Tierney Electrical Manufacturing. Co

TIERNEY ELECTRICAL MFG. CO. 229 Tierney Electrical Manufacturing Company and Inter- national, Brotherhood of Electrical Workers Local 46, AFL-CIO. Case 19-CA-4887 July 26, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 4, 1971, Trial Examiner George Christensen 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 supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent they are consistent'with the following: 1. We find, in agreement with the Trial Examiner, that the Respondent, in its July 10, 1970,1 meeting of employees, conveyed an implied threat of discharge,to any employee who continued to support the Union and failed to support the Tierney Employees' Council, and thereby violated' Section 8(a)(1) of the Art. We also find that the Respondent violated Section 8(a)(2) and (1) of the Act by forming, dominating, and assisting the Tierney Employees' Council'2 - - 2. We do not agree with the Trial Examiner that the Respondent constructively discharged James Rowe on July 20 because of his status as the Union's leading supporter and his opposition to the Respon- dent's efforts to foist the Tierney Employees' Council on the employees. As found, by the Trial Examiner, on May 1-6, 1969, Rowe received his first, written warning notice from the Respondent. During the 6 weeks preceding this, notice, Rowe was absent for 6workdays; , on the 24 days he did work, he was late in reporting to work in the morning 16 times and late reporting back from lunch 12 times. The Respondent's rules require that employees punch timeclocks on commencing- work in' the morning, on leaving work for lunch, on'returning to work from lunch, on leaving in the afternoon, and, on a separate section of the timecard, on commencing and completing each job.-Employees are also required to write in the number relating to such job so that an allocation of labor costs can be made. On March 12, and again on March 17, Rowe received verbal warnings for failure to follow the Respondent's rules regarding-the punching of time- cards. During the 9 week s prito April 16, Rowe wrote rather than punched the time he, allegedly returned from lunch'on five occasions, and punched in and out for lunch at the same time on 15 occasions. Because of these continued violations of ; Respon- dent's rules and also because Rowe took a production problem to higher supervision rather than to his foreman as required by Respondent's regulations, Rowe wasissued his second written warning notice on April 16. It is not alleged that the issuance of any of the verbal or written warnings mentioned above was discrimina- torily motivated. Moreover, it is undisputed that Rowe continued to violate the Respondent's rules regarding timecards subsequent to the April 16 written warning. In these circumstances, we do not see how Rowe's failure to punch in after lunch on July 17 can be characterized by the Trial Examiner as so trivial as to imply a discriminatory motivation. While it is true that Rowe was active on behalf of the Union, campaigned against the formation of the Tierney Employees' Council, and, along with several of his fellow employees, demonstrated; his lack of support for the Council, there is no substantial evidence, that, the Respondent held any union animus against Rowe for these activities. In fact, Rowe admitted that, while, he was the only employee who refused to participate in the July 17, meeting to elect the Council's representatives, President Baker told him while the voting was in progress that if he did 'not wish to participate this was acceptable to Respondent. Because of Rowe's'continued and flagrant violation of Respondent's rules, and because of the lack of evidence either of ' any substantial union animus i Unless otherwise indicated, all dates occurred in 1970. Show Cause was served on Tierney Employees ' Council and the other 2 In making such a ,finding we are mindful of the ,fact that the Tierney parties hereto, to show cause in writing, why, in light of the fact that no Employees' Council was not served with a copy of the complaint in this exceptions had been filed with respect to the Trial Examiner's 8(ax2) and matter as provided in Sec: 102.15 of the National Labor Relations „Board (1) findings, these "finding's should not be adopted by the Board. The Rules and Regulations, Series 8, as amended. On June 2 , 1971, Notice to Notice To ShowCause was not answered. 192 NLRB No. 41 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toward Rowe or of disparate-treatment imthe issuance of ' the, 1-week suspension given hint on July 20; we find' that'the General Counsel has not sustained his burden, of proving discrimination in- the issuance of this suspension. We shall dismiss that allegation of the complaint. It follows that Rowe's quitting his employ- ment in :,protest, of this suspension was not a constructive discharge. We shall dismiss that allega- tion of the; complaint as well. ORDER' Pursuant to ' Section 10(c) of the National Labor Relations- Act,, as amended, the National Labor Relations Board adopts as its Order the recommend- edOrder of the Trial, Examiner, as modified below, and -hereby orders that the Respondent, Tierney Electrical "Manufacturing , Company, its officers, agents, successors, and assigns, shall take the action set forth in `the.Trial Examiner's recommended Order, as somodified: 1. Delete paragraph I (d). 2. LL Delete paragraphs 2(b) and 2(c) and redesignate paragraphs 2(d) and-2(6) as paragraphs 2(b) and 2(c), respectively. 