Kuhlman Corp.

National Labor Relations Board - Board Decisions

May 21, 1974

210 N.L.R.B. 776 (N.L.R.B. 1974)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuhlman Corporation and International Union of
Electrical , Radio and Machine Workers,
AFL-CIO-CLC, and its Local 799. Case
15-CA-4943
May 21, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 8, 1974, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, exceptions and supporting
briefs were filed by the Respondent and the General
Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Kuhlman Corporation, Crystal Springs, Mississippi,
its officers , agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified.
1. Add the following as paragraphs 1(b) and (c),
respectively:
"(b) Telling employees that they or other employ-
ees will be discharged for having engaged in union or
other protected concerted activities."
"(c) In any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of
their right to self-organization, to form labor organi-
zations, to join or assist the above-named Union or
any other labor organization, to bargain collectively
through representatives of their 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 of such
activities."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
I During the Board -conducted election at Respondent 's plant on July 12,
1973, employee Luke Funchess served as an observer for the Union. The
Administrative Law Judge found that , upon seeing Funchess performing his
observer duties , Supervisor Todd Parrett-clearly referring to Funchess
-told employee Dragovich that "that black son of a bitch is going to go
after the election." In the same conversation , Parrett also declared that
Respondent would win that election by a specified number of votes. The
complaint herein alleged , inter alga, that Parrett 's remarks were violative of
Sec 8(a)(1) of the Act, but the Administrative Law Judge failed to either
sustain or dismiss that allegation.
We find that Parrett's statement to Dragovich carried the clear
implication that certain union activities could or would lead to the discharge
of other employees Accordingly, we conclude that Respondent , through its
supervisor , engaged in conduct which interfered with, restrained, and
coerced employees in the exercise of their rights guaranteed by Sec. 7 of the
Act and constituted an unfair labor practice within the meaning of Sec
8(axl) of the Act. See Odai Printing Company, Inc., 188 NLRB 63.66, enfd.
456 F 2d 1335 (C.A. 2).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, and its Local
799, or any other labor organization, by discharg-
ing or refusing to reinstate employees or in any
manner discriminating in regard to their hire or
tenure of employment, or any term or condition
of employment.
WE WILL offer Luke Funchess and Eddie
Blackwell immediate and full reinstatement to
their former jobs or, if they are not available, to
substantially equivalent positions, without preju-
dice to seniority or other rights and privileges,
and make them whole for any loss of pay suffered
as a result of the discrimination against them.
WE WILL NOT tell our employees that they or
any other employees will be discharged for
engaging in union or other protected concerted
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist the above-
named or any other labor organization, to
bargain collectively through representatives of
their 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 and all such activities.
KUHLMAN CORPORATION
(Employer)
Dated By
(Representative) (Title)
210 NLRB No. 116
KUHLMAN CORPORATION
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 compr
ance with its provisions may be directed to the
Board's Office, Plaza Tower, Suite 2700, 1001
Howard Avenue, New Orleans, Louisiana 70113,
Telephone 504-527-6361.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: Upon a
charge of unfair labor practices filed on August 6, 1973, by
International Union of Electrical, Radio and Machine
Workers, AFL-CIO-CLC, and its Local 799, herein called
the Union, against Kuhlman Corporation, herein called
Respondent or Company, the General Counsel of the
National Labor Relations Board issued a complaint on
October 3, 1973, alleging that Respondent had violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, herein called the Act, by discharging two
employees because of their membership and activities on
behalf of the Union. Respondent filed an answer, and a
hearing was held before me at Crystal Springs , Mississippi,
on October 30 and 31, 1973, at which all parties were
represented. Subsequent to the hearing, General Counsel
and Respondent filed briefs which have been considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent, a Michigan corporation with its principal
office and place of business in Birmingham, Michigan,
manufactures electrical power transformers at its Crystal
Springs, Mississippi, facility, the only facility involved in
this proceeding.
