Richey Electronics, Inc.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richey Electronics, Inc. and Margaret Askew. Case 26-CA-2909 June 24, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On March 25, 1968, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations . Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed cross-exceptions 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except as modified herein.' 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 orders that the Respondent, Richey Electronics, Inc., Nashville, Tennessee, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: 1. In paragraph 1(b) delete the words "like or related" and insert in place thereof the word "other." 2. Renumber subparagraphs 2(b), (c), and (d) to read 2(c), (d), and (e). 3. Insert a new paragraph 2(b) to read as fol- lows: "(b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their 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." 4. Add the following paragraph below the signa- ture line of the notice attached to the Trial Ex- aminer's Decision: NOTE: We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. ' Inasmuch as the Respondent's unfair labor practices strike at the very roots of employees ' rights safeguarded by the Act , we shall issue a broad Order herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at Nashville, Tennessee, on February 5, 1968, pursuant to a charge filed by an individual, Margaret Askew, on October 13 and amended on October 17, 1967,' and pursuant to a complaint is- sued on November 30. The primary issues are whether the Respondent, Richey Electronics, Inc., herein called the Company, (a) refused on and after September 15 to recall Mrs. Askew and another union supporter in order to undercut a union organizing drive and (b) threatened to close its plant and otherwise coerced its employees, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Tennessee corporation, is en- gaged in the business of manufacturing electrolytic ' All dates, unless otherwise indicated , refer to the year 1967 172 NLRB No. 9 RICHEY ELECTRONICS, INC. capacitors at its plant in Nashville , Tennessee, from which it annually ships products valued in excess of $50,000 directly to customers outside the State. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. District Lodge No. 155, Inter- national Association of Machinists and Aerospace Workers , AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Discrimination 1. Suspected instigators of the Union Both Margaret Askew and Judy Bull were ex- perienced , competent "sealers," having previously worked for President Royce Richey when he was general manager at another electronic company in Nashville. On October 15, 1965, Richey had formed the Company, a new corporation. In 1966, the Company hired both Askew and Bull as sealers, paying them the top rate ($ 1.55 per hour ) because of their prior experience . Each of them had one break in service-Askew having quit after working for the Company 6 months and Bull, after 9 months. They were rehired , again at the top rate, on June 12 and July 11, respectively, and worked until they were laid off on August 22. On Wednesday, August 16, the Union began its organizational drive, passing out handbills and authorization cards at the plant . That afternoon, Union Representative Randall Ammons walked over to Askew's car on the parking lot at the plant, discussed with Askew and Bull the organizing cam- paign, and gave them authorization cards. (There is no direct evidence that the Company observed this conversation, or that the Company was aware that both Askew and Bull signed union cards.) Both of the employees later discussed the Union with other sealers on the evening shift, including Helen Blan- ton (discussed hereafter). About Friday, August 18 (according to printer Nannie Tuttle 's credited testimony), Tuttle "asked Mr. Richey if he thought the union men were out there on their own or if he thought some of the girls had sent them." Richey said he did not know, but "that he had a place in Hong Kong that was doing well and if the girls wanted to walk, let them walk." (Richey admitted on the stand that he told Tuttle he had a plant in Hong Kong . I discredit his denial of the remainder of the statement.) The following Monday night, April 21 ( the day before Askew, Bull, and others were laid off for lack of work ), sealer Eunita Lee had a conversation with Floorlady Chris Moore (an admitted super- visor ) after the other employees had already gone 159 home. According to Lee's credited and undisputed testimony, Moore said, "Reckon who started [the organizing drive], I'll bet Margaret [Askew] and Judy [Bull] were the ones that started that.... They were the only ones that could have." Later that week, about 2 or 3 days after the Au- gust 22 layoffs, Floorlady Moore made a similar statement to sealer Blanton . In Blanton 's credited and undisputed words, "We were talking about how we missed the girls ... and that's when she said she believed Margaret and Judy had something to do with starting it." (Although called by the General Counsel, Blanton appeared eager on cross-examina- tion to give testimony which would please the Com- pany.) Sometime before Floorlady Moore herself quit on September 15, she made still another reference to the two alleged discriminatees and the Union. According to printer Tuttle's credited and un- disputed testimony, "I asked Mrs. Moore if they were going to call Margaret and Judy Bull back and she said, 'I wouldn't think so after all the Union deal. "' Apart from the other evidence, these repeated statements by Floorlady Moore demonstrate that the Company suspected or believed Askew and Bull were instigators of the Union at the plant. 