Magic Chef, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1970

181 N.L.R.B. 1136 (N.L.R.B. 1970)

1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Magic Chef, Inc. and International Molders and
Allied Workers Union , AFL-CIO-CLC. Case
10-CA-7672
April 7, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On November 18, 1969, Trial Examiner George
L. Powell issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety , as set forth in the attached
Trial Examiner's Decision. Thereafter, the Union
filed exceptions' to the Trial Examiner's Decision
and a supporting brief; Respondent filed a brief in
answer to the Union's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and finds merit in the
Union's exceptions. Accordingly, the Board adopts
the findings, conclusions , and recommendation of
the Trial Examiner, only to the extent consistent
herewith.'
The Trial Examiner found that the General
Counsel failed to establish by a preponderance of
the evidence that Respondent violated Section 8(a)
'On December 29, 1969, the Union timely filed a brief to the Board in
opposition to the Trial Examiner 's Decision , but failed to file
accompanying exceptions to the Decision Thereafter, on January 2, 1970,
Respondent moved that the Board declare the Trial Examiner 's findings,
conclusions , and recommendation its decision and order, pursuant to
Section 102 48(a) of the Board 's Rules and Regulations since exceptions
were not filed within the time required by Section 102 46(a) of the Rules
However, on January 8, Respondent filed a thorough answering brief based
on the issues raised in the Union 's brief of December 29 Thereafter, the
Union submitted proper exceptions to the Trial Examiner's Decision and
moved , on January 13, that the Board , inter alia , accept them by waiving
the technical time requirements of Section 102.46(a) on the ground that the
failure to timely file the exceptions was an oversight On January 26,
Respondent filed a "Reply to Motion , Brief and Exceptions of Charging
Party " We hereby deny Respondent 's motion and grant the Union's, and
accept the Union 's late exceptions nunc pro tune As Respondent has had
adequate opportunity to answer, and did in fact file a reply to the
Charging Party's exceptions , we perceive no prejudice therefrom Kings
Electronics Co . Inc. 109 NLRB 1324 , relied on by Respondent to support
its motion , is distinguishable since there , unlike the instant case, no steps
were taken to correct the oversight of not filing timely exceptions
Moreover , unlike the instant situation , no answering brief was filed in that
case
'The Union 's motion to consolidate this proceeding with subsequent
Case lO-CA-7778, involving the same parties, but different discriminatees,
is denied
(1) and (3) of the Act when it discharged employees
Hurshel Richesin and Don E. Taylor for allegedly
breaching its admittedly valid no-solicitation rule.
We disagree.
The Union has been conducting a campaign to
organize employees in Respondent's Cleveland,
Tennessee, oven manufacturing plant for several
years. Richesin was hired in September 1965, and
joined the Union the following year; Taylor joined
in 1964, shortly after coming to work for
Respondent in November 1963. At the hearing
herein, Respondent admitted that it knew that both
employees were active on behalf of the Union at the
time of their discharges. Besides soliciting
membership in the Union, the dischargees, especially
Taylor, handbilled outside the plant on occasion
and, in general, were among the leaders of the union
movement at the plant. Respondent's industrial
relations manager, William Austin, testified that he
would just as soon not see a union organize the
plant, that that was management's philosophy, and
that Plant Superintendent Charles Chavis had told
him on more than one occasion that he did not like
unions either.
The employee handbook contains, inter alia, 28
company rules, the breach of which can result in
unspecified disciplinary action. The no-solicitation
rule provides:
No employee shall solicit or promote
subscriptions, pledges, memberships, or other
types of support for any drives, campaigns, causes
or organizations on Company property during
working time. The distribution or circulation of
leaflets, pamphlets, circulars, or other literature is
not permitted during working time or in work
areas.
However, Austin testified that the rule was only
violated by a direct request of an employee to sign a
union card on Company time, and not by
working-time discussions of unions or their benefits.
Thus, the Trial Examiner's finding that Richesin's
talk with coworker Andrew Atkins about the latter's
"bonus" was a violation of the no-solicitation rule is
clearly erroneous, and we do not adopt it.'
