Emerson Electric Co.

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emerson Electric Co., U.S. Electrical Motors Divi- sion and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 26- CA-3413 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On December 31, 1969, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, 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 National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and finds merit in Respondent's exceptions. Accordingly, we shall dis- miss the complaint for the reasons set forth hereinafter. The Trial Examiner found that employee Henry, a motor inspector, was discharged in violation of Section 8(a)(1) for insisting that fellow employees Ashley and Staggs be permitted to accompany him as witnesses at a disciplinary meeting to which he had been summoned by Respondent's officials. He further found that Respondent violated Section 8(a)(1) by reprimanding Ashley and Staggs for leaving their work stations without the permission of their foremen, contrary to a well understood company rule, to thus act as witnesses. The Trial Examiner concluded that both the action of Henry in endeavoring unsuccessfully to insist upon the attendance of Ashley and Staggs at the disciplinary meeting and their attempt to attend that meeting were protected concerted activities with which the Employer had unlawfully interfered in violation of Section 8(a)(1). We do not agree. On June 21, 1969, a Saturday, Dale Henry violated a company rule requiring motor inspectors to keep the test booth doors shut while testing motors. Henry was told by a supervisor that the matter of possible disciplinary action would be considered on Monday. As he had been warned, Henry was summoned to Plant Superintendent Powell's office on Monday after- noon. The Trial Examiner found, and we agree, that the purpose of the meeting was not merely to further investigate Henry's breach of working rules, but to impose discipline upon Henry for that breach. Henry had prearranged with employees Ashley and Staggs to accompany him to the Monday meeting to act as witnesses. As Henry and his foreman walked to the meeting, Henry motioned to Ashley and Staggs to leave their work stations and follow him. They did so. Neither had received permission from their respective foremen to leave their work stations, contra- ry to a well-established company rule requiring such permission.' When the group reached Powell's office, and Ashley and Staggs were asked by Respondent's officials why they were there, they responded, in effect, that they wanted to assure that Henry received fair treatment. The plant manager, hearing loud noises, approached the plant superintendent's office, was apprised of the situation, and instructed Ashley and Staggs to return to their work stations. The two insisted upon their right to be present at the disciplinary meeting and did not return to work, but finally, at management's request, sat in the lobby while the meeting took place in the plant manager's office. As the meeting began, Henry twice insisted that Ashley and Staggs be permitted to attend, and Staggs looked into the office and said, "Dale, you don't have to take this." Respondent's officials attempted to discuss the matter of Henry's breach of the testing booth rule. Henry admitted the breach, but offered no promise to comply with the rule in the future. Henry also admitted to having brought a camera into the plant that same morning, contrary to another company rule. The discussion was heated throughout, and it ended with Plant Manager Blair telling Henry that the latter was being insubordinate, with Henry replying, "Well, you are insubordinate to me." The Trial Examiner found that Henry's conduct through- out the episode was "crude," "brash," "disrespectful and insubordinate." The following morning, Henry was discharged, the reasons given by Respondent being "failure to follow instructions and being disrespectful to plant manager." Ashley and Staggs received formal reprimands for leaving their work stations without permission. The Trial Examiner found that the "insubordination" for which Henry was in part discharged was rooted in his aggressive insistence upon having Ashley and ' Staggs had attempted to secure such authorization, but had been unable to locate his foreman 185 NLRB No. 71 EMERSON ELECTRIC CO 347 Staggs present as witnesses at the meeting. The Trial Examiner further found that Henry had a right to make such a demand, arising from his statutory right to engage in "concerted activities . . for the purpose of mutual aid or protection" guaranteed by Section 7 of the Act. The Trial Examiner accordingly conclud- ed that the discharge of Henry and the reprimands given to Ashley and Staggs were violative of Section 8(a)(1) of the Act. The alleged violation of Section 8(a)(1) depends upon whether the concerted activities protected by Section 7 encompass the conduct of Henry, Ashley, and Staggs described above. We do not think that the ambit of Section 7 reaches quite that far. The statutory right of employees to collective- ly protest an employer's conduct, to present grievances to him, and to engage in other concerted conduct is far ranging. We cannot say, however, that Section 7 creates a right to insist, to the point of insubordina- tion, upon having fellow employees present as witness- es to a meeting in a private management office at which it is expected that some measure of discipline will be meted out. It would appear from the record that, if the three employees had not so vehemently insisted upon the presence of two of them at the meeting, a milder punishment would have been visited upon Henry. If Ashley and Staggs had then been unhappy with that penalty, they could have expressed their displeasure by presenting a point grievance to their Employer or by striking, and their conduct would have been protected by the Act.' But, in our view, what they in fact attempted to do, in the manner and at the place in which they attempted to do it, does not rise to the level of protected concerted activity under Section 7.' Since we find no violation of the Act with respect to employees Henry, Ashley, and Staggs, we shall dismiss the complaint in its entirety. of Section 8(a)(1) of the Act, I am constrained to note my disagreement on two important points. In my view the record clearly does not support the factual finding of the Trial Examiner, which my colleagues adopt, that the disciplining of these employees was prompted by the employees' insistence that Ashley and Staggs be present at Henry's discipli- nary meeting. To the contrary, the record contains overwhelming support for the conclusion that Henry was discharged for "failure to follow instructions and being disrespectful to management," and that Ashley and Staggs received written reprimands for leaving their work stations without permission of their foremen in violation of a known plant