North Electric Co., Inc.

NORTH ELECTRIC CO. North Electric Company, Incorporated and John G. Lewis. Case lO-CA-7317 May 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 22, 1968, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled matter, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 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 further found that the Respondent had not engaged in certain other unfair labor practices alleged in the Complaint, and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs, and the Respondent also filed a brief in reply to the General Counsel's exceptions. 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 hereby affirmed . The Board has considered the Trial Examiner's Decision , the exceptions and briefs, and the entire record ' in this case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, to the extent consistent with the Decision herein. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(l) of the Act by interrogating its employees concerning their union activities, threatening employees with reprisals for supporting a union, and by creating the impression that the employees' union activities were being placed under surveillance by the Respondent. We find merit, however, in the Respondent's exception to the Trial Examiner's finding that an additional violation of Section 8(aXl) ensued from the threat made by Security Officer Harold Combs to employee James Lewis concerning the Respondent's intent to rid itself of employee John G. Lewis because of the latter's union activities. No allegation concerning this threat was made by the General Counsel in the complaint, and we therefore 'On January 6, 1969, the Respondent filed with the Board a motion to strike, contending that certain findings of the Trial Examiner concerning the Respondent's willingness to use pretext to rid itself of union adherents, was in no way relevant, germane or material to his Decision . We disagree with the Respondent's contention, and in view of our Decision herein the motion to strike is denied. do not adopt the Trial Examiner's finding of a violation of Section 8(a)(1) based on this incident. We shall, nevertheless, consider the statements made by Combs to James Lewis as evidence tending to shed light on the Respondent 's motivation in discharging John G . Lewis. We also find merit in the General Counsel's exception to the Trial Examiner's failure to find that John G . Lewis was discharged by the Respondent for his union activities in violation of Section 8(a)(3) and (1) of the Act. As found by the Trial Examiner, when John G. Lewis made written application for employment with the Respondent on March 10, 1967, he stated that he left his prior employment with Beaunit Mills on March 1, 1967, to attend school . The facts are that Lewis was suspended by Beaunit Mills on March 9, 1967, but was not discharged until March 13, 1967, after he had made application for employment with the Respondent. Moreover, as was known to the Respondent at the time it discharged Lewis, his termination at Beaunit Mills was subsequently revoked as a result of an arbitration proceeding, and in May 1967, while working for the Respondent, Lewis was offered reinstatement by Beaunit Mills. While the Board does not condone Lewis' lack of candor in filling out his application for employment with the Respondent, we cannot , upon the record as a whole, adopt the finding that this was the motivating cause for his discharge. The Respondent avers that it had no knowledge of Lewis' termination by Beaunit Mills until shortly before his discharge in February 1968. To this effect Security Officer Combs testified that he checked Lewis' employment history at Beaunit Mills in April 1967. Admittedly, however, and contrary to all of his prior practice, Combs accepted the statement of a clerical employee at Beaunit Mills to the effect that Lewis was "clear" and made no attempt to review Lewis' personnel records . Approximately 10 months later Combs made a second investigation of Lewis' employment history at Beaunit Mills and this time determined that Lewis had been terminated by that employer, but that the termination had subsequently been revoked and Lewis had been offered reinstatement as a result of an arbitrator's decision . According to Combs he was impelled to make the second investigation because of a rumor, emanating from Foreman Jennings, that Lewis had been discharged by Beaunit Mills. Jennings in turn testified that he obtained the rumor from Supervisor James Cable, and after checking it against Lewis' employment application, he reported the matter to Combs. Cable was not called to testify in verification of the rumor, and the record, accordingly, contains no evidence as to when or under what circumstances Cable obtained information that Lewis had been discharged by Beaunit Mills. Irrespective of its clear knowledge that Lewis' discharge by Beaunit Mills had been set aside, the Respondent discharged Lewis on February 176 NRLB No. 3 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 26, 1968, in strict adherence to its alleged uniformly enforced policy of discharging any employee found to have made a false statement on his job application . Lewis' termination notice also recited that he was discharged, in part, for violation of the Respondent's rule 35, inefficiency on the job.2 Regardless of whatever prompted the Respondent to undertake a second investigation of Lewis' employment history at Beaunit Mills, we are satisfied that neither the matter of his job application nor his alleged inefficiency on the job was the motivating reason for his discharge. Upon the record as a whole we find that the Respondent, motivated by strong union animus, threatened its employees with discharge and other reprisals because of their union activities, sympathies and interests. Among the threats made by the Respondent's agents to this effect was that uttered by Security Officer Combs to James Lewis, the brother of John G. Lewis, prior to the latter's discharge . After having interrogated James Lewis concerning his brother's involvement in the Union, Combs threatened: ... well, John is on the way out and I'm going to see what I can do to help him. It is equally clear from the record that the Respondent threatened , and intended, to accomplish its unlawful object of ridding itself of union adherence through pretextual means, including 'the application of its employment rules to reach the desired result . As credited by the Trial