16 , 1959, pursuant to a rule which it had promulgated to impede the
organizational efforts of its employees.17 By such discharge Respondent violated
Section 8 ( a)(3) of the Act . By that discharge Respondent also interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed them
in Section 7 of the Act and thereby violated Section 8 (a) (1) thereof.
E. The alleged discriminatory discharge of Claude Eugene Rogers
The complaint alleges that Claude Eugene Rogers, who began working for the
Respondent in October 1958, was discriminatorily discharged on October 16, 1959.
Rogers held several different jobs during his tenure of employment with the Re-
spondent and at the time of his discharge worked in the test division of the magna-
cord department . The latter department was located in a small two -story structure
away from the main plant.
The record indicates that Rogers was one of the most active and vocal proponents
of the Union . In addition to actively soliciting employees to become members of
the Union , he was a member of the Union 's advisory board to the negotiating com-
mittee. The evidence establishes , and there is no contention to the contrary, that
Respondent was aware of Rogers ' prominent union activities prior to his discharge.
On October 15, 1959, Rogers entered into a discussion with Rita Peters, another
employee who worked in the same building , about a recent vote taken by the union
members which authorized strike action in the event a contract was not negotiated.
Peters credibly testified that during this conversation Rogers asked whether she
would cross the picket line if the employees went on strike . Peters replied that she
.,most certainly" would. At this point , according to the credited testimony of
Peters, Rogers said , "You had better not, because there will be people on the picket
line with ball bats and different objects and someone is liable to get hurt ." Peters
answered this by stating that she was not frightened because guards would be
present at the plant for the employees ' protection . At this, Rogers told Peters that
if "they" could not hurt her at the job "they" would come to her home . In reference
is Goins testified that at a visit to Harris ' office, about a month before the discharge of
Forbes , she told Harris she was not a member of the Union
16 Further pointing to the discriminatory motive behind Forbes' discharge is Forbes'
credited and undenied testimony that at the time of her discharge Harris, among other
things, made reference to the fact that she had attended union meetings and that he
further said she had gone to people 's homes and tried to sell them the Union.
17 National Steel & Sh¢pbuildsng Corporation, 126 NLRB 900.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the last remark, Peters testified credibly that Rogers added, "Now,.I wouldn't. It
doesn't mean that much to me, but there are people that work down there that would."
Rogers conceded having a conversaion with Peters shortly after the strike vote in
which Peters told him that she would not cross a picket line in the event one was
established. Rogers said that he "didn't know" of making any statement about men
being on the picket line with ball bats and he denied telling Peters that no one could
hurt her on the job but that they could come to her home.
I credit Peter's entire version of this conversation, including the threatening state-
ments she testified as having been made by Rogers. Peters impressed me as a forth-
right and honest witness and I am convinced that she did not fabricate the remarks
which she attributed to Rogers. Moreover, this finding does not rest upon Peter's
testimony alone, for her testimony is substantiated by another employee, Michael
Eddy, who overheard the conversation between her and Rogers. Thus, Eddy testi-
fied that he heard Rogers ask Peters if she would cross a picket line, Peters' reply
that she would, and Rogers' remark that people would be present with baseball bats.
He also recalled hearing Rogers tell Peters that people might come to her house.18
On the evemng of October 15, when Peters returned to her home, she gave further
thought to the remarks which Rogers had made and they finally began to worry and
frighten her. She attempted to telephone Woody Cowardin, her supervisor, but
could not find his telephone number. (She later found that Cowardin had an un-
listed number.)
On the next day (October 16) Peters told Cowardin that she was upset and that
she had tried to call him the preceding evemng. Cowardin reported the matter to
Harris and in the afternoon, after some further arrangements, Cowardin brought
Peters to see Harris in the latter's office. At this time Peters related to Harris the
entire conversation which she had with Rogers the preceding day. The credited
testimony of Peters and Harris is clear that she did not fail to tell Harris, in recit-
ing the conversation of the day before, of Rogers' remark that if she crossed the
picket line there would be people present with baseball bats and Rogers' statement
that if they could not hurt her at the picket line they could always come to her
home.
After Peters completed her statement and left the office, Harris contacted Morrow
and advised him of what had occurred. He told Morrow that he believed Peters'
report of the threat which Rogers had made and that he therefore felt it was neces-
sary to terminate Rogers. Morrow agreed. Harris thereupon called Rogers to his
office and told him that he was being discharged for having threatened another
employee.