2. Refusal to recall Askew and Bull credibly testified that on Sep- tember 15 (after they had been laid off about 3-1/2 weeks ) they went to President Richey's office about 3 p.m. and asked him if he was going to recall them. He said no , not at that time-that he had heard some rumors about their work from Floor- lady Moore , Supervisor Jessie Vantreese , and sealer Blanton. (As indicated above, Askew and Bull had discussed the Union with Blanton .) When Askew asked what the rumors were , Richey told her "I overheard one myself.... I overheard you say that if work was going to be like that you wasn 't going to vote for the Union, but that you had changed your mind and you thought you would ." Askew asked if Richey would permit Moore ,Vantreese, and Blanton to come in and discuss the rumors with the three of them , and Richey agreed , but pointed out that Moore did not come to work until 4 o'clock. At that point, Askew said that she and Bull were going outside to help the Union pass out handbills while waiting for Moore. (When questioned about this conversation , President Richey "emphatically" denied the employees' ver- sion, testifying that "Nothing about the Union or anything with reference to the Union" was said. Later he testified, "I just told her that I had over- 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard her say something about a G- D- union or something like that, but I didn't understand everything she said, when I was coming up the steps one night.... We were talking about her attitude. That was one reason we didn 't call her back, was because of her attitude.... When somebody hol- lers out something you can tell , as a rule , whether their attitude is good or bad." Richey admitted that he did agree to permit Askew and Bull to return to his office when Floorlady Moore came to work.) After passing out union handbills in front of the plant for about 20 or 30 minutes , Askew and Bull went back inside the plant for the meeting with Floorlady Moore . Richey met them near the front entrance and told Askew , "Margaret, I have changed my mind. I don 't have anything to say to you now or any other time." (Richey admitted telling Askew that he canceled the meeting, but gave no explanation for the sudden change of plans. I discredit his testimony , "I don't know where she had been.") The Company 's knowledge that Askew and Bull had been passing out handbills was confirmed by sealer Blanton , who credibly testified that later that day, "Chris Moore told me that Margaret and Judy had been out there handing out Union leaflets." Thereafter , the Company hired several new em- ployees to work as sealers, but failed to recall Askew and Bull. (President Richey testified that it takes about 4 to 6 months to train a good sealer.) 3. Conflicting defenses In addition to citing Askew's "attitude ," Pres- ident Richey claimed that Askew's and Bull's "work record was very bad and it's for this reason primarily , that they were not called back to work." Yet he also testified that " Definitely," he would have recalled them if they had been "permanent" employees (claiming that since they had not been there 90 days after their reemployment in June and July they were merely "probationary " employees). The Company's next witness was Supervisor Van- treese, who was not in the courtroom to hear Pres- ident Richey testify (near the end of his direct ex- amination ), "I would have recalled them, had they worked 90 days." She testified that she, not Pres- ident Richey, had the responsibility of laying off girls "that don 't do their work," and that she was responsible for laying off Askew and Bull. When asked how it happened-whether she made the decision herself or whether she advised Richey- she testified, "Yes sir, I did it myself." On cross-ex- amination , when pressed to testify whether she had laid off or discharged the two employees , she finally testified that she decided at the time, on August 22, to terminate both of them , citing purported reasons discussed below. ( However, the separation notices, signed by Vantreese , each had a check beside the words, "Lack of Work " under the caption "Reason for Separation ," and no check by the word, "Dis- charged." Thereafter, in the space following the words , "Detailed explanation," the words were typed, "LACK OF WORK." The separation no- tices were on forms provided by the Tennessee De- partment of Employment Security , and bore the in- structions, after the space for "Detailed explana- tion": "Reason for separation that may result in disqualification should be indicated hereon. Sub- sequent statements may not constitute grounds for disqualification ." Vantreese did not explain why, if she had in fact decided on August 22 to discharge the two employees , she kept the decision a secret from the employees and failed to indicate the discharges on the official separation notice forms.) She denied knowing anything about union activities at the plant, testifying that "The only thing I knew was just the men outside" (passing out handbills), and that she did not hear any conversation in the plant of any kind about union activity. (This testimony was belied by the Company 's next wit- ness, employee Dorothy