3. Substitute the attached Appendix for the Trial Examiner's Appendix. ,APPENDIX NOTICE TO EMPLOYEES POSTED BY, ORDER OF THE NATIONAL LABOR ' RELATIONS , BOARD An Agency of the United States Government WE WILL` NOT `dominate the formation or administration of the Tierney Employees' Council nor contribute unlawful-supportor assistance to it. WE WILL NOT threaten any employee with discharge for ' •supporting International Brother- hood of Electrical Workers Local 46, AFL-CIO, and/or refusing to support the Tierney Employees' Council. WE WILL withdraw and withhold all recognition from 'the` Tierney Employees' Council as the bargaining- representative of our employees for the purpose' of` dealing' with us concerning g rievances, labov,disputes, wages, rates of pay, - hours of employment, or other terms- or conditions of employment and, W E'"WILL completely disestab- lish that organization as-such representative. TIERNEY ELECTRICAL, MANUFACTURING' -COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced .,by anyone. 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. Any questions_concerningrths notice or compliance with its provisions may be directed to the Board's Office„ Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-583-45,32. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN,, Trial Examiner: The Complaint in this case issued on August '24, 19`'70,1 alleging that the- Tierney Electrical- Manufacturing Company 2 violated- Section 8(a)(1), (2), and (3) of the National Labor Relations Act, 'as amended (herein the Act) by: (1) forming; dominatmg,_ and assisting the Tierney Employees Council (herein the Council) to succeed'the International'Brother- hood= of Electrical Workers Local 46; AFL-CIO3 in representing its employees in- dealing with the Company regarding the employees' wages, hours, and working conditions, (2) threatening to discharge employees .-who failed to desist from supporting the Union and/or failed or refused to r support the Council, and (3) constructively discharging lames Rowe because of support of the 'Union and opposition to the Council. It was either stipulatedor conceded that the charges were' duly `filed and served,4 that the jurisdictional facts and conclusions, set out in the Complaint were true and correct,' that '=the Union' at':-all -times pertinent", was, a labor organization as that term is defined in Section 2(5) of the, Act, that the' Union was the exclusive collective-bargaining agent of the production ',and maintenance employees. of the Company between December 24, 1968, and May' 11, that ' All dates are 1970,,,unless otherwise stated. TheUnion filed,the original, charge on July 23 and an amended charge on August 24. 2 Hereafter called the Company. 3 Hereafter called the Union. 4 The; Company moved, to dismiss those portions of the Complaint alleging that the Company violated the Act by constructively discharging Rowe.' Company' Counsel contended that such allegations should be dismissed because the 'Board is 'barred by the Act from, prosecuting -unfair labor practice complaints on its own motion and asserted that the amended charge containing the Rowe allegation was solicited by a Board agent after completion of 'the' Regions investigation of the original charge.` No evidence was produced to support the assertion . The Region has broad discretion to include within` a complaint any violations disclosed 'by its investigation of the 'original r charge and there ' is a, presumptively valid amended charge ^ executed by the Union alleging that the Rowe mordent constituted a constructive discharge in violation of the Act. The motion is denial. TIERNEY ELECTRICAL MFG. CO. 231 the Union was decertified as such representative on July 6 (Case 19-RD-496), and that at all times pertinent William Baker was the -Company's president, Leonard Faucher was its vice president, Fred Kovar was its production manager, Bernard Tomlinson was its foreman, and all of the foregoing were Company supervisors within the meaning of Section 2(11) of the Act. - The Company denied that the Council was a labor organization within the meaning of the Act, that it formed, 3olninated, or assisted the Council in representing its employees, that it threatened ,its employees, or that it constructively discharged Rowe, and it therefore requested' dismissal of the Complaint. The issues are: (1) whether the Council was a labor organization within .the meaning of the Act, (2) whether the Company formed, dominated, or assisted the Council as the Union's successor, (3) whether the Company threatened its employees with discharge for supporting the Union and/or refusing or failing to support the Council, (4) whether the Company constructively discharged Rowe for his support of the Union and/or opposition to the Council, and (5) whether by any, of.the above the Company violated the Act. A hearing on the issues was held at Seattle, Washington, on October 15 and 16. The parties appeared by counsel and were afforded full opportunity to adduce evidence, to' examine and cross-examine witnesses, to argue, and to file briefs. Briefs have been received from the General Counsel and the Company. Based upon his review of the entire record, observation of the witnesses, perusal of the briefs, and research, the Examiner enters the following: FINDINGS- OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The jurisdictional facts and the qualification of the Company as an employer engaged ' in commerce and the Union as a labor organization , within the meaning of Section 2(2),(5), (6), and (7) of the Act are conceded by the Parties, and the Examiner so finds. The issue'-of the Council's satisfaction of the labor organization definition shall be treated and resolved below. II. THE UNFAIR LABOR PRACTICES A. Introduction