Kendall Co.

National Labor Relations Board - Board Decisions

Jan 20, 1970

180 N.L.R.B. 832 (N.L.R.B. 1970)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kendall Company, Hospital Products Division and
Horace D. Grant
Kendall Company, Hospital Products Division and
United Papermakers and Paperworkers,
AFL-CIO, Petitioner . Cases 10-CA-7731 and
10-RC-7693
January 20, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On October 9, 1969, Trial Examiner George
Turitz issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in other unfair labor practices alleged in the
complaint. In addition, the Trial Examiner found
that the Respondent had engaged in objectionable
conduct prior to the election held in Case
lO-RC-7693 and recommended that the said election
be set aside and a new election ordered. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Kendall Company,
Hospital Products Division, Augusta, Georgia, its
officers , agents , successors , and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the election held in
Case 10-RC-7693 on April 10, 1969, be, and it
hereby is, set aside, and that the case be remanded
to the Regional Director for Region 10 for the
purpose of conducting a new election at such time as
he deems the circumstances permit the free choice of
a bargaining representative.
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to cummunicate with them . Excelsior
Underwear Inc. 156 NLRB 1236; N L R B v Wyman-Gordon Company,
394 U S. 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 10 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director . The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TuRITz, Trial Examiner . On February 24,
1969, in Case 10-RC-7693, United Papermakers and
Paperworkers , AFL-CIO ("the Union"), filed with the
Regional Director of the National Labor Relations Board
("the Board") for Region 10 a petition for certification of
representative of employees of Kendall Company,
Hospital Products Division ("Respondent" and at times
"the Company" or "the Employer"). Pursuant to a
stipulation for certification upon consent election executed
by Respondent and the Union and approved by the
Regional Director on March 17 , the Regional Director
conducted an election on April 10, 1969. Of the 236 valid
ballots counted , 109 were for and 127 against the Union;
and there were also 6 challenged and 1 void ballot On
April 17, 1969, the Union filed timely objections to the
election . On April 4 and May 27, 1969, in Case
10-CA-7731, Horace D. Grant, an Individual ("Grant"),
filed a charge and an amended charge, respectively, which
were duly served upon Respondent by registered mail on
these same days. On June 2, 1969, the Regional Director,
on behalf of the General Counsel of the Board , issued a
complaint and notice of hearing against Respondent in
Case lO-CA-7731. On that day the Regional Director also
issued a report on objections in Case 10-RC-7693 in which,
without ruling on the merits of the objections, he directed
a hearing on objections numbers 1 and 2, the remaining
objections having been withdrawn , and further directed
that the two cases be consolidated for purposes of hearing,
ruling and decision by a Trial Examiner . The complaint
and notice of hearing and the report on objections, order
directing hearing and consolidating cases and notice of
hearing were served on Respondent -Employer and the
Union. Respondent filed its answer in which it denied all
allegations of unfair labor practices . The hearing was held
in Augusta , Georgia, on July 22 and 23, 1969, before the
Trial Examiner named above . The Union was represented
by at the hearing by its international representative; the
General Counsel and Respondent-Employer were
represented by their respective counsel, and they have filed
briefs with the Trial Examiner.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following:
180 NLRB No. 125
KENDALL COMPANY 833
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT-EMPLOYER
Respondent is a Delaware corporation having an office
and place of business in Augusta, Georgia, where it is
engaged in the manufacture and sale of hospital supplies.
At its Augusta plant Respondent annually manufactures,
and sells and ships directly to customers located outside
the State of Georgia finished products valued at in excess
of $50,000. It is found that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the National Labor Relations Act, as
amended ("the Act").
II. THE LABOR ORGANIZATION INVOLVED
United Papermakers and Paperworkers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were
Respondent's rules as to the distribution of union
literature and solicitation of union membership on its
property, alleged interrogation of employees, creating the
impression of surveillance of union activities, threats of
retaliation and promises of benefits related to union
activities, and the allegedly discriminatory transfer and
ultimate discharge of Horace Grant. Unless otherwise
stated, all incidents occurred in 1969.