During the 12-month period preceding the issuance of
the complaint, Respondent manufactured, sold, and
shipped products valued in excess of $50,000 from its
Crystal Springs, Mississippi, facility, directly to points
outside the State of Mississippi.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
I During the day, employees enter information on the cards about the
jobs they work on Some employees leave their cards in the rack and use
III. THE ALLEGED UNFAIR LABOR PRACTICES
777
A. The Discharge of Luke Funchess and Eddie
Blackwell on August 2, 1973
1. Basic findings
The Company has an admittedly long-established rule
against punching other employees ' timecards . Funchess
and Blackwell were terminated on August 2, 1973, because
Funchess punched two timecards on August 1 and gave
one to Blackwell , according to Respondent , but General
Counsel claims that neither employee engaged in miscon-
duct and that Respondent was motivated by antiunion
considerations in discharging them . Respondent also
contends that even if the employees were innocent of the
offense of punching another's card , the discharges were not
a violation of the Act because Respondent , in good faith,
believed that they had violated Respondent 's rule in that
regard.
Funchess and Blackwell worked in the assembly depart-
ment under Supervisor Hallman . Funchess had been
employed for approximately 6 years when he was terminat-
ed and Blackwell had worked for about 9 months. Both
employees had good work records and neither had received
any warnings prior to discharge.
Funchess and Blackwell were members of the Union's
organizing committee which existed prior to a Board
election which the Union won on July 12, 1973. Funchess
was more noticeably active in union affairs than Blackwell,
for he obtained many more employee signatures to union
cards prior to the election and he also acted as a union
observer during the election , a job which required him to
visit each department with a company observer and
announce that employees could cast their ballots at that
time . Funchess was also elected to the Union 's negotiating
committee less than a week before his discharge. Both
employees are black, and Blackwell testified , without
contradiction, that Funchess was the principal union
activist among the blacks.
Respondent maintains a number of timecard racks and
clocks , but involved in this case is the so-called "big
assembly timeclock" where employees from Funchess' and
Blackwell's department normally punch in and out. The
timecards which the employees use do not contain their
names or any other identification before the employee
utilizes them each day. They are blank , and the practice is
for each employee to take one from the rack , insert it into
the timeclock to record the time, then enter his department
number and the last four digits of his social security
number on the card, and, on punching out at the end of the
day, leave his card in the box at the clock.' All clocks
operate on a 24-hour basis, beginning at 7 a.m. as 0:00, and
each hour is divided into hundredths rather than minutes.
It is important to note that the first recording in the
morning is 0 : 00 and the second is 0:02 , and that 1.2
minutes elapse before the clock changes from 0:00 to 0:02.
Funchess testified credibly that on the morning of
August 1, 1973, he took a timecard out of the rack and
punched it on the wrong side. He laid this card down and
scratch paper on which to make notes about the jobs for later transference
to the timecards.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
punched another correctly, and, after entering his depart-
ment number and clock number on the card, he returned it
to the rack and picked up the other card and put it in his
shirt pocket.2 He then entered the nearby men's room
where he cleaned his safety glasses and left.
As Funchess walked out of the restroom door, he saw
Blackwell walking away from the timeclock toward their
department.
Blackwell testified credibly that, after he punched in on
August 1, he observed Funchess coming out of the men's
room . He spoke to him and they walked together to their
department.
Carl Terrell, an employee, testified that on the day
before Funchess and Blackwell were fired, a day he
remembered was Wednesday, a payday, he punched in at
0:02, right behind Blackwell. He said that as he ap-
proached the timeclock Blackwell was at the clock, 15 feet
or so ahead of him, making motions in front of the clock
like one who was punching a timecard would make. After
he himself punched his card, Terrell said, he saw Funchess
come out of the men's room and join Blackwell, and they
walked to their department together.
Neither Funchess nor Blackwell saw Terrell near the
timeclock, and Terrell said he did not see employee-
timekeeper Neal in the area. Neal's card, as will appear in
more detail later, for he is Respondent's main support for
its contention that Funchess punched a timecard for
Blackwell, is time-stamped 0:00, the same as Funchess' and
Blackwell 's. I consider the circumstances that Terrell did
not see Neal and that Blackwell and Funchess did not see
Terrell as interesting but not particularly significant .3
Terrell is still employed by Respondent and at one time he
refused to give a Board investigator a sworn statement
because he did not want to get "involved," he said. I
observed him carefully and I believe he was telling the
truth. I find that he saw Blackwell punch his own timecard
on August 1.
