P. R. Mallory & Co., Inc.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mallory Capacitor Company, A Division of P. R. Mallory & Co., Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 9-CA-4250 January 9, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 17, 1967, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices in violation of the National Labor Rela- tions Act, as amended, and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. The Trial Ex- aminer also found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Ex- aminer's Decision and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 this case, and hereby adopts the findings , conclusions,2 and recommenda- tions 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 Recommended Order of the Trial Examiner and or- ders that the Respondent, Mallory Capacitor Com- pany, a Division of P. R. Mallory & Co., Inc., Glasgow, Kentucky, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Decision. I General Counsel contends that the Trial Examiner erred in granting Respondent's motion to strike the testimony of General Counsel's witness Frank Crain because of General Counsel's refusal to produce, under Sec- tion 102.118 of the Board 's Rules and Regulations, a statement given by Crain in connection with the investigation of objections to an election con- ducted at this plant on December 29, 1966. Crain's testimony consisted of a statement that he had participated in election campaigns in this plant, and his identification of a letter, sent to Respondent, naming employee members of the union organizing committee . Respondent stipulated that it had received this letter. As Crain's testimony would not effect the deci- sion reached herein, we find that General Counsel was not prejudiced by the Trial Examiner's ruling . See The Borden Company, 157 NLRB 1100, 1101. 2 We do not agree with the Trial Examiner that the Board 's finding in an barlier proceeding, that the Respondent maintained a rule prohibiting sol- icitation and distribution of literature during nonwork time in nonwork areas of the plant in violation of Section 8(a)(1), is resjudicata on the issue of continued maintenance as alleged in the present proceeding . However since there is outstanding against Respondent a Board Order to forthwith rescind the said rule, we find it unnecessary to determine this issue here. See Fitzgerald Mills Corporation, 139 NLRB 802, 803. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: On charges filed by International Union of Electrical, Radio and Machine Workers, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board (herein called the Board), on behalf of the Board by the Regional Director of Region 9 on June 13, 1967, issued a complaint and notice of hearing in which Mallory Capacitor Company, a Division of P. R. Mallory & Co., Inc., was named as the Respondent. It was alleged that the Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the mean- ing of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended (herein called the Act). The Respondent filed timely answer denying that it had en- gaged in or was engaging in the unfair labor practices al- leged. The case came on for hearing on August 23 and 24, 1967, at Glasgow, Kentucky. Each party was afforded a full opportunity to be heard, to call, examine and cross- examine witnesses, to argue orally on the record, to sub- mit proposed findings of fact and conclusions of law, and to file briefs. A brief was filed by the Respondent. I The principal question before the Trial Examiner is whether the Respondent discharged Darrel B. Van Meter and Linda Fay Brown on or about January 13, 1967, and February 23, 1967, respectively, because of their sym- pathies for, membership in, and activities on behalf of the Charging Party and for the purpose of discouraging mem- bership in the Union.2 1 While at the hearing the counsel for the General Counsel stated that the "General Counsel has no desire to argue orally ," but anticipated the submission of a brief; no brief from the General Counsel has been received by the Trial Examiner. The Charging Party did not file a brief. 2 It was also alleged in the complaint that the Respondent violated Sec- tion 8(a)(1) of the Act by: promulgating, publishing, and distributing to its employees a hand- book containing an unlawful non-solicitation, non-distribution rule which was and is now maintained and enforced which provides, inter alia, as follows: Solicitations , collection of funds, selling among employees, pledges, subscriptions , circulation of petitions , distribution of literature, solicitation of memberships or similar activities are not allowed on company property . Special permission may be granted in certain instances of recognized charities. (Footnotes continued on following page) 169 NLRB No. 5 MALLORY CAPACITOR COMPANY Upon the whole record, and upon his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation engaged in the manufacture of capacitors in its plant at Glasgow, Ken- tucky. During the past 12 months, which is a representa- tive period, Respondent had a direct outflow, in interstate commerce, of products valued in excess of $50,000 which it sold and shipped directly to points outside the State of Kentucky from its Glasgow, Kentucky, plant. The Trial Examiner finds, as is admitted by the Respondent, that at all times material herein, the Re- spondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now and has been at all times material herein a labor organization within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Termination of Employment of Darrel B. Van Meter Darrel B. Van Meter was first employed in August 1965 as a maintenance and setup man at a starting rate of $1.35 per hour. About 3 or 4 months later, another em- ployee was hired for