rule. Henry's discharge memorandum written on the day of his discharge clearly sets forth in two separate instances that he was discharged for the above-stated reasons.' The initial question as to whether Ashley and Staggs were to attend the meeting was resolved and it was his subsequent conduct at the meeting that the Trial Examiner characterized as "disrespectful and insubordinate" that prompted his discharge. Henry himself testified that after he was asked to go in Doug Blair's office, "Eddie [Staggs] said that I didn't have to go in there without them and I said that I would that I wanted to hear what they had to say."5 If in fact Henry was discharged for his insistence upon having his friends at the meeting, it was illogical for the meeting to have continued and his termination to be announced on the following morning after a review of his personnel file. Conse- quently, it is farfetched to conclude that Henry's discharge was prompted by his insistence upon their presence and not what ensued thereafter. Henry not only violated a clear rule regarding closing of a testing booth door but, more importantly, gave no indication that he would comply with the rule in the future. His failure to respond to questions at the meeting; ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, concurring specially: Despite my agreement with my colleagues' conclu- sion that the discharge of Henry and the reprimands of employees Ashley and Staggs were not violative ' "TO Office Personnel Files Indnidual \NP I linitial, of Phelp,I Date 6-_-1-69 Suhleu Dale Henn W/N-Failure to folloo in,truwon, and hung disre,pecitul to nian .m_ement ' Modern Motors, Inc v NLRB, 198 F 2d 925 (C A 8), N.LR B v Kennametal, Inc, 182F2d817(CA 3) ' Since we consider the basis for our decision in this case to be clear enough, we see no need to respond to the separate opinion of Member Jenkins who joins us in dismissing the proceeding , other than to note that our failure to do so is not to be taken as adopting any of the broad legal positions he attributes to us or as reflecting any intention to depart from established Board principles Doug Blair discharged Dale Henry today, 6 / 24/69 for failure to follow instructions and being disrespectful to plant management Dale tested motors Sat 6/21 /69 with the test booth opened which he was specifically told not to do His insubordination started by a telephone call to Curtis Powell `asking how many people he had in his office' Dale requested to have two witnesses but was denied He became belligerent and disres- pectful to the point of having to reschedule the meeting " In my view, the full import of the discharge memorandum supports the conclusion that he was discharged for the reasons stated therein Including his conduct at the meeting and not because of his initial insi,ku c upon witnesses heing present The Trial F,aminer , technique of underlining certain portion, of the discharge memorandum ind enorine other portion, i. taking selected Language out of Lontest ' Record, p 118 This was corroborated by Ashley's testimony at pp 158-159 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his denial and later admission that he had also brought a camera into the plant in violation of a plant rule; his accusing the plant manager of being "insubordi- nate" to him create a picture of overreaction to management's attempt to correct his error and his attitude and mete out, at least initially, minor disci- pline. It is also clear from Staggs' testimony that the reprimands given him and Ashley were prompted by their leaving their work station without permission. In sum, the Trial Examiner's conclusion that Henry, Staggs, and Ashley were disciplined for their insistence that Staggs and Ashley be permitted to attend Henry's disciplinary meeting is not supported by the record as a whole.' Perhaps more important is the majority's rejection of the principle enunciated by the Trial Examiner, and in which I concur, that an employee has a Section 7 right to have fellow employees present at a disciplinary meeting with management.' Either the majority is repudiating the position taken by the Board in Texaco, Inc., 168 NLRB No. 49, or they are taking a position that employees' Section 7 rights are dependent on the presence of a union. I cannot agree with either view. While not a signatory to the Texaco decision, I concur in the views expressed therein that an individ- ual has a right to union representation at a disciplinary meeting if he so requests! In Texaco, a Board panel concluded in part: Consequently, we find in the circumstances here that the Respondent's refusal to respect Alaxis' request that the bargaining representatives be permitted to represent him at the meeting inter- fered with and restrained him in the exercise of his rights guaranteed by Section 7 of the Act. (168 NLRB No. 49.) For the majority to now take the position that an employee who is called to a disciplinary meeting and Contrary to the Trial Examiner and my colleagues, I find that Staggs' testimony contradicts rather than corroborates the testimony of Ashley The factual findings of the Trial Examiner are supported only by the isolated testimony of Ashley bolstered as it was by selected emphasis on certain portions of the discharge memorandum In light of the testimony of Henry, Staggs, the management representatives, and the full context of the discharge memorandum, there is overwhelming record support that Henry was in fact discharged for failure to follow instructions and insubordination Henry's personnel file also contained notice of a prior disciplinary layoff for insubordination In effect, the majority accepts the Trial Examiner's factual findings and rejects the principle enunciated therein, while I would reject the factual findings while accepting the principle This is not an absolute right, of course, but subject to reasonable control and accommodation of the parties Like our rules on employee solicitation and distribution of literature which represents an accommoda- tion of employee and employer rights, an employer may not wish to interfere unreasonably with the production processes and may therefore wish to schedule a disciplinary meeting on other than working time requests two employees to go with him, is not engaged in protected concerted activity within the meaning of Section 7, is a marked retreat from existing case law 9 The majority's decision here is a departure from Texaco which has the effect of curtailing an individ- ual's Section 7 rights because of the absence of a union, an interpretation warranted neither by the statutory language nor existing case law. Accordingly, I would merely dismiss these allega- tions as factually unsupported. ' Cf the majority's broad interpretation of Sec 7 rights in G & W Electric Co., 154 NLRB 1136, where an employee circulated a petition concerning a credit union during his lunch hour and such conduct was found to be