Linton-Summit Coal Co., Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1958

120 N.L.R.B. 346 (N.L.R.B. 1958)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice to their seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay they may have suffered because of the dis-
crimination against them.
BERMUDA KNITWEAR CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
ABRAHAM J. LUBASCH, President.
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Linton-Summit Coal Company, Inc. and International Brother-
hood of Electrical Workers, AFL-CIO. Case No. 35-CA-779.
April 9, 1958
DECISION AND ORDER
On July 29, 1957, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it be required to cease and desist
therefrom and to take certain affirmative action. He also found that
the Respondent had not engaged in certain unfair labor practices and
recommended that the complaint be dismissed insofar as it alleged
such unfair labor practices. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.'
Pursuant to Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a
three-member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
These rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
ORDER
Upon the entire record and pursuant to Section 10 (c) of the
National Labor Relations Act, as amended, the National Labor Rela-
1 The Respondent's request for oral argument is hereby denied as , in our opinion, the
record, exceptions , and brief adequately present the issues and positions of the parties.
2 The Respondent contends that in weighing conflicting evidence and in drawing in-
ferences and conclusions from the evidence, the Trial Examiner demonstrated his bias
and prejudice against the Respondent. While it appears that the Trial Examiner in most
instances made credibility determinations in favor of the witnesses for the General Counsel,
we note that even "total rejection of an opposed view cannot of itself impugn the integrity
of a trier of fact." N. L. It B. v. Pittsburgh S. S. Company, 337 U. S. 656. In any event,
we have independently reviewed the Trial Examiner 's credibility findings, his inferences
and conclusions from evidence , and perceive no basis for finding that there was bias or
prejudice on his part. Moreover, as we find none of the Trial Examiner 's credibility find-
120 NLRB No. 56.
LINTON-SUMMIT COAL COMPANY, INC. 347
tions Board hereby orders that Linton-Summit Coal Company, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, AFL-CIO, or any other labor organization of
its employees, by discriminatorily discharging or refusing to rein-
state any of its employees, or by otherwise discriminating in regard
to their hire and tenure of employment.
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Monzellia Smith, Rosaline Wilson, and Edna Wilson
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of pay they
may have suffered by reason of the discrimination against them, in
the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and make available to the Board, or its agents, upon
request for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back pay due
and the rights of employment under the terms of this Order.
(c) Post at its Terre Haute, Indiana, plant copies of the notice
attached to the Intermediate Report-marked "Appendix." 3 Copies of
such notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
ings clearly erroneous or unreasonable , we shall , in accordance with our practice, adopt
them Lloyd A. Fry Roofing Company, 109 NLRB 1314; Somerset Classics, Inc., 90
NLRB 1676 ; Standard Dry Wall Products, Inc., 91 NLRB 544.
9 This notice is amended by substituting for the words "The Recommendations of a Trial
Examiner" the words "A Decision and Order ." In the event that this Order is enforced
by decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by the Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint relat-
ing to increases in piecework- rates be, and hereby are, dismissed.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing there-
on having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above-named Respondent
Company, a hearing involving allegations of unfair labor practices in violation of
Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act, was held in Terre Haute, Indiana, on June 4, 5, and
6, 1957, before the duly designated Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent:
(1) on or about November 16, 1956, increased piecework rates at its plant in order
to discourage union organizational activities; (2) on November 12, 1956, discrimina-
torily and to discourage union membership discharged employees Monzellia Smith,
Rosaline Wilson, and Edna Wilson; and (3) by such acts and conduct interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. Argument was waived. Briefs have been received
from the Respondent and General Counsel.
On July 10, 1957, the -Trial Examiner received from counsel for the Respondent
a written request that certain inaccuracies in the official transcript be corrected.
It appears that copies of the request were forwarded to each of the other parties.
No objections having been received, the request for such corrections is hereby
granted. The said communication, dated July 8, 1957, is hereby made a part of the
record in this case.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Linton-Summit Coal Company, Inc., is an Indiana corporation engaged in the
manufacture of electric heating mantles, and other types of laboratory apparatus, at
its Glas-Col Apparatus Company Division plant in Terre Haute, Indiana, which is
the only plant of the Respondent involved in this proceeding.
