Federal Pacific Electric Co.

National Labor Relations Board - Board Decisions

Nov 26, 1969

179 N.L.R.B. 734 (N.L.R.B. 1969)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal ' PacUic ' Electric Company and
Communicatfoes `Workers of America , AFL-CIO.
Case 10-CA-7630
November 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On July. 29, 1969, Trial Examiner William F.
Scharnikow issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent with
our Decision herein.
The -complaint alleges that the Respondent
violated Section 8(a)(3) and (1) of the Act by
discharging Harold J. Davis. The Trial Examiner
found that Respondent discharged Davis because he
made misstatements to management, and hence,
that it did not engage in the unfair labor practices
alleged in the complaint. We do not agree.
Davis was hired by Respondent on September 19,
1966, and was employed as a spot welder in the
brake-weld department when he was discharged on
November 19, 1968.' Davis joined the Union during
an organizational drive in the summer of 1967 and
was an active member. He regularly attended union
meetings and openly told other employees what had
taken place. Davis was a good worker. The events
surrounding his discharge, which are more fully set
forth in the Trial Examiner's Decision, are
summarized below.
On Friday, November 15, employees in the
brake-weld department asked to meet with top
management to protest the appointment of White as
supervisor. Because top management was not
available, Superintendent Christianson met briefly
with the employees. Davis commented at the
'Unless otherwise indicated , all dates are 1968
meeting that group leader Rollins, whom the
employees favored, was not made a supervisor
because he was too valuable as an employee.2 After
the meeting, some of the employees discussed
incentive pay problems and asked for their
paychecks so they could engage in a walkout. They
could not get their checks, but a meeting with plant
manager Salsman was set for Monday morning.
Salsman, who was admittedly concerned about
the unrest in the brake-weld department, talked to
the employees on Monday, November 18. He
explained why he had promoted White and that
appointing a supervisor was a prerogative of
management. He said that either the employees
were with him and would go to work or they were
not with him and could leave. Immediately
thereafter, and in the course of the meeting, Davis
went to group leader Rollins and got permission to
see a doctor about an eye injury he had received
Friday evening. He then left the premises. The
meeting continued another 20 minutes, during which
time the employees complained about incentive pay
problems. Immediately after the meeting, Salsman
asked Rollins why Davis had left and was told that
Davis went to a doctor. Salsman asked Rollins to
find out which doctor.
When Davis returned to work on Tuesday,
November 19, Salsman had Davis' absence
investigated. Salsman testified that usually absences
are checked by lower level management, but he
himself investigated Davis' absence because there
might be a workmen's compensation problem and
he was concerned about Davis' leaving the meeting.
The facts surrounding Davis' absence and the
ensuing investigation show that after leaving the
meeting and punching out, Davis went to the office
of Dr. Moses. As Dr. Moses was not in, Davis, after
getting some "medicine" from his mother, went
home. That night, Davis' wife, Willa Benie Davis,
went to Partin's drug store and purchased eye
medication for her husband.
However, the next morning, after reporting for
work, Davis, in response to Salsman's questions,
stated that he had gone to see Dr. Moses. When
Salsman later informed Davis that he discovered
this was untrue, Davis said the Doctor was not
available so he had got some medicine from Partin's
drug store. Druggist Partin was contacted and stated
that he had no record of dispensing medicine to
Davis. After this, Rollins told Davis that
Respondent knew he had not gone to the druggist,
and that they wanted the truth because Salsman
thought he had left "on a walkout." Davis said that
his wife had gone to the drug store for him. Davis
then went to see Salsman concerning Rollins'
statement that he was suspected of leaving the plant
"on a walkout." Salsman conceded having asked
'Davis testified that his comments were directed to the other employees,
not to Christianson, but that Christianson was able to hear them Davis'
testimony that he spoke at the meeting is uncontroverted Thus, we find,
contrary to the Trial Examiner, that Davis spoke at the meeting
179 NLRB No. 127
FEDERAL PACIFIC ELECTRIC COMPANY
Davis why he walked out of the meeting and, "why
is there unrest in the department." Davis admitted
that he made mistakes in his statements concerning
Dr. Moses, but that his wife had in fact got the
medicine from Partin. Salsman said that if any part
of this story were true, Davis would not be
discharged. Salsman then telephoned the drug store,
and was informed by the druggist that he did not
know Mrs. Davis, whereupon Davis then asked if
Benie had been in. Salsman , listening on an
extension, then asked who Benie was. There was no
response and the conversation apparently ended at
that point. At the end of the work day Salsman
discharged Davis allegedly because of his
"misrepresentations" in explaining his leaving the
meeting of September 18.