concerted protected activity within the meaning of Sec 7, and my dissent therein See also N.L.R B v J. I Case, 198 F 2d 919, 922 (C A 8), citing Carter Carburetor Corp v NLR.B., 140 F 2d 714, 717-718 (C A 8), that "This 'mutual aid' and 'concerted activities' include we think, the right to join other workers in quitting work over protest over the treatment of a co-employee or supporting him in any other grievance connected with his work or his employer's conduct" See also Modern Motors, Inc v N.L.R B, 198 F 2d 925 (C A 8), employees leaving work premises to seek legal advice, NLRB v Washington Aluminum Co., 370 U S 9 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE S BUSH , Trial Examiner- This case presents two factually related issues. The first is whether Emerson Electric Co. by its U S. Electrical Motors Division, Respond- ent herein, discharged employee Dale H. Henry in violation of Section 8(a)(1) of the National Labor Relations Act because he engaged in protected concerted activity in the exercise of rights guaranteed by Section 7 of the Act or whether he was discharged for insubordination as contended by the Company. The second issue is whether the reprimands issued by the Company to Henry's coworkers, Tommy Ashley and Eddie G. Staggs, for their insistence on accompa- nying Henry to the interview leading to his discharge are in violation of Section 8(a)(1) because they engaged in protected concerted activities in the exercise of rights guaranteed by Section 7 of the Act or whether they were reprimanded solely for leaving their work stations without permission as contended by Respondent The complaint herein was issued on August 11, 1969, pursuant to a charge filed on July 8, 1969, and served on Respondent on July 10, 1969, and pursuant to a further charge filed on August 6, and served on Respondent on August 7, 1969. The case was heard at Mena, Arkansas, on September 23 and 24, 1969. Briefs filed by General Counsel and Respondent were received on November 10, 1969. These have been carefully reviewed and considered. ' Respondent's motion, filed simultaneously with its brief, to correct certain typographical errors in the transcript of the testimony, is hereby granted as set forth in Appendix A hereto [Omitted from publication i EMERSON ELECTRIC CO FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation with an office and place of business located at Mena, Arkansas . Its Mena plant is engaged in the manufacture of electrically powered motors which are ultimately utilized for various industrial purposes and by irrigation districts for use as water pumps. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received at its Mena plant goods and materials valued in excess of $50,000 directly from points outside of the State of Arkansas. During the same period , Respondent sold and shipped from its Mena plant goods and materials valued in excess of $50,000 directly to points outside of the State of Arkansas . Under these facts, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act. II THE LABOR ORGANIZATION The International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. IIi. BACKGROUND AND ALLEGED UNFAIR LABOR PRACTICES Emerson Electrical Co has some 30 plants throughout the United States The Company's Mena plant is the only plant involved in this proceeding . The Mena plant was opened as a new plant some 4 years ago and employs approximately 425 persons in the production of electrical motors in a three shift operation. There have been at least two unsuccessful attempts by the United Auto Workers to organize the Mena plant in 1967 and 1968. The Machinists Union here involved commenced an attempt to organize the Mena plant in April 1969, but has not to the date of trial herein in late September 1969 filed a petition with the Board for a representational election. The dischargee herein, Dale H Henry, age 28, commenced employment at the Mena plant some 31/2 years prior to his discharge on June 24, 1969 He participated in the 1967 campaign of the United Auto Workers to organize the plant by signing a union authorization card and trying to get other employees to do the same He likewise participated in the United Auto Workers second campaign of 1968 by signing another union card and passing out union leaflets. He similarly participated in the 1969 campaign of the Machinist Union to organize the plant by signing a union card in April of that year. In addition he attended many of the weekly meetings of the Machinist Union, passed out union leaflets to employees at the plant, and obtained signed union cards from two or three employees. 349 For much of his period of employment at the Mena plant, Henry was employed as an inspector . In that capacity, it was his function to test finished electric motors to make certain they meet the standards of the Company prior to their release for shipment . His work was performed inside an 8 by 8 foot test booth which straddles the assembly line. Henry's inspection was largely an aural inspection in which after starting up the electric motor under inspection he listened for defects in its operation He tested approximately 80 motors a day, one at a time. The booth in which he worked is designed to keep out extraneous noises which would interfere with effective listening for defects in the operating motor The booth has two doors which management requires to be kept shut at all times while inspection is going on inside the booth so that the inspector in the booth is insulated as much as possible from distracting outside noises from the assembly line while he is listening for defects Each of the two doors has conspicuously printed signs thereon in red , reading, "Keep doors closed while testing motors. NO EXCEPTIONS." Henry was at all times aware of the company rule requir- ing that the doors of the inspection booth be closed while he is engaged in inspecting motors within. On June 21, 1969 , a Saturday, Henry left one of the two doors of the inspection booth open for a period of about 2 hours while he was testing motors within. He was working a 4-hour shift that morning from 5 a.m. to 9 a.m. The open door was observed by Marvin Milam, foreman of the assembly department , who reported the matter to Henry's supervisor , Jim Morgan, quality control manager Morgan, who had independently observed the open door of the test booth , spoke to Henry about it at the end of the 4-hour shift Henry's excuse was that he had forgotten to shut the door. Morgan reminded Henry again of the necessity for having the doors shut "so that you can better hear the motors and detect any defective noises" and told him that in view of the fact the Company had installed fans in the booth to keep him comfortable and had painted warning signs on the doors of the booth that the doors had to be shut, he couldn 't understand Henry's failure to obey the order He told Henry he would have to consider disciplinary action and would