A. Interference, Restraint, and Coercion
1. Threats and promises, interrogation, surveillance
During the preelection campaign' Gainey, a supervisor,
approached various employees and asked them how they
felt about the Union, and he told them what he
denominated "the Company's side of the story." Among
the employees so questioned by Gainey was Carnell
Weathersbee, who testified that at the time he was
questioned, Gainey told him that he knew everyone who
had signed a union card. This testimony of Weathersbee
was denied by Gainey. The Trial Examiner found
Weathersbee more convincing than Gainey and has
credited Weathersbee. The natural tendency of Gainey's
question to Weathersbee, followed by his boast that he
knew everyone that had signed a card, was to create the
impression that Respondent was keeping a close watch
over the employees' union activities and that the question
was part of such watch. It is found that Respondent,
through Gainey, created an impression of surveillance of
the employees' union activities and coercively interrogated
employees as to their union membership, activities and
desires. It is further found that Respondent thereby
violated Section 8(a)(1) of the Act.
Grant testified that early in March Roney,
Respondent's project engineer, asked him whether he was
participating in the movement to get the Union into the
Company and that when he answered no, Roney said,
"Good, I got big plans for you." Roney, who had hired
Grant in August 1968, admitted that at the time of hiring
he had asked Grant what he thought of unions' and had
commented that he himself did not think much of them;
and he admitted that he-told Grant several times he had
"big plans" for him. He denied, however, asking Grant
whether he was participating in the organizational effort.
The Trial Examiner has credited Roney's testimony over
Grant's and finds that Roney did not promise Grant
benefits for refraining from union activities and did not
interrogate Grant.
During the preelection period George Guest, a
supervisor, asked Peggy Patton, who worked under him,
what she thought about the Union. Patton, who was
working at her machine, replied that she did not wish to
discuss the matter, but Guest said that he thought she
should, and he asked her what made her think the
employees should have a union. When Patton replied, "it
could be for more money," Guest said that the Union
promised much but could not compel the Company to
grant it. Patton testified that he said, "Don't you realize
that the Kendall Company will not pay any more money
regardless whether a union comes in or not?" Guest, while
agreeing with Patton as to most of the conversation,
testified that he merely "informed her that the Union
could only bargain, that it was up to the Company what
wages she would get." The Trial Examiner found Patton's
testimony more convincing than Guest's and finds that
Guest did say that the Respondent would not pay
employees more irrespective or whether or not the Union
got in. Guest's statement to Patton was, in effect, that
collective bargaining would be futile and that the
Company would fix wages as it pleased, unaffected by any
considerations presented by the Union if it was designated
by the employees. A threat not to bargain in a good faith
effort to reach agreement, as required by the Act, but
merely to pretend to bargain is coercive and violative of
Section 8(a)(1). Cf. K-D Manufacturing Company, 169
NLRB No. 10; cf. also Petrolane-Franklin Gas Service,
Inc., 174 NLRB No. 88 (Sullivan interview). Moreover,
by insisting that Patton, against her will, answer her
questions as to her thinking about the Union, Respondent
coerced his in further violation of Section 8(a)(1). See
Johnny's Poultry Co. and John Bishop Poultry Co.,
Successor, 146 NLRB 770, 775, enforcement denied 344
F.2d 617 (C A. 8).
In the first week of March Charles Purington, a
departmental general foreman, had a discussion with
Leona Justice, who was about to be transferred back to
his department at her request, in which he pointed out
that her work had been substandard in her other
department and warned her that he would now expect her
to perform acceptably. He then asked her if she wanted to
discuss the Union. Justice said that she did not, but he
nevertheless proceeded to ask her why she wanted the
Union in the plant. Justice said, "for better pay and better
working conditions." She volunteered that she would not
tell him whether she had signed a union card, to which he
replied, "well I wouldn't ask you that." Purington did not
simply caution Justice that her performance had to be
acceptable; he coupled his warning with insistent
interrogation about her desires concerning unionization.
Respondent had made no secret of its preference not to
have a union. The necessary tendency of the warning in
those circumstances was to make Justice feel that she
would be less apt to be discharged on the basis of her
performance on the job if she would align herself with
Respondent against the Union. The warning was therefore
coercive and violative of Section 8(a)(1) of the Act. As
'As already stated , the petition was filed on February 24 and the election
was held on April 10.
