Tennessee Plastics, Inc.

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Region 19, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.s ' In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 19, in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Hotel & Restaurant Employees Local Union No. 400, AFL-CIO, as the exclusive representative of all employees of Northtowner Restaurant , excluding guards, professional employees, and supervisors as defined in the Act. If an understanding is reached, we will embody such understanding in a signed agreement. WE WILL NOT, by refusing to bargain collectively , by unilaterally changing bargainable terms or conditions of employment, or by any like or related action, interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization , to form labor organizations , or to join or assist Hotel & Restaurant Employees Local Union No. 400, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become, remain, or refrain from becoming members of the above-named union or any other labor organization, except insofar as member- ship may be lawfully required pursuant to Section 8 (a) (3) of the Act. SKAGGS DRUG CENTERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) 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. Employees may communicate directly with -the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Tennessee Plastics, Inc. and Local Union 934, International Brotherhood of Electrical Workers. Case No. 10-CA-5395. December 18, 1964 DECISION AND ORDER On April 8, 1964, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 6. TENNESSEE PLASTICS, INC. 525 ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that these allegations of the complaint be dismissed. There- after, the Respondent filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. 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 Fanning, Brown, and Jenkins]. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts, as its Order, the Order recommended by the Trial Examiner and orders that Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' 1 The Trial Examiner's Recommended Order is hereby modified by striking paragraph 1(b) and substituting therefor the following as paragraph 1(b) with it corresponding change in the notice 1(b) Maintaining a rule which by its terms prohibits its employees from engaging in union solicitation on company premises during nonworking time. .The Recommended Order is further modified by renumbering paragraphs 2(e) and 2(d) to read as 2(d) and 2 ( e) and inserting therein a new numbered paragraph 2(c) which reads as follows 112(c) Notify Paul Carroll if he is serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge filed on July 10 and 29, 1963, respectively, by Local Union 934, International Brotherhood of Electrical Workers, hereinafter referred to as the Union , the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, issued a complaint on August 20, 1963, against Tennessee Plastics, Inc., hereinafter referred to as the Respondent or the Com- pany, alleging violations of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the, Act. The Respondent thereafter filed a timely answer to the complaint denying the commission of any unfair labor practices. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice , a hearing was subsequently held in Johnson City, Tennessee, before Trial Examiner Wellington A. Gillis, at which all parties were represented by counsel and were afforded full opportunity to be heard , to examine and cross- examine witnesses , to introduce evidence pertinent to the issues, and to engage in oral argument. Timely briefs were subsequently filed by both parties. Upon the entire record in this case, and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial , reliable evidence "con- sidered along with the consistency and inherent probability of testimony" ( Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496 ), I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent is a Tennessee corporation , maintaining its principal office and place of business in Johnson City, Tennessee , where it is engaged in the manufacture and sale of electrical heating equipment . During the calendar year 1962, the Respondent sold and shipped from its Johnson City, Tennessee , plant, products val- ued in excess of $50,000 directly to points located outside the State of Tennessee. The parties agree, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties agree, and I find, that Local Union 934, International Brotherhood of Electrical Workers, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues 1. Whether, at various times between January 25 and the early part of March 1963, the Respondent , through its supervisory personnel , interrogated and threatened its employees within the proscription of Section 8 (a) (1) of the Act. 2. Whether, during the above period, the Respondent maintained and enforced an unlawful no-solicitation rule in its plant. 3. Whether, in discharging four employees , namely, Clyde Rigsby, Paul Carroll, Lee Cox, and Millard Cox, on June 10 , 1963, the Respondent was motivated by antiunion considerations in violation of Section 8(a)(3) of the Act.' B. The facts 1. Alleged interrogation and threats Following the Union's organizational campaign commencing in December 1962, and pursuant to the filing of a representation petition on January 23, 1963,2 a hear- ing was held on February 7, resulting in a consent agreement and an election on March 6, which was lost by the Union. Thiee months later , on June 10, the Respond- ent laid off eight employees , four of whom are alleged as discriminatees in this pro- ceeding. During the period between January 25 and the March 6 election , according to the testimony of these four employee witnesses , the Respondent's supervisory hierarchy engaged in conduct, some of which, if believed, constitutes a violation of Section 8 (a) (1) of the Act.3 Thus, Clyde Rigsby testified that on the Saturday or Sunday after the January 23 representation petition had been filed his foreman , Adron Fitzgerald, having called Rigsby over to the shipping desk, asked him if he knew anything about a union, told him that if he had anything to do with it it would mean his job , and added that "before the Company will let a union come in here, they will close the plant down, and then we will all be out of a job." I In addition to the four named employees , the complaint alleged a fifth , one Marshall Gayle Jones , as a discriminatee . At the conclusion of the General Counsel 's case, Re- spondent's motion to strike Jones from the complaint was granted without objection on the ground that no evidence had been presented pertaining thereto. 