Examiner, another union adherent, Pamela Mays, was called into the office of Plant Manager Runyon and threatened by him as follows: Well, when I was seated in his office he started out by - he had the company rule book on his desk, and he said that they had a lot of rules in it and the purpose for all these rules was to treat individual cases as they so desired and that there were enough rules there that I was bound to break at least one of the rules sooner or later. And that he had started watching me particularly because I have been a strong union supporter. And that he was bound to catch me at something sooner or later. That he was watching me and that he was out to get me, and that I had caused him a lot of sleepless nights over this matter.... In the light of the Respondent's knowledge of the union activities of John G. Lewis, its union animus as expressed in threats to discharge Lewis and other 'Alleged poor work performance was the subject of a warning given to bin at an earlier time after the Respondent became aware of his union activities. The form of the warning serves to support the Trial Examiner's finding that the Respondent was willing to use its imployment rules as pretexts to discharge or otherwise discriminate against union adherents. The Respondent's rule 35 specifically requires a warning for the first offense, a week layoff for the second, and discharge for the third offense. Nevertheless, contrary to its avowed literal adherence to its written rules, when the Respondent warned Lewis on the first occasion about alleged inefficiency on the job, it threatened him with discharge if he made one further mistake. union supporters, and its additional threats to apply its employment rules in a fashion tailored to achieve this unlawful result,' we find that the discharge of John G. Lewis violated Section 8(a)(3) and (1) of the Act.' THE REMEDY In accordance with the above finding, we shall order that the Respondent offer John G. Lewis, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earning he may have suffered by reason of the discrimination against him, by payment to him of a sum equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that the Respondent, North Electric Company, Incorporated, Johnson City, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Insert the following paragraph as 1(d) and renumber the subsequent paragraphs: "(d) Discharging or otherwise discriminating against John G. Lewis, or any other employee, because of his interests or sympathies in, or activities on behalf of the International Association 'As the present record adequately established the unlawful nature of Lewis' discharge, we find it unnecessary to grant and therefore deny, the General Counsel's motion to remand and reopen the record to receive alleged newly discovered evidence in further support of this violation. 'Chairman McCulloch, for the following reasons, would not reverse the Trial Examiner's dismissal of the allegation of a violation of Sec. 8(aX3) of the Act: The Trial Examiner has found that although the Respondent "was willing to utilize a pretext to discharge Lewis ," the reason for which it did discharge him - falsification of his job application - was one for which it would have discharged him "whether he was a union supporter or not." The Trial Examiner premised his conclusion upon testimony, which he fully credited, that the Respondent followed a "uniform practice" of discharging employees for making false application statements. And Lewis, it is clear, had falsified the facts concerning the termination of his last previous employment. As no sufficient reason exists for reversing the Trial Examiner's basic determination of credibility, it follows that his dismissal of this complaint allegation should be affirmed. NORTH ELECTRIC CO. of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization." 2. Insert the following paragraphs as 2(a) and (b) and renumber the subsequent paragraphs: "(a) Offer to John G. Lewis, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earning he may have suffered as a result of the discrimination against him in the manner set forth in the Remedy provision of this Decision and Order. "(b) Notify John G. Lewis if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application , in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after his discharge from the Armed Forces." 3. Insert as the third and fourth indented paragraphs in the notice attached to the Trial Examiner's Recommended Order the following: WE WILL NOT discharge or otherwise discriminate against John G. Lewis, or any other employee, because of his interests or sympathies in, or activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL offer John G. Lewis immediate and full reinstatement to his former or substantially equivalent job, without prejudice to his seniority or other rights and privileges he previously enjoyed, and WE WILL make John G. Lewis whole for the discrimination against him by payment to him of any loss of earnings he may have suffered, with interest thereon at 6 percent per annum. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended , after his discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner : This proceeding, brought under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136), herein called the Act, was held at Johnson City, Tennessee, on July 31 and August 1 , 1968, pursuant to due notice . A complaint, issued by the Regional Director of Region 10 representing the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board), on May 29, 1968, alleged that North Electric Company, Incorporated , Respondent herein, had violated Section 8(a)(3) of the Act by discharging John G. Lewis, the Charging Party, on February 26, 1968, because of his union activities and that Respondent also violated Section 8(a)(1) of the Act by certain other specified conduct. 