Federal Pacific Electric Co.

National Labor Relations Board - Board Decisions

Feb 28, 1972

195 N.L.R.B. 609 (N.L.R.B. 1972)

FEDERAL PACIFIC ELECTRIC COMPANY
Federal Pacific Electric Company and International
Brotherhood of Electrical Workers, AFL-CIO.
Cases 11-CA-4171, 11-CA-4177, and 11-CA-4197
February 28, 1972
DECISION AND ORDER
BY CHAIRMAN AND MEMBERS FANNING AND
KENNEDY
On September 30, 1971, Trial Examiner Benjamin A.
Theeman issued the attached Decision in this proceed-
ing. Thereafter, the 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 Trial
Examiner's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner's rulings,
findings, and conclusions and to adopt his recom-
mended Order, as herein modified.
1. The Trial Examiner found, and we agree, that the
Respondent violated Section 8(a)(1) of the Act by
threatening and interrogating employees, and creating
the impression of surveillance.
2. We also agree with the Trial Examiner's finding
that Respondent discharged employee Walter Lane in
violation of Section 8(a)(3) and (1) of the Act. We find,
however, contrary to the Trial Examiner, for reasons
set forth below, that Respondent did not violate Section
8(a)(3) and (1) by discharging employee Richard Fox.
Richard Fox, a probationary employee, had been
active in the Union. The Respondent knew that Fox
was an active union adherent and in fact some of the
violations of Section 8(a)(1) were directed at him. How-
ever, the record also establishes that Fox received two
valid written warnings on March 6, 1970, for violating
a company rule against solicitation of which he was
well aware, and for making an avoidable on-the-job
mistake which was potentially costly to Respondent.
On the next working day, March 9, Fox became em-
broiled in a controversy over calling a fellow employee
an abusive name. When asked about the incident, Fox
got into an argument with his supervisor, sarcastically
called him "a great god," and in mock gesture, bowed
down to him. It was at this point that Supervisor Ma-
landes reported the incident to Carter, the industrial
relations manager, who then discharged Fox.
In our view, the insubordination manifested by Fox,
when coupled with the written warnings on the previ-
ous working day, and the fact that Fox was a proba-
tionary employee, provided ample justification for his
discharge. While we recognize that Fox was known to
have been active in the Union and that the Respondent
195 NLRB No. 116
609
may well have welcomed the opportunity of dispensing
with his services, neither Fox's activities nor Respond-
ent's attitude toward him justified Fox's misconduct,
which we are convinced was the controlling reason for
his discharge. Accordingly, we find that Fox's dis-
charge was for cause and dismiss the allegation of the
complaint related thereto.
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 Trial Examiner, as modified below, and hereby or-
ders that the Respondent, Federal Pacific Electric
Company, Albermarle, North Carolina, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
1. Delete paragraph 2(a), 2(b), and 2(c) and substi-
tute therefor the following:
"(a) Offer to Walter Lane immediate and full rein-
statement to his former job or, if it no longer exists, to
a substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make
him whole in the manner set forth in the section of this
Decision entitled `The Remedy.'
"(b) Notify immediately the above-named in-
dividual, if presently serving in the Armed Forces of
the United States, of his right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
"(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 under the terms of this Order."
2. Substitute the attached notice for the Trial Ex-
aminer's notice.
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, it has been decided that we, Federal Pacific
Electric Company, have violated the National Labor
Relations Act, and we have been ordered to post this
notice.
The National Labor Relations Act gives you, as em-
ployees, certain rights, including the right to self-
organization; to form, join, or help unions; and to bar-
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain collectively through a representative of your own
choosing. Accordingly , we give you these assurances:
WE WILL NOT try to discourage you from be-
coming or , being a member of International Broth-
erhood of Electrical Workers , AFL-CIO, or any
other union , by discharging any employee or in
any other manner discriminating against our em-
ployees in regard to hire or tenure of employment
or any other term or condition of employment
because of their union membership or activities.
WE WILL NOT threaten any of our employees
with discharge because of their union membership
or activity.
WE WILL NOT create an impression among our
employees that their union activities are under
surveillance.
WE WILL offer Walter Lane his former job or,
if this job no longer exists , a substantially equiva-
lent position , without prejudice to his seniority'or
other rights and privileges , and make him whole
for any loss of pay , with 6-percent interest, he may
have suffered as a result of our discrimination
against him.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any
labor organization.
FEDERAL PACIFIC
ELECTRIC COMPANY
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately the above-named in-
dividual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1624 Wachovia Building, 301 North Main
Street, Winston-Salem, North Carolina 27101, Tele-
phone 919-723-9211, Extension 360.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Trial Examiner: The complaint'
as amended at the hearing alleges that Federal Pacific Electric
Company, (Respondent),, by (a) threatening employees if they
joined or engaged in union activities, (b) creating an impres-
sion of surveillance of its employees' union activities, (c) in-
terrogating employees about their,union activities, and (d)
unlawfully discharging Walter Lane, Richard Fox, and Jea-
nette Lowder has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq. (the Act). Respondent ,denies the unfair labor
practices but admits the discharges.
A hearing was held after due notice before me the duly
designated Trial Examiner on April 19, 20, and 21, 1971, in
Albermarle, North Carolina. All parties appeared and were
represented by counsel. They were given full opprotunity to
participate, adduce evidence, examine and cross-examine wit-
nesses, and argue orally. Respondent and counsel for the
General Counsel submitted briefs which have been fully con-
sidered.
Upon the entire record in the proceeding and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in the
manufacture of low voltage distribution equipment with a
plant located at Albermarle, North Carolina. During the year
preceding June 1970, which year is a representative period of
its operations, Respondent at its Albemarle plant received
raw materials valued in excess of $50,000 directly from points
located outside North Carolina. During the same period,
Respondent manufactured, sold, and shipped from the Al-
bemarle plant directly to points outside North Carolina
finished products valued in excess of $50,000.
It is found that Respondent is and has been an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE UNION
International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are sufficiently set forth in the Statement of the
Case above.
' The cases were consolidated for hearing. A consolidated complaint was
issued on June 9,1970. The charge in Case 1I-CA-4171 was filed on March
9, 1970, a first amended charge on July 22, 1970, and a second amended
charge on April 14,1971; in Case'11-CA-4177 on March 11, 1970, and in
Case 11-CA-4197 on March 26, 1970, and an amended charge on July 22,
1970. At the hearing, the complaint was amended among other things to
eliminate all allegations as to William Kenneth Rodgers and Michael Loflin
as alleged 8(a)(3) discharged employees. The charges were filed by Interna-
tional Brotherhood of Electrical Workers, AFL-CIO (the Union).
FEDERAL PACIFIC ELECTRIC COMPANY 611
B. The Credibility of Witnesses
The determination of the facts herein has been difficult.
