Air Reduction Co., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1969

176 N.L.R.B. 789 (N.L.R.B. 1969)

AIRCO TEMESCAL 789
Airco Temescal , a Division of Air Reduction
Company, Incorporated and Mary Priscilla
Mikesell . Case 20-CA-5037
June 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 19, 1969, Trial Examiner Maurice
Alexandre 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, 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 this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent , Airco Temescal, A
Division of Air Reduction Company, Incorporated,
Berkeley, California, its officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner' s Recommended Order, as so
modified.'
'The Respondent's request for oral argument is hereby denied because
the record , including the exceptions and briefs , adequately presents the
issues and the positions of the parties.
'Contrary to the Respondent's contention, we find that the Trial
Examiner did not err by taking official notice of the Trial Examiner's
Decision and the Board' s Order in the prior case involving the Respondent
Case 20-CA-4544. (unpublished ) Moreover, without considering the prior
case , we find that the record in the instant matter as it reveals unlawful
interrogation , threats, and solicitation of surveillance, all directed
specifically to Mikesell , clearly indicates Respondent's union animus.
'Add as the third indented paragraph of the Appendix the following:
WE WILL notify the above-named employee if presently served in the
Armed Forces of the United States of her right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
MEMBER ZAGORIA, dissenting in part:
Contrary to my colleagues, I would not sustain
the Trial Examiner's finding that the discharge of
employee Mary Mikesell was motivated by reasons
proscribed by Section 8(a)(3) of the Act.
As the Trial Examiner found, Mikesell's repeated
tardiness, insubordination, and use of her
Employer's time for personal conversations and
telephone calls were cause for numerous justifiable
complaints by her immediate supervisor. Mikesell's
conduct in these respects had been the subject of
two warning notices given to her by Supervisor
Burnett, and he had several times recommended to
his superiors that Mikesell be discharged. On May
10, 1968, as a result of Burnett's several complaints
and the warning notices he had given Mikesell, she
was given a further written warning to the effect
that if her job performance did not improve within
30 days she would be discharged. Mikesell exhibited
a temporary improvement, but when her job
performance again deteriorated within the next
several days Burnett recommended to management
that she be immediately discharged.
On May 16, 1968, Mikesell left the plant in the
middle of the working day without permission or
notification as to the reason for her departure, and
she took with her the personal belongings she kept
in the plant. Although Mikesell's unannounced
departure from the plant was ostensibly necessitated
by a medical emergency of such dire immediacy that
she could not notify her supervisor or leave a
message with other employees in the department,
she nevertheless walked 50 or 60 feet to her car
carrying with her a large radio, books, and other
personal possessions , drove 5 or 10 minutes to her
home and, after a telephone consultation with her
doctor, took to her bed. When the Respondent's
officials discovered that Mikesell and her personal
possessions were missing they attempted to locate
her within the plant, but failing in this sent a
telegram to Mikesell to the effect that her absence
without notification or apparent justification was
interpreted as a resignation. Mikesell received the
telegram late in the afternoon of May 16,-but she
made no attempt to contact the Respondent until
the following day. On may 17 Mikesell finally
-notified Chief Engineer Wolf that she was seriously
ill and had a doctor's appointment. According to
Wolf he offered to discuss the termination with
Mikesell if she came to the plant, but Mikesell
made no further attempt to contact the Respondent
to explain or justify her absence of the prior day.
The Trial Examiner found that Mikesell's absence
from the plant without notice on May 16
unquestionably constituted a lawful basis for
discharge, but he concluded that Mikesell's
misconduct was seized upon by the Respondent as a
pretext, and was not the motivating cause for her
discharge. I find no basis upon the entire record to
discharge from the Armed Forces.
176 NLRB No. 107
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support such a conclusion.
The Respondent was aware of Mikesell' s union
sympathies and interests no later than May 3, and
this knowledge was positively reconfirmed on May 6
when employee Shirley Beauchamp reported to the
Respondent that Mikesell was "passing out cards."
Had the Respondent been searching for a pretext to
cloak a discriminatorily motivated discharge it could
have immediately taken advantage of Burnett's
several prior recommendations for Mikesell's
discharge. Instead the Respondent gave Mikesell an
additional 30 days to improve her job performance,
and offered to transfer her to another job if her
personality conflict with Burnett could not be
surmounted. The Respondent, had it been searching
for an excuse to terminate Mikesell, had further
opportunity when Burnett reported a few days later
that Mikesell had reverted to her former habits, and
recommended her immediate discharge.