3 In its duly filed answer, Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENTS BUSINESS At all times material herein Respondent has been a Tennessee corporation maintaining an office and place of business at Gray Station , Tennessee, where it has been engaged in the manufacture and sale of communication equipment. During the calendar year preceding issuance of the complaint, which is a representative period, Respondent purchased and received goods valued in excess of $50,000 directly from points located outside the State of Tennessee . Respondent is and at all times material herein has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION At all times material herein International Association of Machinists and Aerospace Workers, AFL-CIO, hays been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Introduction During 1967 four unions (Teamsters, Machinists, Communication Workers, and Steelworkers) were involved in an organizing effort at Respondent's Tennessee plant. On October 13, 1967, Respondent filed an RM petition Case 10-RM-482. Hearings in connection with this petition were held on November 7 and December 19, 1967. On December 14 the Machinists union wrote Respondent as follows: The following listed employees at North Electric Plant No. 10 have been designated to represent the International Association of Machinists and Aerospace Workers at the National Labor Relations Board hearing set for December 19, 1967 at 10 a.m. at the courthouse in Johnson City, Tennessee. Mary V . Watson Pamela T. Mays John Lewis Gregory Chambers Michael Chandler Please arrange to have these employees released from duty that day, or released from work on that day in ample time to attend the hearing, with the supervisor notifying them in advance of such permission. The election was held on January 26 with a majority of the employees voting against union representation. No objections were filed to the conduct of the election. On February 26, 1968, John G . Lewis, who had appeared at the representation hearing on December 19 at the Union's request, was discharged. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Interference , Restraint, and Coercion Pamela Mays, a current employee of Respondent, was subpenaed by and testified at the request of the General Counsel. As shown above, Mays was one of the five people who appeared at the representation hearing on behalf of the IAM. She had signed an IAM card, had attended union meetings weekly and wore union insignia at work. She also was an observer for the IAM at the election and had made radio announcements on behalf of the Union. On February 22, 1968, Mays received a written warning about her work pursuant to rule 35 of the Company's handbook.' On the following day in accordance with established procedure Mays filed a complaint regarding the written warning in which she stated: I feel that for my first offense, I deserved an oral warning instead of a written one. I don't feel I violated rule No. 35, since my unit was finished before it reached a rework girl . To be honest, I probably deserved an oral warning for talking because there wasn't a girl on the line who wasn't talking on Feb. 22, 1968. In fact, on these particular units (six) which came down the line, one station on my side of the line wasn't finished on any one of the six units. I can't say about the other side of the line . But I do know there wasn't a single girl who wasn't guilty of talking, regardless of how much. If I deserve an oral warning for talking, I am not by myself. I applied myself on the job by taking advantage of extra time and made the effort to finish my station before the rework girl had to do it, without hurting anyone's efficiency. Regarding this complaint her general foreman, James Whitman, had this to say which appears on the complaint form in the space provided for the general foreman's comment: The employee has been talked to at least two times that I know of for talking. At one time, I called her into my office and explained to her that the reason she wasn't being picked for a higher classification was because of her excessive talking . Therefore, I feel that the written warning is not too harsh. In this posture Mays had the opportunity to. take up the matter with Plant Manager Runyun. This they did in his office on February 26. About what took place at this time she testified as follows: Well, when I was seated in his office he started out by - he had the company rule book on his desk, and he said they had a lot of rules in it and the purpose for all these rules was to treat individual case as they so desired and that there were enough rules there that I was bound to break at least one of the rules sooner or later. And that he had been watching me particularly because I had been a strong union supporter . And that he was bound to catch me at something sooner or later. That he had been watching me and that he was out to get me, and that I had caused him a lot of sleepless nights over this matter . . . he asked me why I had sided against the company with the Union. 'Rule 35 involved "inefficiency or lack of application of effort on the job." The penalties for such conduct was a written warning for the first offense, one week's layoff for the second offense and discharge for the third offense. Mays' offense was that "she was laughing , talking, she did not complete her work ... in the amount of time ... required ...." According to Mays' further testimony on this occasion Runyun also asked her several questions about why one ballot had been challenged . He also said to her several times during the conversation that if they "ever came to court together that he would deny saying anything that he said." Mays flatly denied on cross-examination that when Runyun said this he said it jokingly. Mays also testified that following her conversation with Runyun on February 26 she had several conversations with General Foreman Whitman . He asked her such questions as was she "having anything to do with the Union." He also told her that if she had anything further to do with the Union "he would be sure to know about it." In his testimony Runyun confirmed that he had talked to Mays on February 26 or 27 about her grievance. According to him they talked about "life, love and the pursuit of anything almost that you can ever think of." The session lasted for well over an hour during which time Mays cried some. In substance Runyun testified that he followed his usual procedure going through the complaint and the handbook rule involved to make sure that Mays understood the warning . Mays was nervous and excited: She felt that she had been discriminated against and that several others should have received written warnings also. He explained to her that regardless how many might have been involved she was the only one caught at it comparing it to a situation when the teacher suddenly comes into the room and catches one of the group with the eraser in his hand. As for what was further said he testified as follows: She had not gotten into any kind of trouble at any other time under any other circumstances . . . she was an extremely