During the following week Salsman was asked by
the president of the Local Union, in the company of
two other employees, as to the reasons for Davis'
discharge. Among the reasons, Salsman referred to
the misstatements and the fact that he walked out of
the meeting. Salsman gave the same reasons on two
other occasions, when he was asked by the vice
president of the Local and by another employee.
In recommending that the complaint be dismissed
the Trial Examiner found that the discharge was not
unlawfully motivated, but based upon the
misrepresentations made by Davis in explaining his
whereabouts on September 18. We disagree.
Davis, in his 2 years of employment, was
concededly a good worker and does not appear to
have engaged previously in any misconduct. There is
no dispute as to his having obtained permission
from an authorized representative of Respondent
before leaving the meeting of November 18.
Although Davis' absence was concededly justified,
and the reasons underlying it were fully known,
Respondent claims that he was discharged for
misreporting his whereabouts that day. In our
opinion, Respondent' s action , through Plant
Manager Salsman;, in investigating and then
discharging Davis ' was 'not for' the reasons
Respondent assigned, but was precipitated by a
desire to deal 'firmly with unrest in the weld
department.
Salsman was admittedly disturbed over the
employment-related demands made ,by Davis' fellow
employees in the weld department. Davis' presence
at both meetings, culminated by his seemingly
abrupt departure from the second meeting following
Salsman 's statement that those who • believed in
management were "an asset" and were wanted by
the Respondent but others could "leave," identified
him with the dissident, group.
The pretextual nature of the reasons assigned by
the Respondent for Davis' discharge is amply shown
by the following. On November 19, after Salsman
was informed that Davis _ left the meeting with
Rollins' permission , Salsman refused to close the
matter. Instead he conducted an investigation,
though such matters were normally left to lower
735
levels of management. Although Salsman discovered
that Davis misrepresented the visit to Dr. Moses -
a discrepancy that appears minor considering the
fact that the absence was excused - his final
investigation of the statement concerning the drug
store visit by Davis' wife was more consistent with a
preconceived intention to discharge, than discovery
of the truth. During that last phone call, the name
"Benie" was mentioned in a conversational context
that reasonably would lead anyone to believe that
she was the wife of Davis. Yet, Salsman asked who
Benie was, and without getting a response, allowed
the phone conversation to end abruptly. Salsman
made no further effort to determine Benie's identity
or whether Davis was in fact telling the truth at that
time. It is implausible that Respondent, before
discharging an employee of substantial tenure and
with a good work history, would not press for
clarification of this incident. But, in any event, it is
our opinion that the key to Respondent's motivation
in this case lies in Salsman's repeatedly accusing
Davis of having walked out of the November 18
meeting, his questioning of Davis as to the "unrest",
and his postdischarge statements to three employees
that Davis, in part, was discharged because he
walked out of the meeting. These latter statements,
made on three separate' occasions, were obviously
calculated to foster the belief among employees that
the discharge was related to their demands
concerning employment conditions. These factors,
together with the threat of a walkout by weld
department employees, Respondent's opposition to
their demands, and the timing of the discharge in
relation to Salsman's statement demonstrating that
employees who opposed management were
unwanted, renders the conclusion inescapable, that
Davis was discharged as an object lesson to others
in the weld department and a step in Respondent's
effort to thwart employees from pressing their
demands. Accordingly, we find that Respondent
thereby violated Section 8(a)(1) of the Act.3 As we
have found-that Davis' discharge violated the Act,
we shall order that Respondent cease and desist
therefrom and offer Davis full reinstatement.
CONCLUSIONS OF LAW
1. Federal Pacific Electric Company, a New
Jersey corporation doing business in Georgia, is an
employer engaged in commerce within the meaning
of the Act.4
2. By discharging employee Harold J. Davis on
November 19, 1968, in order to discourage
employees from engaging in protected activity,
Respondent has interfered with, - restrained, and
coerced employees in the exercise of rights
'As the remedy will not be affected in any event, we find it unnecessary
to and do not pass upon the allegation that said discharge was also
violative of Sec 8(a)(3).