and Background At times pertinent to this proceeding the Company employed approximately 40 persons, of which approxi- mately 25 or 26 were employees engaged in production and maintenance work. It was engaged in the business of manufacturing electrical transformers, with about 75 percent of its, work on custom orders and the balance on standard production items. There were three production departments, namely, the-coil winding department, the core cutting and sheet- metal 'department, and 'the assembly department: the- management hierarchy, in a descending order,, consisted of William - Baker, president, Leonard Faucher, vice president, Fred Kovar,-production manager, Bernard Tomlinson,,- foreman of the coil winding depart- ment, Robert Creed, foreman of the core cutting and sheet metal department, and Jerry Mallory, foreman of the assembly department .5 The Union was certified by the Board as the exclusive collective-bargaining representative of the -Company's production and maintenance employees on December 24, 1968, after an election which it won by a narrow margin. The Company and the Union-negotiated and executed their first (and only) contract the following spring for a i-year term extending from April 9, 1969, to April 9,1970. The contract did not contain aunion-security provision. The Union and the Company went into negotiations for a new contract -in the spring -of 1970. By .April, they were in general , agreement on economic -terms but were unable to resolve their differences over the Union's demand for a limited union shop, i.e., a provision requiring any present members of the Union employed by the Company to retain their membership as a condition of employment and requiring new employees to acquire such membership. after 30 days of employment but excluding from such require- ment present employees who were not members unless at some future date they voluntarily joined the Union. Following such deadlock, a decertification petition was filed with the Board (on May 11). No negotiations were conducted thereafter. An election was conducted on June 25 which the Union lost, again by a- narrow margin. A certification of the results of the election was issued on July 6,1970. B. The Alleged Threat, Domination, and Status of the Council Baker testified that because several-, employees ap- proached him, both before and after the Union's decertifi- cation, to -suggest the creation of a shop committee or similar group to represent the employees in dealing with management concerning- their problems, on-July 7 (one day after issuance of the Board's certification of, the Union's loss of majority representative status), he "took the bull by the, horns and summarized the ideas that -had been furnished to me by these fellows in the shop ... and decided ... that we would have a general-meeting of all the shop production employees on July 10." One employee, Robert Potter, confirmed that he approached,Baker shortly after the decertification election, but testified that what he asked was whether Baker would approve the employees' formation of some kind of a shop committee to seek better wages and the like. In any event, on or about July 7, Baker prepared a document setting out the purposes, function, methods of operation, and procedures for selection of- representatives of an organization he titled the "Tierney Employees Council." While he claimed most of the matters contained in the document had been suggested to him by employees over the years, he condeded the preparation of the document and proposing its adoption by the employees were solely his ideas. The document read as follows: TIERNEY EMPLOYEES' COUNCIL 1. WHAT ARE THE PURPOSES OF THE COUN- CIL? a. To improve mutual understanding and commu- nication among all Tierney employees, whatever their job. 5 Plus others whose titles and functions were not developed. 232 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD b. To provide an open two-way channel- .for expression of settlement of employee, complaints. c. To provide an open, two-way channel for advice ,and suggestions for changes and improvements,, in wages, work rules, working conditions and disciplinary procedures. `d. To provide an open , two-way channel for explanation of standard Company rules and policies to all employees. e. To plan and co-ordinate whever recreational and social activities,-are desired, such as bowling, Christmas party, picnic, service awards, newsletter, etc. 2., WHO WILL BE ON THE COUNCIL? , a. Three representatives elected from the ranks of all Tierney employees,' with the exception of office employees. , , 3.- WILL EACH COUNCILMAN REPRESENT ONLY ONEDEPARTMENT? a. No. All.three Councilmen will be elected by secret ballot vote of ALL employees. 4. :-IOW WILL COUNCILMEN BE ELECTED? ,. a. By a- secret-ballot vote held some time during normal working- hours. After the first election, an election, will, be held every, four months to elect one Councilman to fill the vacant position. b. The man receiving the greatest number of votes wins. 5. HOW LONG WILL COUNCILMEN SERVE ON THE-COUNCIL? - ,a. Themormal term of office will be one year. The only exception Twill be for two of the three Councilmen elected at thefirst election. , ^ - - b. , In the first election, the man receiving the largest number of votes will serve as Councilmen,for one year. The man'receiving the second-largest number of votes will serve for eight months, and theman receiving the third-largest number of votes will serve for four months. In all subsequent elections, all Councilmen will' be elected for-'a term of one year. This arrangement will provide for-at least two experienced men on the Council at all times. 