Telecom, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 830 (N.L.R.B. 1965)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board 's Regional Office, 24 School
Street , Boston, Massachusetts , Telephone No. 523-8100 , if they have any questions
concerning this notice or compliance with its provisions.
Telecom , Inc. and International Union of Electrical , Radio &
Machine Workers, AFL-CIO. Cases Nos. 9-CA-3143 and 9-CA-
3175. June 29,1965
DECISION AND ORDER
On October 6, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the Union filed exceptions to
the Trial Examiner's Decision and briefs in support thereof.
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 these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 and briefs, and the entire record
in the cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted
below.
1. The Trial Examiner found, and we agree, that Respondent
threatened and interrogated employees in violation of Section 8 (a) (1)
of the Act.
2. We also agree with the Trial Examiner's conclusion that the deci-
sion to transfer the TLC work, and the selections for termination sub-
sequently made, were discriminatorily motivated. As more fully
appears in the Trial Examiner's Decision, the Union's organizing cam-
paign began in January 1964, and culminated in an election held on
March 27, 1964. Respondent engaged in unlawful preelection conduct
which resulted in the election being set aside.' Other unlawful threats
and interrogation stemming from Respondent's campaign and aimed
at the employees' job security are found to violate Section 8(a) (1)
' Case No. 9-RC-5742, issued October 14, 1964.
153 NLRB No. 84.
TELECOM, INC. 831
herein? Before the election, and at the height of the organizational
activity, Respondent decided to permanently transfer the TLC work
to another plant. Immediately following the election-which resulted
in a tie vote-and after the Union had filed unfair labor practice
charges based upon Respondent's preelection conduct, Respondent ter-
minated 12 of its employees ostensibly because of the transfer of TLC
work. The selections for termination on April 3, 1964, were made by
foremen and a vice president who had unlawfully threatened and inter-
rogated many of the same employees. Of the 12 terminated, all but 1
were union adherents and 10 were clearly known as such to Respond-
ent. While poor performance by employees at Telecom is claimed by
Respondent to have been the most significant factor in the decision to
transfer the TLC work, it nevertheless discharged employees who, in
large measure, had little to do with TLC work and who had greater
seniority than those retained. Significantly, the affected employees
were not laid off, but permanently terminated, such action emphasiz-
ing the finality of their separation .3 Indeed, two of the employees
were told to find employment elsewhere because there was no chance,
as one was advised, that she would ever be recalled.
In attempting to justify the disparity of treatment between a 1962
layoff of approximately 25 employees and the present permanent ter-
minations, Respondent contends that in 1962, although it had com-
pleted manufacture of Navy tape recorders, it was then bidding on
another contract for these items and could reasonably expect to recall
the employees. However, the record reveals that no such contract was
obtained but that many of those laid off were nonetheless subsequently
recalled for other work. But even the prospect of similar future
employment was not held out for the 12 complainants whose termina-
tion left them without any preferential reemployment rights.
Based upon the foregoing facts and circumstances, and upon the
entire record, we adopt the Trial Examiner's conclusion that the deci-
sion to transfer the work and to discharge employees was triggered by
the advent of organizational activity and Respondent's motivation
therefor was to thwart the successful organization of its employees.
However, because of the grounds urged by our dissenting colleague
for reversing the Trial Examiner, we believe that the significant fac-
2 The Trial Examiner concluded that Respondent on several occasions threatened its em-
ployees with job loss and removal of the plant if the Union were selected. He specifically
found that certain of these threats violated Section 8 ( a) (1), and we agree As to other
instances of alleged unlawful activity , the Trial Examiner apparently concluded that find-
ing such conduct violative of the Act merely would be cumulative. However, we find that
Foreman Stream 's comment to two discriminatorily terminated employees that the advent
of a union at another of Webster 's plants forced a discharge of personnel , is another
sufficiently serious threat to warrant a separate Section 8(a)(1) finding
3 As previously noted , virtually all in this group were supporters of the Union More-
over, as permanently terminated employees they could not, of course , vote in any second
election directed as a result of Respondent 's preelection activity.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors and circumstances which form the basis for our agreement with
the Trial Examiner's conclusions bear brief repetition?
First, Respondent's clear and demonstrated union animus, expressed
in part by threats of loss of work if the Union was successful; second,
the fact that, while TLC defects were admittedly discovered in October
and production thereon halted in November, the decision to transfer
TLC to the Kenwell plant was not made until February, after the
Union's campaign was in motion; third, the fact that the discharges
took place after a tie vote in a representation election and after unfair
labor practice charges were filed on the basis of preelection conduct;
fourth, the fact that those selected for discharge were virtually all
known union adherents; fifth, Respondent made it clear that employ-
ees in the group would not be recalled; and sixth, the seniority of the
group was disregarded and no effort was made to fix responsibility for
the poor work on TLC which, it is asserted, required the transfer to
Kenwell. And it should be noted that the Trial Examiner was not
unaware of the various reasons given by Respondent for the discharge
selections, which our colleague accepts, but the Trial Examiner chose
not to credit the explanations offered. Neither would we. The totality
of all these events convinces us that Respondent transferred the TLC
work and discharged employees in violation of Section 8(a) (3).
Upon this record, we also conclude that our Order directing the re-
instatement of the discriminatorily discharged employees will ade-
quately remedy the violations found.-'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein , and orders that Respondent, Telecom, Inc., Lebanon, Ken-
tucky, its officers, agents, successors, and assigns, shall abide by the
terms of the Trial Examiner's Recommended Order, as so modified.,,
1. Substitute the following for paragraph 1(a) of the Recommended
Order :
"(a) Discouraging membership in International Union of Electri-
cal, Radio & Machine lATorkers, AFL-CIO, or in any other labor
organization, by discriminatorily transferring work from its Telecom
plant or by discriminatorily terminating the employment of any of its
employees, or discriminating in any other manner with respect to their
hire or tenure of employment or any term or condition of employment."
4 As recognized by the Trial Examiner , "There is no question but that the Company,
absent discriminatory purpose , could transfer any work to another plant"
5 However, we reserve the right to modify our remedial order if required by circum-
stances not now apparent
6 The Appendix attached to the Trial Examiner 's Decision shall be modified in accord-
ance with the modified Order.
TELECOM, INC. 833
2. Add the following as paragraph 2 (b), the present paragraph 2 (b)
and those subsequent thereto being consecutively relettered :
"(b) 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 of 1948, as amended,
after discharge from the Armed Forces."
3. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision:
NoTE.-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 Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
4. The telephone number for Region 9, appearing at the bottom of
the Appendix attached to the Trial Examiner's Decision, is amended
to read : Telephone No. 648-3627.
MEMBER JENKINS, dissenting in part: 7
My colleagues have concluded that the Respondent's transfer of
certain work from one plant to another and the resultant termination
of 12 employees was discrminatorily motivated. I cannot agree.
In 1963, Webster, Respondent's parent company, began work on a
new product, hereinafter called TLC, which it assigned to Respondent
for production at the Lebanon plant. As a result of the expanded
workload in the plant, 12 new employees were hired between Au-
gust 12 and 29, 1963. The record shows these new hires were assigned
not to TLC work but to cover the workload generally.
As the Trial Examiner found, trouble soon developed and Respond-
ent received customer complaints about TLC quality in October 1963.
Webster's investigation revealed that poor soldering and discrepancy
in electrical inspection techniques gave rise to customer complaints.