Production Control Manager Hickman testified that
timekeeper Neal4 reported to him that he had observed
from a review of timecards that, during the 2-week period
prior to August 1, Funchess and Blackwell had punched in
at the same time. Neal also advised him during the same
period that on one occasion he saw Blackwell approaching
the timeclock and signaling to Funchess, who was standing
at the clock, to punch a card for him. Hickman said that
Neal also brought to his attention timecards that he had
found around the timeclock which had been punched, but
which contained no identifying department or employee
numbers . On the basis of these reports from Neal,
Hickman said he felt that "we had reason to believ;, tnat
some person was punching more than one card," and so he
instructed Neal "to observe the cards." H' testified that,
on August 1, Neal told him that he had seen Funchess
punch two timecards that morning. He asked Neal if he
had seen Blackwell "anywhere," but Neal had not.
Hickman then instructed Neal to have the timecards
checked when he picked them up the next morning to "see
if *_ unchess and Blackwell were punching in at the same
time." Hickman said he reported the situation to Personnel
Manager Havens that day.
On August 2, Neal brought Hickman the timecards for
the previous day, and Hickman noted that Funchess and
Blackwell had punched in at 0:00. Hickman told Neal to
show the cards to Havens , and later on he, too, spoke with
Havens. He testified that they concluded "with the
evidence we had there it looked like Luke had punched
Blackwell's card . . . ." On that basis, he said, they
decided to terminate Funchess and Blackwell but to let
Division Manager Smelko make the final decision.
Neal testified that Havens and Hickman told him a few
weeks prior to August 1 that "they had heard" that
timecards, which had been punched but without identifica-
tion, had been seen lying near the timeclocks, and they
instructed him to report what he observed. Neal said he did
discover punched but unidentifiable timecards thereafter
on two occasions, "at two different time clocks," and
reported his findings to his superiors. He also said that on
occasion he noticed that Funchess' and Blackwell's
timecards indicated that they had punched in at the same
time. According to Neal, Hickman also told him that
Blackwell had been seen coming in late mornings , but his
timecard would be punched at the proper time, and he
added that he, too , had seen Blackwell come in late one
morning but have a proper time stamped on his card when
it was inspected. He said this happened 5 or 6 days before
August 1, but he did not report it to Hickman until "later."
In his testimony, Neal also described the incident where
Blackwell is claimed to have signaled Funchess to punch a
timecard for him. Neal said that Blackwell had "his finger
up in the air" while Funchess "was leaning to get a card
but he never did go to get it." Neal agreed that he could
not "say for sure" what Blackwell meant by his gesturing,
and he stated that no extra card was punched.
Neal testified that on August 1 he punched in right after
Funchess. He said he saw Funchess punch two cards, place
them in his pocket, and enter the nearby men's room, but
he did not see him leave. He did not see Blackwell or
Terrell in the area, and although he named certain
employees who were standing around waiting to go to
work, he did not mention employee Jones. Neal told
Hickman what he had seen Funchess do, and it was agreed
that the timecards would be checked on the following
morning . On August 2, Neal brought Funchess' and
Blackwell's cards to Hickman and Havens.
Personnel Manager Havens testified that prior to August
1, 1973, he had reports that some timecards had been
found at various clocks already punched but without
identification. He also said that he had heard about
"people punching more than their own card," but he added
that he had no recollection of the time or the person who
gave him this information.
Havens said he was told by Hickman on August 1 that it
"was suspected" that Funchess had punched two cards and
that Blackwell had used one of them. On August 2, Neal
2 Funchess is one of the employees who leaves his card in the rack after 3 Neal did not see Blackwell or Terrell either, but he had gone to work
punching in and uses scrap paper to record job and specification numbers on his timecards as soon as Funchess entered the men's room.
during the day for later entry on the timecards I credit his testimony that he 4 Neal is employed in production under Supervisor Hallman , but he also
has used spoiled timecards for this purpose in the past and that this is why is assigned to gather and record the information on the timecards in his
he kept the improperly punched timecard on August 1 department , a task which takes about an hour each day.
KUHLMAN CORPORATION 779
brought him the timecards which showed that Neal,
Blackwell, and Funchess were all recorded as punching in
at 0:00. Neal also reported that he had seen Funchess
punch two cards on August 1 and enter the men's room,
according to Havens, who then asked Neal if anyone else
had seen the incident. Advised by Neal that employee
Jones had, Havens said he checked with Jones who
confirmed it.5 Havens said he then informed Division
Manager Smelko what had happened and asked his advice.
