Bowling Green Manufacturing Co.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bowling Green Manufacturing Co. and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 9-CA-4209 January 8, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 20, 1967, Trial Examiner William W. Kapell issued his Decision in this proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirma- tive action, as. set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, 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 adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Bowling Green Manufac- turing Co., its officers , agents , successors , and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard at Bowling Green, Kentucky, on August 3, 1967,1 with all parties participating pursuant to due notice upon a complaint issued by the General Counsel on May 4,2 alleging violations of Section 8(a)(1) and (3) of the Act by Bowling Green Manufacturing Co., hereafter called the Respondent. All dates hereafter referred to the year 1967 unless otherwise noted. z Based upon a charge filed on March 3 by International Association of Machinists and Aerospace Workers, AFL-CIO, hereafter called the The complaint alleges, in substance, that on about February 16, Respondent in violation of Section 8(a)(1) of the Act interfered with its employees in the exercise of weir rights guaranteed in Section 7 of the Act by posting of a letter to all employees in which it criticized an em- ployee (Constance Jane Montgomery) for making (defamatory) statements about Respondent in a union- sponsored radio broadcast, and threatening her with dismissal if she failed to retract them; and that about February 20 Respondent in violation of Section 8(a)(3) and (1) discharged and refused to reinstate Constance Jane Montgomery because of her union activities. In its duly filed answer, and pursuant to a stipulation entered into during the hearing, Respondent denied only those al- legations of the complaint stating that it engaged in any violative conduct. All parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument and to file briefs. The General Counsel and Respondent filed briefs which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. COMMERCE Respondent ,3 a Kentucky corporation engaged in the manufacture of automobile parts at its plant in Bowling Green, Kentucky, during the past 12 months had a direct outflow of products , in interstate commerce , valued in ex- cess of $50,000 which it sold and shipped from its loca- tion at Bowling Green , Kentucky, to points outside the State of Kentucky. During the same period , Respondent had a direct inflow of materials , goods, and products, in interstate commerce, valued in excess of $50,000 which, in the course and conduct of its business operations, it purchased and caused to be transported to its place of business at Bowling Green, Kentucky , directly from points outside the State of Kentucky . Respondent admits, and I find, at all times material herein, that it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that, at all times materi- al herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Constance Jane Montgomery began working for Respondent in August 1954. Early in 1966 she became aware of the Union's organizing campaign at Respond- ent's plant and began to actively participate in it. She signed a union authorization card in April 1966, solicited other employees to sign such cards, became a member of the organizing committee, attended most union meetings, wore a union button to work, and made a tape for each of three radio broadcasts on behalf of the Union. Union. 3 A subsidiary of Holley Carburetor Co. 169 NLRB No. 15 BOWLING GREEN MFG. CO. 33 On February 8 she telephoned Mrs. Juanita Beach, a former fellow employee at Respondent's plant whom she had known for 11 years, to inquire about the skin condi- tion of her hands. During the ensuing conversation Mrs. Beach asked Mrs . Montgomery whether she had heard what had happened to her. Upon her reply that she had heard that Mrs. Beach had quit her job , the latter denied it and asserted that she had been discharged under the fol- lowing circumstances : In November 1966 the skin on her hands began breaking out, and although she was treated for this condition, it worsened. The company doctor ad- vised her not to continue the work that she was doing because it involved handling chemical solutions , and in- structed her to stay home the balance of that week. The following Monday morning when she returned to work, she was advised by the company doctor that he had requested that she be placed on a "dry" job. However, she was sent to her former department and given work similar to that previously done by her. Her skin condition began worsening and on the following day, Tuesday, she again saw the company doctor, who advised her to refuse to work on the chemicals which were harmful to her con- dition. Upon her return to work on Wednesday morning she was assigned to the same department but placed on a "dry" job on a wheel . A short while later the wheel broke down and her foreman advised her that he was assigning her to Bob Lewis' department . When she protested that she could not work in that department because it required dipping parts in chemicals , her foreman stated if she were unable to do the job he had for her , then she would have to go home and leave her badge in the office. She there- upon left her badge in the office and went home. After relating the circumstances regarding the termina- tion of her employment , Mrs. Beach asked Mrs. Mont- gomery what she was doing on behalf of the Union, and when told that she was scheduled to make a radio broad- cast, Mrs. Beach asked that her story be told on the radio. Mrs. Montgomery readily agreed provided it met with the approval of Clark Conway, the Union's organizer. She then took the matter up with Conway, who indicated that he had heard a similar story from Mrs. Beach, and he ap- proved of broadcasting her story.4 Mrs. Montgomery then prepared the script which Conway okayed, and it was taped on February 13. On February 15 at 3:40 p.m. the tape was played on station