Queen City Equipment Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 284 (N.L.R.B. 1974)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Queen City Equipment Corporation and International
Union of Operating Engineers, Local 500D,
AFL-CIO. Case 11-CA-5378
June 10, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On February 19, 1974, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings," and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Queen City Equipment Corporation, Charlotte,
North Carolina, its officers, agents , successors, and
assigns , shall take the action set forth in the said
recommended Order, as herein modified:
1. Delete paragraph 1(d) of the Administrative
Law Judge's recommended Order and reletter the
succeeding paragraph accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
' We find unnecessary, and do not rely upon, the Administrative Law
Judge's finding that Service Manager Fields' telling employee Hampton
following the Union 's winning the election in May 1973 that the employees
would not receive a wage increase for 5 years was violative of Sec. 8(a)(1) of
the Act. Such conduct was not alleged in the complaint , and was raised at
the trial for the first time more than 6 months after the statement was
allegedly made . Accordingly, the finding is deleted from the Administrative
Law Judge's Conclusions of Law 3(c).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discourage membership in
International Union of Operating Engineers,
Local 500D, AFL-CIO, or any other labor
organization, by discharging employees or other-
wise discriminating in any manner in respect to
their tenure of employment or any term or
condition of employment.
WE WILL NOT ask employees to report to us
what goes on at meetings of the above-named
Union.
WE WILL NOT threaten to discharge employees
who are members, or in favor of, said Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer Wilbur Eugene Hampton
immediate and full reinstatement to his former
job or, if such job no longer exists, to a
substantially equivalent one, without prejudice to
the seniority and other rights and privileges
enjoyed by him, and make him whole for any loss
of pay he may have suffered by reason of his
discharge, with interest at the rate of 6 percent per
annum.
All our employees are free to become, remain, or
refuse to become or remain, members of said Local
500D of the Operating Engineers, or any other labor
organization.
QUEEN CITY EQUIPMENT
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case litigated pursuant to
Section 10(b) of the National Labor Relations Act, herein
called the Act. 29 U.S.C. 160(B). It was commenced by a
complaint issued on August 29, 1973, by the General
Counsel of the National Labor Relations Board, herein
called the Board, through the Acting Regional Director for
Region 11 (Winston-Salem, North Carolina), naming
211 NLRB No. 35
QUEEN CITY EQUIPMENT CORP.
Queen City Equipment Corporation as the Respondent.
That complaint is base4,9n a charge filed on June 28, 1973,
by 'International Uilioii of Operating Engineers, Local
500D, AFL-CIO, herein called the Union.
In substance the complaint avers that Respondent
violated Section 8(a)(1) and (3), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7), of the Act. Respondent has answered , admitting some
of the allegations of the complaint but denying that it
committed any unfair labor practices.
Pursuant to due notice this case came on to be heard,
and was tried before me, at Charlotte, North Carolina, on
December 20, 1973. All parties except the Charging Union
were represented at and participated in the trial, and had
full opportunity to introduce evidence , examine and cross-
examine witnesses, file briefs, and offer oral argument. A
brief has been received from the General Counsel.
The case presents the issues of whether Respondent:
(a) Interrogated employees concerning their union
activity and that of other employees.
(b) Threatened employees that it was going to "get rid
of" all the union supporters.
(c) Directed employees to spy on union meetings and
union activities of other employees and to report these
activities to supervisors.-
(d) Promised employees better jobs if they would get the
Union out of the Company.
(e) Discharged employee Wilbur (Wilbert in the com-
plaint) Eugene Hampton because he engaged in union or
other concerted activity.