I have not disregarded Rogers' testimony that Morrow entered Harris' office at
the time of the discharge conversation and that he made certain remarks pertaining
to Rogers' union activity. Nevertheless, Rogers conceded, and the credited testi-
mony shows, that it was made unmistakably clear to Rogers he was being discharged
because of the threats he made to a coemployee.19
F. Conclusions re Claude Eugene Rogers' discharge
In contrast to the case of Lena Raye Forbes, the Respondent did not hesitate to
assert one, and only one, reason as its basis for the discharge of Rogers-that basis
being Rogers' threatening conduct toward Rita Peters.20 Upon consideration of all
the evidence, I am convinced, and I find, that Respondent has established its defense
and that the issue of Rogers' discharge must be resolved in Respondent's favor.
Lest there be any doubt, it should be made clear that it is the finding and con-
clusion of the Trial Examiner that Rogers' verbal statements to Peters on October
15, the details of which have been heretofore described, included a strong implied
threat to Peters that she would be subjected to physical violence if she attempted
to cross the picket line. Even though Rogers may have tried to avoid any personal
18 Eddy gave me the impression of being an impartial and disinterested witness. On
cross-examination, Eddy testified that Rogers' remark about ball bats particularly stuck
in his mind because he recalled a similar incident, when he was of high school age, where
he had observed baseball bats used on a picket line
10 Harris did not disclose the identity of Peters to Rogers at the time of the discharge
201 am not unmindful that Respondent advised the Oklahoma Employment Security
Commission by letter of October 22, 1959, that Rogers was discharged for talking union on
the job. As Indicated by Harris, however, this letter is largely a matter of form and was
not intended to supply all the details In any event, the threat by Rogers was made on the
job and related to union activity.
MIDWESTERN INSTRUMENTS, INC. 1039
implication by telling Peters that there would be "others" who would commit the
violence, this cannot absolve Rogers from any responsibility for having made the
threat. It would be entirely reasonable for Peters to assume that Rogers, as an
active union leader and a member of the Union's advisory committee, invariably
would have some responsibility and control over whatever might happen in the
event a picket line was established. Indeed, the effectiveness of the threat upon
Peters has already been noted.
Returning to Respondent's reason for Rogers' discharge, there is no evidence to
establish that Respondent has been confronted with, or condoned, such an incident
in the past. Furthermore, and unlike the case of Forbes who was engaged in pro-
tected activity, Rogers engaged in activity which is not protected under the Act. As
held in The Frohman Manufzcturmg Co., Inc.,21 union membership, office, or
activity does not constitute a grant of license to utter threats of bodily harm, nor
does it immunize against plant discipline.22
In sum, and on the entire record, I find that Respondent discharged Rogers by
reason of his threats to Peters and that this incident was not utilized by the Respond-
ent as a pretext for discrimination. Although Rogers' case is not entirely free
from doubt, I find that the General Counsel has not sustained the burden of proof
to establish that the discharge of Rogers was discriminatorily motivated. It is there-
fore concluded and found that Respondent did not violate Section 8(a)(3) of the
Act by its discharge of Rogers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent's activities set forth in section III, above, occurring in connection
with the Respondent's operations described in section I, above, have a close, inti-
mate, 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 of commerce.
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 discriminatorily discharged Lena Raye Forbes
on October 16, 1959, I shall recommend that Forbes be offered immediate reinstate-
ment to her former or substantially equivalent employment, without prejudice to
her seniority or other rights and privileges previously enjoyed, and that she be
made whole for any loss of earnings suffered as a result of the discrimination by
payment to her of the sum of money she would have earned as wages after October
16, 1959, to the date of offer of reinstatement, less her net earnings this period.
Backpay shall be computed in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local Union 584, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminatorily discharging Lena Raye Forbes on October 16, 1959, Re-
spondent has engaged in an unfair labor practice within the meaning of Section
8(a)(3) of the Act.
3. By the aforesaid discharge, by promulgating and enforcing a rule against union
discussion during working time in order to impede the Union's organizational cam-
paign, and by promulgating and enforcing a rule against union discussion during
coffee breaks, Respondent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by Section 7 of the Act, and has thereby en-
gaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1) of the Act.
4 Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act by its discharge of Claude Eugene Rogers.
[Recommendations omitted from publication I
21 107 NLRB 1308, at 1326
22 See also Boeing Airplane Co v. N L R B , 217 F 2d 369 (C A. 9)