Contrary to the Trial Examiner' s reasoning, the
Respondent's refusal to act on Burnett's
recommendation for Mikesell's immediate discharge
does not require or support the conclusion that the
May 16 termination was for other than lawful
reasons . The Respondent only gave Mikesell a
30-day probationary period to improve her job
performance; it did not grant her immunity from
discharge for other serious misconduct during the
intervening period. Accordingly, I would find that
Mikesell's union activities, even though known and
unlawfully discouraged by the Respondent, cannot
serve to insulate her from discharge for an obviously
lawful and justifiable reason.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in San Francisco, California, on November 14,
1968,' upon a complaint issued on September 11,1 alleging
that Respondent has violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. In its
answer , Respondent denies the commission of unfair labor
practices. The issues are whether or not Respondent
interfered with, restrained, or coerced its employees, and
unlawfully discharged Mary Priscilla Mikesell.
Upon the entire record,' my observation of the
witnesses , and the briefs filed by the General Counsel and
by Respondent, I make the following:
' All dates hereafter referred to relate to 1968, unless otherwise stated.
'Based on a charge filed on April 4 by Mary Priscilla Mikesell.
'The General Counsel 's unopposed motion to correct the transcript of
the hearing is granted , and the transcript errors are noted and corrected.
'No issue of commerce is presented. The complaint alleges and the
answer admits facts which , I find , establish that Respondent is an
employer engaged in commerce and in operations affecting commerce. I
further find that International Association of Machinists and Aerospace
Workers , AFL-CIO, District Lodge No . 115 (hereafter called the Union) is
a labor organization within the meaning of Section 2 (5) of the Act.
Findings and Conclusions'
1. THE UNFAIR LABOR PRACTICES
A. The Evidence
1. Background
Respondent, a New York corporation, is engaged in the
manufacture of electron beam equipment, and employs
inter alia the following admitted supervisors at its place of
business in Berkeley, California: Charles d'A. Hunt, vice
president; Raymond A. Wolf, chief engineer; and Gary N.
Burnett, drafting supervisor.
In February 1967, the Union began an organizational
drive among Respondent's Berkeley employees. On April
21, 1967, Respondent filed a representation petition.' On
May 1, 1967, Respondent and the Union agreed to a
consent election; and the election held on May 16, 1967
resulted in a vote of 75 to 71 against the Union.
Following a hearing in February 1968 on a complaint
consolidated with objections to conduct allegedly affecting
the election, the Trial Examiner found that Respondent
had unlawfully threatened, interrogated, and promised
benefits to its employees, and that such conduct interfered
with their free choice in the election. He accordingly
recommended a cease and desist order, the posting of the
usual notices, and the setting aside of the election.
2. Events relating to Mikesell from April 1967
through April 1968
Mikesell was employed by Respondent as a printroom
clerk on April 14, 1967. Shortly before and after she was
employed, Mikesell and her husband hosted several
employee organizational meetings at their home. About a
week before the election held on May 16, 1967, she
attended a meeting at the Union hall; and on one occasion
a few days before the election, she spent 15 to 20 minutes
distributing Union leaflets to employees at the front gate
of the plant.
Prior to December 1967, Mikesell had had several
successive immediate supervisors. In that month, Burnett
became her supervisor. He testified that at first she did a
satisfactory job; but that towards the end of February
1968, she began arriving late to work and began making
an excessive number of personal telephone calls; and that
he spoke to her about such conduct at least three or four
times . On March 11, Burnett prepared and signed a
memorandum stating that Mikesell had been warned of
possible discharge for lateness and frequent use of the
telephone for personal calls. Although he did not show the
memorandum to Mikesell, he told her that he had placed
it in her personnel file. According to Burnett, her conduct
improved for a few days but once again deteriorated; she
also became involved in political discussions which were
disruptive; and when he reprimanded her, she became
insubordinate.
In March or April, Wolf became chief engineer with
supervision over Burnett . In April, Burnett complained to
Wolf two or three times about Mikesell's conduct. Wolf
described Burnett as being "in a rather distraught state."
Because Wolf thought that Mikesell was "a capable girl"
and that she could be useful to Respondent, he felt that
'Case 20.RM-968. I take official notice of the decision of Trial
Examiner Penfield , issued on July 10, 1968, in Cases 20.RM-968 and
20-CA-4544 , and of the Board's Order, issued in the latter case on August
30, 1968, adopting his findings and conclusions in the absence of
exceptions thereto.
