Tierney Electrical Manufacturing. Co

National Labor Relations Board - Board Decisions

Jul 26, 1971

192 N.L.R.B. 229 (N.L.R.B. 1971)

TIERNEY ELECTRICAL MFG. CO. 229
Tierney Electrical Manufacturing Company and Inter-
national, Brotherhood of Electrical Workers Local
46, AFL-CIO. Case 19-CA-4887
July 26, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 4, 1971, Trial Examiner George
Christensen issued his Decision in the above-entitled
proceeding, 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
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General Counsel
filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the- provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent they are consistent'with
the following:
1. We find, in agreement with the Trial Examiner,
that the Respondent, in its July 10, 1970,1 meeting of
employees, conveyed an implied threat of discharge,to
any employee who continued to support the Union
and failed to support the Tierney Employees' Council,
and thereby violated' Section 8(a)(1) of the Art. We
also find that the Respondent violated Section 8(a)(2)
and (1) of the Act by forming, dominating, and
assisting the Tierney Employees' Council'2 - -
2. We do not agree with the Trial Examiner that
the Respondent constructively discharged James
Rowe on July 20 because of his status as the Union's
leading supporter and his opposition to the Respon-
dent's efforts to foist the Tierney Employees' Council
on the employees.
As found, by the Trial Examiner, on May 1-6, 1969,
Rowe received his first, written warning notice from
the Respondent. During the 6 weeks preceding this,
notice, Rowe was absent for 6workdays; , on the 24
days he did work, he was late in reporting to work in
the morning 16 times and late reporting back from
lunch 12 times.
The Respondent's rules require that employees
punch timeclocks on commencing- work in' the
morning, on leaving work for lunch, on'returning to
work from lunch, on leaving in the afternoon, and, on
a separate section of the timecard, on commencing
and completing each job.-Employees are also required
to write in the number relating to such job so that an
allocation of labor costs can be made.
On March 12, and again on March 17, Rowe
received verbal warnings for failure to follow the
Respondent's rules regarding-the punching of time-
cards. During the 9 week s prito April 16, Rowe
wrote rather than punched the time he, allegedly
returned from lunch'on five occasions, and punched
in and out for lunch at the same time on 15 occasions.
Because of these continued violations of ; Respon-
dent's rules and also because Rowe took a production
problem to higher supervision rather than to his
foreman as required by Respondent's regulations,
Rowe wasissued his second written warning notice on
April 16.
It is not alleged that the issuance of any of the verbal
or written warnings mentioned above was discrimina-
torily motivated. Moreover, it is undisputed that
Rowe continued to violate the Respondent's rules
regarding timecards subsequent to the April 16
written warning. In these circumstances, we do not see
how Rowe's failure to punch in after lunch on July 17
can be characterized by the Trial Examiner as so
trivial as to imply a discriminatory motivation.
While it is true that Rowe was active on behalf of
the Union, campaigned against the formation of the
Tierney Employees' Council, and, along with several
of his fellow employees, demonstrated; his lack of
support for the Council, there is no substantial
evidence, that, the Respondent held any union animus
against Rowe for these activities. In fact, Rowe
admitted that, while, he was the only employee who
refused to participate in the July 17, meeting to elect
the Council's representatives, President Baker told
him while the voting was in progress that if he did 'not
wish to participate this was acceptable to Respondent.
Because of Rowe's'continued and flagrant violation
of Respondent's rules, and because of the lack of
evidence either of ' any substantial union animus
i Unless otherwise indicated, all dates occurred in 1970 . Show Cause was served on Tierney Employees ' Council and the other
2 In making such a , finding we are mindful of the ,fact that the Tierney parties hereto, to show cause in writing , why, in light of the fact that no
Employees ' Council was not served with a copy of the complaint in this exceptions had been filed with respect to the Trial Examiner's 8(ax2) and
matter as provided in Sec: 102.15 of the National Labor Relations „Board (1) findings , these " finding's should not be adopted by the Board. The
Rules and Regulations, Series 8, as amended. On June 2 , 1971, Notice to Notice To ShowCause was not answered.
192 NLRB No. 41
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward Rowe or of disparate-treatment imthe issuance
of ' the, 1-week suspension given hint on July 20; we
find' that'the General Counsel has not sustained his
burden, of proving discrimination in- the issuance of
this suspension. We shall dismiss that allegation of the
complaint. It follows that Rowe's quitting his employ-
ment in :,protest, of this suspension was not a
constructive discharge. We shall dismiss that allega-
tion of the; complaint as well.
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-
edOrder of the Trial, Examiner, as modified below,
and -hereby orders that the Respondent, Tierney
Electrical "Manufacturing , Company, its officers,
agents, successors , and assigns, shall take the action
set forth in `the.Trial Examiner's recommended Order,
as somodified:
1. Delete paragraph I (d).
2. LL Delete paragraphs 2(b) and 2(c) and redesignate
paragraphs 2(d) and-2(6) as paragraphs 2(b) and 2(c),
respectively.