During the 12-month period before the hearing, and in the course of its business
operations, the Respondent purchased and caused to be shipped from points outside
the State of Indiana to the said plant goods and materials of substantial value, and
sold, shipped and delivered goods and materials valued at more than $300,000, from
said plant and directly to points outside the State of Indiana.
The Respondent is engaged in commerce within the meaning of the Act.,
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza-
tion admitting to membership employees of the Respondent at its Terre Haute plant.
III. THE UNFAIR LABOR PRACTICES
A.' Setting and issues
Approximately 75 women work in the production area, a single large room, at
the Respondent's Terre Haute plant. From 4 to 6 employees are at each of the
1 The commerce findings are based upon allegations of the complaint which the answer
admits.
LINTON-SUMMIT COAL COMPANY, INC . 349
many tables , arranged in rows with aisles between them. Credible testimony of
many employees establishes, and it is found, that it has long been the practice, with
management 's acquiescence , for employees to engage freely in conversations and
solicitations 2 for various purposes, and to move from one table to another or else-
where in the plant to do their work or obtain materials, all upon company time. It
appears that most, if not all, employees are paid piecework wages, and not accord-
ing to the number of hours worked. There are, and have been, no time clocks
requiring the punching in or out at specified hours.
Although this plant has been operating, apparently,3 since about 1945, there is
no evidence that the employees have ever been represented by any labor organization.
Some 7 or 8 years ago, however, Dr. Morey, president, told a group of at least 4
named employees, according to the credible testimony of Edna Wilson, that "he
would not have a union in the company; that he would close his doors first," and
3 or 4 years ago told another group of employees, at a time when an attempt to
organize was being made, that he thought the effort was being made by a discharged
employee, but that it would not succeed because "they knew how he felt about the
union." 4
During the summer of 1956 a number of employees initiated an effort to obtain
collective-bargaining representation through the Charging Union. A union rep-
resentative visited some of them at their homes and mailed invitations to join to
others. During this period, according to the undisputed testimony of Edna Wilson,
Dr. Morey remarked to her and other named employees that "somebody was trying
to organize again."
On the evening of November 7 a number of employees were present at a gen-
eral meeting called by the Union. Also present at this meeting was Nancy Fisk,
identified by management officials as a supervisor.
In this setting, three employees were summarily discharged on November 12 by
Dr. Morey. Whether or not these three were dismissed illegally, to discourage union
membership and activity, is the major issue in this case. Another issue, urged by
General Counsel as violation of the Act, arises from the admitted fact that im-
mediately after these discharges the Respondent put into effect a general increase
of piecework rates.
B. The discharges of Monzellia Smith, Edna Wilson, and Rosaline Wilson
At the time of their sudden dismissal on November 12, each of these 3 employees
had given long and satisfactory service at the plant: Smith for 8 or 9 years, Edna
Wilson for about 11 years, and Rosaline Wilson for about 6 years. Smith's testimony
is uncontradicted that since her training period her work had never been criticized
but on the contrary had frequently been complimented by Mrs., Morey, that she
had on a number of occasions been called upon to instruct their employees, and
that throughout her service her conduct had never been criticized. The testimony
of Edna Wilson, to the effect that she also had been complimented and used as an
instructor with no criticism from supervisors, is likewise unrefuted. And no
supervisor challenged the testimony of Rosaline Wilson that she had often been
complimented for her work.
Despite their combined and satisfactory service of about 25 years, all 3 were
called into Dr. Morey's office early on- November 12 and, with no previous warning
or even questioning by him or any other member of management, were discharged,
being told by him, in substance, that while he could not fire them "for union
activity," according to his own testimony, they should have conducted "affairs like
that outside of working hours," and that the company had lost "around $1100"
the week before and he was holding "you people responsible" because "you have
harassed and bothered the employees up there and hindered them in the performance
9 Dr Morey, head of the organization operating this plant, said : "I have an unwritten
rule against solicitations and always have had it" Assuming the truth of this claim, it
appears that the "rule" was not only "unwritten" but also unknown, even to his own
wife, vice president and in complete charge of the production department For she readily
admitted that "the employer knows about" and has no rule against soliciting funds for
vat ions purposes on company time.
