Vecta Group, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1975

218 N.L.R.B. 408 (N.L.R.B. 1975)

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vecta Contract Company, Division of Vecta Group,
Inc. and United Brotherhood of Carpenters and
Joiners, AFL-CIO, UBC Industrial . Local Union
2848 . Case 16-CA-5760
June 11, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On March 10, 1975, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent 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, fmdings,i and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
As a violation of Section 8(a)(3) strikes at the very
heart of employee rights safeguarded by the Act, and
in accord with our established practice, we shall
substitute a broad cease-and-desist order for the
Administrative Law Judge's recommended Order.
See Eckerd's Market, Inc., 183 NLRB 337 (1970);
Pan American Extermination Co., Inc., 206 NLRB
298, fn. 1 (1973).
Further, since Texas is a right-to-work State, we
will also delete the Administrative Law Judge's
references to the 8(a)(3) proviso from his recom-
mended Order and notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Vecta Contract Company, Division of Vecta Group,
Inc., Dallas, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete the following language from paragraph
1(a): "except to the extent permitted by Section
8(a)(3) of the Act, as amended."
2. Substitute the following for paragraph 1(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist labor organizations, to bargain
218 NLRB No. 63
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the' purpose of collective bargaining - or other
mutual aid or protection."
'3. Substitute the attached notice for 'that of the
Administrative Law Judge.,
i We note the following inadvertent errors in the Administrative Law
Judge 's Decision , which we believe do not affect the results of this case. In
Sec. III , 2,a of his Decision, the Administrative Law Judge incorrectly stated
that Respondent had knowledge of Clar$'s activities on behalf of the Union
in a prior election campaign hehj in 1974,• earlier in his Decision , however,
the Administrative Law Judge correctly noted that this prior campaign
occurred in 1968 In Sec. III, 2,g of his Decision,, the Administrative Law
Judge incorrectly gave January 23 as the date on which the Employer posted
a notice clarifying its rules with respect to discussion of union matters
during working hours; in other places in his Decision , however, the
Administrative Law Judge correctly refers to this posting as having taken
place on July 23
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
override an Admimstrative Law Judge's resolutions with respect to
credibility unless the clear preponderance, of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We, have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT' terminate Rudolph Clark, or any
other employee, because of membership in or
activity on behalf of United Brotherhood of
Carpenters and Joiners, AFL-CIO, UBC Indus-
trial Local Union 2848, or any - other 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 labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection or to refrain from engaging in
such activities.
WE WILL offer immediate and full reinstate-
ment to Rudolph Clark to his former job, or, if
that job no longer exists, to a substantially
equivalent position of employment without preju-
dice to his seniority or other rights and privileges.
WE WILL make whole Rudolph Clark for any
loss of earnings he may have suffered by reason of
our discrimination against him, together with
interest on the pay he may have lost by reason of
our failure to employ him.
VECTA CONTRACT COMPANY 409
VECTA CONTRACT
COMPANY, DIVISION OF
VECTA GROUP, INC.
DECISION
III. THE ALLEGED UNFAIR LABOR PRACTICES
The sole issue in this proceeding is whether Respondent
terminated Rudolph Clark because of his union or other
concerted activities , or whether he was terminated for
cause.2
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge : This case
was heard before me at Dallas, Texas, on December 9,
1974,1 pursuant to a complaint and notice of hearing issued
on November 7, by the Regional Director for Region 16.
The complaint alleges violations of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended,
hereinafter called the Act. The charge giving rise to the
complaint was filed on September 20, by the United
Brotherhood of Carpenters and Joiners , AFL-CIO, UBC
Industrial Local Union 2848 , hereinafter called the Union.
Counsel waived closing arguments and timely filed briefs
with me on January 16, 1975.
Upon the entire record in this case I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Vecta Contract Company, Division of Vecta Group,
Inc., hereinafter called the Company or the Respondent, is
a Delaware corporation engaged in the manufacture of
desks and other office furniture. At times relevant herein,
the Company has maintained a factory in Dallas, Texas.
During the 12-month period immediately preceding the
issuance of the complaint herein , the Company, in the
normal course and conduct of its business operations,
manufactured and shipped merchandise valued in excess of
$50,000 from its Dallas , Texas, facility directly to points
located in States of the United States other than the State
of Texas.
Upon these facts, which are not in dispute , I find that the
Company has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners, AFL-
CIO, UBC Industrial Local Union 2848 exists, at least in
part, for the purpose of dealing with employers concerning
wages, hours, and working conditions of the employees. I
find that at all times material herein the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
I Unless otherwise specified , all dates herein refer to the calendar year
1974.
