Triway Manufacturing, Inc.

TRIWAY MFG., INC. Triway Manufacturing, Inc. and International Union of Machinists & Aerospace Workers, District Lodge 69, AFL-CIO. Case 19-CA-4101 September 9. 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On July 9, 1969, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceeding, 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. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent Triway Manufacturing, Inc., Maryville , Washington , its officers. agents, successors, and assigns , shall take the action set forth in the Trial Examiner 's Recommended Order 'These findings and conclusions are based , in part, upon the credibility determinations of the Trial Examiner, to which Respondent inferentially excepts On the basis of our own careful review of the record , we conclude that the Trial Examiners credibility findings are not contrary to the clear preponderance of all the relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products . Inc . 91 NLRB X44, enfd 118 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION S1 ATEMLNT OF "I HE CASE ROBERT L.IPIPER, Trial Examiner This proceeding, under Section 10(b) of the National Labor Relations Act, as amended. was heard at Seattle, Washington, on January 9, 1969, pursuant to due notice The complaint. which was issued on November 7, 1968,2 on a charge filed August 5 and amended August 26 and October 22, alleged in substance that Respondent engaged in unfair labor 371 practices proscribed by Section 8(a)(1) and (3) of the Act by specified acts of interference, restraint, and coercion and discriminatorily discharging Eldon G. Cook, an employee Respondent's answer denied the alleged unfair labor practices The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OF FAC-1 1. JURISDICTIONAL FINDINGS Respondent is a California corporation engaged in the manufacture of aircraft components at its plant in Marysville, Washington Respondent annually purchases and receives directly from sources outside the State of Washington goods and supplies valued in excess of $50,000 and sells and ships products valued in excess of $50,000 directly to customers outside the State of Washington. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED International Union of Machinists & Aerospace Workers, District Lodge 69, AFL-CIO (hereinafter called the Union), is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNi AIR LABOR PRAC1ICES A. Introduction and Issues In early May, after a layoff by Respondent, the Union commenced organizational activities among Respondent's employees. The Union's only employee organizer in the plant was Eldon G. Cook On August 3, Respondent discharged Cook. The issues, as framed by the pleadings, are interference, restraint, and coercion by interrogating employees concerning Cook's union activities and discrimination by discharging Cook because of his activities on behalf of the Union. B. Chronology of Events On or about May I. Respondent laid off some 50 employees without observing seniority As a result, the remaining employees became interested in some form of organization to represent their interests, and one of them proposed a grievance committee. Because the original meeting of this proposed committee was scheduled at the home of a brother of Randall I- Taylor. Respondent's general foreman of the second or night shift, most of the employees did not attend and the proposal died for lack of support. Shortly thereafter Cook, who had been a member of the Union for some years prior to his employment by Respondent in December 1966, was asked by the Union if he would assist it in organizing Respondent's employees. Cook accepted and was the Union's only in-plant organizer Respondent's production department was divided into three sections, each headed by a foreman, who in turn were under Taylor, the general foreman in charge of All dates hereinafter refer to 1968 unless otherwise indicated 178 NLRB No. 57 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production. Cook and Taylor were employed on the second or night shift from 5:30 p.m to 4 a.m. In early May, Cook began talking to the other employees about the advantages of joining the Union, primarily during coffee and other break periods. At the outset, he asked Taylor for permission to distribute union literature and authorization cards at the plant. Taylor replied that Cook could as long as he did not do so on company time. Cook kept the union literature and cards he distributed on top of his open toolbox, readily visible to all. One evening early in May, Cook for the first and only time discussed the Union with two other employees during working hours. Shortly thereafter he observed them talking to their foreman. The same evening, Taylor asked Cook if he had been talking about the Union in the shop. Cook replied that he had. Taylor informed Cook that he could not do so on company time. Cook replied that he would not do so again, and the record establishes that he never did. Respondent had no published rule on the subject of talking or soliciting, and Cook testified, without contradiction, that prior thereto as a privilege Respondent had customarily permitted the employees to talk and visit. Shortly after Cook began his union organizational efforts he approached Harold Wilson and a number of other employees about the Union during a break. Wilson, who had been a machinist for more than 30 years, replied that he was not interested and intended to remain strictly neutral From May to Cook's discharge on August 3, he regularly discussed the advantages of the Union with his fellow employees in the