Because of the quality problem, the parent company, Webster, decided
in early February 1964, that TLC would be sent from Telecom to Web-
ster's engineering department for a complete analysis." This decision
was communicated to Respondent's plant manager by telegram dated
February 3, 1964, which in part stated :
In order to assure ourselves of proper quality and methods on
original shipments of a product line with great potential, we have
I concur in my colleagues' findings that the Respondent engaged in unlawful threats
and interrogations during the period of union organization.
8 The record indicates that Webster had received a bill for $2,000 from a customer
which the latter had spent in reworking and reinspecting the TLC sent to them
796-02 7-6 6-vol 153-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decided to bring the manufacturing of this equipment to the parent
plant. It will be placed under the immediate supervision of our
engineering department.
Upon receipt of the telegram on February 3, Respondent's plant man-
ager requested permission from Webster to "get rid of the overstaff."
However, Webster's vice president on advice of counsel refused to grant
the request at that time because of the Union's pending representation
petition.
The TLC product was shipped to Racine on February 7 and, upon
inspection, additional defects were discovered. Although it was orig-
inally planned to return the TLC work to Telecom, shortly after Feb-
ruary 15, Webster decided not to return it to Respondent's plant but,
instead, to ship it to its Kenwell subsidiary. Webster's vice president
stated several reasons in support of the decision :
First of all this is a brand new product as far as we were con-
cerned, our newest product line, we decided that we had gotten
off to a very poor start as far as sales is concerned and we consid-
ered the fact that Kenwell had been in existence for about ten
years and had much more experienced employees in the plant and
available in town, people who worked for us at Kenwell before and
had done a variety of soldering and close work that the TLC
required and Telecom apparently just didn't have the experience
that was required.
Q. What triggered your decision ... ?
A. The fact that we thought we had experienced people there
who would be able to do better work than here at Telecom.
TLC was sent to the Kenwell plant on March 3, 1964. On April 1,
Respondent's plant manager again requested and this time received
permission to lay off employees at the Telecom plant. He and three
foremen in the departments involved compiled a list of 12 employees
who were terminated on April 3.
My colleagues, nevertheless, have concluded that both the decision
to transfer the TLC work and the selections for discharge were dis-
criminatorily motivated. The record, however, clearly controverts
this finding. Defects in TLC (and customer complaints) antedated
the advent of the Union by more than 2 months and when TLC produc-
tion ceased in November, it was still prior to the union organizational
activities which began the following January. These two factors make
it abundantly clear that something was radically wrong with the work
quality on TLC and that Respondent was "doing something" about it
long before the Union started organizing. The February inspection
of TLC in Racine revealed many more defects than those previously
discovered. Since TLC was a new product which met with consider-
TELECOM, IN C. 835
able customer dissatisfaction , it was not unreasonable for Respond-
ent's parent company to transfer its manufacture to another more
experienced plant which had been in existence 5 years longer than the
Telecom facility.
In view of the previously enumerated factors, I conclude that there
is not substantial evidence to support findings that the Respondent's
reasons for its decision to transfer the TLC work were pretextual
and that the transfer was made for discriminating reasons.
With respect to the alleged discriminatory discharges , the majority
notes that the 12 employees terminated had little to do with the TLC
work that was transferred, that 10 of the 12 terminated were clearly
known as union adherents , and that seniority was not followed in the
reduction in force. These facts are correct but their relevancy to a
finding of discrimination must be viewed in light of other facts.
The fact that the terminated employees had little to do with the TLC
work loses its force in view of the Trial Examiner 's earlier findings,
adopted by the Board to the effect that (TXD, p. 7, lines 53-57)
Webster having begun expansion of work on a new product,
TLC [telephone line components ], several months before, the work
was introduced at Telecom in Lebanon and 12 new employees
were hired here between August 12 and 29, 1963 , to cover the
workload generally , their assignments not being specifically, and
limited, to TLC work . [Emphasis supplied.]
Consequently since workers were not hired explicitly for TLC work,
it seems reasonable to conclude that upon transfer of the TLC work,
many of the same employees hired in such period would be terminated.
The record stands uncontroverted that 8 of the 12 employees hired
during the period of August 12 through 29 , 1963, were subsequently
terminated . The remaining four employees selected for termination
were all hired subsequent to the above period.
Seniority as a standard for job retention when a reduction in force is
to be effected is undoubtedly a useful and objective criterion. How-
ever the Act does not require its use. The test is not whether Respond-
ent failed to follow a rule of plant seniority or departmental seniority
or some other reasonable standard that might suggest itself; e.g.,
select those most responsible for the defective results in the TLC work.
The statutory test is whether the bases upon which employees were
selected for discharge were discriminatory . Experience teaches that
a seniority roster is no guarantee against discrimination . Neither is
its absence evidence, without more , of discrimination.
Respondent's professed standard was a combination of seniority,
ability, and physical fitness. Though this standard is not capable of
precision either quantitative or qualitative , it may not be rejected as
discriminatory per se.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In defense of its selection of employees for discharge, the Respondent
presented uncontroverted evidence as follows :
Seven of the eleven employees with less seniority who were retained
were males. Two of them, Thomas and Borders, were employed on
the night shift where the Company had a policy of not employing
women because of the lack of supervision. Three other males, Graham,
Vessels, and Thompson, were retained because their jobs required
heavy lifting. The remaining two male employees, Settles and Stay-
ton,9 were retained because of their special skills as a setup man and
electrical inspector, respectively. As to the four female employees
retained, the Respondent points out that Morgeson had formerly
worked for the Company as a coil winder for 5 years and although
she had lost her seniority because she had voluntarily quit her employ-
ment previously, it retained her over some of the alleged discriminatees
because of her prior experience and ability. The remaining three
women were retained because of specialized or superior skills. The
name of one of the three retained, Rebecca Campbell, was listed on a
circular in support of the Union.
In my view the evidence cited effectively rebuts any conclusion that
the work in question was transferred for discriminatory reasons or
that the selection of employees for discharge was discriminatorily
motivated. Accordingly, as to these findings, I would dismiss the
complaint.
9 It should be noted that Stayton was a well -known union adherent , having been a
signatory of a letter to management which designated him as a member of the organizing
committee and he was also listed as a union supporter in the circular distributed to em-
ployees. He was, nevertheless , retained.
TRIAL EXAMINER'S DECISION
The complaints herein, as amended (issued May 25 and June 12, 1964; charges
filed March 20 and April 27, 1964) and consolidated, allege that the Company has
violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat.
519, by terminating the employment of 12 employees 1 on or about April 3, 1964,
and thereafter refusing to reinstate them, because of their union sympathy, member-
ship, and activities; and Section 8(a) (1) of the Act by said alleged acts and by inter-
rogating, directly and impliedly threatening, promising benefits, and implying
surveillance, all in connection with employees' protected concerted activities, and by
indicating the futility of such activities. The answers, as amended, deny the allega-
tions of violation.
A hearing was held before Trial Examiner Lloyd Buchanan at Lebanon, Kentucky,
from July 14 through 17, 1964, inclusive. Pursuant to leave granted to all parties,
briefs have been filed by the General Counsel and the Company, the time to do so
having been extended.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Missouri corporation, manufactures
electronic equipment at its plant in Lebanon, Kentucky, that during the year preced-
I Joan Faye Maupin, Mary Kaye Thomas, Dorothy C. Mattingly, Frances Johnson, Judy
Marie Mattingly, Angela Luckett Smith (nee Margaret Angela Luckett), Anna Marcelene
Lee, Mary Carolyn Mattingly, Jessica L. Williams, Mary Louise Thomas, Sheila D. Beavers,
and Ann Faye Ruley.