'This interrogation was not alleged in the complaint.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Purington pursued the questioning in the face of Justice's
stated desire not to discuss the matter, see Johnny's
Poultry Co.. supra, and since he did not explain to her
Respondent's need for the information it was seeking, the
interrogation itself constituted a violation of Section
8(a)(1) of the Act. See Blue Flash Express, Inc.. 109
NLRB 591.
On Sunday, April 6, a local newspaper carried
Respondent ' s help-wanted advertisement for operators,
packers and adjustors. On about April 8, which was 2
days before the election, Padgett, a supervisor in the
cotton and gauze finishing department , approached
Christine Hartin and asked her if she had seen the
advertisement, and he told her that Respondent was
advertising for operators, packers and adjustors. Hartin
asked whether these were to replace the union adherents if
the Union won and Padgett , shrugging his shoulders, gave
a noncommittal answer . The two proceeded to the
machine of Mavis Black , Hartin 's close friend, where a
similar conversation took place . Padgett testified that
these two employees were habitual complainers about the
lack of sufficient adjustors and the fact that operators
were required to take care of two machines instead of one.
He did not explain why he mentioned packers. Padgett
also stated that he approached the two women with the
information about the advertisement at the suggestion of
other employees. Hartin, however, testified that Padgett
started the conversation by saying, "Chris, I'm not trying
to scare you, but did you see the want ads?" The Trial
Examiner found Hartin's testimony convincing and has
credited her version of the conversation concerning the
help-wanted advertisements. Padgett spoke to the
employees frequently about the forthcoming election; he
himself admitted that he spoke to employees about the
Union "every chance I got." When, therefore, only 2 days
before the election he called their attention to the
advertisements , at the same time purporting to disclaim
the obvious implication that his purpose was to threaten
them , the reasonable interpretation was that he was
warning them that the jobs of union adherents might be in
jeopardy. Padgett's admitted failure to answer the
employees ' questions as to whether the advertisement
meant that they were to be replaced removed any possible
doubt that he was using the advertisement to threaten that
a union victory in the impending election might result in
loss of jobs. It is found that Respondent thereby violated
Section 8(a)(I) of the Act.
Hartin also testified that in the conversation at Black's
machine on that occasion Padgett recounted the fact that
he had been discharged by a former employer for union
activities, although the employer had not called it that.
She stated that when she commented that if the Union did
not get in , she was "as good as gone ," Padgett replied,
"Chris, you haven't only been asking for it, you've been
begging for it ." Padgett testified that his discussion with
Black and Hartin about his previous job was several
weeks before that. He also testified that his comment
"you've been begging for it" was on still a different
occasion and to another employee and was related to that
employee's procastination on the job. Black, in her
account of the conversation about the help-wanted
advertisement , said nothing about this part of the incident
as testified by Hartin. In view of Black's failure to
corroborate Hartin ' s testimony concerning the
conversation about Padgett's previous job, it is found that
the General Counsel has failed to prove by a
preponderance of the evidence that Padgett said he had
been discharged from a previous job for union activities or
that Hartin was "begging" for such a discharge.
Black testified that about 2 or 3 weeks before the
election she told Padgett that Betty Walker, another
employee, was not for the Company, as he thought, but
was for the Union. She testified that Padgett replied that
he and Purington had advised Walker to sign a union card
and say she was for the Union and to go to union
meetings , and had told her "that she could be bringing
them stuff and at the same time getting the people off her
back about signing a card." Black also stated that Padgett
exhibited a pen, distributed by the Union, which he said
Walker had given him. Padgett corroborated Black's
testimony as to her statement to him, but, as to his own
making any statement to her about Walker at that or any
other time, he testified, "I don't recall. I don't think so."
He categorically denied having had any conversation with
Black about Walker going to union meetings. He did
testify that Walker had told him that she was "getting a
lot of pressure" from her friends who were prounion and
asked him what to do, and that he had said, "Betty,
sometimes you have to tell them and act like you're with
them to get them to leave you alone," but he insisted that
he did not tell that to Black. The Trial Examiner has
credited Black over Padgett and finds that Padgett did tell
Black that he and Purington instructed Walker to go to
the meetings of employees held by the Union and to bring
back reports of the meeting. In so doing Respondent
created the impression that it was engaging in surveillance
of the employees' union activities, thereby violating
Section 8(a)(1) of the Act.