take the matter up with him on Monday . Morgan reported the incident to Plant Manager Douglas Blair that same Saturday and informed him that he would seek disciplinary action through the personnel department the following Monday. Next Monday morning, June 23, Morgan reported the open-test-booth-door incident to Personnel Manager Harlow Phelps. He requested' Phelps to call Henry in for a "hearing" on the matter and recommended the imposition of a 2- day disciplinary layoff for the violation "in view . . . past history of the employee." Phelps at first disagreed with Morgan's proposal for a disciplinary layoff on the ground that it would be too severe in view of the fact that Henry had had only one effective prior warning in the preceding 12 months. After further discussion Phelps was tentatively persuaded by Morgan that the 2-day layoff would be justified because Henry had been reprimanded only a few days prior thereto for unsatisfactory incentive performance (Resp. Exh. 5) although that reprimand was not an effective or a formal warning notice. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morgan also contacted Plant Superintendent Curtis Pow- ell for his consent for the meeting with Henry, as Powell is the only supervisor outside of Plant Manager Blair with authority to impose a disciplinary layoff penalty on an employee. Blair has the sole authority for disciplinary dis- charges. By agreement, a meeting was set up at Powell's office for 3 p.m. that Monday (July 23) for the interview with Henry on his violation of the company rule under discussion. At or around 3 p.m. that same day the aforementioned Marvin Milam, foreman of the assembly department, upon instructions from Powell, stopped at Henry's work station and told him he was wanted at Powell's office for a meeting. Henry had been expecting the call because of the open- door incident. In anticipation of such a meeting with management, Henry had earlier that day asked two fellow workers, Eddie G. Staggs and Tommy Ashley, to accompany him to any such meeting he might be summoned as "witness[es] for my own rights." Ashley, also an inspector, and Staggs, a toolroom employee, readily agreed as they sincerely believed that Henry had been harassed by management for some period of time because of his union interests. In the early afternoon of the same day that Henry was summoned to Powell's office, it came to the attention of management that Henry had brought a camera into the plant that morning and that he had attempted to take pictures of the plant contrary to an unpublished but generally well-known company rule against picture taking of the plant in the interest of guarding trade secrets from competitors. Henry admitted attempts to take pictures of his test booth that morning before the start of the day's work but did not explain why he wanted the photographs. His efforts to take pictures did not succeed because of his failure to turn the film reel for exposure. Upon receiving work from Milam that Plant Supervisor Powell wanted to see, him at his office, Henry insisted upon first speaking to Powell over the interoffice telephone. The record' shows that when Powell answered the telephone Henry asked "Who do you have in your office?" The following conversation ensued- I [Powell] asked "Who is this?" He said, "Dale." I said "Dale who?" He said "Dale Henry. How many people do you have in your office?" I said, "that is not of your concern." After this brief exchange, Powell asked Henry to put Milam on the telephone. Powell directed Milani to bring Henry to his office immediately. As Henry had indicated to him that he would bring coworkers as witnesses to the conference, Milani told Powell that he thought Henry was "going to bring company." As Henry and Milani were walking to Powell's office, Henry motioned to Staggs and Ashley to join him and they fell in line and walked together to Powell's office. ' This finding is based on the composite testimony of Henry, Powell, and Milam. Staggs punched out his workcard but not his timecard.' It is undisputed that Staggs and Ashley left their work stations without the knowledge and permission of their respective foremen, contrary to an unpublished by well- established and well-known company rule prohibiting such conduct of which they had knowledge. The evidence, howev- er, shows that Staggs tried to get such permission from his foreman but was unsuccessful because he couldn't find him. Ashley, on the other hand, made no effort to contact his foreman for permission to leave his work station although he was well aware that his absence from his work station would adversely affect the incentive group pay of all the employees in the group in which he worked. When they reached Powell's office, they found Personnel Manager Phelps and Quality Control Manager Morgan there, Powell having stepped out for a moment. Seeing Staggs and Ashley at the door, Phelps asked them "What are you doing here?" Staggs replied, "We are here to see that this boy [Henry] does not get a screwing." Ashley answered along the same line, adding that they were there "to see that he [Henry] gets a fair deal." Attracted by the loud voices from his nearby office, Plant Manager Blair walked up to Powell's office and seeing Staggs and Ashley there, asked what they were doing there. He then turned to Staggs and asked, "Did you leave your work station without your foreman's permission?" Replying at first that he was there to see "that this boy doesn't get a screwing," he acknowledged when pressed for an answer that he was away from his work station without permission of his foreman. Blair got the same admission from Ashley. Staggs and Ashley nevertheless insisting upon being present at the scheduled meeting of the company representatives with Henry. Blair denied their requests and ordered the two men to return to their work stations. He further directed that the interview of Henry take place in his office instead of Powell's. As Staggs and Ashley did not comply with Blair's order that they return to work, Phelps asked them to sit in the lobby while Henry was being interviewed. At Henry's interview in Blair's office, Henry, when invited to sit down, told management representatives Blair, Powell, Phelps, and Morgan, "I want those fellows [Staggs and Ashley] in here." Blair replied that it was not management policy to review an employee's problems in front of other employees. At or about this time, Staggs stuck his head into the doorway and said to Henry, "Dale, you don't have to take this." Blair replied angrily (as related by Henry and Staggs) that if Henry didn't want to follow company rules he could "just quit" and repeated this several times. Henry, saying he was not quitting, again insisted that "I want those fellows in here." After Blair again told Henry that witnesses would not be permitted, Henry replied, "Well, O.K., Babe, let's get on with it You are are going to fire me