Tri-Tronics Laboratories, Inc.

TRI-TRONICS LABORATORIES, INC. 295 during the peak, the Employer gives preference to the most recently laid-off employees. Approximately 75 to,90 percent to those laid off return the following year for work during the peak period. We find that employees hired for seasonal peak periods are seasonal, rather than temporary, employees, as the Petitioner contends, and shall include them in the unit.4 [Text of Direction of Election omitted from publication.] Tropicana Products, Inc., 122 NLRB 12 Tri-Tronics Laboratories, Inc. and Lodge 1591, International Association of Machinists, AFL-CIO. Case No. 16-CA-1447. November 16, 1961 DECISION AND ORDER On April 18, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tri-Tronics Lab- oratories, Inc., Euless, Texas, its officers, agents, successors, and assigns, shall : ' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman McCulloch and Members Rodgers and Leedom] 'we rely particularly on the following facts , among others : ( 1) Vice President Great- house's remark of September 27, in reference to Tribble , "Good riddance" ; ( 2) Foreman Hatchcock 's warning to Tribble to "be very careful . . and by all means stay busy" be- cause "the company was on" him "about" her ; and ( 3) Respondent's failure , in the face of all the evidence indicating its discriminatory motivation , to offer a credible explana- tion for again discharging her. Accordingly, we agree with the Trial Examiner's con- clusion that the second discharge was likewise due to Tribble's union activity and to her disregard of warnings to abandon such activity. 134 NLRB No. 31. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in Lodge 1591, International Asso- ciation of Machinists, AFL-CIO, by discriminatorily discharging or otherwise discriminating against any of its employees with regard to hire, tenure, or any other term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Lodge 1591, International Asso- ciation of Machinists, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any-and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Imogene Tribble immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrim- ination against her. (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social' security payment record, timecards, personnel records and reports, and all other records helpful in analyzing the amount of backpay due. (c) Post at its plant in Euless, Texas, copies of the notice attached hereto marked "Appendix." 3 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, you are notified that : TRI-TRONICS LABORATORIES, INC. 297 WE WILL NOT discourage membership in Lodge 1591 , Inter- national Association of Machinists, AFL-CIO, or any, other labor organization, by discriminatorily discharging' or refusing to re- instate any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT 'in -any other manner interfere with, restrain, or coerce employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named or any other labor organization , to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the, purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Imogene Tribble immediate and full rein- statement to her former or substantially equivalent position, with- out prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suf- fered as a result of the discrimination against her. TRI-TRONICs LABORATORIES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National-Labor Relations Board, and an answer having been filed by the above-named Respondent, a hearing involving allegations of unfair labor practices in violation of Section ' 8 (a) (3) and ( 1) of the National Labor Relations Act, as amended , was held in Fort Worth, Texas, on March 28, 1961 , before the duly designated Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. The filing of briefs was waived by the parties. Upon the record thus made, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Tri-Tronics Laboratories, Inc., is a Texas corporation with principal office and place of business in Euless, Texas, where it is engaged in the manufacture of printed circuits and electronics. During the-12-month period before issuance of the complaint , the Respondent received goods and materials valued at more than $50,000 from outside the State of Texas, and shipped goods valued at more than $50,000 to points outside the State of Texas. The Respondent is engaged in commerce within the meaning of the Act. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE LABOR ORGANIZATION INVOLVED Lodge 1591, International Association of Machinists, AFL-CIO, is a labor organi- zation admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues This case is a sequel to Case No. 16-CA-1360 (not published in NLRB volumes), fully described in JR-292, issued by Trial Examiner Louis Libbin on September 8, 1960. In that Intermediate Report Trial Examiner Libbin found that employee Imogene Tribble had been unlawfully discharged, to discourage membership in the above-named Union, on April 15, 1960, and issued a Recommended Order that she be reinstated and made whole for any loss of pay suffered by reason of the discrimina- tion against her. Tribble was permitted to return to work on September 27, 1960, but was again dis- charged on January 6, 1961. It is General Counsel's contention, disputed by the Respondent, that the employee's second dismissal was likewise unlawful, and was motivated by the same illegal purpose as found by Trial Examiner Libbin. At the opening of the hearing before the Trial Examiner, General Counsel re- quested that "administrative notice" be taken of the findings, conclusions, and recom- mendations appearing in Trial Examiner Libbin's Intermediate Report. He based his request upon the fact, conceded by the Respondent; that no exceptions had been filed to it by any party. The Trial Examiner believes the request has merit, despite the Respondent's objection that the matter is irrelevant. While it appears that no Board order has yet been issued, as required by Section 10(c) of the Act,' the Trial Examiner considers himself as equally bound by Trial Examiner Libbin's Recommended Order as if