Hartin testified that before the election Padgett
approached her at her machine and asked her if she had
signed a union card and that she replied that she had not.
She testified, further,
He said if the union come in that we was all going to
start over again at rock bottom. And I said, 'You mean
I'll start back at $1.60 an hour?' And he said, 'We're
going to start all over.'
Padgett denied asking Hartin if she had signed a union
card and denied telling her that if the Union got in she
would start all over at rock bottom. He stated that Hartin
and almost all the employees asked him from time to time
what would happen if the Union won the election and that
he told them that in such event raises, benefits and such
things would be negotiable, that "anything you receive
from the Kendall Company will probably have to be
bargained for." The Trial Examiner has credited Hartin's
version of the conversation. It is found that by the
foregoing Respondent threatened employees with loss of
pay if they chose the Union as their bargaining
representative and engaged in coercive interrogation, and
that Respondent thereby violated Section 8(a)(1) of the
Act.
Hartin testified that her best recollection was that the
conversation took place approximately 6 weeks before the
election, but she admitted that it could have been as much
as 10 weeks before. As her best recollection was that it
was 6 weeks before the election and no credible evidence
was adduced that it actually took place earlier, it is found
that the conversation occurred after the filing of the
petition.
Robert Borchert testified to a number of coercive
statements by Purington, Gainey and Matthews. His
testimony lacked corroboration; moreover the bluntly
coercive tenor of the statements he testified to was missing
from the testimony given by all the other witnesses in this
proceeding. Borchert did not impress the Trial Examiner
KENDALL COMPANY
as a witness whose recollection could be relied on, and no
findings have been made on the basis of his testimony.
2. Prohibition of solicitation and distribution
On March 18, 19, and 20 Respondent held a number of
employee meetings to discuss the forthcoming election.
Each meeting was attended by 25 to 30 employees and all
hourly employees were eventually included. Most of the
meetings were addressed by Gallagher, the personnel
manager.
Cosnahan testified that at one of the meetings
employees asked whether union literature could be placed
round the plant for employees to pick up and read on
non-worktime and that Gallagher replied that no union
literature could be brought into the plant. Respondent
habitually distributed to its employees an employee
manual containing the following rule:'
SOLICITATIONS
In the interest of serving production, order and
discipline in our plant , the soliciting of financial
contributions, the selling of merchandise or the
conducting of any other solicitation during work time is
prohibited. In addition, distribution of literature or
printed matter of any kind in any work area or during
working time anywhere on company property, inside or
outside the building is prohibited and the posting of
notices, signs, or writing in any form anywhere on
company property inside or outside the building is
prohibited.
Gallagher denied telling Cosnahan that he could not bring
literature on plant property and he testified, "We have a
rule . . . which prohibits the distribution of literature in
work areas." He also stated specifically that he had
observed employees passing cards' in the canteen but had
taken no action since it was not against the rules. Asked
by his counsel to state the rule with respect to soliciting,
he said, "solicitations are prohibited during working hours
and in working areas." Asked a similar question as to the
rule about distribution of literature, he said, "distribution
of literature is prohibited in work areas ." Under
examination by General Counsel however, Gallagher
testified, "No solicitation or distribution of literature on
Company time or Company property is the essence of the
rule, in the interest of efficient operations , safety, and so
on," and that the foregoing , ". . . is exactly the rule" he
told employees who asked whether various activities were
permitted within the plant. Gallagher testified also that as
personnel manager he was charged with enforcing the
manual rule , that the manual rule was the rule he
enforced as he understood it, and that he "would say"
that what he told the employees in the meetings was the
same as what was in the manual rule regarding
distribution.
While the pleadings, as amplified by General Counsel's
statements at the hearing , foreclose a finding that
Respondent ' s maintenance of the manual rule constituted
an unfair labor practice, the meaning conveyed by that
rule is relevant to what the Complaint alleges . Gallagher
'The General Counsel, while insisting that the manual rule was illegal,
stated that it had not been pleaded as a violation and was offered only as
corroboration of oral testimony.
Gallagher first seemed to say that he had observed the distribution of
literature , but he then stated that what he had seen had been the "passing
of cards."