anyway." Phelps again induced Staggs ' Staggs defined a "work card" as the card an employee clocks in on every morning and clocks out on after the completion of each job. Staggs testified that he didn't think taking time off from productive work "was serious enough to warrant clocking out the tmiecard " Ollic.ial notice is taken of the fact that the hourly pay of employees is based on time spent at work EMERSON ELECTRIC CO 351 and Ashley to wait out in the lobby while Henry was being interviewed.' Morgan opened the interview with Henry by telling him that the real reason he was called in was to discuss with him his testing motors on the preceding Saturday with one of the doors of the testing booth open. Henry's reply was that he knew the procedure "but everybody does it." When admonished that the company rule about keeping the doors closed had to be observed, Henry did not express any concern for compliance with the rule and offered no promise that he would comply with it in the future. Powell questioned Henry about the photographs he had been seen taking at the plant that morning and expressed concern that such photographs might find their way into the hands of competitors. Henry admitted bringing a camera into the plant and that he had tried to take pictures with it, but denied that any pictures had been taken, because of failure to turn the film reel. Blair asked Henry if he knew that he was not permitted to bring personal property into the plant Henry denied knowledge of such a rule but the evidence shows that he knew that he had to have a pass to present to the plant guard to remove personal property from the plant His attitude was that he could find ways and means to get the camera out of the plant without a pass. When the subject of inspecting motors with the door of the testing booth open was pursued by Blair, Henry again replied that everybody did it and said, "Well, what the hell does it matter. You are going to fire me anyway." During the heated exchange between the two men, Blair told Henry that he was being insubordinate. Henry then replied, "Well, you are insubordinate to me." Blair there- upon terminated the meeting Henry was told to wait in the lobby with Staggs and Ashley for further instructions. After a few minutes Phelps told Ashley and Staggs to report to work the following morning and Staggs to report to the executive offices the next morning' The next morning at a few minutes after 7 o'clock Henry was called into Blair's office where Blair in the presence of Phelps and Morgan told him that he was being discharged for leaving the test booth door open while testing motors and for insubordination. The discharge memorandum in Henry's personnel file reads: Doug Blair discharged Dale Henry today, 6/24/69 for failure to follow instructions and being disrespectful to plant manager. Dale tested motors Sat. 6/21/69 with the test booth opened which he was specifically told not to do. His insubordination started by a tele- phone call to Curtis Powell asking `how many people ' The findings in the above paragraph are based upon the composite testimony of Henry, Blair , and Staggs Henry's denials that he addressed Plant Manager Blair as "Babe " or that he told Blair "You are going to fire me any way" are not credited ' The findings of the above paragraph and the one preceding it are based on the composite credited testimony of Blair, Powell , Morgan, and Phelps Henry's testimony corroborates the findings above on the interrogations with respect to the photographs he attempted to make at the plant His denials of the facts reflected the other findings in the two above indicated paragraphs are not credited in the face of the virtual unanimity of testimony thereon by the four top management personnel at the Mena plant he had in his office' Dale requested to have two witnesses but was denied. He became belligerent and disrespectful to the point of having to reschedule the meeting. The Company keeps a personnel file on each employee on which it enters two types of notations, one for senous misconduct meriting formal warning notices to the employ- ees, and the other merely notations of "informal bit[s] of advice" from superiors.b A formal warning notice may be senous enough to draw a disciplinary layoff or suspension of several days. An absolute company rule requires the discharge of any employee who has incurred four formal warning notices in any 12 month period.' An employee's slate, however, is wiped clean of all warning notices at the end of such 12 month periods from the date of the first warning if the employee has incurred fewer than the four which requires discharge Henry's personnel file as presented in evidence by Respondent shows 12 notations for the period of August 14, 1967, to the date of his discharge on June 24, 1969, but only three were for conduct which drew formal warning notices. The only notation for 1967 was a formal warning notice given to him August 14 for refusal to take orders from an employee training him He was not penalized by a layoff for this In 1968, there are eight notations on Henry's personnel file which include the three for which he received warning notices. These were as follows: 1 June 6, 1968 for inadequate work effort for which no disciplinary layoff was imposed. 2. June 17, 1968, for failure to follow instructions by leaving work station to talk with another employee. Henry was given a three day disciplinary layoff for this offense. 3. November 11, 1968, for failure to wear safety shoes after repeated warnings He was given a four and a half day suspension for this For 1969, Henry's personnel file shows three notations prior to his discharge of June 24, but none drew formal warning notices. The three notations were for loafing, unex- cused absence, and unsatisfactory incentive performance An overall review of Henry's personnel record shows that in the 12-month period between August 14, 1967, and August 14, 1968, Henry received three formal warning notices which was one short of the four within that 12- month period which would have required his discharge Notwithstanding these warning notices and other nota- tions in his personnel file, Henry received periodic pay raises and at the time of his discharge had attained the top of his labor grade of $2.10 per hour Ashley and Staggs were called into Blair's office separately later that same morning for disciplinary action arising out of the preceding day's incidents as above related It appears that Ashley was called in first. When he entered Blair's office, Ashley found Phelps and Morgan there in addition to Blair Ashley's credited testimony shows that 6 This system of keeping personnel records as applied to Henry is described in Respondent's brief as follows "Included in his [Henry's] resume are both disciplinary warnings as well as instances where Henry merely received an informal bit of advice from his superiors " ' This rule is unpublished but