plant during coffee and other breaks, and frequently distributed union literature and authorization cards before and after work at the plant entrances. Early in June, Taylor began interrogating employees concerning the union activities, including who was signing authorization cards and who was obtaining the signatures. On June 3, Respondents put into effect a general pay raise of 30 cents an hour for all production employees. During June and July, Taylor interrogated Wilson several times each week about such union activities. Although Taylor first testified that he had never interrogated any employees about the Union, on cross-examination he admitted interrogating Wilson several times a week about union activities, who was signing authorization cards, who was getting them signed, and Cook's union activities. Taylor asked a group of employees, including Wilson, if they knew that Cook was active in organizing for the Union. They admitted that they did Taylor warned them that Cook would be fired if he was caught engaging in such activities. Taylor also told them that Cook, because he was an older man and had a pension, did not care if he was fired for union activity, his life had already been lived, and he was unconcerned about the younger men who had to depend on their jobs. Taylor further told them that Cook was organizing for the Union in order to become a union steward. James Johnson, Wilson's foreman, informed Wilson that if the Union got in the trainees would make much less money and Respondent would reduce its overtime to a minimum. The employees were working 58 hours a week at that time. On June 12, the Union held an organizational meeting at the local American Legion ball, which was attended by approximately 14 employees, including Cook, General Foreman Taylor, and Colin Sweeney. an employee who was a machine parts inspector for Respondent. Taylor and Sweeney refused to , sign the attendance roster when requested by the Union. Cook continued his union organizational activities on his own time. On August 1 shortly before the night shift began, an employee asked Cook how the union organization was doing. Cook replied that it was doing fine and with a few more cards the Union would be able to file for an election . The employee refused to sign a card. A few minutes later Cook observed two signs taped to an air hose, reading- "Cook for Steward" and "Vote for Cook All the Way." Later that evening, Cook observed a poem posted on the bulletin board near the inspection department. It was printed in large letters on the blank side of a company form called the "First Article Inspection Report." The first sentence read: "Eldon Cook is a Union Fink," and without going into details, its general tenor was that the employees would lose their jobs if the Union got in . About four hours later, Cook removed the poem from the bulletin board and, when the shift ended, checked the printing against some available samples, because he suspected that it had been written by Sweeney, who used that form as a first article inspector. The next evening, August 2, Cook took the first machine part he finished to Sweeney for inspection. Sweeney informed Cook that Sweeney understood that Cook did not like the poem Sweeney had put on the bulletin board the previous night Cook thereupon asked him to sign it, telling him that the author ought to sign his own manuscript, and the two exchanged "some very hot words." After Cook returned to his work station, another night shift employee observed Sweeney and Taylor in a 45-minute discussion in the lunchroom, not during the lunchbreak. About 2 a.m., Taylor informed Cook that he was discharged for poor production and because his attitude in the shop was bad. Cook replied that Taylor knew that was not true, but Taylor insisted that was the reason Cook admittedly showed Taylor the poem which Cook had removed from the bulletin board, written on the back of Respondent's inspection report form, but Taylor claimed he did not know who had written it. Cook, whom I credit, testified that Taylor had never previously criticized his work or attitude. Cook testified that when he received the raise of 30 cents an hour on June 3, Taylor informed him that 10 cents of it was a bonus and that Taylor and Respondent were pleased with his work Although Taylor testified that the 30 cents was a general rate increase , he did not deny making this statement to Cook. Taylor, whom I do not credit, testified that he had orally warned Cook about his various deficiencies on several occasions. Admittedly no one else was present and Respondent kept no record of such warnings Taylor originally testified that he discharged Cook for numerous incidents during the preceding 3 months (the period of the union organization), primarily for being away from his work station too much, talking to other employees, and a drop in his production to less than that of a 6 months' trainee. Respondent's personnel record, called a "performance and pay record," revealed that from February 13, 1967, when Cook was rehired, he was consistently rated as doing a good job and received periodic merit raises. The last two entries, March 25 and June 3, respectively stated that Cook was doing a good job, and that he received a rate raise of 30 cents. Contrary to Respondent's customary practice, Cook's performance and pay record did not contain the date of or any reason for Cook's discharge, but terminated only with the comment, "No rehire." This record was prepared and written by Vernon Spurrier, Respondent's production manager and Taylor's superior, after consultation with Taylor. Spurrier