2 Unless otherwise specified, all dates refer to the year 1963 3 As will become apparent , the General Counsel's case as to this conduct mlmt rise or fall on a credibility resolution. TENNESSEE PLASTICS, INC. 527 Rigsby testified further that a week before the February 7 representation hearing Foreman Fitzgerald told him that "he knew damn well I had something to do with it [the Union]." According to Rigsby's testimony, the morning after the hearing, at which Rigsby testified, Fitzgerald gave him extra work to perform, told him "if he had been me, he wouldn't have stuck his head through the door after what I did the day before," and added that he was all washed up and was through, "that anybody that had anything to do with the Union would lose their jobs because the Company would find it all out." 4 Paul Carroll, who was an observer for the Union at the election, testified that about 1 week before the March 6 election, Ronald Morgan 5 talked to all the men. In a conversation with Morgan, the latter apprised Carroll of the fact that he was a lawyer for the Company and that he was working against the Union. Morgan told him that if he had anything to do with the Union, it could mean his job. When Morgan asked him how he felt about the Union, Carroll told him that he had not thought too much about it, that he would let him know later. Later the same day, according to Carroll, when Morgan came back to see him, Carroll told him that he had belonged to a union in the coal mine fields for a long time, to which Morgan replied that he knew of new plants in West Virginia that had closed down over the Union and that he was working to keep the Union out. Carroll testified that on the election day, while he was acting as an observer, Morgan approached him and asked him if he had made up his mind, to which Carroll replied that he (Morgan) was wasting his time talking to him. Morgan then told Carroll that the Company liked him and wanted him to stay, but that if he had anything to do with the Union he would be out of a job. Morgan, who admitted having waged a campaign against the Union on behalf of the Company,6 denied generally having made any unlawful statements to employees and testified that his conversation with Carroll shortly before the election, the only time he conversed with Carroll, was limited to a discussion of the depressed coalfield area of West Virginia.7 Carroll testified that 2 days before the election, which would place it on March 4, Foreman Elmer Cox asked him in the shop how he felt about the election, and, when Carroll replied that he thought it was all right, Foreman Cox told him that if he were for the Union he would be gone. Cox also stated that, based upon his own experi- ence with a company in Kingsport, Tennessee, where he lost his home and his job, he was against the Union and was going to do everything he could against it. Cox concluded by telling Carroll that if he stuck for it, he would be just like the rest of the fellows, out walking the street on starvation. Although this conversation, and the statements attributed to Cox, was denied by the latter, I do not credit his denials. Carroll testified that about 1 week after the Cox conversation, which would place it shortly after the election, Plant Superintendent Dean Stykes called him into his office and told him that he had heard that he had been working for the Union. When Carroll admitted that he had, Stykes told him that "if I hear tell of it again, I'll fire you. We don't like it here or anywhere else, and we are not going to have it," to which Carroll replied that he would not say 'anything further about the Union. Stykes admitted calling Carroll into his office on this occasion and telling him that what he did or said other than on company time and in working areas was his own business, but that he did not want him talking with employees during working hours and in working areas, and if he talked for the Union during working hours he would * Fitzgerald categorically and without reservation denied the conduct and each of the statements attributed to him by Rigsby . Based upon my observation of both witnesses while testifying , and for reasons hereinafter set forth concerning Rigsby ' s testimony generally , I credit Pi itzgerald 's denial 5 The parties admit , and I find, that Morgan, a labor relations consultant retained by the Respondent on a permanent basis, was, at all tines material to the events herein related, an agent of the Respondent. Thus, by his own testimony, "Anytime that any union hits any company that I work with, 1 can assure you that there will be a campaign . In this situation there was a campaign." 7 Notwithstanding Morgan's testimonial assertions concerning his sophistication as to all matters relating to the Act, and the fact that , as labor relations consultant to the Company, he briefed each and every foreman as to what he could and could not say to employees, based upon his demeanor on the witness stand as well as questioning the probability of some of his testimony, I am not persuaded that his conversations with Carroll were limited to nonunion matters as he testified . I credit Carroll as to the above conversations with Morgan. 