We agree with the Union's contention that
Respondent seized upon the alleged violations of the
no-solicitation rule as pretexts for discriminatorily
discharging two active union supporters in violation
of the Act.4 Significantly, the handbook did not
'While the Trial Examiner found, on the basis of credibility, that
Richesm and Taylor had, in fact, violated the rule sometime before their
discharges , his finding Is in large measure based on the corroborating
testimony of employees David Brewer and Bethel Lawson, that the latter
had been solicited several weeks before the discriminatees ' dismissals
However, the record clearly indicates that Respondent had no knowledge
whatsoever about those solicitations at the time it discharged Richesin and
Taylor In fact , the Trial Examiner recognized this when he noted that the
Brewer-Lawson testimony was only considered to refute the dischargees'
denials of any wrong -doing, and not to establish Respondent 's knowledge
of such solicitations
'See also, Magic Chef, Inc, Case lO-CA-7778, 181 NLRB No 147,
issued this day, where the Board adopted the Trial Examiner's finding that
181 NLRB No. 146
MAGIC CHEF, INC. 1137
define the disciplinary action which would be taken
for violations of the rules and there is no evidence
that Respondent had ever similarly discharged
workers for their first violation of the
no-solicitation, or any of the other company rules.
Moreover, while we shall assume that Richesin and
Taylor had at some time violated the rule, even
though Respondent failed to show specificially when
such violations occurred in relation to their
discharges, the manner in which the dismissals were
effected clearly indicates that Respondent had no
reasonable basis for believing that such violations
had occurred at the time it discharged Richesin and
Taylor, and that the allegations were used as
pretexts, for the following reasons.
Richesin had been employed by Respondent for 3
1/2 years, and had never prior to his discharge
received an oral or written reprimand during that
period for violating any of the 28 company rules. He
was working with Atkins on the Friday, February
14, 1969,5 second shift, when certain of his
comments apparently angered Atkins enough for the
latter to complain to Shift Supervisor Joe Johnson
that he could not work with Richesin, that one or
the other had to go, that Richesin acted like he was
mad at him all the time because "I wouldn't take a
card, I suppose," and that he talked about the
Union all the time. Johnson then called Richesin
into his office and confronted him with the
accusation, to which the latter did not reply. After
getting two witnesses (this was apparently standard
Union procedure when an adherent was to be
disciplined), Richesin returned to Johnson's office,
but made no effort to refute the charges, at which
point he was suspended. Johnson testified that he
suspended Richesin in order to find out more details
about the alleged rule violation.
Instead, the next day Johnson contacted
Industrial Relations Manager Austin, who asked
Johnson if Atkins would give Respondent a sworn
affidavit concerning the violation by Richesin.
Atkins gave the affidavit on Monday, February 17,
and immediately thereafter Austin, without further
investigation, had Johnson prepare Richesin's final
paycheck. Johnson then met with Richesin, who had
not been permitted to return to work that day, and
told him that he was discharged for violating the
no-solicitation rule. At no time was Richesin given
an opportunity to deny any specific allegations; in
fact, while Johnson told Richesin that he had proof
of the violation, he declined Richesin's request to
see it, apparently because all Johnson then had was
Atkins' affidavit. (Johnson also testified that he told
Richesin that he never took the word of one man.)
At the hearing, Austin testified that he felt it
unnecessary even to talk to Richesin about the
the same Respondent violated Section 8(a)(1) and (3) of the Act by
pretextually discharging employee Allen Voyles , another admitted leader of
the Union , for allegedly breaching the same rule just 2 months after the
dismissals in the instant proceeding
'All dates are 1969 unless otherwise indicated
charges after Atkins gave Respondent the affidavit,
since, he testified, he would have discharged
Richesin even if the latter had denied soliciting
Atkins' signature for a Union card. Significantly,
Austin admitted that the "specifics" of the alleged
solicitations were unimportant to him.
In short, as Respondent implied, Richesin's
discharge for violating the rule was based entirely on
Atkins' affidavit. However, the affidavit was
extremely vague. It merely alleged that
. .. we were put together from time to time and
almost from the beginning he [Richesin] bothered
me constantly about wanting a union here and
tried to get me to sign a union card . . He
continued to try to get me to sign a card every
time he had a chance to talk about it . . . . On
several occasions he stopped working and came .
. to talk to me about signing a card.
At the hearing, less than 3 months after he gave the
affidavit, Atkins not only admitted that Richesin
had not solicited him the day he complained to
Supervisor Johnson about it, but, on General
Counsel's cross-examination, Atkins could not give
a day or date for any of the "constant" solicitations,
until pressed into stating that one incident might
have occurred 1, 2, or 3 days before "all this
happened."
Since Respondent's industrial relations manager,
Austin, testified that the rule was only violated by a
direct request for a signature on a union card, and
not by discussions about unionization, during
working time (solicitations during lunch and breaks
were permitted; in fact, both Richesin and Taylor
testified that they solicited then ), it is apparent that
a violation of the no-solicitation rule could only
have been established by a careful investigation of
both the contents and timing of any conversation
allegedly in violation of the rule. Austin neither
made such an investigation, nor was he interested in
the "specifics" of Richesin's transgression.
