Aileen, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1419 (N.L.R.B. 1975)

AILEEN, INC. 1419
Aileen, Inc. and Communications Workers of
America, AFL-CIO. Case 16-CA-5704
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
fact of Rita Englert's discharge, but denied the commission
of any unfair labor practices.
The parties were given full opportunity at the trial to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Helpful written briefs were
received from the General Counsel and the Respondent.
Upon the entire record and from my observations of the
demeanor of the witnesses, I hereby make the following:
FINDINGS OF FACT
On March 24, 1975, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting 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 brief
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.
1 The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard in Abilene, Texas, on December 17 and 18,
1974.1 The charge was filed on August 2, alleging violation
of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (herein Act). Complaint was issued and
served on Respondent on October 18, alleging the unlawful
discharge of employee Rita Englert in violation of Section
8(a)(3) and (1) of the Act and three acts of specific
violations of Section 8(a)(1) of the Act which involved
alleged surveillance, interrogations, and creating the
impression of surveillance. Respondent's answer, filed
November 1, admitted all procedural information and the
1 All dates hereinafter will be in the year 1974 unless otherwise indicated.
2 Englert testified that Armbruster walked by the window three times,
218 NLRB No. 217
1. JURISDICTION
The Respondent is now, and has been at all times
material herein, a corporation duly organized and existing
under and by virtue of the laws of the State of New York,
with a lawful permit to do business in the State of Texas,
with its Texas office and principal place of business located
in Abilene, Texas, where it is engaged in the manufacture
and sale of yam and clothing. During the past year, in the
course and conduct of its business operations in Abilene,
Texas, Respondent purchased merchandise, supplies, and
equipment valued in excess of $50,000 which were shipped
directly to Respondent from outside the State of Texas.
Respondent has manufactured, produced, sold, and
shipped products valued in excess of $50,000 direct to
purchasers outside the State of Texas. Respondent's gross
business operations have exceeded $500,000 during the
past year. On the basis of these admitted facts, I find
Respondent to be an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Respondent admits and I herewith find the
Communications Workers of America, AFL-CIO, to be a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Surveillance
The first allegation of surveillance related to a union
meeting held at the Holiday Inn on or about March 13.
The meeting was attended by employees Rita Englert, Jack
Petersen, Mildred Reagan, and Lee Weems. Lila Foreman,
the union representative, was also present. The meeting
occurred in one of the motel rooms with a large picture
window facing onto the interior court area where the
swimming pool was located. Three of the employees
attending the meeting testified that each saw Fred
Armbruster, an acknowledged supervisor, walk past the
window, appear to hesitate, look into the room, and then
walk on.2 No words were spoken by either the employees
or the supervisor and no wave or other form of greeting
occurred. In summary, what we have in the way of proof of
but this is not consistent with other witnesses ' testimony and is undoubtedly
erroneous.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this allegation is: Armbruster, a supervisor, walked past a
motel window and looked in the direction of the window
where four employees inside the room were meeting with a
union representative.
Armbruster credibly testified that he was at the motel on
March 13 at the invitation of two representatives of
Stauffer Chemical Company, with whom he had been
doing some company work, for the purpose of having a
drink at the motel "club" before departing with the two
Stauffer representatives to have dinner at the Buffalo Gap.
Armbruster readily acknowledged having parked his car
next to a red Datsun pickup which he recognized as one
belonging to Jack Petersen, but testified that he did not see
Petersen or any other rank-and-file employees in the motel,
although he did see some supervisory personnel in the
"club." After remaining at the motel for 45 minutes to an
hour, Armbruster departed in the company of the two
Stauffer representatives and in so doing walked through
the courtyard area past the room occupied by the
employees and the union representative. Armbruster
denied having seen anyone in the room or consciously
having looked toward the room.
2. Interrogation
One portion of the allegation of interrogation stemmed
from Armbruster's presence at the motel on the early
evening of March 13. (The incident just related above.)