775-692-65--vol. 15 0-3 5 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fire him. Stykes further testified, credibly I find, that this admonition to Carroll was based upon the fact that Stykes had observed Carroll talking with other employees at their work stations, that this was holding up production, and that, although Stykes did not hear the conversations, he felt that Carroll was talking about the Union. Thus, I find that this incident occurred as testified to by Stykes, and in view of the fact that only a few days before Carroll had acted as an observer for the Union in the elec- tion, coupled with Carroll's admission to Stykes that he had been working for the Union, I find that Stykes, in observing Carroll talking with other employees away from his station, had reason to warn Carroll as to his activities during working hours, including discussing union matters, and that, in doing so, his conduct was not viola- tive of the Act. Millard Cox, a brother of Lee Cox, who is also alleged as a discriminatee, as well as of Elmer Cox, the foreman, testified that a few days before the March 6 election, after Plant Superintendent Dean Stykes had taken him off a fork truck and placed him on a machine, Company Vice President Robert Henry told him that Stykes had sent him (Henry) after Cox to get back on the fork truck. When Cox questioned Henry about his coming after him, Henry replied, "Well, I think Dean got sort of mad at you over this union business. I thought you was for it, myself . . . I just believe I'd close the doors before I would fool with a damn union, and shut down." Henry, although not questioned on this incident, denied that he ever told Cox or anybody that the Company would close down if the Union came in . I credit only that portion of Millard Cox's testimony that is not denied by Henry. Millard Cox further testified that on March 5 Foreman Fitzgerald asked him how he felt the election would go the next day, to which Millard Cox replied that he could not tell whether it would go Democratic or Republican.8 Fitzgerald did not recall the incident or ever talking with Cox about the election or the Union. I find that, to the extent that this incident may have occurred, the evidence fails to sustain a finding of unlawful conduct by Fitzgerald. Lee Cox testified that on the day before the February 7 hearing his brother, Elmer, wanted to know whether he knew anything about the hearing, and told him "they are having a hearing tomorrow, and they're talking about shutting the plant down." When Lee Cox replied that he did not know much about it, Elmer replied that he did not either, "and don't give a damn about it-only my job." Elmer Cox denied making the above statement, but testified that on one occasion, apparently sometime after the hearing, he had asked his brother, Lee, if he had heard anything about an election being scheduled. Lee Cox testified that a week or two later, which would place it somewhere around the third week in February, Elmer Cox told him that he was wanted in the office, and, together, they went up to Plant Manager Stykes' office, where, in the presence of Stykes, Labor Relations Consultant Morgan asked him about the Union and whether he had signed a union card. When Lee Cox replied that he had not, Morgan told him that he wanted him to support the Company, that "he thought he about had the thing whipped...." Stykes was not questioned on this incident. Morgan testi- fied that, although he remembered the occasion, he did not know why Lee was called in and that the discussion, during which the Union was not mentioned, was confined to fringe benefits offered by the Company. Elmer Cox, although corroborating Morgan in part, testified that the Union was not mentioned, but that Morgan did say "he didn't want no organization-I mean, no outside organization telling the Com- pany, advising the Company, or anything." I credit the testimony of Lee Cox, who impressed me as being a very candid and forthright witness, as to both of these con- versations. Neither Morgan nor Elmer Cox was convincing in his testimony on these incidents. Conclusions I find that, through the following interrogating and/or threatening conduct, as above outlined, the Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and that such conduct is violative of Section 8(a)(1) of the Act: 1. Morgan's statement to Carroll approximately 1 week before the March 6 elec- tion to the effect that if he had anything to do with the Union, it could mean his job. 2. Morgan's asking Carroll on the same date how he felt about the Union and whether he had made up his mind about the Union. 6 While it appears that a city election also was imminent, in which Vice President Henry was running for an elected position, the record does not disclose whether the balloting in the city election was scheduled for March 6, the same day as the union election. - TENNESSEE PLASTICS, INC. 529 3. Morgan's statement to Carroll while the latter was serving as an observer dur- ing the election to the effect that if he had anything to do with the Union he would be out of a job. 4. Elmer Cox's inquiry of Carroll 2 days before the election as to how he felt about the election. 5. Elmer Cox's statement on the same date to Carroll to the effect that if he were for the Union he would be gone, and his warning to the effect that if he stuck for it, he would be just like the rest of the fellows, out walking the streets on starvation. 6. Morgan's inquiry of Lee Cox around the third week in February about the Union and whether he had signed a union card, and Morgan's additional statement that he wanted him to support the Company, that "he thought he about had the thing whipped...." 