Answering, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 688 (N.L.R.B. 1974)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Answering , Inc. and Communications Workers of
America , AFL-CIO. Case 11-CA-5703
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On August 30, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Answering, Inc., Charleston, South
Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the said Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule 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
LOWELL GOERLICH, Administrative Law Judge: The charge
filed by the Communications Workers of America,
AFL-CIO, herein called the Union, on April 8, 1974, was
served on Answering, Inc., the Respondent herein, on the
same date. A complaint and notice of hearing was issued on
April 30, 1974. The complaint charged that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act,
as amended, herein referred to as the Act, by unlawfully
soliciting employees to inform the Respondent concerning
the union activities of other employees, by interrogating its
employees concerning their union activities, and by threaten-
ing employees with certain reprisals if the Union were se-
lected as the employees' bargaining representative. The com-
plaint also charged that on April 3, 1974, the Respondent
discriminatorily discharged Katherine Ann Wall in violation
of Section 8(a)(3) of the Act.
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The case came on for trial at Charleston, South Carolina,
on July 1, 1974. Each party was afforded a full opportunity
to be heard, to call, examine, and cross-examine witnesses, to
argue orally on the record, to submit proposed findings of fact
and conclusions, and to file briefs. All briefs have been care-
fully considered.
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times material
herein, a corporation licensed to do business in the State of
South Carolina with offices located in Charleston, South
Carolina, where it is engaged in the telephone answering
service.
During the past 12 months, which period of time is repre-
sentative of all times material herein, Respondent performed
services valued in excess of $50,000 for customers located
directly outside the State of South Carolina. During this same
period, Respondent purchased and received from suppliers
located outside the State of South Carolina materials valued
in excess of $50,000.
Respondent is now, and has been at all times material
herein, an Employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union Organization Campaign and the Alleged
8(a)(1) Violations
1. On January 26, 1974, Katherine Ann Wall, the alleged
discriminatee, contacted the president of the local union. An
appointment to meet with him was arranged for January 31,
1974, at the union hall in Charleston, South Carolina. Pursu-
ant to the appointment, Wall and three operators met with
the union president and discussed "union matters." On Feb-
ruary 5, 1974, the union president delivered blank union
support cards to Wall's home, together with union pamphlets
and information booklets. Wall distributed these to nine2
I The facts found herein are based on the record as a whole and the
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits , with due
regard for the logic of probability, the demeanor of the witnesses , and the
teachings of N.L. R.B. v. Walton Manufacturing Company & Loganville
Pants Co., 369 U. S. 404, 408 ( 1962). As to those witnesses testifying in
contradiction to the findings herein , their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All tes-
timony has been reviewed and weighed in the light of the entire record. No
testimony has been pretermitted.
215 NLRB No. 118
ANSWERING, INC. 689
employees of the Respondent at their homes On February
13, 1974, Wall returned the signed support cards which she
had obtained to James D. Adler, South Carolina director of
the Communications Workers of America, at the union hall
in Charleston. Wall was the only employee who distributed
union literature or solicited union support cards and was the
union coordinator during the election campaign which fol-
lowed.
On February 19, 1974, the Respondent received a letter
from the Union requesting recognition as the exclusive bar-
gaining agent for its employees. Upon the receipt of the letter
Nan B. Bates, Respondent's Charleston manager , contacted
her superior, Vice President Bowman , in the Washington,
D.C., office and informed her of the receipt of the letter.
Thereafter Bates discussed the advent of the Union individu-
ally with three employees, Wall, Martha Hiers Floyd, and
Ester Lee Jones. These employees were designated as supervi-
sor operators. Prior to the Decision and Direction of Election
in Case 11-RC-3885 issued on March 20, 1974, Respondent
viewed these employees as supervisors within the meaning of
the Act.'
On February 25, 1974, Bates called Floyd, a union card
signer , to her office. Bates told her that since she was a
supervisor she would not be allowed to vote in the union
election. Bates asked Floyd whether she or other employees
had visited the union representative. Bates also said that if the
Union prevailed the Respondent would have to close the
(Charleston) office because it was losing accounts. Bates
asked Floyd "to question around among the girls and find out
who would have gone to the union or why they were going
to the union." Bates also referred to the Union as a commu-
nistic organization . Bates held similar conversations with
Floyd on February 26, 27, and 28, and March 1, 1974.°
During these conversations Bates asked Floyd "which of the
girls would have gone union ." Floyd untruthfully answered
that she did not know.