the same job starting at $1.75 per hour. Van Meter taught the new man the work. Van Meter was upset and aggravated by the fact that the ju- nior employee whom he had taught was paid more for the same job. Van Meter thought it was unfair, and had made his views known to his superiors. During the course of his employment, Van Meter asked for and obtained a series of wage increases. He had gradually narrowed the gap in wages between himself and the other maintenance and setup man until at the time he quit he was receiving "pretty close to" the same amount as the other employee. His last wage increase which he had received prior to his termination was on November 7, 1966. This increase brought his wage to $1.85 an hour. In December 1966 Van Meter asked for an additional wage increase. Again around the first of January he asked for a wage increase from his foreman, Sam Meador. Van Meter testified: ` I asked him if they turned my raise down, or ac- cepted it, whichever one it was and if he would let me know about it because I was planning on quitting if I didn't get it. Meador responded that he would find out and let him know. (Footnotes continued from preceding page) In Mallory Capacitor Company, 162 NLRB 1404, the Board held that the foregoing language was violative of Section 8(a)(1) of the Act and or- dered the Respondent to "Forthwith rescind its existing rule against sol- icitation and distribution of literature as published in its employee hand- book to the extent that it prohibits employees from soliciting membership in a union organization on its premises during nonworking time or from distributing union literature during nonworking time in nonworking areas." 43 The Respondent concedes that Van Meter was "active on behalf of the Union and wore a union button." He had signed a union card and "gave out two or three buttons." When Van Meter arrived for work on January 13, 1967, employees in his department were wearing union buttons. A short time later Van Meter noticed that the employees had removed the buttons. About the same time Foreman Meador appeared and told the employees that "there was going to be a shortage and that they would have to let them go that night." Van Meter asked whether he was included in the group. Meador answered, "[N] of necessarily," unless he wanted to leave. Van Meter said that he would stay, which was agreeable to Meador. Later in the day Van Meter asked certain of the employees, one of whom was Glenn Fudge, why they were not wearing union buttons. While Van Meter was inquiring of Fudge, Fudge replaced his union button. At the time Van Meter observed Meador "standing over there by the desk look- ing at [them]." Approximately a half hour later Meador called Van Meter to "an isolated part of the plant" and told him that he "understood they turned [his] raise down and tonight would be a good night for [him] to quit." Van Meter responded that he "would give them two weeks notice when [he] did and when [he] decided to quit." Van Meter described the remainder of the con- versation, ". . . he said `tonight is when you quit' and I said `you mean right now?' and he said, `right now,' and then I asked him, I said, I asked him `you mean I don't even get to finish the week up' and he said, `no,' and then he picked up the phone beside the desk and called someplace and told them that that was it, and I said, `I don't even have a way home, I ride with another em- ployee although I could call the wife' and he said, `well, I'll punch your card out and let you go call your wife' and as I was leaving he called to me and said, `I'll even go better than that, I'll put on your card that you gave two weeks notice."' Van Meter proceeded toward the lunchroom to telephone his wife; Meador followed. Van Meter turned to him and asked "if it would be all right" if he told the lady he rode with that he would be going home. Meador replied that he would see that she received the message. Van Meter filed a claim for unemployment compensa- tion with the Division of Unemployment Insurance of Kentucky which was denied.3 Van Meter did not appeal. A transcript taken before an unemployment insurance examiner reveals that Van Meter testified: I made the statement that if I didn't get my next raise that was due I was planning on quitting, but I didn't say I was giving a date to quit. In regard to his conversation with Meador on the day of his termination Van Meter testified before the unem- ployment insurance examiner: He taken me off to an isolated part of the plant and informed me that my raise had been turned down. I said, well, I was planning on giving two weeks notice. And be said that won't be necessary, you can quit Since it appears that the Board has considered the rule and that an ap- propriate remedy would not differ from the remedy already imposed by the Board, in this respect, the matter is res adjudicata 3 The findings were, "The claimant quit because his request for a raise was denied. There was no violation of contract of hire. Therefore the voluntary quitting was without good cause." 