Neptune International Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1975

221 N.L.R.B. 428 (N.L.R.B. 1975)

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neptune Water Meter ' Company , a Division of
Neptune -International Corporation and- Interna-
tional Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC, and its Local 694
Neptune , Water Meter Company and International
Union of Electrical , Radio and Machine Workers,
AFL-CIO-CLC, and its Local 694, Petitioner.
Cases 10-CA-10931, 10-CA-10969, 10-CA-
11063, 10-CA-11089, and 10-RC-10192
November 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On _ June 16, 1975, Administrative Law Judge
Robert E.Mullin issued the attached Decision in this
proceeding. Thereafter, the Respondent Employer
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order.
The Administrative Law Judge found, inter alia,
that Respondent violated Section 8(a)(1) of the Act
through Supervisor Studioso's interrogating employ-
ee Patterson about a list which the latter was
circulating and asking employees to sign. Employee
Patterson testified as to four different conversations
in which he attributed a number of antiunion
remarks to Studioso. The Administrative Law Judge
noted that throughout much of the time Patterson
was on the stand he gave the impression that he was
withholding information, and that he "was not a
frank or convincing witness in connection with this
aspect of his employment history." The Administra-
tive Law Judge further found that most of Studioso's
denials were more credible than the testimony of
Patterson and consequently found that, as to the four
conversations, the testimony of Studioso that denied
making antiunion remarks and predictions was the
more plausible. In one aspect of the foregoing,
however, Studioso acknowledged having questioned
Patterson about a list the latter was circulating
among his coworkers. Studioso testified that cowork-
ers of Patterson had come to him with the complaint
that Patterson wanted them to sign a paper to go to a
Christmas or birthday party and the employees asked
221 NLRB No. 72
Studioso if they had to sign; the inference that
Studioso got was that the employees did not want to
go to the party. Upon seeing Patterson in the Plant,
Studioso asked Patterson if he was having a party
and "why did he want people to. sign to go to his
party." Studioso testified that he got no response
from Patterson and did not think anything more
about it but just walked away. According to
Patterson, he told Studioso that the list was for, a
party that he was going to have, although in fact it
was for a union meeting. Studioso credibly testified,
and Patterson admitted, that Studioso was not told
what the list actually was., In view of this and the fact
that Studioso's credited testimony shows no other
prior or subsequent antiunion remarks or predic-
tions, we disagree with the Administrative Law Judge
and fmd that in these circumstances Studioso's
question to Patterson concerning a list did not
constitute a violation of Section 8(a)(l).1 Specifically,
it seems to us that reports of Patterson's Christmas or
birthday party solicitations on the plant floor
naturally aroused' some curiosity, and we do not
believe that, standing alone, an obvious question
about these activities could reasonably be viewed as
having the tendency to interfere with the exercise of
wholly unrelated, undisclosed protected concerted
activity.
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 including
remand of the representation proceeding to the
Regional Director so that a new election may be
conducted, and hereby orders that Respondent
Neptune Water Meter Company, a Division of
Neptune International Corporation, Tallassee, Ala-
bama, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
1 Thus, in agreeing with the Administrative Law Judge's conclusion that
there is merit in the objections and that the election should be set aside, we
do not rely on or include Studioso's conduct as a basis for that agreement;
rather, we find sufficient basis for agreement absent any violation by
Studioso.
DECISION
STATEMENT OF THE CASE
ROBERT E. MuLLUN, Administrative Law Judge: This is a
consolidated proceeding involving allegations that the
above-named Respondent engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act and
objections to conduct affecting the results of an election
NEPTUNE WATER METER CO. 429
held pursuant to a petition filed by the above-named
Union on October 24, 1974, in Case 10-RC-10192.1
The unfair labor practice allegations are set forth in a
complaint in Case 10-CA-10931 issued on November 18,
1974,2 in a consolidated complaint and notice of hearing in
Cases 10-CA-10931 and' 10969 issued on December 3,
1974,3 and in a consolidated complaint and notice of
hearing in Cases 10-CA-11063 and 11089, issued on
February 26, 1975 .4 In its various answers, duly filed, the
Respondent conceded -certain facts with respect to its
business operations, but it denied all allegations that it had
committed any unfair labor practices:
The election in Case 10-RC-10192 was conducted on
December 19. Out of approximately 329 eligible voters 140
cast valid votes for, and 176 cast valid votes against, the
petitioning Union. There were six challenged ballots and
no void ballots. After the election the Union timely filed
objections to the election. After a preliminary investiga-
tion, the Regional Director concluded that the Union's
Objections 5, 9, and 11 raised substantial and material
factual and credibility issues which could best be resolved
after a hearing thereon. Accordingly, the aforesaid objec-
tions were consolidated for hearing with the unfair labor
practice allegations of the various complaints enumerated
above.
The hearing on these consolidated matters was held in
Tallassee, Alabama, on March 19, 20, and 21, 1975. At the
hearing, all parties were represented by counsel. All were
given full opportunity to examine and cross-examine
witnesses, and to file briefs. The parties waived oral
argument. A motion to dismiss, made at the close of the
hearing, was taken under advisement. It is disposed of as
appears hereinafter in this Decision. On April 23, 1975, the
General Counsel, the Union, and the Respondent-submit-
ted briefs .5 Upon the entire record in the case, including
the briefs of counsel, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, with an office,
plant, ^ and place of business at Tallassee, Alabama, is
engaged in the manufacture and sale of water meters.
During a representative calendar year, it sold and shipped
finished products valued in excess of $50,000 directly to
customers located outside the State of Alabama. Upon the
foregoing facts, the Respondent concedes, and it is now
found, that Neptune Water Meter Company, a Division of
1 Unless otherwise indicated, all dates are for the year, 1974.
2 On a charge filed on September 23, an amended charge filed on
September 25, and a second amended chargefiled on November 4
3 The charge in Case 10-CA-10969 was f led on October 18.
4 The charge in Case 10-CA-11063 was filed on December 30, 1974, and
the charge in Case 10-CA-11089 on January 27, 1975.
5 On May 8, 1975, the Administrative Law Judge issued an order and
notice correcting the transcript in certain particulars An opportunity to
move for additional corrections was accorded all counsel, but no such
motion has been received. The aforesaid order and notice has been marked
as ALJ Exh. I and placed in the exhibit file.
e The name of Local 694, as well as that of the International, has
appeared on the ballot in two elections at the Respondent's plant without
challenge . At the instant hearing, however, the Respondent, while
Neptune International Corporation, is engaged in business
within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
International Union of Electrical , Radio and Machine
Workers, AFL-CIO-CLC, and its Local 694 (herein jointly
called Union, or IUE), are labor organizations within the
meaning of the Act .6 -
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In the fall of 1973, the Union petitioned for a
representation election which it lost. In the summer of 1974
the Union resumed its organizational campaign. On
October 30, 1974, it filed a petition in Case 10=RC=10192,
which ultimately resulted in the holding of a secret ballot
election on' December 19, wherein the Union again lost.
The General Counsel alleges that during the course of
the Union's organizational efforts the Respondent engaged
in many violations of Section 8(a)(1) and that it discrimina-
torily discharged -employees Thomas T. McLemore, Wil-
liam D. Tyson, and William E. Patterson. All of these
allegations are denied by the Respondent.
The Respondent conceded the supervisory status of all
who were so alleged by the General Counsel. In this regard
there is an issue only as to the status of Curtis Purcell and
William Thompson, both of whom were alleged by the
General Counsel to have acted -as agents of the Respon-
dent.