'At the hearing the complaint was amended to state, and we find, that
Respondent is a New Jersey Corporation doing business in Georgia
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Federal Pacific Electric Company, Vidalia, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging concerted activities of employees
within the protection of Section 7 of the Act by
discharging, laying off, or otherwise discriminating
against any employee in regard to his hire and
tenure of employment or any term or condition of
employment.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act to engage in
concerted activities for their mutual aid and
protection or to refrain from such activity.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Harold J. Davis immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make Harold J. Davis whole for any loss of
pay he may have suffered by reason of the
Respondent's discrimination against him by
payment to him of a sum of money equal to that
which he normally would have earned as wages from
the date of the discrimination to the date of
Respond`ent's offer of reinstatement, less his net
earnings during said period , in accordance with the
formula prescribed in F. W. Woolworth Company,
90 NLRB 289, with interest thereon at the rate of 6
percent per annum , as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
(c) Notify Harold J. Davis if presently serving in
the Armed Forces of the United States of his 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.
(d) Preserve and, upon request, make available to
the Board and its agents , for examination and
copying, all payroll records, social security payment
records, time cards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its plant in Vidalia, Georgia, copies of
the attached notice marked "Appendix."' Copies of
such notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
an authorized representative of the Respondent,
shall be posted 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.
MEMBER ZAGORIA, dissenting:
I disagree with the majority's interpretation of
Respondent's conduct, and would affirm the Trial
Examiner's dismissal of the complaint.
'in the event this Order is enforced by a judgment of the 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 "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
After a Trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, Federal Pacific Electric Company, violated the
National Labor Relations Act. The Board therefore
ordered us to post this notice.
The Act gives all employees these rights:
To engage in self organization,
To form, help or join unions,
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
The National Labor Relations Board found that we
fired Harold J. Davis because we wanted to discourage
you in the exercise of your rights as employees. The
Board ruled that our firing him for this reason
interfered with your rights and violated the National
Labor Relations Act.
WE WILL therefore offer to give him back his job
with full seniority, and all other rights and privileges.
WE WILL also make up any pay he lost, with 6
percent interest.
If Harold J. Davis is presently serving in the Armed
Forces of the United States, we will notify him that he
will be reemployed if he applies after his discharge.
FEDERAL PACIFIC
ELECTRIC COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
FEDERAL PACIFIC ELECTRIC COMPANY
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
730 Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The
complaint alleges, but the answer of the Respondent
denies, that the Respondent committed unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended, 29 U.S.C., Sec 151, et
seq. (herein called the Act), by discharging employee
Harold J. Davis on November 19, 1968, and thereafter
failing and refusing to reinstate him, because of his union
membership and concerted activities.'
Pursuant to notice, a hearing was held at Vidalia,
Georgia, on April 15, 1969, before me The General
Counsel and the Respondent appeared by counsel and
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence
upon the issues in the case. Since the hearing, briefs have
been received from the General Counsel and from counsel
for the Respondent and have been duly considered.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Federal Pacific Electric Company, is
a Georgia corporation engaged in the manufacture and
sale of electrical equipment at a plant in Vidalia, Georgia.
During the past calendar year, the Respondent sold and
shipped finished products of a value exceeding $50,000
directly to customers located outside the State of Georgia
I conclude and find that the Respondent is, and has been,
an employer engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act
to entertain the jurisdiction in the present case.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO
(herein called the Union ), is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence and the Facts
Harold J. Davis was a spot welder in the Respondent's
employ from the time of his hire in September 1966 until
his discharge on November 19, 1968. He joined the Union
sometime before a Board representation election was
conducted in July 1967, attended Union meetings, and
informed nonattending employees of what had happened
at these meetings. The result of the representation election
'The original charge was filed by the Union and served on the
Respondent on January 21, 1969 An amended charge was filed on
February 13, 1969 and served upon the Respondent on February 14, 1969
The complaint was issued by the Acting Regional Director and served
upon the Respondent on February 28, 1969 The Respondent's answer was
filed on March 10, 1969
737
is not shown by the record. Nor does it appear from the
record that the Respondent knew anything of Davis'
Union membership or concerted activity except possibly
through his attendance with other employees at two
meetings at the plant first with Superintendent Arthur
Christianson on the afternoon of Friday, November 15,
1968, and then on Monday morning, November 18, 1968,
with Plant Manager Robert Salsman, in which the other
employees (but not Davis) spoke in protest against the
Respondent's promotion of Elmer White to a foreman's
job rather than Wallstin (Walt) Rollins, a group leader
whom the employees favored.
