Bath Electrical Systems, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bath Electrical Systems, Inc. and Local Union 716, International Brotherhood of Electrical Workers, AFL-CIO-CLC. Case 23-CA-6381 November 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 9, 1977, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Angleton Texas, on June 23, 1977, based on charges filed February 14, 1977, and a complaint issued April 5, 1977, alleging that Respondent violated Section 8(a)(1) and (3) of the Act. The General Counsel and the Respondent have filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a Texas corporation, is engaged in perform- ing acceptance and maintenance testing of electrical high voltage at its place of business in Clute, Texas. During the I There is at least a suggestion that her employment was in part for the purpose of helping Union Business Agent Cartright organize the Company's employees. Carby's husband was a member of the Union, and Cartright was a friend and neighbor. Cartnght testified that "in visiting together [with Carby ] and in discussing organizing activities when vanous companies with her husband in her presence that she knew that we were interested in someone going to work for Bath to help in this activity." 233 NLRB No. 114 12 months before the issuance of the complaint herein, Respondent sold and shipped goods or performed services valued in excess of $50,000 directly to firms located outside the State of Texas, and during the same period, it purchased goods and materials or services valued in excess of $50,000 from points outside the State of Texas. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Local Union 716, International Brotherhood of Electrical Workers, AFL-CIO-CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts There is virtually no dispute as to what occurred in this case. Elaine Carby went to work for Respondent in May 1976.1 Several conversations between Carby and manage- ment officials and supervisors,2 shortly after she began working, concerned the fact that her husband was an IBEW electrician. In September 1976, Carby received a warning for excessive absenteeism. Shortly thereafter, she was again reprimanded, this time for typing on a bulletin that Respondent was inserting into each employee's pay envelope "If you want your job; vote Democratic." The warning stated, in part, "Employee to be warned to follow instructions that are given to her and not to put the Company in such a position again. I feel that the aforementioned action of Mrs. Carby leaves a very serious doubt as to whether the employee is able to handle the responsibility of the position she now holds, that of handling the payroll. A further display of her inability to handle the job properly will result in her dismissal." On January 21, 1977, Cartright mailed a letter to all Bath employees. He testified that he received a list of names and addresses from an electrician at Bath, whose name he did not recall.3 On January 23, Soderman called Cartright, and asked him how he obtained the list of employee addresses. Cartright replied that he did not admit to having such a list, but that if he did, he would not tell Soderman where he obtained it. Shortly thereafter, Armt called the five payroll employees to her office, individually, and asked each whether she had given a list with employees' names and addresses to anyone outside the Company. Each employee denied giving out the list. One, Terry Fortenberry said, "No, but I think I know who did." Carby replied, "Not that I know of," and repeated that answer when Arnt said, "What do you mean, not that you know of?" Arnt said, "Honestly?" and Carby again replied, "Yes, not that I know of." On February 8, 1977, Carby, learning she was not to be reviewed for a wage increase, went to Arnt to ask her why. Arnt said that Carby would not be reviewed because Arnt was not satisfied with her work. Carby then went to see 2 Company President Thad Brown, Vice President Thomas Soderman. and Director of Administrative Services Evelyn Arnt. 3 The list in question was furnished to the five clerincal employees under Arnt's supervision "for our various needs." The Company also made the list available, some time in November 1976, to all employees as a "Christmas list." 762 BATH ELECTRICAL SYSTEMS, INC. Company President Thad Brown about her failure to be reviewed. Brown told Cartright that he "had learned a long time ago not to interfere in employee-supervisor relation- ships and . . . wasn't going to start now." (Carby's testimony; Brown did not testify.) The next day, February 9, as well as February 10, Carby wore an "IBEW" jacket to work. On the afternoon of February 10, Arnt called Carby in to Brown's office, and told her she was firing her because she "was dissatisfied with my work," and because "I had gone over her head talking to Thad." On the morning of February 9, Company Supervisor Larry Nelson came to Soderman and told him that employee Larry Lewis had come to Nelson to tell him that Carby had discussed confidential payroll information with him. Lewis, who also testified, confirmed that he told Nelson what Nelson told Soderman, and that he did have the conversation with Carby. Carby also admitted to such a conversation. She described it as beginning with Lewis saying he did not get a raise. Carby said to him, "Well, you did get a bonus." Then, according to Carby, "he looked around to see if anybody was listening and said, 'Well, that's confidential,' " and Carby replied, "Yes, I know it is." Lewis testified that Carby "wondered why" he and some other employees had received bonuses and she and some others had not. Soderman then went to Arnt and reported what he had been told by Nelson. Arnt then, according to her testimony, decided to fire Carby, but to await her completion of the payroll the next day before informing her. Arnt testified that her reasons were that she was displeased with Carby's work, that Carby had gone "over her head" to Brown regarding her wage review, and that the precipitating factor was Soderman's report about Carby's conversation with Lewis concerning confidential payroll information. She did not, as related above, tell Carby the latter reason when she discharged her on February 10. Nor did Arnt, Soderman, or Nelson confront Carby with Lewis' accusation, or in any way ask Carby about it.4 Apart from wearing the IBEW jacket on February 9 and 10, Carby's "union activities" had been minimal in nature. According to her own testimony, she merely reported back to Cartright the employees' sentiments (the "pros and cons") about the Union, but did not initiate any conversa- tions, waiting for conversations about the Union begun by the employee. B. Discussion 1. The 8(a)(1) allegations The complaint alleges that Respondent violated Section 8(a)(l) by Arnt's asking employees whether they