B. The Alleged Violations of Section 8(a)(1);
Findings and Conclusions With Respect Thereto
1. Alleged interrogation and threats
Employee William E. Patterson testified credibly and
without contradiction that at the time he was hired by the
Respondent in May 1974 Personnel Supervisor Don Sharp
told him about the union campaign that was in progress,
warned him to avoid getting involved, and told him that
the Respondent would not hire "any new employees that
were for the Union." Wallace Sands, an employee from
July to October, testified that at the time he was hired
Personnel Supervisor Sharp, told him that the employees in
the machine shop, or toolroom, where he was assigned,
"were the biggest pushers of the Union . . . that some of
the guys in the machine shop were on shaky ground and
that "he knew how each one' of them was thinking along
conceding the status of the International, alleged that Local 694 does not
qualify as a labor organization within the meaning, of the Act. From the
credible and uncontradicted testimony of Fred Prater, it appears that Local
694 was chartered by the International for the,purposeof representing only
employees of the Respondent. While employees of the Company are not yet
paying dues to Local 694, meetings are being held which are attended by
employees of the Company. It is undisputed, as Prater testified, that the
purpose of Local 694 is to represent'the employees' of the Company in
regard to wages, hours, and conditions of employment. Since the objectives
of the local are the same as those of the chartering I'nternational, which the
Respondent has conceded is a labor organization, it is now found that Local
694 is a labor organization within the meaning of the Act. Monsanto
Research Corporation, Mound Laboratory, 185 NLRB 137, fn. 2 (1970).
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that line." According to Sands, Sharp told him at this time
that "if I got involved with the Union ... I [too ] would be
on shaky ground . . . ." Sands' testimony was credible and
it was neither denied nor contradicted.?
Employee Thomas Henderson testified that in late April
John Bouchard, his supervisor, called him to his office and
questioned him as to his attitude toward the Union.
Henderson acknowledged that he was for the Union.
According to the latter, a few days later Bouchard called
him into his office again and told him that he was filing a
written reprimand against him for having talked with a
coworker. Later that day Henderson, whom Bouchard had
promised a promotion, inquired as to his current prospects
for advancement. According to Henderson, his supervisor
told him that there would be no promotion in h'is future at
the, Company because of his involvement with the Union.
Henderson was a ' credible .witness and his testimony was
neither denied nor contradicted by any witness for the
Respondent.8
Late in July, employee Linda D. Simmons transferred
from department 35 to department 82. She testified that
one morning shortly thereafter, and while in the plant
lunchroom before reporting for work,, Supervisor James T,
Brown questioned her as to the union activities of the
employees in department 35. According to Simmons,
Brown asked her if anyone had spoken to her about the,
Union before she left that, department and when she
replied in the, negative he questioned her as to what she
knew about the union activities of Ruth Strength, a former
coworker of Simmons. When Simmons disclaimed any
knowledge as to Strength's current views on the Union,
Brown inquired as to whether Strength had been for the
Union during the earlier organizational campaign the
preceding fall. Simmons told him that during that period
all of the machine operators in department 35 had been for
the Union. When called to the stand as a witness for the
Respondent, Brown conceded knowing both Simmons and
Strength , but testified that he could not recall any
conversation with Simmons of the type about which that
employee testified . Simmons was a credible witness who
had a clear and convincing recollection of her exchange
with Brown . For that reason it is now found that the
conversation in question occurred as she described it.',
The first unfair labor practice charges in these cases were
filed in September. Gerald Hendrix, an employee in the
toolroom, testified' that on or about October 24 Harmon
Dennis, 'his supervisor, questioned-him as to whether he
knew anything about he unfair labor practice charges filed
against the Company, and that during the course of the
conversation he conceded to his supervisor that a Board,
agent had talked with him. Dennis acknowledged that he
had had a discussion with this employee about having
given a statement tio'the Board and, further, that he might
have initiated the conversation. Hendrix was a credible
witness and it is now'found that the exchange with+Dennis ,
occurred substantially as Hendrix testified.
r The Respondent did not call Sharp as a witness.
8 Bouchard was not called by the Respondent . At the hearing, counsel
for the Respondent stated that the Company was unable to locate him and
that at that time Bouchard was being sought for unlawful flight to avoid
prosecution.
Employee' Eleanor Knolls testified that during the latter
part of July James R. Jones, her supervisor, questioned her
as to whether anyone had discussed the Union with her
and when she answered in the negative Jones told her that
some ofher coworkers would attempt to get her to sign a
card, but that he did not feel that she should do so. When
called -to the stand, Jones acknowledged having had a
conversation with Knolls about the Union, but asserted,
"It seemed to me that she was, asking for advice." 9 Knolls
was an intelligent witness whose testimony was completely
plausible:' It - is now found that her version of this
conversation was more credible than that of Jones.
Alfred, Burnette testified that when he was hired on or
about 'April 1 he was interviewed by Personnel Supervisor
Sharp' and 'Foreman Kenneth Pugh. According to Bur-
nette, Foreman Pugh told him that there was an organiza-
tional drive in progress and that people would be asking
that he sign a union card, but that Burnette should not put
his name on anything or 'sign any, cards, because, the
Company "didn't want a Union [and] that they didn't need
one." i0 Foreman Pugh acknowledged- having had a.
conversation 'with Burnette about the subject of the Union,
and at first testified that he did not tell the employee that
the Company did not want a union. However, when
confronted with a prehearing affidavit he conceded, "I
think I probably told him that the Company did not want a
Union at that time." Burnette was a credible witness. Pugh
was less than frank when on the stand, and, as between
these two, it is now concluded that Burnette was the more'
credible.
Burnette further testified to a conversation with William
Sheppard, an area manager with supervisorial authority
over six departments. The conversation occurred during
the last few weeks of the Union' s campaign and at a time
when Burnette was wearing a union button. According to
the employee, Sheppard asked him why he was wearing a
union button and then invited him to his office for a
discussion of the subject of unions. According to Burnette,
Sheppard questioned him as to what he knew about unions
and suggested that Burnette did not have sufficient
knowledge of the matter to reach a sound decision on
whether to vote for the Union. When called to the stand,
Sheppard readily acknowledged having had an extended
conversation with Burnette at the time and place in
question. According to, Sheppard, Burnette was a very
responsible employee, with whom he frequently chatted
and, on the occasion about which Burnette testified, the
employee himself initiated the, subject. Sheppard testified
that, as a result, he invited Burnette to his office for a cup
of coffee and a review of Sheppard's own experience with
unions." Sheppard denied that he questioned Burnette as
to what the employee was doing on behalf of the Union.
According to the supervisor, he, told Burnette that unions
were a good tool to keep management in line , but that he
did not believe that the IUE or any other union was
needed at Neptune. Sheppard testified at length and with
complete frankness about his relations with Burnette and
9 The quotation is from Jones' testimony.
10 The quotation is from Burnette's testimony.
u Sheppard had once been a member of the international Brotherhood
of Electrical Workers, and also, of the International Association of
Machinists.
NEPTUNE WATER METER CO. 431
the conversation in question. He was persuasive and
credible. Consequently, it is now found that during this
exchange the supervisor did, not go beyond the expression
of his own views or opinions, the expression of which is
protected by Section 8(c) of the Act.
Burnette further testified that around the last of August
and the morning after the first union meeting which he
attended John B. Newman, his departmental foreman,
questioned him as to what he had learned at the meeting.