On March 5, 1974, in Bates ' office Bates handed Floyd a
paper entitled "Some Do's and Don'ts for Supervisors"
which Floyd read. Bates told Floyd that "if the Union should
come in there, there would be a strike and some of the girls
would have to go on food stamps or starve to death." Bates
also gave her a copy of a letter dated March 4, which was also
distributed to all employees. From the content of the letter it
was plain that the letter was intended to persuade employees
to reject the Union.
The Bates-Floyd conversations continued on March 6, 7,
8, 11, and 12, 1974. Floyd describes the conversations: "It
was still the same questions, wanting to know if I had found
out why any of the girls would go [sic] the Union, or if I had
been to a union representative ; and all I could tell her is that
I did not know.. . .
Around the latter part of February Supervisor Operator
Jones was called into Bates ' office. Bates asked Jones whether
2 There were 11 employees in the appropriate unit
3 in that decision Wall, Floyd, and Jones were held not to be supervisors
within the meaning of the Act The Respondent does not contest this hold-
ing in the instant case
Bates insisted that she had not talked to any of the supervisor operators
until March 1, 1974 On this point Bates is discredited Floyd kept a contem-
poraneous diary of her conversations with Bates which was offered into
evidence The diary indicated that Bates-Floyd conversations were held
prior to March 1 on February 25, 26, 27, and 28
she knew of any employee problems or whether she had a
problem. Jones answered, "No." Bates said that she under-
stood that a majority of the girls had contacted a union
representative. Bates advised her that supervisors were not
eligible to vote and that "if a supervisor had signed a ,card,
they would have to get it back . . . because you couldn't work
as supervisors and vote in the union."
On February 28, 1974, Bates also conversed with Supervi-
sor Operator Wall in her office. Bates remarked that "some-
one had been for the Union" and asked Wall if she "had been
or if [she] knew anyone who.had been." Wall's answer was
negative. Bates indicated that some of the "girls" had signed
union support cards and commented, "we don't want a
union, and she didn't think that we needed a union." Wall did
not tell Bates the truth about her union activities.
On March 6, 1974, Bates and Wall again conversed. Dur-
ing the conversation Bates asked Wall again whether she had
heard anything about the Union. Wall again answered, "No."
Bates also asked Wall whether Lulu McPherson or Linda
Roundtree had "mentioned anything about the union."
Again Wall answered, "No." Bates said that if "Lulu" did
mention anything about the Union to report it to her. Bates
showed Wall a copy of "Some Do's and Don'ts for Supervi-
sors" and gave her a copy of the above-mentioned letter
distributed to the employees.
Bates admitted conversations with Jones, Wall, and Floyd.
She said that she told them "if they had any information
[regarding the Union] that they thought [she] needed that
they could bring it to [her]."
On March 13, 1974, a hearing was conducted on the
Union's petition for an election. Jones and Wall appeared as
witnesses for the Union. Bates was present.
On the next day, March 14, 1974, Floyd was called again
to Bates ' office. Bates said , "I knew all along you were in-
volved in the union because you were the first one they asked
for as a witness." Floyd answered that she had never met with
a union representative but that she had overheard Linda
Roundtree and Lulu McPherson mention the word "Union."
During the conversation Bates mentioned that Wall and
Jones had testified at the hearing. Thereafter Bates' attitude
toward Floyd and Wall cooled.