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
,APPENDIX
NOTICE TO EMPLOYEES
POSTED BY, ORDER OF THE
NATIONAL LABOR ' RELATIONS , BOARD
An Agency of the United States Government
WE WILL` NOT `dominate the formation or
administration of the Tierney Employees' Council
nor contribute unlawful-supportor assistance to it.
WE WILL NOT threaten any employee with
discharge for ' •supporting International Brother-
hood of Electrical Workers Local 46, AFL-CIO,
and/or refusing to support the Tierney Employees'
Council.
WE WILL withdraw and withhold all recognition
from 'the` Tierney Employees' Council as the
bargaining- representative of our employees for the
purpose' of` dealing' with us concerning g rievances,
labov,disputes, wages, rates of pay, - hours of
employment, or other terms- or conditions of
employment and, W E'"WILL completely disestab-
lish that organization as-such representative.
TIERNEY ELECTRICAL,
MANUFACTURING'
-COMPANY
(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_concerningrths notice or compliance
with its provisions may be directed to the Board's
Office„ Republic Building, 10th Floor, 1511 Third
Avenue, Seattle, Washington 98101, Telephone
206-583-45,32.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN,, Trial Examiner: The Complaint
in this case issued on August '24, 19`'70,1 alleging that the-
Tierney Electrical- Manufacturing Company 2 violated-
Section 8(a)(1), (2), and (3) of the National Labor Relations
Act, 'as amended (herein the Act) by: (1) forming;
dominatmg,_ and assisting the Tierney Employees Council
(herein the Council) to succeed'the International'Brother-
hood= of Electrical Workers Local 46; AFL-CIO3 in
representing its employees in- dealing with the Company
regarding the employees' wages, hours, and working
conditions, (2) threatening to discharge employees .-who
failed to desist from supporting the Union and/or failed or
refused to r support the Council, and (3) constructively
discharging lames Rowe because of support of the 'Union
and opposition to the Council.
It was either stipulatedor conceded that the charges were'
duly `filed and served,4 that the jurisdictional facts and
conclusions, set out in the Complaint were true and correct,'
that '=the Union' at':-all -times pertinent", was, a labor
organization as that term is defined in Section 2(5) of the,
Act, that the' Union was the exclusive collective-bargaining
agent of the production ',and maintenance employees. of the
Company between December 24, 1968, and May' 11, that
' All dates are 1970,,,unless otherwise stated. TheUnion filed,the original,
charge on July 23 and an amended charge on August 24.
2 Hereafter called the Company.
3 Hereafter called the Union.
4 The; Company moved, to dismiss those portions of the Complaint
alleging that the Company violated the Act by constructively discharging
Rowe .' Company' Counsel contended that such allegations should be
dismissed because the 'Board is 'barred by the Act from, prosecuting -unfair
labor practice complaints on its own motion and asserted that the amended
charge containing the Rowe allegation was solicited by a Board agent after
completion of 'the' Regions investigation of the original charge.` No
evidence was produced to support the assertion . The Region has broad
discretion to include within ` a complaint any violations disclosed 'by its
investigation of the 'original r charge and there ' is a, presumptively valid
amended charge ^ executed by the Union alleging that the Rowe mordent
constituted a constructive discharge in violation of the Act. The motion is
denial.
TIERNEY ELECTRICAL MFG. CO. 231
the Union was decertified as such representative on July 6
(Case 19-RD-496), and that at all times pertinent William
Baker was the -Company's president, Leonard Faucher was
its vice president, Fred Kovar was its production manager,
Bernard Tomlinson was its foreman , and all of the
foregoing were Company supervisors within the meaning of
Section 2(11) of the Act. -
The Company denied that the Council was a labor
organization within the meaning of the Act, that it formed,
3olninated, or assisted the Council in representing its
employees, that it threatened ,its employees, or that it
constructively discharged Rowe, and it therefore requested'
dismissal of the Complaint.
The issues are: (1) whether the Council was a labor
organization within .the meaning of the Act, (2) whether the
Company formed, dominated, or assisted the Council as the
Union's successor, (3) whether the Company threatened its
employees with discharge for supporting the Union and/or
refusing or failing to support the Council, (4) whether the
Company constructively discharged Rowe for his support
of the Union and/or opposition to the Council, and (5)
whether by any, of.the above the Company violated the Act.