2 In his beef, counsel for the General Counsel alleges that the record
evidence reveals that at material times Respondent published, promulgated,
and maintained a no-solicitation rule unlawful on its face. The General
Counsel asserts that no allegation of illegality was contained in the
complaint because the matter of the no-solicitation rule did not come to the
attention of the General Counsel prior to the issuance of the complaint.
1. Background facts
William Sullivan is president of Respondent and J. W.
Jones is a supervisor. At relevant times, J. B. Spencer has
been employed in the position of a leadman. Respondent
has operated its Dallas facilities since about 1969. At the
Dallas facility approximately 60 employees are employed.
Approximately 23 employees are assigned to the metal
shop, working under the supervision of J. W. Jones. At
relevant times Rudolph Clark, the alleged discriminatee,
was employed in the metal shop.
Rudolph Clark commenced his employment at the
Dallas facility in 1963. He had worked in the employ of
two companies, predecessors to Respondent, and at the
time of his termination on September 20 Clark was
employed as a polisher. In point of service, Clark was a
senior employee in the plant. Clark was a recipient of
"normal increases" received by all employees as a
consequence of across-the-board wage increases granted
by Respondent. Neither the quality of his work nor his
competence as a polisher is in issue.
In 1968, Rudolph Clark served as an observer in a
National Labor Relations Board representation election.
This election transpired prior to Respondent's assumption
of ownership and operation of - the Dallas facility. Em-
ployed in 1968 at the Dallas plant were Ronald Dedoes
and J. W. Jones. Dedoes served at relevant times during
1974 as a vice president of Respondent. As found, Jones
was employed as a supervisor.
2. The alleged unlawful conduct
a. The union organizational campaign
Commencing in July 1974, the Union initiated efforts to
organize the employees of the Company. On three separate
occasions, handbills were distributed to employees at the
plant gate as they left the plant at the end of their workday.
Attached to each handbill was a union authorization card
in blank.
The organizational campaign continued into the month
of September and in the minds of employees Rudolph
Clark became identified with the Union. Authorization
cards which had been attached to handbills distributed at
the, plant gate were returned to Clark by signatory
employees. Additionally, Clark received a supply of blank
authorization cards from the Union and distributed cards
to fellow employees on breaktime, during the lunch period,
Counsel for the General Counsel further asserts that the no-solicitation issue
was fully litigated during the course of the hearing. However, the General
Counsel did not 'undertake to develop the record in a framework of the
rule's illegality and at no time during the course of the hearing did the
General Counsel move to amend the complaint to allege a violation of Sec.
8(a)(I) deriving from the no-solicitation rule. On this basis, and viewing the
record in its entirety, I find no basis for ruling favorably to the General
Counsel in this regard.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and following the completion of the workday. In doing so,
Clark had discussions with the employees concerning the
Union.
Respondent's president, William Sullivan, became aware
of union activity at the plant on the morning of July 17.
Respondent also had knowledge of Clark's activities -on
behalf of the Union in 1974.
b. The warning to Clark
In mid-August, Sullivan left his office and went out into
the plant. He observed Clark away from his machine.
Sullivan asked Clark how he was, and Clark responded, "I
am looking for an easier job." Sullivan did not respond to
Clark but spoke to Vice President Ron Dedoes concerning
the matter. In the ensuing days, Sullivan received reports
from supervision concerning disruptions in the plant on the
part of two employees, including an individual employed
as an inspector and Rudolph Clark. The reports received
by Sullivan indicated that the employees were disrupting
other employees in their work and were ' departing from
their work stations to do so. With respect to the inspector
who had no specific work station but moved throughout
the plant, Sullivan was of the opinion that the nature and
extent of the interruption was not as definitive as with
respect to Clark. He instructed his vice president to issue a
reprimand to the inspector. Sullivan called Clark into his
office for an interview. The interview transpired on or
about August 20.3 In speaking with Clark in his office,
Sullivan stated that he could not allow the disturbances
caused by Clark wandering in the aisles to continue in the
plant. Sullivan stated that he was endeavoring to make a
living and to give employment to the-employees in the
plant. He stated that disruptions during working hours
must stop. Sullivan added that Clark was free to "work on
Union matters" and that it was "fine" with him if Clark
was in favor of the Union. Sullivan added that he was not
asking Clark whether he was for or against the Union, and
asserted that Clark was free to do whatever he wanted to
do on his breaktime or his lunch hour or before or after
working hours. Sullivan asserted, however, that these
freedoms did not extend to times when Clark was
"producing" for the Company.