835
admitted that he was governed by it and charged with its
enforcement, and he admitted that that rule, as he
understood it, was what he told the employees in the
meetings. The more probable meaning conveyed by the
rule is that literature distribution was prohibited in any
work area regardless of time, and solicitation and
literature distribution were both prohibited during
"working time," regardless of area. However, "working
time" is an ambiguous term; it could mean the working
time of the distributor, of the distributee, or of the plant.
Since Respondent had three shifts, the last meaning would
have excluded solicitation and distribution, regardless of
area, during substantially the entire 24 hours of a day,'
but Gallagher stated the rule to the employees so as to
mean just that. He set forth what he termed "the essence
of the rule" and what he told the employees in the
disjunctive, thus saying, in effect, that employees would be
in violation if they solicited for the Union or distributed
literature on worktime, without limitation as to place, and
that they would be in violation if they did so on company
property, without limitation as to time.'
On the basis of the foregoing it is found that
Respondent prohibited employees, at any time when on
company property, from soliciting union membership or
support and from distributing union literature and that
Respondent promulgated and maintained 'a plant rule to
that effect.' It is further found that Respondent thereby
violated Section 8(a)(l) of the Act.
3. Soliciting withdrawal of union cards
At one of the meetings an employee asked Gallagher
how those employees who had signed cards but changed
their minds should go about getting the cards back.
Gallagher replied that he did not know the answer but
would check into the matter and would offer help to that
end if it was "indicated" that that should be done. He
added that the important thing was not the signing of the
cards but the employees' votes in the Board election, and
that a card did not obligate the signer to vote for the
Union.' It is found that the General Counsel has failed to
prove by a preponderance of the evidence that Respondent
solicited employees to withdraw their authorization cards.
'The risk of ambiguity in a rule restrictive of employees' concerted
activities must be carried by the promulgator , it cannot be placed on the
employees required to comply with the rule . See N L R.B v. Harold
Miller, Herbert Charles and Milton Charles, Co-Partners, d/b/a Miller,
Charles and Co., 341 F.2d 870 (C A. 2), enfg 148 NLRB 1579.
'The disjunctive makes the invalidity of the rule stated by Gallagher
plain. However , use of the conjunctive would not necessarily make the rule
valid See Miller, Charles and Co, supra.
'In making the above findings the Trial Examiner has taken into
consideration Gallagher 's testimony , set forth above , formulating the rules
less sweepingly . That testimony was given in response to carefully framed,
although nonleading , questions by his counsel as to what the rules were
The Trial Examiner has concluded that Gallagher 's more general
formulation of the rules which he testified he told the employees are a
more reliable indication of what was said at the meeting The Trial
Examiner has also considered the testimony that employees who received
leaflets outside the plant carried them in with them , and Grant's testimony
that he distributed some leaflets and cards to employees in the restroom
'Two employees testified that Gallagher said that he would get the cards
back However they did not have a clear recollection of exactly what he
said and their testimony on the point has not been credited.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discrimination
1. Grant's transfer to more arduous and onerous
work
Respondent started its Augusta operation in 1967 with
the opening of a training center downtown for the purpose
of developing a nucleus of experienced employees. In
about October 1968 equipment was moved from the
training center to the new plant and production began. At
the beginning of February 1969 the Union started its
campaign. On about March 10 Cosnahan and Grant, both
of whom, to Respondent's knowledge, favored the Union,
were assigned to work for Roney, who had been given the
task of designing and building certain rotators. Just
previous to that they had been working under Fowke,
Respondent's maintenance foreman. The General Counsel
contends that the assignment of Grant to the rotator job
was discriminatorily motivated.'
Respondent had been having trouble for some time in
its efforts to get a well-functioning rotator. In October
1968 it purchased three which failed to function properly.
In November 1968 Cosnahan and Grant built a rotator
designed by Roney which fell apart as soon as it was tried
out. Various construction contractors were still at work in
the new plant and Roney engaged one of them to
construct rotators of a different design . The contractor
built the first one in the warehouse, which was within the
plant proper. However, as general work progressed in the
plant, there was more and more need for the warehouse
space, and Roney moved the rotator project to the boiler
house, where the temperature was uncomfortably hot. By
the end of the second week of January 1969 the contractor
had built eight rotators, seven of them in the power house.