Upon the entire record in this case, and from my
observation of the demeanor of the witnesses , I make the
following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a North Carolina corporation, is engaged at
its Charlotte, North Carolina, facility in selling, servicing,
and renting industrial construction equipment . During the
12-month period preceding issuance of the complaint
herein, a representative period, Respondent sold and
shipped from its said Charlotte facility equipment and
materials valued in excess of $50 ,000 directly to points and
places located outside the State of North Carolina. During
the same period, Respondent caused to be shipped to its
said Charlotte facility equipment and materials valued in
excess of $50,000 directly from points and places outside
the State of North Carolina. I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction over
Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Case
1. The discharge of Wilbur Eugene Hampton
285
Hampton was hired by Respondent in June 1972. In
January 1973, he signed a union card. In March 1973,
Junior Fields, Respondent's service manager, requested
Hampton to attend union meetings and report to him what
transpired there. Hampton complied with such plea and
informed Fields of the happenings at said meetings. Later
in March, Fields informed Hampton that he was going to
give Hampton a raise in pay. That weekend Fields told
Hampton that he, Fields, "did not think the Union would
work down there;" he did not like the Union; he was
"going to get rid of those union mother f-ers;" and asked
Hampton to help him keep "these mother f-ers out of
here." Fields repeated this threat to Hampton "plenty of
times in March and April."
In May 1973, the Union won an election to represent
employees at the plant. Not long thereafter Fields
informed Hampton that the "union people," i.e., the
employees, would not receive a wage increase for 5 years,
and that Respondent would "drag it out as long as possible
in court." Then, in late May, Foreman Sarge Foster, a
supervisor within the meaning of Section 2(11) of the Act,
after being told by Hampton that the latter had voted for
the Union, asked Hampton why he had so voted. In late
May, Hampton told Foster that Hampton had signed a
union card. On June 15, 1973, Service Manager Fields
discharged Hampton, assigning as the reason therefor that
Fields "did not think that Hampton was happy there."
On cross-examination, Hampton testified that when he
was discharged he was told by Fields and Foster that his,
Hampton's,work was "slacking off," but that this was not
mentioned as a reason for his being fired.
Milford D. McDonald, an employee of Respondent,
testified that in early April 1973, Respondent's supervisor
over the mechanics, Junior Fields, about 4 to 6 weeks
before the election expressed to him the opinion that
Wilbur Hampton was one of the best and most enthusiastic
mechanics Fields had, and that Hampton would "take the
manual [put out by the tractor manufacturer] home and
look into it" whenever he had problems to solve. About 3
weeks before Hampton was fired on June 15, 1973, Fields
told McDonald, the latter describing himself as "the Union
representative," that Hampton's attitude "was getting kind
of bad towards his job . . . for the reason that on one
occasion they told him to put the clutch in backwards."
2. Alleged violations of Section 8(a)(1) of the Act
About July 30, 1973, Supervisor Junior Fields asked
employee Milford D. McDonald if employee Phil Salliti
was the ringleader of the Union and if Salliti had anything
to do with bringing the Union in. McDonald replied that
he, and not Salliti, was such ringleader . Other alleged
violations of this section of the Act are recited in
connection with the testimony of Hampton set forth above.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent's Defense
Respondent's president and general manager , Howard
C. Miller, testified in substance as follows . Hampton was
hired by Respondent as a mechanic trainee to work under
Service Manager Bob Melton and Shop Foreman Dave
Bention . In the beginning, Melton submitted favorable
reports on Hampton's performance . When Melton re-
signed he was replaced by Junior Fields . At first Fields
gave an account of Hampton 's performance to Miller to
the effect that Hampton "looked like he might be a pretty
good mechanic if he stuck to it and kept his mind to it."
Beginning "sometime in April" Field's appraisal of
Hampton changed . Thus Fields reported to Miller that
Hampton "had a very bad attitude , kept losing parts, parts
that were not readily available , and detained the repairing
of machines, that his work had gotten very sloppy ... and
that he would argue with other employees." When
Hampton was discharged Miller was informed that the
reasons therefor were "his attitude was bad ; his work was
sloppy ; he would come to work looking like he had been
out all night ; wasn 't ready to go to work; he was
argumentative with many of the other employees and just
bad conduct in general."