had given the list of employees to someone outside the Company. Whether or not the list was in fact "confidential," I do not regard the Company's asking its office clerical employees whether it had been given out as interrogation proscribed I Former company employee Tom George testified that he had had a conversation with Carby, in July 1976. in which Carby asked him what he thought of some new employees making more money than he was, and giving a figure as to what they were making. Carby denied this conversation. As no management official was informed of this conversation, it obviously could have had no bearing on Carby's discharge (Soderman learned of it from George some time in May 1977). It is difficult to imagine that George, by Section 8(aXI) of the Act. I do not believe that the questioning was designed to elicit whether any of them was a union supporter (even though a "yes" answer would so reveal), but rather that it represented a concern about payroll employees revealing information in their posses- sion. The complaint also alleges that Soderman's questioning Carby as to whether she had received the Union's letter sent to all employees violated Section 8(aXl). In my view, this questioning, in the circumstances, was not coercive. The letter had been sent to all employees, Soderman had received copies from some of them, and the question thus appears to have been more rhetorical than inquisitorial. In view of its isolated nature and its casual tone, I agree with Respondent that it "does not rise to the level of an unfair labor practice." I find, accordingly, that Respondent has not violated Section 8(aXl) of the Act. 2. The alleged 8(a)3) violations The complaint alleges both the failure to review Carby for a wage increase early in February, and her discharge on February 10, 1977, as having been discriminatorily motiva- ted, and that Respondent thereby violated Section 8(aX3) of the Act. As to the failure to review, there is virtually no affirmative case. The General Counsel's total argument on this phase of the case is that "From the Union animus established in the record of this case, and the fact Respondent had knowledge of Carby's pro-union senti- ments and suspected Carby of assisting the Union, the only reasonable inference to be made is that she was not reviewed and not given a raise because of union considera- tions. This inference is supported by the totality of Respondent's act." Until the morning of February 9, as noted above, Carby's "union activities" at the plant consisted only of waiting for other employees to bring up the Union in conversations with her, and then attempting to ascertain their sentiments so she could report to Cartright. And there is no evidence to show that Respondent even knew of these conversations. 5 The fact that Arnt questioned all five clerical employees under her supervision about the "list of employees" also points away from Carby being viewed as the prime suspect with respect to the list having been given to Cartright. In any event, as noted, Cartright testified that he did not get the list from Carby. In addition to the absence of a convincing prima facie case of discrimination against Carby in not reviewing her for a wage increase in late January or early February 1977, the uncontradicted evidence of her having received two warnings would, in my opinion, furnish ample affirmative justification for Respondent's action, and suffice to negate any inference that might otherwise be drawn that Carby was singled out because of her union connections, long since employed elsewhere. would have manufactured this story, and I credit his testimony. It does tend to show that the Company's suspicions about Carby revealing confidential information were well founded. I Assuming that Respondent, because of the small size of its operations. had such knowledge, there is nothing in the record to show that the conversations were revealing of Carby's own sentiments. 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particularly in the light of the rather serious nature of the second offense - typing in the legend on the payroll envelope inserts. As to the discharge itself, the case is much closer. Thus, Carby was not actually discharged until February 10, 1977, after she wore the IBEW jacket, so it is entirely possible that the decision to discharge her was not made the morning of February 9, before she wore the jacket. It is also true, as the General Counsel points out, that no investigation was made by Arnt or Soderman of the report from Nelson to Soderman concerning Carby's conversa- tion with Lewis. And Arnt, when she discharged Carby, did not tell her that discussing payroll information was a basis for the discharge. All these facts do point toward a discriminatory motivation in discharging Carby. On the other hand, Carby admitted her conversation with Lewis, as the latter also testified, and Soderman and Arnt both testified credibly concerning the time of Nelson's report to Soderman and Soderman's relaying the information to Arnt. Although the nature of the Carby- Lewis conversation about bonuses may appear trivial, and not an incident likely to disturb Respondent's officials to the point of discharging Carby for it, the fact remains that Lewis did not consider it trivial or meaningless, for he did report it to his supervisor, Nelson. Nelson and Soderman, in turn, obviously were bothered by Lewis' report, as evidenced by Nelson reporting the incident to Soderman and Soderman telling Arnt about it. As related above, Carby's record was not "clean." The two warnings she had received, with the second, as noted above, involving what 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rule and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. to me appears a serious breach, cannot be ignored in determining the believability of Respondent's explanation for her discharge. Finally, also as noted above, Carby's union activities were minimal up until the morning of February 9. And, although her wearing the IBEW jacket on that day and the next would bring to Respondent's attention her sentiments about the Union, it would not appear that this alone would have been viewed by Respondent as a sufficient threat to it to cause it to discharge her. This is not a case in which there were any threats made, or any actions taken by Respondent to suggest the kind of hostility that supports a discriminatory discharge allegation, as against a plausible basis offered for the discharge. In all the circumstances, I am not convinced that the General Counsel has established that Carby was dis- charged because of her union activities. CONCLUSION OF LAW The evidence does not establish that Respondent engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The complaint is dismissed in its entirety. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 764