2. While it is apparent that Bates was of the opinion that
Floyd, Wall, and Jones were supervisors within the meaning
of the Act, such circumstance presents no valid defense
against alleged 8(a)(1) violations since, as "employees,"
Floyd, Wall, and Jones were protected by the provisions of
Section 7 of the Act regardless of their Employer's opinion
as to their supervisory status. Thus it is found that the Re-
spondent violated Section 8(a)(1) of the Act by its interroga-
tions of Wall, Floyd, and Jones detailed above' and the fol-
lowing threats that: (1) the Respondent would have to close
the Charleston office if the Union prevailed because it was
losing accounts (see Marshfield Steel Company v. N.L.R.B.,
324 F.2d 333, 336 (C.A. 8, 1963); Masdon Industries, Inc.,
212 NLRB 505 (1974), and (2) there would be a strike and
some of the girls would have to starve or go on food stamps
if the Union came in the office. The Respondent also violated
Section 8(a)(1) of the Act by Bates' solicitations of employees
5 NLRB v Super Toys, Inc, 458 F.2d 180 (CA 9, 1972); Hendel
Manufacturing Company, Incorporated, 197 NLRB 1093 (1972) -
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to inform her concerning union activities of other employees.
Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754, 759 (C.A. 2,
1963).
B. The Discharge of Katherine Ann Wall
1. The facts
Katherine Ann Wall was hired as an operator on January
31, 1972, and was promoted to supervisor operator in July
1972. Her job was to operate switchboards for the Respond-
ent who conducted an answering service. The Respondent
operated five switchboards; three (Nos. 1, 2, and 3) were
commercial switchboards. Numbers 2, 3, 4, and 5 were 24-
hour switchboards. Wall was able to operate all of the switch-
boards including a marine telephone. Wall was deemed a
good operator.' She worked 32 hours a week. On Wednes-
day, Thursday, and Friday she worked from 3 p.m. to 11
p.m.; and on Saturday she worked from 7 a.m. to 3 p.m.
Wall was allegedly discharged on April 3, 1974, "because
she had been negligent in her handling of the Mrs. Thaddeus
Street account" on March 27, 1974. The Street account had
commenced February 1, 1974. Under the Respondent's com-
mitment it had agreed to phone Mrs. Street after 11:15 p.m.
on any day Mrs. Street failed to phone the Respondent or, in
the event Mrs. Street' could not be reached, the Respondent
agreed to phone certain other designated persons.
Upon receiving the Mrs. Thaddeus Street account, Bates
posted on the lower left-hand corner of switchboard No. 3
(the switchboard on which Mrs. Street's call would be re-
ceived) a notice which read, "Mrs. Thaddeus Street, Sr.
723-5965. She will call you on 577-7330 each night between
10 P.M.-11:15 P.M. If you do not hear from her, call her. If
no answer call someone on the card. Make a ticket when she
calls you, or if you have to call her. See card. She is elderly,
and will call you to say she is O.K."8 (Resp. exh. 1(b).) The
card referred to in the notice listed the names of those persons
to be called in event Mrs. Street failed to phone. This instruc-
tion appeared on the card, "If you haven't heard from her by
11:15 P.M. call her Res. Tell her you are the answering
service, and you are checking on her." (Resp. Exh. Ia.) The
card was kept in the "message box,"9 in a "cubbyhole."
According to Wall, she first became aware of the Street
account around the first part of February when she saw the
notice posted on switchboard No. 3. On the other hand Bates
maintained that she had instructed Wall on February 1, 1974,
as to how the account should be handled and said, "Be sure
that you explain this to them [Jewel Downing and Mary
Melton] so they will understand that if Mrs. Street doesn't
call between 10:00 and 11:15 at night, wait no longer than
11:15 before they call her . . . so would you please give the
information to the night operators."10 Bates did not instruct
6 Bates testified, "I was under the impression that she was doing her job
well . . . ."
7 Mrs. Street was an elderly lady who preferred to live alone. The phone
arrangement was for the purpose of assuring her children that all was well
with Mrs. Street.
8 This was the only notice posted in respect to any account.
9 Bates explained what the "message box" was: "it is a box that we keep
the information on each account so that the girls will have it easily at hand
so theykan pull the card out, read it for any instructions and so forth."
Wall that it was her responsibility to assure that the call was
made to Mrs. Street in event she failed to phone by 11:15
p.m."