Although Miller was aware of a union organizing drive
prior to Hampton's discharge , Miller at no time had
knowledge of how Hampton felt about the Union . In fact
employee James T . Foster, who later became shop
foreman , told Miller that Hampton "definitely was not
interested in the Union, that he [Hampton ] had talked to
him [Foster ] outside and said that he [Hampton ] was not
interested in the Union in any form , shape, or manner and
hoped he [Foster ] didn 't vote for the Union."
Another witness for Respondent was James T. Foster.
An adequate summary of his testimony follows . On May 7,
1973, he was made shop foreman , and in this capacity
admittedly is a supervisor within the meaning of Section
2(11) of the Act. Prior to this he served as a welder-
mechanic for Respondent . Before Foster was promoted to
foreman , Hampton once told him that he hoped that
Foster did not vote for . the Union , asserting that he,
Hampton , "could not see where we needed it" and that he
wasn't interested in it . Foster conveyed this information to
Respondent's president, Miller. A day or two after he
became such foreman , Foster spoke to Hampton about the
latter's work habits because , although Foster knew that
Hampton "could do better," he observed that Hampton's
"attitude was kind of changing a little bit . . . and I
couldn't understand why he wasn 't doing better work."
According to Foster , Hampton "always had problems,
constant problems . . . and we tried to work out the
differences and tried to help him in any way that I could
and still would probably."
After the foregoing talk, Hampton told Foster that he
"would try harder" and, according to Foster, Hampton
"did for two or three days , and his attitude changed; and
then all at once , it seemed like he would get in a slump
again." Between 3 and 5 weeks later, Foster again spoke to
Hampton about the latter's bad performance and attitude.
This was around May 15, 1973. During this conversation,
Foster stressed that Hampton's "work habits were getting
very, very poor and needed to improve . . . and his
attitude was bad." This caused Hampton to assure Foster
that he would try to do better . Then Foster warned
Hampton that if the latter did not improve "we would have
to do something because we could not continue on this line
of thought." Hampton replied, "Well, if I don't improve
within the next week or ten days , I will just resign."
Notwithstanding Hampton's promise to better discharge
his duties , his attitude and performance during the next 30
days did not change in Foster 's opinion. Accordingly,
Foster reported this to Service Manager Junior Fields.
Then, on June 15 , 1973, Fields , in the presence of Foster,
told Hampton that he , Fields, did not think that Hampton
was happy on the job , that Hampton 's work "had gotten
sloppy," that Hampton was losing parts , and that "we got
to do something about it if [Hampton] couldn't improve
himself." When Hampton asked Fields "for specifics,"
Fields mentioned Hampton 's so bungling the William
Septic Tank 450 job that Hampton took about 2 weeks on
it when it required no more than 3 or 4 days . According to
Foster, this ineptitude , which he characterized as "sloppy
work" on Hampton 's part, not only "cost the company
about thirteen or fourteen hundred dollars, or therea-
bouts," but it required Foster to "spend an inordinate
amount of time supervising" Hampton.
At the close of the foregoing occasion , Hampton asked
Fields, "Have you got my check?" Thereupon Fields
replied in the affirmative and at the same time handed a
check to Hampton . At this point , Hampton requested a
statement of why he was dismissed , and then he left.
Although as above recited Hampton told Foster at first
that Hampton was not for the Union , Hampton did
apprise Foster about May 15 , 1973 , that Hampton was for
the Union and that he voted for it. At this time Foster was
shop foreman . Foster soon acquainted President Miller
and also Service Manager Fields of this fact.
Another witness for Respondent , Lawrence Fields, also
known as Junior Fields , gave testimony which may be
encapsulated as follows . He has been Respondent's service
manager since February 27 , 1973. According to Fields, the
"attitude and performance" of Hampton prior to May
1973, "some days ... would be real good and other days it
would be bad . . . it was really hard to observe his working
habits and his attitude . . . from week to week ; you had to
do it on a day-to-day basis because it was changeable."