TELECOM, INC. 837
ing issuance of the complaint, goods valued at more than $50,000 were shipped to
the Lebanon plant directly from points outside the State of Kentucky, and goods
valued at more than $50,000 were shipped from said plant directly to points outside
the State; and that the Company is engaged in commerce within the meaning of
the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a)(1)
The testimony refers to union organizational activities in January 1964, and
indicate their probable commencement about that time. Pursuant to a stipulation
for certification by consent of the parties, entered into on February 27, the Board
conducted a representation election on March 27. Fifty-seven votes were counted
for the Union, fifty-seven against, and three ballots were challenged. The Regional
Director passed on the challenges and on the Union's objections to the election filed
on April 2 and received by the Company on April 4, and on July 10 issued his report
on objections.
Besides other evidence of union support, the identity of various union supporters,
specifically, the members of the IUE-telecom oiganizing committee, was disclosed
as they signed an open letter dated March 2 to Resident Plant Manager Petersen.
Also in evidence is the first union handbill, apparently distributed before the middle
of March, which bears the name of 50 employees.
In this atmosphere of known union activity, we consider the testimony concerning
the alleged violations. (No attempt will be made to analyze possible violations
suggested in lengthy narratives but neither alleged nor litigated.) Employee Smith
(nee Luckett) testified that about the middle of January 1964 at her workbench
Foreman Stream told her that, while the employees thought the Company could not
move if the Union got in, it could move any time it so desired. Assuming a non-
discriminatory reason for such a move, the warning thereof does not appear to
have been prompted by anything other than the union activities and opposition
thereto. As such it was a threat and violative. Stream, while claiming to recall
many conversations with various employees, appeared uncertain at times and con-
tradicted himself. Aside from any question concerning the validity of his alleged
explanation to Smith that a move might be required by economic conditions if the
Union's or employees' demands were too high and prices would have to be iaised
to the point where the Company could not compete (these various assumptions hardly
warranted a warning of possible removal of the plant), I do not credit Stream's
testimony that he made this detailed explanation or his later blanket denial that
he told any employee that the Company would move if the Union won the election.
Smith also testified credibly that, about the latter part of January, Foreman Leake
told her and employee M. L. Thomas that, if the Union got in, they would be placed
on piecework instead of the current hourly rate and that they would be of no use
to the Company if they failed to make the piecework rates. To the same effect was
Thomas' testimony, and reliably so despite or perhaps bolstered by cross-examination
which brought out that she did not recall full it unimportant details of this or
another conversation. According to Leake, Smith asked whether they would have
piece rates if the Union got in, and he replied that if the Union "induced" piece
rates any employees who could not make those rates would not be of use to the
Company. From the tenor of the remarks and the stated result of adoption of
piece rates, I do not believe that the employee raised the question of piece rates or
that the conversation centered on union inducement of such rates. Here wasanother
unlawful threat.
Another threat was allegedly made by Abell, formerly a foreman but then pro-
moted to the position of job simplification director. It is unnecessary to analyze
at this time the considerable amount of testimony received on the issue of Abell's
status. Such analysis would clearly show that he is a supervisor within the meaning
of the Act. But the quality of the testimony of the General Counsel's witnesses,
Donahue and Spaulding, concerning what Abell allegedly said on this occasion does
not warrant a finding of violation.
Also alleged as violative is Abell's remark to employees M. K. Thomas and M. C.
Mattingly that, if the union business had not come up, the employees here would
probably have "by now" the same insurance benefits as obtained at the Racine plant.
It is not clear that Abell was here unlawfully promising or suggesting benefits rather
than pointing out that the Company could not grant benefits while the representation
proceeding was pending If Abell's remark was meaningful, it was made in response
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Mattingly 's question and it related , as we can only guess, to a recently accrued
benefit at Racine. But that very element of recency, of which those concerned would
have knowledge , would explain the bar to similar action here pending the election.
Employee Lee testified that early in February Foreman Kerr asked her why she
did not pick the UAW if she wanted a good union, and warned that, if this union
got in, the older girls would have to work harder while the younger (of whom Lee
was one) would lose their jobs. According to Kerr, he told Lee that, with or without
a union , an increase in rates would require greater efficiency and that she would lose
her job because of her lower seniority . Kerr did not attempt to explain his connec-
tion of efficiency with Lee's seniority. He allegedly replied similarly to employee
Williams. The latter had testified that he had said that she would be one of the
first laid off if they got organized. (I make no finding of promise of benefit to Lee,
which was neither alleged nor fully litigated, and concerning which she testified in
response to a leading question. If the General Counsel takes any position on this
he did not indicate it at the hearing or in his brief in which he disavows "abandon-
ment" of findings or conclusions "which can or should be drawn.") Denying that he
had said this to Williams, Kerr testified that he implied it when he spoke of increased
efficiency. I credit Lee's and Williams' version as against Kerr's, and find that he
unlawfully threatened both Lee and Williams.
Employee Walston testified that sometime in March (Hourigan agreed as to the
time; not in February, as alleged) Foreman Hourigan told her that the Union had
caused companies to move, that the parent company, Webster, had been unable to
cope with it in Racine, and that that was the reason Telecom was now in Lebanon.
I do not credit Houngan's testimony that it was Walston who gave this explanation
for the Company's location in Lebanon while he explained that it was "possibly not
due to the union" but a matter of increasing wages over the years and the need to
remain competitive. I find that Hourigan here impliedly threatened removal of the
plant if the Union were successful. I make no findings with respect to similar
remarks which employee Quinn attributed to Hourigan or other remarks which
Walston attributed to Hourigan but which were neither alleged nor fully litigated.
With this and other findings of threats, it is unnecessary 2 to make a credibility
finding with respect to an alleged threat, denied by Hourigan, to employee Quinn
to the effect that employees could be fired for signing an open letter to the plant
manager, of which more infra The various findings of violation, particularly by
top management officials Munroe and Anderson, sufficiently indicate company animus
and opposition to organization of the plant by this union As for interrogation at
this point, merely asking an employee what she thought of a letter which she and
more than 40 other employees had signed and which had been distributed hardly,
tends to interfere with concerted activities. As Quinn pointed out, Hourigan should
know what she thought of it; she had signed it
I credit the testimony of M K Thomas and M. C. Mattingly that, in the latter
part of February, Stream advised them not to give the Union $4 in dues since the
Company could do as much or more for them than the Union could If the allega-
tion of promise that the Company would grant more benefits than the Union is
inelegantly phrased, the reference is clearly to what the Union could obtain for the
employees; there is no question concerning the Union itself granting benefits. Stream
does not appear to have covered this item in his denials. He did deny, although I
do not credit the denial, that he told Thomas and Mattingly that, when the Union
came in at Webster's Kenwell plant, the employer was forced to and did decrease
the number of employees. Stream's version was that, in response to Thomas' ques-
tion whether employees had been laid off at Kenwell because of the Union, he
replied in the negative and explained that the Company could no longer compete in
price and there was therefore no longer any need for people to work on a certain
product.
Employee Cooley testified without contradiction that, at the end of February or
the beginning of March, Leake asked her how she felt about the Union; and when
she said that she would like more money, he remarked taht he did not think they
needed a union, which would call for $4 monthly dues and would impose fines. In
the context of the other remarks and violations found, I find unlawful interrogation
as alleged Leake testified that he put a similar question to M L Thomas and
Smith during their conversation at the end of January, rupra.