The unraveling of the tangled skein due to the many conflicts
in testimony has been painstakingly done. In many instances,
a resolution of credibility of witnesses was required. The
testimony of Fox has been credited over that of Pollock with
regard to the conversation about union activity. In other
instances Fox's testimony has not been credited. The reasons
for the differences have been stated where necessary. Lane
was found to be, a credible witness. In most matters Lowder
has not been credited, except in relation to Privette's state-
ment concerning union activities. In making these credibility
determinations the pertinent testimony of all witnesses has
been considered as well as their demeanor. In addition, incon-
sistencies and conflicting evidence were considered. The ab-
sence of a statement of resolution of a conflict in specific
testimony or of an analysis of such testimony does not mean
that such did not occur. See Bishop and Malco, Inc., d/b/a
Walker's, 159 NLRB 1159, 1161. To the extent that a witness
is credited only in part, it is done upon the evidentiary rule
that it is not uncommon "to believe some and not all" ; of a
witness' testimony. N.L.R.B. v. Universal Camera Corpora-
tion, 179 F.2d 749, 754 (C.A. 2).
C. Background
Respondent, at its grounds in Albermarle, has two plants:
the plastics plant and the assembly plant where the action in
this proceeding took place.' In the plastics plant there were
employees known as "molders" and "material handlers."'
Molders molded electrical parts by putting "preform," a type
of crude plastic, into a machine, which molded and stamped
out an electrical part. The molder stacked the completed
parts in boxes at his machine. Material handlers brought the
preform to the molders. This was their primary function.
Material handlers also supplied the molder with other items
such as plastic dust, inserts to go into parts, boxes to put parts
in, etc.' Production stops when the mold machine is out of
preform, plastic dust, or some other item. In the assembly
plant employees assembled and packed' finished items for
shipment. One of these items was a wall thermostat.
According to the manner in which Respondent classified
the job, employees were paid regular hourly wages or were
paid on incentive (also known as rated) pay.' Material han-
dlers received an hourly wage; molders and packers received
incentive pay.
The following persons are admittedly supervisors: Jack A.
Carter, manager of industrial relations; Irving Pollock,
manager, plastics plant; William Privette, foreman, instru-
ments; Wesley Melandes, foreman, plastics; and Cecil Al-
mond, foreman, plastics. They are alleged to have committed
unfair labor practices between the period of about February
10 and March 23, 1970.
3 Respondent employs about 600 people The record does not show the
number of departments or of employees involved in the campaign.
' Fox and Lane were material handlers.
° See third par., sec. C, below for a detailed account of the handler's
duties.
6 Lowder was a packer.
6 When employees received incentive or rated pay they were known to
be "on production."
D. The Union Campaign
The Union started an active organizing campaign of Re-
spondent's employees in February 1970.' About February 8,
an organizer of the Union met with Irving J. Pollock,
manager of the plastics department. He told Pollock the
Union was going to organize the plant. About February 10,
the employees of Respondent were addressed by John De-
Torre, general manager of Respondent. He stated the Com-
pany's position with regard to the Union.' In February, three
union meetings took place, at least one of which was attended
by 40 to 45 of Respondent's employees. In mid-February
1970, the Union distributed sheets among the employees to
be signed which stated that the signers became members of
a voluntary organizing committee.' During the last week of
February, the Union distributed union buttons which many
of the employees wore while at work thereafter. By February
28, 46 employees signed up as voluntary organizers. On
March 1, 1970, the Union sent a letter to Respondent notify-
ing it of the union organization and enclosing the signed
sheets. On March 3, Respondent posted a notice in each of
the two plants listing the names of the employees of that plant
who had become organizers.10 The notice continued with the
following statements showing Respondent's opposition to the
Union:
You can be sure that no employee will ever receive any
special or preferred treatment by this company because
they are involved in any union activity or are placed on
any type of committee.
You may be asked to sign a union card by some union
organizer. The organizer may say it is "just to get an
election." This is highly misleading! If the union gets
enough cards signed, the union doesn't have to ask for an
election. It is a common union trick nowadays for the
union organizers to give these cards to the company and
ask the company to look at the signatures. Then they say
no election is necessary, because the cards say you have
already "authorized" the union to "represent" you.
Don't sign a union card-because if you do, you could
lose your right to a secret ballot election. Don't give up
your right to hear both sides and then vote in secret. You
need to understand the many bad, things about giving up
your rights to some outside union organizer.
Fox was discharged on March 9; Lane on March 6;" and
Lowder on March 23. Each employee attended union meet-
ings, wore union buttons, and signed authorization cards.
Lane and Lowder were 2 of about,12 to 15 employees who
procured the signatures of other employees on cards and
turned the signed cards in to the Union.
' In August 1969 a meeting between a union organizer and about five
employees occurred, but there is no evidence of any continuing activity
afterward
B What he said is not in the record. There is no question that Respondent
was opposed to the Union
' The Union had issued instructions to the employees that union activi-
ties should not take place during working hours but during coffee and lunch
breaks and before and after working hours. Employees were aware of Re-
spondent's policy of no union solicitation during working hours
'° There were 13 in the assembly plant including Lowder, and 29 in the
plastics plant including Fox and Lane.
11 Michael Loftin, another voluntary organizer, was discharged about
March 6.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Interrogation, of Threats to Employees and Creation of
Impression of Surveillance
1. Carter warns Thompson about union activity at the
plant
Edward Thompson was an automatic machine operator
employed by Respondent since August 20, 1966. He left on
January 15, 1971.
On February 13, 1970, he went on medical leave and was
operated on for a hernia on February 15, 1970. He left the
hospital 5 days later. His claim for workmen's compensation
in connection with the hernia was denied. About March 10,
he came to the plant to discuss with Carter the fact that he
was not receiving workmen's compensation.'2 During the
conversation, Thompson mentioned that it looks "like the
Union is moving in on y'all over here." The conversation
continued as follows:
A. He says, "Yeah," he says, "They are, but we're
gonna give'em hell." And I says, "Well, you havent' got
too much to worry about. You got a lot of old people in
here, that I wouldn't think would be signing cards or
getting cards signed.
Q. Then precisely what did he say?
A. He said, "Well, the biggest problem we have, we
got so many niggers," he said, "and they every one
signed a damn card."
Q. Then what was said, if anything?
A. And then a few words in between, and he says,
"Well, we have a list of the names of the organizers," and
he said, "We're going to get rid of every one of them."
Says, "We have ways to do it." Said, "Some of 'em may
cost us, but we're gonna get rid of 'em."
Thompson is credited and Carter' s denial is not credited.
Respondent argues in it brief that Thompson's credibility was
weakened because of the following testimony brought out on
cross:
A. I was the first to mention the Union.
Q. Okay. And did you make the statement to Mr.
Carter that you didn't want to have anything to do with
the Union?
A. I told Mr. Carter that-I didn't make the state-
ment that I didn't want to have anything to do with the
Union; I said if it comes to the place where I have the
problem of fighting for a job, me and my wife'll be mov-
ing out.
The Examiner fails to understand how or why Thomp-
sons's failure on direct to make the statement beginning "if
it comes etc." weakens Thompson's credibility. On direct
Thompson admitted he opened the subject dealing with the
Union.
2. Pollock threatens Fox
Pollock became friendly with Fox after Fox was employed
by Respondent. In January 1970 they discussed various mat-
ters including union activities. Fox made known then that he
was prounion. These discussions continued after the union
campaign started and the Union and its campaign were dis-
11 Carter is not credited when he testified that this conversation occurred
specifically on March 24. Any corrobative effect that may be intended by
the submission in evidence of Respondent's employees status notice dealing
with Thompson is also not credited. The status notice shows that on March
24 Thompson went back to work. Thompson credibly testified he was in the
hospital 5 days after the operation The visit "was on into March .