AIRCO TEMESCAL 791
drastic action against her should not be taken hastily.
3. May 2
Shortly before May 2, Burnett requested Mikesell to
work extra time to compensate for lateness of over an
hour on two occasions. He testified that on the latter date,
she arrived late, came to see him, and told him that she
did not feel it necessary to arrive on time if he took more
than his 30 minutes for lunch . Burnett then decided to
have her discharged. However, the only person present
with authority to sign a termination check was Hunt, who
refused to permit the discharge because Mikesell had not
been given two written reprimands in accordance with
Respondent's policy , and he instructed Burnett to "cool
off" and follow such policy. Burnett thereupon prepared
and signed a second memorandum stating in substance
that Mikesell's conduct had deteriorated and that she
would be discharged if there was no immediate
improvement , and he gave Mikesell copies of both the
March 11 and May 2 memoranda.
Upon receiving the memoranda, Mikesell prepared a
letter addressed to a Field Investigator for the Board, in
which she denied the misconduct referred to in the
memoranda , accused Respondent of fabricating
complaints as a pretext for discharging her "because of
the prounion views that I and my husband hold", asserted
that a new employee in her department was being trained
to take over her duties, and appealed to the Board and the
Union to investigate "these continued unfair labor
practices ." Mikesell placed copies addressed to Hunt and
Burnett in the interplant mail and mailed copies to one
Danny Ramos , a Union business agent , and to the
Berkeley Barb , a local newspaper . It is not clear whether
Burnett and Hunt saw their copies the same or the
following day. In any event, Burnett showed his copy to
Wolf. Hunt testified that on meeting Wolf during the day,
he asked Wolf whether he had seen the Mikesell letter,
and that Wolf replied that he had. Wolf testified that he
asked whether Hunt had seen the letter , that Hunt replied
in the negative , and that Wolf then informed Hunt that he
had talked to Mikesell, who had stated that she had no
intention of mailing the letter and merely wanted to call
attention to her grievances.
Wolf did speak to Mikesell that day. Mikesell testified
that in response to his inquiry as to why she wrote the
letter, she stated that she had grievances which had not
been met; that Wolf then stated that there would be a
meeting in approximately a week to discuss the matter;
and that he also stated that he thought her action had
been "too severe." According to Mikesell, she was very
upset and cried . Wolf testified that he expressed concern
to Mikesell regarding several matters: that the letter
constituted "pretty strong action", that "she must have
some real justification ", that she had failed to consult him
or even send him a copy of her letter. According to Wolf,
he was also concerned that she was under a
misapprehension regarding the new employee in her
department, and he told Mikesell that he would arrange a
meeting in the near future to discuss these matters.
4. May 6
Mikesell testified that in the spring of 1968, her
husband gave her some authorization cards which he had
obtained from Union Business Agent Ramos, and that she
spoke to various employees concerning the Union. On
May 6 , Ramos went to see Hunt pursuant to an
appointment to discuss "serious charges" against
Respondent. At Hunt's request, one Cariglia was present
at the meeting.' Ramos stated that the serious charges had
been made by Mikesell's husband. Several days earlier,
Hunt had seen the May 3 issue of the Berkeley Barb
which carried a story relating to Mikesell's husband.'
Hunt asked Ramos whether he had seen the statements
attributed to him by Mikesell's husband, and showed the
Berkeley Barb to him. Evidencing shock because he had
been misquoted and at the nature of the unusual contents
of the paper, which included pictures of nude individuals
and obscenities, Ramos informed Hunt that Mikesell was
attempting to organize Respondent's female employees,
not for the Union, but on behalf of an unnamed clerical
union. Either that same day or possibly on the following
day, Hunt called one of his clerical employees, Shirley
Beauchamp, to his office and asked whether Mikesell
"was trying to organize for a union, the women workers"
employed by Respondent. When Beauchamp replied that
she did not know, Hunt requested her to find out and tell
him. A few hours later, Beauchamp reported to Hunt that
Mikesell was "passing out cards." Hunt testified that he
did not disclose Beauchamp's information to Wolf or
Burnett.
5. May 9
On May 9 , Wolf met with Mikesell and Burnett.