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tonight. That was approximately ten minutes till seven. It was on the second shift. The foregoing facts are drawn from Van Meter's un- contradicted and credited testimony. Meador was not called as a witness. In view of the Respondent's union animus' and the lack of any reasonable explanation as to why Van Meter was abruptly sent home in the middle of a shift after he had been allowed to remain even though other employees had been "let ... go home early" because "there was going to be a shortage," the Trial Examiner is of the opinion that Van Meter's precipitous termination of employment was motivated by union considerations and was touched off by Meador's observation of employee Fudge's putting "his button back on" during the conversation with Van Meter. Moreover, it is reasonable to conclude that Meador was well aware of the manner in which Van Meter would react if he were told that his requested wage increase had been denied and that Meador used Van Me- ter's anticipated reaction as a pretext for ridding the Respondent's plant "pronto" of a union partisan. To this end Meador's action in terminating the employment of Van Meter was executed in such haste that Van Meter was never actually given the chance to resign or fix the time of his resignation. The decision in this regard was made only by Meador. The record as a whole, all of which the Trial Examiner has considered, clearly establishes that the "real motive"5 for the Respondent's conduct detailed above was because of his union sympathies and for the purpose of discouraging membership in a labor or- ganization. The Trial Examiner finds that by the discharge of Dar- rel B. Van Meter on January 13, 1967, the Respondent violated Section 8(a)(3) of the Act. B. The Discharge of Linda Fay Brown On July 18, 1966, the Respondent published a policy on absenteeism. The policy provided that when an em- ployee was absent for any reason on three occasions in 1 calendar month or on four occasions within 2 consecutive calendar months, he was to receive a written warning, and if within a 6-month period following the warning the em- ployee was again absent on three occasions within 1 calendar month or four occasions within 2 consecutive calendar months, he would be discharged. The policy also provided that if an employee was absent for 3 consecutive days without notifying the Company, he would be released. The only exceptions to the policy were when an employee was on a paid vacation or paid holiday or granted a leave of absence for pregnancy, jury duty, or forced military service. In the application of the policy, an occasion of absence was construed as a period of con- tinued absence and could be a day or several consecutive days of absence. Under the policy the Respondent's foremen had no authority to excuse employee absences or waive the ab- senteeism policy. Jack Brenner, the plant manager, testified that the plant manager had only that authority. " See Mallory Capacitor Company, 162 NLRB 1404. , "It is the 'true purpose ' or 'real motive' in hiring or firing that con- stitutes the test." Local 357, International Brotherhood of Teamsters, etc. v. N.L.R.B., 365 U.S. 667, 675. According to Brenner, the policy had been waived in only two cases in the past: once when the employee's absence was due to her house burning down and another when the employee had to take his daughter to Louisville for treat- ment of a deformed leg. Personal sickness of an employee had never been considered a ground for a waiver. Any in- formation or recommendation concerning a particular employee's circumstances which might warrant a waiver of the absenteeism policy came to Brenner's attention through the plant superintendent, who would have access to any such information through direct-line supervision. The foremen, who kept their own records of absentee- ism, were charged with the responsibility of initiating ac- tion under the policy. If a foreman failed to issue a warn- ing or failed to initiate the discharge of an employee who had violated the policy, chances were he would escape the consequences of his absenteeism since there was no monitoring action by the personnel department. The absentee policy was in effect on February 23, 1967, the date of Linda Fay Brown's discharge, and Brown was familiar with the policy. Moreover, the General Counsel concedes that on the date of her discharge Brown was in violation of the policy and was subject to discharge thereunder. Brown worked for the Respondent for about 11 months as a roller. Her foreman was Dennie Gooden. The Respondent admitted, ". . . she openly wore a button in the plant just as she testified. We knew that she was ac- tive in the union. Her name was in one of the letters we got." Brown passed out union leaflets, solicited em- ployees, and served on a "voluntary organizing commit- tee." On February 13, 1967, Brown and employee Clara May Puckett distributed union leaflets at the front steps of the plant after work; Plant Superintendent Garrison directed them to distribute the leaflets at the plant gate rather than on the front steps. When Brown arrived for work on February 23, 1967, Brown, at the request of her general foreman, Lloyd Dix- on, accompanied Dixon to the front office where she remained seated while he went into Superintendent Gar- rison's office. Dixon remarked to Brown that she was being "released for absenteeism" and that he did not want to tell her that "out front" because he did not "think it was any of their business." Dixon reappeared with a sheet of paper on which he pointed out Brown's absences. She responded that she had a doctor's statement for the days that she was absent. He said "doctor's statements don't count." He added "I guess you know the real reason we are releasing you." Brown said ". . yes I guess you know I will file charges. 