Somewhere around the tenth, maybe... "The purpose of the visit in ques-
tion, as admitted by Carter, was to discuss the fact that Thompson was not
receiving workmen's compensation The record shows that that item plus
the union activity in the plant were the items discussed.
cussed.13 The conversations.were as follows: (1) About Febru-
ary 6, Pollock told Fox that he had met McInnis (the union
organizer) the night before and was not impressed by him. (2)
Pollock told Fox that the employees who favored unions were
"college kids and young -blacks."t (3) About February 14,
Pollock told Fox that there was nothing to stop Respondent
from closing the plant down and moving,to Puerto Rico if the
Union came in. Specifically, Pollock said that G. E. made that
move when it was bothered by the Union. Pollock stated
"maybe it wouldn't be so bad to go to Puerto Rico." (4)
About February 15, Pollock told Fox that he knew who had
attended the union meeting the previous day and that at least
three people came to him and told him what went on. About
the same time Pollock asked Fox for a union card., (5) Re-
spondent was considering Fox as material for a foreman's or
inspector's job. About mid February, Pollock told Fox that
he ought to watch his step "and play it cool if I expected to
get the foreman's job or the inspector's job." Pollock also said
that Carter had told him to break off relations with Fox,
referring to the latter as "the long-haired boy in the plant."
Pollock informed Fox that he had told Carter that he was
getting information from Fox and Carter should leave him
alone. (6) About February 19, Pollock asked Fox "how come
[he] didn't go to the Union meeting the night before." Fox
answered that he didn't cut work for that purpose. Pollock
said that he knew who was there and what happened. (7)
About February 20, Pollock told Fox he knew who the ring
leaders of the union, activities were and named three of the
employees. (8) 'About February 29 Pollock told Fox that
there were 43 employees at the last union meeting and "10
of them were his."
It is found on the reocrd as a whole that Pollocks' state-
ments to Fox set out in (3) and (5) above constitute threats,
and his statements set out in (4), (6), (7) and (8) advised Fox
that Respondent knew of the union activities of its employees
and created an impression of surveillance. Such threats and
impressions of surveillance are coercive in violation of Section
8(a)(1) of the Act.
3. Privette threatens Lowder
In the packing department, Privette on several occasions
threatened Lowder because of her union activities: (1) In the
last week of February 1970, Lowder startedto wear her union
button in the plant. Privette noticed it and told her tht she
"had better not wear it in the plant"; (2) on another occasion,
Privette told Lowder that the ladies who wear buttons "had
bettter look around and see how hard it is to,find jobs"; and
(3) after the union campaign started, Privette stated "the
plant would close down before they's ever let the Union come
in.,,
Each of these statements constitutes a threat and is found
to be coercive in violation of Section 8(a)(1) of the Act.
F. Richard E. Fox
1. Background
Richard E. Fox was employed by Respondent in the plas-
tics plant from December 31, 1969, to March 9, 1970, when
he was discharged "for misconduct connected with his
work." It is found that Fox was discharged for his union
activities in violation of Section 8(a)(3) of the Act.
13 Pollock admitted that he held many discussions with Fox but denied
making threats and the statements creating the impression of surveillance
hereafter listed Fox is credited
FEDERAL PACIFIC ELECTRIC COMPANY 613
When first employed Fox was given a handbook to read
entitled "Your Information Manual." Pages 5 and 6' con-
tained a paragraph entitled "Service Tenure." The latter
stated in part, "The first six (6) months of employment is
deemed to be probationary.... During this trial period your
employment may be severed at any time." Fox admitted that
he had received a copy- of the manual and had read it. He
testified he did not recall that the manual said anything about
probation but "It might've." It is found that at all times while
in the employ of Respondent Fox knew he was on probation.
All during the time he was employed he was a student
attending Pheiffer College -in Albemarle with expectations of
graduating in May 1970. He became a molder when hired and
about a month later as hereinafter discussed became a
material handler. He worked on the second shift from 4 p.m.
to 12 midnight.14 His foreman at first was Wes Malandes and
later Cecil Almond. Both of the latter reported to Manager
Irving Pollock.
2. Fox's union activities
On or about February 15, Fox signed a union card. He
attended two union meetings in February. About February 20
he signed one of .the committee sheets as a voluntary organ-
izer and his name appeared on the list posted by Respondent
on March 3, 1970, on the bulletin board of the plastics plant.
About the same time Fox started wearing a union button. His
union activities were known to Respondent.
3. Respondent considered Fox supervisory material and
gave him privileges
In January 1970, Harvey Marcus, chief inspector, quality
control, at Pollock's suggestion interviewed Fox as a candi-
date for an inspector's, job. At Marcus' request, Fox took a
test required by Respondent of all candidates. He passed the
test on February 3, 1970. Some time afterward, Fox was told
that he would be considered for an inspector's job." Pollock,
at different times when talking to Fox, told Fox that he
qualified for a foreman's job. -
Fox changed his job from molder to material handler after
a conversation with Foreman Almond. Almond advised Fox
that a handler is not always occupied; that there would be
spare time between servicing the molders; that if he brought
his books to the plant he could read and do his college work.
On March 3, when the lists of the union organizing commit-
tee were posted, Almond countermanded these instructions.
He told Fox that reading and studying in the plant were to
cease; that Fox was not allowed to speak to anyone; and that
when not performing a specific task he was to stand next to
Almond's desk.l6
" The material handler came in from 15 to 30 minutes before the shift
started to supply the machines with preform (plastic powder) so that the
machines were ready to operate when the molders anved at 4.
1' Fox testified that he was offered an inspector's job in February. Re-
spondent asserts there was no inspector's job available then and no inspec-
tor's job was offered Fox. That Fox was refused a promotion because of his
union activities is not alleged as a violation of the Act. Accordingly, it is not
considered necessary to resolve this point. It is sufficient for the purposes
of this decision that Respondent thought well enough of Fox and his
capabilities to consider him a candidate for promotion
16 Almond denied he gave permission and-rescinded it. He is not cred-
ited Respondent offered testimony of several witnesses that they did not see
Fox do college work on the job. The significant fact is that Fox was given
a privilege which was then taken away from him because of his union
activities.
4. Fox asks Tucker to join the Union
Tucker was a molder in the plastics department." He was
opposed to the Union. About March 3, Fox approached
Tucker during working hoursand asked him, "Why don't
you sign a union card." The first time was 10 p.m., the second
at 10:20, and the third at 11:30.11 On each occasion Tucker
answered "I'm not interested." The third time, Fox re-
sponded "Anybody that doesn't sign a union card is sixty
years old and a rat fink."" Fox admitted that he was aware
of the company policy "that you could not solicit for the
Union when you are supposed to be working."
On March 6, 3 days later, Tucker reported the above events
to Foreman Almond.20 The latter wrote out a warning slip
charging Fox with "Soliciting workers for union activities
during working hours: 3/3/70-10:00, 10:20 and 11:30." Fox
refused to sign the slip telling Almond "this I did not do."
Almond testified that before he wrote up the warning he
spoke to Fox, "asked him had he solicited," mentioned Tuck-
er's name and "gave him the times";-and that Fox replied he
had not done so. Fox in his testimony states "When I went
to work on March 6 ... Cecil Almond... gave me a piece of
paper to sign. I read it over and it said something about
soliciting Union activities during working hours. I told him
this I did not do, so I refused to sign the warning slip." Fox
further states Almond said nothing, "He just gave me the
piece of paper."