WGBN in Bowling Green. The script (G. C. Exh. 4) stated the following: Hello, this is Clark Conway , speaking in behalf of the IAM. With me in the studio today is Jane Mont- gomery, an employee of Holley Carburetor for the past 13 years , and presently employed in the Burr Department. Jane, first of all , let me ask you why, and in your opinion , why are the majority of Holley Carburetor employees seeking IAM Union representation? That's a difficult question to answer , Clark, for with so many people involved, naturally a variety of reasons apply. However, speaking for myself and for a number of others to whom I have talked one reason seems to emerge more often than others. This is the unfair treatment a great many people have received when they became injured or sick . For instance, just recently one employee who had been with the Com- pany for years became unable to continue on her as- signed job because the chemicals in which she had to work affected her hand so badly she was finally sent to 'the Company physician who told her not to con- tinue working in them. Supervision and Personnel in- sisted that she do so and when she refused on advice of this doctor, they sent her home saying that she voluntarily quit. Now they have even stopped her from drawing unemployment insurance. Naturally, we all want union wages and working con- ditions in our shop, but I think on the whole the most important thing to all of us is a good union grievance procedure which will protect us from treatment such as this. It is this, I think, which will be uppermost in the minds of Holley workers when they step behind that curtain on election day and mark their ballots for the IAM. The day following the broadcast, Mrs. Montgomery was summoned to the office of E. J. Jones, Respondent's personnel director. There, Jones, in the presence of three other employees who were summoned to witness the in- terview, told her she was in "bad trouble," and then played a recording of her radio broadcast. Following the playing of the recording and her admission that she made the tape for it, Jones accused her of telling lies which were a malicious slander against the Company in hopes that it would help the Union. Jones then identified the employee mentioned in the broadcast as Mrs. Beach, and after denying that she was discharged , asserted that she quit and had refused to take other jobs which were offered to her all over the plant. Jones also questioned Mrs. Mont- gomery as to the identity of any other employees who had been unjustly treated when they became sick or were in- jured on the job. Following a discussion in which they dis- agreed as to others, including herself, who allegedly were unjustly treated, Jones threatened to fire her unless she made a retraction of her broadcast within 48 hours. She replied that they had no more airtime available for that week, and that, moreover, she would have to consult with Conway. She then left Jones' office and resumed work- ing. After work that afternoon she visited the Union's or- ganizing office where she related to Conway what had happened in Jones' office , and expressed unwillingness to make a retraction because she felt she had broadcasted the truth. Mrs. Beach, who was also present at the union office at the time, upon being questioned by Mrs. Mont- gomery about the truthfulness of her broadcast, reaf- firmed that it was the truth. On the afternoon of February 16, Mrs. Montgomery observed a posting on the company bulletin board.5 It stated that Mrs. Montgomery had made a number of false and malicious statements about the Company and its em- ployees during her recent broadcast, that Mrs. Beach had voluntarily quit because she was dissatisfied, although every reasonable effort had been made to place her on a job which would not aggravate her dermatitis condition, and that Mrs. Montgomery had been given 48 hours to publicly retract her malicious statements or suffer discharge. On the following Monday morning 'upon her appearance at work, Mrs. Montgomery was summoned to Jones' office. There, she admitted not having retracted her broadcast and was told by Jones that she was being discharged. Upon his request she signed separation 4 These findings are based on the testimony of Mrs Montgomery. Clark to Mrs. Montgomery by Mrs . Beach concerning her discharge. Conway also testified that in a conversation with Mrs. Beach after her 5 The posting admittedly remained on the bulletin board for several discharge , he was told facts similar to those which allegedly were related days. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD papers which stated that she was being discharged for publicly making false and malicious statements about the Company and its employees in a radio broadcast on February 15.6 Jones testified that upon being advised of the condition of Mrs. Beach's hands, he assigned her to work in Foreman Lewis' department where she would not have to expose her hands to chemicals, but she declined the as- signment, stating she was unable to get along with Lewis, and that she then quit her job in a huff, vigorously throw- ing her badge on the desk of his secretary. He asserted that he knew her statements concerning the company were; false because he personally handled the termi- nation of Mrs. Beach. He testified further that in May, Mrs. Beach called him on the telephone, admitted that everything she had said was false, that the Union had put her up to it so that Mrs. Montgomery could make her broadcast, and that she needed a job, having six children to support, but realized that the Company would probably not give her one because of what she had done. The record also shows that on March 1, the Depart- ment of Economic Security, Division of Unemployment Insurance, of Kentucky, issued a determination that Mrs. Beach had voluntarily quit her employment without good cause, and therefore was not entitled to benefits, and that a company booklet entitled "Employment Policies and Benefits for Hourly Personnel of Bowling Green Manu- facturing Co., Subsidiary of Holley Carburetor Co.," of which Mrs. Montgomery was admittedly cognizant, states, inter alia, that violation