Burnette testified that when he disclaimed any knowledge
of the subject Newman declared that Burnette well knew
what he was talking about and stated, ". . . by God, I
know that you were there...." According to Burnette, in
December and while he was wearing a union button during
the last 2 weeks of the Union's campaign, Newman called
him to his office to discuss Burnette's job performance and
his eligibility for a periodic 10-percent raise. According to
the employee, Newman at first told him that his perform-
ance was unsatisfactory, and asked whether his involve-
ment with the Union had changed his job output. Burnette
testified that Newman thereupon asked him a series of
questions as to why he liked the Umon and why he thought
that a labor organization was needed at Neptune . Accord-
ing to Burnette, Newman told him that even though he did
not like Burnette's attitude toward the Company he would
give him a "good" rating as to "attitude" on the
performance report in order that Burnette would get a
raise , but that he further told him "that if my attitude
didn't improve . . . I might not be working there too much
longer." When called as a witness for the Respondent,
Newman acknowledged having had-conversations with the
employee at the times in question , but he denied that he
ever interrogated Burnette as to' attendance at' union
meetings and he denied that at the performance rating
interview he attributed Burnette's attitude to the Union.
Newman's testimony in connection with these incidents
was neither frank nor persuasive . Burnette, on the other
hand, was convincing in his testimony , as to the above-
described events. Consequently, it is now found that his
account more accurately reflects what occurred during
these two exchanges with Foreman Newman.
Upon the foregoing findings of fact, I conclude that the
Respondent violated Section 8(a)(1) of the Act by the
following conduct:
(1) Personnel Supervisor Don Sharp's warning to newly
hired employee Patterson that he should not get involved
with the Union as well as his statement to Patterson that
the Respondent would not hire "any new employees that
w,ere for the Union"; and his statement to employee Sands
when that employee was hired that some of the employees
in the machine shop where Sands would work were on
"shaky ground" because of their union activities and that if
Siands "got involved with the Union . . . [he too] would be
on shaky ground...."
(2) Personnel Supervisor Sharp 's comment to employee
Sands when the latter was hired for work in the toolroom
that the Respondent knew that the employees working in
that section were the biggest pushers for the Union and a
similar comment to employee McLemore when that
employee was hired to the effect that the toolroom was
12 Employee Melvin Barker.
strong for the Union, thereby, in each instance, giving
these employees the impression that it had the union
activities of its employees under surveillance.
(3) Supervisor John Bouchard's questioning of employee
Thomas Henderson in April as to' his attitude toward the
Umon and his subsequent threat, uttered shortly thereafter,
that because of Henderson's involvement with the Union
there would be no promotion in his future with the
Company.
(4) Supervisor James T. Brown's interrogation of
employee Linda Simmons in July as to the union activities
of her coworkers, including employee Ruth Strength.
(5) Supervisor Harmon Dennis' questioning of employee
Gerald Hendrix in October as to whether he knew anybody
in the toolroom who had been involved in filing the initial
unfair labor practice charges with the Board.
(6) Supervisor James B. Jones' questioning of employee
Eleanor Knolls in July as to whether she had discussed the
Umon with anyone.
(7) Foreman Kenneth Pugh's conversation with employ-
ee Alfred Burnette when Burnette was hired in April at
which time Pugh told the new employee that during the
Union's organizational campaign Burnette should not sign
any cards because the Company "didn't want a Union
[and] didn't need one."
(8) Foreman John Newman 's interrogation of employee
Burnette in August as to what occurred at a union meeting
the night before and when Burnette disclaimed any
knowledge of the subject, the supervisor's declaration "by
God, I know that you were there ...," thereby giving the
impression that the Respondent was keeping the employ-
ees' union activities under surveillance.
(9) Foreman Newman's interrogation of employee
Burnette in December and during the course of a
performance rating interview as to why the employee was
supporting the Union and his statement to Burnette that,
notwithstanding the employee's "attitude," he would give
him a good rating that time, but that if his attitude toward
the Company did not improve Burnette "might not be
working there too much longer."
2. The alleged surveillance
On the evening of September 12, the Union held an
organizational meeting at the city hall in Carrville, a little
town only a short distance from the Respondent's plant in
Tallassee . While the employees were standing on the
sidewalk outside the hall and waiting for the meeting to
begin, Foreman Harmon Dennis drove by this location
twice within the space of only a few minutes. The General
Counsel presented several witnesses who testified as to
Dennis' appearance in the vicinity of the union meeting on
the night in question. One12 testified that Dennis was alone
in his car, but other employees 13 testified that the foreman
was accompanied by his wife and children. All of them
acknowledged that Dennis and his family lived in Carrville
and only a short distance from the city hall.
When called to the stand, Dennis testified that he lives
within a 3-minute drive of the Carrville city hall, that he
regularly drives by it at least twice a day on the way to and
13 William Fourhman, Frederick D. Piper, and Thomas Henderson.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the plant, and that he has followed the same route for
a long while, both before and after the union activity
began. According to Dennis, at about 7 o'clock on the
evening in question, he and his wife and two boys attended
a PTA meeting at the Carrville elementary school where
his younger son was in attendance and which was located
only a short distance down the street from the town hall.
Dennis testified that they were at the PTA meeting for
about half an hour after which time he suggested to his
family that they go out to dinner, but then discovered that
he had no money. As a result, Dennis and his family
returned to his home for a brief period to secure the funds
he needed and then all of them drove past the city hall on
the way to a drive-in restaurant. He testified that on
finishing their dinner he returned to his home and in so
doing passed the city hall for the fourth time that night.
Dennis acknowledged having seen several of the employees
on his second and third trip past the mumcipal center
during the course of the evening, but he testified that his
presence in the vicinity at that time had no explanation
other than the above description of his activity with his
family on that night. He denied that he engaged in any
surveillance of the union meeting.
The city hall is located on the principal highway through
the town of Carrville. The route from Dennis' home to the
elementary school, as well as to the drive-in restaurant,
made it necessary that the supervisor traverse the road past
the city hall several 'times. Dennis' explanation of his
presence at the scene was credible and on the basis of his
testimony I conclude that the General Counsel has failed
to prove by a preponderance of the evidence that Dennis
was engaged in surveillance of ' the employees' union
activities on the evening in question.14
3. The comments attributed to Purcell and
Thompson and their status as agents of the
Respondent
Employee Linda Simmons testified that shortly before
the election Curtis Purcell, a utility machinist in the plant,
asked her where she would be working after the election if
the Union Won. When Simmons answered that she
assumed she would be at the same job at which she was
then engaged, Purcell told her that the plant would close,
but that he himself would go to another plant which the
Respondent had in Greenwood, South Carolina.
Employee Thomas Henderson testified that shortly
before the election Purcell made substantially the same
comment to him. Henderson further testified that during
this conversation William M. Thompson, a toolcrib
attendant, was present and that after Purcell finished
speaking Thompson commented similarly saying ".. .
when the union goes in they are going to shut this plant
down. . . ." Purcell conceded that he made the remarks
attributed to him by Simmons and, Henderson. Thompson
denied that he ever told any coworkers that if the Union
won the plant might close.
According to Henderson, on the day before the election
he complained to Foreman Dennis that Purcell and
Thompson were apparently free to move about the plant
making remarks against the Union and that those in favor
of the Union should be accorded the same freedom to
campaign during working hours. According to Henderson,
in rejecting his suggestion, Dennis observed, "... this is
what we get paid for."