On cross-examination Fox admitted that he was aware that
the warning stated that he had solicited for the Union on
three occasions . Yet, he asserted that he asked Almond- for
no particulars with regard to these occasions, nor did he
request the name or names of the people he was alleged to
have solicited. It is concluded that Fox under these circum-
stances is not credited and that Fox knew what Almond was
talking about when he presented the warning to him. It would
have been the reasonable thing for Fox to inquire for some
particulars when so vaguely accused. The foregoing conclu-
sion is strengthened by the events of March 9, the day of
Fox's discharge. According to Fox, in his interview with
Pollock, the latter mentioned the solicitation warning slip.
Fox replied "I didn't do it, so I didn't sign it.... You know
it was a frameup." Here again it is not considered reasonable
that Fox should refer to a "frameup" without knowledge of
the particulars constituting the "frame. 1121
Fox did not specifically deny at the hearing that he had
solicited Tucker to sign a union card or that he made the "rat
fink" comment. Nor are the denials made to Almond and
Carter of the general statements contained in the warning
considered such specific denial. Accordingly, on the record as
a whole, it is found that Fox addressed Tucker three times on
March 3, 1970, as stated above. Further it is found that the
conversation constituted solicitation during-working hours to
join the Union.
11 Tucker, when he testified at the hearing, was not employed by Re-
spondent -
18 Breaktime on this shift was 10:30 p.m . for 8 minutes.
" It is concluded from observation of Fox and' Tucker that during the
time they were employed by Respondent they were not friendly; there
existed an antagonism between there; and they tended to "ride" each other
This antipathy played a part in this episode and the "s.o.b." episode dis-
cussed in subsection 6 of this section.
11 No special significance is attached to the fact that a 3-day lapse oc-
curred.
31 No weight is given to General Counsel's assertion that Fox did not
know until the day of the hearing that Tucker was the person involved.
614 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
5. Fox spills the preform
On March-6, Almond issued another written warning to
Fox. The events leading to this.warning, are as follows: About
8 p.m. on March 6, Fox filled up one of the automatic ma-
chines with preform material. No bucket was placed under
the overflow chute with the result that the preform material
spilled on'the floor. Almond made'out the warning slip read-
ing, "Did not place barrel- under powder overflow spout,
'operator has enough experience on job to know this .1112 Fox
raised no objections and signed the warning slip.
6. Fox is discharged
There are conflicts in the testimony of the persons who
testified to the events of March 9 leading to the discharge of
Fox. As, already stated, the resolution of the conflicts in-
cluded consideration of the demeanor of the witnesses and
required a detailed study of the testimony. On the basis of the
foregoing and on the record as a whole, it is concluded that
the events of that day occurred in the- following manner: -
On March 9, Fox came to work -early. He first spoke to
Pollock and the two previous warnings came up in the con-
versation. Pollock placed great emphasis on the "union solici-
tation" warning and depreciated the "plastic overflow" warn-
ing.23 Fox also saw Marcus who, told him he didn't know
whether he'd be able to give Fox the inspector's job because
Respondent was cutting back.
When Fox reported to work he found out that Wes Ma-
landes was substituting as foreman for Almond who was
away that day. Malandes commented on Fox' union button.
Fox started filling the machines with preform when Tucker
told him to get him some boxes. Fox told Tucker he would
get him some boxes when he gave them to everybody else but
first he had to put, the preform up?' Tucker reported this
action to Malandes who ordered Fox to give Tucker boxes
which Fox eventually did.25 A little while later Tucker re-
ported to Malandes that Fox had called him "an ass-kissing
Federal son, of a bitch."25
Malandes took this up with Fox. Fox told Malandes that
Tucker, was a liar . Malandes either deliberately or mistakenly
understood that Fox was calling Malandes "a liar." Malandes
replied, "You can't talk to me like that, I'm your foreman,
and you should show respect for me, at least." Fox answered,
"You're not my foreman, Cecil [Almond] is my foreman."
Malandes answerd, "I'm your foreman as long ' as Cecil is
out."'In'return Fox replied, "You're a great god and I'll bow
down to you," and stretched his arms out and bowed down
to Malandes.2' Malandes called Carter who asked that Fox
32 Fox testified that he "shovelled the plastic back into the blcket,.which
was reused in the machine." Almond testified that he "explained to [Foi]
that the powder was valuable, and it was all ruined. any, contamination
at all will cause it to'form blisters on the part " Almond further testified
that Fox shoveled the overflow powder into' a barrel and left it, then at
Almond's order one of the boys pulled the barrel around and scrapped it.
This fact is not an issue in Fox's discharge and need not be resolved.
" See the fatter part of the last paragraph of subsection 3 of this section
" It is conceded by all parties that the primary function of the material
handler is to get the preform to the machines. Fox admitted on cross-
examination that it was part of his "job as a material handler to provide the
boxes for the molders."
1' Fox testified on cross-examination that he did not go for the boxes
when first asked to get them by Tucker and Malandes.
" The Examiner recalls that Malandes testified not to "Federal" but used
the present participle of a four-letter word also starting with 'f' and now
generally accepted.
Fox credibly denied that he called Malandes a liar.,
Q Did Mr. Malandes accuse you of having called Tommy Tucker an
s o.b ?
A. That's correct.
come,to his office.-Malandes picked up Fox who insisted that
he wanted a witness to the discussion. Carter gave permission
through, Malandes, Fox selected his witness and they all went
to Carter's office.,
Carter' asked Fox about the events that happened. Fox
again denied that he had called Tucker, an s.o.b. Carter than
asked Fox about calling Malandes a liar. The significant con-
versation that occurred after that is not clear. According to
Carter, Fox admitted he called'Malandes a liar but did so
because Fox thought that Malandes had accusedhim of curs-
ing Tucker.2S It is found that Fox did not admit that he called
Malandes a liar. The alleged explanation, "he '(Fox) thought
that Malandes had accused him of cursing Tucker,",does not
hold up. (1) It does not hold call for a "You're a liar" re-
sponse. (2) Such' a response is considered unreasonable par-
ticularly following, as it does, Fox's'saying Tucker is a liar
when- Malandes told Fox of Tucker's accusation. (3) Ma-
landes'. testimony contained in the, footnote does not help
clarify the alleged conversation in Carter's office. In any
event, it appears that Carter gave no weight to the accusation
that Fox called Malandes "a liar."' Carter did not include that
action as a cause for Fox's discharge. Carter ended the meet-
ing by stating, "Because of your 'history with us, and because
you are a probationary employee, and because you have had
previous warnings, I am going-to terminate your employ-
ment, in keeping with our practice on this type of probation-
ary release."29 A security guard escorted Fox out of the build-
ing at' one door while Malandes went in another direction.
Q What did you say?
A I denied it.
Q. How did you deny it9 In denying it, did you tell Mr Malandes
that he was a liar?
A. No, that's incorrect.
Q. Did you say anything about lying?
A. I said Tommy was lying, if I remember correctly
Q But you did say something about lying?
A That's correct.
Malandes is credited as to the remainder of the conversation. Fox did not
deny that he went through the "great god" routine. The impression created
by Fox on the stand is that he would have performed such a gesture An act
of the same nature occurred later when Fox shouted that Malandes was a
"Fascist" after Fox was' discharged. (See the last ' two sentences of this
-portion of this Decision .) Fox on cross -examination was asked whether
Malandes had pointed out that he was Fox's foreman. Fox responded as
follows,
Q. During this discussion, did Mr Malandes make any statements to
you pointing' out that he was your foreman?