Smelko, he said, told him "to take action in accordance
with the company rules." After talking with Smelko,
Hansen instructed Supervisor Hallman to bring Funchess
and Blackwell to his office.
Havens testified that when Funchess and Blackwell
reached his office he addressed Funchess, stating that he
had been accused of punching two timecards, which he
showed Funchess, and of giving one to Blackwell. He said
he then asked Funchess if he had anything he wanted to
say, but Funchess said nothing. He then turned to
Blackwell, who stated that he had punched in at a different
timeclock. Havens said that Blackwell denied asking
Funchess to punch a card for him, but that he did not
respond to other questions. On the basis of the evidence
and the interview, Havens said he had no alternative but to
dismiss both employees.
Supervisor Hallman was present when Funchess and
Blackwell were terminated. He testified that Havens
accused the men of violating the rule and gave them an
opportunity "to express their feelings." Funchess did not
respond, but Blackwell made some remark, which he did
not understand, about not punching in at the "big
assembly clock." This was all Hallman remembered about
the meeting. As he and the employees left Havens' office,
Blackwell said something about being "framed ," Hallman
recalled, but he said he did not reply, but only commented
that he was sorry that "this happened." Although he
supervised the complainants, Hallman said he knew
nothing about "this problem punching," and he had not
been informed by anyone in management that Funchess
and Blackwell were suspected of punching in for each
other until Havens told hun to bring them to his office on
August 2.
Funchess' account of the meeting in Havens' office
differs mainly in regard to the sequence of remarks, the
tone of the meeting, and his evaluation of it. He agreed
that he did not defend himself when Havens accused him
of punching two cards. He explained that he assumed that
Havens was talking about the previous day when he
actually had punched two cards, and he said he asked for
no explanation because he felt that Respondent had
already decided to fire him and that it would do him no
good to argue. He testified that Havens opened the
meeting by stating that he and Blackwell were being let go
because he had been seen punching two cards and giving
one to Blackwell. He asked Havens if he should turn in
company materials and Havens said he should. He recalled
Blackwell asking Havens when the incident was supposed
to have occurred and getting no reply . When Blackwell
made the same inquiry again , Funchess said he told
Blackwell to "forget it" and "let's go," because Havens'
mind was made up . As they left the room , with Hallman
accompanying them , Hallman commented that he had had
nothing to do with what had happened. He had no
recollection of Blackwell indicating at the meeting that he
had punched in at another clock on August 1.
I have previously indicated that I found Funchess to be a
reliable witness, and although he may not have remem-
bered exactly what was said by everyone at the time of his
termination, anymore than Havens or Hallman could have,
I believe his account is basically sound , and I credit his
explanation for his silence when accused on the basis of his
good-faith and rational belief that Respondent had
irrevocably decided to fire him before he entered Havens'
office and that no explanation would save his job.
Funchess was fully aware of Respondent 's rule against
punching timecards for other employees , and he testified
credibly that he never has punched a card for another
employee or has had it done for him. He also said he had
no understanding with Blackwell to punch a card for him if
he was late for work.
Blackwell testified that, after Havens accused Funchess
of punching two timecards and giving one to him, he asked
Havens when this incident occurred, but Havens did not
answer him. It was at that point , he said , that Funchess
said to him, "let's go," adding that nothing they could say
would make a difference . He also recalled Supervisor
Hallman stating that he had nothing to do with the
situation . Asked why he did not deny Havens' charge when
he made it, Blackwell indicated that he was, in effect,
denying the accusation by asking when it had occurred. He
explained further that he thought that he and Funchess
were being terminated because of their union activities,
since there was no other valid reason he could think of, and
he also believed because of Havens ' demeanor that nothing
he said would alter Havens ' decision.
As in Funchess' case, I credit the substance of Black-
well's testimony, and I find that he had reason to believe
that he and Funchess were confronted with a fait accompli
and for that reason made little effort to defend himself. I
also credit his testimony that Havens ignored his inquiries
and that Hallman made it clear that he had not been
involved in anyway in the terminations.