They were installed in the plant and were able to function,
albeit with a degree of inefficiency. Roney engaged one of
the construction contractors to make certain
modifications. One machine was modified, the work being
done by the contractor in the boiler house. Respondent
was not satisfied however, since the contractor, unable or
unwilling to concentrate sufficiently on the job, took too
long to accomplish the modification. It was then that
Cosnahan and Grant were assigned to make the
modification on the remaining rotators.
One basis of the General Counsel's contention that the
assignment was discriminatorily motivated was that the
rotator work was nonelectrical, whereas Grant had been
hired as an electrician . Roney admitted that Grant was
hired to fulfill a need for a man with an electrical
background. However, when being hired, Grant was
questioned as to his ability to do certain nonelectrical
work and was told that he would have to do some on the
job. The amount of nonelectrical work that he did
perform prior to the advent of the Union was by no
means insubstantial ; as he himself explained, ". . . they
didn't have that much electrical work." The General
Counsel has not shown that others might more logically
have been assigned the rotator job. He points to the
availability of Griffin, a welder; but the rotator work
involved much more than welding, and in any event
Griffin was being utilized as a pipefitter. Moreover,
Cosnahan and Grant were the employees usually assigned
to Roney for his projects and, as noted above, in
November 1968, prior to the advent of the Union, they
'Cosnahan filed no charge and the General Counsel makes no claim that
he was discriminated against No inference is drawn from this
circumstance.
had actually constructed a rotator under Roney's
direction.'"
The General Counsel also contends that Grant was
ordered to do the work in the power house rather than in
the plant proper in order to make it more arduous and
unpleasant . Roney's credible explanation of the need for
space in the warehouse has not been contradicted.
Moreover, whatever unpleasantness was involved in the
heat in the boiler house had been suffered by the
employees of the contractor who had worked there
building seven of the rotators; and the allegedly "more
arduous and onerous" work of moving the heavy rotators
from the plant proper across railroad tracks and other
obstacles to the boiler house had been shared by Roney
himself.
Finally, the General Counsel contends that
Respondent 's discriminatory motive is disclosed by certain
remarks of Roney, some of which have already been
disposed of in subsection A above. Grant testified that on
the day he started work on the rotator assignment Roney
remarked to him that he apparently did not like Kendall
rules and asked why he did not quit; and that he replied
that he would be there until after the election. Grant
further testified that Roney then said , "You've got a right
to be bitter but I want to help you. But if the union tries
to come in here, I can't do nothing." Roney stated that on
about March 26, when Grant complained bitterly to him
that he was not being treated right, he told Grant that he
was sure things would be worked out for him and that
conditions were not the same as before. Roney admitted
that on one occasion he said to Grant, ". . if I was as
bitter as you about the Company, I believe I'd quit too,"
but he testified that this occurred after Grant had notified
him that he was quitting and persisted in that decision
after he himself had urged Grant not to quit." The Trial
Examiner has credited Roney's testimony as to these
matters over Grant's.
It is found that the General Counsel has failed to prove
by a preponderance of the evidence that Respondent
transferred Grant to a job or work that was more arduous
and onerous than his normal duties, or that Respondent
assigned or transferred Grant to any job or work for
discriminatory reasons.
2. Grant' s discharge
Roney testified that during his last few days on the job
Grant seemed " kind of aggravated" and was not
performing up to par. On Wednesday , April 2, he
testified , he asked Grant if he was not feeling well, and
Grant replied that he was quitting and that he had a
better job , much closer to home, at $4.50 an hour. Grant
lived 20 miles from Augusta, and his pay at that time was
$3.50 per hour . Roney testified that later that day Grant
asked him if he could get both his checks Friday so that
he would not have to come back .'I Roney told Grant that
"Grant admitted to having performed the following additional
nonelectrical work before being assigned to modify the rotators moved
gauze pad machines and sponge machines from the training center to the
plant , did instrument work in the quality control department , did work on
doors, including the change in location of the door in the toolroom fence,
and made all gaskets on certain large vats, called kiers.