President Robert Fuller of the Union's Local had
requested Group Leader Rollins to arrange a meeting with
General Manager Deas on Friday, the 15th, but, since
both Deas and Plant Manager Salsman were not at the
plant that day, Superintendent Christianson met with the
men that afternoon. Apparently the men were not satisfied
with what Christianson told them concerning the reasons
the Respondent had promoted White instead of Rollins,
and after the meeting President Fuller asked Rollins to
get them their week's paychecks so that they could go
home before the end of the afternoon and come back on
Monday when Salsman or Deas could speak to them.
Rollins came back to Fuller and told him he could not get
the men's checks but that they could meet with Plant
Manager Salsman on Monday morning.
Davis had not spoken during the short meeting with
Christianson that Friday afternoon. But, on the urging of
another employee, he did attend a gathering of three or
four employers later in the afternoon and listened to their
complaint that they had not gotten a 10-cent raise It does
not appear that the Respondent knew either of this
gathering or the complaint discussed by the men about
their not getting the raise Moreover, Davis, according to
his testimony, was not concerned about the matter since
he had in fact received the raise
On Saturday, November 16, Superintendent
Christianson told Plant Manager Salsman that he had had
a meeting with the employees on the previous day, that
"there was a lot of unrest in the weld department," that a
number of the men (two of whom he mentioned by name
without including Davis) had requested their checks saying
they would come back on Monday to see Salsman, and
that Christianson had "put [them] off with the promise
that [Salsman] would meet with them on Monday at
8:30." Salsman told Christianson to go ahead and set up
the meeting for him.
In the meantime, on Friday night, November 15, Davis
injured his eye in a basketball game. By Monday
morning, his discomfort was so great that he had decided
by the time he reported for work at 8 a.m to go to see a
doctor at about 9 o'clock and so informed fellow
employees but not Group Leader Rollins, nor Manager
Salsman, nor any of the Respondent's other supervisors
Davis came to work at 8 a.m on Monday, the 18th,
wearing dark glasses to cover and protect his injured eye.
At 8:30 he was in the group of about 30 employees
including Local President Fuller and Group Leader
Rollins, when they met with Salsman to find out why
White instead of Rollins had been made a foreman.
Salsman said first that it was "the prerogative of
management" to select its foremen but that although
White had been its initial selection because of the breadth
of his experience, Rollins was also being considered for an
additional foreman's job. Salsman then said something to
the effect that if the employees believed "in
management," they were "an asset" and were "wanted"
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent , but that otherwise "you can leave."
Finally, after a lull in which the men asked him questions,
Saisman told them-he had been plant manager only for
about 2 months and "was working very hard to resolve . .
. problems" which had arisen in connection with an
incentive pay system and a fair flow of materials to the
men, and also in connection with the development of fair
criteria for the granting of merit raises.
The meeting had begun `at 8:30 a.m. and ended between
9:20 and 9:30 a.m. A few minutes after 9 o'clock,
however, and just after Salsman had said that the men
"could leave" if they did not "believe in management,"
Salsman saw Davis (who had said nothing) go over and
speak to Group Leader Rollins, and then leave the
cafeteria where the meeting was being held.
Davis had in fact told Rollins that his eye was
bothering him and he wanted to go to a doctor, and
Rollins, whose authority in such cases was conceded
during the hearing, had given him permission to leave the
plant. Accordingly, Davis punched the timeclock, and
went to the office of a Doctor Moses in Uvalda where
Davis himself lived. But Doctor Moses was not in his
office and so Davis, after getting some "medicine" from
his mother, went home. That night, Davis' wife, Willa
Benie Davis went to the drugstore of T. R. Partin in
Uvalda and got some eye medication for her husband. On
the next morning, Tuesday, November 19, Davis returned
to work at the plant.
In the meantime, after Salsman had finished speaking
with the employees on Monday morning, November 18,
he asked Rollins why Davis had left. Rollins replied that
Davis had an eye injury and had a doctor's appointment
and that Rollins had-therefore excused him. According to
Salsman , he was somewhat relieved because he had
thought Davis might have left in reaction to Salsman's
remarks. But he also thought there might be a workmen's
compensation problem and therefore asked Rollins to find
out the name of the doctor when Davis came back to
work.