While the complaint alleges interrogation and an implied promise of benefit
made by Anderson, vice president of the parent corporation (his jurisdiction embraces
this and three other plants), in the latter part of February or early in March,
testimony was received without objection that Anderson had a month earlier asked
2 " Superfluous " is a more recently employed, if unusual, term.
TELECOM, INC. 839
employee Evans why she was not satisfied and why she was trying to get the Union
into the plant. Thereafter, about February 15, Anderson told Evans and employee
Brady that the IUE is the worst union, wants only dues, and could not do for them
anything that the Company could not do; he asked them to give the Company a
chance and time, and further asked what he could do to change their mind. Accord-
ing to Anderson, he asked Evans what he could say to her to change her mind about
voting for the Union and asked what drug the IUE had. Anderson was here cam-
paigning with an implied promise of benefit, and the question and implied promise
constituted interference with protected concerted activities.
I find that Anderson also implied threatened removal of the plant or similar
consequences when he told Evans during the course of the same conversation that
they (to this extent the parent, Webster) had left Racine to open the Lebanon
plant because they could not pay the union rate. We are of course concerned here
with the fact that Anderson made this remark, not with its accuracy.
More significant for its reflection of Anderson's opposition to the Union than the
extent of the interference, limited to Evans in this instance and Brady who was
also present, is his remark during that conversation that, as far as he was con-
cerned, Evans was number one, or the union ringleader. (She has been employed
by the Company since the Lebanon plant was opened, and was not among those
discharged on April 3.) According to .Anderson, he asked her where "he" was
(reference being to the Union's business representative), Evans asked why Anderson
thought that she was a ringleader; and his reply was that as far as he was concerned
she was number one. I find here an unlawful implication of surveillance of union
activities and, in view of Anderson's opposition to the Union, an implied threat
against Evans.
Employee Maupin testified that, about the middle of March, Foreman Swencki
asked her how her name got on the union handbill and, when Maupin replied that
she could not discuss the Union, told her that she could with him and that she would
be sorry for her "noble act." Only a threat is alleged in this connection. While I
would not consider more than the General Counsel claims, Swencki admitted the
interrogation as he testified that he told Maupin that he was curious, having seen
her name on the list, and wondered why an 18-year-old, on her first job, was bitter
toward management The matter was thus fully litigated and, I find further, unlaw-
ful interrogation. While Swencki admitted that he spoke of "noble ]deals," he denied
that he made the threat to Maupin. In view of the several threats found, it is
unnecessary to determine the issue of credibility at this point.
For the same reason, we need not find whether Stream told Brady in connection
with the organizational activities, as she testified but he denied, that he was concerned
with losing his job. From the alleged remark, according to the General Counsel, is
to be inferred a threat to close the plant. Nor need we weigh the testimony con-
cerning threats by Stream on or about March 21 and 23, and on March 26 an
implied threat of plant removal.
While it is not altogether clear that Hourigan successfully skirted violative remarks
in a conversation with M. K. Thomas about March 24, this again would be "more
of the same," as would be a finding of promise of benefit (or offer of reward) when
Hourigan allegedly asked Quinn on the day before the election whether a half pint
would buy her vote; he denied that he had said that to her.
Quinn testified also that on April 26 Hourigan told her that a list of the girls
who had been laid off had been sent to other factories in the area, and he doubted
that they would be hired; and that on May 19 he told employee Crouch that he
doubted that any who had signed the open letter of March 2 to Petersen could get a
job in the vicinity if the Company laid off or terminated them. Hourigan denied
Quinn's testimony and himself stated that, in response to Crouch's question concern-
trouble in one locality since the plant there was nonunion. I find coercion and a
threat in Hourigan's version of his statement to Quinn- • He told her, without
apparent provocation or prior reference to any of this by Quinn, that "one of the
girls told [him] that some one was thinking about sending a list of names to com-
panies [in the] area and it could make it hard on some of the employees that were laid
off to get a job at one of those plants." If Hourigan had not sent such a list and did
not tell Quinn that the Company had, his uncalled-for reference to the possibility as
allegedly stated by someone else would tend to frighten employees and interfere
with their protected concerted activities.
Many employees testified to a series of meetings attended by Anderson and
Arzikovic, personnel director of Webster, and various subsidiaries including Telecom,
among other management representatives, and small groups of employees about the
latter part of February and early March. At these meetings Anderson in particular
is alleged to have told the employees that the Company had plans, including a 5-year
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forecast, to make this a better place to work, but that, because of the pendency of
the Union's representation petition, he could not discuss these. While the General
Counsel's witnesses did not agree that Anderson said that the plans were for the
employees as distinguished from plans for Telecom, Anderson's more detailed testi-
mony disclosed that, as he went through the entire foremen's manual, they discussed
such conditions of employment as vacations, holidays, workmen's compensation,
job evaluations, various kinds of leave, and seniority.
According to Anderson, after four of the employees had suggested that he talk
with them, he decided that it would be a good idea to talk to all of the employees
about the foremen's manual and the Company's 5-year forecast or plans. There
were 25 to 30 such small conferences, all alike. He explained that Munroe, presi-
dent of Webster, asked him for a 5-year forecast in November or December of each
year, and that he accordingly made annual forecasts of company requirements for
capital, equipment, machinery, etc. He then continued to cover, as we have seen,
with each group of employees the foremen's manual and details of employees' terms
and conditions of employment.
If the 5-year forecast is made each year, there is no explanation for the references 3
to benefits by Anderson to each group of employees with the election pending and
in the absence of evidence that these had similarly been pointed out and explained at
previous conferences. That he thought there was a need for explanation is seen in
Anderson's statement that he "got the opinion from talking to the first four girls
that they felt they were working for a wish-washy Company and didn't know where
it was going or what it was going to do"; Anderson wanted to tell them that the
Company did know where it was going. He never did explain how he "got the
opinion." Neither did he explain any need to inform the employees, not only
concerning these company matters, i.e., "where it was going," but in detail concerning
various possible benefits The need so to inform them appears to have stemmed
from the pending election proceeding and the desire to influence their votes by
allurements or promises of benefit.
In painting a rosy picture of the Company's prospects and plans, Anderson was
impliedly promising continued jobs and opportunities for the employees; and while
none of this was conditioned on their voting against the Union, Anderson, beyond
stressing the Company's beneficence, was actually misleading the employees by
withholding from them news of the decision allegedly already made, as we shall see
infra, to withdraw work from this plant. To the extent that he sought to portray
a situation which favored the employees, Anderson was here dissembling the actual
circumstances. The difference between the situation known to Anderson and the
impression which he sough to give to the employees indicates clearly that, while
he made no direct promise to them, he was in violation of the Act campaigning
with promises of benefit while withholding news of imminent and contrary action
toward which steps had allegedly already been taken.
If the picture of company possibilities would tend to intrigue the employees, what
can be said of the details concerning terms and conditions of employment which
Anderson undertook to explain to them at this crucial period, and his statement
(while layoffs were in contemplation) that they "hadn't had many layoffs at Tele-
com"? Without promises to the employees or disparaging the Union in haec verba,
Anderson made it as clear as he could that the Union was unnecessary and that
benefits for them were being contemplated by the Company.