good employee. She was a good wireman, efficient wireman , high quality . She did as good a job as any wireman we've had, such a good job that we transferred her after this complaint from one department to another, simply because we felt we could use her talent better . And because we wanted to get her away from the circumstances and the people and the activities of the union election, she was in this one group through the whole thing . And she had indicated to me that she wanted out, she wanted away from that. She wanted to get over where she could get a new start. So we gave her a new start in another department as a wireman . The same job, same classification, same pay. And what most of them had done with her throughout the campaign was they had egged her on , they had let her be the goat for all of their antics and all their activities and all their things that they wanted to stir up. And so she indicated to me she was through with the Union, she wanted nothing to do with the Union, she wanted to get a fresh start and this is why we transferred her over, to give her this fresh start. When asked who brought up the subject of the Union in this conversation Runyun answered that it was Mays testifying as follows: . she stated that she was glad it was all over, and I said, what do you mean , and she said, well, the election and the campaign, and me running out front and holding a banner and no one following at the end, and being so much alone at the end. So I asked her why, why were you involved if you felt this way about it. Well, she thought this was the right thing to do and once she got into something she was going to carry it through to the end. And we talked about how ironic it NORTH ELECTRIC CO. 5 was, I told her I thought that the day of the counting of the ballots she was an observer , there were four others that were observers but she was by the the Board agent, picked to count the ballots for North Electric Company, and she had to sit there and say 100, when others were getting 2' s and 3's and 4's. And I was trying to explain to her how sorry I was that she was so involved in this thing and had to be the one to count the North Electric ballots and say 100 and give them all the votes so to speak. Runyun further testified that he felt sorry that Mays "was involved in this thing" for the reason that "she was so intent on winning , so intent on getting out there in front that she had put everything , every ounce of energy she possibly could into this thing and she was defeated and she lost." He denied telling Mays that the rules were such that the Company could treat employees in any manner they wished regarding them . He admitted that he might have referred to what he would do if they ever got into court about what they were talking explaining , "it's a famous expression of mine. And I will say I probably did. I don't recall doing it, but I'm sure that if I said it I said it jokingly, and I cannot swear that I said it this way, but normally I say it in a joking manner and usually when I'm saying something about my own personal life." He explained that the expression he uses is, "if you ever repeat any of this, I'll deny it in court." He admitted that he did mention to her a challenged ballot in the union election when he "was trying to do some in depth conversation with her." He explained that notwithstanding that Mays was a good worker she had a problem with this particular lead girl . The lead girl had told her that her ballot was the only one out of 600 that was challenged . So when they "were talking about the election and her wanting to get out of the Union and what not, [he] said , well, why did you challenge this particular ballot...." In closing 'he gave her what he described as his speech No. 39 to motivate and inspire people as follows: She's an extremely intelligent individual , she has all the talent and all the faculties to be anything that she desires to be. And we talked about the union in the conversation . She said she was through, and I said, Pam, some day you may be faced with another election and it doesn't matter which way you go, but whatever way you go, stop and think about what way you go, make it your decision, use your intelligence and your brains to analyze it and not someone else's and then whichever way you decide, you use every God-given talent you have and be the best at that. And that's how I closed it. On direct examination Whitman testified that a few weeks after February 26 on an occasion when he was working near Mays she asked him "strictly off the record" if he had heard that she was working with the Union again . He replied, "no, Pam . . . if you were, I would have heard it." According to Whitman Mays replied , "If I ever do start in it again, I'll come and tell you ... that's the kind of person I am." I have no doubt that Runyun probably said to Mays much of what he claims he did in his hour-long discussion with her about "life, love and the pursuit of anything almost that you can ever think of." However , I am also convinced and find that he also said to her what Mays claimed he said in her testimony. Mays impressed me as being a forthright and intelligent witness . As shown, she was positive in her denial that Runyun was joking when he told her that if the need ever arose he would deny saying to her the things he was saying . Although admitting that he did make the comment in question Runyun was unable himself to swear that he was joking when he made it. Thus, it would appear and I find that the remark was made in seriousness as Mays testified. Such being the case, the implication follows that Runyun was saying things to Mays he had no legal right to say. I also credit Mays' version of what was said to her by Whitman in their conversations. In this connection it seems to me that there is a certain illogic in what Whitman would have me believe Mays said. On the basis of the foregoing evidence I find that Respondent interfered with, restrained and coerced employees in the exercise of rights guaranteed them in the Act thus violating Section 8 (a)(l) thereof by: 1. Runyun's telling Mays that he was watching her because of her union activity and that he was bound to catch her in violation of one of the Company's numerous rules, which I find was a threat of reprisal because of her union support. 2. Runyun's question to Mays as to why she had sided with the Union against the Company , which in the light of Respondent's other unfair labor practices found herein I find it to have been illegal interrogation of its employees. 