When Davis did report to work the following day,
Tuesday, November 19, Rollins asked him for the doctor's
name and Davis, according to his testimony as well as
Rollins', replied, "I went to Doctor Moses." Starting with
this initial misleading information from Davis, it took
Rollins, Foreman White, and Manager Salsman much of
the rest of the day to find out just what Davis had
actually done to treat his eye injury. For, as they made a
succession of telephone inquiries first of Doctor Moses
and then of Druggist Partin and came back to Davis for
an explanation of discrepancies, Davis made additional
statements to them that were equally puzzling and
misleading . What could have started and ended with a
simple statement from Davis as to what he had actually
done, became a time -consuming , senseless farce which
obviously nettled Salsman , interrupted his "hectic"
workday and finally caused him to order Davis' discharge
at the end of the day. Moreover, the testimony of the
witnesses concerning the details, the number and sequence
of the conversations was so confusing and disjointed that
only a skeleton of the 'facts is clear and a discussion of the
many inconsistencies in'the rest of the testimony (although
I have considered them)'would be practically impossible
and certainly unprofitable. Salsman himself appeared to
be a generally credible witness although even he was at
times confused in details. But, in my opinion, Davis was
less reliable in his recollection and showed a tendency to
draw unwarranted conclusions and present them as the
substance of the material events and statements in the
case. In view of the General Counsel's burden of proof, I
have resolved doubts in favor of Salsman's general
testimony and have based supporting and consistent
findings upon the testimony of other witnesses only to the
extent that such evidence seems clear.
The first inquiry made by Salsman in his concern about
a possible workmen's compensation claim was in a
telephone call to Doctor Moses who informed him that
Davis had not visited him for treatment. When Rollins on
Salsman's request, told Davis of this, and asked why he
had said he had gone to Doctor Moses, Davis answered
merely that the doctor was not in and so he had gotten
some medicine from Partin's Drugstore in Uvalda.
Rollins reported this to Manager Salsman. Foreman
White, who was with Salsman at the time and also lived
in Uvalda, immediately telephoned Druggist Partin whom
he knew. White asked Partin whether Davis had gotten
medication for his eye the previous day After checking
his prescriptions because he did not know Davis, Partin
told White he had no record of having dispensed any
medicine to Davis. White reported this to Salsman and at
the same time also told Rollins.
Rollins went out into the plant and told Davis that they
knew he had not gone to the druggist and that "they
wanted the truth," because Salsman thought he had left
"on a walkout." Davis said that "my wife is the one that
went out and got the medicine from the druggist." Rollins
thereupon reported this to Foreman White and White
made a second call to Druggist Partin and asked if Davis'
wife had gotten any medicine for her husband Partin
knew Willa Benie but did not know she was Mrs Davis
Accordingly, Partin told White that so far as he knew,
Davis' wife had not gotten any medicine for her husband.'
After having told Group Leader Rollins that it was his
wife who had gone to the druggist for him, Davis went to
the office to speak to Manager Salsman. Foreman White
was with Salsman at the time. Davis referred to Rollins'
statement that he was suspected of leaving the plant "on a
walkout." In his testimony, Salsman admitted asking
Davis "Why did you walk out of the meeting?" and "Why
is there unrest in the department?" But I credit his
testimony, contrary to the implications of Davis'
testimony, that he did not accuse Davis of appearing to
lead a plant "walkout" but merely of "walking out of the
meeting "
In the rest of the conversation, Salsman pressed Davis
for his reasons in making two misstatements to Rollins by
claiming first that he had seen Doctor Moses for
treatment and then that he had gone to the drugstore for
medication. Davis admitted that he had made "mistakes"
in making such statements but that he had said "he went
to the doctor because . . . when I was out sick I wanted
to have a pretty good excuse"' and that his wife had in
fact gotten him medicine from the drugstore. Salsman
then said "if [Davis'] story was true that [his] wife did go
[to the druggist]," he would not be discharged. At Davis'
suggestion, Salsman thereupon put a telephone call
through to Druggist Partin and had Davis-speak to Partin,
with Salsman listening on an extension. Davis, Partin, and
Salsman testified concerning the substance of this
conversation and what Salsman may have heard or
understood from it.