Dennis' testimony as to this conversation was somewhat
different. According to the latter, when Henderson made
the proposal that he should be permitted to move freely
about the plant during working hours, Dennis told
Henderson that he was being paid to do tool grinding and
that he (Dennis) was being paid to supervise the depart-
ment. Dennis credibly denied that he directed Thompson
or anyone else to campaign for or against the Union.
Thompson denied that he was ever told by anyone in
management to speak out against the Union, and Purcell
testified that no plant supervisor asked that he campaign
against the IUE. Purcell was a rank-and-file employee who
voted in the election and whose vote was not challenged.
Thompson, as a toolcrib attendant, had no supervisory
status, but was outside the unit made up of those eligible to
vote.
As rank-and-file employees without any supervisory
functions, neither Purcell nor Thompson was authorized to
speak for the Respondent, unless he possessed some real or
ostensible authority to do so. The General Counsel did not
offer evidence that would establish this connection. When
these two employees were called as witnesses, both
appeared as staunch outspoken opponents of the Union in
the preelection period. This, of course, was their right.
Since on the record and the findings set forth above it is
apparent that the General Counsel did notestablish by a
preponderance of the evidence that either Purcell or
Thompson was authorized, or directed, to speak on behalf
of the Respondent during the course of the Union's
campaign, the allegation that the Respondent was respon-
sible for their actions and conduct in this respect during
that period must be dismissed.
C. The Alleged Violations of Section 8(a)(3),
Findings and Conclusions in Connection Therewith
1. Thomas T. McLemore
McLemore was a machinist in the toolroom. He went to
work on August 26 and was discharged on September 17.
He was hired by the Company after it had engaged in an
extensive advertising campaign to secure an additional
machinist to work under the supervision of Harmon
Dennis. McLemore lived in Albertsville, Alabama, about
150 miles from the plant. Early in August he answered a
company advertisement for machinists that appeared in -a
Birmingham newspaper. Shortly thereafter he was inter-
viewed at a Holiday Inn in that city by Personnel
Supervisor Don Sharp and Personnel Manager Phillip
Marlar. The personnel officials expressed great interest in
14 Employee Frederick Piper testified that the day after the Carrville had known Piper all his life, and that his reference was an allusion to
meeting Dennis came up to him at the plant and asked if Piper had been at trouble in which Piper had been involved at some earlier time. It is apparent
the city hall to get one Mike Hancock out of Jail Dennis acknowledged that this exchange had nothing to do with Piper's union activities and
having made some comment to Piper the next day, but he testified that he provides no support for the General Counsel's allegation of surveillance.
NEPTUNE WATER METER CO.
McLemore's qualifications and told him that, if hired, the
Company would send for him at its expense, help him get
established, and assist him in finding a place to live in
Tallassee. Two weeks later McLemore was called to the
plant at company expense, and on this occasion was
interviewed by Supervisor Dennis and Personnel Supervi-
sor Sharp. McLemore testified credibly and without
contradiction that at this time Dennis and Sharp told him
they were impressed with his qualifications and that they
would contact him shortly as to when he should report for
work. This occurred soon thereafter when McLemore was
notified that he could come to work at the Respondent's
plant in Tallassee on August 26.
McLemore testified that, on reporting at the plant on the
scheduled date, Personnel Supervisor Sharp, after taking
care of the preliminaries connected with putting him on the
payroll,15 told him that the toolroom where he would be
working "was strong for the union . . . that I probably
would be confronted by someone to sign a card or attend
union meetings . He said for me not to pay any attention to
it, that the Company did not want any union." McLemore
further testified that, on arriving at the toolroom, Dennis
repeated this admonition and told him that the employees
in that section were attending union meetings, but that
"the Company did not want the Union." As noted earlier,
Sharp was not called as a witness. McLemore's testimony
as to their conversation was, therefore, undenied. It was
also credible. Dennis denied that he mentioned the Union
in his conversation with the employee on that day.
McLemore, however, was the more credible and it is now
found that the conversation with his supervisor occurred
substantially as he testified.
Dennis assigned employee Gerald Hendrix to work
along with McLemore and help with his orientation.
Hendrix testified that while under his tutelage McLemore
turned out good work and was very skillful, Dennis, who
subsequently became very critical of McLemore's tardi-
ness, conceded that he told McLemore "that he was doing
a fine job" and at no time in his testimony did he voice any
criticism of the employee's proficiency.
During the entire term of McLemore's employment the
toolroom was extremely busy and the employees were
often on overtime. Hendrix testified that he and his
coworkers sometimes reported for duty at 5 a.m., and
worked as much as 12 hours a day. This testimony was
corroborated by William Fourhman, another toolroom
employee, and by the timecards of McLemore himself. The
regular starting time for the shop was 7 a.m., but
Fourhman testified that because of the long hours "quite a
few times" he himself had been "a few minutes late."
Not long after McLemore began working in the shop, be
signed a union card and turned it over to Hendrix. The
latter testified that this occurred about September 10. Soon
thereafter McLemore attended a union meeting.
5 This included giving McLemore a copy of the Respondent's employee
handbook entitled "welcome to Neptune Meter Company" Marlar
testified that when he became the personnel manager he directed that this
booklet no longer be used. The record is silent as to precisely when Marlar
became the personnel manager In any event, from McLemore's credible
undenied testimony, it is clear that Sharp gave McLemore a copy of this
booklet when the latter reported for work.
433
McLemore was discharged on the afternoon of Septem-
ber 17. He reported for work that morning at about 5 a.m.
At about 10:30 Dennis brought him a check as reimburse-
ment for his expenses in connection with the first 2 weeks
after he moved to Tallassee. At about 3:30 p.m., Dennis
called McLemore to his office. Several other employees'
were in the area as Dennis and McLemore turned to enter
the supervisor's office. Among this number were his
coworkers Hendrix, Fourhman, and Henderson. Accord-
mg to McLemore, as his supervisor started to lead him
back to his office, Dennis opened the conversation with the
comment "1 told you about that umon business" and then
went on to tell the employee that because he had been
warned about being late for work the preceding Friday and
had been seen without his safety glasses on that day he was
being terminated that afternoon. Employee Henderson,
who was within a few feet of Dennis and McLemore at this
moment, testified that he heard Dennis tell McLemore at
the outset of their conversation, "I warned you about
messing with the Union." Employee Fourhman testified
that at the same time he heard Dennis say, "I told you
about that union stuff," and Hendrix testified to the same
effect. Dennis denied that he made any mention at the time
of unions or union activity. This denial, however, was not
credible. Hendrix, Fourhman, and Henderson were credi-
ble witnesses whose testimony in this connection withstood
a searching cross-examination by able counsel for the
Respondent. Consequently, it is now found that, as
McLemore was about to be dismissed, Dennis did make a
remark to McLemore about the employee's union activity.
At the hearing, Dennis testified that he decided to
discharge McLemore solely on the basis of his record for
tardiness.16 According to the supervisor, during the 16 days
that McLemore was working for the Respondent he was
late seven tunes and on another day the employee did not
come to work at all. Dennis testified that on September 5
he warned McLemore about having been tardy on three or
four occasions. According to Dennis, he told McLemore
that it was not a good practice for a new employee to be
tardy and "that he was doing a fine job, but I wanted to get
him straightened out about his tardiness." Dennis testified
that by September 12, when McLemore was late a couple
more times, he called him to the office and admonished
him again. Dennis conceded, however, that after talking
with the employee he excused at least one of the instances
of tardiness because the employee had had a flat tire on the
way to work.17 Dennis acknowledged that the employee
was given no written warning of possible dismissal, but
asserted that this was not required under company policy
since at the time McLemore was still a probationary
employee. On cross-examination, however, Dennis conced-
ed that he did not, know whether this policy had ever been
reduced to writing and the Respondent did not subse-
quently, produce any documentary corroboration for
Dennis', testimony in this regard.