On March 27, 1974, Wall arrived for duty at 3 p.m. Night
operator Mary Melton arrived at 10 p.m. When Melton com-
menced her tasks four switchboards were operating, Nos. 2,
3, 4, and 5. Both Wall and Melton worked all four boards
although Wall was located at position No. 4 and Melton at
position No. 5. When not busy either of the two answered
switchboard No. 3,12 on which the call from Mrs. Street
would have been received. No call from Mrs. Street was
received by 11 p.m., the time Wall's shift ended, nor was a
call from Mrs. Street received between 11 and 11:15 p.m. or
thereafter. Melton placed no call to Mrs. Street after 11:15
p.m. as directed by the notice. Later it was learned that Mrs.
Street had fallen.
When Mrs. Street phoned or a call was placed to Mrs.
Street the operator was required to fill out a printed form,
referred to as a ticket, and place it in the "dead box.""
Tickets were produced at the trial for the following dates:
March 15, 10:21 p.m.; March 16, 10:42 p.m.; March 17, 11:04
p.m.; March 18, 10:49 p.m.; March 19, 10:49 p.m.; March 22,
10:51 p.m.; March 23, 10:36 p.m.; March 24, 10:57 p.m.;
March 25, 10:47 p.m.; and March 26, 10:45 p.m. Tickets are
missing for March 20, 21, 27, and 28.14
A ticket reveals that on March 28, 1974, at 9:04 p.m. a call
was received from Mrs. Street, Sr., who "wanted" Dr. Wil-
son. The notation on the ticket was "fell." Written on the
back of the ticket was the further notation "paged airport for
Dr. Wilson." Wall had taken this call.
Bates learned on March 29, 1974, at 12:20 p.m. from Timo-
thy S. Street that his mother had fallen on March 27, 1974,
about 10 p.m. and had broken her hip. By letter dated April
1, 1974, Street Brothers, Inc., cancelled its accounts with the
Respondent.
10 Bates testified that she told no other employees about the account and
did not know whether Wall passed the information to the night operators.
11 The following testimony of Bates confirms this conclusion:
Q.... What you told her was just to pass on the contents of the
Street Brothers letter so that she would be able to tell Dalton [sic] and
Melton? So that all three girls would be aware of the fact that if the lady
hadn't called in by 11:15, she was to be called , isn't that true?
A. That is true.
Q. And so you gave her no added responsibility to see that the call
was made.
A. I didn 't feel like I had to since she was a supervisor ... .
Q. She wasn' t supposed to come in on her nights off to see that Jewel
Downing made the call , was she?
A. No, she was not.
Q. And there wasn't any other supervisor there , was there?
A. No, there was not.
12 The switchboards were rectangular in shape and about 3 feet wide.
13 Wall explained what the "dead box" was: "We keep a ... card folder
. on the switchboard positions . . . when you give out a call to one of
the customers, you stamp it out and file it behind their initial, and you can
go back and look in case a doctor calls back for a call and forgets the number,
or to see if somebody has checked in to pick up their calls; you can go back
through and see if the calls have been made or picked up."
14 The record does not disclose why the tickets were not offered for March
20 and 21 . Thus a strong inference obtains that on these dates neither a call
was placed to Mrs. Street nor one received from her.
ANSWERING, INC 691
Wall had never phoned Mrs. Street during the 2 months
the account had been in effect. During this period Wall had
serviced around eight calls from Mrs. Street. Consequently
she finished her shift many times without having answered a
call from Mrs. Street. Whether Melton or Jewel Downing, the
other night operator,15 had received a call before Wall left
would have come to Wall's knowledge only if she had over-
heard the call, checked the dead box, or either operator had
informed her of the call. Likewise, if Melton or Downing had
not received Mrs. Street's call on the days Wall worked, their
information in regard to its receipt would have been gained
either from overhearing the call, Wall's communication to
them, or the dead box.
It appears from the credited record that if the night opera-
tor had not learned of a call from Mrs. Street it was her
responsibility, after 11:15 p.m., to check the dead box in
which the Street ticket would have been placed in order to
ascertain whether Mrs. Street had phoned. Supervisory oper-
ators were generally not on duty at 11.15 p.m.; Wall left at
11 p.m. and Jones at 10 p.m. According to Bates, Jones, who
worked the 4 p.m. to 10 p.m. shift when Wall was off duty,
had not been specifically instructed in regard to the Street
account; nor had she been directed to ascertain that either
Melton or Downing contacted Mrs. Street on the nights when
she worked 16 Neither had such a direction specifically been
given to Wall. Thus it is clear that on March 27, 1974, it was
not Wall's but Melton's responsibility to check the dead box
and make sure that contact had been made with Mrs Street.