A' No, he didn't, not that I recall.
Q Well, are you saying you don't remember one way or the other?
A I don't believe he did.
Q. Do you deny that he said anything to you about being your
foreman that day? '
A.'I can't deny it because I don't recall word for word
Q Okay, fine Did you make any statement to Mr. Malandes to the
effect that Mr Almond was your foreman?
A. No, none.
These answers show that Fox was equivocating with regard to whether the
word foreman was mentioned in this exchange The impression created by
Malandes on the stand was of an individual who would be deeply affronted
if his authority or position were challenged or belittled. It is considered that
his recall of, such an incident would be strong.
" Malandes on this point testified, "so Carter asked-him, `What about
calling your foreman a liar?' And [Fox] said at that time he thought I was
accusing him of calling Tucker that, or calling him that, and Jack [Carter]
asked me did I call him anything like that I said, `No'..
" The separation noticc,'issued 9 days later, contained approximately the
same language "Failed to make probationary period. Used abusive languge
to fellow employees and received previous written,warniuigs for violation of
company rules " Malandes, disagreeing with Carter, supplied what was
missing from Carter's testimony. He, testified that Carter said, "I'm going to
terminate you for insubordination," etc.
FEDERAL PACIFIC ELECTRIC COMPANY 615
When leaving the plant Fox called Malandes a "Fascist"
several times in a loud voice.
Conclusions as to Fox's Discharge
It is found on the record as a whole that the preponderance
of the evidence leads to the conclusion that Fox was dis-
charged in violation of Section 8(a)(3) of the Act because he
engaged in union activities. A finding that Fox had called
Malandes a liar would alter that determination . Failing such
a finding, it is clear that no valid cause for discharge was
specified by Carter. In a plant of this kind the use of abusive
language among the employees would not be unusual and,
while it might warrant a warning , under normal circum-
stances it does -not warrant dismissal. The spilling of the
preform was insufficient cause; otherwise Fox would have
been discharged when it occurred. The same applies to the
violation of the union-solicitiation rule which was of a mild
nature. The failure to make the probationary period would
not have been called forth but for Fox's union activities.
Respondent's actions prior to October 3 showed they wished
Fox to continue as an employee: (1) they actively considered
him foreman or inspector material; and (2) they offered him
special privileges to do homework on the job. The strong
antiunion attitude of Respondent, the sudden reversal of Re-
spondent's attitude toward Fox after the October 3 posting,
the proximity in time of the warnings given Fox to the Octo-
ber 3 posting, and the' showing that two other union em-
ployees were discharged at around this,time, all lead to the
conclusion that it was Fox's union activities that were the real
cause of his discharge . It is so found.
G. Walter Lane
1. Background
Lane had been employed by Respondent as a material
handler for about 1 year when he was discharged on March
5, 1970. The stated reason for his discharge was "refused to
do job assigned."
When he started Lane was paid $1.60 per hour. When he
was fired he was paid'$1.90 per hour. The difference resulted
from three increases Lane had received. One was an across-
the-board increase, the other two were merit increases. The
first merit increase was paid about 1 month after Lane was
hired. The other about 3 months later. Home, the foreman
who recommended Lane for the increases, told Lane on the
first occasion he "was the best material handler he'd ever
had." On the second occasion, Lane was offered another job,
and Home told him to stay and he would get him another
raise. Lane stayed and got the raise.
Home also told Lane what his duties as a material handler
were: to get the preform to the molders; to get the molders
containers (boxes) to keep their manufactured parts in; to
keep their finished parts away from the molds; to keep a
production record of how much they produced; and to fill up
the automatics. Home showed Lane no written job descrip-
tion of the duties of a material handler.
About November 1969, Home quit and Malandes became
foreman in his place. There is no evidence that Malandes then
gave any instructions to Lane with regard to the work that
Lane was doing or changed his routine.
Lane was employed on the first shift which started at 8
o'clock. Lane came in at 7:30 in order to get the lines set up
for the molders to start at 8 o'clock. This operation consisted
of getting the preform ready and supplying empty containers
(boxes) for the manufactured parts. As stated before inade-
quate preparation caused production to stop.
The material handler generally did no cleanup work. Re-
spondent employed a porter for that purpose. Lane worked
5 days a week. There were weeks when Respondent needed
help on Saturdays to clean up. Lane frequently worked on
Saturdays and was paid overtime at time and one-half. Usu-
ally he and a preform maker were the Saturday workers. No
molders worked on Saturday. The Saturday work generally
was to clean up new molds when delivered bywashing the oil
and grease off them , sweep the plant, and if oil spills existed
put Zipzorb on them30 On Saturdays, Lane performed no
material handler duties.
2. Lane and the union campaign
Lane early became aware of the union campaign . He signed
a union card in September 1969. On February 16, 1970, he
signed the committee sheet as a member of the voluntary
organizing committee . His name was on the list posted by the
Respondent in the plastics department on March 3 . He signed
up several other employees. On March 3, he commenced
wearing a union button . On March 4 , in the plant during a.
break Lane and Malandes were near each other. Lane was
wearing his button." Malandes said to him, "Are you for that
junk? There's no hope for you."
3. Lane is discharged
On March 5, Lane was a little late in getting the molds
ready for the day's work. This was caused by the fact that
some of the molds had been out of order on the previous
shifts. Lane still had to finish supplying the preform to the
molds and had to get some more boxes for the molders. It was
about 8:05 or 8:10.32 Malandes came up to him and told him
to put down some Zipzorb on an oil spill near one of the
machines . Lane told Malandes that he had to get the lines.up
and get preform and that putting down Zipzorb was not
normally his job." Malandes then told' him to get the preform
and Lane finished getting the supplies. During this time, the
porter put down the Zipzorb. About a half-hour later, Ma-
landes asked Lane if he had put the Zipzorb down. Lane
answered, "No, but it was down." Malandes declared "that's
right, because I had to go get the porter myself to do it" but,
even though it was down , it didn't make any difference; he
was going to give Lane a warning slip. Malandes , wrote up a
warning" stating "Employee wouldn 't put zip-zorb on floor
as I instructed ." He asked Lane to sign it . The latter opted
not to sign it.
30 An absorbent powder poured on the oil spill to take away the slipperi-
ness of the oil. Used generally as a safety measure.
" Malandes testified that he never saw Lane wearing a union button; that
"if he did he took it off when I got there and put it on when I left " The
quotation weakens the denial. Carter testified that Lane was wearing a union
button during the discharge interview Lane is credited.
1 1 According to Lane's credited testimony.
" Lane testified that putting down Zipzorb was normally the porter's job
but that on two previous occasions he had seen a mechanic and employee
who ran the automatics put down Zipzorb . The mechanic was fixing an oil
line that had burst and was required to lay down the Zipzorb to complete
his job The automatic operator was an individual whose job includes a
waiting time when he is sitting idle with no other assignment . Malandes
testified that on occasions he has laid down Ztpzorb . This time , even though
he considered the oil spill a hazard, he did not put down Zipzorb because
he "had asked Lane" to do so. This leads to the conclusion that Malandes
was willing to permit an alleged dangerous condition to continue in order
to get something on Lane, to establish that Lane had violated a company
rule. Obviously, though it was Lane's first offense, Malandes was out to get
him and the reason was Lane 's union activity.