A hearing on the issues was held at Seattle, Washington,
on October 15 and 16. The parties appeared by counsel and
were afforded full opportunity to adduce evidence, to'
examine and cross-examine witnesses , to argue, and to file
briefs. Briefs have been received from the General Counsel
and the Company . Based upon his review of the entire
record, observation of the witnesses, perusal of the briefs,
and research, the Examiner enters the following:
FINDINGS- OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The jurisdictional facts and the qualification of the
Company as an employer engaged ' in commerce and the
Union as a labor organization , within the meaning of
Section 2(2),(5), (6), and (7) of the Act are conceded by the
Parties, and the Examiner so finds . The issue '-of the
Council's satisfaction of the labor organization definition
shall be treated and resolved below.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Background
At times pertinent to this proceeding the Company
employed approximately 40 persons, of which approxi-
mately 25 or 26 were employees engaged in production and
maintenance work. It was engaged in the business of
manufacturing electrical transformers, with about 75
percent of its, work on custom orders and the balance on
standard production items . There were three production
departments, namely, the-coil winding department, the core
cutting and sheet- metal 'department, and 'the assembly
department: the- management hierarchy, in a descending
order,, consisted of William - Baker, president, Leonard
Faucher, vice president, Fred Kovar,-production manager,
Bernard Tomlinson,,- foreman of the coil winding depart-
ment, Robert Creed, foreman of the core cutting and sheet
metal department, and Jerry Mallory, foreman of the
assembly department .5
The Union was certified by the Board as the exclusive
collective-bargaining representative of the -Company's
production and maintenance employees on December 24,
1968, after an election which it won by a narrow margin.
The Company and the Union-negotiated and executed their
first (and only) contract the following spring for a i-year
term extending from April 9, 1969, to April 9,1970. The
contract did not contain aunion-security provision.
The Union and the Company went into negotiations for a
new contract -in the spring -of 1970. By .April, they were in
general , agreement on economic -terms but were unable to
resolve their differences over the Union's demand for a
limited union shop, i.e., a provision requiring any present
members of the Union employed by the Company to retain
their membership as a condition of employment and
requiring new employees to acquire such membership. after
30 days of employment but excluding from such require-
ment present employees who were not members unless at
some future date they voluntarily joined the Union.
Following such deadlock, a decertification petition was
filed with the Board (on May 11). No negotiations were
conducted thereafter. An election was conducted on June
25 which the Union lost, again by a- narrow margin. A
certification of the results of the election was issued on July
6,1970.
B. The Alleged Threat, Domination, and Status of
the Council
Baker testified that because several-, employees ap-
proached him, both before and after the Union's decertifi-
cation, to -suggest the creation of a shop committee or
similar group to represent the employees in dealing with
management concerning- their problems, on-July 7 (one day
after issuance of the Board's certification of, the Union's
loss of majority representative status), he "took the bull by
the, horns and summarized the ideas that -had been
furnished to me by these fellows in the shop ... and
decided ... that we would have a general-meeting of all
the shop production employees on July 10." One employee,
Robert Potter, confirmed that he approached,Baker shortly
after the decertification election, but testified that what he
asked was whether Baker would approve the employees'
formation of some kind of a shop committee to seek better
wages and the like.
In any event, on or about July 7, Baker prepared a
document setting out the purposes, function, methods of
operation, and procedures for selection of- representatives
of an organization he titled the "Tierney Employees
Council." While he claimed most of the matters contained
in the document had been suggested to him by employees
over the years, he condeded the preparation of the
document and proposing its adoption by the employees
were solely his ideas. The document read as follows:
TIERNEY EMPLOYEES ' COUNCIL
1. WHAT ARE THE PURPOSES OF THE COUN-
CIL?
a. To improve mutual understanding and commu-
nication among all Tierney employees, whatever their
job.
5 Plus others whose titles and functions were not developed.
232 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
b. To provide an open two-way channel- .for
expression of settlement of employee, complaints.
c. To provide an open, two-way channel for advice
,and suggestions for changes and improvements,, in
wages, work rules, working conditions and disciplinary
procedures.
`d. To provide an open , two-way channel for
explanation of standard Company rules and policies to
all employees.
e. To plan and co-ordinate whever recreational and
social activities,-are desired, such as bowling, Christmas
party, picnic, service awards, newsletter, etc.
2., WHO WILL BE ON THE COUNCIL? ,
a. Three representatives elected from the ranks of
all Tierney employees,' with the exception of office
employees. , ,
3.- WILL EACH COUNCILMAN REPRESENT
ONLY ONEDEPARTMENT?
a. No. All.three Councilmen will be elected by
secret ballot vote of ALL employees.
4. :-IOW WILL COUNCILMEN BE ELECTED? ,.
a. By a- secret-ballot vote held some time during
normal working- hours. After the first election, an
election, will, be held every, four months to elect one
Councilman to fill the vacant position.
b. The man receiving the greatest number of votes
wins.
5. HOW LONG WILL COUNCILMEN SERVE ON
THE-COUNCIL? -
,a. Themormal term of office will be one year. The
only exception Twill be for two of the three Councilmen
elected at thefirst election. , ^ - -
b. , In the first election, the man receiving the largest
number of votes will serve as Councilmen,for one year.