'Dr \io,ey said his business began in 1939, but that he did not devote full time to it
until 194.5
f The latter quotation is also from the testimony of Edna Wilson. Dr Morey merely
denied, generally, having ever made any antiunion remark to Wilson His denial lacks
the support of any witness named by Wilson as being present on the two occasions. For
reasons fully set forth later, the Trial Examiner cannot credit Dr. Morey's unsupported
testimony
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their duties." Edna Wilson promptly asked for some proof that she had talked
to anyone about the Union while on the job, or that she had "unnerved" anyone.
It is undisputed that Dr. Morey replied, "I don't have to and I will not." As they
turned to leave, he said to them, "Don't you ever set foot in this place again."
Dr. Morey's own testimony, quoted, makes plain and it is here concluded, that the
three employees were dismissed, and were effectively told that they were dismissed,
because of their activities on behalf of the Union. Thus the record provides a
prima facie case supporting the contention of General Counsel. This is so because,
as General Counsel urges in his brief, ". . . the usual and natural result of the
Employer's action in effecting the discharge is to discourage union member-
ship. And in Radio Officers' Union v. N. L. R. B., 347 U S. 17, at 45, the
U. S. Supreme Court said: "This recognition that specific proof of intent is unnecessary
where employer conduct inherently encourages or discourages union membership
is but an application of the common-law rule that a man is held to intend the
foreseeable consequences of his conduct."
On the other hand, both the Board and the courts having long held that conducting
union activities on company time to an extent interfering with efficiency and
production is justifiable cause for discharge, and counsel for the Respondent
appropriately cites N. L. R. B. v. Tennessee Coach Company, 191 F. 2d 546 (C. A. 6).
Before reaching the ultimate determination, however, as to whether or not the
preponderance of evidence supports General Counsel's claim that the real motive
precipitating the discharges was to discourage union organization, it is necessary
to examine not only the merit of Dr. Morey's accusation, at the time of dismissal,
to the effect that the three girls had caused confusion and loss of production by
their conduct, but also the merit of other and additional reasons he gave, as a witness,
for his summary action.
It may be well to dispose of the "additional" reasons first.
Edna Wilson: Dr. Morey, as a witness, said that he discharged this employee
"for several reasons," "chief among which" was "her complaining about the damage
of this material to her health." The validity of this reason , however, is reduced to
a nullity by his own admission, shortly after the claim was made, that the only
instance of a complaint from her occurred "almost two years ago." It is unreasonable
to believe, because of the remoteness, that this factor had the slightest bearing upon
his action on November 12. When pressed for "other reasons" by his own counsel,
Dr. Morey added "absenteeism" and "she did violate coffee breaks." As to
"absenteeism," Dr. Morey himself said "that may have been partially due to asthma,"
and since the factor had never been of sufficient importance to warrant any warning,
so far as the record shows, it lacks persuasion as a claimed reason for discharge.
As to the violation of coffee breaks, his own testimony establishes that she could
have engaged in none for at least 2 months before the discharge. It appears from
the testimony of many witnesses that until early September the employer had
permitted the workers to go outside the plant for coffee. The time given for the
"break" was exceeded generally by the employees, and finally the privilege was
withdrawn from all. The Trial Examiner finds no merit in this reason. Dr. Morey
admitted that he never gave her any warning, even during the period when she
may have, along with others, violated the privilege.
Monzellia Smith: In addition to the reasons given this employee at the time of
her discharge, Dr. Morey claimed as a witness that he fired her for violating the
coffee break and for being "habitually late to work." As noted above, the "coffee
break" issue had ceased to be an existing and possible factor more than 2 months
before the discharge. His claim of being "habitually" late for work lacks any support
of credible records. As noted heretofore, the plant is without time clocks, and the
employees work on piece rates. Had there been, in the company records, any evidence
showing that Smith's production was lower than others, due to lateness, it is
reasonable to suppose that the Respondent would have brought them forward. She
was not warned, and the factor was not raised at the final interview. The Trial
Examiner finds no merit in this claim.