11 This was the first warning, oral or written, Lane received
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 45 minutes later Lane was called in, to Carter's
office. There, Lane told Carter, "Putting down the zipzorb,
that's not normally my job." Carter told him it was part of
his job and read from a book," "a material handler's job is
to keep it clean, and neat around the work area." Carter then
called in Malandes and went over the matter with him. Lane
was asked to sit outside because Carter wished to discuss the
case with Pollock, When Lane was called back Carter told
him he was "terminated for refusing a job assignment."36
Conclusions as to Lane
Home never told Lane that it was his duty during his
regular workday period to clean up and put down Zipzorb on
oil spills. Lane stated that, the entire time he was employed
with Respondent, he never laid down any Zipzorb or was ever
asked to. Carter and Malandes both testified that Lane admit-
ted he had previously laid down Zipzorb on days other than
Saturday. Their testimony is not credited." On the record as
a whole,' it is found that (1) laying down Zipzorb was not
considered part of the material handler's normal job and (2)
prior to this occasion Lane had neither been asked to or had
laid down any Zipzorb other than on Saturdays.
On the record as a whole, it is found that'the preponder-
ance of the evidence shows that if it were not for Lane's union
activities he would not have been discharged for the Zipzorb
episode.38 Respondent seized on this episode as a pretext to
discharge Lane. It is so found.
Lane, like Fox, was not one of the leaders of union activi-
ties. This does not lessen the effect his discharge would have
on prospective or other union members. The lesson obviously
was: this will happen to you also if you join the union or are
active on its behalf.
H. Jeanette Lois Lowder
1. Introduction
Mrs. Jeanette Lois Lowder was employed as a packer of
wall thermostats in the assembly plant. After working from
April to August 1968, she was rehired in April 1969. Then,
she worked on an hourly basis. Her job was placed on
production, i.e., incentive pay rate, on February 11, 1970.
Lowder continued on production until her discharge on
March 23, 1970. Respondent's reason for the termination was
" ... violation of company rules after repeated written warn-
" Malandes called this book the "manuscript of a material handler."
Carter referred to it as the "manual of job descriptions." However, neither
the excerpt nor the book was identified at the hearing or placed in evidence.
No evidence was introduced to show that such a job description had been
previously given to or read to Lane or any other material handler.
The Company's handbook contained the following on p. 15•
All employees are expected to observe these rules. Violation of any
of these Regulations is cause for disciplinary action up to and including
dismissal.
s x t
9. Insubordination or refusal to work on job assigned.
Lane testified he had read the handbook when first hired by the Company
but had no recall regarding it.
" Malandes testified that he recalled one time when he asked Lane to put
down Zipzorb just after Malandes became foreman, that "It was in the
middle of the week, around Wednesday." Such specific recall of what was
an inconsequential item when it occurred is considered highly improbable
and, in keeping with Malandes' general unreliability, is not credited.
38 Respondent placed in evidence six separation notices showing that
employees had been separated because they had "Refused to do job as-
signed " No weight is given to these notices. All occurred prior to the union
campaign. The events leading to each notice are not shown.
ings." The General Counsel erroneously asserts she was dis-
charged for her union activities.
2. The 1969 Christmas float
In November 1969, the employees in the thermostat de-
partment elected Teresa Burdette, a Negro, to represent the
department and ride on the Company's Christmas float.
Lowder told Hartsell, Palmer, and Trull, three of the,girls
who voted for Burdette, that they were "nigger lovers." Trull
complained to her supervisor Bill Privette. Privette spoke to
Lowder and told her "that this kind of talk would cause
disruption in the department, and not to be doing this." No
written warning was issued.
About a month later on December 23, Privette, held a
meeting of all the employees in the department, Lowder at-
tended. He told the employees that the department was hav-
ing a problem about gossip and the spreading of rumors in the
department and that it was getting out of hand and employees
were spending more time talking than working. Further, he
told them that if the rumors and gossip continued he would
give written warnings to those involved. The meeting broke
up. Privette then went to each employee, Lowder included,
and repeated the same warnings individually.
3. Lowder's first written warning
On January 7, 1970, Lowder received her first written
warning for carrying rumors about certain employees not
doing their work. Lowder admitted that she had passed the
rumor on, but she said that it had originated with Trull,"
Lowder signed the warning, which was also signed by Pri-
vette and Floyd Culp, the latter's superior.40 At this time, all
the employees in the department were informed that they
were not supposed to be talking to each other whole "on
production."
4. Lowder's second written warning
On March 3, 1970, another written warning was issued to
Lowder by Privette and Culp. This one she refused to sign.
The events preceding this warning occurred as follows: On
March 2, 1970, Grigg, an industrial engineer for Respondent,
was at Lowder's station discussing a mechanical problem
then existing on her job. During the conversation Lowder
told Grigg" that Privette didn't "know what he's doing out
here." Further, Lowder told Grigg that a fellow employee,
Kay Thompson, was cheating on her job41 and that Privette
knew about it. Grigg reported these statements to Culp. Culp
told Grigg he would check into it. A little later the 'same
morning, Thompson and Privette appeared in Culp's office.
Thompson was in tears. She complained that Lowder had
been making obscene gestures in her direction and "had
called her a tramp and a whore on several occasions." Culp
decided to take the whole matter up with Jack Carter,
manager of industrial relations.
In Carter's office in the presence of Carter, Privette, and
Culp, the cheating story, was repeated. Thompson also re-
peated her story that Lowder had stated on several occasions
that Privette was incompetent in running his department,
that he "didn't have sense enought to run his damned job."
At Carter's request Culp checked,the records. He reported to
Carter that Lowder's charge about Thompson's cheating was
completely unsupported.
" Trull was also given a written warning.
40 His title was general foreman, instruments
31 A fully credited witness.
11 Thompson counted or calibrated thermostats Lowder stated she had
turned in a count of 500 when she had actually counted 90.
FEDERAL PACIFIC ELECTRIC COMPANY 617
On the morning of March 3, Lowder was called into Car-
ter's office. The matter was discussed with her by Carter,
Privette, and Culp. Lowder denied making the statement
about Prlvette or interfering with Thompson's personal life.
When asked what she did say concerning these two, she
responded, "You know so much, you tell me." Lowder ad-
mitted, however, that she had made the statement about
cheating but asserted she had only repeated what another
employee had told her.43 Carter told Lowder that Thomp-
son's work record had been checked and had proved her
innocent of any cheating. He then told Lowder that a written
warning would issue which would be "her final warning, and
that any further violation of company rules would have disci-
plinary action up to and including dismissal." Culp wrote up
the warning which provided "Mrs. Lowder was informed by
J. Carter that any further complaint about her from fellow
workers could result in disciplinary action up to and includ-
ing dismissal." Lowder read the warning but refused to sign
it.
5. Lowder's third written warning
On March 6, 1970, another written warning was issued to
Lowder by Privette which she also refused to sign. On this
day, Lowder was away from her work station at the work
station of another employee named Palmer. Lowder was ask-
ing Palmer for information about the nature of her work and
how it was done.44 Both these employees were on incentive
pay; i.e., on production. Privette went over and asked Lowder
what she was doing there. He told her she shouldn't leave her
work station to talk and conduct personal business. Lowder
replied "You can't stop me. You can't tell me where to stay.