116 Dixon left. Betty Williams, an employee of the personnel depart- ment, appeared and asked Brown whether she had been "told." Brown answered affirmatively and inquired about her insurance. She was informed that it would be auto- matically dropped and that she could get a refund on her uniforms. Information was also given to her respecting her bonds. Upon the request of Brown, Williams obtained 6 Dixon's testimony was substantially the same as that of Brown except that Dixon denied that he said, "I guess you know the real reason I am releasing you" and "yes and I guess you know I will file charges." MALLORY CAPACITOR COMPANY Brown's check which she gave to her together with a warning slip.7 Brown showed the doctor's statements to Williams. The conversation ended at this point and Brown went to the lunchroom, where she called her sister-in-law to come to get her. The "Summary of Employee Absenteeism" (July 18, 1966, to April 15, 1967) prepared by the Respondent and offered into evidence by the General Counsel discloses a number of cases in which employees should have received warnings for absenteeism but were not warned and several cases in which employees should have been discharged as violators of the policy but were not. One of these latter employees was Clara May Puckett, who was a member of the union organizing committee and was identified by Brown as the one who, with her, distributed union literature on company property. Brown, according to the summary, should have received a warning in respect to three occasions of absence in August, but did not. After all parties had rested, the Respondent moved to dismiss the complaint .9 While, as in the case of Mallory Capacitor Company, 163 NLRB 383, the circumstances surrounding the discharge of Brown are of a suspicious nature when considered in the light of the findings made in Mallory Capacitor Company, 162 NLRB 1404, nevertheless, based upon the criterion applied in 163 NLRB 383, the Trial Examiner is of the opinion that the General Counsel has not established a prima facie case supporting a violation of the Act in regard to the discharge of Brown as alleged in the complaint. The Respondent's motion to dismiss is granted in part and de- nied in part and the allegations in the complaint involving Brown are dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and sub- stantial relationship 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 RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully terminated the employment of Darrel B. Van Meter, it is recommended that the Respondent, in accordance with Board policy,10 offer Darrel B. Van Meter immediate and full reinstatement to his former or substantially equivalent position and without prejudice to his seniority 9 The warning slip entitled, "Avoid Verbal Orders," dated February 22, 1967, disclosed the following language, "This warning is being given because of of [sic] your absence on two separate occasions in Jan and Feb. Jan 9th & 10th & 19. Feb 6th & 22. This is your final warning You are being released for absenteeism." The statement was signed by D Gooden. 8 The doctor's statement from Lawrence P. Emberton, M.D., dated February 22, 1967, noted, "Linda Brown made a call to my office today." 45 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 payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory separation from em- ployment to the date of an offer of reinstatement,'' less net earnings during said period to be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall in- clude interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will ef- fectuate the purposes of the Act for jurisdiction to be ex- ercised herein. 3. By unlawfully separating Darrel B . Van Meter from employment on January 13, 1967, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning 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 Respondent, Mallory Capacitor Company, A Division of P. R. Mallory & Co., Inc., Glasgow, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discouraging membership in the International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization by discriminatorily discharging any of its employees or dis- criminating in any other manner in respect to their hire or tenure of employment, or any term or condition of em- ployment. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Darrel B. Van Meter immediate and full rein- statement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay which may have been incurred by reason of the Respondent's discrimination against him in accordance with the recom- mendations set forth in the section of this Decision enti- tled "The Recommended Remedy." (b) Notify Darrel B. Van Meter if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the 9 At the close of the General Counsel' s case-in-chief the Respondent moved to dismiss "each allegation of the complaint for the reason that the evidence presented in this case does not sustain the allegations for the complaint as a whole or in part of the individual allegations of the com- plaint." to See The Rushton Company, 158 NLRB 1730, fn. 2. 31 Since the record is not clear as to when Van Meter would have quit, if at all, backpay is recommended for the entire backpay period. 46 DECISIONS OF NATIONAL Selective Service Act and the Universal Military Train- ing and Service Act, as amended,after discharge from the Armed Forces. (c) 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 analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its Glasgow, Kentucky, plant, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Recommended Order, what steps have been taken to comply herewith.13 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 12 In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 1s In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith." LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage union activity or mem- bership in the International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization by discharging any of our employees. WE WILL offer Darrel B. Van Meter, whom we separated from employment, full reinstatement to his old job or a substantially equivalent job and we will pay him any loss of pay which he has suffered because we treated him in this manner. MALLORY CAPACITOR COM- PANY, A DIVISION OF P. R. MALLORY & CO., 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, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 6843686.