Curtiss, who testified, "I went out and got some [of the union handbills] and brought them back inside the plant one day, and gave one to Mrs. Vantreese.... I told her I was going to put one on [President Richey's] desk.... I told Mrs. Vantreese I wanted her to sign it and she said she wouldn 't, and laughed and walked on off.") The Company's brief completely ignores Pres- ident Richey's testimony that he would have re- called Askew and Bull if they had been permanent employees . In an apparent effort to reconcile the conflicting defenses (that the Company laid them off for lack of work and decided not recall them, and that the Company discharged them at the time of the layoff), the brief states that "the Employer had ample reason for the termination of these two employees because of their tardiness , poor work habits and tendency to cause trouble in general." (Emphasis supplied.) Whether the Company secretly decided at the time of the economic layoffs to discharge Askew and Bull, or whether President Richey made the decision after conferring with Supervisors Moore and Vantreese and employee Blanton, I find from the circumstances and all the evidence that the Company's motivation was discriminatory. As previously found, the Company suspected or be- lieved Askew and Bull to be the instigators of the Union at the plant. Then when their support of the Union was confirmed by their passing out union RICHEY ELECTRONICS, INC. 161 handbills while awaiting Floorlady Moore on Sep- tember 15, Richey abruptly canceled the scheduled conference to discuss the "rumors" about Askew and Bull, saying "I don't have anything to say to you now or any other time." And despite the pic- ture which President Richey and Supervisor Van- treese attempted to paint at the trial ( in justifica- tion for the refusal to recall and the decision to discharge, respectively), Richey undercut both defenses by asserting that he would have recalled them "had they worked 90 days." (As indicated be- fore, both Askew and Bull had been hired as ex- perienced sealers, at the top rate, and had worked at the Company far beyond 90 days before their break in service . The Company had no written 90- day probation rule, and neither Askew nor Bull was advised that they were considered "probationary" employees. I find that the Company's claim that they were not recalled because they were on proba- tion was a mere afterthought.) In an apparent effort to negate any union animus, Richey testified that he did not remember how long the union activity went on, giving the reason, "I wasn't even that concerned about it." Yet, he later testified that "we are competing with imports and the competition of imports in the electronic indus- try is very bad." (He had never operated under a union contract.) When testifying about purported reasons for refusing to recall the two employees, he appeared to be very nervous, clasping the arms of the witness chair with his hands . ( He impressed me as a witness endeavoring to conceal the true facts.) On cross-examination, he admitted that he had not talked to Askew or Bull concerning their work at- titude prior to September 15, nor about their at- tendance or tardiness, and "I don 't know whether Mrs. Vantreese had or not." Vantreese testified that she decided on August 22 to terminate Askew "Because I felt like she was a troublemaker," and Bull "Because of the absences and lack of work." She admitted that she had never mentioned anything to Askew about making trouble . Concerning Bull's attendance record, she testified positively that there were al- ways 40 hours of work for Bull each week. This is in direct conflict with other evidence, which I credit, that the employees were often sent home early because of lack of work. Richey himself testified that the industry was "up and down," and that they did not know from one week to another if the employees were going to be fully employed the next week, and admitted that there were occasions when Bull was sent home early by her supervisor for lack of work, preventing her from working 40 hours a week. Furthermore, when Vantreese was asked when was the last time she recalled talking to Bull about her tardiness or absences, she answered, "I guess it was the time she quit and wanted to come back." After considering all of her testimony, and the conflicts between her and Richey's testimony, I am convinced that Vantreese was distorting the facts, and that the stated reasons for the discharges (or refusal to recall) were not the actual reasons for the Comapny's actions. I note that in its brief the Company cites as another justification the fact that Askew admitted "to drinking on the job-without mentioning the undisputed testimony that this occurred on an oc- casion when all the employees had gone home ex- cept Askew, Bull, Floorlady Moore, and Moore's daughter, and that Askew drank beer with the su- pervisor, Moore. The company also relied on sealer Blanton's testimony (when questioned by company counsel on cross-examination) that Askew and Bull "didn't help me as much as they should about cleaning up" at the end of the shift-without point- ing out that Blanton had no supervisory responsi- bilities, and that Askew gave undisputed testimony that neither Floorlady Moore nor any of the em- ployees had made any complaint to her about it. Clearly, the Company was seeking pretexts to con- ceal its discriminatory motivation of undercutting the Union's organizing drive by ridding the plant