2. Alleged unlawful no-solicitation rule The complaint alleges and the Respondent admits the existence of a rule prohibit- ing "unauthorized soliciting or collecting for any purposes whatsoever on Company premises." The General Counsel contends that the maintenance and enforcement of this rule has prohibited Respondent's employees from soliciting fellow employees during nonworking time to join or support a union. The evidence discloses that the rule was promulgated by the Respondent in 1960 as a result of an incident involving outside fundraising among the employees, and was established for the purpose of prohibiting outsiders from interfering with employee production. With the possible exception of the Carroll-Stykes incident, adverted to above, the record contains no evidence that the rule was ever enforced as to union activities or otherwise.9 Corroborative of testimony by Respondent's witnesses to the effect that the rule was never applied to union activity, Rigsby testi- fied that he was not aware of the existence of a no-solicitation rule, that he had never seen one posted on the bulletin board, and that he talked for the Union in the com- pany area and at his work station. Notwithstanding the fact that the evidence does not support the contention that the rule has prohibited employees from engaging in union solicitation, or that the Respondent maintained it for this purpose, the fact remains that the rule, in prohibit- ing any solicitation on company property at any time, would necessarily include a prohibition against union solicitation during nonworking time, and, as such, in the absence of special circumstances, is presumptively unlawful under Board law.10 While this presumption may be overcome by a showing that its existence is necessary for the purpose of maintaining production or discipline, notwithstanding that such a purpose may have motivated its promulgation in 1960, the fact that the rule has not been enforced since that time militates against a finding that the justification continues to exist. Accordingly, I find that the Respondent's action in maintaining its broad no-solicitation rule, as distinguished from its promulgation and enforce- ment thereof,11 constitutes a violation of Section 8(a)(1) of the Act. 3. The June 10 layoff of the four alleged discriminatees On June 10, when the four alleged discriminatees separately reported for work at 4 p.m. on the late shift, each found his timecard missing, and, upon making inquiry of his immediate supervisor, Ted Hicks, each was told that he was tempo- rarily laid off and handed a check and a separation notice indicating that, as of the past Friday, June 7, he had been laid off for lack of work. Subsequently, by identi- cal letters dated July 5, each was notified that, consistent with the Company's policy of permanently laying off any employee who has been laid off for 14 consecutive days, be should seek employment elsewhere. While these are the basic facts as to the manner in which all four employees were terminated, prior to treating the evi- dence and specific contentions of the parties as to the Respondent's discharge motiva- tion, certain testimony concerning events allegedly involving Rigsby after his dis- charge require recitation. e Even as to this incident, there was no testimony that Stykes, in admonishing Carroll for talking during working hours, referred to the rule or was in fact enforcing anything other than universally accepted management working rules. 10 Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (CA. 5). n Section 10(b) of the Act would, apart from the merits, prevent a finding of a viola- tion as to the promulgation of the rule As above found, the record evidence does not support a finding of a violation as to its enforcement. It is recommended that the com- plaint allegations in this regard be dismissed. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clyde Rigsby, after having been apprised by Hicks at 4 p.m. on June 10 that he was being laid off for lack of work, asked his superintendent, Charles Toncray,12 why he was being laid off, to which the latter replied that he did not know, but that it was only temporary and that he would be called back. Rigsby then asked Toncray to write a letter of recommendation for him, and Toncray agreed to do so. A couple of hours later, Rigsby, accompanied by employee Howard Davis, one of an addi- tional four laid-off employees not alleged as discriminatees, went to see Robert Henry, Respondent's vice president and coowner, at the latter's home. There, in response to Rigsby's inquiry as to why he had been laid off, Henry said that he did not know, that the Company was supposed to lay off 20 employees, but that he did not know why they laid off the older men. Rigsby then inquired as to whether the Union had anything to do with his layoff, to which Henry assured him that such could not have been the case.13 Henry then told Rigsby that he would contact Mor- gan, whom the record discloses as being the person primarily responsible for making decisions of this type, and find out the reason for Rigsby's having been laid off. The following day, June 11, Rigsby returned to the plant and talked with Toncray, who told him that Morgan was responsible for his having been laid off, and that he (Toncray) did not know the reason. Toncray then gave Rigsby the letter of recom- mendation that he had promised the day before.14 At this point, Rigsby testified to a conversation with Foreman Fitzgerald several days after receiving the Respondent's July 5 notification that his layoff was permanent, which, if believed, would seriously impugn the Respondent's motive as to the June 10 layoffs.15 I do not>crgdit Rigsby's testimony as to this incident, which I find, in accordance with Fitzgerald's credited testimony, was limited to Rigsby's inquiry con- cerning getting back to work and Fitzgerald's reply that he would help him if he could but that Rigsby would have to see Dennis (Respondent's president) or Henry.'° A partial basis for completely discrediting Rigsby requires the following recitation concerning Rigsby's attempt to secure employment at the Magnavox Furniture Company. 