Moreover, according to Wall, on at least one occasion Melton
had phoned Mrs. Street after 12 a.m. "when she couldn't find
a check-in ticket."" On the nights Melton worked she was
in "charge" after 11 p.m. "because she was there by herself."
Wall's responsibilities ended at 11 p.m.
At approximately 3:15 p.m. on March 29, 1974, Bates
asked Wall whether she had talked to Mrs. Street on Wednes-
day night, March 27, 1974. Upon receiving a negative answer
Bates asked her why she had not made a call. Wall answered,
"Well, I leave at 11:00 o'clock." Wall suggested that Bates
check with Melton who was on duty after she left, "because
she may have called after [she] left." Bates responded that she
was "afraid that she was going to hear from Mr. Street's
attorney."
On the afternoon of April 1, 1974, Bates phoned Wall and
asked her if she would work from 4 to 10 p.m.1e Wall de-
clined.
On April 3, 1974, about 3:15 p.m. Bates summoned Wall
to her office and informed her that "she was going to have
to let her go because of negligence on [her] part regarding the
Street case." Wall responded, "I have only one thing to say,
how can you fire me for this when I leave at 11:00? And the
lady has until 11:15 to check in." Bates replied, "Well you are
the night supervisor and you should have called them." Bates
15 Jewel Downing was the night operator on those nights when Melton
was not on duty Melton and Wall worked together only on Wednesday
nights
16 Jones worked on Saturday , Sunday, Monday, and Tuesday until 10 p in
17 This testimony would indicate that Melton was familiar with the proce-
dure
18 At this point it would appear that Bates had not considered that Wall's
conduct was of such a negligent and irresponsible character as to render her
an undesirable employee
did not inquire of Melton whether Wall on the night of March
27 had reminded her to call Mrs Street
Prior to Wall's discharge Bates phoned her supervisors,
Vice President Bowman and Vice President McNamara, and
informed them in regard to the Street affair. Bates made no
specific recommendation in regard to the matter.19 Accord-
ing to Bates, the final decision came on the advice of the
Respondent's counsel, Pederson.20
According to Bates when she inquired of Melton about the
Street incident she said that she "got busy and she
forgot. 1121
As to Wall's responsibility Bates testified, "She should
have either made an attempt to call Mrs. Street before she left,
or she should have made sure that Mary Melton was going
to call." Bates made no inquiry of Melton as to whether Wall
had instructed her to call Mrs. Street. Bates had never warned
Wall that if she failed to phone Mrs. Street she would be
discharged Bates had never talked to Melton or Jewel Down-
ing, the only two operators ever on duty after 11 p.m., about
the Street account; not did she check to ascertain whether
they had been instructed as to the account. Downing received
extra pay because she worked without a supervisor after 11
p.m. Melton did not.
As noted, the Decision and Direction of Election was is-
sued on March 20, 1974. In the decision supervisor operators
were held not to be supervisors within the meaning of the Act.
The election followed on April 15, 1974
Bates and the Respondent did not want a union at Answer-
ing, Inc. In a letter signed by Bates, in which were contained
reasons for the Respondent's employees' rejecting the Union,
were also included as the last paragraph these words.