16 Although a memo to the personnel department which Dennis wrote
on the day of discharge also mentioned two occasions when the employee
was not wearing safety glasses, when on the stand Dennis testified that this
latter factor had nothing to do with the recommendation that McLemore be
discharged on September 17
11 Dennis testified that he was satisfied with that explanation from
McLemore because "everybody [has ] had a flat."
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLemore acknowledged that he was absent on Septem-
ber 7, the second Saturday of his employment when he was
scheduled to work from 5 a.m. to noon. According to the
employee, his alarm clock failed to go off that morning and
he did not call in because he failed to arise until after the
plant had closed for the day.
McLemore's attendance record is set forth below:
Date Hr. empi. Total hrs.
reptd. worked
8/26 7:00 a. m. 10.00
27 7:10 it 10.89
28 it6:00 10.44
29 7':04 it 9.80
30 n6:58 8.00
9/ 3 it4:45 12.00
4 if7:04 7.94
5 18 it9:48 8.24
6 of5:54 10.38
7 Saturday on which
McLemore overslept
and did not call in
9 5:37 " 10.92
10 II5:08 12.10
11 it4:55 13.04
12 7:01 m 10.58
13 tl8:03 6.97
16 7:44 it 8.26
17 It5:08 10.06
From the above it appears that, apart from the Saturday
morning when McLemore overslept and missed work
completely and the day on which he had a flat tire and was
excused by Dennis, he was late 44 minutes on one day
(September 16), 1 hour and 3 minutes on another day
(September 13), and was' from 1 to 10 minutes late on 4
other days. By any standard this was an unsatisfactory
record for tardiness. On the other hand, it is equally
apparent from the testimony in the record and from the
data set forth above that the toolroom was experiencing an
abnormally heavy schedule with the employees working
many 10- and 12-hour days. McLemore often reported for
work at 5 or 6 o'clock in the morning and, even on several
of the occasions when he was tardy by 1 to 10 minutes, he
worked from 10 to 11 hours on each of those days. In fact,
he put in a total of 159.42 hours during the 16 full days that
he worked, or an average of almost 10 hours a day.
Moreover, the tardiness problem was not endemic to
McLemore. Fourhman, one of the older employees in the
toolroom, testified that he had been "a few minutes late"
"quite a few times" and apparently was never criticized,
much less fired.
The Respondent had gone to considerable expense to
locate a machinist with McLemore's ability, it had paid his
expenses to move from across the State to Tallassee, and
thereafter it found that his work was most satisfactory with
even Dennis conceding that "he was doing a fine
fob...." ,On the first day of his employment, Personnel
Supervisor Sharp had cautioned him that his fellow
employees in the toolroom 'were "strong for the union,"
that he "probably would be confronted by' someone to sign
a card or attend union meetings," but that he was to ignore
these pressures because "the Company did not want any
union." On bringing him into the shop that day, Supervisor
Dennis also apprised him of the fact that management
knew that the employees in the toolroom were attending
union meetings and then reiterated the, same warning
against union activity on his part which Sharp had given
him a few minutes earlier. Notwithstanding these formal
admonitions, McLemore shortly thereafter signed an
authorization card and started attending union meetings.
At some point thereafter, Dennis learned of this develop-
ment, as was reflected in his comment to McLemore on
September 17, when he told the employee whom he was
about to discharge, "I warned you about messing with the
Union."
The Respondent had reason to be dissatisfied with
McLemore's record for tardiness. On the other hand, after
having spent so much time and effort recruiting him and
admittedly being satisfied with his proficiency, it would
seem more likely that for this shortcoming he would be
suspended or penalized at least once in some manner short
of dismissal. Instead, the Respondent elected to discharge
him summarily. On this record and in view of the
Respondent's antipathy for the Union, the admonitions
against McLemore's engaging in any union activity which
Personnel Supervisor Sharp and Supervisor Dennis voiced
on the first day the employee reported for work, and the
final declaration which Dennis made as he was about to
dismiss the employee, I conclude that the motivation for
this termination was not McLemore's record for tardiness,
but the Respondent's knowledge that the newly hired
outsider had signed an authorization card and had joined
with many others in the toolroom to support the Union. By
such conduct the Respondent violated Section 8(a)(3) and
(1).
2. ' William D. Tyson
Tyson was first employed in April 1974, and started
work in department 80. Sometime later he was transferred
to department 40 where his supervisor was John B.
Newman.19 During the summer of 1974, Tyson became
active in the organizational effort and passed out authori-
zation cards and union leaflets. He was on the Union's
organizational committee, and at the representation elec-
tion on December 19 he acted as an observer for the
Union.
18 This was the day McLemore called in late because of a flat tire and, as
Dennis testified, the employee was excused
19 The latter was known generally at the plant as Bennie Newman and
was so referred to in the record
NEPTUNE WATER METER CO 435
In the Respondent's employment practice, an employee
was given a performance review every 90 days. Periodic
raises were given to the employees so long as these
performance ratings were satisfactory. Newman acknowl-
edged that Tyson's performance ratings were always
satisfactory and that this employee never failed to get any
of these raises.
Tyson was an outspoken advocate of the Union, and
sometime before the election his sympathies came to
Newman's attention. In December and about 2 weeks
before the election, Furbacher, one of the Respondent's
officials, spoke to an assembly of the employees about the
Respondent's position on the union issue. After the
meeting, Supervisor Newman questioned Tyson as to what
he thought of Furbacher's speech. Tyson was critical on
the ground that the management official did not have
anything to say and had failed to accord the employees an
opportunity to ask questions. Newman then asked what
Tyson thought the Union would do for him and the latter
responded that he felt that the Union could bring job
security, better benefits, and more money. According to
Tyson's credible and uncontradicted testimony, Newman
closed the discussion with the comment "Well, I reckon
that you have got your mind made up and there is no use
in me talking to you any further."
A few days, later and only a short while before the
election , Newman asked that Tyson accompany him to the
room in the plant where the personnel files were kept.
There he showed Tyson what purported to be his ,absentee
record. Newman told the employee that he had what
appeared to be from five to seven unexcused absences and
that he could be fired at any time. Tyson accused the
foreman of threatening him, but Newman asserted that he
was not making any threats. About 2 days before the
election , Newman was explaining to one of the employees
a sample ballot when, Tyson was nearby. When finished
with his explanation, Newman turned to Tyson and
commented "I don't reckon there is ... need in showing
you this, is there ....?" and Tyson responded in the
negative . Tyson testified that Newman then asked him,
"Where do you think you are going to be tomorrow if the
Union comes in," and that when he replied that he really
did not know, his foreman exclaimed ". . . you will be
home, that is where you will be." Newman denied that he
made this comment to the employee. However, Tyson was
the more credible witness as to this encounter, and it is
now found that the conversation occurred as the employee
testified.
As noted earlier, on December 19 Tyson served as the
union observer throughout the election . That evening he
accompanied a number of coworkers to the union
headquarters at a local motel and spent a good share of the
night drinking beer. He went to sleep at the motel and did
not awaken until about 8:30 the next morning.,His shift
started work at 7 a.m. Tyson testified that at 8:45 a.m. he
sought to telephone the plant but that the line was busy.