13 It was stipulated at the hearing that Toncray, who was promoted from production manager to superintendent during the first part of June 1963, was, at all times material hereto, a supervisor within the meaning of the Act. 13 There Is a dispute here as to Henry's reply. Rigsby testified that Henry told him that he could not tell him the truth on the matter because they would fire him for that, that he could not tell his employees how he felt about a union because of certain laws, but that "they would have closed the plant down if we had voted the Union In " Henry, on the other hand, denied having made the statement concerning the closing of the plant and testified that he told Rigsby that the law prohibited the Company from discharging an employee for union activity and that he was sure that that was not the reason. In the absence of corroborative testimony by Davis, who was not called upon to testify, I do not give credence to Rigsby's testimony to the extent that it conflicts with that of Henry on this point. In the first place, it would be a little difficult for a company to fire Its coowner for anything, and, secondly, I question that a man of Henry's Intelligence, re- gardless of his feelings concerning a union, would, 3 months after his Company had been successful in a union election, make a damaging statement concerning what would have happened 3 months earlier had the Union won 14 This letter, signed by Toncray, plant superintendent, and addressed "To whom it may concern," stated that: (a) Rigsby had been laid off due to a reduction In the labor force necessitated by a lack of orders, (b) Rigsby's work record and attendance was very good, (c) Rigsby's "safety record was unblemished and he seems to be conscious of the importance of such a record," and (d) for these reasons, he would recommend Rigsby for future jobs requiring similar abilities. 15 Rigsby testified that on this occasion he went to see Fitzgerald concerning the reason for his having been fired, and that, during the conversation, Fitzgerald told him that (a) "after what we had done, there was no chance for us to go back to work" ; (b) "he fol- lowed me while I got the union cards signed, and he did tell me some of the places that certain people signed cards, how many people signed cards, and places that I did go"; (c) "I didn't have anything hid from the Company, that they knew it all the time and they knew all about It"; (d) "Mr. Dennis had all the union cards and he knew every man that had signed one"; and (e) "Morgan had said before the election, if they want to strike, just let them go ahead and strike, that he had bus loads just begging for work and he would see that every one of us was replaced." 16 In view of my credibility resolution as to this conversation, coupled with a lack of any further credible evidence which would sustain the complaint allegation by which the Respondent is charged with creating the Impression of surveillance of union activities on March 22 and July 12, 1 shall recommend that paragraph 11 of the complaint be dismissed. TENNESSEE PLASTICS, INC. 531 Thus, a few days after his layoff on June 10, Rigsby applied for employment at Magnavox where he, along with other prospective hires, was interviewed by assistant personnel manager Donald Hamilton. After a routine question period, during which Hamilton reviewed Rigsby's letter of recommendation from Toncray, Hamilton told Rigsby that he would have to make the customary reference check with Rigsby's former employers.17 Rigsby, upon leaving Magnavox, went to the Respondent's plant where, according to Rigsby's testimony, he told Toncray that he had a job, and that if Magnavox called he would "appreciate it if he wouldn't mention anything about the Union, because Magnavox had asked me about it; and I knew, if he told him that I had anything to do with it, that it would knock me out of a job." 18 Rigsby further testified that, during the course of his July conversation with Fitz- gerald, the latter told him that after Rigsby's interview at Magnavox, Hamilton had come out to the plant and cursed Fitzgerald out for giving Rigsby a good letter of recommendation, knowing that Rigsby was for the Union.19 I am persuaded, and so find, that at no time was the Union mentioned during Rigsby's interview with Hamilton at Magnavox and that Rigsby, in so testifying, was attempting to bolster his case in this proceeding. In this regard, Hamilton, an unbiased and thoroughly credited witness employed by a company in no way involved in this proceeding, testified that in making inquiries concerning applicants for employ- ment, his company, which is union organized, does not ask whether an employee has been affiliated with a union, and that, in discussing Rigsby's employment record with Stykes, the Union was not mentioned, the latter testimony corroborating that of Stykes. In view of this fact, it is extremely questionable, as testified to by Rigsby, that, during his interview with Hamilton, he was questioned about the Union or that, voluntarily or otherwise, he told Hamilton that he did not have anything to do with the Union. Accordingly, in view of what I find to be a fabricated version of what transpired, Rigsby's testimony generally, and particularly with respect to events occurring at the time of, and subsequent to, his discharge, is not worthy of belief, other than where it is corroborated by credited testimony. Analysis and Conclusions The General Counsel contends that the four employees in question were unlaw- fully discharged on June 10 for reasons related to union activity,20 and that the Respondent's asserted grounds were pretexts. The Respondent, in denying the dis- criminatory allegations, contends that each of the four employees was discharged on June 10 for cause with no intention to recall any of them,21 and that the layoff procedure used by which the terminations were accompanied, as above set forth, was consistent with established company policy in all discharge cases. The evidence discloses that Clyde Rigsby had been employed by the Company for approximately 4 years, that on December 3, 1962, he signed a union authorization card,22 and that his union activity consisted of soliciting signatures, including those of the two Cox brothers, attending union meetings, and testifying in the February 7 representation hearing. Paul Carroll, who at the time of his discharge had been employed by the Respondent for about 3 years, signed a union card on December 4, 17 As a result, Hamilton called the Respondent's plant and talked with Stykes. Dur- ing the course of receiving answers to his questions concerning Rigsby's employment record with the Respondent, Hamilton learned of Rigsby's poor safety record and the fact that Rigsby appeared to be accident prone. 