Also testified to by many witnesses and important for its bearing on company
animus are remarks by Munroe, to the Telecom employees, who were assembled
on March 25. Explaining that cost and selling pi ice of the Company's products
depend on cost of labor and materials, he admittedly told the employees that just
as the Company, if it could not get the puce that it wanted from a customer, would
seek another customer, so are the employees, if dissatisfied with their wages, free to
sell their services elsewhere. This was said in the context of the organizational
activities. That Munroe's remarks were made with such activities in mind he made
clear as he added that the Union could not increase the employees' pay or itself pro-
vide better conditions of employment- ". . the customer does that " He ended his
speech by urging them to vote "No" in the election on the second day following.
The suggestion that employees, in lieu of concerted action to obtain higher wages,
seek employment elsewhere tends to interfere with their concerted activities and is
violative 4 Like the alleged interference next to be considered but not found, this
is an indication to the employees of the futility of acting in concert vis-a-vis the
Company.
i Cf. Abell' s remark , supra, in response to Mattingly 's question.
Cf. the suggestion , in a similar context of union activity, that an employee who did
not like the job should quit. Certain -Teed Products Corporation, 147 NLRB 1517.
TELECOM, INC. 841
As for the allegation that Munroe also told the employees that the Company
would not sign a contract with this union, I pointed out at the hearing, after many
witnesses had testified for the General Counsel, that some had mentioned such a
remark while others had not. It appears that four of the General Counsel's wit-
nesses testified that Munroe said that the Company would not sign with this or any
other union, while some eight others who undertook to detail what he had said
omitted mention of any refusal to sign. On behalf of the Company, Anderson
denied that Munroe had said that it would not sign with this or any other union.
If any witness testified that Munroe said that the Company would not sign with
this union (omitting reference to any other union), as alleged, it has escaped me.
On the issue of credibility to the extent that it has been presented we must consider
the variance between the allegation and the testimony of those who attempted at all
to support it; and also, although mention of the statement may be more significant
than any single omission which may result from forgetfulness, the far greater
number who omitted this alleged statement. The variance is significant because,
while antipathy to this union might lead Munroe to say that the Company would
not sign with it, the broader statement that it would not sign with any union (while
subject to a weak explanation based on difference in location, etc.) would stand
in the face of the fact that Webster, whom Munroe represents, or its subsidiaries
do have union contracts. I find that Munroe did not say that the Company would
not sign a contract with this union.
B. The alleged violation of Section 8(a)(3)
On Friday, April 3, 1964, the Company discharged the 12 employees named supra.
Neither Johnson's nor Ruley's name appeared on the open letter of March 2 or the
handbills distributed in March and received in evidence; Maupin's name headed the
list on the handbill; the names of the other nine appeared on both the letter and
the handbill.
Clearly the Company had knowledge of both of these documents. Foremen ques-
tioned employees about them, and we recall various references to employees dissatis-
faction. There was no other explanation for such comments.
The Company's position is that these were permanent reductions in force made
necessary by business reasons, and that the Company follows seniority but not
strictly. According to the General Counsel, there would have been no discharges
but for the union campaign and the anticipation of a second election and the selec-
tions for discharge were discriminatory.
Webster having begun expansion of work on a new product, TLC (telephone line
components), several months before, the work was introduced at Telecom in
Lebanon and 12 new employees were hired here between August 12 and 29, 1963, to
cover the workload generally, their assignments not being specifically, and limited,
to TLC work. Trouble soon developed, the customer complained and, although the
Company at the hearing emphasized improper assembly, company representatives
sent to check with the customer reported to Anderson on October 29 that there
were several problems. It appeared that the "biggest problem," the soldering work,
had already been overcome. A second had to do with differences in specifications,
which could not be charged to the rank-and-file employees. The same can be said
with respect to differences in checking procedures; and the report ended on the
optimistic note, "we now have a better understanding as to the requirements" and
that it was expected that the product thereafter furnished would be more satisfactory
to the customer. Rework which had been made necessary was thereafter paid for
by Webster in the sum of $1,924. This was covered by a memorandum between
the parties, dated January 29, 1964.
On February 3, Anderson, from Webster, notified Petersen at Telecom that
Webster had "just received" an invoice from the customer for the additional work
necessary, listing the amount of the customer's original claim which was $200 more
than the amount which had already been agreed upon in settlement. Anderson
further stated that, to assure "proper quality and methods," manufacture of TLC was
to be returned to Webster, to "be placed under the immediate supervision of [its]
engineering department"; Anderson concluded the memorandum as follows: "When
we have progressed far enough and are sure of field acceptance and the steps to be
taken that will assure us of consistent quality, it will be returned to Telecom." (In
the meantime the Union had in the latter part of January requested that Telecom
bargain with it as representative of the employees )
Although the problems had been under review for more than 3 months, it
appeared at this point that, except for the mechanical problem which was in
October declared to have been apparently overcome, none of the difficulties was
chargeable to the employees at Telecom A copy of Anderson's telegraphic
memorandum of February 3 was that day posted on the company bulletin board
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a brief memorandum from Petersen to the employees in explanation of "the
problems on this equipment" and so that they would understand why the TLC stock
was being sent to Webster As at Webster . so now at Telecom, there was no sug-
gestion that the employees were responsible for any of the difficulties ; there was, as
noted, the stated expectation to return the work to Telecom.
Still on February 3, Petersen allegedly told Andersen that he was overstaffed and
wanted to "get rid of" 10 or 15 people That same day (Anderson first placed this
conversation on February 4, but he was quite susceptible to his attorney's suggestion
that it occurred on the 3d ) Anderson asked the Company's attorney what to do
about Petersen 's desire to make layoffs ,5 and was told not to do anything for the
time being since the Board election was then pending While it is noted , infra, that
the April discharges were mainly of employees who had not done the TLC work, it
should be pointed out that Anderson told his attorney in February that they were
going to pull a product line out of Telecom and that Petersen "wanted to lay off these
people."
The TLC equipment was kept at Webster in Racine for approximately 1 month,
during which it was found on disassembly that it was worse than the customer had
claimed and now, laudably going above and beyond the call of immediate necessity,
it was decided to dismantle everything and start from scratch. Quite differently
from the documentary evidence , the blame, we are told, was now laid on the
employees . Whether Petersen had been clairvoyant in wanting to lay off these
people, we do not know; but if we accept the testimony concerning the newly dis-
covered and seriously poor quality , there would now indeed be reason for laying
off those who had worked on that product line. In fact , Anderson felt so strongly
about the poor quality , that his first inclination allegedly was to close the entire
plant! Here again we must note the contrast in the failure even to seek and remove
those who allegedly were responsible for the poor work.
While the work was kept at Racine for a month, we are told that Munroe and
Anderson decided in the second week of that month to put TLC into the Kenwell
plant . Since the equipment was received in Racine on February 7, that decision was
allegedly made about or shortly after February 15, some 10 days before the stipula-
tion for the election but well after the filing of the election petition and after some
of the interference found, supra The reasons given for the decision to transfer to
Kenwell were that there were more experienced employees at the Kenwell plant
and in Frankfort ; Telecom "apparently " did not have the necessary experience; and
Kenwell had previously manufactured products which had more critical requirements
than those made at Telecom . One can but wonder whether it was only now realized
that TLC had such critical requirements ; or only now that Kenwell had more
experienced employees.
Although it was thus testified for the Company and indicated .that the TLC work
was more complicated than other work done at Telecom , the fact is that some of
the new and inexperienced employees were assigned to TLC. The alleged reason
that more skilled help was available at the Kenwell plant ignores completely the
testimony that more skilled help was here at hand , as the Company established in
defense of the selections for discharge which were made despite seniority standings.