of the two union supporters. Moreover, the Company's union animus is further shown by sealer Bull's credited and un- disputed testimony, discussed below, that Floorlady Moore told her in May that "if the Union was to get in Royce [Richey] would close the plant down." Accordingly, I find, as alleged in the complaint, that since on or about September 15 the Company has filed and refused to recall Margaret Askew and Judy Bull because of their union activities, in viola- tion of Section 8(a)(3) and (1) of the Act. B. Alleged Coercion About a month before sealer Bull quit in June (and several months before the union organizing began at the Company), Bull was discussing with Floorlady Moore the organizational efforts of the Union at another electronic company in Nashville where Bull had worked previously. Bull asked if the floorladies and supervisors were allowed to vote, and Moore responded, "No, but I know one thing, if the Union was to get in Royce [Richey] would close the plant down." Although I have considered this threat in connection with the Company's union animus, I note that the complaint does not allege such a threat until August-months later. In the absence of a trial amendment, I do not make any 354-126 O-LT - 73 - pt. 1 - 12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding on whether or not the Company separately violated Section 8(a)(1) by Moore's statement. The complaint also alleges that President Royce Richey threatened on August 21 to close the plant if the Union were successful in its organizational campaign. As previously found, Richey told em- ployee Tuttle about Friday, August 18, "that he had a place in Hong Kong that was doing well and if the girls wanted to walk, let them walk." This, though, was not necessarily a threat to close the plant. It could just as well be interpreted to mean that the Company would substitute its production in Hong Kong if this plant were closed by a strike. I therefore find that Richey's statement did not vio- late Section 8(a)(1) of the Act. On April 21, in the same conversation in which Floorlady Moore told employee Lee "I'll bet Mar- garet and Judy were the ones that started" the Union at the plant, Moore also said that "she guessed that's why they wanted off early, was to talk to the union people." Although I have con- sidered the first part of Moore's statement in con- nection with the alleged discrimination against Askew and Bull, I find that this conversation did not constitute illegal interrogation and did not create the impression of surveillance in violation of Section 8(a)(1), as alleged in the complaint. I therefore find that there is not a preponderance of evidence in support of the alleged Section 8(a)( I) violations.. CONCLUSIONS OF LAW 1. By discriminatorily refusing on September 15, 1967, and by failing thereafter to recall Margaret Askew and Judy Bull in order to undercut the Union 's organizing drive, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a)(3) and ( 1) and Section 2(6) and (7) of the Act. 2. The Company did not violate the Act by threatening to close the plant , by engaging in illegal interrogation , or by creating the impression of sur- veillance of its employees' union activities. THE REMEDY I shall recommend that the Respondent be or- dered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights; to offer rein- statement to Margaret Askew and Judy Bull, with backpay computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716; and to post ap- propriate notices. Accordingly, on the basis of the foregoing findings and conclusions , and on the entire record, I recommend pursuant to Section 10(c) of the Act issuance of the following: ORDER Respondent , Richey Electronics , Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to recall , or otherwise discriminating against any employee because of his or her membership in or activities on behalf of Dis- trict Lodge No. 155 , International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Offer Margaret Askew and Judy Bull full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Nashville, Tennessee, co- pies of the attached notice marked "Appendix. "2 Copies of said notice, on forms provided by the Re- gional Director for Region 26, after being duly signed by Respondent 's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps Y In the event that this Recommended Order is adopted by the Board, the words "This Notice is Posted by Order" shall be substituted for the words "Pursuant to 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, there shall be added to the words "This Notice is Posted by Order of the National Labor Relations Board" the words "as Enforced by the United States Court of Appeals." RICHEY ELECTRONICS, INC. 163 shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. WE WILL NOT discharge or refuse to recall employees for supporting District Lodge No. 155, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union. WE WILL NOT attempt to undercut the Union's organizing drive at our plant by dis- criminating against union supporters in any way. WE WILL NOT interfere with our employees' union activities. ' 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 Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer Margaret Askew and Judy Bull full reinstatement and pay them for earnings they have lost as a result of our refusal to recall them , plus 6 percent interest. RICHEY ELECTRONICS, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.