Given Richesin's 3 1/2 years of employment with
Respondent, and his theretofore spotless disciplinary
record, Respondent's summary discharge of him on
the sole basis of the vague affidavit of employee
Atkins was so unreasonable and unnatural as to
justify the inference that the assigned reason for the
discharge was a pretext and that the real reason was
Richesin's known activities on behalf of the Union.6
Accordingly, we find that by discharging Richesin,
Respondent violated Section 8(a)(1) and (3) of the
Act.
Taylor was discharged for allegedly violating the
no-solicitation rule the day after Richesin's
discharge therefor. Apparently employee James Gay
came to Supervisor Johnson on Thursday, February
13, and complained of Taylor's "abusing me and
aggravating me to sign a Union card." Gay told
'Cf E Anthony & Sons v NL RB . 163 F 2d 22 (C A D C ), cert
denied 332 U S 773
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson that the solicitation had not occurred that
day and , after Johnson reported the allegation to
Austin , the latter inquired as to Gay ' s willingness to
sign an affidavit . Unlike Richesin , Taylor was
neither confronted with the allegation by Johnson
prior to the completion of the affidavit , nor was he
suspended pending an investigation of the details.
Again, as soon as Gay completed the affidavit, on
Tuesday, February 18, Austin had Johnson prepare
Taylor' s final paycheck and discharge him. In fact,
in apparent anticipation of the discharge,
Respondent had Taylor wait in the personnel office
that day, rather than report to the shop for work.
Taylor was never given an'opportunity to deny the
allegations , nor was he told when , where , and with
whom the violation allegedly occurred.
The affidavit relied on to sustain Taylor's
discharge was seriously impugned by the testimony
at the hearing. Thus, Johnson stated that Gay told
him that Taylor solicited him more than once, but
Gay testified to only one solicitation . Moreover, the
affidavit stated that Gay was asked to sign a Union
card for "the first time" "around six weeks ago"
and that on "several occasions" since , Taylor had
tried to get Gay to sign a card . When pressed by
General Counsel into explaining why he could not
recall when Taylor solicited him, even though the
hearing was held just 3 months after the affidavit
was given , Gay stated that the phrase "six weeks
ago" was merely an estimate because Austin, who
took the affidavit , " insisted on putting something
down about when ," "that was against my better
judgement to even say that but he wanted to put
something down."
More importantly , at the hearing , Respondent
admitted that the sentence in the affidavit - "Since
that time he has on several other occasions during
working time left his work station and come to me
at my work station to again try to get me to sign a
card ." - did not refer to prohibited solicitations,
despite its language, but to permissible discussions
about unionization . This is tantamount to an
admission by Respondent that the affidavit relied on
to discharge Taylor inaccurately ascribed more
violations of the rule to him than , in fact , occurred.
Like Richesin , Taylor had been a satisfactory
employee for many years . Again, as in the case of
Richesin , the assigned reason and the procedure
followed in discharging Taylor was so unfair as to
warrant the inference that Respondent was looking
for pretexts to rid itself of employees who, it knew,
were actively seeking to organize on behalf of the
Union. Accordingly, we find that Respondent's
discharge of Taylor, like that of Richesin, was
violative of Section 8(a)(1) and (3) of the Act
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , the Board will order
Respondent to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatorily
discharged Hurshel Richesin and Don E. Taylor, the
Board will order Respondent to offer Richesin and
Taylor immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights and
privileges , and make them whole for any loss of
earnings that they may have suffered from the time
of their discharge to the date of Respondent ' s offer
of reinstatement. The backpay for the foregoing
employees shall be computed in accordance with the
formula approved in F W. Woolworth Company,
90 NLRB 289, with interest computed in the
manner and amount prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716, 717-721. We shall
also order Respondent to preserve and make
available to the Board , or its agents, on request,
payroll and other records to facilitate the
computation of backpay due.
As the unfair labor practices committed by
Respondent are of a character striking at the root of
employee rights safeguarded by the Act, we shall
order that Respondent cease and desist from
infringing in any manner the rights guaranteed in
Section 7 of the Act. N.L.R.B v. Entwistle Mfg
Co., 120 F.2d 532, 536 (C.A. 4).
AMENDED CONCLUSIONS OF LAW
Delete conclusion 3 of the Trial Examiner's
"Conclusions of Law" and substitute therefor the
following:
3. By discriminating in regard to the hire and
tenure of employment of Hurshel Richesin and Don
E. Taylor, thereby discouraging membership in the
Union , Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of
Section 8 (a)(3) of the Act.
4. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Magic Chef, Inc., Cleveland, Tennessee, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging , or otherwise discriminating
against , any employee engaged in activity on behalf
of International Molders and Allied Workers
MAGIC CHEF, INC. 1139
Union , AFL-CIO-CLC, or any other labor
organization.
(b) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization , to form , 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 to
refrain from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Hurshel Richesin and Don E . Taylor
immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice
to their seniority or other rights and privileges, and
make them whole for loss of pay in the manner set
forth in the section of this Decision entitled "The
Remedy."
(h) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(c) Preserve and, upon request , make available to
the Board or its agents , for examination and
copying, all payroll records , timecards , personnel
records and reports , and all other records necessary
or appropriate to analyze the amount of backpay
due.
(d) Post at its plant in Cleveland , Tennessee,
copies of the attached notice marked "Appendix."'
Copies of the said notice , on forms provided by the
Regional Director for Region 10, after being duly
signed by an authorized representative of
Respondent , shall be posted immediately upon
receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director , in writing,
within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith.
'In the event that this 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 read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT discourage membership in
International Molders and Allied Workers Union,
AFL-CIO-CLC, or any other union , by discharging or
otherwise discriminating against our employees because
of their union or concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, 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 purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Hurshel Richesin and Don E. Taylor
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of pay suffered as a result of
discrimination against them.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
Dated By
MAGIC CHEF, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any, questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
730 Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-426-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L POWELL, Trial Examiner: This case, under
Section 10(b) of the National Labor Relations Act, as
amended, herein called the Act,' was tried before me May
6, 1969 in Cleveland, Tennessee. The complaint, issued
April 4, 1969, based upon a charge filed February 24,
1969, presented the question of whether two individual
employees were discharged because they violated a legal
no-solicitation rule or whether they were discharged in
violation of the Act. Respondent answered denying the
alleged unfair labor practices pleading that the two
individuals were discharged because of its belief that they
had violated the company's no-solicitation rule. All parties
appeared at the trial, were represented and participated in
it and were granted full opportunity to adduce evidence,
examine and cross-examine witnesses, submit briefs and
present oral argument . Briefs were filed on May 26 and
27, 1969, by the General Counsel and the Respondent
respectively
On the entire record of evidence, my observation of the
witnesses as they testified, and on due consideration of the
briefs, I find, for the reasons hereinafter set forth, that the
General Counsel has not established by a preponderance
'29USC Sec 151, etseq
1 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the evidence that Respondent violated Sections 8(a)(l)
and (3 ) of the Act by discharging employees Hurshel
Richesln and Don E Taylor and I recommend that the
complaint be dismissed in its entirety
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE EMPLOYER AND THE LABOR ORGANIZATION
I find that the allegations of paragraphs 2 and 3 of the
complaint , respecting the nature and volume of business
carried on by the Respondent , Magic Chef, Inc., a
Delaware corporation manufacturing and selling electric
stoves and gas ranges at its plant in Cleveland , Tennessee,
is true and conclude therefrom that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) of the Act
The parties stipulated and I find and conclude that the
International Molders and Allied Workers Union,
AFL-CIO-CLC, herein called Union or Charging Party,
has been at all times material to the Complaint a labor
organization within the meaning of Section 2(5) of the
Act
II THE UNFAIR LABOR PRACTICES
This is another of the most difficult type case in law
wherein the decision maker or trial judge, without a jury
and without any independent evidence of threats or
coercion or promise of benefit, must resolve credibility of
witnesses and determine whether an employee (two in this
case) was discharged for cause for the reason given by the
employer or whether the reason given for the discharge
was a pretext hiding a discriminatory motivation brought
about by the employees' union activity More precisely
phrased, the paramount question to decide, is did the
General Counsel by a preponderance of the evidence
establish that the employer discharged two employees
because of their union activity and in so doing violate
Section 8(a)(1) and (3) of the Act. To reach that
simply-stated conclusion in this case however, the parties
stipulated: A, that if the General Counsel can establish to
the satisfaction of the Trial Examiner that the two
employees involved did not in fact violate a valid
no-solicitation rule then the discharger violated Section
8(a)(1) and (3) of the Act notwithstanding Respondent's
belief that cause for discharge existed. In the alternative in
the stipulation, General Counsel takes the position, B,
that if these employees did in fact violate the
no-solicitation rule, Respondents' discharge of them would
still be in violation of the Act, assuming that the facts
establish that Respondent did not have a reasonable basis
for believing these employees had violated its rule
The parties stipulated that there is no claim made'that
Respondent has engaged in or is presently engaged in
conduct that would constitute an independent violation of
Section 8(a)(1) of the Act
A Did the Employees in Fact Violate a Valid
No-Solicitation Rule?