Further, since the TLC work done here had been so poor, the Company, to the
extent that it may have retained employees who had done that work , knowingly
retained poor workers who allegedly made transfer of the work and consequent dis-
charges necessary . The explanation for the selection , which we shall next consider,
of those to be discharged underscores the absence of even a claimed attempt to lay
off the allegedly poor TLC workers , and exposes the pretextual nature of the reason
offered for the removal of the work from Telecom . The lack of work was con-
trived. (We do not question here the sufficiency or soundness of the reason alleged,
but whether it was in fact the reason.)
To the extent that difficulties were the result of poor design or other management
shortcomings , these difficulties had now evidently been corrected . If inexperienced
employees were at all to blame , that condition had been brought on by assignment
of some new and unskilled employees ; improvements could not reasonably be
expected on this or on other work to be done thereafter if employees who had done
the poor work were retained while others , who had not been involved in it, were
discharged.
"To every thing there is a season, and a time to every purpose under the heaven."
The problem connection with TLC had been worked out and solved as the con-
temporary documents show. With the arrival of the Union on the scene , the "time"
of the action thereafter taken to remove the work from Telecom suggests the
"purpose."
r ,The distinction between layoffs and the discharges effected will be considered infra
TELECOM, INC. 843
In explanation of the selections for layoff on April 3, the Company introduced a
list of employees with the lowest seniority in departments 181, 183, and 188, from
which the discharges were made.° While the Company cites relative seniority within
departments, the seniority list identified by Anderson as that which was effective
on April 3, 1964, lists the employees according to seniority in the plant and without
reference to departments. (The list thereafter prepared and a 1962 list, while in
order of plant seniority, indicates each employee's department.) The justification
offered for retaining some while retaining others with less seniority may be sum-
marized as being that there was no special need for those discharged as there was
in the case of those retained.
A mockery could be and was made of the Company's cited procedure on layoffs
Where as in the case of employee Morgeson, the seniority based on half-length of
prior service ran out, the Company merely cited the employee's ability or fitness
based on her entire (not half) prior service. To accept shifting standards and such
an exclusion of the most objective factor is virtually to deny in advance the possi-
bility of discriminatory selection regardless of what may be done. I do not credit
the explanations offered.
The discharges and the selections made are posited on the declaration of the
foremen of these departments to the effect that they did not need and wanted to be
rid of five or six, two, and three or four employees respectively; whereupon they
were asked to suggest those to be laid off. Here again we note the failure in selection
elsewhere, to wit, that the TLC work was poorly done.
It should be clear that discrimination is indicated in the selections made for dis-
charge, not merely because, while seniority was cited, it could be and was made
meaningless, but because while it allegedly considered ability the Company did not
in fact consider the lack of ability which it claimed resulted in transfer of the work
and made discharges necessary.
The alleged need to transfer the work is itself a measure of the importance of
eliminating the employees who had done the work and so poorly-unless the poor
work resulted from planning, layout, or other supervisory mistakes, and the employ-
ees were not at fault. The explanation for the selections made, when those who
allegedly made discharges necessary could have been dismissed, indicates pretext
in the basic defense that the Company wanted to get away from the poor workers
and therefore transferred the TLC work elsewhere It discharged employees with
whose work no fault had been found'
There is no question but that the Company, absent discriminatory purpose, could
transfer any work to another plant (We are not here considering the question of
refusal or avoidance of an obligation to bargain.) But the selections for termina-
tion, painstakingly explained by the Company as based on reasons other than the
poor work cited, make it clear that, whatever the problems, the transfer of work
which led to the discharges was not in the Company's opinion connected with any
need to obtain better workers while eliminating poorer ones.
A condition which in fact resulted in loss of the TLC work at this plant would
indeed be serious. Not only would some attempt be made to find and weed out the
poor employees if the plant had lost that work because of poor performance (this
being the Company's alleged reason, which I have not credited); but I do not believe
that in now permanently discharging employees the Company would under the
circumstances have relied on alleged differences in ability to perform various func-
tions which were in no way shown to be connected with TLC, the alleged core and
source of the difficulties
Not only, as we have seen, is there no evidence of an attempt to find out which
of the employees on the TLC job had been responsible for the poor work, but there
is no negative correlation or contrast between any allegedly desirable extra qualifica-
tions of employees who had less seniority but were restrained and those who had
worked on TLC but so poorly. While this is not our problem, the mass of evidence
in this connection and the steps taken by the Company suggest that, whatever the
faults in the work, the employees 7 were not responsible for them, as it would appear
'Anderson testified that he did not know whether the employees on this list worked on
TLC. It appears from Petersen's testimony that most of the TLC work had been done
by others than those discharged We do not know the situation in other departments
with respect to newer employees who might have been considered for discharge
' In addition to the evidence of engineering or other management improvements already
noted, we have Anderson's testimony that an easier system was developed after the work
was taken to Kenwell. Under the circumstances , while it "still takes a certain amount
of care and experience" as Anderson stated, it appears that it thus became easier to build
despite his denial
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company also believed since, already noted, it made no attempt to weed
out the employees who had allegedly done the poor work which, again allegedly,
made transfer of the job to another plant necessary.
We recognize that the Company does not claim that employees were discharged
because the job on which they worked was TLC and that that job ran out. The
defense, even at the risk of repetition, is that, because of poor results, the work was
transferred to another plant and that such transfer necessitated discharges here.
But it must also be recognized, again at the risk of repetition, that seniority and skill
or lack of skill were virtually ignored in the alleged attempt to remedy the cause
of the loss and trouble experienced. We are asked to believe that the Company
found a seriously poor work situation and sought to overcome it by transferring the
work while retaining employees who had done such work and discharging others!
We shall note, infra, that the discharges were to a highly significant degree confined
to known union supporters, and also that the layoffs here were permanent as the
affected employees were not even listed in the customary layoff status so that they
might have preference in reinstatement.
The explanation that the employees at the 10-year-old Kenwell plant were more
experienced than those at the 5-year-old plant in Lebanon and that the problem
could thus be "solved" by them would have us ignore the fact that some of the TLC
work had been assigned, as noted supra, to the newest employees. Such assignment
reflects on the explanation that the Company wanted the work handled by more
experienced employees than were at the Lebanon plant. Warranting the conclusion
that the Company sought an excuse to effect the discharges, is the fact that there is
no evidence of assignment of more experienced employees or that the Company even
considered the advisability of such assignment. This conclusion is further war-
ranted by the patent invalidity of the explanation offered Under the circumstances,
we need not evaluate the claim that, in the type of work here described, there is a
significant improvement in quality after 5 years' experience (if employees with such
experience were utilized) and up to 10 years.
It was also pointed out in attempted justification that the labor market in Frankfort,
where Kenwell is located, includes more experienced people. While this may be of
general interest, it is quite diversionary since there is neither claim nor suggestion
that anyone contemplated the hiring of more experienced people for this work. Any
such idea would have been in marked contrast to the assignment of TLC to inexperi-
enced employees at Lebanon. (It was at no time claimed that the transfer to
Kenwell was effected to assure better engineering or supervision, so that we need
not explore that aspect. The testimony, as does the issue, revolves around the rank-
and-file employees.)
While the explanations for the discharge selections have been referred to as
evidence of the pretextual nature of the transfer of the work in the first place and of
pretext in the alleged need for any discharges, we come now to other features
of the selections.