In response , Clark stated that he was not doing anything
improper. However, Sullivan stated that if this conduct was
repeated, Clark would be terminated.4
3 Rudolph Clark testified that the interview in question transpired on
July 22. On the other hand, William Sullivan testified that it transpired on
August 20. Clark related the interview to a certain convened meeting of
employees held in the receiving department on July 18; and to a discussion
concerning the Union held between several employees on plant premises
while employees were changing clothes and preparing to leave the plant.
Sullivan testified with certitude that the interview followed' a period of time
during which matters had, "gone along smoothly," and he produced a
document dated August 20 which purported to record the essential elements
of the , interview and matters leading up to the interview with Clark. I credit
the testimony of William Sullivan in finding that the interview transpired on
or about August 20.
4 The foregoing is based upon the credited testimony of William
Sullivan . I credit the testimony of Rudolph Clark only to the extent that it is
consistent with the foregoing. Specifically, I do not credit Clark to the effect
c. Clark and Spencer discuss Union
During the month of August, J. B. Spencer, the leadman
under whom Clark worked, approached Clark at his work
station during working hours and engaged him in conver-
sation. Spencer asked Clark if there was "a union coming
in." Clark answered that he did not know. Thereupon,
Spencer asked Clark what he thought about the Union and
Clark responded, "I think a union is a union." Spencer
observed,that he did not think that this was the proper time
to put a union in. Spencer left Clark's work station and the
conversation ended.5
d. Clark and Jones converse
On September 18, Jones, conducted an annual personnel
interview with Clarks During the course of the interview,
Jones informed Clark; in substance, that except for his
record of absenteeism, his record was satisfactory. With
respect to absenteeism, however, Jones observed that he
was able to detect "very little change." Jones informed
Clark that he was going to submit the record of the review
and would speak with Clark later. No mention was made
of any alleged propensity on Clark's part to leave his
machine or discuss union matters- during working time.7
e. The events of September 19
During the lunch hour' on September 19, Clark met
Willie Ford, a fellow employee, in a passageway en route
from the plant to the parkirig, lot. As Clark and Ford
progressed down the passageway, Clark asked-Ford if he
had signed his authorization card. Ford answered that he
had lost the card and had not signed it. Ford asked Clark
for another authorization card. Clark proceeded to his
truck -which was parked in the parking lot near the
lunchroom which overlooks the parking lot itself. He
obtained an authorization card and took it back to Ford
who was preparing to have lunch by his car parked in the
parking lot. Clark gave Ford the authorization card as they
stood by Ford's automobile and Ford completed and
signed the card. He gave it back to Clark. Clark put it in
his shirt pocket where it was visible. After completing
lunch Clark took the authorization card to his locker and
deposited it there.
that in issuing a warning to Clark, Sullivan stated that Clark had been guilty
of disturbances in the plant and had participated with six or seven other
employees in these disturbances.
5 The undisputed and credited testimony of Rudolph Clark supports the
foregoing findings.
6 While record testimony casts some doubt upon the frequency of
personnel interviews over the years of Clark's tenure, there is little doubt
that incident to its taking control of the operations of the Dallas plant,
Respondent had initiated an annual program of interviews with each
employee.
4 The foregoing is based upon the credited and undisputed testimony of
Rudolph Clark. Clark testified, in regard to the interview with Jones, that he
had indicated to Jones that he intended to terminate his employment with"
Respondent . However, this topic was not discussed during the course of the
interview.
VECTA CONTRACT COMPANY
During the lunch hour, and at the time Ford executed his
authorization card, rank-and-file and supervisory person-
nel of the Company were in the parking lots _
Subsequently, after Ford had resumed work, he men-
tioned the authorization card to J. B. Spencer, with whom
he was working. Ford asked Spencer if he had signed a
union authorization card and Spencer said that he had not.
He stated that he had not seen one. Spencer asked Ford if
he had signed one and Ford answered in the affirmative.
Spencer thereupon asked Ford if he had read the card and
Ford stated that he had not done so. Spencer then asked
Ford who had given him the card and Ford identified
Clark as the individual who had done so. Spencer then
asked Ford if he did not think he should have read the card
before signing it. Spencer stated that he thought Ford
should have done so, and Ford asked of he should get the
card back. Spencer answered that the matter was up to
Ford but that,if he, Spencer, had signed the card without
reading it, he would get it back. Ford disclosed his
intention of doing so .9
After speaking with Spencer, Ford left his work station
and walked approximately 85 feet to Clark's work station.