6. WILL COUNCILMEN BE ELIGIBLE FOR RE-' ELECTION? a. Yes. As long as a Councilman is doing a good job of representing the employees, and he wants to continue in his Council position, there is nothing to prevent him from being re-elected. _. -7. WHAT HAPPENS IF THERE IS A VACANCY ON THE COUNCIL? , a. If there is a vacancy on the Council because, of resignation, termination or other cause, another election will ,be held within two weeks to elect another Councilman to serve out the unexpired term. 8. WHAT ARE THE COUNCILMEN EXPECTED TO DO? a. The Councilmen will be expected to meet as a group regularly with the employees to: - (1) Listen to, understand, and where possible, solve complaints. 6 The Company did not produce any evidence in support of this contention; in fact, Baker testified that he did not know whether or not (2) Listen to , and understand suggested{ improve- -,ments and changes in wages,,, work, rules, working. ,conditions and disciplinary procedures, for-the good of all employees., (3) Pass along to the, employees any information concerning Company policies, business conditions, future plans, etc., which they feel is`important. (4) Find ,out the desires of the employees with regard to any recreational or social events or'programs. b. The councilmen' will be' expected to meet as,' a group regularly with Company Management to: (1) Advise Management"on improvements and changes in work rules, wages, working ,conditions' and disciplinary, procedures. (2) Pass along information on employee complaints. Discuss those employee complaints solved by the Council, and provide information and background on employee complaints not solved by the' Council along with recommendations for-proper solution. , " - (3) Discuss Company policies, business conditions, future plans, etc., so that these can be presented tot he employees. (4) Pass 'along information concerning employee'- 'desires on social and recreational events and programs, along with recommendations for action.- On completing the document, Baker caused a notice to be posted on the employees' bulletin board reading as follows: NOTICE 7/8/70 There willbe ageneral meeting of all employees with Bill Baker, Len Faucher and Fred Kovar at 3:00 p.m. on Friday, July 10th., in the shop. The purpose of the ' meeting is to discuss the formation of an employees' representation group. Please do'not punch out until the meeting is over. The meeting was held as scheduled. The `departmental foremen and the production and maintenance employees of the Company attended, as well as Baker, Faucher, and Kovar. Baker chaired the meeting and spoke, using a blackboard for illustration purposes: He drew two series of circles with arrows on the Board, one series pointing to the right and the other to_ the 1'eft, plus a large arrow, pointing right.. He- described the two series as demonstrative of the two hostile groups existing, among the employees due, to -respective pro- and anti-union sentiments, and the large^ arrow-as representing progress, or the "right" direction. He stated,, that ,the friction generated by the division among the employees had an adverse effect on both morale and production,6 that it would not 'be tolerated, and that it would be, eliminated, at the same time changing the direction of most of the=arrows pointing left,to point to the right and ,finally erasing the few remaining circles contain- ing, arrows pointing in the "wrong" direction (left). Baker next read the various sections of the documentrhe had prepared earlier (set out above), explained their, production dropped in the period dating from the Union's certification (December 24,1%8) and its decertification (July 6, ,1970)., TIERNEY ELECTRICAL MFG. CO. 233 meaning and intent as he read down, expressed his endorsement of the proposals therein contained, and had Kovar distribute copies. He then asked for comments. A few employees indicatedtheir endorsement of the proposal. Baker asked for a show of hands of those in favor of the proposal. A majority of those attending the meeting held up their hands (about 17 of 26). Faucher then took charge and explained the mechanics of the election to be held under the terms of the document. - Rowe attended the meeting. He did not hold up his hand and, in Baker's words, "indicated his disdain of the Council or the committee by getting up, throwing his cigarette on the floor and crushing it out with his foot." The meeting concluded about 3 :30 p.m.7 The employees then punched out. They were paid by the Company for the time spent attending the meeting. On July 13, Kovar distributed to -each employee a ;document with boxes for marking whether -,or not the -employee desired nomination as a candidate for one of the three Councilman positions described in the' Baker proposal. A space was 'provided for signature. Kovar subsequently collected the documents . Later in the day a notice was posted by management on the employees' bulletin board listing 12 candidates for the 3 positions, including Jerry Mallory, a foreman, and notifying the employees that an - election of I' of the 12 for the Councilman positions under the procedure outlined in the Baker proposal would be conducted at 11 :30 aim. on July 17. The employees assembled for the election at the appointed time. Baker instructedthem to line up single file, passed out ballots, and told them to mark their -ballots at an -adjacent ' table and drop them into a box on the table. The employees complied with his instructions. Following the completion of the balloting, Baker, with the assistance of several employees, tallied the ballots . Rowe participated in the initial