According to Petersen, the following day Armbruster
"walked up and asked me what I was doing at the Holiday
Inn - new Holiday Inn and I told him it was none of his
goddamn business." Petersen acknowledged that he and
Armbruster were long time acquaintances, that Armbruster
was a man of truthfulness and integrity, and that he did not
normally use that kind of language when talking to
Armbruster. Armbruster's best recollection of the conver-
sation was merely that Petersen had indicated to him that
Petersen had seen Armbruster's "car parked down at the
Holiday Inn last night and I [Armbruster] said, `Yes, I was
with a couple of salesmen' and that's about all that was
said ." Armbruster further testified that all supervisors had
been instructed that it was not proper to inquire about
union activities and thus he had been reluctant to ask
Petersen what he was doing there.3
The other allegation of interrogation concerned Petersen
and Glenn Prock, an acknowledged supervisor. According
to Petersen within a day or two following the representa-
tion hearing, Prock asked him, "if I had been trying to get
any cards signed on the clock." When Petersen replied no,
Prock walked off without further comment. Standing
unexplained, it is highly doubtful if such an inquiry
amounts to unlawful interrogation under the Act. Howev-
er, Prock credibly testified that two women employees had
complained to their supervisor, Mr. Banta, that they were
being harassed on the job. Banta advised Prock. Prock in
turn contacted Mr. Lillard, the corporate personnel officer
who happened to be visiting the plant at that time. Lillard
then conducted an interview with the two complaining
women employees and it resulted in a warning "write up"
against Petersen for discussing union activities during
working time. Petersen was given an opportunity to see the
"write up" and on cross-examination acknowledged that
he knew there was a company rule against solicitation.
3. Impression of surveillance
Mildred Reagan, an employee who acknowledged
attending "some union meetings" and had obtained
"probably three" cards signed , testified that she ap-
proached Glenn Prock, an acknowledged pretty good
friend, and asked him about the raise given to the knitters
who were not involved in the union election. In the course
of the conversation when Mildred Reagan mentioned her
union activity and interest, Prock said, "he knew that I had
attended the union meetings and how many." Prock's
explanation was that Mildred was an outgoing, talkative
person who had already volunteered her union activities to
Banta (who had advised Prock) and he simply was not
interested in hearing it again and tried to shut Reagan off
by so advising her. Reagan acknowledged that she had
previously voluntarily discussed her union interest and
activities with Banta.
Another incident within the "impression of surveillance"
allegation related to Rita Englert and a conversation with
Prock shortly after the election had been held. Englert
testified that she had been called to the office and was
being talked to about her absenteeism (see Resp. Exh. 9-d)
when she accused Prock of putting her on the carpet
because of her union activities. Prock replied, "Well, no,
that's not the reason, that he knew of my union activities.
He said, as a matter of fact, I'm quite well aware of who
went to the union meetings, how many and who was
working actively for the Union." While I cannot find in the
record where Prock specifically denied making such a
statement, based on my observations of Englert, I am of
the opinion that anything beyond a mere denial of
Englert's accusation, is Englert's own embellishment of the
facts.
4. The discharge of Rita Englert
Rita Englert was one of the first employees hired by the
Respondent and had been employed nearly 4 years. She
worked in the knitting plant and was active on behalf of
the Union and was a loyal supporter, even though she was
not allowed to vote in the election. (The election was
confined to the yarn plant.) Englert had appeared at the R-
case hearing, and Respondent stipulated to knowledge of
her union activity, although there were indications that she
was not the most active of the employees.
Englert was given a written reprimand on July 25, 1973,
by her supervisor, Joe Gregory, for refusing to run a
machine to which she had been assigned (see Resp. Exh.
10). She was given a written reprimand by Supervisor Leon
Hams for excessive absenteeism on March 18 (Resp. Exh.
9-c). Englert was given another written reprimand for
excessive absenteeism on June 14 (Resp. Exh. 9-d). On
June 17 she was given a written reprimand by her
supervisor, Leon Harris, for failure to follow instructions.
3 Other testimony established that it was generally known that the Union had a "headquarters" room at the motel and frequent union meetings were
held there.
AILEEN, INC.
She was asked to turn off and put away her small portable
radio and failed to do so (Resp. Exh. 9-b). On July 31 her
assistant foreman, Jim Kay, filed a written report of the
incident leading to her discharge (Resp. Exh. 2), and on
August 2 her foreman, Leon Hams, filed a written
termination report (Resp. Exh. 9-a).
On July 31, Englert was assigned to machines numbered
15, 16, 21, and 22. She reported for work at 7:30 a.m.
Machine number 21 was a Terrot Striper. The machine was
knitting a striped material and Respondent does not deny
that the machine required close attention and it was
necessary to frequently start, or restart, the machine when
it stopped. However, it was knitting a pnonty material and
Englert had been so advised. Englert testified that the
machine stopped almost immediately after she reported for
work and she reported it to the "fixer." 4 The fixer, Henry
Thomas, checked the machine, but told her he could find
nothing wrong. When asked on direct examination what
was necessary to keep the machine going, Englert replied:
"Well, dust have to go over and put the needle detector
down and turn it back on. You would have to stand there
by it." Jim Kay, an assistant foreman, was Englert's
immediate supervisor. The following questions and an-
swers on direct examination are revealing.