Rosaline Wilson: Besides the "agitation" claim , Dr. Morey claimed that he dis-
missed this employee because she had "a very bad history about quarreling about
work assignments." Even if Dr. Morey's testimony is to be accepted at its face
value, it appears that the only incident of "quarreling" occurred "about two years"
before the dismissal. It plainly had nothing to do with the actual discharge. The
only other incident of a similar nature took place not long before the discharge
when Rosaline Wilson, Monzellia Smith, and another employee went to Dr. Morey
to present an assignment grievance. On this occasion there was no "quarreling,"
even claimed by Dr. Morey. It. is undisputed that he made no objection to this
presentation of what a group of employees considered to be a just grievance. Were
the Trial Examiner to find merit in this claim, advanced by Dr. Morey, and conclude
LINTON-SUMMIT COAL COMPANY, INC . - 351
that Wilson was dismissed for presenting a grievance in a group of other employees,
this conclusion would support a finding of violation of the Act, since it plainly
interferes with rights accorded to employees by Section 7 of the Act. Under the
circumstances described by Dr. Morey, however, the Trial Examiner finds no merit
to the claim that such complaints were any part of the reasons for his action.
In short, the Trial Examiner concludes and finds that none of the factors advanced
by Dr. Morey at the hearing as additions to the reasons he gave the employees at
the time of their dismissal have any merit, and further finds that they did not, in
any way, motivate his action, but were mere afterthoughts.
Turning again to the major issues , it is necessary to review certain events pertinent
to the discharges, particularly those of the preceding week.
From the testimony of a number of witnesses it may reasonably be concluded
that upon receipt of written invitations from the Charging Union to attend a
general meeting of employees on November 7, employees in the plant openly and
without restraint discussed, during working hours as well as at lunch periods and
coffee breaks, the question of organization. Since it is clear that there was no re-
striction upon conversations on any subject, it would be unrealistic to believe that
the union topic was avoided. Some employees favored organization, others-as
their testimony establishes-were opposed.
According to the credible testimony of Monzellia Smith, corroborated by that of
Edna Ludwig, a witness for the Respondent, shortly before the union meeting of
November 7 the former told the latter, both of whom worked at the same table, that
she had heard that the Union might waive the initiation fee for those who went to
the meeting, and thereby save themselves $50 or $150. Smith based her estimate
of saving on the fact that her husband was a member of the same local. Ludwig
made no report of this remark to Dr. Morey, but another employee at the same
table, Pearl Mount, according to her own testimony promptly informed Dr. Morey
that Smith had told Ludwig she would be fined $50 if she "didn't sign the card
this evening." Without checking the accuracy of this report by questioning Smith,
Ludwig, or any other employee, Dr. Morey called all employees in the room from
their work and, according to his own testimony, told the assemblage:
I know what is going on here. I didn't want to mix into this, but I hear that
some of you have been threatened with heavy fines if you do not sign up on
these cards. Now, I want you to know that I have just been to an attorney
and I find that they are strictly illegal. It cannot be made to stick. It is all
bosh; ignore it.
After Dr. Morey's talk to all employees, he gathered with a smaller group in a
corner of the room. The credible testimony of employees involved, including that
of Caroline Wolfe, a witness for the Respondent, establishes and it is found that Dr.
Morey was then informed that Monzellia Smith and Rosaline Wilson were working
for the union organizational movement.
Credible testimony of many employees also makes plain that Dr. Morey's speech
created genuine confusion among employees for the remainder of that afternoon.
And, as noted, heretofore, the union meeting that night was attended by Nancy
Fisk, admitted by the Respondent's officials to be a supervisor. Smith and the
two Wilsons were among the few employees who appeared at the meeting.
During the next 3 days of that week it is undisputed that Dr. Morey, contrary
to his practice theretofore, spent a great deal of time in the working area, watching
Smith and the two Wilsons. According to Dr. Morey's testimony:
I observed the whole place buzzing like a hive of bees, really, and Rose
Wilson, Monzellia Smith were going around from one to another. I observed
them when they didn't know I was observing them and it seemed to me, well,
the folks were so upset and afraid. They were afraid to even come and talk
to me.
(As to Edna Wilson) Well, I saw that she seemed to single out an individual
and then talk, talk, talk, as much as ten or 15 minutes at a time.