Mikesell testified that they discussed the contents of the
May 2 warning memorandum ; that Wolf and Burnett
agreed that her work was satisfactory ; that "about
halfway through the meeting," Burnett left at Wolf's
request ; that Wolf then asked her whether she was a union
organizer and stated that if he found out that she was, she
would be fired ; that she denied being a union organizer
because she feared discharge ; that she told him that all
she wanted was justice and an end to harassment ; and that
he replied that she was not normal and could not expect
normal justice. Wolf's version of the May 9 meeting was
quite different . He testified that he gave Burnett and
Mikesell an opportunity to express their views concerning
the latter ' s work performance ; that shortly before the end
of the meeting , he asked Burnett to leave because if, as he
believed, there was a personality clash between him and
Mikesell , there might be things she would say outside
Burnett 's presence ; that he talked to Mikesell for about 3
or 4 minutes thereafter ; that he did not say anything to
her about union activities , but rather asked some
questions about her education, experience , background
and previous employment because she was obviously quite
intelligent and would be of value to Respondent even if
her problems in his department could not be worked out.
Wolf further testified that he took notes during the
meeting ; that thereafter , he read these back "to each one
of the parties" and asked whether there were any
'Hunt testified that Cariglia was in charge of Respondent 's electrical
shops and had handled the bulk of Respondent's negotiations . The Trial
Examiner's decision referred to above (fn. 5) states that the parties therein
had stipulated that Cariglia occupi ed a supervisory position , and contains a
finding that Cariglia engaged in unlawful conduct.
'The story recited , among other things , that Mikesell's husband, who
had been discharged by Respondent, had been told by Ramos that
Respondent had agreed to rehire him; but that representative of
Respondent had gone to Mikesell's home , at which time several members
of an organization known as the Black Panthers were present , and had
engaged in a fight with Mikesell's husband ; and that the latter was
thereafter told by Ramos that Respondent had decided not to take him
back because he was "just un-American."
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corrections ; that since none were requested , he had a
rough draft of the notes prepared and gave each a copy;
that Mikesell took her copy home to show to her
husband ; and that on the following day, she informed him
that she had nothing to say about the notes.
6. May 10
On the following day , May 10, Wolf prepared a final
memorandum incorporating the notes . The memorandum
stated that Mikesell ' s job skills were satisfactory but that
she felt she could do a better job and desired more
challenging work ; that "she operates in an orderly
fashion ;" that she agreed that she had frequently been late
and had made an excessive number of personal telephone
calls, and would improve her conduct ; that she stated that
she had been disrespectful to Burnett because of an
excessive amount of supervision ; and that she asserted her
discussions during work time concerning controversial
matters had been initiated by others and carried out in
louder-than-normal voice because of the noise level
produced by mechanical equipment . The memorandum
further stated that Mikesell was "an intelligent, useful
employee" capable of handling a more challenging
assignment ; that a personality clash existed between her
and Burnett ; that she had been given a 30-day period
within which to improve her job performance ; that if,
upon reevaluation at the end of 30 days , such performance
was unsatisfactory , she would be discharged ; and that if it
was satisfactory but the personality differences had not
been resolved , an attempt would be made to transfer her
to another job if one was available . Wolf and Burnett
signed the memorandum , but Mikesell refused to do so.
On the same day, Burnett remarked to Wolf that the
meeting seemed to have had beneficial results, since
Mikesell had shown improvement . He also expressed
pleasure to Mikesell at the fact that she was trying to do
her job well.
7. May 13 through 16
On May 13, Mikesell met at her home with Employee
Linda Back and one Joe Neeham, who explained the
benefits of organizing Respondent 's employees on behalf
of an organization which she described as the "Office and
Technical Workers Union."
Burnett testified that during the ensuing several days,
Mikesell's performance deteriorated again , that she
refused to carry out his instructions, and that he
recommended Mikesell 's discharge to Wolf. Wolf testified
that he felt that Burnett "had a sort of defeatist attitude
about the whole situation" and was being emotionally
affected. He told Burnett that he wished to give Mikesell
the 30-day trial period agreed upon , overruled his
recommendation concerning immediate discharge, and in
effect stated that he would assume responsibility for
supervision over Mikesell.
Wolf further testified that by May 16, he felt that he
had to take some positive action because the situation was
getting out of hand, and that he decided to talk to
Mikesell about a transfer to another department . About 3
p.m., he went to look for her but was unable to find her.