Blackwell also knew about the rule on punching
timecards. He credibly denied that he and Funchess had
ever punched each other's timecards . He also credibly
denied that, about a week or so before August 1, he made a
hand gesture to Funchess indicating he wanted him to
punch a timecard for him, as Neal had testified.6
As indicated earlier , Funchess acted as an observer for
the Union during the Board election on July 12, and he
and a company observer visited each department in the
plant advising employees that it was time for them to vote.
Employee Dragovich testified that during the election
Perrett, foreman of the maintenance department , spoke to
5 Jones was not called as a witness. He signed a statement for Havens on permitted this document into evidence, not for the truth of the statements in
August 2, 1973, which was prepared by the Company's personnel relations it, but as information in Respondent's possession before it terminated the
director from the corporation's Birmingham, Michigan, office, stating that complainants.
he saw Funchess punch two cards and "put them down." Blackwell then 6 Funchess also denied that such a thing had occurred.
"came over and picked up one of the cards," according to the statement. I
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him and commented that the Company was going to win
the election by a certain number of votes . According to
Dragovich , at that time Funchess and the company
observer, who were releasing employees to vote, ap-
proached the area , and Perrett turned to Dragovich and
stated , "that black son of a bitch is going to go after the
election."
Perrett testified that he could have spoken with Drago-
vich on election day, but he denied all the remarks
attributed to him by him . He said he thought the Company
would win the election and that he probably voiced his
opinion to employees . He has known Dragovich for a
"good many years ," and he occasionally "kids" with him.
Dragovich has been employed by Respondent for 5 years.
Logic and probability strongly indicates that Dragovich
was not fabricating a conversation with a supervisor, and I
was also favorably impressed by the low-keyed and
apparently sincere way in which he testified . I credit his
testimony in full.
2. Analysis, additional findings, and conclusions
There is no question, as Respondent contends, that an
employer can discharge "for good cause, or bad cause, or
no cause at all," 7 or that General Counsel has the burden
of proving that the discharges were illegally motivated. It is
also clear that the mere existence of conduct which is
violative of Section 8(a)(1) of the Act does not automatical-
ly make a discharge an unlawful ones Contrary to
Respondent's position, however, I find that General
Counsel has established by a preponderance of the
evidence that the discharges of Funchess and Blackwell
were motivated by illegal considerations. More specifically,
I find that Respondent had no legitimate basis for
discharging these employees nor did it in good faith believe
that it did. These factors and other considerations to be
discussed lead me to conclude that the employees' union
activities and nothing else caused Respondent to discharge
them.
Funchess was known to be active in the Union.9 He was
the most active of the black employees and he stood out
among the other employees by acting as a union observer
during the election , going from department to department,
telling all employees and their supervisors that it was time
for the employees to cast their ballots. His appearance in
the plant caused Supervisor Perrett to predict that he
would no longer be employed after the election, which
Perrett expected the Company to win.
The timing of the discharges is of some significance.
Respondent began to observe Funchess' and Blackwell's
timecard-punching habits shortly after the Union won the
election , according to Neal, and Funchess was fired less
than a week after he was elected to the Union's negotiating
committee.
7 N.L.R. B. v. T.A. McGahey, Sr, et al., dibla Columbus Marble Works,
233 F 2d 406 (C.A. 5, 1956)
8 N.L.R.B v. Fox Manufacturing Company, 238 F .2d 211 (C.A. 5, 1956).
9 Havens incredibly testified that he knew of no prounion employee in
the plant before the election. It is beyond dispute, of course , that he knew
about Funchess ' role in the election , and I believe he must have known, or
suspected at least, that Blackwell, as a friend of Funchess , if for no other
reason , was prounion . In any case, regardless of what he knew about
Blackwell's union activities , having decided to fire Funchess , who in my
Funchess and Blackwell did not commit any offense
against company policy, as I have found above. They
corroborated each other in that regard, and I have also
credited the testimony of employee Terrell, who saw
Blackwell punch in on the morning of August 1, just before
he did.