admitted that such record customarily contained the reasons for an employee's discharge but Cook's did not. Spurrier, who entered the words "no TRIWAY MFG.. INC. rehire" on Cook's performance and pay record, was unable to explain why such record varied from the customary procedure. Spurrier first testified that Respondent's Exhibit 1, a photostatic copy of a 3 by 55 inch card allegedly signed by Taylor August 2 stating that he had terminated Cook that night and the reasons therefore, had been given to Spurrier by Taylor August 3 and incorporated in Cook's personnel life. Ilowever, Spurrier subsequently stated that the exhibit was not the note Taylor gave him at the time but was furnished to him by Taylor a few days later. Respondent was unable to produce the original of its Exhibit I or explain its absence, and failed to furnish it in response to the General Counsel's suhpena requesting all of Cook's personnel records. Although Taylor was called to testify twice, he was never asked to identity the card or his signature, to authenticate its contents, or whether he had placed it in Cook's personnel tile. The photostat of the card contained the word "over" near the bottom, with an arrow pointing to the bottom, but the photostat did not include the reverse side The photostat of the card allegedly signed by Taylor stated that Cook was discharged because he spent more time talking with the men in the shop than on his lob, had developed a very bad "attitude" towards his job and the company in tie last 3 months, and his production had dropped off to less than that of a 6 months' trainee When Taylor was recalled to the stand by Respondent, after Respondent's Exhibit 1 allegedly containing Taylor's reasons for Cook's discharge had been identified by Spurrier and received in evidence, Taylor added to his reasons for discharge Cook's had "attitude" contained therein but not mentioned by Taylor during his original testimony. Finally. Taylor, whom I do not credit, testified that Cook's union activities had nothing to do with his discharge. Nick Veszelovsky, under Taylor, was Cook's immediate foreman Two days before the hearing in this proceeding, Veszelovsky informed three employees. including Wilon, who were discussing the reasons for Cook's discharge, that Cook was not fired at all because of the quality or quantity of his work, which was above average C Interference , Restrain! , and Coercion The complaint alleged that on or about June 3 and frequently thereafter Respondent , by Taylor. interrogated its employees concerning Cook' s union activities. As hereinabove found, Taylor admitted frequently interrogating Wilson about th4 union activities of Cook and other employees It has also been found that Taylor interrogated other employees , present with Wilson, about Cook's organizing activities , warned them that Cook would be fired if he was caught engaging in such activities, and informed them that Cook did not care whether he was fired for such activities because he was an older man, had a pension, his life had already been lived, he was unconcerned about the younger men who had to depend on their jobs for a livelihood, and that Cook was organizing so that he could become a union steward. The record establishes, and I find, that Respondent interrogated its employees about Cook's union activities, thereby interfering with , restraining , and coercing its employees in violation of Section 8(a)(I) of the Act. D Discrimination in Hire or Tenure, Terms, or Conditions of Employment The complaint alleged that on or about August 2 373 Respondent discharged Cook and thereafter failed and refused to reinstate him because of his activities on behalf of' the Union. Respondent and Taylor contend that he discharged Cook because of his spending too much time away from his job talking with other employees, his "bad attitude" towards his job and Respondent, and his substantial drop in production to less than that of a 6 months' trainee The record establishes that after the first incident in early May, when Cook began his organzational activity and was warned by Taylor not to discuss the Union with other employees during' uring company time. Cook never again did so, but confined his discussions with other employees to coffee and other break periods and regularly distributed union literature and author17ation cards at the plant entrances on his own time. Although received in evidence, Respondent's Exhibit 1, because of the facts above delineated, is entitled to very little if any weight. Respondent and Taylor never explained what he meant by Cook's "bad attitude" towards his job and Respondent, and there is nothing in the record to support this self-serving conclusion, unless it be Cook's activities on behalf of the Union The record clearly establishes that Cook's production not only had not dropped off but was better than average. Respondent produced no production records to support its contention Respondent's performance and pay record of Cook established that he was uniformly rated as a good worker, received several merit increases, and on June 3. 