Even if Dr. Morey's testimony as to these three individuals were to be discounted
appreciably, and possessed the slightest foundation in fact, the reasonable inquiry
rises as to why he, the head of the plant, did not at least once during the 3-day
period take some step to halt such conduct. Yet his own testimony establishes
that at no time, during that 3-day period, did he ever warn, caution, or otherwise
speak to them about talking to others, regarding union matters or anything else. Nor
is there evidence that he instructed any supervisor, or Mrs. Morey-who had charge
of production-to speak to them.
On Sunday, the day before discharging the three, Dr. Morey and his wife visited
the homes of several employees and obtained from them their signatures to docu-
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments already prepared and typed by Mrs. Morey before discussing their contents
with any of the employees visited. Such documents include the following texts:
We, the undersigned, affirm that during the week ending November 9, 1956
spent time during working hours trying to persuade employees of the Glas-Col
Apparatus Company to join a union, thereby hindering the employees in the
performance of their duties.
We, the undersigned, affum that during the week ending November 9, 1956
engaged in argumentation with employees of the Glas-Col Apparatus Company
during working hours, thereby hindering the employees in the performance of
their duties.
Dr. Morey and his wife also obtained the signatures of two employees to a hand-
written document prepared, according to his own testimony, by Dr. Morey, contain-
ing the following text:
I, the undersigned, affirm that during the week ending Nov. 9, 1956, Monzellia
Smith notified me that I would be fined $150 00 unless I attended the union
meeting of Wednesday, Nov. 7. This warning was given to me on Monday and
also on Tuesday (Nov. 5 & 6). All this was done during working hours.
Only 1 of the 2 employees who signed the last-quoted document was called as a
witness-Carolyn Wolf (in the record spelled Caroline Wolfe). As a witness for
the Respondent, and under oath, Wolfe admitted that Smith said nothing to her
about being fined and that she had never told Dr. Morey that she had.
As to the first-quoted text, above, the name "Rosaline Wilson" was written in,
apparently either by Dr. Morey or his wife. Only two of the employees whose
signatures appear upon it were called as witnesses-Edith Terrell and Edith Kasper.
Under oath, neither of these two employees named Rosaline Wilson as having tried
to persuade them to join the Union, during working hours or at any other time.
Not only because of the notable lack of consistency in the text of the documents
described above and the testimony of employees who signed them, but also because
of the circumstances described by employee Terrell, of the signing, the Trial Examiner
can place no reliance upon them as establishing grounds for discharges "for cause."
When asked concerning the statement about Rosaline Wilson and her soliciting for
a union, quoted above, Terrell-a witness for the Respondent-said:
When I saw this statement, it wasn't toward union. It was just a confusion.
That was the question I was asked and then he (Dr. Morey) asked me if these
were the names.
Indeed it is apparent that the Respondent, at the hearing, had abandoned what-
ever plans it may previously have had concerning these statements obtained by Dr.
and Mrs. Morey. They were not offered in evidence by the Respondent, but by
General Counsel.
It is even more apparent, however, from the nature of his final interview with
the three employees when discharging them-which was the day after he had
obtained the statements-that Dr. Morey gave to these three, as reasons for dismis-
sing them, the substance of matters contained in the statements. And these state-
ments, as Dr. Morey admitted, were prepared before the Sunday search for
signatures.
As to actual confusion caused by the three employees, interfering with produc-
tion, the record is barren of any credible evidence relating to any incident or
incidents, either observed by Dr. Morey or brought to his attention before the
discharges, which might have disturbed employees, except the remark of Smith
to Ludwig, which obviously was either misunderstood or deliberately misquoted by
employee Pearl Morin.. The credible denials of the 3 that they solicited for the
Union on company time, thus causing any disturbance, is supported by 2 employees
called by General Counsel, Slusher and Roberts, and 1 called by the Respondent:
Stillwell Stillwell, moreover, testified that she was in a position where she could
see every employee in the room. As to whatever disturbance there may have been
after Smith's remark to Ludwig, the reasonable conclusion is that it was Dr. Morey's
assemblage of all employees denying the misquoted remark that caused it, not the
remark itself.