The man'receiving the second-largest number of votes
will serve for eight months, and theman receiving the
third-largest number of votes will serve for four months.
In all subsequent elections, all Councilmen will' be
elected for-'a term of one year. This arrangement will
provide for-at least two experienced men on the Council
at all times.
6. WILL COUNCILMEN BE ELIGIBLE FOR RE-'
ELECTION?
a. Yes. As long as a Councilman is doing a good job
of representing the employees, and he wants to continue
in his Council position, there is nothing to prevent him
from being re-elected. _.
-7. WHAT HAPPENS IF THERE IS A VACANCY
ON THE COUNCIL? ,
a. If there is a vacancy on the Council because, of
resignation, termination or other cause, another election
will ,be held within two weeks to elect another
Councilman to serve out the unexpired term.
8. WHAT ARE THE COUNCILMEN EXPECTED
TO DO?
a. The Councilmen will be expected to meet as a
group regularly with the employees to:
- (1) Listen to, understand, and where possible, solve
complaints.
6 The Company did not produce any evidence in support of this
contention ; in fact, Baker testified that he did not know whether or not
(2) Listen to , and understand suggested{ improve-
-,ments and changes in wages,,, work, rules, working.
,conditions and disciplinary procedures, for-the good of
all employees.,
(3) Pass along to the, employees any information
concerning Company policies, business conditions,
future plans, etc., which they feel is`important.
(4) Find ,out the desires of the employees with regard
to any recreational or social events or'programs.
b. The councilmen' will be' expected to meet as,' a
group regularly with Company Management to:
(1) Advise Management"on improvements and
changes in work rules, wages, working ,conditions' and
disciplinary, procedures.
(2) Pass along information on employee complaints.
Discuss those employee complaints solved by the
Council, and provide information and background on
employee complaints not solved by the' Council along
with recommendations for-proper solution. , " -
(3) Discuss Company policies, business conditions,
future plans, etc., so that these can be presented tot he
employees.
(4) Pass 'along information concerning employee'-
'desires on social and recreational events and programs,
along with recommendations for action.-
On completing the document, Baker caused a notice to be
posted on the employees' bulletin board reading as follows:
NOTICE
7/8/70
There willbe ageneral meeting of all employees with
Bill Baker, Len Faucher and Fred Kovar at 3:00 p.m.
on Friday, July 10th., in the shop.
The purpose of the ' meeting is to discuss the
formation of an employees' representation group.
Please do'not punch out until the meeting is over.
The meeting was held as scheduled. The `departmental
foremen and the production and maintenance employees of
the Company attended, as well as Baker, Faucher, and
Kovar.
Baker chaired the meeting and spoke, using a blackboard
for illustration purposes: He drew two series of circles with
arrows on the Board, one series pointing to the right and the
other to_ the 1'eft, plus a large arrow, pointing right.. He-
described the two series as demonstrative of the two hostile
groups existing, among the employees due, to -respective
pro- and anti-union sentiments, and the large^ arrow-as
representing progress, or the "right" direction. He stated,,
that ,the friction generated by the division among the
employees had an adverse effect on both morale and
production,6 that it would not 'be tolerated, and that it
would be, eliminated, at the same time changing the
direction of most of the=arrows pointing left,to point to the
right and ,finally erasing the few remaining circles contain-
ing, arrows pointing in the "wrong" direction (left).
Baker next read the various sections of the documentrhe
had prepared earlier (set out above), explained their,
production dropped in the period dating from the Union's certification
(December 24,1%8) and its decertification (July 6, ,1970).,
TIERNEY ELECTRICAL MFG. CO. 233
meaning and intent as he read down , expressed his
endorsement of the proposals therein contained, and had
Kovar distribute copies. He then asked for comments. A
few employees indicatedtheir endorsement of the proposal.
Baker asked for a show of hands of those in favor of the
proposal . A majority of those attending the meeting held up
their hands (about 17 of 26). Faucher then took charge and
explained the mechanics of the election to be held under the
terms of the document.
- Rowe attended the meeting . He did not hold up his hand
and, in Baker's words, "indicated his disdain of the Council
or the committee by getting up, throwing his cigarette on
the floor and crushing it out with his foot."
The meeting concluded about 3 :30 p.m.7 The employees
then punched out. They were paid by the Company for the
time spent attending the meeting.
On July 13 , Kovar distributed to -each employee a
;document with boxes for marking whether -, or not the
-employee desired nomination as a candidate for one of the
three Councilman positions described in the' Baker
proposal . A space was 'provided for signature. Kovar
subsequently collected the documents . Later in the day a
notice was posted by management on the employees'
bulletin board listing 12 candidates for the 3 positions,
including Jerry Mallory, a foreman , and notifying the
employees that an - election of I' of the 12 for the
Councilman positions under the procedure outlined in the
Baker proposal would be conducted at 11 : 30 aim . on July 17.