18 Toncray was not questioned on this. 12 According to Rigsby's discredited testimony, Fitzgerald also told Rigsby during this conversation that the Respondent knocked him out of a job at Magnavox, that wherever Rigsby applied for a job he could not tell them that he had worked for the Respondent, that he was ruined in the State of Tennessee, and that "we did it, ourselves, and these was nothing he could do about it " 21 As the record contains no credible evidence of union activity on the part of the em- ployees or of union animus on the part of the Respondent subsequent to the March election period, the General Counsel's case as to the Respondent's unlawful motivation in terminating the dischargees on June 10 can be supported only by relating such motivation back to the union activity at the plant during the earlier period 21 Specifically, the Respondent asserts that (a) the decision to terminate Clyde Rigsby was based upon the large number of accidents giving rise to compensation cases in which he was involved; (b) Millard and Lee Cox were terminated because of their accident record involving a high number of compensation cases and for damaging company property through negligence, and (c) the decision to terminate Paul Carroll was based upon a spitting incident. 22 Technically, his wife signed the card for him and in his presence 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1962, engaged in union activity to the extent of talking-to employees about the Union, attending union meetings, and serving as an observer at the Board-conducted election on March 6. Millard and Lee Cox were employed by the Company for approxi- mately 41/2 and 3 years, respectively . There is no evidence that they engaged in union activity other than their signing union authorization cards on December 3, 1962. Notwithstanding the fact that, during the mid-February conversation in Stykes' office, Lee Cox told Morgan that he had not signed a union card, I am persuaded, and so find , under all of the circumstances, and particularly in view of Vice President Henry's testimonial affirmance of his pretrial affidavit, that "I have told several people that the Company pretty well figured who was for the Union , or had signed cards," that the Respondent, including Respondent's agent, Morgan, had knowledge, or at least strong suspicions, that all four of the dischargees were at the time of the union election campaign union advocates .23 The record discloses that the Respondent countered the union organization efforts with an antiunion campaign of its own. This, coupled with the unlawful interrogating and threatening conduct attributed to the Respondent during the earlier period, supports the finding, which I hereby make, that, during said earlier period, the Respondent was possessed with union animus Thus, notwithstanding the 3 -month time interval between the election and the June 10 termination date, these findings as to company knowledge and union animus, coupled with, inter alia, the fact that the dischargees received no prior notice, sup- ports a finding that a prima facie case was established by the General Counsel , shift- ing the burden of going forward with the evidence to the Respondent. Unrefuted testimony of Morgan and Jerry Fleenor, agent for the United States Fidelity & Guaranty Company, the Respondent 's insurance company, discloses that for several years the Respondent's safety record has been extremely poor and that the number of occurrences (insurance claims involving accidents ) for the Company has been one of the highest in the State .24 Fleenor further testified that his insur- ance company had required the Respondent to enact additional safety procedures, with which request the Respondent had been most cooperative,26 and that, because of the Respondent's poor safety record and in an effort to reduce the number of acci- dents at the Respondent 's plant, the insurance company, through its representative, would periodically review the Respondent's employee records as to accidents and make recommendations to the Respondent with respect to individual employees. Fleenor testified that, after three occurrences involving an employee , his company recommended that the employee be rehabilitated and, in acute cases, particularly where it appeared that an employee was accident prone, if not rehabilitated, then terminated. Morgan, whom the record discloses was solely responsible for the Respondent's decision to terminate the employment of the four alleged discriminatees , testified that sometime between June 1 and 5, Fleenor telephoned him and recommended that Clyde Rigsby, Lee Cox, and Millard Cox be either terminated or placed in a job where they would not get hurt.26 Based upon this recommendation , Morgan, on June 10, checked the personnel records of these employees and, based upon his inves- tigation of matters contained therein, decided that their safety records with the Com- pany warranted their immediate discharge .27 Morgan, whose testimony concerning 24 To the extent that the testimony of Morgan or of other company officials would dictate it contrary finding, it is not credited. u Fleenor testified that the Respondent had been way above average, and that, under the Southeastern Workmen's Compensation Rating Bureau, he did not know of any com- pany in eastern Tennessee that had as high a rate of occurrences as did the Respondent w As would be expected, the premium for such insurance is conversely related to the accident rate. 2 'Fleenor, in corroborating the testimony generally of Morgan, testified that prior to the telephone call he had discussed Rigsby's accident rate with Morgan and Dennis and requested that Rigsby be rehabilitated in another job or terminated. With respect to Millard and Lee Cox, Fleenor testified that he discussed the number of accidents and occurrences of these two employees during the telephone conversation with Morgan, but, although he recalled such a recommendation being discussed in 1961, he could not remem- ber whether he had made the same recommendation as to the Cox brothers as he had with respect to Rigsby. i7 Morgan testified without contradiction that, in his capacity as labor relations con- sultant, he handles labor relations and personnel matters for a large number of companies, and that, accordingly , as in the case of the Respondent , he can only visit them