of specified shop rules and regulations will be sufficient grounds for disciplinary ac- tion ranging from a warning to immediate discharge, de- pending on the seriousness of the offense, and that rule 25 provides: "Making false, vicious or malicious statements concerning any employee, the Company or its products." FINDINGS AND CONCLUSIONS Viewing all the evidence, and appraising the demeanor of Mrs. Montgomery, whose testimony impressed me as being direct, forceful, and truthful, I find, as asserted, that she was told by Mrs. Beach what she related in her broad- cast concerning the termination of Mrs. Beach's employ- ment, and that she in good faith believed it to be, the truth. The only consequential evidence submitted by Respond- ent concerning Mrs. Montgomery's knowledge of or good cause to believe the falsity of the statements in her broadcast were her acquiescence in signing separation papers stating that she was discharged for publicly mak- ing false and malicious statements about the Company, and the alleged confession of Mrs. Beach to Jones 3 months after the discharge of Mrs. Montgomery, that the broadcast accusations against the Company were untrue and were instigated by the Union. I credit and find her ex- planation, as to why she signed the separation papers, adequately accounts for the signing and counteracts any inference that she thereby admitted the truth of the reason ascribed for her discharge. As for the effect of Mrs. Beach's confession, even if credited as having been R On cross-examination when being questioned as to why she signed the separation papers, she explained that she accepted the cause for her discharge as an excuse, and that had she been willing to make the retrac- tion, thereby admitting her lies, there would have been no need for the separation. ' It is significant to note in this regard that according to the uncon- tradicted testimony of Mrs. Montgomery, Jones told her at the time of her discharge, "We are awfully sorry that you got taken in by this two-bit out- fit." made, it is significant to note that the confession was made in an attempt to recover her job under very trying circumstances - the necessity to support her six children. Under such circumstances it would not be unreasonable to suspect its veracity and to question its motive. Moreover, the confession did not directly implicate Mrs. Montgomery as a knowledgeable participant in the plan.7 Thus, even crediting Jones' testimony that Mrs. Beach confessed as asserted, I would conclude that Mrs. Mont- gomery was duped into making her broadcast.8 The weight of Respondent's evidence is directed primarily at proving the untruthfulness of the broadcast. Having found that Mrs. Montgomery did not deliberately or knowingly falsely or maliciously slander Respondent, I conclude for the reasons appearing hereafter that it is unnecessary to resolve the truth or falsity of her state- ments in determining whether or not Respondent violated the Act. The statements made by Mrs. Montgomery clearly and unmistakeably pertained to matters of legitimate concern to employees in their capacity as employees, such as the betterment of working conditions through the protection of good union grievance procedures. The Board has held that the "Act protects employees against reprisals when they speak freely `on organizational matters' - and in one way or another denounce the employer for his conduct of labor relations or affairs germane to the employment relationship."9 However, as stated in El Mundo Broad- casting Corporation, 108 NLRB 1270, 1278-79: The Board has explicitly declared that the Act does not protect everything an employee may do or say in the course of union or concerted activity 6 and has ruled that there are certain standards of conduct which must be observed in the course of such activi- ty for an employee to retain the Act's protection 7 . .. provided that the statements were not "deliberate- ly or maliciously false," and further that it is im- material to a determination that an employer has un- lawfully discharged an employee for giving currency to inaccurate information in the course of concerted activity that the employer acted upon a good-faith belief that the information was deliberately or mali- ciously false if such was not the case. s Westinghouse Electric Corporation, Ansonia Plant, supra [77 NLRB 1058]. 'E. A. Laboratories, Inc., 88 NLRB 673 (calling the company president a "Fascist" or a "Fascist lover" while distributing union literature). As has been found, Mrs. Montgomery's broadcast truthfully reported the substance of what she had heard from Mrs. Beach, and she acted in good faith without malice and for a proper purpose. Under these circum- stances, even if it be assumed that Respondent discharged her for making what it mistakenly considered to be false and malicious accusations, Respondent would not thereby be provided with a defense. The law is clear that once an employee's statutory rights have been in- fringed on by his discharge, it is immaterial to a finding of violation that the discharge is based upon a mistaken be- lief and not motivated by union hostility.10 Or, as the 8 No reason was advanced for either party's failure to call Mrs. Beach as a witness. 'Jefferson Standard Broadcast Company, 94 NLRB 1507, 1511-12, affd. sub nom . N.L.R.B. v. Local Union No. 1229, International Brother- hood of Electrical Workers, 346 U.S. 464. "Jackson Tile Manufacturing Company, 124 NLRB 218, 235. Respondent's contention that the failure to establish its antiunionism re- lieves it of any misconduct in the discharge is misplaced. BOWLING GREEN MFG. CO. Court of Appeals for the Third Circuit stated in Cusano d/b/a American Shuffleboard Co. v. N.L.R.B., 190 F.2d 898,902-903: Petitioner urges ... that whether or not a discharged employee actually makes a false state- ment is irrelevant so long as the employer reasonably believes he did and so long as the employer actually discharges the employee on the strength of that be- lief. It is true that an employer may discharge an em- ployee for a good reason, a bad reason, or no reason at all .... This rule, however, is necessarily limited