3. Whitman's question to Mays about whether she was having anything to do with the Union which in the circumstances here also constituted illegal interrogation. 4. Whitman's statement to Mays that if she did have anything further to do with the Union "he would be sure to know about it" which I find was tantamount to a threat of surveillance on the part of Respondent of the employees' union activities. James Lewis, the charging party's brother, was formerly employed by Respondent as a security guard. Before he left Respondent's employment he had been reduced along with three other security guards to a production job at less pay in an economy move. According to Lewis, in late October his supervisor Harold Combs called him into the office about which he testified as follows: We started talking and he asked me what was this junk that I hear about your brother John , and I said, sir, what junk. He said, union junk. I said, well, sir, John is my brother but he has a mind of his own and he's free to make his own decisions, and he very angrily said, well, John is on the way out and I 'm going to see what I can do to help him . And I told him after that that I would talk to John and see what I could do. In his testimony Combs denied that he ever had a conversation with James Lewis about his brother John. I credit Lewis here. On the basis of this testimony I find a threat of reprisal by Respondent in further violation of Section 8(ax 1) of the Act. Lewis also testified as follows about several conversations with Production Foreman James Campbell under whose supervision he was placed after being transferred out of the security unit: (early December 1967) Well, we more or less started discussing and it led to the talk about union and I openly stated our views and he said that North Electric would not pay any more with the union than they would without one, and I proceeded to explain my views , that I thought a union was a good thing, that by means of collective bargaining all of us being one, united , through a 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agent, we would gain some concessions, such as holidays and pay raises. (21 or 22 December 1967) ... again at my work station, . . . we talked at length again about the union . And we talked about, he said it was very necessary for us to have a third party involved in any discussion concerning ourselves . That really all the union was after was the money from the dues they received . And then he stated experiences of his childhood, of being raised in Virginia and having had to go to school on several occasions looking down the barrel of a 50 caliber machine gun. And that unions instigated and caused violence. (January 1968) ... one time in particular, we discussed , he told me I was a fairly intelligent young man and I should be able to weigh the situation carefully and it would seem to come to his point of view that a union would do us no good there at North and that North would not pay us any more, with or without a union. On cross-examination Lewis admitted that he could not recall the exact words Campbell had used in their conversations and further admitted that he was testifying as to the meaning Campbell conveyed to him in their many conversations. I see no violation on the basis of the foregoing testimony. Lewis also testified on direct that prior to the election he had talked to Assistant Foreman Leoda Utsman about his ambitions to achieve supervisory status with Respondent . In this connection he had asked Utsman in effect how she had accomplished it. Utsman told him that if he "ever wanted to go higher with North Electric .. . [he] should work and vote against the Union." On a subsequent occasion, according to Lewis, Utsman again told him that it would be to his benefit to "vote and work against the Union." In Lewis' affidavit, while indicating that he had told Utsman he wanted to get into supervision, did not indicate that she had told him that he would be better off, if he wanted to better himself, if he voted and worked against the Union. Utsman, who was no longer employed by Respondent, testified at the call of Respondent . On direct she was asked if she ever talked to Lewis about unions and she answered, "No, sir, he would bring it up and I listen, but I didn't answer any questions for him. I referred him to Jim Campbell." On cross-examination she testified that Lewis was bitter about his demotion "you could tell by the way he talked when he said it was done unfair." She did not know anything about it and told him so. She also admitted that she talked to some employees about the Union who would ask her questions and she would try to answer them as best she could. If she could not answer them she would refer them to sombody else. She also did this with Lewis but explained that the questions he asked she could not answer so she referred them to Campbell. Apart from the foregoing there was no denial by Utsman of Lewis' testimony. I credit Lewis and find a further threat of reprisal by Respondent (i.e., that union activity would prevent advancement ) in violation of Section 8(a)(l) of the Act. According to John Lewis' testimony, sometime in November or December 1967 in comments to his assembled employees Foreman Wayne Jennings said that "he had worked for a lot of companies and that North Electric had the best pay system, had the best promotion system ..." and that if the employees had a union they "would have to stay on one job at all times" and would "have no chance for promotion or advancement ." He also told them that they would "get no more money" if they had a union. Jennings testified that he calls periodic meetings of the employees in his department. As for one of these meetings in November, in which he claimed that a question was asked by one of the employees concerning the Union, he testified as follows: I believe someone asked why is the wages higher here, I mean higher in Galion ' than they are here and why did they have more holidays than we do and why do they have more benefits? * * * I told them I thought that the reason that wages in Galion were higher was because the efficiency of our plant was lower, that their cost of producing a unit was lower in Galion and that possibly the cost of living was different here than it was in Galion. * * * * * I told the men that I thought that the Company had the best chance for advancement faster than any company I had ever worked for, that the guys