The fact that 12 employees were hired in August 1963 with the expansion of work
on TLC would presumably warrant the layoff of 12 when that work was transferred
elsewhere, if there were no question of justification of the transfer and aside from
any question of selection of employees for layoffs Of the 12 so hired, 8 were among
those laid off. Of these eight, only Johnson's name did not appear either as a mem-
ber of the Union's organizing committee or as a sponsor of the Union's first handbill.
Of the remaining four hired in August, who were not terminated, two did not
appear as union supporters; Stayton was listed as a member of the committee and as
a sponsor of the handbill, which also listed Campbell.
Eleven employees were hired after August 1963. Four of these were among those
terminated on April 3, and of these four only Ruley's name did not appear pro union.
None of the other seven, retained although more recently hired, was shown to be
connected with the Union. That the correlation between union support and dis-
charge can hardly be considered coincidental must have been recognized as the
Company sought to explain the selections . But we have seen that the explanations
bore no connection with the alleged reason for effecting any discharges. To the
extent that seniority had not been strictly followed in 1962 layoffs, we can note that of
52 employees listed, 32 were at that time laid off while only 17 were retained out
of strict seniority over the entire period shown.
8 We need not stress the questionable aspect of Petersen 's testimony that on February 3
he asked Anderson whether layoffs could be made since TLC had been moved out This
was well before the decision to assign the work to Kenwell . Petersen later testified that
on February 3 he hoped to have the work back ; Webster later decided not to return it
to Telecom.
TELECOM, INC. 845
The discrimination which occurred in the selections for discharge after the dis-
criminatory removal of the work to another plant,9 is artfully referred to as follows
in the Company's comprehensive and painstakingly prepared brief in an attempt to
cover both the need to discharge and the selections made:
Since additional employees had been hired for the workload this project had
created, with that project permanently discontinued, their services would not be
needed in the future and thus no chance of recall existed at the time. [Empha-
sis supplied.]
Aside from the discrimination in the discontinuance itself, we must not overlook the
distinction between layoff of any 12 employees and layoff of the 12 (indicated in
the phrase "their services would not be needed") hired in August 1963.
If in this argument the Company literally intended to single out those hired for
the workload in August 1963 (but not specifically for the new work) and to give
preference to newer employees,10 we have seen the difference in action taken against
those who appeared as union supporters and those who did not. On the other hand,
if the Company's practice and the seniority of those hired in August 1963 were
considered, it could not be said that their services would not be needed in the
future, especially since their services had not been on the discontinued project; those
later hired would have been laid off. Again, as we have seen, were quality of per-
formance the concern to the extent that the work was sent to another plant, we
would have heard something of an attempt to eliminate those who had allegedly
done the poor work.
I find that the selections for discharge were discriminatory; but logically before
any finding as to selection (even if this did not represent the order in which these
violative acts were decided upon), I find that the decision to transfer the work
and to discharge employees was triggered by the advent of the Union and reflected
the Company's reaction to the organizational activities. The decision to transfer
and lay off did not in fact stem from any inability to perform the TLC work at
Telecom by those assigned to it, some new, some older; and the discharges did not
reflect any allegedly poor performance on TLC.
There remain for consideration several additional elements. We recall that neither
Johnson's nor Ruley's name appeared on the union documents which came to the
Company's attention. The former testified to a report by Swencki of a conditional
offer during the hearing of a job for Johnson "if the union does not go through." The
General Counsel specifically disclaimed any 8(a)(1) finding in this connection; nei-
ther was it alleged or litigated as such. Nor was there here any additional 8(a) (3)
allegation or fully litigated claim with respect to a new and discriminatory offer of
employment. The General Counsel did cite this for its bearing on the existing 8(a)
(3) allegation which relates to the discharges on April 3. For its bearing on the
April 3 discharges, this later incident is equivocal. While it can be argued that it
indicates that the Company connected union activities generally and Johnson's par-
ticularly with her employment, it can conversely be argued that, whatever her activi-
ties and company knowledge of them, it might employ her.
But we are not limited by the absence of specific proof of company knowledge or
impression of Johnson's and Ruley's concerted activities. Since removal of the TLC
work and the discharge of 12 employees have been found to be discriminatory, the
action taken was violative against all who were thereupon discharged even if 1 or 2
were included to balance the total of 12 who had earlier been hired. The explana-
tions for selection did not indicate that either of these two was a poor worker and for
that reason justifiably discharged. Further, as far as Johnson is concerned, the insuf-
ficient explanations for the selections made would themselves warrant a finding of
discrimination in view of her relative seniority. Nor should we overlook several
instances of interrogation of Johnson and discussion with her by supervisors concern-
ing the Union. Not alleged as violative, these instances nevertheless indicate com-
pany knowledge that she favored the Union.
Finding discrimination, I have not overlooked or ignored the existence of contracts
at other plants with the UAW or other unions. Beyond recognizing their possible
'existence, we need not explore differences in attitude, problems, and reactions at the
various plants. If there has been no violation elsewhere, the difference in that respect
has been sufficiently indicated here. In addition to an almost limitless number of dif-
ferences including geographical, which might be considered, acceptance of another
0It is clear that , under the direction and control of Webster , the various plants are
operated as an integrated enterprise
111 am here but following the language in the brief.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union does not indicate willingness to deal with the IUE; we have noted Foreman
Kerr's stated preference for the UAW. Although transfer of the work to the Kenwell
plant did not remove it from union supporters , the explanation for such transfer from
IUE supporters at Lebanon has been found to be pretextual . Once the TLC work
was removed, there was less need for employees. The General Counsel's attempt, by
reference to occasional overtime work, to show the contrary was less than impressive
but quite unnecessary in view of the proof of discrimination.
If any doubt remained after consideration of the evidence to this point , it would be
dispelled by the fact that , in eliminating these 12 employees , among them 10 members
of the organizing committee , the Company departed from its standard procedure, as
is shown in its seniority list dated April 9, 6 days after the discharges . It is the Com-
pany's practice to prepare current seniority or service lists approximately once a
month. These lists not only show the relative seniority standing of the employees but
they also include the names of laid-off employees until their period of unemployment
equals one -half of their service time . Thus for such period of one-half of their service
with the Company , laid-off employees have a recall preference.
But the April 9 list omitted the names of the 12 laid off on April 3 . The explanation
for this offered by Winter , the Company 's office manager , was that, had the layoffs
been due to a decrease in orders , these employees ' names would have been kept on
the list with the initials L.O. after their names; but they were in fact terminated
because of transfer of the TLC work without expectation of additional work. There
is no evidence of similar action when other jobs or types of work were completed.
Surely it was unnecessary to determine early in April whether new and different work
(not to mention possible increase in existing jobs) would come into the plant just as
TLC and other work had been received . The question is not one over which opinions
might differ : whether or not there would be work for these 12. Rather , we have no
sufficient explanation for the refusal and failure to keep these people's names on the
list, to which there could be no objection , for the possibility that there might be oppor-
tunity to recall them before expiration of their layoff status under the Company's
existing plan.
There is no evidence of any similar pessimistic anticipation or complete disregard
for the possibility of new orders which might require recall and even new hiring. To
the other factors which indicate discrimination , we here add finality of discharge
instead of the customary continuing layoff status . In the absence of credible expla-
nation by the Company , the action taken can be recognized as serving not only to
deprive the 12 of their jobs permanently , but also to remove 11 known union sup-
porters from the arena in a future election." Lawfully discharged instead of laid off,
they would have no reasonable expectation of return , upon which hinges eligibility
to vote.