where an employee is engaging in activities protected by the Act.... To adopt petitioner's view would materially weaken the guarantees of the Act, for the extent of employees' protected rights would be made to vary with the state of the employer's mind. We conclude that if the conduct giving rise to the em- ployer's mistaken belief is itself protected activity, then the employer's erroneous observations cannot justify the discharge. Accord: N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21; Salt River Valley Water Users' Association v. N.L.R.B., 206 F.2d 325, 329 (C.A. 9); Walls Manufacturing Company,Inc.,137 NLRB 1317, 1319. Although Mrs. Montgomery's broadcast specifically included references to the benefits which would be derived from unionization of the plant, and to the oppor- tunity to obtain such benefits through the forthcoming election, Respondent's response and objection were con- fined only to what it construed as being false and mali- cious statements concerning the treatment of its injured or sick employees. General Counsel, nevertheless, con- tends that Mrs. Montgomery's discharge in the context of those circumstances discouraged union membership in violation of Section 8(a)(3). However, whether the discharge is viewed as a violation of Section 8(a)(1) alone, or also of 8(a)(3), the remedy necessary to effectuate the policies of the Act would be the same. Consequently, I deem it unnecessary to determine whether Respondent's conduct also constituted a violation of Section 8(a)(3). The General Counsel also contends that Respondent's notice posted on the bulletin board advising the em- ployees that Mrs. Montgomery faced discharge unless she retracted her false and malicious statements, restrained, coerced, and intimidated them in violation of Section 8(a)(1) of'1the Act. I disagree; I find that the pur- pose and the effect of the notice was not to interfere with its employees' union activities, but rather to warn em- ployees that false and malicious statements about the Company would not be tolerated. Furthermore, it also ap- pears that although Mrs. Montgomery's union activities were well known to Respondent, she admitted that she was never questioned, reprimanded, or threatened in con- nection with those activities. Accordingly I shall recom- mend the dismissal, of those allegations of the complaint relative to Respondent's alleged violation of Section 8(a)(1) based on its posted notice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial 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. 35 Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. At all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. 2. At all times material herein, Respondent has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 3. By discharging Mrs. Montgomery because she en- gaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, Respondent interfered with, restrained, or coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent has not engaged in other alleged unfair labor practices not specifically found herein. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has discriminated against Constance Jane Montgomery by discharging her in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent offer her im- mediate and full reinstatement to her former or substan- tially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of her discrimination in accordance with the for- mula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Bowling Green Manufacturing Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condi- tion of employment, because they had engaged in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer to Constance Jane Montgomery immediate and full reinstatement to her former job without prejudice to any rights and privileges previously enjoyed. (b) Make whole Constance Jane Montgomery for any loss of pay she may have suffered as a result of the dis- crimination against her, to the extent and in the manner set forth in the section of this Decision entitled "The Remedy." (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 cards and reports, and all other records necessary or useful to determine the amount of 350-212 0-70-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay due under the terms of this Recommended Order. (d) Post at its plant in Bowling Green, Kentucky, cop- ies of the attached notice marked "Appendix." 11 Copies of said notice, on forms provided by the Regional Di- rector for Region 9, after being duly signed by Respond- ent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive 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 receipt of this Decision, what steps have been taken to comply herewith.12 (f) Notify Constance Jane Montgomery if presently serving in the Armed Forces of the United States of her 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. IT IS FURTHER RECOMMENDED that the Complaint be dismissed insofar as it alleges that Respondent has vio- lated the Act otherwise than as found herein. 11 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." 12 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." 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: After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Bowling Green Manufacturing Co., violated the Na- tional Labor Relations Act, and ordered us to post this notice to inform our employees of their rights. The Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things The Board has also ordered us to assure our em- ployees that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT discharge or discriminate against you because you have engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection. Since the Board found that we did so when we discharged Constance Jane Montgomery, WE WILL OFFER her full reinstate- ment to her old job, and WE WILL pay her for any loss that she suffered because of her discharge. [WE WILL notify Constance Jane Montgomery if presently serving in the Armed Forces of the United States of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces]. BOWLING GREEN MANUFACTURING CO. (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.