well known to the employees 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blair started the meeting with Ashley by telling him that it was the Company's policy to have private interviews with employees who had problems "so that the other people in the plant didn't have any business knowing about it." Ashley's credited testimony further shows that Blair told him that originally management personnel had planned only to issue a warning to Henry for his failure to keep the test booth door shut, but due to the fact that Henry had brought Ashley and Staggs along to sit in with him at the meeting to which he had been summoned by Powell, management "had decided to take disciplinary action and terminate him." The credited testimony of Staggs also shows that at his own separate conference that morning with Blair and his managerial associates, Blair likewise told him [Staggs] that Henry's insistence on having Staggs and Ashley with him at his conference with Powell, had caused a change in the Company's original intent of merely issuing a warning notice to Henry for not keeping the booth door shut, to a decision to fire him.' Blair in the balance of his separate conferences with Ashley and Staggs lectured each man on the necessity of complying with the Company rule of not leaving their work station without permission of their foreman and told them that warning notices would be placed in their personnel folders. As heretofore noted, four disciplinary warning notices leads to an immediate discharge. A memorandum of the warning notices given to each of the men was placed in their personnel folders by Personnel Manager Phelps who was present at each of the conferences, but copies were not furnished to Ashley or Staggs. The memo- randum of the warning notice in Ashley's personnel folder reads as follows: On Monday, June 23, 1969, Eddie Staggs and Tommy Ashley accompanied Dale Henry to Curtis Powell's office where Dale was to receive disciplinary action. Eddie and Tommy were asked if they had left their work station for which they answered "Yes." They were told to report to work the next morning at which time they would be dealt with. Today, June 24, Doug Blair formally warned Tommy for leaving his work station without permission. He was told that future repetition would result in further disciplinary action. An identical memorandum of a warning notice was placed in the Company's personnel folder for Staggs. Blair denied that he told Ashley at the disciplinary interview he had with him on June 24, 1969, that he had decided to discharge Henry because Henry had brought Staggs and Ashley along with him to the disciplinary meeting to which Henry had been summoned in Powell's office, but the record does not appear to contain a similar denial by Blair that he made a similar remark to Staggs at the separate disciplinary conference he had with Staggs on Staggs' credited testimony from which the finding in the above paragraph is based is as follows He [Blair] said this Henry matter was intended to be a warning untilhe brought Tonimi [Ashler] and I rip their all of this ensued and he didn't exactfi say fishy he nas terminated but said 'A e terminated him " (Emphasis supplied ) the same date. However, Phelps testified that Blair did not make such a remark to either Ashley or Staggs. Morgan similarly denied that Blair made the indicated remark to Ashley. These denials are not credited. The Examiner is convinced from the open sincerity and straightforwardness and obvious lack of guile Ashley and Staggs displayed as they testified in this proceeding that they truthfully reported that Blair had told them that Henry's insistence in bringing them to his "hearing" in Powell's office triggered Henry's dis- charge The record shows that Blair was truly angered by Henry's seeming impertinence in seeking to bring employ- ee-witnesses to a meeting with management to which he had been summoned for disciplinary purposes. It further appears from the record by inference that Blair and his associate supervisors were also deeply concerned over the havoc the precedent, if allowed, of letting Henry have employee-witnesses at his "hearing" before management for dereliction of duty, would have on employee discipline at the plant. These are additional factors in the Examiner's discrediting of Blair's denial of statements to Ashley that Henry was fired because he tried to bring employee-witnesses to his disciplinary meeting with management. Discussion and Conclusions The Company's defense to the charge that it terminated Henry for engaging in protected concerted activity under Section 7 of the Act in violation of Section 8(a)(1) of the Act is twofold. The first part of Respondent's defenses is that it called Henry in for a meeting with management, not for purposes of discipline, but only for the purpose of further investigating a complaint from Henry's chief superior that he had violated the company rule against keeping the test booth door open while inspecting motors. In support of this defense, Respondent relies on the Board ruling in Jacobe-Pearson Ford, Inc., 172 NLRB No. 84,9 that an employee is not entitled to union representation at a meeting with manage- ment to which he had been summoned where the purpose of the meeting was essentially for the purpose of "gathering information," and that a meeting for such investigatory purposes without requested union participation was not in violation of the Act. Unlike the present case, the Jacobe- Pearson case did not involve a "protected concerted activi- ties" issue. However, it would appear the guarantee of such protected concerted activity under Section 7 of the Act would also be subject to the principle ennunciated in the Jacobe-Pearson case. For evidence in support of the defense that the meeting to which Henry was summoned was investigatory in charac- ter only, Respondent relies on the testimony of Plant Super- intendent Powell. In this connection, Powell testified, "Jim Morgan [Quality Control Manager] told me that he [Henry] had been observed testing with the door open and that ' The present Trial Examiner was also the Trial Examiner in the Jacobe-Pearson Pearson Ford case, suprq whose decision therein was reversed by the Board. EMERSON ELECTRIC CO. this wasn't the first occasion in which he had some prob- lems-that is, some-I believe it was warnings, probably, was the way it was stated and that probably it would need to come before me in a conference to further investigate it. "The supplied italicized portion of this testimony appears to be the testimony on which Respondent is relying to show that the purpose of the meeting to which Henry was summoned was investigatory in nature. For reasons stated below the Examiner does not credit this testimony or any similar testimony. The second part of Respondent's defense is that Henry's discharge had not been determined on in advance of the meeting, but was triggered and caused