Fred Prater, an international representative for the Union
who was present at the time, corroborated Tyson's
testimony as to his efforts to reach the plant that morning.
20 The quotation is from Tyson's testimony.
21 Although Marlar testified that when he became the personnel
Tyson, who at this point was sick, apparently from the
round of drinking that had taken place the night before,
then went to the home of his mother-in-law. There, the
latter telephoned the plant on his behalf and reported his
absence. When she did so, Personnel Manager Phillip
Marlar came on the line and told her that he wanted to
speak with Tyson. When Marlar asked what was the
matter, Tyson told him that he was sick and unable to
report for work. According to Tyson, Marlar referred to a
requirement that he should have called the plant sooner
and characterized the instant situation as Tyson's "third
offense." 20 Tyson testified that this conversation took
place about 9:45 a.m. Marlar, who corroborated most of
this conversation, testified that it occurred about 10
o'clock. Later that morning Tyson received a message from
the plant directing that he be at the office of Plant
Manager Helbeck at 9 a.m ., on December 23, the following
Monday.
On December 23, Tyson was at the office of the plant
manager . Present also were Newman, Sheppard, and
Marlar. According to the employee, this group criticized
him for having been the subject of numerous written
warnings. Tyson testified, however, that he had never seen
the warning slips that were supposed to have been in his
file. He also testified that during the course of the meeting
he acknowledged to those present that he had been having
drinking problems and family problems. The meeting was
concluded quickly, Tyson was notified that he was
terminated, and Marlar handed the employee his final
check.
Although the Respondent contends that it had a
longstanding rule that an employee who planned to be
absent had to call the plant before 9 o'clock, or within 2
hours of the time his shift began, such a rule had never
been posted on any bulletin board in the plant, nor did it
appear in the employee handbook which was issued to the
employees who were hired while Sharp was the personnel
supervisor.21 Newman conceded that the only place where
the rule appeared in print was in a guide for supervisors
known as "The Operating Procedures Manual," and that
this was a document that was not available to the
employees.
The Respondent offered in evidence three documents
entitled "Employee Warning Records." These were direct-
ed to Tyson and bear the dates indicated below. They read
as follows:
Respondent's Exhibit 4
8-27-74
The above employee was absent from work on
8/26/74. He did not call in until 1:00 p.m. He said he
had been to Georgia over the weekend and had a wreck
and had no money to call. I told him if he ever failed to
come in and not call before 9:00 a.m, that further
disciplinary action would be taken up to and including
discharge . As of this date Don has 8 absences 7 of these
being unexcused.
manager he ordered that the issuance of this book to new employees be
discontinued, no new handbook was ever distributed thereafter.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. B. Newman
Supervisor
Respondent 's Exhibit 5
7-16-74
Above employee was consulled [sic] on above date
about his absence on 7-15-74 which was unexcused
because he didn't call or send word. He did call me at
home about 6:30 p.m. He was told if it happened again
disciplinary action would be taken.
J. B. Newman
Supervisor
Respondent's Exhibit 6
5-14-74
Don has been absent 3 Mondays in a row -
April 29 Upset Stomach
May 6 Mother in Law in Hospital
May 13 Sick Stomach
No action taken Verbal warning only
J. B. Newman
Supervisor
Don Sharp
Personnel Mgr.
Newman conceded that Exhibit 6 was not shown to
Tyson at the 'time it was prepared, nor was it read to him
then. From the language in Exhibit 5 it is equally apparent
that this was an after-action memo that would not have
been read to the employee. Newman testified that he did
read Exhibit 4 to Tyson, but the tense in which that entire
report is written makes this seem most unlikely. In
addition, Tyson himself credibly testified that he received
no more than a verbal warning on August 27 and he denied
ever having had a warning read or shown to him on that
date.
Newman conceded that no written warnings were
prepared on Tyson subsequent to August 27. At one point
he testified that during the period subsequent to that date
and prior to December 20 he had given the employee
"roughly two" warnings . Almost immediately thereafter,
however, he described these two occasions as involving
"absences that he [Tyson] had already accumulated in the
past." In addition to being unable to specify when these
had occurred, Newman also conceded that these were
absences about which Tyson had called in and which were,
therefore, excused. Newman further acknowledged that
during this 4-month period from late August to December
20 he did not give Tyson any verbal warnings or tell him
that any further absences would subject him to disciplinary
action. Finally, Newman acknowledged that he was aware
that on the morning ' of December 20 this employee had
telephoned the plant to explain his absence.22'
Tyson was an employee who, prior to August 27, had
had a poor record for Monday morning absenteeism.
Subsequent to that time, however, he had had no
unexcused absences, as even Newman was ready to
concede. Although the Respondent, in its explanation for
Tyson's dismissal, relied heavily on his alleged failure to
adhere to a rule which purportedly required an employee
to call the plant within 2 hours after his shift began, the
only printed version of this rule appeared in an operations
manual to which only the supervisors had access.
Tyson obviously had a problem with alcoholism and
during the spring and summer of 1974 his absenteeism had
caused him to be reprimanded verbally on several
occasions. Notwithstanding this record, his job perform-
ance was such that he continued at work and was
awarded all regular merit increases, including one between
his last written reprimand and the day of his discharge. In
the period prior to the election, however, he became known
to management as an active union proponent and was
outspoken in his advocacy of the Union in Newman's
presence. Shortly before the election, and after Tyson's
touting of the Union's claims that it could offer job
security, Newman cautioned him that with' Tyson's
absentee record he could be discharged at any time. On the
eve of the election when he had another exchange with his
supervisor, Newman told him that if the Union won the
employee would be at home the next day, thereby implying
a plant closure.
In view of the foregoing, most particularly the numerous
violations of Section 8('a)(1) by the Respondent during the
Union's campaign, as found earlier herein, the manifest
antipathy of Supervisor Newman to Tyson's advocacy of
the Union among his coworkers, and Tyson's satisfactory
work performance as reflected by his periodic raises, it is
now found that the motivation for Tyson's sudden
dismissal, after the election at which he had been the union
observer, was not his failure to adhere to a call-in rule, no
copy of which had ever appeared on a plant bulletin 'board
or in the employee handbook, but rather Tyson's union
activism. Accordingly, it is now found that by his dismissal
the Respondent violated Section 8(a)(3) and (1) of the Act.
It is further found that by Newman's statement to the
employee, 2 days before the election, wherein be intimated
that, if the Union won, the plant would be closed, the
Respondent further violated Section 8(a)(1) of the Act.
3. William E. Patterson
Patterson was hired in May 1974 and was discharged on
January 16, 1975. He was assigned to work in the foundry
as a laborer and eventually was made a metal 'pourer.
During the period of his employment, his immediate
supervisor was Foreman Roger Dempsey and the foundry
superintendent'was Gene Studioso.
Patterson testified that he went to about four union
meetings, and that he passed out some union literature and
secured several signed authorization cards.
According to Patterson, after he had been a pourer for a
short while Foreman Dempsey told him that he was the
best pourer that the Company' had and that he would be
responsible for training all the new men. Both Dempsey
and Studioso denied ever having given Patterson such an
unqualified endorsement. Studioso testified that at one
22 Quotations in this paragraph are from Newman 's testimony
NEPTUNE WATER METER CO. 437
point, early in Patterson's employment, he told the
employee that if he wanted to exert himself he could
become the Company's best pourer. According to Studio-
so, at that stage , Patterson was considered an employee of
considerable promise. As a result, when Patterson com-
plained about being too closely supervised and suggested
that if left alone he could be more productive, Studioso
arranged for the employee to work completely by himself
for several weeks. According to Studioso, however, this was
an 'unsuccessful venture, because, on many days during
this period, Patterson, after a short spurt of great energy,
would drift off from his job. Studioso testified that as a
consequence, and because Patterson was not sufficiently
responsible to work, by himself it was necessary to put him
back on a regular crew.