I can go anywhere I want to go." Privette told her he was her
foreman, that she was being insubordinate, and to return to
her work station. Culp was out at the time, so Privette re-
ported the incident to Carter. Carter told Privette to bring
Lowder to his office. There, Lowder told Carter she had not
been insubordinate and had been with Palmer on company
business. Carter agreed with Privette and told her this was the
second time this week she had been to see him, that she was
still creating problems, that she had already received verbal
and written warnings, and that this would be her final written
warning and if there were any more complaints about her he
would have to terminate her.
6. Lowder's termination
On or about March 19, 1970, a group of the female em-
ployees in the assembly department got together and decided
they wished to speak to Carter about the situation in the
thermostat department 4' More particularly they wished to
43 This employee had left Respondent's employ on February 22, 1970.
04 According to Palmer's credited testimony. Lower asserted she was at
Palmer's station to determine if there were "any more thermostats ready to
pack " On the record as a whole Lowder is not credited.
4' These individuals were Willie Hunnicutt, Hattie Burris Brown, Linda
Henry, Rudy Eudy, Betty Hertsell, Gerry Palmer, and Kay Thompson The
record does not show the position of Brown or Palmer with regard to the
Union. The other five admitted they were opposed to the Union All seven
testified they went to Carter's office voluntarily and had not been requested
to do so by any company official or supervisor Hunnicutt told some of the
others she "was just about fed up and I was going to talk to Mr. Carter and
get things straightened out up there." Henry testified that Kay Thompson
was "going to the office and say that if there was anything that I wanted
to, talk to Mr. Carter about that now was the time " Eudy testified that
she told "some of the girls if they ever went. . . I'd be willing to go
because I was being fed up. I didn't want to go by myself and some of
them said they were going, so I went, too." On cross Eudy modified this to
say Thompson "said some of the ladies were going about the trouble and
if I wanted to go I could. And I went." Hartsell testified she "lust got tired
complain about the difficulty of working because of the rumor
spreading and gossiping in the department done by Lowder
that had continued through the month of March. As a result,
the seven individually got permission from Privette to clock
out and report to Carter. Carter spoke to.each separately and
each left a signed statement with him.46 Carter testified that
as to each one of them the "substance of their conversation
with me was that they were having a problem with Jeanette
Lowder in the department, gossiping, passing rumors and
harassing them in certain ways.... "47 Later on Monday
Carter reviewed the seven employees' statements with Culp
and Privette. He told them that something had to be done
about the problem that "we are spending time trying to solve,
and we are not doing anything about it." They decided to
speak to Lowder again . When she came up, Carter read parts
of the statements to her but did not show them to her. Lowder
told Carter that she was being framed, "that Bill Privette and
Kay Thompson had gathered these people up [as] part of a
conspiracy.... " Carter then asked Culp to take Lowder out
to a conference room while he checked her charge. In their
absence, Carter pressed Privette about Lowder's charge and
convinced himself that Privettg was not involved. He recalled
Culp and Lowder' and told he ,that she was "still being
disrespectful to her supervisor." Then he released her from
employment with Respondent because she had had verbal,
written, and final warnings.
7. Lowder's union activities
Lowder signed a union card on February 10, 1970, and
turned it in to the Union. During February she attended
several union meetings. In the latter part of February she
procured signatures on union cards from 8 to 10 employees
(neighbors) after working hours and in their homes. These
cards she turned over to another employee who in turn gave
them to the Union." About the last week in February she
started wearing a union button at work and continued to do
so until her discharge. She signed the union committee sheets
as a voluntary organizer and her named appeared on the list
posted by Respondent on the bulletin board of the assembly
plant. Privette was aware that she was wearing the button and
spoke to her about having signed a union card. There is no
question that Respondent was aware that Lowder was a
union member.
of hearing all that gossip.. about Kay" so she said "I'm going to go" and
she did Palmer testified the previous day she "had told Kay that something
needed to be done, that we couldn't go on working with all this commotion
going on all the time. So I said , If you'll make an appointment with
Mr.Carter ... I'll go along and tell about all this disturbance that's going on
. . just let me know . " Thompson testified that "this thing had been
building up for some time and the day before several of the girls had said
they were tired, too, and they would go ... and complain ... and the idea
struck me that that was the time ... and I couldn't take any more "
d4 Because of the lateness of the hour on March 20, Carter finished with
the interviewing on Monday, March 23
"r Some of the major items of gossip attributed to Lowder referred to (1)
Brown and her "boss man" holding hands and "stuff like that"; (2) the
alleged parking lot infidelity of Thompson, linking Thompson's name with
Privette's, calling Thompson a whore, and making obscene gestures at her,
calling Thompson' husband at his place of business,, and generally poking
fun at Thompson, (3) the fact that Palmer was an alcoholic, and (4) her
dislike for Privette as shown by various vulgar statements she made in
referring to him and her statements regarding his inability to run the depart-
ment. The seven employees mentioned items of gossip, some duplicating
others. No all the items are listed above.
"a The record does not disclose that Respondent was aware that Lowder
had procured the additional 8 or 10 signatures. Privette did admit that in
March 1970 Lowder told him she had "signed up everybody in your depart-
ment "
618 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
8. Lowder's discharge was not illegal
The General Counsel contends that (1) Respondent was
"partially motivated by an illegal purpose" in its discharge of
Lowder and (2) that Respondent fabricated the entire set of
circumstances commencing with the warning of March 3
using the warning of January 7 (given before any union ac-
tivity started) as the keystone of the fabrication to give
verisimilitude to the whole "game plan" for removing
Lowder, a known union adherent. Respondent contends
Lowder was discharged for cause. On the record as a whole,
the preponderance of the evidence leads to the conclusion
that Respondent legally discharged Lowder. It is so found.
In its brief the General Counsel states he believes the
Lowder warnings of March 3 and March 6 were pretextual
but does not show the basis for his belief. As shown hereafter,
it is concluded the two warnings were valid As to the March
23 dismissal, the General Counsel's brief states "the manner
in which the aggregation of women was assembled to go to
Carter's office ... their hostility as witnesses, and their tes-
timony that- they were antiunion"' .... shows clearly that Re-
spondent developed the idea presented by Mrs. Lowder's
January 7, 1970, warning into ,a scheme for removing another
union adherent from the plant." Again, though listing these
items, the General Counsel does not deal with them in depth.
In disagreement with the General Counsel's conclusory state-
ment, it is found that the actions of Respondent on March 20
and 23, though not entirely free from suspicion, show that
Lowder's discharge was legal,
The warning issued to Lowder on March 3, 1970, was
warranted by her actions. Nothing in the record, shows, nor
does the General Counsel specify, in what manner it was
pretextual. Lowder admitted that she passed along the rumor
that Thompson had cheated. Grigg, a fully credited witness,
to whom she had made the cheating statement, testified that
Lowder had also talked to him about Privette's incompe-
tency. This was one of the factors that Kay Thompson re-
ported to Culp later the same morning when she complained
about Lowder,. Lowder' s denial that she did not make the
demeaning statements about Privette is not credited.