"Roney placed the conversation on Tuesday , April I However, he also
identified the occasion as a Wednesday and as Grant 's last day on the job,
which the record shows was Wednesday , April 2
"Normally Grant would have received a check on Friday , April 4, for
the previous week , and would have received his check for the then current
week later.
KENDALL COMPANY 837
he could not handle that matter and that Grant should see
Gallagher, the personnel manager. Gallagher testified that
on the morning of April 2 Grant came to his office, where
he was in conference with Lombardi, Respondent's
division director of personnel, and said that he was
quitting, and that Friday would be his last day; that he
had decided to take a better paying job which was
available, and that he requested that he receive both his
checks on Friday. Lombardi testified substantially to the
same effect. Gallagher testified, further, that the checks
were prepared and handed to Fowke with instructions to
tell Grant that he was being paid " in lieu of notice" and
that he would not have to work through Friday.
Fowke did deliver the two checks to Grant, remarking,
"They was going to let you go Friday but they decided to
pay you on through Friday. Get your tools and I'll see
you out the . . . door." Grant went over to Cosnahan and
remarked, "I got both my checks. I reckon I'm gone."
After Grant left, Fowke approached Cosnahan and asked
what had happened, to Grant. Cosnahan said, "I don't
know. I thought maybe you'd tell me," to which Fowke
replied, "Well all I know, they gave me both his checks
and told me to bring them down here and give them to
him. That's all I know."
Grant meanwhile had proceeded to the toolroom, where
a number of employees approached him. Among them
was Joe Pressley, a machinist , who testified:
And I walked over and asked him what was going on
and he said, "I quit." I said, "You quit or you got
fired?" He said, "I quit."
Pressley further testified that Grant said that he had
another job he could go to. McCall, the toolroom
attendant, testified that on the previous Monday Grant
had told him that he had, a job "at his back door" and
was "supposed" to start the following Monday, which
would have been April 7.
Cosnahan testified that Grant had told him that he
thought that if the Union did come in it would be a good
place to work, and that even though he had another job,
he would remain until after the election. Grant testified
that he had informed several employees that if the Union
did not win the election, he would quit,'but that he would
remain until after the election. He denied that he had quit,
denied telling anybody that he had quit, and denied even
going to Gallagher's office on April 2. He admitted
telephoning Roney the next afternoon and asking if he
had been fired or had quit. He explained that he had
heard that some employees had been told that he had quit,
and that he thought, since he was applying for work, a
statement on his application that he had quit would be
more helpful than one to the effect that he had been fired
for union activities.
In summary, the credited evidence arguably tending to
support the contention that Grant was discharged consists
of Cosnahan's testimony that Grant, who was his partner
on the job, had never told him that he had quit but had
told him, "I reckon I'm gone," Grant's undenied
testimony that Fowke told him, "They was going to let
you go Friday but they decided to pay you on through
Friday ...," and Gallagher's testimony that he instructed
Fowke to pay Grant for 2 days not worked "in lieu of
notice." Opposed to this is Grant's admission that he
telephoned Roney the next day to ask whether he had quit
or had been fired, the testimony of Gallagher, Lombardi
and Roney that on April 2 Grant announced his quitting,
Pressley's testimony that Grant said he had not been fired
but had quit because he had a better job, and McCall's
testimony that Grant had told him a few days before that
he had a better job and was supposed to start on Monday.
The Trial Examiner has credited McCall's testimony and
has credited the testimony of Roney, Gallagher and
Pressley that Grant told them he quit. The Trial Examiner
notes, also, that while "let go" commonly means
discharge, Fowke's statement in its entirety means, rather,
that Respondent had been thinking of allowing Grant to
leave on Friday, as he had requested, but had decided to
have him leave immediately without loss of pay. It is
found that Respondent did not discharge Grant.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Respondent set forth
above in section III , above, occurring in connection with
its operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
As it has been found that Respondent has engaged in
certain unfair labor practices, it is recommended that the
Board issue the' Recommended Order set forth below
requiring Respondent to cease and desist from said unfair
labor practices and to take certain affirmative action
which will effectuate the policies of the Act.