got to move around on their jobs more than they did, as soon as they were experienced they got to move around on the job, and that I had heard that in Galion that you stayed on the job for a long period of time before you got to move, and here you were moved around where that you could get a chance to be promoted faster. * * * * * ... I told them I didn't know whether they could get any more money with a union or not, they might and they might not. That I thought, that I understood that any raises or any benefits or whatnot, would have to be negotiated. I credit Jennings' version here and find no violation of the Act on this evidence. On January 25 William Graham, Respondent's president, spoke to two different groups of employees assembled each time in the plant cafeteria. Graham was not called as a witness but it was stipulated that if he were to be called he would testify that both of the speeches were made from a text introduced in evidence as Respondent's Exhibit 1 and further that his remarks were tape recorded and that the tape recording (received in evidence and transcribed by the official reporter into the record at pp. 285 to 324) "accurately represents what he, in fact, said in his speech at that time ...." About what Graham said in his speech Mays testified on direct as follows: President Graham was introduced by Runyun, started out by telling ... what an honor it was to speak before us, and he told us about the outsiders , meaning the Union, were troublemakers and he told us, in length about strikes and violence, particularly at a plant in Galion that had all the windows broken out during one such strike. That they were interested in our pocketbooks and that we would not get one, not get any money, would not get one red cent unless the company 'Respondent's Galion plant was operating under a union contract. NORTH ELECTRIC CO. 7 so desired to give it to us . . . he said that they had many applications, I'm not sure whether he said hundreds or thousands, but he indicated that there were numerous amount of applications in the office . . . that there were applications in the office, people wanting to work. That they had no trouble getting employees. On cross-examination Mays admitted that she could not recall the exact words Graham had used in his speech. In his direct testimony James Lewis related in some detail what Graham had said in his speech. Among the things Graham said was "most emphatically, that North Electric would not give one more red cent with a union than they would without one." According to Lewis, while Graham "didn't come out and say that they would not bargain with the bargaining agent" he did say that "there was no use for a bargaining agent . . . at North Electric" and that it would do the employees no good to have a bargaining agent. On cross-examination Lewis admitted that he could not recollect Graham's speech "word for word." When given the copy of the speech received in evidence Lewis was asked to read from it as follows: I want you to remember this fact. That I'm not saying or implying that it would be futile for you to join the Union. Neither am I saying that we would refuse to bargain. We would fulfill our obligation in this area. We would bargain in good faith. When asked if he recalled Graham making this statement Lewis testified that he did not recall it but did not deny that this statement was made admitting that Graham could have said it. He also admitted that Graham did tell the employees in the speech that "you might get more, as the unions have promised, or you might get less." John Lewis also testified on direct in detail as to what Graham said in his speech. Among the things Lewis testified was that Graham had said that the Company "would not recognize the Union as the bargaining agent and they would not give . more money. That they would shut the place down before they would give . . . anything." On cross-examination Lewis also admitted that he could not remember everything said by Graham and that he had forgotten much of what was said. But Lewis reiterated Graham's remark and was positive that Graham had said that the Company "would not recognize the Union as a bargaining agent and that before they would give ... any more money, they's shut the place down." As shown, a typed copy of Graham's speech was received in evidence together with the tape recordings of both the speeches he made which were transcribed by the official reporter into the record. It was stipulated at the hearing that if called as a witness Graham would testify that these exhibits accurately reflected all that was said by him on those two occasions. I credit this representation and find nothing in his remarks that shows any violation of the Act. Discrimination John Lewis had been hired by Respondent in April 1967 at a rate of $1.55 per hour. On February 26, 1968 when he was discharged his rate of pay was $2.01 an hour. In early June 1967 he signed a union card and thereafter attended union meetings about once a week until the election on January 26, 1968. Along with several hundred other employees he wore a union button at work and as shown attended at least one of the representation case hearings having been released for it at the Union's request by his foreman Wayne Jennings. Plant Manager Runyun and Personnel Manager James Fulton were also present at this hearing. On September 13, 1967, Lewis filed a grievance on a company complaint form regarding his having been called into General Foreman White's office as follows:' About 3 weeks ago while T. Kleffman was on vacation and G. White was my supervisor, he asked a friend of mine, Gregory Chambers, where "goof off" was. (I had left to get a jack in shipping) A couple of days later I hurt my back on the job and Mr. White then said to me in a snotty way that it appeared to him that I can't do this type of work. I was off for a while with my back and never heard any more from Mr. White until Tuesday, 9/12/67, when he called me and Mr. Kleffman to his office. Mr. Turnbull was also there. Mr. White asked "what's this about your back?" After I told him about it, he said "In the first place, I never believed you hurt your back." He said he'd seen me a lot of times sitting around, goofing off and not doing what I ought to do. He said he was putting me under W. Jennings and he wants quality and quanity out of me and if I make one mistake he'll give me my walking papers. He also said my attitude was bad. I believe the company is out to get rid of me because