by Henry's insubordi- nate behavior at the meeting to which he was summoned and that Henry's insistence on having coworkers as witnesses in his behalf at the meeting was not a factor in his discharge. In support of this contention, Respondent relies principally on the testimony of General Manager Blair The Examiner for reasons hereinafter stated does not credit Blair's testimo- ny or any similar testimony Any realistic appraisal of the record requires the conclu- sion that Henry was called into the meeting with Respond- ent's supervisors for the purpose of reprimand and discipline for his failure to keep the booth door shut while testing motors. This is evident from Respondent's own records. Memoran- dums in the personnel files of Ashley and Staggs prepared by Personnel Manager Phelps shows that Ashley and Staggs on the date of the meeting in question "accompanied Dale Henry to Curtis Powell's office where Dale was to receive disciplinary action. " (G.C. Exhs. 2 and 3.) (Emphasis sup- plied.) Moreover, the record shows that all of the facts concerning the incident were fully and completely known to manage- ment prior to the time Henry was called in for the meeting. Henry was well aware of the rule that the door had to be shut while he was working inside the booth There were instructions in bold type to this effect on both doors of the test booth. Quality Control Manager Morgan had spoken to Henry a number of times about the necessity of keeping the booth doors shut during testing operations within the booth. Both Morgan and Assembly Department Foreman Milam had personally observed Henry working in the booth with one of its doors open for approximately 2 hours of his 4-hour shift on the Saturday here in question. When confronted by Morgan with this violation of the company rule, Henry freely admitted that he had kept the door open while working that morning. He offered no excuse except that he had forgotten to close the door Thus all the facts were known to management personnel prior to Henry's summons to a meeting with them in the executive offices of the plant. There was thus in fact nothing to investigate. The record accordingly leaves no doubt that Henry was called in for purposes of punishment for his infraction of the rule to keep the doors shut. The only thing open at the meeting was the penalty to be imposed. Morgan had told Personnel Manager Phelps prior to the meeting that he would recommend a 2-day suspension. Phelps had tenatively agreed to this. Powell had to make the final 353 decision on discipline by way of a layoff. Under the stated circumstances, it is difficult to believe that the penalty to be imposed would have been anything less than the placement of a formal warning notice in Henry's personnel folder. Under company rules, four such warning notices in any 12-month period results in discharge without excep- tion. Thus with the virtual certainty that the meeting to which Henry was called would result in the imposition of some sort of disciplinary penalty for Henry, it follows that Henry had the right to demand, as he did, to be accompanied by coworkers, Staggs and Ashley, at the meeting under the provisions of Section 7 of the Act which guarantees employees the right "to engage in . . concerted activities . . . for the purpose of mutual aid or protection . .11 With the determination made that Henry was called to the meeting with management for purposes of discipline, there next arises the question of whether Henry was dis- charged because of his insistence on having coworkers Ashley and Staggs with him in the meeting for the lawful purpose of protected concerted activities or whether he was fired because of insubordination as contended by Respondent.'° There can be but little doubt that Henry's conduct dust prior to the meeting to which he was called was crude and brash and that his conduct at the meeting was disrespect- ful and insubordinate His demand over the interoffice telephone to Plant Superintendent Powell for information on how many of the Company's supervisors were going to be at the meeting to which he was summoned was obviously crude and tactless. At the meeting itself after General Manager Blair informed Henry that Ashley and Staggs would not be permitted to be at his side during the course of the meeting, Henry replied, "Well, 0 K. Babe, let's get on with it." This was obviously disrespectful. When during the course of the interview, Blair told Henry that he was being insubordinate, Henry replied that Blair was the one who was insubordinate. This was similarly most disrespectful and insubordinate. While there is little excuse for such conduct despite the tension and fear Henry was under that he was about to be fired, the blame for Henry's conduct must be shared by Respondent because it provoked the conduct by its unlawful, outright, and emphatic refusal to allow Henry and his coworkers, Ashley and Staggs, the right to engage in protected concerted activities But the problem here is not whether Henry was disrespect- ful and insubordinate but whether he was discharged because of his insistence on having coworkers Ashley and Staggs at his side during the conference at which he correctly felt that he would be penalized for not keeping one of the doors of the test booth shut. The record shows that the latter, not the former mentioned conduct, was the real "insubordination" for which Henry was in fact fired '° Although there is contemporaneous documentary evidence (Resp Exh 10) that Henry was fired for both insubordination and failure to follow instructions about keeping the test booth door shut, the thrust of General Manager Blair's testimony and Respondent's brief is that Henry was fired solely because of insubordination 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the right to engage in concerted activities for the purpose of mutual aid or protection is a right guaranteed by Section 7 of the Act, it is obvious that the insistence upon such a right by an employee cannot be equated to insubordination. The first indication that Respondent was equating Henry's demand for the presence of Ashley and Staggs at his disciplinary hearing before management with insubordination is contained in a contemporaneous memorandum in Respondent's personnel file on Henry under the initials of Personnel Manager Phelps dated the same day Henry was terminated The memorandum reads: His [Henry's] insubordination started by a telephone call to [Plant Superintendent] Curtis Powell asking "how many [management] people he had in his office." Dale requested to have two witnesses but was denied .. [Emphasis supplied.] [Resp Exh 10.] Whatever obscurity there is in this indication from Respondent's own personnel file on Henry that Henry was discharged for his "insubordination" in demanding Ashley and Staggs as witnesses at the meeting to which he had been summoned by management is cleared up by the above-noted testimony of Ashley