Arzikovic attempted similarly to explain the decision not to include the 12 on the
seniority list of April 9• "These people were terminated without too much expecta-
tion of being recalled to work." But his explanation for omitting the usual recall pos-
sibility for these employees failed of its purpose since it was after the fact; he had no
knowledge of that list prior to July 17, the last day of the hearing . Had he himself
acted to remove the names from the list , such action would have been subject to the
questions and objections noted supra . But he was here attemptnig merely to justify
the action taken without his knowledge . Submission of such testimony as if he had
himself acted for the reason which he indicated suggested the opposite of what we are
thus asked to accept.
The findings herein of discrimination have been made without reliance on any infer-
ence which might be drawn from the Company 's opposition to this union.12
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close , intimate , and sub-
stantial relation to trade, traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
"We have seen that the Union 's objections to the election , filed on April 2, were received
by the Company on April 4, the day after these discharges We need not speculate
whether the discharges at the end of the first week after the election were effected in
anticipation of objections ( Cf Northwest Engineering Company , 148 NLRB 1136
12 N.L .R B. v Erie Resistor Corp , et al , 373 U S 221, 227
TELECOM, INC.
IV. THE REMEDY
847
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company , by terminating the employment of Maupin,
Mary Kaye Thomas, Dorothy C . Mattingly , Johnson, Judy Marie Mattingly , Smith,
Lee, Mary Carolyn Mattingly , Williams, Mary Louise Thomas , Beavers, and Ruley,
discriminated against them in respect to their hire and tenure of employment in vio-
lation of Section 8(a) (3) of the Act. I shall therefore recommend that the Company
cease and desist therefrom and from infringing in any other manner upon the rights
guaranteed in Section 7 of the Act . I shall further recommend that the Company
offer to them immediate reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and privileges, and
make them whole for any loss of pay sustained by each of them by reason of the
discrimination against them , with interest at 6 percent , computation to be made in the
customary manner.13 I shall further recommend that the Board order the Company
to preserve and upon request , make available to the Board , payroll and other records
to facilitate the checking of the amount of backpay due.
It has been further found that the Company , by interrogation , threat, and promises
of benefit , and by implying surveillance , all in connection with employees ' protected
concerted activities , interfered with, restrained , and coerced its employees in viola-
tion of Section 8 (a) (1) of the Act. I shall therefore recommend that the Company
cease and desist therefrom.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio & Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire , tenure, and conditions of employment of
Maupin, Mary Kaye Thomas , Dorothy C . Mattingly , Johnson, Judy Marie Mattingly,
Smith, Lee , Mary Carolyn Mattingly , Williams, Mary Louise Thomas , Beavers, and
Ruley, thereby discouraging membership in a labor organization , the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By such discrimination , and by unlawful interrogation , threat, and promises of
benefit, and by implying surveillance , all in connection with employees ' protected
concerted activities , thereby interfering with, restraining , and coercing employees in
the rights guaranteed in Section 7 of the Act , the Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company , Telecom, Inc., Lebanon,
Kentucky , its officers , agents, successors , and assigns , shall:
1. Cease and desist from
(a) Discouraging membership in International Union of Electrical , Radio &
Machine Workers , AFL-CIO, or in any other labor organization , by discriminatorily
terminating the employment of any of its employees or discriminating in any other
manner in respect to their hire or tenure of employment or any term or condition of
employment.
(b) Unlawfully interrogating , threatening , promising benefits, and implying sur-
veillance in connection with employees ' protected concerted activities.
(c) In any other manner interfering with, restraining , or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Maupin , Mary Kaye Thomas, Dorothy C. Mattingly , Johnson, Judy
Marie Mattingly , Smith, Lee , Mary Carolyn Mattingly , Williams, Mary Louise
Thomas, Beavers , and Ruley, immediate and full reinstatement to their former or
13 The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827 ; Crossett Lumber Company , 8 NLRB 440 ; Republic Steel Corporation v.
N L.R B ., 311 U . S 7; F. W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing
& Heating Co , 138 NLRB 716
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, as 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, time-
cards, personnel records and reports, and all other necessary records as set forth in
the section of this Decision entitled "The Remedy."
(c) Post at its plant in Lebanon, Kentucky, copies of the attached notice marked
"Appendix." 14 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by the Company's representative, be posted
by the Company immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 9, in writing, within 20 days from the
receipt of this Decision, what steps have been taken to comply herewith.15
14 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order " shall be substituted for the words "a Decision
and Order".
1s If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, 1947, as amended, we hereby notify our employees that.
WE WILL NOT discourage membership in International Union of Electrical,
Radio & Machine Workers, AFL-CIO, or any other labor organization, by dis-
criminatorily terminating the employment of any of our employees or discrimi-
nating in any other manner in respect to their hire or tenure of employment, or
any term or condition of employment.
WE WILL NOT unlawfully interrogate, threaten, promise benefits, or imply
surveillance, in connection with employees' protected concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist International Union of Electrical, Radio & Machine
Workers, AFL-CIO, 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 protec-
tion, or to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8(a) (3) of the Act.
WE WILL offer to Maupin, Mary Kaye Thomas, Dorothy C. Mattingly, John-
son, Judy Marie Mattingly, Smith, Lee, Mary Carolyn Mattingly, Williams,
Mary Louise Thomas, Beavers, and Ruley, 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 the interference, restraint, coercion, and discrimina-
tion against them.
All of our employees are free to become or remain, or to refrain from becoming or
remaining members of International Union of Electrical Radio & Machine Workers,
AFL-CIO, or any other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8(a)(3) of the Act.
TELECOM, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
UNION TEXAS PETROLEUM, ETC. 849
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.
Employees may communicate directly with the Board 's Regional Office, Federal
Office Building, Room 2023, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-
2200, if they have any question concerning this notice or compliance with its
provisions.
Union Texas Petroleum , a Division of Allied Chemical Corpora-
tion and Oil , Chemical and Atomic Workers International
Union , Local 4-243, AFL-CIO, Case No. 23-CA-1556. June 29,
1965
DECISION AND ORDER
On November 21, 1963, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
The Respondent thereupon filed exceptions to the Trial Examiner's
Decision and a brief in support thereof. The Charging Party filed
cross-exceptions, a brief in support of the Trial Examiner's Decision,
and a brief in answer to the Respondent's exceptions. The General
Counsel submitted a brief in support of the Trial Examiner's Decision.
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 [Chairman McCulloch and Members Brown and Jenkins].
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 and cross-exceptions, the briefs,
and the entire record in this case, and finds merit in certain of the
exceptions of the Respondent. Accordingly, the Board 1 hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
only to the extent that they are consistent herewith .2
The record herein clearly demonstrates, and we find, that the
Respondent intended at all times to take over the Winnie plant, pur-
chased from Texas Gas Corporation, in a shutdown condition. The
i Member Brown concurs in the result herein.
2 Respondent 's motion for oral argument is denied . Further, we find without merit the
Respondent 's allegation of bias on the part of the Trial Examiner in his analysis of cer-
tain of the facts herein . There is no basis for finding that bias existed merely because
the Trial Examiner resolved some of the important factual conflicts arising in this proceed-
ing in favor of one side rather than the other . As the Supreme Court has stated: ". . .
[T]otal rejection of an opposed view cannot of itself impugn the integrity or competence
of a trier of fact." N.L .R.B. v. Pittsburgh S.S. Company , 337 U.S. 656 , 659 (1949).
153 NLRB No. 71.
796-027-66-vol. 153-55