Patterson testified that over a span of several weeks
before the election Studioso had four different conversa-
tions with him about the Union. The substance of this
testimony is outlined below.
According to Patterson, about 5 weeks before the
election Studioso called him to his office where he at first
praised Patterson's work, and then launched into a series of
statements about the Union wherein the superintendent
declared that if the Union won everyone would lose his job
and the plant would be shut down. Patterson testified that
Studioso concluded the meeting by characterizing him as a
"troublemaker" and criticizing him for having passed out
union literature on company time.
Studioso, on the other hand, testified that he called
Patterson into his office because he had heard that the
employee was putting up union stickers in the plant work
area and that he told him to stop it if he was so engaged.
The superintendent testified that after Patterson denied
that he was involved in any such activity, during duty
hours, he told the employee to return to work. He denied
having told Patterson that the advent of the Union could
result in the plant closing or the loss of any jobs and he
specifically denied calling the employee a "troublemaker."
According to Patterson, about 2 days after the first
conversation Studioso called him to the office again and
engaged in a further discussion of the Union. On cross-
examination, he conceded that Studioso told him that it
had been reported that he was passing out union literature
in the work areas and that he denied that he was doing this.
Studioso testified that this was a very bri ef meeting which
encompassed only the report which he had had to the
effect that Patterson was passing out union leaflets in the
foundry work area . According to Studioso, the employee
denied that there was any substance ' to this report.
Studioso testified that after the employee voiced his denial
he told him to go back to work.
Patterson testified that a few days; later Studioso
questioned him as to whether he had been passing a list
around and getting people to sign their names to it.
According to Patterson, he told Studioso that the list was
for a party that he was going to have, although, in fact, it
was for the Union. Studioso acknowledged having ques-
tioned Patterson on this occasion, and !testified that he
asked Patterson why he wanted people to sign a list merely
to attend a party. Studioso testified that on this occasion
the exchange with the employee did not take place in his
office, but out in the foundry.
Patterson testified that about a week before the election
Studioso questioned him about whether he was contacting
the employees and asking them how they were going to
vote. The superintendent denied that he engaged in any
such interrogation of the employee.
Patterson was not a frank or convincing witness in
connection with this aspect of his employment history.
Throughout much of the time when on the stand he gave
the impression on several occasions that he was withhold-
ing information. Most of the superintendent's denials, on
the other hand, were more credible than the testimony of
this employee. Consequently it is now found that, as to the
four different conversations where he attributed a number
of antiunion remarks and predictions to Studioso, the
testimony of his supervisor wherein the latter denied
making those comments is the more plausible.
In one aspect of the foregoing, however, Studioso himself
acknowledged having questioned the employee about a list
the latter was circulating among his coworkers. Although
Patterson told his supervisor that the list in question was
related to a social event, in fact, it was for a union meeting.
In any case, it was connected with the employee's
protected concerted activity and it was a violation of
Section 8(a)(1) of the Act for the Respondent's supervisor
to interrogate the employee about the list.
Patterson received a number of written reprimands, each
one of which he signed on the date it was prepared and
shown to him. In a reprimand dated November 5, Studioso
criticized the employee for being tardy both on reporting
for work and on returning from lunch. In this memoran-
dum the superintendent threatened that the next infraction
would result in time off. On December 14, when Patterson
was late on getting back from lunch, Foreman Dempsey
suspended him for the rest of the day. In a reprimand
which Dempsey prepared on December 20, he referred to
this incident and also to a second occasion when the
employee was similarly tardy on coming back to work at
the end of a noon hour. Another reprimand for this
employee which Dempsey prepared that same day read as
follows:
Patterson has accumulated five (5) unexcused absences
since being employed on 5-29-74. Rules and regula-
tions state that "Five unexcused absences during a one
year period of employment will result in termination."
The next time Patterson has an unexcused absence,
corrective action will be taken. Other infractions will be
corrected by disciplinary action up to and including
dismissal.
On December 27, Dempsey served another written
reprimand on Patterson. This one referred in general terms
to the employee's alleged failure to obey company rules
and regulations and closed with the declaration that the
next infraction would result in dismissal. When questioned
about the lack of specificity in this reprimand, Dempsey
testified that it covered those occasions when Patterson
had broken the plant rules in failing to wear safety glasses
and had been wasting time in other departments, and to
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two instances when he had been caught sleeping on the
job.
Patterson was terminated on January 16, 1975, allegedly
for his part in an incident which occurred on the preceding
day. Early on the morning of January 15, Patterson was at
work on his molding machine when it broke down. As a
result, Patterson and two other employees, Carl Stewart
and Richard Brantley, were unable to continue at their
molding jobs until the maintenance crew repaired the
machine. Patterson was very hazy as to what he was doing
during most of the approximately 1 hour and 45 minutes
that the molding machine was being repaired.
Dempsey testified that after the breakdown Studioso
gave him various orders as to what the idle crew members
should do in the interim and that Patterson was to shovel
sand. According to Dempsey, after delivering this order to
Patterson at about 7 or 7:15 a.m. he left the scene. Twenty
minutes later he could not find Patterson at the sandpile.
Dempsey testified that upon instituting a search for the
missing employee he found Patterson and the two other
employees sitting in the shower stalls in the restroom,
concealed behind a series of lockers. One was seated on a
chair, but Patterson was sitting on the floor. Dempsey
ordered them all out to work and sent Patterson back to
shovel sand. Later that morning Patterson was' suspended
for the rest of the day and told to report to the plant at 9
o'clock the next morning. On the following day, when
Patterson returned to the plant, Studioso and Marlar
informed him that he was being terminated.
Patterson never testified about being discovered on the
floor of the shower room. Dempsey's testimony as to this
incident, which was credible, was fully corroborated by
Brantley, one of the two employees who' was found in the
same compromising, position with Patterson when the
foreman conducted his search.23
The General Counsel contends that Patterson was
discriminatorily discharged. This employee had done some
work on behalf of the organizational movement, but it was
not substantial. Moreover, his testimony as to the union
activities in which he engaged appeared greatly inflated. In
any event, on the findings set forth above, it is concluded
that the General Counsel has failed to establish by a
preponderance of the evidence that this employee was
discriminatorily terminated. On the record developed
herein, it is found that he was discharged for cause.
Case 10-RC-10192
The Union's Objections; Findings and Conclusions
in Connection Therewith
On December 23, the Union timely filed 11 objections to
conduct affecting the results of the election. After an
investigation, the Regional Director concluded that a
hearing should be held on the issues raised by Objections 5,
9, and 11. Since the issues raised by these objections were
coextensive with certain conduct alleged in the present
complaints, the Regional Director consolidated for hearing
the representation matter and the present unfair labor
practice proceeding.
The parties in this case having entered into a'consent
election agreement, the objectional period commenced
when the petition was filed on October 24, 1974. Goodyear
Tire and Rubber Company, 138 NLRB 453,454-455 , (1962).