the nurse said she didn't know if I was lying the other day when I was in first aid. When asked T. Kleffman about this, he said the company don't like sickly people and get rid of them in a hurry. Either Mr. Kleffman or the nurse said the company thought I was using my back as an excuse for my own personal gain. When I get finished with what I've been told to do, I sit around and wait for my next job because I don't want to mess something up I don't understand. Mr. Kleffman has spoke to me for this and talking to someone once in a while . (I remember only 2 times of Kleffman talking to me.) After Mr. White talked to me Kleffman told another man that he had never heard anyone talk to a person the way Mr. White did to me. I want my job and to do it right, but I believe the treatment I'm getting now is unfair and I'll never be able to avoid making a mistake because everyone does. I don't have any security now. I request a clearing up of all this and assurance that I'll be given fair and right treatment. Also I work for Mr. Kleffman, why didn't he change my job instead of Mr. White? On this same form under date of September 15, 1967 White's comments appear as follows: This employee has been assigned to lighter work in the NX-2 Test area in deference to his physical handicap relating to a back injury. His attitude toward supervision, conduct, and productivity was less than acceptable; and I firmly advised him that we expected definite improvement in his new work assignment as a condition to continued employment. His foreman will make every effort to assist him in identifying and correcting his shortcomings in his job performance. In accordance with established procedure Lewis subsequently took the matter up with Fulton and White 'On cross-examination , he denied having filed a written complaint in connection with this matter but identified his signature on the complaint form and testified that he had no recollection of signing it. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who went over the complaint with him item by item. On February 26 Lewis was discharged. About this he testified as follows: Well, Foreman Jennings came to my desk about 3:20 and said they wanted to see, I thought he said in Jim Fulton's office, and I said, well, let me put my tools up because I won't get back in time. So I put my tools up and me and him went to Bill Turnbull's office and he was in there and Gene White and he told me and Mr. Jennings to have a seat. * * So after we had a seat, Mr. White said, John, said, you got two choices. Said, you can either quit or as of 3:30 we're going to fire you. And I said, why. And he said, well, we got information that you lied on your application. And I asked him what kind of information and he said he had information I got fired at Beaunit. And then he called Mr. Combs in, the security officer and told Combs to read this stuff off, so he read it off that I got fired on a certain date. And I said, is that all it says? And he said, no, it says you got reinstated on the job. And I said, well, if you give me 2 or 3 days to think this over, I'll try to come up with the right decision on it . And he said, you got about 3 minutes. I said , well, I'm not going to argue with you, I got a load of passengers to take home and I said, its 3:30, and if I'm fired, I said, I got to go home now. And I said, good day gentlemen, and I got up and left. In this interview nothing was said to Lewis about his job efficiency. His termination notice however rated him poor in attendance, efficiency and attitude; fair in aptitude and interest and satisfactory in safety. It also indicated that his discharge was for violation of "Employee's Handbook Rule 31 (misrepresentation of facts in seeking employment) and Rule 35 (inefficiency on the job)." Regarding the representations made by Lewis on the job application that he filed with Respondent on March 10, 1967, the credited evidence shows that he had stated on the application that he had worked for Beaunit Mills from August 1, 1962, to March 1, 1967, and that he had left Beaunit Mills in order to "go to school and couldn't work shift work." The evidence further shows that as of March 1, 1967, he was still working for Beaunit Mills and continued to work for Beaunit Mills until March 9 at which time he had been suspended from his job.' A few days later Lewis was informed by Beaunit that through the Union he was going to be discharged. The Union apparently filed a grievance on his behalf that went to arbitration which sometime in May resulted in an award favorable to Lewis. In the meantime as shown Lewis had started working for Respondent sometime in April. Jennings was called as a witness by Respondent. On cross-examination he testified that he had heard a rumor that Lewis had been discharged by Beaunit. Checking Lewis' application he found that there was no such indication on it. Although he had no reason to believe that Lewis had lied on his application he wanted the rumor checked out. Accordingly a day or two after he first heard the rumor he talked to Security Officer Combs about it,' 'On cross-examination Lewis denied that he had deliberately failed to reveal the fact of his suspension from Beaunit. In his affidavit he stated, "on the day I was discharged at North, I pointed out during my termination interview that if I had put down discharged at Beaunit they wouldn't have hired me." His statement also said, "at the time I applied I didn't tell the Company I was discharged and I didn 't volunteer this information." telling him that if Lewis had falsified his application in this respect he "thought (Lewis) should be discharged." Combs testified that when he had checked Lewis' record at Beaunit in April 1967 the employment manager with whom he usually dealt was absent. Instead he talked with a young lady in the personnel department asking her for a report on Lewis - "his attendance, his attitude and work habits, et cetera." She returned in a few minutes with the information that Lewis " was clear." On this basis he cleared Lewis' application originally. Then, in February 1968, when Jennings had told him about Lewis' rumored discharge and his feeling that Combs ought to reinvestigate he did so. At this time he learned that Lewis had been discharged on March 9 and that he had been offered reinstatement on the basis of an arbitration award but that he had indicated to Beaunit that he did not want reemployment because he was employed elsewhere. This information Combs conveyed