The employees assembled for the election at the
appointed time . Baker instructedthem to line up single file,
passed out ballots , and told them to mark their -ballots at
an -adjacent ' table and drop them into a box on the table.
The employees complied with his instructions . Following
the completion of the balloting , Baker, with the assistance
of several employees , tallied the ballots . Rowe participated
in the initial assembly and tried to persuade
(unsuccessfully) several employees not to vote . He did not
vote and returned to his workplace and went to work
before the balloting was completed . He was the only
employee who did not vote (except for one absentee). Both
Kovar and Baker approached Row at his workplace and
urged him to vote but he -persisted in hi s refusal to
particpate in the election. After the tally , Met Gibb, Don
Mayer, and Fred Miller were declared elected.s The
employees were paid ` for the time spent -at the election.
Some time later , Uibb, Mayer, and Miller conferred'at
Gibb's work station and decided to take up two proposals
with management; first, to propose that since there was to
be a new slate, °the past be stricken and all previously issued
letters of reprimand or warning notices be destroyed and
not used against employees, and second, to propose a wage
-increase to match their increased cost of living . They were
paid for the time they conferred.
On July 20, Miller and Gibb9 met with Baker , Faucher,
and Kovar and presented their proposals. The Company
officials refused to accede to the first proposal , stating their
reasons therefor, and stated that a cost of living increase
would be considered as soon as the next published -figures
of the Bureau of Labor Statistics became available. A third
subject (actually related to the first one) was broached by
Gibb and Miller; they declared it was general knowledge
that it was Company policy to discharge on a third letter of
reprimand or warning notice and requested that the policy
be changed to suspension instead of discharge at the third
warning, on the ground this might improve performance
and avoid the harshness of a discharge. The proposal was
discussed and the management reaction was favorable.
Gibb and Miller were paid for the time spent at the
meeting.
Putting together Baker's preparation, presentation, and
advocacy of the document establishing the Council,
declaration of the Company's intention to eliminate anyone
continuing to pull in the "wrong" direction (Symbolized by
the erasure of those circles containing arrows pointing to
the left after retaining those circles who left-pointing arrows
were reversed to the right) at the July 10 meeting, an
unmistakeable message was conveyed-either abandon
identification with the losing Union (left-pointing) faction
and join the faction supporting the Company and the
Council (right-pointing) or out you go, and the Examiner so
finds and concludes. The Examiner further finds that the
Company's message conveyed a threat of discharge of any
employee who persisted in the exercise of his right either to
continue his support of the Union or to refrain from giving
support to the Council, or both, thereby violating Section
8(axl) of the Act.
Whether or, not some of the ideas contained in Baker's
July 7 proposal emanated from Company employees, it is
undisputed that it was Baker, and Baker alone, who put the
proposal together, called the employees together and placed
it before them, solicited their support-of-it, announced and
ran the election where the Council's representatives were
chosen, and paid the employees' `for attending the` meetings
when the proposal was adopted,• the election was conduct-
ed, and the representatives chosen met together and with
management. In these activities' he was actively aided both
by 'Faucher and Kovar, the former' setting out the
mechanics of the election and the latter soliciting
nominations for Council representative and distributing
Baker's proposal. It is further noted that the foremen
attended the July 10 and 17 meetings, and that-one of them
was a candidate for the Council. `
It is difficult to visualize how the Company by its top
officials could have done any more 'to create the Council,
spell out its function, and dictate its modus operandi.
The sole question remaining is whether the, Council
constituted a "labor organization" within the meaning of
Section 8(a)(2) of the Act. Section 2(5) of the Act defines as
a labor organization "any organization . . . agency .. ,
employee representation committee or plan, in which
employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work."
Certainly, Baker's July 7 proposal was, a plan, which
visualized and, upon its July 10 adoption, created with
T The shifthours were 7 a.m. to 11 am. and 11:30,a.m. to 3:30 p.m. term, and Gibb, with the third largest number to a 4-month term.
$ Miller received the most votes and was declared elected to a , full 1- 9 Mayer was on vacation.
year term; Mayer with the next largest number of votes to an 8-month
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee participation an employee representation com-
mittee , for. _ the purpose, inter alia, of dealing with the
Company concerning employee complaints or grievances,
wages, and employment conditions (see particularly para-
graphs 1.b., l.c., 8.a.(2), 8.b.(l) and 8.b.(2)). That the
employee representatives chosen under the plan so
understood their function is borne out by their first
proposals, one regarding disciplinary practices or, working
conditions and the 'other regarding wages. In fact,
management accepted the Council's modified proposal on
employee discipline, i.e., to suspend rather than discharge
as a step preliminary to discharge. '
Based upon the foregoing, the Examiner finds and
concludes that the Council was a labor organization within
the meaning of the Act' and that the Company by its
formation and domination of the Council and its assistance
thereof, including financial support, violated Section
8(a)(2) and (1) of the Act.