assembly and tried to persuade (unsuccessfully) several employees not to vote. He did not vote and returned to his workplace and went to work before the balloting was completed . He was the only employee who did not vote (except for one absentee). Both Kovar and Baker approached Row at his workplace and urged him to vote but he -persisted in his refusal to particpate in the election. After the tally , Met Gibb, Don Mayer, and Fred Miller were declared elected.s The employees were paid ` for the time spent -at the election. Some time later, Uibb, Mayer, and Miller conferred'at Gibb's work station and decided to take up two proposals with management; first, to propose that since there was to be a new slate, °the past be stricken and all previously issued letters of reprimand or warning notices be destroyed and not used against employees, and second, to propose a wage -increase to match their increased cost of living. They were paid for the time they conferred. On July 20, Miller and Gibb9 met with Baker , Faucher, and Kovar and presented their proposals. The Company officials refused to accede to the first proposal, stating their reasons therefor, and stated that a cost of living increase would be considered as soon as the next published -figures of the Bureau of Labor Statistics became available. A third subject (actually related to the first one) was broached by Gibb and Miller; they declared it was general knowledge that it was Company policy to discharge on a third letter of reprimand or warning notice and requested that the policy be changed to suspension instead of discharge at the third warning, on the ground this might improve performance and avoid the harshness of a discharge. The proposal was discussed and the management reaction was favorable. Gibb and Miller were paid for the time spent at the meeting. Putting together Baker's preparation, presentation, and advocacy of the document establishing the Council, declaration of the Company's intention to eliminate anyone continuing to pull in the "wrong" direction (Symbolized by the erasure of those circles containing arrows pointing to the left after retaining those circles who left-pointing arrows were reversed to the right) at the July 10 meeting, an unmistakeable message was conveyed-either abandon identification with the losing Union (left-pointing) faction and join the faction supporting the Company and the Council (right-pointing) or out you go, and the Examiner so finds and concludes. The Examiner further finds that the Company's message conveyed a threat of discharge of any employee who persisted in the exercise of his right either to continue his support of the Union or to refrain from giving support to the Council, or both, thereby violating Section 8(axl) of the Act. Whether or, not some of the ideas contained in Baker's July 7 proposal emanated from Company employees, it is undisputed that it was Baker, and Baker alone, who put the proposal together, called the employees together and placed it before them, solicited their support-of-it, announced and ran the election where the Council's representatives were chosen, and paid the employees' `for attending the` meetings when the proposal was adopted,• the election was conduct- ed, and the representatives chosen met together and with management. In these activities' he was actively aided both by 'Faucher and Kovar, the former' setting out the mechanics of the election and the latter soliciting nominations for Council representative and distributing Baker's proposal. It is further noted that the foremen attended the July 10 and 17 meetings, and that-one of them was a candidate for the Council. ` It is difficult to visualize how the Company by its top officials could have done any more 'to create the Council, spell out its function, and dictate its modus operandi. The sole question remaining is whether the, Council constituted a "labor organization" within the meaning of Section 8(a)(2) of the Act. Section 2(5) of the Act defines as a labor organization "any organization . . . agency .. , employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." Certainly, Baker's July 7 proposal was, a plan, which visualized and, upon its July 10 adoption, created with T The shifthours were 7 a.m. to 11 am. and 11:30,a.m. to 3:30 p.m. term, and Gibb, with the third largest number to a 4-month term. $ Miller received the most votes and was declared elected to a ,full 1- 9 Mayer was on vacation. year term; Mayer with the next largest number of votes to an 8-month 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee participation an employee representation com- mittee , for. _ the purpose, inter alia, of dealing with the Company concerning employee complaints or grievances, wages, and employment conditions (see particularly para- graphs 1.b., l.c., 8.a.(2), 8.b.(l) and 8.b.