Similarly, the record is convincing that the warning issued
to Lowderon March 6 was also warranted. Lowder admitted
she was away from,her duty station talking to Palmer" but
denied that she was away from her station on personal busi-
ness. Her denial is not credited." Admittedly, both employees
were on production. Lowder admitted that she told Privette
"You can't stop me, you can't tell me where to stay. I can go
anywhere I want to go." By being away from her station and
talking about personal matters while on production, Lowder
was in violation of the company rules and merited a warning.
The` matter was immediately discussed in Carter's office and
he issued a final warning to her. The written warning issued
immediately thereafter. As with warning number 2, nothing
in the record indicates, nor does the General Counsel specify,
how warning 3 was pretextual.11
An analysis of the testimony of five of the seven employees
who complained to Carter on March 20 and 23 gives rise to
the suspicion that,the complaint may have been the result of
an organized effort. Certain expressions occur in the tes-
timony of each employee that are identical in wording. This
04 As stated in fn 45, five of the witnesses were opposed to the Union
90 Palmer was one of the seven employees who went to Carter on March
20. She is not one of those who is shown as in favor of the Union
" Palmer testified that Lowder was not talking business . Lowder was
unclear in her testimony . She confused the events leading to the March 3
and the March 6 warnings.
" The fact that the warnings were issued during the union campaign has
been considered.
consistency and identity may be coincidental" or they may be
the result of a "frame-up." If it was a coincidence, the wit-
nesses were describing to Carter theactions of Lowder as they
occurred before they went to his office. The language then is
not attributable to Respondent. If it was a "frame-up" there
is no showing that Respondent was the perpetrator. The
record shows that Thompson spoke to the women before they
went up to Carter. Lowder testified that she was being framed
by Privette and Thompson and stated as much to Carter at
the time of her discharges" Lowder did not accuse Respond-
ent of framing her.
Thompson and Privette were the butt of much of Lowder's
comments. They were aware of her remarks. If a conspiracy
had been cooked, it would appear, reasonable for either or
both to be the chefs. The assertion by General Counsel that
the "frame-up" was attributable to Respondent does not re-
ceive support from the record except by inference that Re-
spondent induced Thompson or Privette or both to, start the
ball rolling. There is insufficient evidence in the record to
support such an inference, and the General Counsel does not
specify the facts that do support it."
It is well established that an employer has the, right to
discharge an employee for cause but not for union or,con-
certed activities. The record on the whole shows that Lowder
had for about 4 months indulged in actions that could, lead
to her discharge, actions about which she had,received a
succession of warnings. Lowder's discharge on March 23
occurred because Respondent reasonably believed that she
had continued in her improper behavior subsequent to her
last warning and that this behavior was having an undesirable
effect on her fellow employees. Though she was a known
union adherent, and was personally subject to threats con-
cerning her union activities, there has been insufficient show-
ing that, the discharge was in any way attributable to her
union affiliation or actions on its behalf. Accordingly, it is
found that Respondent's discharge of Lowder was not viola-
tive of Section 8(a)(3) of the Act.
IV. THE EFFECT UPON COMMERCE OF
RESPONDENT'S UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section III, above,
occurring in connection with the operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labordisputes burdening and obstructing
commerce and the free flow of commerce.
"Hunnicutt - "and [Lowder] was conthnuously staring at us and I couldn't
do my work."
Brown. "And then [Lowder] was staring at me.... And if I got out of
her sight , she'd get up on her toes where she could see me and stare at me
like I was going to do something she was going to miss."
Eudy: "Well, you'd sit there working and she'd stare at you. Well, she
was always staring at you, and you feel somebody staring at you "
Hartsell., "Well, the gossip that upset me so bad was about Kay ... and
she was upsetting everybody by her staring .. "
Palmer.- "Well, I was just tired and fed up with it And another thing, I
couldn't work with somebody staring at me Everytime I'd look up, Jeanette
would be staring at me."
Lowder testified she saw Pnvette and Thompson "going around talking
to some girls . in our department and they they went over into two other
departments and talked to them. And Kay made several trips into the other
departments talking to these girls." On cross Lowder further testified that
"Kay Thompson and Bill Privette had set the thing up .... Because l had
saw Kay and Bill go talk to them several times the day I went to the office "
" This situation is parallel to that of the proof of company knowledge
It is well established that the General Counsel has the burden of proving
knowledge beyond mere suspicion or surmise Mook Weiss Meat Packing
Company, 160 NLRB 546 , 549, Kayser-Roth Hosiery Co, Inc, 166 NLRB
372
FEDERAL PACIFIC ELECTRIC COMPANY 619
V THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, it is recommended that it cease and desist
therefrom and take such affirmative action as appears neces-
sary and appropriate to effectuate the policies of the Act.
Having found that Respondent's violations include dis-
criminatory discharges, and since it is considered that there
exists a danger of commission of other unfair labor practices,
it is recommended that Respondent be ordered to cease and
desist from infringing in any other manner upon rights guar-
anteed by Section 7 of the Act.
Having found that Respondent discriminatorily dis-
charged Walter Lane and Richard T. Fox, it will be recom-
mended that Respondent offer each of the dischargees a full
and immediate reinstatement to his former position or, if that
job no longer exists, to a substantially equivalent position of
employment, without prejudice to his seniority and other
privileges and that each be made whole for any loss of pay he
may have suffered as a result of Respondent's unlawful con-
duct. Backpay shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest
added thereto in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record herein, I make the following:
CONCLUSIONS OF LAW
1. Federal Pacific Electric Company is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By engaging in the acts found and described above,
Respondent has unlawfully threatened employees about their
union activities and has created among its employees an im-
pression that Respondent has had the employees' union ac-
tivities under surveillance, all in violation of Section 8(a)(1)
of the Act.
4. By threatening employees with discharge and otherwise
interfering, restraining, and coercing its employees in the
exercise of their rights guaranteed by Section 7 of the Act, as
found above, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
5. By discharging Walter Lane and Richard T. Fox for
their union activities, as found above, Respondent has dis-
criminated in regard to the hire and tenure of employment of
the said and other employees thereby discouraging member-
ship in or activities on behalf of a labor organization, thereby
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
6. The aforesaid conduct constitutes unfair labor practices
affecting commerce within the meaning of the Act.
Upon the foregoing findings of fact and conclusions of law
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:56
56 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and Recommended Order herein shall, as provided in
Section 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.
ORDER
Federal Pacific Electric Company, Albermarle, North
Carolina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of their employees in
International Brotherhood of Electric Workers, AFL-CIO,
or any other labor organization, by discharging or in any
other manner discriminating against any employees in regard
to hire, tenure of employment, or any other term or condition
of employment because of their union or other protected
concerted activity.
(b) Creating the impression that it has the employees'
union activities under surveillance, or threatening employees
with discharge because of their activities on behalf of Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, or any
other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organ-
ization, to form, join, or assist any labor organization, to
bargain collectively with representatives of their own choos-
ing, to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activity.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer to Walter Lane and Richard T. Fox immediate
and full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and
make them whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(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, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due to Walter Lane and Rich-
ard T. Fox under the terms of this recommended Order.
(d) Post at its plant in Albemarle, North Carolina, includ-
ing its plastics plant and assembly plant, copies of the at-
tached notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 11, after
being duly signed by the Company's representative, shall be
posted by it immediately upon receipt thereof, and be main-
tained 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 Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 11, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith."
5' 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"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 "
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges any unlawful conduct other
than that found above.