C. The, Alleged Constructive Discharge
James Rowe, was,hired by the ,Company in 195,9 as a coil
winder, and -worked for the Company continuously
thereafter except for one period when he quit the
Company's employ.
As earlier noted, the Union was certified by the Board as
the exclusive collective-bargaining representative of the
Company's employees on December 24, 1968, and entered
into a 1-year contract with the Company on April 9, 1969.
Rowe became a member of the Union and was appointed
as its shop steward in October 1969.10
On May to, 1969, Rowe,received his first written warning
notice,, from the Company, for frequent tardiness., During
the,6 weeks preceding he was absent for 6 workdays; on the
24 days he worked, he was late in ,reporting to work in the
morning 16 times and late reporting -back from lunch 12
times.
Rowe was active in soliciting employees of the Company
to become.,Union members, a fact known to Foreman
Tomlinson due to,. Rowe's appearance during the lunch
break, for the night shift (Rowe, was on the day shift) to
solicit employees working that shift. Tomlinson at that>time
was_working as a,foreman on the night shift, noted Rowe's
presence, and indicated to Rowe that he,had no objection
to Rowe's efforts so long as they were confined to
employees' nonworking-time.
Rowe also participated innew contract negotiations with
the Company through,, April of 1970 as. -a member of the
Union's negotiating committee.
On April 16, Rowe received his second written warning
notice from the Company for failing to make entries on his
10 He continued to so function until the filing of the decertification
petition (May 11).
11' Company- rules require that cards be punched at the Company's
timeclock on commencing work in ,the morning , on leaving work- for lunch,
on returning from lunch, and on leaving in the afternoon . As earlier noted,
the day shift begins at 7 a.m., the lunch'break extends from 11 a.m. to
11:30 a.m., and ' the' shift ends at-3:30 p in. Time entries by hand are
prohibited by Company rule-but are accepted, if lninaled 'by a foreman or
higher Company official. Rowe's handwritten entries were not mltialed,
and of course a double time stamp of the same time at the in and out
spaces for the lunch break made it impossible to ascertain when he actually
left and returned from his lunch break.
timecard properly and for going over the head of his
foreman (Tomlinson) - to higher supervision with a pro-
duction problem. During the 9 weeks prior to April 16, Rowe
punched in and out for lunch at the same time on 15
occasions, and wrote rather than punched,the time he
allegedly returned from lunch on 5 occasions.11 The day
after he was warned (verbally) about writing in time instead
of punching it, he failed to write in the job numbers relating
to his time card punches on that section of his timecard.12
Just prior to his receipt of the warning notice, he entered
the production manager's office and asked . a question
regarding a job he was working on of the ' production
manager's assistant, Jim Miller. Tomlinson was in the office
at the time talking to Kovar. Rowe stated his reluctance to
interrupt Tomlinson's conversation with, Kovar was the
reason he conferred with Miller, instead of Tomlinson, his
foreman at the time.-
Following the filing of the decertification petition on
May 11, Rowe campaigned actively for the Union and
acted as the Union's observer at the June 25 election.
As noted heretofore, both Rowe and Tomlinson attended
the July 10, meeting called by Baker to set up the Council.
Rowe did not raise his hand ,in support thereof, heard
Baker's threat to eliminate those who did not support his
proposal,13 and had his action in extinguishing a cigarette
interpreted by Baker as a public indication of Rowe's
disdain and .opposition to Baker's proposal. Rowe `and
Tomlinson also attended. the July, 17 meeting called _by
Baker to elect the Council's representatives, wherein Rowe
sought to persuade several employees not to participate.in
the election, left the scene of the meeting. before it ended,
and returned to work. Rowe neglected,-however, to punch
his timecard back in from lunch.-When he noted -that
failure on punching out to go home, he did not consider the
matter of any,great urgency and went home.
On his return to work on Monday, July 20, 3 days later,
the Friday (July 17) omission did not occur to him. When he
did remember it (at the lunch clockout), he still took no
action inasmuch as he knew the foremen picked up Friday's
timecards the first thing in the morning and checked for
and corrected any errors. Since Tomlulsonknew that Rowe
had worked the preceding Friday"y ' afternoon (in,, fact,
working more time than the other employees who stayed at
the July 17 meeting until its conclusion), he presumed that
Tomlinson would, make the appropriate notation on his
Card.14
Tomlinson took a very different -tack. On noting Rowe's
failure to punch back in after lunch the day of the meeting,
he took the card to Kovar and suggested .that Rowe be
discharged. Kovar relayed the suggestion to Baker. Baker,
with his meeting with the two Council, representatives
12 One section of the timecard was designed for using the timeclock to
punch the time commencing each job and completing it . It was necessary,
however, to write in the 'job numbers related to such punches. -
13 'An employee called by the' Company to testify , Potter, as well as
witnesses called by the, General Counsel (Rowe and Gibb),-testified to their
understanding of Baker's statements and board-=illustrations as tying in
failure to support the Council with removal from eipp loyment. That
conclusion appears justified and the Examiner so found.