(2)). That the employee representatives chosen under the plan so understood their function is borne out by their first proposals, one regarding disciplinary practices or, working conditions and the 'other regarding wages. In fact, management accepted the Council's modified proposal on employee discipline, i.e., to suspend rather than discharge as a step preliminary to discharge. ' Based upon the foregoing, the Examiner finds and concludes that the Council was a labor organization within the meaning of the Act' and that the Company by its formation and domination of the Council and its assistance thereof, including financial support, violated Section 8(a)(2) and (1) of the Act. C. The, Alleged Constructive Discharge James Rowe, was,hired by the ,Company in 195,9 as a coil winder, and -worked for the Company continuously thereafter except for one period when he quit the Company's employ. As earlier noted, the Union was certified by the Board as the exclusive collective-bargaining representative of the Company's employees on December 24, 1968, and entered into a 1-year contract with the Company on April 9, 1969. Rowe became a member of the Union and was appointed as its shop steward in October 1969.10 On May to, 1969, Rowe,received his first written warning notice,, from the Company, for frequent tardiness., During the,6 weeks preceding he was absent for 6 workdays; on the 24 days he worked, he was late in ,reporting to work in the morning 16 times and late reporting -back from lunch 12 times. Rowe was active in soliciting employees of the Company to become.,Union members, a fact known to Foreman Tomlinson due to,. Rowe's appearance during the lunch break, for the night shift (Rowe, was on the day shift) to solicit employees working that shift. Tomlinson at that>time was_working as a,foreman on the night shift, noted Rowe's presence, and indicated to Rowe that he,had no objection to Rowe's efforts so long as they were confined to employees' nonworking-time. Rowe also participated innew contract negotiations with the Company through,, April of 1970 as. -a member of the Union's negotiating committee. On April 16, Rowe received his second written warning notice from the Company for failing to make entries on his 10 He continued to so function until the filing of the decertification petition (May 11). 11' Company- rules require that cards be punched at the Company's timeclock on commencing work in ,the morning, on leaving work- for lunch, on returning from lunch, and on leaving in the afternoon. As earlier noted, the day shift begins at 7 a.m., the lunch'break extends from 11 a.m. to 11:30 a.m., and ' the' shift ends at-3:30 p in. Time entries by hand are prohibited by Company rule-but are accepted,if lninaled'by a foreman or higher Company official. Rowe's handwritten entries were not mltialed, and of course a double time stamp of the same time at the in and out spaces for the lunch break made it impossible to ascertain when he actually left and returned from his lunch break. timecard properly and for going over the head of his foreman (Tomlinson) -to higher supervision with a pro- duction problem. During the 9 weeks prior to April 16, Rowe punched in and out for lunch at the same time on 15 occasions, and wrote rather than punched,the time he allegedly returned from lunch on 5 occasions.11 The day after he was warned (verbally) about writing in time instead of punching it, he failed to write in the job numbers relating to his time card punches on that section of his timecard.12 Just prior to his receipt of the warning notice, he entered the production manager's office and asked . a question regarding a job he was working on of the ' production manager's assistant, Jim Miller. Tomlinson was in the office at the time talking to Kovar. Rowe stated his reluctance to interrupt Tomlinson's conversation with, Kovar was the reason he conferred with Miller, instead of Tomlinson, his foreman at the time.- Following the filing of the decertification petition on May 11, Rowe campaigned actively for the Union and acted as the Union's observer at the June 25 election. As noted heretofore, both Rowe and Tomlinson attended the July 10, meeting called by Baker to set up the Council. Rowe did not raise his hand ,in support thereof, heard Baker's threat to eliminate those who did not support his proposal,13 and had his action in extinguishing a cigarette interpreted by Baker as a public indication of Rowe's disdain and .opposition to Baker's proposal. Rowe `and Tomlinson also attended. the July, 17 meeting called _by Baker to elect the Council's representatives, wherein Rowe sought to persuade several employees not to participate.in the election, left the scene of the meeting. before it ended, and returned to work. Rowe neglected,-however, to punch his timecard back in from lunch.-When he noted -that failure on punching out to go home, he did not consider the matter of any,great urgency and went home. On his return to work on Monday, July 20, 3 days later, the Friday (July 17) omission did not occur to him. When he did remember it (at the lunch clockout), he still took no action inasmuch as he knew the foremen picked up Friday's timecards the first thing in the morning and checked for and corrected any errors. Since Tomlulsonknew that Rowe had worked the preceding Friday"y ' afternoon (in,, fact, working more time than the other employees who stayed at the July 17 meeting until its conclusion), he presumed that Tomlinson would, make the appropriate notation on his Card.14 Tomlinson took a very different -tack. On noting Rowe's failure to punch back in after lunch the day of the meeting, he took the card to Kovar and suggested .that Rowe be discharged. Kovar relayed the suggestion to Baker. Baker, with his meeting with the two Council, representatives 12 One section of the timecard was designed for using the timeclock to punch the time commencing each job and completing it. It was necessary, however, to write in the 'job numbers related to such punches. - 13 'An employee called by the' Company to testify, Potter, as well as witnesses called by the, General Counsel (Rowe and Gibb),-testified to their understanding of Baker's statements and board-=illustrations as tying in failure to support the Council with removal from eipployment. That conclusion appears justified and the Examiner so found. 