1. The rule
The parties stipulated that Rule 24 in the Respondent's
Employee Handbook (Joint Exh. 1) prohibited, among
other things, solicitation on working time and that there
was no issue before the Trial Examiner concerning the
validity or enforcement of this rule.
2. Did Hurshel Richesin violate the rule?
Richesin worked for Respondent for a 3-year period
from September 1965 to August 1968 quitting then for
reasons unconnected with this case He was rehired in
September 1968 and worked until his discharge some 5
months later in February 1969. He was suspended near
the end of his shift on Friday, February 14, 1969, and was
discharged 3 days later on Monday, February 17 When
discharged he was working as a press operator on the
second shift He had reported for work at about 3 p m. on
Friday, February 14, and began his shift at 3:30 p m. as
the take-off man at the rear of a trimmer Andrew Atkins
put on the metal to be trimmed at the front of the
machine.
Atkins testified that at a time when the trimmer broke
down during the shift on February 14, 1969, he went to
his supervisor, Joe Johnson and made a complaint
concerning Richesin. His testimony follows:
Q. Would you in your own words please explain for
the Examiner the essence of this complaint, what you
told Mr. Johnson9
A I went in there and told him that I couldn't work
with him [Richesin] any longer, that one turther [sic] of
us had to go
Q One turther of you had to go; okay what was the
basis of this, why didn't you want to work with him
anymore9
A. Well, because the way he acted - he acted like
he was mad at me all the time
Q Acted like he was mad at you?
A And talked about the Union all the time
Q What was he mad at you all the time about?
A. Because I wouldn't take a card I suppose
Q. You would not take a card from him?
A No, sir.
Q. Had he ever attempted to tell you to take a card
or sign a Union card during working time when you
were supposed to be working9
A. Yes, sir.
Q Had this happened on more than one occasion9
A Yes, sir
Q Did you advise Mr Johnson on that evening of
February the 14th of this fact9
A Yes, sir.
Joe Johnson, shift supervisor testified
A. Yes, sir, it was on Friday night, and he [Atkins]
told me either he or Richesin had to go, and I said,
"What's your trouble" He said, "He is bucking me, he
is aggravating me everytime we get together and work
together; he is talking Union, he is trying to get me to
sign a Union card." And I said, "Well, let's hear the
other side of the story."
So I sent one of my supervisors, line supervisors, to
get Richesln. So he went and got Richesin and brought
him into my office, and I told Mr Richesin what Mr.
Atkins had told me, and I said, "Do you have anything
to say for yourself?" He said,"No " I said, "Well,
under the circumstances, being that Mr Atkins is the
only complainer, I am going to have to expend you for
the rest of the day until Monday. He said, "Wait a
minute, I want some witnesses" I said , "Okay, that is
fine, go get them." So he dashed out and he came back
in with Edgar Franks and Don Taylor - I am pretty
MAGIC CHEF, INC. 1141
sure -- I am pretty sure it was Don Taylor, I get Don
Taylor and Don Cavett confused sometimes because
they use both of them, but I am pretty sure it was Don
Taylor.
Q. Is this the Don Taylor, the one sitting over here?
A. I am pretty sure it was Don; and I repeated what
Mr Atkins said and told Richesin then in their
presence that I was going to expend him until Monday
until I could get with --
Q. Excuse me; when you say "expend him," are you
saying laying him off, suspending him, or what?
A. Laying him off until Monday, which was only
about 30 or 35 minutes, or something - it was close to
11.30 at that time.
According to Atkins; Richesin, when confronted by him
and Johnson, ". didn't say nary a word" at the
complaint made against him by Atkins
According to Richesin's direct testimony, the events in
Johnson's office on Friday, February 14 are as follows:
A. Joe Johnson. Joe Johnson said that Andrew
Atkins was complaining of me a trying to get him to
sign a Union card and talking Union on Company
time
Q. Did you say anything to this statement9
A No, sir; I got up and I told him, "Wait just a
minute," and as I was going to the door he said, "No,
wait Richesin," and I went out and asked Mr Don
Taylor and Mr. Edgar Franks to go to the office with
me, and when we returned - well, we went in and we
sat down and Mr. Johnson said, "I will repeat again,"
and said, "Mr Atkins has complained of you a trying
to get him to sign a Union card and talking Union on
Company time."