Mikesell testified that she was in her menstrual cycle and
had begun to feel ill that morning ; that after lunch she
became frightened because she thought she was
hemorrhaging and decided to see her physician , who had
been treating her for two weeks; that she looked for
Burnett in both the engineering and production control
departments, but could not locate him; and that she
walked between 50 and 60 feet to the lot where her
automobile was parked and drove between 5 and 10
minutes to reach her home . Mikesell further testified that
she did not inform anyone that she was leaving because
she was concerned about communicating with her doctor;
that two other female employees worked in the same
room with her; and that it would not have taken very long
to tell someone that she was leaving because of illness.
Finally, she testified that upon arriving home, she
telephoned her doctor who advised that she could remain
at home ; that she then took a tranquilizer and went to
sleep ; and that she planned to telephone Respondent later
in the afternoon.
In an effort to locate Mikesell , Wolf, and Burnett had
her paged on the plant public address system , and looked
for her in other departments . Burnett informed Wolf that
some of Mikesell's personal effects usually kept on her
desk were gone , including her radio and books which she
read during her rest periods . Wolf then went to the
parking lot and ascertained that Mikesell's car was not
there. He thereupon instructed the personnel department
to send a telegram to Mikesell , over Burnett's name,
informing her that her absence without notice or apparent
justification was interpreted as a resignation from her job,
and that her paycheck would be mailed that day.'
Mikesell received the telegram about 4:45 p.m. She
testified that since that was after her working hours she
planned to telephone Respondent the following day.
8. May 17 and 18
The next morning , May 17, Mikesell telephoned Hunt
and was informed by his secretary that he was not in.
According to Hunt, he told his secretary that he
anticipated an adversary proceeding and directed her to
instruct Mikesell, if she telephoned again , to call Wolf if
she wished to talk to a representative of Respondent.
Mikesell testified that Burnett was on leave that day, that
she talked to Wolf and asked him whether she could come
to the plant or talk to him about the telegram , that he
replied in the negative to both questions , but that he said
she could talk to him some other time . Wolf testified that
Mikesell told him she had not intended to resign, had
been seriously ill and had obtained a doctor's
appointment; that he stated that their discussion should
not be carried on by telephone and that he would be glad
to talk to her if she wished to come to the plant ; and that
Mikesell replied that she might do that.
Mikesell received her paycheck on the following day,
May 18. Thereafter , neither Mikesell nor Respondent
made any attempt to communicate with each other.
B. Findings and Conclusions
1. Interference , restraint , and coercion
The General Counsel contends that Respondent violated
the Act by Hunt's conduct in soliciting Employee
Beauchamp to engage in surveillance of Mikesell 's union
activity and by Wolf's conduct in interrogating and
threatening Mikesell concerning such activity. Respondent
admits the solicitation but asserts that it was not lawful
because it was noncoercive and isolated . Respondent
further contends that the record fails to establish either
'Burnett did not know that his name was to be used.
AIRCO TEMESCAL 793
interrogation or threats by Wolf. I agree with the General
Counsel.
a. Solicitation of surveillance
There is no merit to Respondent ' s contention that
Hunt's conversation with Beauchamp could not have been
coercive since his words did not convey any expression of
union hostility or of an intent to take action against
Mikesell or any other employee. Hunt's instructions to
Beauchamp to ascertain and inform him whether Mikesell
was organizing for a union was clearly violative of Section
8(a)(l) of the Act "whether or not they were coercive in
actual fact." N.L.R.B: v. Associated Naval Architects,
355 F.2d 788 (C.A. 4). And in view of Respondent's other
unfair labor practices found below, Hunt's conduct was
hardly isolated. The decision in Poinsett Lumber and
Manufacturing Co., 147 NLRB 1197, relied on by
Respondent , is inapposite.
b. Interrogation and threats
Respondent asserts that it is more reasonable to credit
Wolf's denial than Mikesell ' s assertion that he
interrogated and threatened her after Burnett left the
meeting of May 9. Its argument is that Respondent had
no knowledge of her union activity and no union animus;
and that it is most unlikely that Wolf would threaten her
since the purpose of the meeting was to discuss Mikesell's
job performance and her conflict with Burnett, and since
Wolf made special efforts on her behalf.
Respondent ' s union animus "is a matter of record."