1 month after his alleged deficiencies commenced, received a 30-cent an hour raise, at which time he was told by Taylor that it included a 10-cent bonus and that he and Respondent were pleased with Cook's work. It has also been found that Cook was never warned about such alleged poor production and other deficiencies. Perhaps the most convincing evidence with respect to Cook's production was the undenied admission of Veszelovsky, Cook's immediate foreman, that Cook had not been discharged because of the quality or quantity of his work, which was above average Respondent did not call Veszelovsky to testify. Thus the record establishes, and I find, that Respondent's alleged reasons for Cook's discharge were untrue, unsupported by facts, and patently pretexts. Respondent unquestionably was aware of Cook's union activities from their outset. inasmuch as at that time he requested Taylor's permission to distribute union literature, which Taylor granted provided that it not be done on company time Such knowledge by Respondent does not establish, as it argues, that Cook's discharge was not because of his union activities From the outset Taylor interrogated a number of the employees about Cook's and their union activities, in an obvious attempt to ascertain who might be active in organizational activities in addition to Cook and who was signing authorization cards. Taylor accompanied his interrogation with both explicit and implied threats of reprisal, including the threat that Cook would be fired if caught On August 1, after Taylor's statement to employees that Cook was organizing for the Union because he wanted to become a union steward, someone posted signs in the plant reading "Cook for Steward" and "Vote for Cook All the Way," and Sweeney posted the derogatory poem concerning Cook and the Union on Respondent's bulletin board. During the shift which began the following night. August 2, and terminated at 4 a.m. August 3, Cook and Sweeney had a heated discussion about the latter's posting of the poem. Not long thereafter Sweeney and Taylor 374 DECISIONS OF NATION At. LABOR RELATIONS BOARD were observed in a discussion which lavted some 45 minutes About 2 a in. August 3. Taylor informed Cook that he was discharged for the above found unsupported reasons Cook showed the poem to Taylor and challenged the latter's reasons for discharge, but Taylor merely reiterated them without substantiation and denied knowledge of the authorship of the poem. A preponderance of the reliable, probative and substantial evidence in the entire record convinces me, and I find, that Respondent's alleged reasons for discharging Cook were pretextual, and that Respondent's real reason for discharging Cook was his union activities, thereby discriminating against him in violation of Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce, and the Union is a labor organization. within the meaning of the Act 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3 By discharging Cook because of his union activities, Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TILE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I tind necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease and desist order ' Upon the foregoing lindings of fact. conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following. RECOMMENDED ORDER Triway Manufacturing, inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from- (a) Coercively interrogating its employees concerning their and their fellow employees' union activities. (b) Discouraging membership in International Union of Machinists & Aerospace Workers, District Lodge 69, AFL-CIO, or any other labor organization of its employees, by discharging or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of 'N L R B v Exprers Publishing Company, 312 U.S 426, N L R B v Entwistle Mfg Co , 120 1•.2d 532 (C A 4), Consolidated industries Inc, 108 NLRB 60, and cases cited therein employment. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act 2. Take the following affirmative action which will effectuate the policies of the Act. (a) Offer Eldon G. Cook 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 pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge to the dale of such offer of reinstatement, less his net earnings during said period (Crossett Lumber Co., 8 NLRB 440), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). (b) Notify Eldon G. Cook if presently serving in the Armed Forces of the United Slates of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) 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 determine the amount of backpay due under this Order. (d) Post at its plant in Marysville, Washington, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative shall be posted by Respondent immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19. in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' '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 19, 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: TRIWAY MFG., INC. Wa^WILL NOT discourage membership in International Union of Machinists & Aerospace Workers, District Lodge 69, AFL-CIO, or any other labor organization of our employees, by discharging or in any other manner discriminating against employees in regard to hire or tenuie of employment or any term or condition of employment. WE WILL NOT coercively interrogate our employees concerning their or their fellow employees' union activities. WE WILL. NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act WE WILT offer Eldon G. Cook 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 pay which he may have suffered as a result of our discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining members of the above-named or any other labor organization, except to 375 the extent that such right may be affected by an agreement conforming to the provisions of Section 8(a)(3) of the National Labor Relations Act. TRIWAY MANUFACTURING, INC. (Employer) Dated By (Representative) (Title) Note: Notify Eldon G Cook if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced. or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 583-7473.