Q. Did you reply to that statement made by
Johnson?
A. No
Q. Okay, what if anything occurred then, Mr.
Richesin"
A Mr. Johnson said that he was not going to work
us together again and as of now, "You are laid off until
Monday, which you will only lose about 45 minutes "
Q. What did you do then?
A. I got up and I went out and he clocked me out
and I went home.
I find from the above testimony of Atkins and the
admission by Richesin that on Friday in Johnson's office
Richesin never denied soliciting Atkins when confronted
with this complaint I
But at the trial, Richesin denied ever violating
Respondent's rule He admitted soliciting employees for
the union but testified that each time he did it it was not
on company time. His testimony of what took place on
Friday, February 14 was that after he had worked on the
back of the trimmer for about one hour (he said working
on taking-off was harder than putting-on) he came around
to the front of the machine where Atkins was and asked
him if they were going to trade jobs back and forth on the
shift as they had done before Atkins refused saying he
was going to work on the front of the trimmer until they
told him not to.
The General Counsel, in an apparent effort to establish
what happened between Atkins and Richesin which could
have caused Atkins to report to Johnson as set out above
(on the theory that there was no solicitation on company
time), asked Richesin if he had mentioned anything to
Atkins about a bonus system in effect at the plant.
Richesin replied to this question that while talking about
swapping jobs he had asked Atkins what his bonus had
been the week before Then not satisfied with the answer
of "40 percent' 13 Richesin, thereafter at some time during
the shift checked the bonus sheet in Johnson's office and
determined that Atkins' bonus had only been 17 percent.
At the 10 p.m 10-minute break period, Richesin
confronted Atkins telling him the bonus sheet said he had
only made 17 percent. Then, according to Richesin's
testimony, Atkins " . . got mad and told me that it
wasn 't anything to me what he made and I told him that
it did not matter to me if he made anything or not"
Richesin testified he seen that [Atkins] was
frightened and mad" and walked away.
Regardless of whether Richesin truly believed the
amount of bonus Atkins made did not matter to him, it is
clear from the record that it amounted to enough to him
to bring it up after Atkins refused to swap jobs and then
again to confront Atkins after checking out the amount of
bonus in Johnson's office. Richesin had one other piece of
testimony of what happened on February 14. He testified
that at 5:45 p.m. Atkins came to his position at the back
of the trimmer and said, "you may not like me because I
am not for the Union, and if the Company goes Union I
will quit." Richesin replied he could not talk to Atkins as
he was on company time This conversation took place
before Richesin confronted Atkins at 10 p.m. with the 17
percent bonus information
Atkins testified that on more than one occasion
Richesin had attempted to get him to sign a union card on
company time . On cross examination, Atkins testified that
on February 14 Richesin had not attempted to get him to
sign a union card This is not to say however that
Richesin never violated Respondent's rule nor indeed that
he never violated it on February 14 The evidence is that
Richesin talked to Atkins several times about joining the
union; Richesm saying it was during break periods and
Atkins saying it was on Company time. But there is much
more to soliciting an employee to join a union (or sign a
union card) than asking him the simple question "Will
you join?" or "Will you sign up?" There is necessarily a
sales program of why an employee should join a union.
Better wages, hours and conditions of employment
regardless of how coated or presented to the invitee are
the fundamental essentials which are offered as
inducements to join up in concerted activity leading to
bargaining collectively with an employer. A bonus
arrangement in effect at Respondents' plant is a part of
wages and when it is discussed in the context of an
admitted continuous effort to get an employee to sign a
card, the discussion leader is engaging in solicitation
whether he knows it or not or will admit it even though
other employees could discuss the bonus without these
implications. As Richesin discussed Atkins' bonus during
working time in the context of his efforts to get Atkins to
sign a union card, he violated Respondent's rule
Further, as an effort to show that Richesin was not
correct in saying he never violated the rule, Respondent
had two other employee witnesses who testified that
Richesin violated the rule in question David Brewer, a-20
year old student and employee, overheard Richesin ask
employee Bethel Lawson in early February 1969 during
'Don E Taylor , a witness for Richesin in the meeting in Johnson 's office
likewise said "nobody said nothing " after Johnson told them of Atkins' 'Atkins could not recall saying he made 40 percent but recalled the
complaint bonus incidents
1 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working time to sign a Union card. Bethel Lawson
testified to substantially the same. Lawson was a 19 year
old Junior in High School and an employee. I conclude
that Hurshel Richesin did in fact violate rule 24 in that he
did solicit on working time.'