and Staggs. Their credited testimony unequivocably shows that Plant Manager Blair told them in their individual conferences with them after Henry had been discharged that management had not originally planned to fire Henry, but that Henry's insistence on having them [Ashley and Staggs] with him as witnesses at his interview had caused Henry's discharge It is thus clear that the "insubordination " for which Henry was discharged was his demand for Ashley and Staggs as witnesses at his interview. The fact that the original planned recommendation of Henry's top supervisor for a mere suspension of Henry for failure to keep the booth door shut was changed to an outright discharge by Plant Manager Blair is in itself a further indication that the discharge was provoked by Henry's insistence on having Ashley and Staggs as his witnesses at his scheduled disciplinary meeting with manage- ment. Under all the facts and circumstances of this case, the Trial Examiner finds and concludes that Respondent dis- charged Henry because he engaged in protected concerted activities The remaining issue in the case is whether Respondent reprimanded Ashley and Staggs for engaging in protected concerted activities arising out of their insistence on accom- panying Henry at his request to the meeting with manage- ment to which he had been summoned. Respondent's defense to this issue is essentially the same as its defense to Henry 's discharge This is the defense that the meeting to which Henry was summoned was for the purpose of further investigating his violation of the company rule against leaving the door of the test booth open while working inside. In this connection Respondent also relies on the aforementioned holding of Jacobe-Pearson Ford, Inc., supra, wherein the Board held that management has the right to interview an employee without the presence of union representation where the purpose of the interview is essentially investigatory in nature. The previous findings on this is here applicable, to wit: the meeting to which Henry was summoned was for the purpose of meting out to him some sort of penalty for his failure to follow instructions to keep the doors of the test booth shut and not for investigatory purposes as claimed by Respondent With this finding as to the basic purpose for which Henry was summoned to a meeting with management, the undisputed facts requires the conclu- sion, here made, that Ashley and Staggs were engaged in protected concerted activities for the purposes of mutual aid or protection when they accompanied Henry at his request to the meeting in question with management. Respondent's secondary defense is that Ashley and Staggs were reprimanded, not for their insistence upon being with Henry at the meeting, but for leaving their work stations without the permission of their foremen contrary to the Company's unpublished but well-known rule that employees must not leave their work stations without such permission This would be a valid defense if the meeting to which Henry was called had been for investigatory purposes, but it is not a proper defense under the Trial Examiner's finding that the meeting had been called for the purposes of imposing some sort of disciplinary action on Henry. Inasmuch as Ashley and Staggs were engaged in protected concerted activity in seeking to accompany Henry at his request at the meeting , the Company's rules that employees must secure the permission of their foremen to leave their work stations must give way to the guarantees of Section 7 of the Act In a similar factual situation , the Supreme Court held: Nor can we accept the company's contention that because it admittedly had an established plant rule which forbade employees to leave their work without permission of the foreman, there was justifiable "cause" for discharging these employees, wholly separate and apart from any concerted activities in which they engaged in protest against the poorly heated plant. Section 10(c) of the Act does authorize an employer to discharge employees for "cause " and our cases have long recognized this right on the part of an employer But this, of course, cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that for it would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the per- mission of the Company's foreman was obtained NL R.B. v Washington Aluminum Co., 370 U.S. 9. See also Cone Mills Corporation, 169 NLRB No. 59. The Trial Examiner finds and concludes that Respondent unlawfully reprimanded Ashley and Staggs because they engaged in protected concerted activities Although the Company claims and the evidence shows that Ashley and Staggs left their work stations without the permission or knowledge of their foreman, the record in a wider and more important sense shows that Ashley and Staggs sought the permission of the Company to be with Henry at his meeting with management when they presented themselves to the top echelon supervisors of the plant and demanded the right to be with Henry at the meeting. Permission to leave their posts for that purpose EMERSON ELECTRIC CO was denied to them and they were ordered back to their work stations Thus the record shows in still another way that the Company denied the two employees the right to leave their work stations to engage in protected concerted activities guaranteed by 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 connection with the operation of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic and com- merce 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 engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It having been found that Respondent discharged Dale H. Henry in violation of Section 8(a)(1) of the Act, it will be recommended that Respondent offer said employee immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge by payment to him of a sum of money equal to that which he would have earned as wages from the date of his discharge to the date of offer of reinstatement less interim earnings, and in a manner consist- ent with Board policy as set out in F. W. Woolworth 355 Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It having been found that Respondent violated Section 8(a)(1) of the Act by reprimanding Eddie Staggs and Tommy Ashley, it will be recommended that Respondent revoke and remove from the personnel records of these employees the reprimands given them on June 24, 1969. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following CONCLUSIONS OF LAW 1. Respondent Emerson Electric Co., U.S. Electrical Motors Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Dale H. Henry on June 24, 1969, because he engaged in a protected concerted activity Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby had violated Section 8(a)(1) of the Act. 4 By reprimanding Tommy Ashley and Eddie G. Staggs on June 24, 1969, because they engaged in a protected concerted activity Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]