such Board order had been issued. There is no evidence, or claim, that any party requested, or that the Board granted, an extension of the prescribed 20 days for the filing of exceptions. Furthermore, as a witness, the Respondent's president, Elvid Wolfle, stated: "When so ordered we reinstated her (Tribble)." As relevant background to the issues now before him, therefore, the Trial Examiner quotes the following findings from Trial Examiner Libbin's Intermediate Report: Wolfle became aware, during the February interview with Tribble, that she had been talking union and was 100 percent for the Union. From then until the date of her discharge she played the most prominent and active role in sponsor- ing the Union among the employees. Her activities in this respect were well known among the employees. Wolfle knew that she was dissatisfied with her failure to receive a wage increase. He regarded her as a "trouble maker" and believed she was keeping the employees "upset." On April 14, Tribble and a number of other employees received personal letters from the Union, soliciting their selection of the Union as their bargaining representative and enclosing a union authorization card. The very next day Tribble was discharged under the circumstances previously described. A few days later, Wolfle told Foreman Hamilton that he knew the employees had received these letters and, in re- sponse to Hamilton's inquiring as to who was "agitating to get the employees interested in the Union," stated that "it was a person recently released that had caused the trouble." I find that Wolfle was referring to Tribble and that he had become aware of the receipt of these letters by the employees during the day of Tribble's discharge. It was at that point that he called Greathouse back to his office and they decided to discharge Tribble. In view of all the foregoing, and upon consideration of the entire record as a whole, I am convinced and find that Respondent's decision to discharge Tribble was precipitated by a belief that she was responsible for or instrumental in the Union's solicitation of the employees by these letters, and that the other reasons were advanced as mere pretexts to cloak a discriminatory motive. By such con- 1 The relevant portion of Section 10(c) : "In case the evidence is presented before .. . an examiner . . . such examiner . . . shall Issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and If no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize , such recom- mended order shall become the order of the Board and become effective as therein pro- scribed" [Emphasis supplied l TRI-TRONICS LABORATORIES, INC . 299 - duct, Respondent also discriminated with respect to the hire and tenure of em- ployment of Tribble, thereby discouragaing membership in the Union , in viola- tion of Section 8(a)(3) and (1) of the Act... . B. The second discharge of employee Tribble Contrary to Wolfle's assertion, above-noted, that "when so ordered we reinstated her," undisputed testimony of Tribble estabishes that the nature of the treatment accorded her and of the work itself fell short of the terms of the Recommended Order, which required ,that she be reinstated "to her former or substantially equiva- lent position." Before her unlawful discharge in April and during a period since the preceding October Tribble had been employed regularly as the electroplater, being assisted by one other employee who, upon Tribble's discharge, replaced her. As noted in Trial Examiner Libbin's Intermediate Report, her work during that period "con- sisted of scrubbing the product with steel wool, washing it in the sink, and then im- mersing it in electroplating tanks, applying prescribed routine to which the parts must pass to electroplate nickel, tin, gold or whatever the specific order calls for" and also mixed her own solutions. On September 27, the day of her return to work, she was given no work in the plating room by the then supervisor, Norma Jane Lakey, but was called aside by Foreman Hatchcock and was asked if she knew how to "etch" boards. (The term "boards" is explained in the record as meaning "printed circuit boards" for elec- tronic equipment) She replied that she did not. Hatchcock told her he would show her. As they started out of the building Vice President Greathouse who, as noted in the above-quoted portion of IR-292, participated in the decision unlawfully to discharge Tribble in April, remarked "Good riddance." Foreman Hatcheock there- upon warned her to "be very careful . . . and by all means stay busy," because the "company was on" him "about" her. She was then sent to the front of the building, where the "steel wooling" process was performed and some distance from the plating department. While during her previous period of employment Tribble had occasionally per- formed the "steel wooling," a cleaning process preceding the actual plating, her credible testimony establishes and it is found that "a majority of the time" after her reemployment and until her latest discharge was spent, not in plating as had been the case, but in "steel wooling. " In mid-November Tribble asked Foreman Hatchcock to check with Wolfle re- garding a vacation due her in July. Receiving no reply Tribble went to Wolfle on December 15, and told him that the union representative had asked her to consult him direct about the vacation due. Wolfle told her he would look into the matter. The next day Hatchcock told her that she could start her vacation the following Monday, December 19. During the midmorning of December 19, Vice President Greathouse called her at her home, told her Hatchcock had been mistaken about her vacation, and that "we have been in touch with the Labor Board and if we have to pay you your back- pay your vacation will be included," and asked her to come back at once. She re- turned to work at noon that day. On January 6. 