3. Did Don E. Taylor violate the rule?
Don E. Taylor worked for Respondent about 5 years
and 3 months having been hired in November, 1963 and
discharged on Tuesday, February 18, 1969. When
discharged he was a small press operator in the Steel
Room on the second shift, 3:30 p m. to midnight His job
was similar to that of Richesin's and the same Johnson
was his supervisor. Also like Richesin he was active on
behalf of the Union in soliciting employees. He testified
he asked employees to sign Union cards but only, "Before
work, after work and during breaks." This took place, "In
the plant and out of the plant," and continued until his
discharge on Tuesday, February 18, 1969 5
Taylor admitted asking employee James Gay to sign a
Union card "approximately two weeks" before his
discharge testifying that it was during a supper break
between 7:30 and 8 p.m. According to Taylor, Gay replied
only, "Are you kidding?", and that ended the
conversation. Taylor answered, "No" to the General
Counsel's question, "Did you ever ask any employee to
sign a Union card in the plant not during break time or
supper time?" Taylor also said he "did not" ever ask Gay
to sign a union card during Company time in violation of
Company Rule 24
Gay could not remember exactly when Taylor asked
him to sign a Union card but was positive it was on
working time and it only happened once 6 Gay testified
that Taylor talked to him several times about the Union
"many times in fact; and this one time [Taylor] directly
asked [Gay] if [he] would sign a Union card, and was still
talking about the Union so [Gay] went to report it [to
Johnson]."
Employee David Brewer, identified above, testified that
both Taylor and Richesin asked employee Lawson to sign
a union card in his presence during working hours. This
took place "right after Christmas, in January" 1969,
"after lunch . past 8 00 o'clock."
Employee Lawson, identified above, testified that
Taylor asked him to sign a Union card "shortly after
Christmas" after 8:00 p.m. after he had eaten supper. This
was on Company time during "working hours." This is
the same event Brewer testified to.
Supervisor Johnson testified that on Thursday night
(February 13) Gay came to his office and wanted to talk
to him. Johnson asked, "Talk to me about what, Mr.
Gay." Gay replied, "Don Taylor abusing me and
aggravating me to sign a Union card." In reply to a
question by Johnson, Gay said it had not happened that
night, but that, "I have been talking to some of the
fellows, fellow workers and they said that I should tell
'Where there is a distinct conflict in testimony I do not credit Richesm
over Atkins , Brewer or Lawson
'In point of time after this testimony, the General Counsel specifically
asked him , "Did you ask any employees to join the Union the week before
your discharge9" He replied , "No" to the latter question , and, after one
more question , he related that the last time he asked an employee to join
the Union was "approximately two weeks before" his discharge
'Gay, while on the witness stand , corrected a prior affidavit which
related that Taylor had asked him on "several other occasions during
working time "to sign a Union card Gay corrected it by saying , [Taylor]
talked about the Union "
you." Gay then went on to tell Johnson, according to
Johnson, that Taylor "had asked him more times than
one and asked him on his press " Johnson asked Gay if he
would sign a statement to that effect and Gay said he
would do so. That apparently ended the interview.
Johnson was unable to locate a superior until the next
afternoon (Friday) when he got to talk to William N.
Austin, the Industrial Relations Manager He told Austin
what Gay had told him and they decided not to pull Gay
off the job on Friday to make his written statement but
rather to wait until Monday, February 17 and have him
make the statement before commencing his shift at 3:30
p m. Arrangements were made with Gay for this but he
was unable to come to work Monday. On Tuesday,
February 18, Gay came to work about one-half hour early
and prepared his statement.
In the meantime , Taylor had been sent to the Personnel
office, as he reported to work, and when his final pay
checks and bond checks had been made out, Dave
Chapman, Department Superintendent and Johnson went
into the room where Taylor had been waiting Johnson
started to tell Taylor why he was being discharged when
Taylor left the room for "some witnesses " He soon
returned with Don Cavett and Edgar Franks, and Johnson
then explained that Taylor was discharged for "soliciting
on the job."'
I conclude from the above testimony that Taylor had
asked Gay to sign a Union card on Company time in
violation of Rule 24. This decision is based not only on
the likelihood that Taylor did solicit at times other than
on breaks as testified to by Brewer and Lawson, (and
hence contrary to Taylor's denial of violating Rule 24) but
also on the demeanor of the witnesses I credit Gay and
Johnson when in conflict with Taylor.
If this was all there was to the case it should be
dismissed on failure by the General Counsel to prove by a
preponderance of the evidence that Richesin and Taylor
did not violate Rule 24.