Even if Respondent honestly suspected or believed that
the dischargees were guilty of misconduct, which I cannot
find, its handling of the matter indicates that it was more
interested in quickly ridding itself of the employees than it
was in finding out exactly what had happened and how to
cure the situation. Funchess had been employed for almost
6 years and had a good record, and there were apparently
no complaints about Blackwell's work or conduct during
his tenure. Nevertheless, although Respondent only "sus-
pected," according to Hickman's testimony, that the
employees had violated the rule, no one warned or
counseled the employees about their conduct and no one
thought to ask Hallman, their supervisor, for his opinion or
consult him in anyway about a problem which Respondent
said it considered serious. This is particularly significant
when it is recalled that Neal testified that he did not see
Blackwell at the timeclock on August 1 and had no
knowledge about when he reported for work. Hallman
would know if Blackwell was late or on time, and he could
confirm or negate Respondent's theory that Funchess was
punching Blackwell's card when he was late. It seems
almost redundant to state that, if Blackwell were on time
on August 1, there was no reason for Funchess to cover for
him.
Respondent's precipitance is evidenced by the meeting in
which the employees were terminated. It is clear, not only
from Funchess' and Blackwell's testimony but from
Havens' testimony as well , that the decision to fire the two
had been made before the meeting. Havens testified that he
reported the facts about timecard punching to Division
Manager Smelko before he met with the employees and
was given authority to fire them,i° and I have also credited
the testimony of the employees that it was apparent that
Havens' mind was made up when the meeting started.
Another factor indicating that Respondent's motive was
other than what it claimed it to be is that the testimony of
its witnesses in regard to how they came to suspect
Funchess and Blackwell and what they did about it is
illogical and contradictory. First of all, since there is no
evidence that either Funchess or Blackwell ever had a
tardiness problem, there was no reason to believe that they
needed to arrange a method of concealing their times of
arrival. Neither had ever been warned about their
attendance.ii According to Hickman, the only evidence he
had which could cause him to believe that Funchess and
Blackwell might be involved in a timecard problem was the
view was Respondent's main target, Blackwell, as an alleged participant,
had to be discharged too Unquestionably , in such circumstances,
Blackwell's discharge was illegal if Funchess' was.
10 His words were , "he told me to take action in accord with company
rules." Since Smelko did not testify, we must assume that "take action" is a
euphemism
11 Here again, Hallman would have been helpful , but Respondent's
officials used him only to witness the complainants "termination."
KUHLMAN CORPORATION 781
fact that their cards had been punched in at the same time
on two or three occasions during a 2- or 3-week period.12
No other cards were checked, and it will be recalled that
1.2 minutes elapses before the timeclock moves from 0:00
to 0:02. There is nothing significant in such circumstances
in two employees having the same time stamped on their
cards, and I do not believe that Hickman thought so.13
Neal's testimony differs significantly from Hickman's,
and I have no confidence in it. He testified that Hickman
told him that Blackwell had been seen coming in late in the
mornings but with his timecard punched at the proper
time. It is significant that Hickman did not mention this
important evidence supporting Respondent 's "suspicion"
in his testimony, and since the matter was not developed
the record is silent on the source of Hickman's information
on this point.14 Neal then testified that he, too, had seen
Blackwell arrive late but have an on-time time -stamp on
his timecard. Although this was supposed to have occurred
after he had been instructed by Hickman to watch for this
sort of thing, he said he did not report it to Hickman until
after August 1. Here again, there is nothing in Hickman's
testimony about this incident. If Neal's testimony is true,
Respondent had sufficient basis on which to discharge
Blackwell prior to August 1, but Neal, contrary to his
instructions, did not report it. I do not credit Neal's
testimony about what he knew, observed, reported, or was
told to report to management prior to August 1, and
neither do I credit Hickman's about the basis of his
"suspicion" of Funchess and Blackwell or his reason for
instructing Neal to keep the two under observation.
Personnel Manager Havens' testimony about the source
and nature of the information supporting management's
belief that Funchess and Blackwell were possibly involved
in misconduct in connection with timecards is vague and
unimpressive, and the evidence on which he said he relied
in recommending their discharge is contradictory. He said
that he "had reports" prior to August 1 about timecards
found at timeclocks punched at 0:00 as well as reports
"from employees" that "some of the people" were
"punching more than their own cards," but he could not
recall who gave him the information or when he got it, and
he did not suggest that Funchess and Blackwell were
mentioned in connection with these reports. Although his
testimony is not precise on this point, apparently he
learned no more until August 1, when he said Hickman
told him that "it was suspected that Funchess and
Blackwell" were involved in improper timecard punching.