1961, Tribble was called into the office by Foreman Hatchcock and told she was being let go. She asked why. He said that her work was "not holding up," and added that she had "left two boards in the solution and you aren't keeping your solutions built up." She protested that it was not her responsibility to keep the solutions built up, but that of Jerry Pierce, who came in as supervisor of the plating department a few days after Tribble was reemployed in September. As a witness for the Respondent, Pierce confirmed the merit of her protest by admitting that he "and no one else" 'had the responsibility to "maintain the solutions and mix the solutions." Tribble then went to Pierce and asked about her "work not holding up." He told her it was not "holding up." She asked why, if this was the case, he as supervisor had said nothing about it. His only reply was, "You were supposed to know." The foregoing facts are based upon credible testimony largely undisputed. It is likewise uncontradicted that during the short period Tribble was permitted to return to work she continued actively to solicit memberships in the Union. And as noted shortly before her latest discharge she informed Wolfle that she had come to him about her vacation at the request of the union representative. In view of the findings as to her first discharge, which the Trial Examiner con- siders both pertinent and binding in this case, and of management's treatment of her upon her return, the Trial Examiner believes that General Counsel established 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a clear, prima facie case of a continuing unlawful motive precipitating her discharge in January 1961. The Trial Examiner can place no reliance upon the vague claims, elicited by lead- ing questions and unsupported by any company records, which were given by the Re- spondent's witnesses in an effort to make it appear that upon her return to work Tribble was a wholly unsatisfactory employee. Such claims not only lack credible documentary support but run directly counter to the following findings in IR-292, as to the appraisal of her work by her previous supervisor , Lynn Mason: Lynn Mason, her immediate supervisor, admitted that Tribble's work was "satisfactory" or she would have been replaced. He further admitted that her reject rate was no higher than that of her predecessor or than that of anyone else who had been doing that work, and that he had never been informed to the contrary by the inspection department or by Foreman Hamilton of the elec- tronics shop. He admittedly never had occasion to reprimand her for her work performance, although he had reprimanded other employees under his supervision. The one incident of "substandard" performance cited by Supervisor Pierce is so trivial as to require scant comment. He claimed that on December 17, Tribble left three "boards" in the solution, and although two were usable, one was a loss. No evidence was brought forward as to monetary loss, if any. That the incident was unimportant to management is shown clearly by the fact that although on that same day the employee had been told she could begin her vacation the following Monday, December 19, on the morning of the latter date she was recalled because of the heavy workload. The vague and unsupported testimony of Pierce and others as to their estimate of the amount of plating work done by Tribble which was rejected is rendered value- less as buttressing management's claim of "substandard work" by other credible testimony that since various employees perform cleaning operations-essential to proper electroplating, it is practically impossible to determine which employee may be responsible for "rejects." In short, the Trial Examiner is convinced and finds that the Repsondent failed to overturn the strong prima facie case made by General Counsel. It is therefore con- cluded and found that employee Tribble was discriminatorily discharged on Janu- ary 6, 1961, to discourage union membership and activity, and that thereby the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designated to effectuate the policies of the Act. It will be recommended that the Respondent offer employee Tribble immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniority and other rights and privileges , and make her whole for any loss of earnings she may have suffered because of the discrimination against her, by payment of a sum of money equal to that which she normally would have earned as wages from the date of the discharge to the date of the offer of reinstatement, less her net earnings during said period , with backpay computed in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289. Because a discriminatory discharge to discourage union activities "goes to the .very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, (C.A. 4) ), it is found that there exists here the danger of commission of similar or other unfair labor practices . It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: INT'L ASSN. OF BRIDGE , STRUCTURAL, ETC., LOCAL 600 301 CONCLUSIONS OF LAW 1. Lodge 1591 , International Association of Machinists, AFL4CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Imogene Tribble, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] International Association of Bridge , Structural and Ornamental Ironworkers, Local 600 and DeWitt Prentiss, Narvel Brewer, Archie 0. Dixon, Don Prentiss, Rufus Richardson , and J. C. Brewer and Bay City Erection Company , Inc. Cases Nos. 15-CB-448-1, 15-CB-448-2, 15-CB-448-3, 15-CB-448-4, 15-CB- 448-5,15-CB-448-6,15-CB-148-7, and 15-CB-453. November 16, 1961 DECISION AND ORDER On September 1, 1960, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Parties filed ex- ceptions to the Intermediate Report together with supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. 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 In- termediate Report,' the exceptions and briefs, and the entire record in these cases, and, as it finds merit in some of the exceptions of the General Counsel and the Charging Parties, hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. i We find that Bay City Erection Company was formed in 1959 and not , as the Inter- mediate Report inadvertently states, in 1960. We do not adopt the Trial Examiner's repeated references to the Charging Parties' attorney as a "mouthpiece" and to one of the individual Charging Parties as a "ringleader." 134 NLRB No. 20.