However, by the latter part of March or April Hampton's
work and attitude "became consistently poor ." Among
Hampton's faults which Fields described was an inability
to "keep up with his parts ; he had many parts missing .. .
they would get misplaced and we couldn 't find them after
he had received them ." In addition, "people in the shop"
complained to Fields that Hampton's "attitude is real bad"
and that his performance was unsatisfactory.
Fields made the decision to discharge Hampton after
Foreman Foster complained that Hampton "is requiring
too much supervision and I have got other people in the
shop . . . that I have got to consider . . . I just can't
continue with him . . . it don't look like there is going to be
any improvement . in his working habits." But just
before such firing was imposed , Fields first talked to
Hampton about mid-June 1973. In this conversation,
Fields remarked that "you are just not happy." But
QUEEN CITY EQUIPMENT CORP. 287
Hampton's being for or -against the Union did not play a
part in the decision to fire him. When Hampton wanted to
know "what's wrong," Fields replied that Hampton "is
requiring too much supervision, and it is taking too long to
do some jobs, and you are losing too many parts," and
mentioned some specific instances substantiating this
conclusion. Fields took Hampton's attitude into considera-
tion in deciding to dismiss him. Thereupon Hampton
asked Fields, "Have you got my check?" Upon receiving
an affirmative answer, Hampton said, "Let me have it." So
Fields handed him the check, and Hampton then left.
Fields denies that he (a) told Hampton that he, Fields,
was "going to get rid of all those union mother f-ers," (b)
asked Hampton to help him get rid of such union
employees, and (c) asked Hampton to attend union
meetings and report to him what transpired there.
Nevertheless Hampton voluntarily and without prodding
by Fields "on several occasions" reported to Fields on
union activities . Fields further denied that he at any time
(a) promised employees better jobs if they would get the
Union out of the Company, or (b) promised them anything
if they would get the Union out. But he admitted he spoke
to employees "about the benefits and so forth . . . and told
them, some of them I couldn't see where the Union was
going to benefit them because the Company already had a
good program and they had many other things in mind,
you know, planned; and I didn't go into detail about all of
that." I find that this last statement is protected by Section
8(c) of the Act and, consequently does not contravene said
Act.
Fields gave the following version of the July 30, 1973,
meeting in President Miller's office about which General
Counsel's witness Milford D. McDonald had previously
testified. McDonald asked to come to said meeting to
represent employee Ivy Coleman, and Fields granted this
request because McDonald "was involved with the Union
at that time." In fact McDonald described himself as a
union representative in the shop. Fields believes that on
this occasion he did not ask McDonald about Salliti's
connection with the Union; but Fields did testify that he
put such a question to McDonald sometime before said
meeting . But Fields insisted that in talking about Salliti
"we were very casual; it was open and we talked freely,
Mac and I do; we had a fairly good relationship."
When asked on cross-examination why he asked McDo-
nald if Salliti was the "ringleader" of the Union, Fields
replied, "I was just curious to know; nobody volunteered
to tell you anything, they always do it and then tell you;
and I was just inquisitive; it really didn't matter but I just
thought that I would like to know."
Also on cross-examination, Fields stated that Hampton,
prior to being discharged, had told the shop foreman that
Hampton was a member of the Union, and "the shop
foreman had related this message to" Fields. On another
occasion Hampton told Fields that the Union was "in."
Finally, on cross-examination Fields conceded that at no
time prior to June 15, 1973, at which time he discharged
Hampton, did he ever discuss with Hampton the latter's
shortcomings as an employee although the shop foreman
"had counseled [Hampton] twice."
Respondent's final witness was Joseph M. Meldrich, its
comptroller. An adequate abridgment of his testimony
ensues . He explained that Fields would ask him for checks
of employees with whom Fields intended to discuss
inadequate work performances; and that if, after talking to
them, Fields was convinced they should be retained, said
checks would be marked void. See Respondent's Exhibits
la and lb for examples of such void checks. But when
Fields felt that an employee for whom a check had been
made out would not improve, Fields gave such employee a
paycheck at the conclusion of the meeting with such
employee. This was the case with employee Hampton. It
also explains why Fields had a paycheck ready for
Hampton when Fields spoke to him on the day Hampton
was terminated, according to both Fields and Meldrich.