14 In the course of the proceeding, many timecards were produced for
examination, containing handwritten time entries followed ' by -foremen's
initials.
TIERNEY ELECTRICAL MFG. CO, 235
earlier that day in mind, wherein he had reacted favorably
to their request for suspension rather than discharge as a
step preliminary to discharge, instructed Tomlinson to give
Rowe a (third) written warning notice stating the time
punch omission as the reason and assigning a 1-week
suspension as penalty therefor.
In making out the warning notice, Tomlinson referred to
the failure to punch in as a deliberate omission on Rowe's
part.
That afternoon Rowe approached Tomlinson with a
request for vacation leave. Tomlinson handed Rowe the
warning notice with the comment that Rowe might not
want to pursue his request after reading same . Rowe read
the notice and asked Tomlinson if he really believed his
failure to punch back in from lunch was deliberate.
Tomlinson replied that he did. Rowe then crumpled up the
notice in rage, told Tomlinson what he could do with the
job, and gathered up his tools. He then approached Kovar
and asked for his check. Kovar stated he could pick it up
the next day.
Rowe picked up his check the next day. His desire for
reinstatement and the characterization of the July 20 matter
as a constructive discharge was, made known to the
Company by its receipt of the Union's August 24 amended
charge so alleging.
Rowe was the leading Union adherent in the Company's
employ -after .the Union's decertification, he had been the
Union's shop steward immediately prior to the decertifica-
tion, he had been one of the Union's negotiators in the
contract negotiations between the Company and the Union
immediately prior to the decertification, he had cam-
paigned actively for the Union prior to the decertification
election, and he was the Union's observer at the
decertification election. Rowe was also conspicuous in his
opposition to the Company's efforts to establish the
Council as the Union's successor in representing its
employees immediately -following the Union's decertifica-
tion; he refused to raise his hand in support of the
Company's July 10 proposal for establishment of the
Council and stamped out a cigarette with his foot at that
meeting in a deliberate fashion, which act Baker (and
undoubtedly others) interpreted as a symbolic act of
defiance of and opposition to the Company efforts.
When Rowe's continued (July 17) defiance15 of the
Company's efforts to establish the Council as the Union's
successor despite Baker's July 10 threat16 is measured
against the trivial17 nature of the offense for which he was
disciplined, it appears clear that Rowe was disciplined on
July 20 because of his status as the Union's leading
supporter among the employees and defiance of and
opposition to the Company's efforts to foist the Council on
the employees as the Union's successor, and the Examiner
so finds. The Examiner further finds and concludes that by
15 By his efforts to persuade other employees not to participate in the
Company-conducted election of Council representatives and his adamant
and sole refusal to participate therein despite the direct requests of Baker
and Kovar.
16 See II, B, above.
17 The Company cited 28 rule violations as the basis for issuance of the
first warning notice against Rowe ; it cited 20 rule violations as the basis for
the second warning notice ; from its failure to adduce evidence of
continued and repeated violation of the rules recited therein, it may be
the levy of such discipline the Company interfered with,
restrained , and coerced Rowe in the exercise of hissight to
support the Union and his right-to refrain from supporting
the Council, and also discriminated against him because of,
his support of the= Union and opposition to the Council, in
violation of Section 8(a)(1) and (3) of the Act.
The sole question remaining is whether Rowe's quit in the
face of such discriminatory treatment constitutes a
constructive discharge in violation of the Act entitling
Rowe to, reinstatement and backpay.
The Board, has issued (and the Courts have enforced)
many orders directing reinstatement and backpay for
employees who quit over discriminatory suspensions,
warnings, and reprimands, holding such quits to be
constructive discharges in violation of Section ' 8(a)(1) and
(3) of the Act. For example, in the case of N.LR.B. v. Holly
Bra of Calif., Inc., 405 F.2d 870 (C.A. 9), enfg. 164 NLRB
1112, the Court enforced the Board's order directing the
reinstatement with backpay of a union's principal adherent
who, subsequent to the Union's loss of an election, quit
over discriminatory criticism of her work and requiring-her
performance of unnecessary repair work; in the case of
N.LR.B. v. Tennessee Packers, Inc., (C.A. 6, 1964) 339 F.2d
203, enfg. 143 NLRB 494, the Court enforced a similar
order for a union's election observer who, after the union
lost an election, quit over discriminatory reprimands and
close and critical inspection of his work; in the case of
Central Machine & Tool Co., Inc., 1968, 172 NLRB No. 175,
the Board issued a similar order on behalf of an employee
who quit over discriminatory reprimands for small rule
violations; in Block Southland Sportswear, Inc., 170 NLRB
No. 101, 1968, the Board ruled similarly with regard to an
employee who quit rather than sign a discriminatory
warning notice ; and in Ross Port a Plant, Inc., 166 NLRB
494, to similar effect, where the employee quit rather than
accept a discriminatory 3-day suspension.