Q. Did you report this machine to Mr. Kay?
A. Yes, sir.
Q. And what did he - what did you tell him and
what did he tell you?
A. I told him the machine wouldn't run. He told
me the material on the machine was priority, it had to
run.
Q. Did he examine the machine?
A. Yes, sir.
Q. And what did he tell you about it?
A. He said he couldn't find anything wrong with it.
Q. All right. Now, how many times did Mr. Kay
look the machine over that day?
A. Several times.
Q. Did he ever assist you in getting it started?
A. Yes, sir.
Englert went on again to testify that Kay told her the
material on the machine was priority and she was to keep it
running.
According to Englert, later in the morning, Kay again
came by and asked why the machine wasn't running, and
"I told him that it wasn't running because it wouldn't stay
running and he kind of got upset about it."
Q. All right. What was said?
A. Well, again, he pointed out to me that it was
priority material, it had to run and I pointed out to him
the things that I had to do also and at that time I was
- I had been all day and I hadn't been to the
The fixer is a classification with some degree of knowledge about the
machines greater than the operators or knitters , but is not to be confused
with a mechanic
5 The testimony does not establish whether Young was or was not a
supervisor Regardless of her status , I was impressed with her demeanor and
believe her to have been a candid , honest witness whose testimony is
credited
1421
bathroom and I said, "I'm going to the bathroom" and
I went to the bathroom.
Q. All right. Was the machine running when ^ou
left to go to the bathroom?
A. During this particular conversation either qne
of us had started it two or three times and as I walked
off it stopped. I am sure it did.
Jim Kay's explanation of what happened on July 31' is
very brief and concise.
Q. Would you tell us just what happened on the
day of July 31?
A. Well, approximately 8:30 that morning I in-
formed Rita that machine 21 was a priority machine.
She in return replied that if the machine ran, it ran and
she did not care. Then, she turned around and turned
all four of her machines off and went to the restroom. I
again asked her to turn the machines back on, not to
turn them off, she turned and looked at me and grinned
and went to the restroom.
I turned around and turned the machines back on
and informed one of the knitters next to her to watch
her machines and then, I went to Jim Banta's office and
recommended to let her go.
Daphne Young, a knitting instructor,5 confirmed the
testimony of Kay that he asked Rita to turn the machines
on and that Rita turned the machines off and went directly
to the bathroom.
The testimony also established that the standard proce-
dure when leaving the machines for purposes of restroom
or coffee breaks was to leave the machines running and to
inform a neighboring fellow employee of one's intended
absence from the machines.6
The testimony also clearly established that a machine
making priority material was to be kept running even at the
expense of allowing the other three machines, for which a
knitter was responsible, to stop and remain inoperatlve.7
B. Analysis
The alleged surveillance on the part of Armbruster fails
for lack of proof Armbruster had a legitimate and proper
reason for being at the Holiday Inn on March 13. His
presence there at the same time four employees and ' a
union representative were also meeting at the motel was
nothing more than a coincidence. Moreover, I am
convinced that Armbruster did not see any of the
employees even though he may have looked in their
general direction. I shall recommend dismissal of the
allegation.
Likewise, the allegations of interrogation must fall.
Accepting Petersen's version of the mcident,8 there was
nothing in Armbruster's question that related to the Union
and there was certainly nothing in Petersen's response
6 This was established not only by Rita Englert's own testimony, but also
by the testimony of employees Patricia Howard, Lois Campbell , and Jackie
Lewis 1
r I e, see testimony of Jackie Lewis or Mildred Reagan
8 This seems very unlikely because Petersen 's response to Armbruster s
query seems totally out of place in view of their acknowledged friendly
relationship
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related to the Union or to concerted activity on the part of
the employees. Moreover, I am inclined to credit Armbrus-
ter's version of the incident even though his recollection
was admittedly hazy, because the situation had no
particular significance.
The inquiry of Petersen by Prock related to Prock's
investigation of an official complaint by other employees
of Petersen's conduct and resulted in an official written
reprimand, because Petersen was in violation of a company
rule. I find nothing in the inquiry that tended to coerce,
interfere with, or restrain Petersen in his concerted
activities conducted at a proper time. I shall recommend
dismissal of the allegation.