C. Concluding Findings and Discussion
In arriving at the findings made in this subsection C, I
have observed and been guided by the following basic
principles of law. (a) The burden of proof rests upon the
General Counsel to establish the allegations of the
complaint, so that the Respondent at no stage of the trial is
required to disprove any of said allegations. (b) The
noncrediting of some of Respondent's evidence, or the
failure of Respondent to establish one or more of its
defenses, does not constitute affirmative evidence which
will contribute to establishing the General Counsel's case.
Such "negative evidence," as some courts refer to it, cannot
supply the proof essential to sustain the allegations of the
complaint. (c) The findings below are based on testimony
which I have credited in those instances where dispute has
arisen as to the facts.
1. As to the discharge of Wilbur Eugene
Hampton
Upon evaluating the entire record in this case I am
satisfied, and find, that Hampton was discharged for his
union activity and that the grounds given for his discharge,
i.e., that Hampton had become sloppy, was losing parts,
and was not happy on the job, are a pretext to mask the
actual reason . This ultimate finding is derived from the
entire record and the ensuing subsidiary findings which I
hereby find as facts.
a. Respondent entertained union animus . Patently this
alone cannot warrant a finding that Respondent violated
the Act, as Section 8(c) thereof guarantees to an employer
the right to express to his employees that he is opposed to
unions . N.L.R.B. v. Consolidated Diesel Electric Co., 469
F.2d 1016 (C.A. 4, 1972); N.LRB. v. Threads, Inc., 308
F.2d 1, 8 (C.A. 4, 1962). And it is settled that engaging in
union activity will not immunize an employee against
being discharged for a valid cause . P. G. Berland Paint, 199
NLRB No. 45. Yet an employer's dislike of unions
communicated to his employees is an element which may
be considered, along with other pertinent evidence, in
ascertaining the actual reason underlying an employee's
discharge. Maphis Chapman Corp. v. N.LR.B., 368 F.2d
298, 304 (C.A. 4, 1966), where the court held that
"animosity and hostility" towards unions have " signifi-
cance" in Section 8 (a)(3) cases.
b. 'Hampton was active on behalf of the Union and
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had knowledge thereof. Obviously the dis-
charge of a strong union advocate constitutes a highly
effective means of frustrating a union organizational effort.
Upon this aspect of the case I am aware that employers
rarely disclose discriminatory motives in terminating union
protagonists; but "such purpose may be shown by
circumstantial evidence ." Corrie Corporation v. N. L.R.B.,
375 F.2d 149, 152 (C.A. 4, 1967). "Nowadays it is usually a
case of more subtlety ...." N.L.R.B. v. Neuhoff Bros., 375
F.2d 372, 374 (C.A. 5, 1967). Thus I believe, and find, such
subtlety was resorted to when Hampton was discharged for
supposedly not being happy on his job.
c. I find that no impartial investigation concerning
Hampton's so-called unworthiness was made by Fields
before discharging Hampton . It is true that the shop
foreman, according to Fields, twice spoke to or "counseled"
Fields about Hampton, but Fields did not communicate
this to Hampton until just before terminating Hampton.
Failing to conduct an impartial inquiry into an employee's
alleged unfitness to hold a job amounts to evidence of a
discriminatory intent . N.L.R.B. v. Robertshaw Controls
Company, Lux Time Division, 483 F.2d 762, 765-766 (C.A.
4, 1973) N.L.R.B. v. Murray-Ohio Mfg. Co., 358 F.2d 948,
950 (C.A. 6, 1966); Norfolk Tallow Co., 154 NLRB 1052,
1059.
In this connection I also find that at no time prior to his
discharge was Hampton alerted to the possibility of losing
his job if his alleged unsatisfactory performance continued.