N.L.R.B. v. Winn-Dixie Greenville, Inc., 379 F.2d 958
(C.A. 4), cert. den. 389 U.S. 952.' It strains credulity for
Wolf to testify, as he did, that the prounion views
expressed in Mikesell ' s letter of May 2, which he
admittedly saw, were meaningless to him. Even a naive
individual could not escape the purport of the letter, and
my observation of Wolf leads me to the conclusion that he
was far from naive . Moreover, although Wolf testified
that he was more concerned about another portion of
letter evidencing Mikesell ' s misapprehension that she was
to be replaced by the new employee in her department,
and that one of the important purposes of the May 9
meeting was to dispel such misapprehension , it appears
that that subject was not discussed at the meeting. In
addition , in testifying that the prounion statement in
Mikesell' s letter had no meaning for him, Wolf added that
she could have included the statement "for any purpose"
and that her "motives were questionable ." Hunt similarly
testified that when he read the letter he questioned
Mikesell ' s motives in sending the letter, believing that she
was attempting thereby to immunize herself from possible
discharge by bringing her prounion attitude to the
attention of Respondent ." Such testimony refutes any
notion that they were unaware of Mikesell 's views, and I
find it difficult to believe that they refrained from
discussing their suspicions concerning Mikesell' s motives
in sending her letter.
I also find it difficult to believe that Hunt, after being
informed on May 6 that Mikesell was distributing union
cards, refrained from passing this information on to Wolf.
Hunt testified that he instructed Beauchamp to investigate
Mikesell's union activity only because he expected to be
'See the violations found in Case 20-CA-4544, supra, fn. 5.
"In its brief, Respondent asserts that the most reasonable interpretation
of the letter was that it represented a self-protective device by Mikesell.
involved in negotiations with Union Business Agent
Ramos, who had given him the information concerning
such activity; and wished to verify Ramos' veracity; and
that he did nothing with the information . At the time of
the Beauchamp incident, the status of the election of May
16, 1967 was pending before a Trial Examiner . Hunt's
explanation for the incident requires the assumption that
he anticipated negotiations with Ramos because he
expected the election to be set aside , a second election,
and a union victory . I am unable to perceive a basis for
such an assumption . Moreover , if Hunt ' s motives were
lawful , there is no reason why he should have selected
such a risky method of testing Ramos' veracity,
particularly since he had recently been involved in an
unfair labor practice hearing . I find that Hunt solicited
Beauchamp' s surveillance in order to verify Mikesell's
union activity qua activity, and that he told Wolf what he
learned about such activity." I accordingly reject Wolf's
testimony and find that he was aware of Mikesell ' s union
activity at the time of the May 9 meeting.
Wolf's version of that meeting is equally difficult to
accept . He testified that he asked Burnett to leave so that
Mikesell could speak freely , that he and Mikesell then
talked for only three or four minutes , and that he asked
her about her education , experience , background, and
previous employment . It seems doubtful that these matters
could be covered in such a short period. In any event, they
were not matters which needed to be discussed outside the
presence of Burnett . These considerations suggest that
Wolf wished to discuss Mikesell 's union activity but not in
the presence of Burnett. Nor is Wolfs innocence shown
by what Respondent describes as his special efforts on
behalf of Mikesell . Presumably , Respondent is referring to
his efforts to retain Mikesell as an employee despite
Burnett ' s objections and his efforts to locate her before
discharging her on May 16. Such efforts can also be
viewed as part of an attempt to conceal an unlawful
motive for discharge.
Considering the implausible and unpersuasive nature of
the testimony given by Hunt and Wolf, their knowledge of
Mikesell' s union activities , Respondent' s union animus,
and the demeanor of Wolf as compared with that of
Mikesell , I reject his denial and credit Mikesell's
testimony that he asked her whether she was a union
organizer and threatened her with discharge if he should
learn that she was . Such conduct by Wolf, I find,
constituted unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. Discrimination
The General Counsel contends that Respondent
unlawfully discharged Mikesell because of her union
activity . Respondent reiterates its claim that it lacked
knowledge of such activity, and asserts that in any event
her discharge was for cause . I agree with the General
Counsel.
I am inclined to concur in Respondent 's view that
Mikesell sent her ,etter of May 2 to the Board and to
Respondent pointing out her prounion attitude and
accusing Respondent of contemplated unfair labor
practices, in the hope of preventing the possibility of
discharge referred to in Burnett 's two memoranda. Of
"It is also likely that Wolf had been informed of Ramos' statement to
Hunt by Supervisor Cariglia , who was present when the statement was
made, and who had committed some of the violations found in Case
20-CA-4544.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course, the fact that Mikesell brought her union views to
Respondent's attention would not protect her if she was
discharged for cause. On the other hand, Mikesell's
attempt to utilize the Board's processes as a strategem for
immunizing herself from discharge for cause, although not
to be condoned, does not exonerate Respondent if the
discharge was unlawfully motivated.' I
There is no doubt that Burnett had at least some
justification for his complaints against Mikesell. She
herself admitted having been late on occasion and having
been told to lower her voice during a discussion in which
she engaged during working time. Moreover, I have no
reason to question the sincerity of Burnett's complaints.