This finding is based upon White 's testimony and Salsman's testimony
that White later reported such a telephone call and Partin 's answer Partin
testified that he did not recall any such second telephone inquiry from
White
'This particular quotation is from the testimony of Davis himself
FEDERAL PACIFIC ELECTRIC COMPANY
According to Davis and Partin, Davis asked Partin
whether " Benie" had gotten any medicine for Davis and
Partin said he remembered she had From Davis' version,
it would appear that he did not identify " Benie" as his
wife but that, when Salsman made his presence known on
the extension, Partin told Salsman that although he knew
both Davis and Benie he did not know they were married.
According to Partin, however, Davis had said " Benie"
was his wife, but when then told by Salsman he was on
the line and had overheard the conversation, Salsman had
nevertheless still asked, "Who is Benie9"
Salsman 's version so far as it bears upon the critical
point in the conversation was quite different. He testified
that Davis asked Partin "Did my wife come into the
store"; that Partin said , "I don't know your wife"; that
Davis then asked, "Well, did Benie come into the store?";
that, after a pause, Partin said "Is someone else listening
on the line?"; that Davis told him Salsman was on the line
and Salsman then asked, "Well, who is Benie?" and that
there was no response. Although the matter is not free
from doubt, upon consideration of these three versions, I
credit that of Salsman and further credit his testimony
that, because of Partin's failure to answer his specific
question as to Benie, he did not regard the conversation as
substantiating Davis' final statement to him and to Rollins
that his wife had actually gotten medicine for him from
Partin.
Following Davis' telephone conversation with Partin,
Salsman told Davis to go back to work. But later in the
afternoon, Davis saw Salsman again and reopened their
earlier conversation. Davis testified that at the time, he
was at work and Salsman was passing by. But Salsman
testified that Davis came to the office while there were
two or three other people there and the telephone was
ringing and, all in all , it was a "hectic" day during which
"two and a half or three hours" had already been spent in
trying to unravel Davis' statements. I credit Salsman's
testimony to this effect and also his testimony that in
these circumstances he at first rebuffed Davis for coming
to the office again without permission from his
supervisors, i.e., as Salsman rather stuffily expressed it,
without going "through the chain of command" before
coming to him.
As to the rest of this second and last conversation
between the two men on Tuesday, November 19, there
was again the same difference in their versions as to why
Salsman was displeased by Davis' conduct in leaving the
employee-meeting on November 18 and the successive
explanations he had given to the Respondent's supervisors.
Davis testified that he told Salsman, "You accused me of
trying to lead a walkout or something. The position I was
in I couldn't lead no walkout or nothing. I had a sick
mother, children, and two nieces I am taking care of. If I
was going to lead a walkout, I would have stuck with the
guys," and that in response to this, Salsman merely
replied, "You should think," and then walked off. But
Salsman testified, and I credit his testimony, that in both
his conversations with Davis on November 19, "1 said
that he was walking out of my meeting, I didn't accuse
him of a walkout, I said he was walking out of the
meeting."
After this second conversation with Salsman on
Tuesday, November 19, Davis again returned to work.
Against this background, Salsman testified that he decided
to discharge Davis because of his "misrepresentations" in
explaining his leaving the meeting that Salsman was
holding with the employees at the request of Union Local
president on Monday, September 18. Accordingly, at the
739
end of the afternoon, Davis was notified by Group Leader
Rollins on Salsman's instructions, that he was discharged
and he was given his paycheck at 5 o'clock.