He had their timecards checked and he talked with Neal
and employee Jones. It appears from the record that the
information Jones gave him is not consistent with Neal's
report. Neal testified that on August 1 Funchess punched
two timecards and placed them both in his shirt pocket. He
did not see Blackwell in the area. Jones' statement, which
was prepared and handwritten by Roth, states that he saw
Funchess punch two timecards "at starting time and put
12 Neal's vague and uncertain testimony, denied by the dischargees, that
he once saw Blackwell make a gesture to Funchess, which he felt was a
signal to punch a card for him, should not even create a "suspicion" of
wrongdoing in a mind that was not looking for it
13 He also stated that punched but unidentified cards had been found
around the clocks There is absolutely no reason to attribute this condition
to the dischargees rather than to someone else, whatever significance it has
them down. Ed Blackwell came over and picked up one of
the cards." Neal's, Funchess', and Blackwell 's cards all
show a 0:00 starting time, but it was never explained how
Jones could have seen Blackwell take the timecard (the
overt act in the conspiracy) and Neal could not . Jones did
not testify, and I do not believe his evidence would support
Respondent's case.
Respondent could have discharged Funchess and Black-
well "for good cause, for bad cause, or no cause at all," 15
but the absence of any cause for discharge is evidence
bearing on the weight of the evidence advanced by
Respondent to offset an inference of discriminatory
motivation from other evidence . General Counsel 's eviden-
ce warranted an inference that the discharges were
discriminatorily motivated . My analysis of the reasons
given by Respondent for the discharges, the context in
which they were effected, and my evaluation of the
credibility of the witnesses has led me to believe that
Respondent had no legitimate business justification for
firing the employees and did not honestly believe that it
did. I find nothing else in Respondent's case to offset the
inference that the discharges were illegally motivated.
I find that Respondent discharged Funchess and
Blackwell in violation of Section 8(aX3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of the Respondent set forth
above, in section III, occurring in connection with its
operations described in section I, have a close, intimate,
and substantial relationship to trade , traffic , and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(axl) and (3) of the Act,
it will be recommended that the Board issue the recom-
mended Order set forth below requiring Respondent to
cease and desist from said unfair labor practices and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent violated the Act by
discharging Luke Funchess and Eddie Blackwell, I will
recommend that Respondent offer them immediate and
full reinstatement to their former jobs or, if those jobs are
not available, to substantially equivalent positions , without
prejudice to their seniority or other rights or privileges, and
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them, by
payment to them of a sum of money equal to what each of
them would normally have earned as wages from the date
of discharge to the date of the Respondent 's offer of
from a management point of view . The cards, if they were found , were at
more than one clock . I consider this asserted reason for checking on
Funchess and Blackwell to be an afterthought and a makeweight.
14 It could not have been Hallman , the employees ' supervisor, for he
never heard about the matter until the day the employees were discharged.
15 N L R. B. v. T.A . McGahey, Sr., et al., d/b/a Columbus Marble Works,
supra
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement, less net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By discharging Luke Funchess and Eddie Blackwell
because Funchess or both of them had engaged in union
activities , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 16
Respondent, Kuhlman Corporation, Crystal Springs,
Mississippi , its officers , agents , successors, and assigns,
shall:
1. Cease and desist from discharging employees,
refusing to reinstate them or otherwise discriminating
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
against them because they engage in union or other
protected concerted activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Luke Funchess and Eddie Blackwell immediate
and full reinstatement to their former jobs , or if those jobs
are not available, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings,
in the manner set forth in "The Remedy" section of this
Decision.
(b) Preserve and, upon request, make available to the
Board or its agents all payroll records , social security
payment records, timecards, personnel records and reports,
and all other records necessary to compute the backpay
and reinstatement rights due under the terms of this Order.
(c) Post at its Crystal Springs, Mississippi, plant, copies
of the attached notice marked "Appendix." 17 Copies of
said notice , on forms provided by the Regional Director
for Region 15, after being duly signed by Respondent, shall
be posted immediately upon receipt thereof , in conspicu-
ous places , including all places where notices to employees
are customarily posted , and be maintained by it for 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered , defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
17 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."