14 In the course of the proceeding, many timecards were produced for examination, containing handwritten time entries followed ' by -foremen's initials. TIERNEY ELECTRICAL MFG. CO, 235 earlier that day in mind, wherein he had reacted favorably to their request for suspension rather than discharge as a step preliminary to discharge, instructed Tomlinson to give Rowe a (third) written warning notice stating the time punch omission as the reason and assigning a 1-week suspension as penalty therefor. In making out the warning notice, Tomlinson referred to the failure to punch in as a deliberate omission on Rowe's part. That afternoon Rowe approached Tomlinson with a request for vacation leave. Tomlinson handed Rowe the warning notice with the comment that Rowe might not want to pursue his request after reading same. Rowe read the notice and asked Tomlinson if he really believed his failure to punch back in from lunch was deliberate. Tomlinson replied that he did. Rowe then crumpled up the notice in rage, told Tomlinson what he could do with the job, and gathered up his tools. He then approached Kovar and asked for his check. Kovar stated he could pick it up the next day. Rowe picked up his check the next day. His desire for reinstatement and the characterization of the July 20 matter as a constructive discharge was, made known to the Company by its receipt of the Union's August 24 amended charge so alleging. Rowe was the leading Union adherent in the Company's employ -after .the Union's decertification, he had been the Union's shop steward immediately prior to the decertifica- tion, he had been one of the Union's negotiators in the contract negotiations between the Company and the Union immediately prior to the decertification, he had cam- paigned actively for the Union prior to the decertification election, and he was the Union's observer at the decertification election. Rowe was also conspicuous in his opposition to the Company's efforts to establish the Council as the Union's successor in representing its employees immediately -following the Union's decertifica- tion; he refused to raise his hand in support of the Company's July 10 proposal for establishment of the Council and stamped out a cigarette with his foot at that meeting in a deliberate fashion, which act Baker (and undoubtedly others) interpreted as a symbolic act of defiance of and opposition to the Company efforts. When Rowe's continued (July 17) defiance15 of the Company's efforts to establish the Council as the Union's successor despite Baker's July 10 threat16 is measured against the trivial17 nature of the offense for which he was disciplined, it appears clear that Rowe was disciplined on July 20 because of his status as the Union's leading supporter among the employees and defiance of and opposition to the Company's efforts to foist the Council on the employees as the Union's successor, and the Examiner so finds. The Examiner further finds and concludes that by 15 By his efforts to persuade other employees not to participate in the Company-conducted election of Council representatives and his adamant and sole refusal to participate therein despite the direct requests of Baker and Kovar. 16 See II, B, above. 17 The Company cited 28 rule violations as the basis for issuance of the first warning notice against Rowe ; it cited 20 rule violations as the basis for the second warning notice; from its failure to adduce evidence of continued and repeated violation of the rules recited therein, it may be the levy of such discipline the Company interfered with, restrained, and coerced Rowe in the exercise of hissight to support the Union and his right-to refrain from supporting the Council, and also discriminated against him because of, his support of the= Union and opposition to the Council, in violation of Section 8(a)(1) and (3) of the Act. The sole question remaining is whether Rowe's quit in the face of such discriminatory treatment constitutes a constructive discharge in violation of the Act entitling Rowe to, reinstatement and backpay. The Board, has issued (and the Courts have enforced) many orders directing reinstatement and backpay for employees who quit over discriminatory suspensions, warnings, and reprimands, holding such quits to be constructive discharges in violation of Section ' 8(a)(1) and (3) of the Act. For example, in the case of N.LR.B. v. Holly Bra of Calif., Inc., 405 F.2d 870 (C.A. 9), enfg. 164 NLRB 1112, the Court enforced the Board's order directing the reinstatement with backpay of a union's principal adherent who, subsequent to the Union's loss of an election, quit over discriminatory criticism of her work and requiring-her performance of unnecessary repair work; in the case of N.LR.B. v. Tennessee Packers, Inc., (C.A. 6, 1964) 339 F.2d 203, enfg. 143 NLRB 494, the Court enforced a similar order for a union's election observer who, after the union lost an election, quit over discriminatory reprimands and close and critical inspection of his work; in the case of Central Machine & Tool Co., Inc., 1968, 172 NLRB No. 175, the Board issued a similar order on behalf of an employee who quit over discriminatory reprimands for small rule violations; in Block Southland Sportswear, Inc., 170 NLRB No. 101, 1968, the Board ruled similarly with regard to an employee who quit rather than sign a discriminatory warning notice; and in Ross Port a Plant, Inc., 166 NLRB 494, to similar effect, where the employee quit rather than accept a discriminatory 3-day suspension. On the basis of the foregoing, the Examiner finds and concludes that James Rowe was constructively discharged by the Company on July 20 because he was the Union's principal supporter among the Company's employees and because he opposed the Council's