periodi- cally. It is during these periodic visits that he analyzes the companies ' personnel records, advises on personnel problems, and, after an investigation, makes his recommendation as to discharge and layoff , such as in the instant case. TENNESSEE PLASTICS, INC. 533 this phase of the case I credit, testified that Rigsby had nine compensation cases, more accidents than any other employee working for the Company, and that Millard Cox, with seven compensation cases, had the second highest number of accidents among the Respondent's employee personnel. While it appears that Rigsby and the two Cox brothers, when questioned on cross-examination, attempted to play down their records with the Company in this regard, their testimony tends to support Morgan's testimony as to their having been involved in a number of accidents.28 Morgan further testified that his decision as to the Cox brothers was also based upon an incident which occurred in late April or early May in which the two of them, in transporting a heavy punch press some 3 miles between the Respondent's two plants, permitted the equipment to drop off the back of the truck onto the highway without their knowledge. The equipment was found an hour and a half later, in damaged condition, by one of the company officials. Morgan testified that, after his investiga- tion of these matters, their foreman was instructed to lay them off, and that all three were in fact terminated pursuant to the Company's established procedures.29 On these facts, and on the record as a whole, I am persuaded and so find that the General Counsel has failed in his burden of proving by a preponderance of the credi- ble evidence that, in discharging Clyde Rigsby, Lee Cox, and Millard Cox, the Respondent was discriminatorily motivated. Accordingly, I find that the discharge of these three individuals was not violative of Section 8(a)(3) of the Act, and shall recommend that the complaint be dismissed as to these allegations. With respect to the fourth alleged discriminatee, Paul Carroll, Morgan testified that in checking the Company's personnel records on June 10, during his periodic visit, he became aware of a reported spitting incident involving Carroll which had occurred on March 11. Morgan's immediate investigation of the matters, according to his testimony, revealed that on this occasion, Carroll, who was at the time engaged in putting buttons on heater grills, had spit on some grills which, following the pro- duction process, were to have been handled next by a woman employee. According to Morgan, after he talked with the woman employee who handled the material and who had complained about the incident, Morgan decided that the incident was justi- fication for effectuating Carroll's discharge and he ordered it immediately. Carroll was at no time questioned on this incident, which I find did take place. However, while not condoning the act, I am persuaded on certain record testimony that this incident was slightly distorted and perhaps exaggerated by the Respondent, and, accordingly, seized upon by Morgan on June 10'as a pretext.for justifying Car- roll's discharge. Thus, contrary to Morgan's testimony concerning his investigative findings on June 10, Bob Rose, the Respondent's paint supervisor, testified that it was a male employee, one Harry Boston, who, as next in line to handle the material in taking it from Carroll to the washer, reported the incident to Rose 30 While Rose's testimony as to this phase of the incident appears to reflect the truth, Rose testified further that, prior to this, he had noticed on three or four occasions a foreign sub- stance on grills that had not come off during the washing process, and that, after learning of Carroll's spitting incident, he knew what it was. That this appears to be other than a fact is reflected by the testimony of Pauline Friday, who was engaged in painting the grills after they were washed. Friday testified that she never saw 28 Notwithstanding Toncray's letter of recommendation on behalf of Rigsby, wherein he stated that the latter's safety record was unblemished, Rigsby admitted on cross- examination that it was far from being unblemished, and that he had filed between five and seven claims for workmen's compensation. Lee and Millard Cox both admitted on cross-examination to several incidents involving accidents ^ Without attempting to pass judgment on the soundness or wisdom of such a policy, credible record testimony reflects that since 1960, in all cases involving a decision to lay off and/or terminate an employee, whether for cause or otherwise, the established pro- cedure for effectuating such action has been to notify him that he is being laid off for lack of work, and, after the elapse of 14 consecutive days in layoff status, lie is notified that he is permanently laid off and that he should seek employment elsewhere. 3° Rose's testimonial version of the incident is that when he was apprised of the matter by the complaining employee to whom the grills were to have been handled, Rose ques- tioned Carroll about the incident Carroll, in anger, admitted his conduct and, when asked by Rose not to do it again, repeated the act, accompanied by his assertion that he would if he wanted to. Rose then reported the matter to Superintendent Stykes, who sent for Carroll. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any spit on the grills after they had gone through the washer.31 Thus, as above opin- ioned, the testimony of Rose and Friday undermines in part that of Morgan as to the factual investigative account of the matter upon which the latter assertedly based his decision to terminate Carroll. Notwithstanding Morgan's assertion that he is generally consulted before the Respondent effectuates a discharge, I seriously question the Respondent's motive in discharging an individual for a single isolated act of this type which occurred 3 months earlier. I am of the opinion, and so find, that, upon all of the credible evi- dence, the Respondent has failed to rebut the General Counsel's prima facie case of discrimination as to Paul Carroll. Accordingly, I find that the Respondent was dis- criminatorily motivated in its decision to terminate Carroll's employment, and that the latter's discharge on June 10, 1963, constitutes a violation of Section 8(a)(3) 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 commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor prac- tices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Paul Carroll on June 10, 1963, and thereby'violated Section 8(a) (3) and (1), it is recommended that the Respondent offer the above-named individual immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by making payment to him of the sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of reinstatement,32 less net earnings during said periods to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.33 In this regard it is further recommended that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay. In view of the fact that the unfair labor practices committed are of the nature which strikes at the root of employee rights safeguarded by the Act, it is further recom- mended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 34 1. Tennessee Plastics, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 31 Friday testified that she did see the spit on the grills before they were washed on this occasion, but that she had not registered any complaint It appears that her observation in this regard was happenstance, that it was not made during the course of her painting functions, and that she was not the next employee scheduled to handle the material. 33 See A P.W. Products Co, Inc., 137 NLRB 25. 33 See Reserve Supply Corporation of L.1, Inc v. N.L R.B , 317 F. 2d 785 (C A. 2). 34 At the close of the hearing, I reserved ruling on the Respondent's motions to (a) strike from the complaint the name of Lee Cox as an alleged discriminatee, (b) strike paragraphs 12 and 13 relating to the "no-solicitation" rule, and (c) dismiss the entire complaint. Consistent with my findings and conclusions herein, I hereby grant Respond- ent's motion as to (a), grant Respondent's motion as to (b) to the extent that paragraphs 12 and 13 allege promulgation and enforcement of said rule, and deny Respondent's motion as to (c). TENNESSEE PLASTICS, INC . 535 2. Local Union 934, International Brotherhood of Electrical Workers, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Paul Carroll, thereby discouraging membership in, and activity on behalf of, 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) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Tennessee Plastics, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union membership, activities, or desires, and threatening its employees with discharge if they join or retain membership in, or engaged in activities on behalf of, the Union. (b) Maintaining a rule broadly prohibiting its employees from engaging in solicita- tion for any purposes whatsoever on company premises. (c) Discouraging membership in Local Union 934, International Brotherhood of Electrical Workers, or in any other labor organization, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment, in violation of Section 8(a) (3) of the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in concerted' activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Paul Carroll immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges, and to make him whole in the manner and according to the method set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to compute the amount of backpay due under the terms of this Recommended Order. (c) Post at its plants in Johnson City, Tennessee, copies of the attached notice marked "Appendix." 35 Copies of said notice, to be furnished by the Regional Director, for Region 10, shall, upon being duly signed by the Respondent's representa- tive, be posted by it immediately upon receipt thereof, and be maintained for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.36 It is further recommended that the complaint herein be dismissed insofar as it alleges that the Respondent (a) discriminatorily discharged Clyde Rigsby, Lee Cox, and Millard Cox; (b) created the impression of surveillance of the union activities of "In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." ' In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its employees, as set forth in paragraph 11 of the complaint; (c) promulgated and enforced an unlawful no-solicitation rule; and (d) engaged in any unfair labor prac- tices other than as above found. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union membership, activities, or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with discharge if they join or retain membership in, or engage in activities on behalf of, the Union. WE WILL NOT maintain a broad no-solicitation rule prohibiting our employees from soliciting for any purposes whatsoever on company premises. WE WILL NOT discourage membership in Local Union 934, International Brotherhood of Electrical Workers, or in any other labor organization, by dis- charging, laying off, or refusing to reinstate any of our employees, or in any other manner discriminate in regard to hire or tenure of employment, or any term or condition of employment, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist Local Union 934, International Brotherhood of Electrical Workers, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. WE WILL offer Paul Carroll immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and will make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All of our employees are free to become, remain, or to refrain from becoming or remaining, members of Local Union 934, International Brotherhood of Electrical Workers, or any other labor organization. TENNESSEE PLASTICS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any questions concerning this notice or compliance with its provisions. Metal Polishers, Buffers, Platers and Platers' Helpers Inter- national Union, Local 39 and Lodge 1405 of the International Association of Machinists, AFL-CIO, Charging Party and Dominion Electric Corporation. Case No. 8-CD-36. Decem- ber 18, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed on November 19, 1963, 150 NLRB No. 7.