Evidence not consonant with this finding is not credited.
Failure to warn under these circumstances warrants the
inference-and I draw it-that an antiunion motive played
a substantial part in the decision to discharge Hampton.
Although Respondent contends that no intent to
discharge Hampton is displayed by having his paycheck
made out before discharging him, and offered evidence
that this procedure had been followed in the case of two
other employees, I find that this is not conclusive. Rather I
find that Respondent seized upon Hampton's unsatisfacto-
ry work as a pretext to discharge him for union activity,
and that the cases of the other two employees exemplified
by its Exhibits la and lb do not destroy or undermine the
foundation for finding such pretext.
d. Assuming that valid grounds existed justifying
Hampton's being dismissed, it does not follow that he was
lawfully discharged. This flows from the rule that merely
because lawful reasons to discharge an employee have
occurred they provide no defense to a charge that such
termination was motivated in part by the employee's union
activity when such charge is supported by the record.
A corollary of the foregoing rule is that in order to find
Hampton's discharge to have been discriminatorily im-
pelled it is not necessary to find that his union activity be
the only element responsible for his being terminated. It is
enough to establish that his discharge contravened the Act
to find that his union activity was a substantial or
motivating ground for such discharge notwithstanding that
a valid ground may have arisen for invoking disciplinary
measures . N.L.R.B. v. Lexington Chair Co., 361 F.2d 283,
295 (C.A. 4, 1966); N.L.R.B. v. Symons Mfg. Co., 328 F.2d
835, 837 (C.A. 7, 1964). And I expressly find that
Hampton's union activity played a substantial or motivat-
ing, but not necessarily the only, part leading to his
discharge. Cf. N.L.R.B. v. Murray-Ohio Manufacturing
Company, 358 F.2d 948, 950. And I so find even though
Hampton's work performance may actually have deterio-
rated. See N.L.R.B. v. Murray-Ohio Mfg. Co., 326 F.2d 509,
516 (C.A. 6, 1964). 1 have not overlooked, but find
inapplicable on the facts found herein, the principle that I
may not question the severity of the penalty imposed upon
Hampton for improper work performance, for an employ-
er's judgment in selecting and applying disciplinary
measures is an "unfettered right" which may not be
reviewed, revised, or modified in this proceeding. N.L.R.B.
v. United Parcel Service, 317 F.2d 912, 914 (C.A. 1, 1963);
N.L.R.B. v. Ace Comb Company, 342 F.2d 841, 847 (C.A. 8,
1965).
2. As to alleged violations of Section 8(a)(1) of
the Act
In March 1973, Respondent's service manager, Junior
Fields, solicited employee Hampton to report to Fields
what went on at union meetings. I do not credit the denial
of Fields on this issue. And I find that such request is
forbidden by Section 8(a)(1) of the Act. On another
occasion in March, Fields promised Hampton a raise in
pay. But I find that merely making such a promise, without
more, does not contravene the Act. On still other occasions
Fields communicated to Hampton a dislike of unions,
stating that he thought a union would not work in the
plant, asked Hampton to help him get rid of "these union
people," and said that he, Fields, was going to get rid of
"those union . . . people." This is a threat of reprisal
contravening Section 8(a)(l) of the Act, and I so find. The
testimony of Fields inconsistent with said finding is not
credited.
Following the Union's winning the election in May 1973,
Fields told Hampton that the employees would not receive
a wage increase for 5 years and that Fields would "drag it
out as long as possible in court." I do not credit that part of
the testimony of Fields gainsaying said utterance. I find
that this statement of Fields has the attributes of a reprisal
which runs afoul of Section 8(a)(1) of the Act. At another
time admittedly Fields asked employee McDonald about
employee Salliti's connection with the Union and if Salliti
was its ringleader. This inquiry is not coercive and,
therefore, I find it does not collide with the Act.
In a conversation in late May 1973, Hampton told
Supervisor Foster that Hampton had voted for the Union.