formation, that the Company thereby violated Section 8(a)(1) and (3) of the Act, and that Rowe therefore is entitled to reinstatement with backpay. CONCLUSIONS of LAW 1. At all times pertinent the Company was an employer engaged in commerce and the Union and the Council were labor organizations within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. Following the July 7 decertification of the Union, the Company formed, dominated, and assisted the Council in succeeding the Union as the employees' representative for presumed that the two citations had the desired effect and the offenses were not repeated. Yet on the basis of a single occurrence, Rowe's failure to punch his card after lunch on the day of his second apparent defiance of the Company's efforts to establish the Council as the Union's successor, when Baker, Kovar, and Tomlinson all saw him at work after lunch (the first two visited him there) while other employees were still absent from their work stations to participate in the election and Tomlinson could have merely entered the proper time, Rowe was issued a third warning notice and a severe penalty and only narrowly avoided discharge. 236 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD collective-bargaining purposes and contributed support to it, in violation of Section 8(a)(2) and ( 1) of the Act. 3. The Company on July 10 by its President threatened its employees with discharge for failure to `abandon continued 'support for the Union and for failure to support establishment of the Council in its stead, in`violation of Section 8(a)(1) of the Act. 4. The Company on July 20 constructively discharged James Rowe because of his status as' the Union's leading 'supporter and his opposition to the Company's efforts to establish the Council as the Union's successor as the representative of its employees , in violation of Section' 8(a)(1) and (3) of the Act. 5. The above unfair labor practices affect commerce as defined in Section 2(6) and (7) of the Act. THE REMEDY, Having found that the-Company committed unfair labor practices, the Examiner shall recommend that the Compa- ny be ,directed to.cease and desist therefrom and take the affirmative actions specified in the Order below to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Examiner issues the following recommended:18 ORDER Tierney Electrical Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Forming, dominating, or assisting the Tierney Employees Council or any other labor organization of its employees; (b) Recognizing or dealing with the Tierney Employees' Council as the 'representative of its employees for the purpose of dealing with the Company concerning wages, rates of pay, hours, or other working conditions; (c) Threatening its employees with discharge for support- ing the International Brotherhood of Electrical Workers Local-46, AFL-CIO, and/or failing or refusing to,support the Tierney Employees Council as the successor thereto; (d) Discharging- or otherwise disciplining its employees for supporting International Brotherhood of Electrical Workers Local 46, AFL-CIO, and/or failing or refusing to support the Tierney Employees Council as its successor. 2. Take the following affirmative action: (a) Withdraw and withhold all recognition from the Tierney Employees Council and completely disestablish it as the representative of the Company's employees for the' purpose of dealing with the Company concerning wages, rates of pay, hours,'or other working conditions; (b) Offer to James Rowe immediate'and full'reinstate- ment to his former or a substantially equivalent position without prejudice to his seniority and otherr rights and privileges and make him whole for any loss of pay he may have suffered by reason of the discrimination against'him, for the period beginning July 20,1970, and ending the date" he is offered the aforesaid reinstatement, computed in the manner set out in F. `W. Woolworth Co., 90 NLRB 289, together with interest on the amount so computed at the rate of 6 percent per annum, as set out in, Isis Plumbing and Heating Co., 138 NLRB 716; -(c) Notify James Rowe immediately, if he is presently, serving in the Armed Forces of the United States, of his right to full reinstatement upon application therefor after discharge from the Armed Forces, in accordance' with the Selective Service Act and the,Univer`sal Military ' Training and Service Act. (d) Post at its place of business in Seattle, Washington, copies of the attached notice marked "Appendix:" 19 Copies of the notice, on forms provided by the Regional Director' for Region 19, shall be signed by an authorized representa- tive of the Company, and posted by it immediately upon receipt thereof and maintained for 60 consecutive days' thereafter in conspicuous places where,notices to employ- ees are customarily posted. Reasonable steps shall be taken by"the Company to insure- that the notices are 'not altered,' defaced, or covered by any other materials. ' ' ' (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Decision, what steps the Company has taken to comply, herewith.20 18 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided by Section 102.48 of said Rules, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto 'shall be deemed waived for all purposes. 19 In the event that the Board's- Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United: States Court of Appeals Enforcing an Order of the National Labor Relations Board." 20 In the event this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 19, yin `Writing, within 20 days from the ' date of this Order, what steps the Respondent has ' taken to comply herewith."