We do not want a Union and it is our sincere and
honest belief that you do not need a union to continue
to enjoy the employment benefits you now have. We do
not believe that most of you want to give up your free-
dom to speak for yourselves, or to surrender your in-
dividual rights to any union outsider. We also believe
that it is very unlikely that a union would contribute in
any way to your job opportunity, challenge or satisfac-
tion. [G.C. Exh. 9]
2 Conclusions and reasons therefor
The charges of negligence which were offered in support of
Wall's discharge were predicated, as explained by Bates, on
Wall's failure to make "an attempt to call Mrs. Street before
she left" and her failure to make "sure that Mary Melton was
going to call Mrs. Street." As to the first charge of negligence
(Wall's failure to call Mrs. Street) it is preposterous and
unfounded since the call to Mrs. Street was not required to
have been placed until after 11.15 p.m., at least 15 minutes
after Wall was off duty. Even Bates agreed that Mrs. Street
"still had 15 minutes to call" after Wall left
19 Bates testified " I talked to Mr Pedersen , and Mrs Bowman, and Mr
McNamara about it, and they said that it was all right, I could go ahead, I
didn't remember the exact conversation "
20 Bates testified "Well, i guess it [the final decision for discharge] came
on the advice of Mr Pederson "
21 Bates indicated that Wall also said , " I got busy and I forgot " Bates on
this point is discredited
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the latter charge the credited record establishes that
Wall was not given the responsibility to have "made sure that
Mary Melton was going to call." Not only does this follow
from the credited testimony of Wall but from other facts
including Bates' testimony. In this respect it seems highly
unlikely and unnatural that Wall should have had imposed
upon her the duty, as a supervisor operator, to make "sure"
that Melton called Mrs. Street on Wednesday nights, when
Supervisor Operator Jones was not given a like responsibility
to make "sure" Melton phoned Mrs. Street on the other
nights Melton or Downing worked when Wall was off duty.
It is more reasonable to conclude that Bates relied upon the
notice to apprise the night operator on duty as well as to
dictate her responsibility in respect to the Street account.
Bates tended to agree for she testified that Wall "wasn't
supposed to come in on her nights off to see that Jewel
Downing made the call, . . . [b]ut [she] knew that it would
be handled by Jewel and Mary. (I felt sure it would) . . .
[w]hen [Wall] wasn't there." That Bates did not believe that
it was Wall's responsibility to make "sure" that Melton
phoned Mrs. Street is buttressed by the fact that as late as
April 1, Bates showed no intention to fire Wall, for on that
date she asked her to come in to work. It was not until after
Bates conferred with her superiors, and without her recom-
mendations, that Wall was given the ax. Indeed, while Wall
was allegedly fired for failure to make "sure" that Melton
called Mrs. Street, Bates conducted no inquiry nor did she
ascertain prior to Wall's discharge or actually possess knowl-
edge that Wall had been wanting in this respect. Thus it is
seriously doubted whether Bates really believed there were
valid grounds for Wall's discharge. It is found that there were
none and that Wall's discharge was pretextual and dis-
criminatorily motivated. The inference of discriminatory
motivation "is sustained and buttressed by the fact that the
[explanation offered by the employer] failed to stand under
scrutiny." N..L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275,
278 (C.A. 5, 1962); N.L.R.B. v. Thomas W. Dant, Robert E.
Dant, et al., d/b/a Dant & Russell, Ltd., 207 F.2d 165, 167
(C.A. 9, 1953).
Additionally Wall was discharged during a union election
campaign when the effect of her discharge undoubtedly
caused strong discouragement of union affection. Moreover,
Wall's discharge gratified the Respondent' s union
animus.22 In this respect it was deliberate.
"Illegal motive has been held supported by a combination
of factors, such as `coincidence in union activity and
discharged3 . . general bias and hostility toward the union,
. . . variance from the employer's "normal employment
routine"24 . . . and an implausible explanation by the em-
ployer for its action'. . . ." McGraw-Edison Company v.
22 "[E]very equivocal act that was done may be properly viewed in the
light of the respondent's animus toward the effort to organize its men."
N.L.R.B. v. Houston and North Texas Motor Freight Lines, Inc., 193 F.2d
394, 398 (C.A. 5, 1951), cert. denied 343 U.S. 934 (1952).
23 "[W]here the discharge in question involves the 'key' employee in an
organizational drive, it may supply shape and substance to otherwise equivo-
cal circumstances." N.L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 169
(C.A. 1, 1962).
24 Here, unlike the usual case, the Street incident was submitted by Bates
to two vice presidents and the Respondent's counsel for a decision on Wall's
alleged misconduct.
N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). All these factors
are present in the instant case.