There is no evidence that he was aware of her prounion
views on May 2, when he gave her copies of his warning
memoranda. Nor is there anything to suggest that he had
learned of those views when he made subsequent
complaints about her. Burnett appears to have been
regarded as a minor supervisor who was not always kept
informed of his superior's plans relating to personnel
matters." However, it is unnecessary to decide whether or
not the evidence establishes that there was justification for
Burnett's recommendations that Mikesell be discharged,
for the fact remains that Respondent does not claim it
believed there was such justification prior to the afternoon
of May 16. By his own admission, Wolf had little
confidence in Burnett's judgment, felt that the principal
problem was a personality clash between Burnett and
Mikesell, and was of the opinion that she was intelligent
and capable and had the potential for becoming a useful
employee, preferably in his own department, but in
another department if the clash of personalities could not
be resolved. For these reasons, according to Wolf, he gave
her a 30-day trial period, rejected Burnett's
recommendation that she be discharged, displaced Burnett
and assumed personal responsibility for supervision of
Mikesell, and had no intention of discharging her for
reasons of unsatisfactory performance prior to the time he
was unable to locate her on May 16. Wolf's decision to
discharge her at that time must, therefore, be examined in
the light of his earlier views.
Respondent's position is that Mikesell's absence from
the plant without notice constituted the first actual
experience for Wolf which confirmed the correctness of
Burnett's recommendation, and made further toleration of
Mikesell as an employee impossible. However, although
Respondent makes much of Wolf's efforts to locate
Mikesell before sending his telegram, it does not explain
why he felt it necessary to discharge her then and there,
and could not wait until the following day to learn the
reason for her absence. If Mikesell had the potential
which Wolf claims, it is difficult to understand why she
could not be given an opportunity to -explain her
disappearance. Wolf testified that he was "upset" by what
he considered "bad faith on her part with respect to me."
At the same time, he insisted that his decision to
discharge her was not the result of personal
disappointment but was dictated by policy considerations.
" The policy which Wolf had adopted on May 9 called for
a 30-day trial period, at the close of which Mikesell's
performance would be reevaluated. Wolf's re-evaluation of
her performance after only 1 week can hardly be regarded
"A similar conclusion applies to Respondent 's suggestion that Ramos
acted in tandem with Mikesell in reporting her union activity to Hunt
"For example , Wolf requested him to leave the May 9 meeting before he
interrogated and threatened Mikesell , and he did not advise Burnett that
the discharge telegram was being sent over his name.
as conforming to his own policy.
Respondent has also failed to give a satisfactory
explanation for its curious telegram to Mikesell. Wolf
testified that he couched the telegram in terms of a
resignation because "discharge" is a "harsh term," and
acceptance of her resignation "would perhaps make it
more realistic if she applied for a job elsewhere."" What
Wolf meant by "more realistic" is somewhat obscure.
Perhaps he meant that he wished to avoid placing a blot
on Mikesell's employment record. If so, his self-professed
charitable impulse would be more convincing if it had not
been preceded by his failure to wait just a little longer for
an explanation before taking action against Mikesell.
Wolf's explanation for sending the telegram in Burnett's
name is similarly unsatisfactory. Wolf testified that he
used Burnett's name because Burnett was Mikesell's
immediate supervisor.16 At the same time, he testified that
it was he rather than Burnett who made the decision to
discharge her because he felt that she had acted in bad
faith toward Wolf and, therefore, that he "prefer[red] to
keep [Burnett] isolated from any event such as this."
Wolf's use of Burnett's name on the telegram was, to say
the least , a strange method of isolating him from the
discharge.
Respondent's explanation of its reasons and actions in
discharging Mikesell do not have the ring of plausibility,
and I am unable to accept them. Respondent contends
that if Wolf were seeking a pretext for discharging
Mikesell, he could have seized upon Burnett's renewed
complaints and recommendation of discharge between
May 10 and 16. His failure to do so, it is argued,
established the purity of his motive. This argument
overlooks the fact that only a few days of her 30-day trial
period had elapsed. It must have been obvious to Wolf
that since he had already refused to rely upon Burnett's
complaints, a discharge prior to the expiration of that
period based on nothing more than a renewal of such
complaints would be difficult to explain. It is thus
understandable that Wolf would not accept Burnett's
renewed recommendation.