The impression of surveillance allegations were, in my
opinion, nebulous and difficult to grasp as violations of the
Act .9 Reagan, as indicated earlier, was obviously an
outgoing, talkative person who was anxious to express
herself freely and openly to her friend Glenn Prock. Prock,
not only because he had been instructed by the manage-
ment not to discuss union activities with the employees,
but undoubtedly because he had other tasks to perform
and didn't want to hear something he already knew, took
the easy way out and told "Mildred, I know about it."
Surely such a remark neither inhibited, nor was intended to
inhibit an employee's future union activities.10 I find that
Prock's comment to Reagan was only intended to "cut her
off" and did not create an impression of surveillance.
The allegation of impression of surveillance involving
Rita Englert has no merit. Obviously, the Company knew
of Rita's sympathies toward the Union and Rita knew the
Company was aware of her activities. (This incident
occurred after Rita Englert had appeared at the R-case
hearing to testify on behalf of the Union.) The comment, if
said at all, was merely made by Prock to Englert in
response to her (Englert's) accusation that she was being
picked on because of her union interests. Such a denial of a
violation of the Act hardly rises to a sufficient level to
become in turn a violation of the Act.
I find Rita Englert to have been discharged for valid and
legal reasons . The issue here as in every 8(a)(3) termination
case is one of discerning the true purpose or real motive for
the discharge.ll If Englert was - as the counsel for
General Counsel argues rather persuasively - discharged
because of her union activities, it makes no difference that
there may also have been a legitimate reason for discharg-
ing her.12 Conversely, if her discharge was not discrimina-
torily motivated, it is immaterial whether the discharge was
arbitrary, unfair, or unreasonable. For, as the courts have
often reminded the Board, the Act does not "give the
Board any control whatsoever over an employer's policies,
including his policies concerning tenure of employ-
ment. . . . [A ]n employer may hire and fire at will for any
reason whatsoever, or for no reason, so long as the
motivation is not violative of the Act." 13 And, as the Board
has recognized, "In every case, a violation of the Act must
be proved by the General Counsel by a preponderance of
the evidence." 14
A careful examination of all the evidence fails to reveal
any direct evidence of a discriminatory motive nor am I
able to infer discrimination based on either direct or
circumstantial evidence.15 Under all the circumstances of
this case, I find Rita Englert to have been discharged solely
because she disobeyed a direct request of her supervisor
and not because of her union activity. The fact that Englert
was a known union adherent eases much of its significance
as circumstantial evidence where active unionism is
widespread and there is no evidence of disparate treat-
ment.16 I shall recommend dismissal of the complaint in its
entirety.
CONCLUSIONS OF LAW
1. Respondent , Aileen , Inc., is engaged in commerce,
and the Union , Communications Workers of America,
AFL-CIO, is a labor organization all within the meaning
of the Act.
2. Respondent has not violated the Act with regard to
any of the allegations contained in the complaint.
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, I hereby issue the following
recommended:
ORDER 17
The complaint is hereby dismissed in its entirety for lack
of merit.
9 See N LR.B v. Simplex Time Recorder Company, 401 F 2d 547 (C.A 1,
1968); N L R.B v Rybold Heater Company , 408 F 2d 888 (C A. 6, 1969)
'° Hendrix Manufacturing Company, Inc v. N LR B, 321 F.2d 100 (C A
5, 1963); NLRB v Prince Macaroni Manufacturing Co., 329 F 2d 803
(C.A. 1, 1964)
11 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v N LRB.,
365 U.S 667, 675 (1961), quoting Radio Officers' Union [A H Bull
Steamship Co] v NLRB, 347 U S 17,43 (1954).
12 Local 152, Teamsters [American Compressed Steel] v N LR.B, 343
F.2d 307, 309 (C.A.D.C., 1965).
13 N L. R B v. Ace Comb Co, 342 F.2d 841 ,847, (C A. 8, 1965). See also
N L R.B. v McGahey, et al, d/b/a Columbus Marble Works, 233 F. 2d 406,
413, (C.A. 5, 1956), and cases there cited.
14 Falstaff Brewing Corporation, 128 NLRB 294, 295 fn.2 (1960), enfd as
modified, 301 F.2d 216 (CA 8, 1962)
15 Cedar Rapids Block Co v N LR.B., 332 F 2d 880,884 (C.A. 8, 1964).
16 N.LR B v. Materials Transportation Company, 412 F.2d 1074, 1078
(CA 5, 1969)
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
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.