To the evidence in connection with the issues raised by the
three objections in question we will now turn.-
Objection No. 5: Sometime during the week of the
election, the Employer threatened an employee because
he stated he was going to vote for the Petitioner.
As found earlier herein, in the last few days before the
election, William Tyson, whose advocacy of the Union was
well known to Supervisor Newman, was engaged in a
discussion with Newman of the Union's claim that it could
provide job security. Newman concluded their discussion
by cautioning Tyson that with the employee's absentee
record he could be terminated at any time. A few days
later, and on the eve of the election, Newman told Tyson
that if the Union won Tyson would be at home the next
day, thereby implying that the plant would be closed. The
latter comments have already been held to violate Section
8(a)(1). It is now held that on the basis of the foregoing
findings there is merit to Objection 5. 1
Objection No. 9: During the week of the election, the
Employer permitted employees to campaign against
Petitioner during their working hours and denied the
right of adherents of Petitioner to campaign for
Petitioner. The employees campaigning against Peti-
tioner stated the plant would be closed if employees
voted for Petitioner.
This objection must stand or fall on the testimony
offered as to the conduct of employees Curtis Purcell and
William Thompson during the period immediately before
the election. Earlier herein it was found that the General
Counsel had failed to establish that these employees were
acting as agents of the Company or with any ostensible
authority from the Respondent when they made adverse
comments about the Union and predicted that the plant
would be closed if the Union won the election. Conse-
quently, it is now found that there is no merit to this
objection.
Objection No. 11: By the acts set forth above and by
other acts and conduct, the Employer interfered with
the rights of the employees to select a collective-
bargaining representative.
This type of omnibus objection, designed to rely on
evidence unearthed during the course of a postelection
investigation, has been approved by the Board. - Thomas
Products Co., Division of Thomas Industries, Inc., 169
NLRB 706, 707 (1968) 24 Accordingly, any conduct
violative of the Act in which the Respondent engaged
during the period between October 24, when the petition
23 Brantley and Stewart were given only verbal warnings for their part in
this incident . Dempsey testified that, until that time, both had had good
work records.
24 the jurisdiction of the Regional Director in making postelection
investigations is not hunted to the specific issues raised by the parties."
International Shoe Company, 123 NLRB 682,684 (1959); Carter-Lee Lumber
Company, 119 NLRB 1374, 1376 (1958)
NEPTUNE WATER METER CO.
was ,filed, and December 19, the date of the election, must
be considered.
As found earlier, on October 24, Supervisor Harmon
Dennis, and the Respondent, violated Section 8(a)(1) when
Dennis interrogated employee Gerald Hendrix as to
whether he knew anybody in the toolroom who had been
direptly involved in, the filing of the unfair labor practice
cha4ges. It was likewise found a violation of that same
section of the Act for Superintendent Studioso to interro-
gate employee Patterson shortly before the election about
his circulation of a list among the employees, on nonwork-
ing time, which listing was of those who planned to'attend
a union meeting. Similarly, it was found violative of the
Actl for Supervisor Newman, in December and during the
last 2 weeks of the Union's campaign, to interrogate
em^loyee Burnette, who was wearing a union button, as to
1h . Burnette was supporting the Union and why he
oight a labor organization was needed at Neptune. It
was further found that the Respondent violated Section
8(a)(1) when Newman, on this same occasion and after
questioning him about the Union, told Burnette that he did
notl like the employee's attitude toward the Company and
predicted that if his "attitude" did not improve Burnette
"might not be working there too much longer."
On the basis of the foregoing findings it is now found
that-there is merit in Objection 11. Moreover, having found
merit in both Objection 5 and 11, it. will be recommended
that the election be set aside and that Case 10-RC-10192
be remanded to the Regional Director for Region 10 for
the, purpose of conducting a new election at a time and
place to be determined by the Regional Director.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
By discriminating in regard to the hire and tenure of
Thomas T. McLemore and William D. Tyson, thereby
couraging membership in the Union, the Respondent
h engaged, and is _ engaging, in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
The aforesaid unfair labor practices are unfair labor
p actives affecting commerce within the meaning of
Sction 2(6) and (7) of the Act.
5. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent discriminato-
ri ly discharged William Patterson, or that it interfered with,
r strained, or coerced its employees in the exercise of the
ri is guaranteed by the Act, except by the specific acts
d conduct found herein to have been violative.
25 In the event no exceptions are filed as provided by Sea 102.46 of the
Rlutes and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
THE REMEDY
439
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended that
the Respondent be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discriminatorily
discharged Thomas T. McLemore and William D. Tyson,
it will be recommended that the Respondent be, ordered to
offer McLemore and Tyson immediate and full reinstate-
ment 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
discharges to the date of the 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
(1950), with interest computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721 (1962)_ It will also be recommended that the said
Respondent be required to reserve 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 the Respon-
dent are of a character striking at the root of employees'
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.LRB. v. Entwistle Mfg. Ca, 120
F.2d 532 (C.A. 4, 1941).
Upon the foregoing findings and conclusions and the
entire record, and" pursuant to Section 10(c) of the Act,
there is issued the following recommended:
ORDER 25
Neptune Water Meter Company, a Division of Neptune
International Corporation, Tallassee, Alabama, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against, any
employee because of activity on behalf of International
Union of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, and its Local 694, or any other labor organiza-
tion.
(b) Interrogating any employee concerning that individu-
al's union activity, or that of other employees, in a manner
constituting a violation of Section 8(a)(1) of the Act.
(c) Threatening its employees with loss of jobs or
promotions if they become members of, or assist, a labor
organization.
(d) Giving the impression of engaging in surveillance of
its employees with respect to their union or concerted
activities.
(e) 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 any labor organiza-
tion, to bargain collectively through representatives of their
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
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing, or engage in 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 Thomas T. McLemore and William D.
Tyson immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights, and privileges and make them whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and', upon request, make available to the
Board or its `agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, ; - and all other records
necessary, or appropriate, to analyze the amount of
backpay due under -the terms of this Order.
(c) Post at its plant in Tallassee, Alabama, copies of the
attached notice marked "Appendix." 26 Copies of said
notice, on`forms provided by the Regional Director for
Region 10, after being duly signed by the Respond'ent's
authorized representative, shall be posted by it for a period
of 60 consecutive' days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20' days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges any unfair labor practices, other than as
herein specifically found.
IT IS ALSO FURTHER ORDERED that the election conducted
on December 19, 1974, be set aside and that Case 10-RC-
10192 be remanded to the Regional Director for Region 10
to conduct a new election at such time as he deems the
circumstances permit the free choice of a bargaining
representative.
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 Interna-
tional Union of Electrical, Radio and Machine Work-
ers, AFL-CIO--CLC, 'and its Local 694, or any other
union, by discharging, or otherwise discriminating
against our employees because of their union or
concerted activities.
WE WILL NOT give the impression of engaging in
surveillance of our employees with respect to-'their
union or concerted activities. '
WE WILL NOT interrogate any employee concerning
that individual's' union activity, or that of any other
employee, in a manner constituting a violation of
Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with loss of
jobs or promotions if they become members of, or
assist, a labor organization.
WE WILL NOT in any other manner, interfere with,
restrain, or coerce 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 concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
WE WILL offer Thomas T. McLemore and William
D. Tyson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority ' or 'other rights and privileges, and WE
WILL make them whole for any loss of pay suffered as a
result of the discrimination against them.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall. read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
NEPTUNE WATER METER
COMPANY, A DIVISION OF
NEPTUNE INTERNATIONAL
CORPORATION