On three different occasions in the next week or so,
Salsman was asked first by employee James Mitchell,
then by Mitchell and Local Vice President Charles Day,
and finally by Local President Robert Fuller and Vice
President Day, why he had discharged Davis, but had not
checked on employees Hubert Lumley and Billy Joe
Harville who left work at about noon the same day and
thus several hours after Salsman's meeting with the
employees on Monday, September 18. There is actually
no conflict between the testimony given by these
employees and Salsman's testimony as to the substance of
each of these conversations although the General Counsel
and the Respondent disagree concerning the implications
to be drawn therefrom. Accordingly, upon consideration
not only of Salsman's testimony but also of the consistent
details of the employees' testimony which are summarized
in the margin,' I find as Salsman testified, that in the
course of these conversations Salsman told the inquiring
employees and officials of the Local that "if Davis had
not left that meeting [on September 8] . there would
have been no reason for my having checked" his story and
then discharging him, that Davis was discharged because
of his "misrepresentations," i.e., because "he didn't tell
the truth", that "if any part of his story had been true, I
would have retained him"; and that the two other
employees who left the plant at noon the same day "had
proper excuses. One of them [Hubert Lumley] had to have
a tooth pulled, his jaw was swollen, and the other one
(Billy Joe Harville) had a statement that he had to be in
court" in response to a garnishment order
B. Conclusions
In his brief, the General Counsel argues in substance
that in attending Manager Salsman's meeting with the
employees on September 18 at the request of the Union,
Davis was engaged in a concerted Union activity protected
by the Act, and that Salsman discharged Davis for leaving
this meeting because he believed that Davis was leading or
attempting to lead, or might have triggered, a general
'With respect to the first of these conversations which occurred between
employee Mitchell and Salsman on Wednesday, September 20 (the day
after Davis' discharge ), Mitchell testified that he asked Salsman "why did
he fire [Davis] for telling him a story and didn't check on two more guys
[Lumley and Harville] that left that day," and that Salsman replied that
"if [Davis] had not of left during that meeting [with Salsman], he wouldn't
have checked on him " As to another later conversation with Salsman
when Local Vice President Charles Day and employee Mitchell went
together to the office, Day and Mitchell testified that they again asked
Salsman in the presence of Superintendent Christianson and Foreman
White why Salsman fired Davis and did not even check on the other two
men's leaving the plant the same day According to Mitchell , Salsman said
that "if any part of [Davis 's] story would have been true he would not have
fired him," and Foreman White added that "they checked the drugstore
and nobody did come and get medicine" According to Local Vice
President Day, Salsman said that "had it not been that [Davis] gave them
false information about going to the doctor , he would not have fired him,"
and that when Salsman called the druggist , the druggist did not know Mrs
Davis Furthermore , according to Day, Superintendent Christianson
chimed in, saying that although Davis was a good worker and they did not
want to fire him , he had given " false information " Finally , as to a third
and still later conversation between Salsman and Local President Fuller
and Vice President Day, Day testified that Salsman's explanation of Davis'
discharge "was the same thing over and over again, about [Davis '] leaving
the meeting [giving] false information," and Fuller, too, testified that
Davis told them that "if [Davis] had not got up and walked out of the
meeting, there would have been nothing said about it "
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"walkout " of employees which would also have been a
concerted activity protected by the Act . Because of this
asserted intended interference with the employees ' freedom
to engage in concerted activities , the General Counsel
contends that Salsman ' s discharge of Davis was a
violation of both Section 8(a)(l) and (3) of the Act.
But the facts already found upon the evidence, do not
support the General Counsel ' s contention . Salsman did
not discharge Davis simply because he left Salsman's
meeting with the employees on September 18, nor even
because he left work that day. Nor is there any reason to
believe from the credible evidence and the findings already
made , that he discharged Davis because of Davis' Union
membership , his apparent support of the Union in
attending the meeting with Salsman , his actual or
apparent exercise of any right to engage in or refrain from
engaging in any concerted activity protected by the Act,
or even the possibility that his leaving work during
Salsman ' s meeting with the employees on September 18
might have triggered a protected general "walkout" by the
employees . Instead , as Salsman ' s credited testimony
indicates and I conclude , he discharged Davis because he
was annoyed by having to take time to consider Davis'
senseless misstatements concerning what he had done to
treat his eye injury in his attempt to explain his leaving
work on September 18.
Accordingly, I conclude, contrary to the General
Counsel's complaint that the Respondent did not
discharge Davis because of his Union membership or
support , or because of his engagement in, or the
Respondent 's belief that he had engaged in, any concerted
activities protected by the Act. I therefore recommend
dismissal of the complaint that the Respondent engaged in
any unfair labor practices within the meaning of Sections
8(a)(l) or (3) of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Federal Pacific Electric Company, a Georgia
corporation , is an employer engaged in commerce within
the meaning of the Act.
2. Communications Workers of America, AFL-CIO, is
a labor organization within the meaning of the Act.
3. The Respondent has not engaged in unfair labor
practices within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law , and the entire record in the case, it is
recommended that the complaint herein be dismissed in its
entirety.