Mikesell' s absence from the plant without notice on
May 16 unquestionably would have constituted a lawful
basis for her discharge if it had been the motive therefor.
Based on the record before me, I am not persuaded that it
was the motive. I have already found that Respondent
possessed union animus , that Hunt and Wolf knew of
Mikesell's union activity, and that Wolf threatened
Mikesell with discharge for engaging in such activity.
Having rejected Respondent's explanation for the
discharge, I find that the General Counsel has established
a prima facie case of unlawful discharge for such activity
"Wolf's testimony was as follows:
Q And, but notwithstanding that , it was your decision to discharge
her; right, sir'
A. I was the one who went to Personnel and said , "I think we ought
to confirm her absence as a resignation "
Q This, notwithstanding the fact that you concluded that what she
had done by being absent was a breach of faith, is that right, sir?
A You keep bringing up the word "personal " This was a policy
that's been stated , and we all understood; this was nothing to do with
me, personally.
"Since Respondent concedes that it discharged Mikesell and makes no
claim that she resigned , the unexplained disappearance of her radio and
books from her desk on May 16 is immaterial. It is also immaterial
whether Wolf was willing to discuss the discharge with Mikesell after the
fact.
"Wolf testified that on the only other occasion when he discharged an
employee in his department in writing , the discharge telegram was signed
by the personnel department
AIRCO TEMESCAL 795
which Respondent has failed to rebut. Accordingly, I find
that the discharge violated Section 8(a)(3) and (1) of the
Act.
11. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
which I find necessary to remedy and remove the effects
of the unfair labor practices and to effectuate the policies
of the Act.
Affirmatively, I shall recommend that Respondent offer
to Mary Priscilla Mikesell immediate and full
reinstatement to the position which she held at the time of
her discharge or to a substantially equivalent position,
without prejudice to her seniority and other rights and
privileges , dismissing if necessary an employee hired
subsequent to the date of such discharge. I shall further
recommend that Respondent make Mikesell whole for any
loss of earnings suffered because of her discharge by
paying to her a sum of money equal to that which she
would have been paid by Respondent from the date of her
discharge to the date on which Respondent offers
reinstatement as aforesaid , less her net earnings, if any,
during the said period. The loss of earnings under the
order recommended shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By unlawfully soliciting an employee to engage in
surveillance of Mikesell' s union activity, and by unlawfully
interrogating and threatening her concerning such activity,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
2. By unlawfully discharging Mikesell , Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
It is recommended that Airco Temescal, a division of
Air Reduction Company, Incorporated, its officers,
agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully soliciting any person to engage in
surveillance of the union activities of its employees, and
from unlawfully interrogating and threatening employees.
(b) Unlawfully discharging employees or otherwise
discriminating in regard to their hire, tenure of
employment, or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of any of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Mary Priscilla Mikesell immediate and full
reinstatement to her former or a substantially equivalent
position , and make her whole for any loss of earnings she
may have suffered by reason of Respondent's
discrimination against her, in the manner set forth in the
section herein entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of her
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.
(c) 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 analyze the amount of backpay due
and the right of reinstatement under the terms of this
Recommended Order.
(d) Post at its place of business in Berkeley, California,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 20, shall, after being duly signed by
an authorized representative of the Respondent, be posted
by the 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 by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.' B
"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 20, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT unlawfully discriminate against Mary
Priscilla Mikesell or any other employee.
WE WILL offer to Mary Priscilla Mikesell immediate
and full reinstatement to her old job and pay her for all
back earnings lost as a result of the discrimination
against her.
WE WILL NOT solicit any person to engage in
surveillance of the union activities of employees, or
unlawfully interrogate or threaten our employees, or in
any other manner interfere with them in the exercise of
their guaranteed statutory rights.
AIRCO TEMESCAL, A
DIVISION OF AIR
REDUCTION COMPANY,
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defaced, or covered by any other material . directly with the Board's Regional Office, 450 Golden
If employees have any question concerning this notice Gate Avenue, Box 36047 , San Francisco , California
or compliance with its provisions , they may communicate 94102, Telephone 556-0335.