to Personnel Manager Fulton who instructed him to inform White of his findings for the purpose of discharging Lewis. Fulton testified that during his 14 years' experience with Respondent it has been a rule or policy to discharge anyone who may have been found to have made a false statement on his job application.' He further testified that this policy has been "uniformly enforced throughout all North Electric plants." In this connection Fulton named three people (Josephine Barnett, Lewis Kayler, and Ann Kathleen Trollinger) who had been discharged for making false statements on their job applications. Kayler's job application was dated August 22, 1966. He was hired October 21, 1966, and discharged on June 20, 1967, when it was discovered he had falsified his application in connection with an arrest. Barnett's application was dated June 23, 1966. She was hired August 1, 1966, and discharged on March 15, 1967, for her failure to disclose on her application a prior industrial accident. Trollinger had been discharged about 2 weeks after she was hired when she produced a birth certificate which showed a 4-year discrepancy between her application and her birth certificate regarding the date of her birth.' Conclusions In my opinion the evidence will support an inference that Respondent was willing to utilize a pretext to discharge or otherwise discriminate against an employee because of his union activity.' Nevertheless I am unable to find on this record that Lewis' discharge involved such a pretext. Considering Respondent's uniform practice of discharging employees for making false application statements, it is obvious that Lewis would have been discharged whether he was a union supporter or not. 'At first he testified that Combs was the only one he mentioned this matter to, then he conceded that he "might have mentioned it to Mr Runyun" on the same day. 'Not only does rule 31 provide for such penalty but the application form itself states, " I understand that, in the event of my employment by the company, I shall be subject to dismissal if any of the information I have given in this application is false." 'No exhibits accompanied Fulton 's testimony regarding Trollmger's discharge because, as he explained, Respondent does not retain files on people who are discharged during. their probationary period At first he testified that Trollinger was 4 years older than her application showed. Later when asked for more detail he testified that her application showed her date of birth as being 1929 when in fact she was born in 1933. 'This conclusion is implicit in Runyun 's remarks to Mays. NORTH ELECTRIC CO. Thus, to hold that his union activity played a part in the discharge would be nothing more than surmise and speculation - no basis upon which to make a finding. Nor, in my opinion, does the failure of Respondent to mention rule 35 (inefficiency on the job) to Lewis at the time of his discharge militate against this conclusion. There is no question, as Jennings in effect testified, that the reason and only reason Lewis was discharged was the false statement on his application. The addition of rule 35 on Lewis' termination form thus is of no particular significance. In any event the appraisal of Lewis' performance appearing on the form seems consistent with whatever evidence appears in the record regarding his performance.' Accordingly I find that Lewis' discharge was not discriminatory within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. 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 that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent did not violate Section 8(a)(3) of the Act I shall recommend dismissal of that allegation. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: Conclusions of Law 1. At all times material North Electric Company, Incorporated has been a labor organization within the meaning of Section 2 (2) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. As found herein Respondent has not discriminated against its employees in violation of Section 8(a)(3) of the Act. 'The uncontroverted evidence shows that the wage increases received by Lewis during his employment were all automatic and not based on merit in any respect. RECOMMENDED ORDER 9 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I recommend that North Electric Company, Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Illegally interrogating its employees about their union activities, membership, or sympathies. (b) Threatening its employees with discharge or other reprisals because of their union support or its success in organizing the employees. (c) Creating the impression among its employees that it is engaging in surveillance of their union activities. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant at Gray Station, Tennessee, the attached notice marked "Appendix."" Copies of said notice, to be provided by the Regional Director for Region 10, after being duly signed by an authorized representative of Respondent, 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. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith." IT IS FURTHER RECOMMENDED that unless on or before 20 days from the receipt of this Decision the Respondent notifies the aforesaid Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. "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 Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the Regional Director for Region 10, 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 National Labor Relations Act, as amended, we hereby notify our employees that- WE WILL NOT illegally interrogate our employees concerning their union activities, membership, or sympathies. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten our employees with discharge or other reprisals because of their union support of its success in organizing our employees. WE WILL NOT attempt to create the impression that we are engaging in surveillance of our employees' union activities. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights to self-organization, to form, join , or assist International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. All of our employees are free to become, remain, or refrain from becoming or remaining members of the aforesaid union or any other labor organization. Dated By NORTH ELECTRIC COMPANY, INCORPORATED (Employer) (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 Board 's Regional Office, 730 Peachtree Street NE., Atlanta, Georgia 30308, Telephone 404-526-5741.