It has been found that the manual rule was subject to
interpretation as illegally restrictive of the employees'
right to engage in concerted activities. The fact that,
because of the state of the pleadings, no finding has been
made as to whether Respondent's maintenance of that rule
constituted an unfair labor practice shall not be deemed to
mean that its continued maintenance in its present form
would not constitute a violation of the Recommended
Order.
VI. THE REPRESENTATION PROCEEDING
In view of the findings that Respondent did not
discriminate against Grant , it is recommended that
Objection No. 2 be overruled. However, it is found that
each of the unfair labor practices which it has been found
Respondent did engage in interfered with the employees'
free choice in the election and constituted conduct which
tended to affect the results of the election. It is,
accordingly, recommended that Objection No. 1 be
sustained and that the Tally of Ballots be vacated and the
election set aside and a new election held at an
appropriate time to be determined by the Regional
Director.
Upon the basis of the foregoing findings of fact and of
the entire record in this case the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Respondent, Kendall Company, Hospital Products
Division , is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. United Papermakers and Paperworkers , AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. By its actions with respect to Horace D. Grant,
Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(l) or (3) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, Respondent, Kendall
Company, Hospital Products Division, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
membership or desires in a manner or under
circumstances constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the Act.
(b) Threatening employees with discharge, more
stringent standards of performance mt the job, loss of
employment, or loss of pay, for seeking to bargain
collectively through United Papermakers and
Paperworkers, AFL-CIO, or any other labor organization.
(c) Creating; the impression among employees that
Respondent has engaged in surveillance of, or in spying
on, employees in their union activities.
(d) Threatening employees that if they designate a
representative for collective bargaining Respondent would
not bargain in a good faith effort to reach agreement, or
that bargaining would be futile.
(e) Prohibiting employees from distributing union
literature during their nonworking time in non-work areas,
or promulgating or maintaining any rule or regulation
containing such prohibition.
(f) In any manner prohibiting employees from soliciting
their fellow employees on behalf of the Union or any
other labor organization during their nonworking time, or
maintaining any rule or regulation containing such
prohibition.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Post at its office and place of business located in
Augusta, Georgia, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 10, after being duly
signed by its representative, 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 to
ensure that said notices are not altered, defaced or
covered by any other material.
"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 , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations,
automatically become the findings, conclusions , deci;ion and order of the
(b) Notify said Regional Director for Region 10, in
writing , within 20 days from the receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith."
IT IS FURTHER RECOMMENDED that the allegations of the
complaint that Respondent promised a foreman's job or
other benefits to employees if they would refrain from
union activities , threatened employees with physical
assault if they assisted the Union, threatened to spy on
union meetings , solicited employees to withdraw
authorization cards, and discriminatorily transferred and
discharged Horace D. Grant, be dismissed.
Board , and all objections thereto shall be deemed waived for all purposes
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,
this provision shall be modified to read "Notify said Regional Director for
Region 10, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT question you about your union
membership or desires in such a way or under such
circumstances as to restrain or coerce you in the
exercise of your rights under the National Labor
Relations Act.
WE WILL NOT threaten you with discharge, loss of
employment, loss of pay, or tougher standards of
performance on the job, or to punish you in any other
way, if you seek to bargain collectively through United
Papermakers and Paperworkers, AFL-CIO, or any
other labor organization.
WE WILL NOT make you think we are spying on your
union activities.
WE WILL NOT threaten not to try in good faith to
reach an agreement with your representative for
collective bargaining if you chose to have one.
WE WILL NOT maintain any rule, regulation, or
policy prohibiting you, when you are on nonworking
time, from soliciting your fellow employees to join or
assist the Union.
WE WILL NOT maintain any rule, regulation, or
policy prohibiting you, when you are on nonworking
time, from distributing union literature in nonwork
areas of the Company property.
WE WILL respect your rights to self-organization, to
form , join or assist any labor organization, to bargain
collectively as to terms and conditions of employment
through representatives of your own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
KENDALL COMPANY,
HOSPITAL PRODUCTS
DIVISION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
KENDALL COMPANY 839
anyone. Any questions concerning this notice or compliance
This notice must remain posted for 60 consecutive days with its provisions may be directed to the Board ' s.Office,
from the date of posting and must not be altered , defaced, 730 Peachtree NE., Atlanta, Georgia 30308, Telephone
or covered by any other material. 404-526-5760.