"[T]he `real motive' of the employer in an alleged 8(a)(3)
violation is decisive . . . ... N.L.R.B. v. Brown et al., d/b/a
Brown Food Store, et al., 380 U.S. 278, 287 ( 1965). See also
Local 357, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America [Los Angeles-
Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675 (1961).
Thus, on the basis of the record as a whole , it is concluded
and found that the "real motive" for the Respondent's dis-
charge of Wall, a known union partisan '21 was to discourage
membership in a labor organization and to interfere with the
right of employees "to self organization and to form, join, or
assist labor organization."
Accordingly, it is found that by the discharge of Katherine
Ann Wall on April 3, 1973, the Respondent violated Section
8(a)(3) and (1) of the Act. See Grede Foundries, Inc., 211
NLRB 710 (1974).
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effectu-
ate the purposes of the Act for jurisdiction to be exercised
herein.
3. By interfering with, restraining , and coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Katherine Ann Wall on April
3, 1974, the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It having been
found that the Respondent unlawfully discharged Katherine
Ann Wall and thereby violated Section 8(a)(3) and (1) of the
Act, it is recommended that the Respondent remedy such
unlawful conduct. It is recommended in accordance with
Board policy26 that the Respondent offer Katherine Ann
Wall immediate and full reinstatement to her former position
or, if such position no longer exists, to a substantially equiva-
lent position without prejudice to her seniority or other rights
and privileges and make her whole for any loss of earnings
she may have suffered as a result of the discrimination against
her by payment to her of a sum of money equal to the amount
she would have earned from the date of her discriminatory
discharge to the date of an offer of reinstatement, less net
earnings during said period, to be computed on a quarterly
25 Wall's union connections became known to Bates when Wall testified
on behalf of the Union.
26 See The Rushton Company, 158 NLRB 1730, 1731 (1966).
ANSWERING, INC 693
basis in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and including interest
at the rate of 6 percent per annum in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c)-of the Act, I hereby issue
the following recommended.
ORDER27
Respondent, Answering, Inc., Charleston, South Carolina,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Communications Work-
ers of America, AFL-CIO, or any other labor organization,
by unlawfully discriminatorily discharging any of its em-
ployees or discriminating in any other manner with respect
to their hire or tenure of employment or any term or condi-
tion of employment in violation of Section 8(a)(3) of the Act.
(b) Unlawfully interrogating its employees regarding their
union or concerted activities.
(c) Unlawfully threatening that, if the Union prevailed, it
would close its Charleston, South Carolina, office because it
was losing accounts, and there would be a strike and some
girls would have to starve or go on food stamps.
(d) Unlawfully soliciting employees to inform Respondent
concerning the union activities of other employees.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer Katherine Ann Wall immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges, and make
her whole for any loss of pay that she may have suffered by
reason of the Respondent's discrimination against her in ac-
cordance with the recommendations set forth in the section
of this Decision entitled "Recommended Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Charleston, South Carolina, establishment
copies of the attached notice marked "Appendix."" Copies
27 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
28 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
of said notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent's represen-
tative, shall be posted by.it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were permitted to
introduce testimony and other evidence, it was decided
that we violated the National Labor Relations Act, as
amended, by discharging Katherine Ann Wall in viola-
tion of Section 8(a)(1) and (3) of said Act.
WE WILL offer Katherine Ann Wall her job or, if
her job no longer exists, a substantially equivalent
job.
WE WILL restore her seniority and pay her the
backpay she lost because we discharged her.
WE WILL NOT unlawfully discharge any of our
employees for the same reason we discharged em-
ployee Katherine Ann Wall.
WE WILL NOT unlawfully interrogate our em-
ployees about their union or concerted activities.
WE WILL NOT threaten that we will close our
Charleston, South Carolina, office because it is
losing accounts and that there will be a strike and
some girls will starve or have to go on food stamps
if the Union exercises lawful bargaining rights.
WE WILL NOT unlawfully solicit employees to in-
form us concerning the union activities of other
employees.
All our employees are free to remain, or refrain from
becoming or remaining, members of a labor organiza-
tion.
ANSWERING, INC