LINTON-SUMMIT COAL COMPANY, INC. 353
The claim that actual loss of production was caused by the union activities of the
three employees lacks any credible foundation of fact. While certain figures were
placed in evidence indicating that production for the week was somewhat less than
some other weeks, the actual records themselves were not produced . That no
weight can reasonably be placed upon either their accuracy or their identification
of cause is established by Dr. Morey himself He admitted that he gave all of the
employees 2 hours off on election day, falling during that week, which would
presumably have accounted for 25 percent loss of production for that 1 day. And
his own act in calling all employees together on November 7 undoubtedly contributed
to the lowering of production . Finally, it was admitted by Mrs. Morey that produc-
tion normally varies depending upon the nature of mantles being made. In the
opinion of the Trial Examiner , the figures placed in evidence by the Respondent
prove precisely nothing.
In summary , the Trial Examiner is convinced by the evidence adduced by the
Respondent that the reasons advanced by it for the three discharges lack merit.
It is specifically concluded and found, from the preponderance of credible evidence,
that none of the three engaged in union activities on company time, or on their own
time, which interfered with or lowered either efficiency or production.
It is further concluded and found , from the preponderance of credible evidence,
that the real and actual reason motivating Dr. Morey 's action was discriminatory and
to discourage membership in, and activity on behalf of , the Union . Such discrimina-
tion interfered with, restrained , and coerced employees in the exercise of rights
guaranteed by the Act.
C. The raises
During the same week , and a few days after the discharges , the Respondent put
into effect certain increased piecework rates. It is General Counsel 's claim that
such increases were made for the purpose of discouraging union membership. The
Respondent denies the contention as to purpose only.
While the timing of the increase , viewed in the setting of the discriminatory
discharges , raises more than a possible suspicion that it was given for the illegal
purpose of interfering with the employees ' rights under the Act, upon review of all
the testimony the Trial Examiner cannot conclude that the preponderance of
evidence supports General Counsel's claim. Through his own witnesses the latter
established that Mrs. Morey , who had charge of such matters, began a study of
such rates early that summer, before there was any union activity . While there
is dispute as to whether or not she told one or more employees later that she had
had to abandon the plan of increasing rates, there is no question but that the studies
were made , and that she was away from the plant a good part of the summer.
According to her, she gave a draft of the revised form of worksheets , bearing the
new rates , to a printer on November 2, several days preceding the events culminating
in the discriminatory dismissals . There is no evidence in the record to refute her
claim as to this date Nor is there any evidence to indicate that at any time either
before or after the increases were made , any supervisor or management official said
anyth'ng to any employee which might have led that employee to believe that their
purpose was to influence their union adherence.
It will therefore be recommended that this allegation of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent set forth in section III, above, oc-
curring in connection with the Respondent 's operations described in section I,
above, have a close , intimate , and substantial relation to trade, traffic, and com-
merce in the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free Aow of commerce.
V. THE REMEDY,
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action which will effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of Monzellia Smith, Rosaline Wilson, and Edna Wilson, the Trial Examiner
will recommend that the Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges , and make them whole for any loss of
483142-59-vol. 120-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay they may have suffered as a result of the discrimination against them, by pay-
ment to each of them of a sum of money equal to that which she would have
earned as wages from the date of such discrimination to the date of offer of re-
instatement, less her net earnings during such period, the back pay to be com-
puted on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. It will also be recommended that the Re-
spondent preserve and upon reasonable request make all pertinent records avail-
able to the Board or its agents.
In view of the nature of the unfair labor practices committed , the commission
by the Respondent of similar and other unfair labor practices may be anticipated.
The remedy should be coextensive with the threat. It will therefore be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, AFL-CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployees, thereby discouraging membership in the above-named labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act , the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that.
WE WILL NOT discourage membership in International Brotherhood of
Electrical Workers, AFL-CIO, or in any other labor organization of our em-
ployees, by discharging or in any other manner discriminating against them
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organ-
izations, to join or assist the above-named union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all such activities
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as authorized by Section 8 (a) (3)
of the Act. All our employees are free to become or remain members of
the above-named Union or any other labor organization.
WE WILL offer Monzellia Smith, Rosaline Wilson, and Edna Wilson
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges
previously enjoyed by them, and make them whole for any loss of pay suffered
by them as the result of the discrimination against them.
LINTON-SUMMIT COAL COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other, material.