But, as noted earlier, the General Counsel maintained
that even if Richesin and Taylor had violated Rule 24
Respondent had no reasonable basis for believing they had
violated the rule. Hence we turn to
B. If Richesin and Taylor Did Violate the
No-Solicitation Rule, Did Respondent Have a
Reasonable Basis For Believing They Had Violated
The Rule?
General Counsel stressed in his cross examination of
Johnson, and in his brief, the fact that Johnson had not
asked Richesin or Taylor if they in fact had solicited on
Company time and argues that this was a failure by the
Company to adequately investigate the case. General
Counsel admits that Richesin had had an opportunity to
deny the complaint of Atkins but argues that Richesin
could have been thrown off by Johnson's statement that
he would lay-off Richesin on Friday to investigate the
matter.' But in the case of Taylor, when he was called in,
it was to tell him he was fired and to give him his final
checks.
'Johnson told Taylor not to go into the plant for witnesses but these
instructions were ignored and the two witnesses were brought from the
plant Johnson related that he did "write them up for leaving the job
without permission" as "a routine job" as a matter of record
'On cross examination Johnson testified as to this point as follows "I
told Richesin that I was going to have to suspend him until Monday, until
I could find out more details and find out and see the officials about it "
MAGIC CHEF, INC. 1143
It is now necessary to examine the evidence of
Richesin's discharge. Richesin was fired on Monday the
17th. According to him he was told, as he started to go in
the gate, to report to the Personnel office. He did so.
About 3.30 p.m. (shift starting time) Johnson came in and
told him he had proof that Richesin was soliciting on
Company time. Richesin told Johnson "to prove it" and
Johnson told him he did not have to do so, but that he
had proof. Johnson gave Richesin his check and Richesin
left. Johnson never asked Richesin if he had asked Atkins
to sign a union card in violation of the Company's rules.
On the other hand, Richesin never denied doing this
before he was fired.
Johnson's credited testimony as to his conversation with
Richesin on Friday, February 14, just after he heard
Atkins complaint, was that he specifically asked Richesin,
"Do you have anything to say for yourself?" and that
Richesin replied, "No." Then Johnson said, ". . . being
that Mr. Atkins is the only complainer, I am going to
have to expend [sic] you for the rest of the day until
Monday." At that time, Richesin said, "Wait a minute, I
want some witnesses." Johnson said, "Okay, that is fine,
go get them." And Richesin went out and brought back in
two witnesses, Edgar Franks and Don Taylor.
On the following day, Saturday, Johnson called Austin,
Industrial Relations Manager, and told him what he had
done, and that Atkins would make a sworn statement.
Austin told Johnson to bring Richesin and Atkins into his
office when they came to work Monday afternoon The
discharge then took place substantially as testified to by
Richesin except that Johnson told Richesin he was being
discharged for solicitation on the job and that they had
"written affidavits to that effect."
Austin did nothing in either case of Richesin or Taylor
until he was satisfied that an employee who complained of
solicitations on the job by Richesin or Taylor would be
willing to and did make a sworn statement.
Hence, there is no merit to the argument that Richesm was "thrown off "
The General Counsel has adduced no evidence/that the
witnesses for Respondent could not be relied upon on
sworn statements and that Respondent knew or should
have known they had no reputation for veracity Nothing
of the sort! The General Counsel obviously decided to
believe his witnesses and disbelieve Respondents' witnesses
and at the same time charge Respondent with failure to
adequately investigate the case because it believed its own
witnesses without further investigation. This does not seem
to be a fair position for the General Counsel to take in
the absence of any independent violations of Section
8(a)(l) of the Act and in the absence of some evidence
that might cause a reasonable person to disbelieve a sworn
statement from an employee. Under all the circumstances
of this case particularly with the care exercised by
Respondent not to act on a charge not under oath I am
unable to see how the General Counsel has carried his
burden of proof to show that there was no reasonable
basis for believing Richesin and Taylor had violated the
rule. This is excruciatingly true in this situation when the
Trial Examiner himself believes Respondents' witnesses.
I will recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and- in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The International Molders & Allied Workers Union,
AFL-CIO-CLC, is a labor organizat ion, within the
meaning of Section 2(5) of the Act.
3. The General Counsel has not established by a
preponderance of the evidence that Respondent violated
Sections 8(a)(1) and (3) of the Act as alleged in the
complaint
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the complaint be dismissed in its
entirety.
R U S GOVERNMENT PRINTING OFFICE 1971 0-384-272