On the basis of the foregoing, the Examiner finds and
concludes that James Rowe was constructively discharged
by the Company on July 20 because he was the Union's
principal supporter among the Company's employees and
because he opposed the Council's formation, that the
Company thereby violated Section 8(a)(1) and (3) of the
Act, and that Rowe therefore is entitled to reinstatement
with backpay.
CONCLUSIONS of LAW
1. At all times pertinent the Company was an employer
engaged in commerce and the Union and the Council were
labor organizations within the meaning of Section 2(2), (5),
(6), and (7) of the Act.
2. Following the July 7 decertification of the Union, the
Company formed, dominated, and assisted the Council in
succeeding the Union as the employees' representative for
presumed that the two citations had the desired effect and the offenses
were not repeated . Yet on the basis of a single occurrence, Rowe's failure
to punch his card after lunch on the day of his second apparent defiance of
the Company's efforts to establish the Council as the Union's successor,
when Baker, Kovar, and Tomlinson all saw him at work after lunch (the
first two visited him there ) while other employees were still absent from
their work stations to participate in the election and Tomlinson could have
merely entered the proper time, Rowe was issued a third warning notice
and a severe penalty and only narrowly avoided discharge.
236 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
collective-bargaining purposes and contributed support to
it, in violation of Section 8(a)(2) and ( 1) of the Act.
3. The Company on July 10 by its President threatened
its employees with discharge for failure to `abandon
continued ' support for the Union and for failure to support
establishment of the Council in its stead , in`violation of
Section 8(a)(1) of the Act.
4. The Company on July 20 constructively discharged
James Rowe because of his status as' the Union 's leading
'supporter and his opposition to the Company 's efforts to
establish the Council as the Union 's successor as the
representative of its employees , in violation of Section'
8(a)(1) and (3) of the Act.
5. The above unfair labor practices affect commerce as
defined in Section 2(6) and (7) of the Act.
THE REMEDY,
Having found that the-Company committed unfair labor
practices, the Examiner shall recommend that the Compa-
ny be ,directed to.cease and desist therefrom and take the
affirmative actions specified in the Order below to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, the Examiner issues the following
recommended:18
ORDER
Tierney Electrical Manufacturing Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Forming, dominating, or assisting the Tierney
Employees Council or any other labor organization of its
employees;
(b) Recognizing or dealing with the Tierney Employees'
Council as the 'representative of its employees for the
purpose of dealing with the Company concerning wages,
rates of pay, hours, or other working conditions;
(c) Threatening its employees with discharge for support-
ing the International Brotherhood of Electrical Workers
Local-46, AFL-CIO, and/or failing or refusing to,support
the Tierney Employees Council as the successor thereto;
(d) Discharging- or otherwise disciplining its employees
for supporting International Brotherhood of Electrical
Workers Local 46, AFL-CIO, and/or failing or refusing to
support the Tierney Employees Council as its successor.
2. Take the following affirmative action:
(a) Withdraw and withhold all recognition from the
Tierney Employees Council and completely disestablish it
as the representative of the Company's employees for the'
purpose of dealing with the Company concerning wages,
rates of pay, hours,'or other working conditions;
(b) Offer to James Rowe immediate'and full'reinstate-
ment to his former or a substantially equivalent position
without prejudice to his seniority and otherr rights and
privileges and make him whole for any loss of pay he may
have suffered by reason of the discrimination against'him,
for the period beginning July 20,1970, and ending the date"
he is offered the aforesaid reinstatement , computed in the
manner set out in F. `W. Woolworth Co., 90 NLRB 289,
together with interest on the amount so computed at the
rate of 6 percent per annum, as set out in, Isis Plumbing and
Heating Co., 138 NLRB 716;
-(c) Notify James Rowe immediately, if he is presently,
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application therefor after
discharge from the Armed Forces, in accordance' with the
Selective Service Act and the,Univer`sal Military ' Training
and Service Act.
(d) Post at its place of business in Seattle, Washington,
copies of the attached notice marked "Appendix:" 19 Copies
of the notice, on forms provided by the Regional Director'
for Region 19, shall be signed by an authorized representa-
tive of the Company, and posted by it immediately upon
receipt thereof and maintained for 60 consecutive days'
thereafter in conspicuous places where,notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by"the Company to insure- that the notices are 'not altered,'
defaced, or covered by any other materials. ' ' '
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Company has taken to comply,
herewith.20
18 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided by
Section 102.48 of said Rules, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto 'shall be
deemed waived for all purposes.
19 In the event that 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 be changed to read
"Posted Pursuant to a Judgment of the United: States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
20 In the event this Recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 19, yin `Writing, within 20 days
from the ' date of this Order, what steps the Respondent has ' taken to
comply herewith."