This caused Foster to ask why Hampton had so voted.
Since Hampton brought up the subject, I find nothing
coercive in Foster's joining in it and propounding such
inquiry. Accordingly, I find that Foster's question is not
unlawful and therefore does not violate the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
QUEEN CITY EQUIPMENT CORP. 289
tend to lead to labor disputes burdening and obstructing.
commerce and the free flow of commerce.
V. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that it
take specific action, as set forth below, designed to
effectuate the policies of the Act.
In view of the finding that Respondent unlawfully
discharged Wilbur Hampton, it will be recommended that
it be ordered to offer him immediate and full reinstatement
to his former position, or, if such is not available, one
which is substantially equivalent thereto, without prejudice
to his seniority and other rights and privileges. It will be
further recommended that Hampton be made whole for
any loss of earnings suffered by reason of his discharge.
In making Hampton whole Respondent shall pay to him
a sum of money equal to that which he would have earned
as wages from the date he was terminated to the day he is
reinstated or a proper offer of reinstatement is made, as the
case may be, less his net earnings during such period. Such
backpay, if any, is to be computed on a quarterly basis in
the manner established by F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent calculated
according to the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. It will also be recommended
that Respondent preserve and make available to the Board
or its agents , upon reasonable request, all pertinent records
and data necessary to aid in analyzing and determining
whatever backpay, if any, may be due. Finally, it will be
recommended that Respondent post appropriate notices.
The discriminatory discharge of Hampton goes "to
the very heart of the Act." N.L.R.B. v. Entwistle
Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941).
Accord: N. L. R. B. v. United Mineral & Chemical Corp., 391
F.2d 829, 837-838 (C.A. 2, 1968). Consequently, the
Board's Order should be sufficiently comprehensive to
prevent further infraction of the Act in any manner. I shall
so recommend. Cf. R & R Screen Engraving, Inc., 151
NLRB 1579, 1587.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By engaging in the following conduct Respondent
committed unfair labor practices proscribed by Section
8(a)(1) of the Act: (a) asking employee Hampton to report
to Fields what went on at union meetings; (b) threatening
to get rid of employees who are members, or in favor, of
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
the Union; and (c) threatening to deny pay raises to
employees because they voted the Union into the plant.
4. By discrimination in regard to the tenure of
employment of Wilbur Hampton, thereby discouraging
membership in the Union, a labor organization, Respon-
dent has engaged in an unfair labor practice condemned
by Section 8(a)(3) and (1) of the Act.
5. The foregoing unfair labor practices affect com-
merce within the purview of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair
labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER'
Respondent, Queen City Equipment Corporation, Char-
lotte, North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other
labor organization by discharging employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(b) Asking employees to report to it what went on at
union meetings.
(c) Threatening to discharge employees who are mem-
bers, or in favor, of the Union.
(d) Threatening to deny pay raises to employees because
they voted the Union into its plant.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Wilbur Eugene Hampton immediate and full
reinstatement to his former job, or, if that job no longer
exists, to a substantially equivalent one, without prejudice
to the seniority and other rights and privileges previously
enjoyed by him, and make him whole for any loss of pay
he may have suffered by reason of Respondent's discrimi-
nation against him, with interest at the rate of 6 percent as
provided in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to ascertain the amount, if any, of backpay due under the
terms of this recommended Order
(c) Post at its premises at Charlotte, North Carolina,
copies of the notice marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for Region
11, after being signed by a duly authorized representative
of Respondent, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
2 In the event the Board's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days thereafter, in conspicuous places, including all places (d) Notify the Regional Director for Region 11, in
where notices to employees are customarily displayed. writing, within 20 days from receipt of this Decision, what
Reasonable steps shall be taken by Respondent to insure steps have been taken to comply herewith.
that said notices are not altered , defaced , or covered by IT IS FURTHER ORDERED that the complaint be dismissed
any other material . insofar as it alleges violations of the Act not found herein.