As Ford approached Clark from the rear, Clark was
engaged in his work at an electrically operated machine
and had a chair base in his hands. Ford stopped at Clark's
work station and faced him. Clark did not stop his machine
nor did he raise the visor to the headgear which shielded
his face. He continued to hold the chair base in his hand as
he spoke with Ford. Ford asked Clark if he had turned his
card in and Clark answered that he had not. He stated that
Ford's card was in his locker. Ford asked if he could have
his card back, stating that he had not read the "booklet"
and did not desire to turn the card in yet. Clark stated that
Ford should not let anyone change his mind and Ford
denied that anyone was trying to do this. Ford explained
that he might desire to go to work for another employer.
Ford left on this note and Clark resumed his work.
After an elapse of a few minutes, Ford returned to
Clark's work station and spoke to Clark again. As on the
previous occasion, Clark did not turn off the electricity to
his machine, but on this occasion he raised his protective
visor while speaking with Ford. Ford informed Clark that
he could not afford to have additional money deducted
from his pay for union dues. Clark responded, in effect,
that the Union would secure increased wages for the
employee which would cover any cost of dues. In
explanation of this, Clark proceeded to write with his
finger in the dust of a machine nearby. Clark and Ford
a The foregoing is based upon the credited testimony of Rudolph Clark.
9 The foregoing is based upon a composite of the credited testimony of J.
B. Spencer and Willie Ford
10 The foregoing is based upon a composite of the credited testimony of
Rudolph Clark and Willie Ford. I have also considered the testimony of
Wylie Hewitt. I credit the testimony of Ford only to the extent that it is
consistent with the foregoing findings. My finding with respect to the length
of the initial conversation between Ford and Clark is based upon the
credited testimony of Clark. Hewitt testified credibly that he observed one
conversation between Clark and Ford which lasted approximately 5
minutes. I conclude that this related to the second conversation. I do not
credit the testimony of Ford to the effect that the first conversation lasted
for approximately 10 minutes . There is nothing of record relating to the
substantive nature of the conversation to warrant a conclusion that it was as
extensive as Ford testified that it was. Moreover, I reject the testimony of
Ford that during the initial conversation, Clark raised his visor in order to
411
conversed together for approximately 5 minutes. Ford did
not ask for his card and Clark did not leave his work
station to obtain it from his locker. The initial conversation
had lasted approximately 2 or 3 minutes.10
f. Clark terminated
In late afternoon on September 19, Ron Dedoes
informed Sullivan that he had observed Clark cease
working at his machine in violation of instructions
previously given employees. As a result of this information,
Sullivan, the following day, September 20, called J. B.
Spencer into his office and asked Spencer to recount what
he had observed with respect to Clark's alleged cessation of
work the previous day. Spencer gave his account of his
conversation with Ford the previous afternoon with respect
to his execution of a union authorization card and Clark's
role therein. Sullivan asked Spencer to give a statement
with respect to the entire incident and Spencer did so.
Sullivan had the statement typewritten and after reading it,
Spencer affixed his signature thereto. In his statement,
Spencer stated, inter alia, in substance, that Ford had
conversed with Clark during working hours and that Clark
had gone over "a lot of figures" with Ford and spent "a
good while" doing so. Sullivan told Spencer that the
matters discussed between him and Ford could not be
discussed "on company time." 11
Thereafter, Sullivan called Ford into the office and asked
him for his version of his conversation with Clark. Ford
outlined the nature of his two conversations the,previous
day with Clark and informed Sullivan that Clark had given
him the union authorization card which he had executed.
Sullivan asked Ford to give a written statement encom-
passing the information which Ford had imparted to
hirM12
In outlining the events relating to Clark, Ford informed
Sullivan that he had left his work station to speak with
Clark concerning the authorization card, but he was
unsuccessful in obtaining it when he first visited Clark's
work station. Ford further informed Sullivan that he went
back a second time to speak with Clark and that Clark
stopped work and raised his visor for the purpose of
conversing with him. According to Ford's account, given
Sullivan, there was a discussion of wages to be received if
the Union successfully organized the plant. Ford estimated
the total time consumed in the two conversations as from 5
to 10 minutes.
speak with him . Clark's testimony is to the contrary and I credit him.
li The foregoing is based upon the credited testimony of J. B. Spencer
and William Sullivan, as supported by documentary evidence of record. In
finding that Sullivan merely admonished Spencer not to discuss the
execution of union authorization cards on company time, I credit Spencer
and reject the testimony of Sullivan to the effect that he informed Spencer
that if a supervisor had engaged in the conduct iii which Spencer had
participated, the supervisor would have been terminated. The testimony of
Spencer, who impressed me as a witness singularly desirous of supporting
the Company's case, lends no support to the testimony of Sullivan in this
regard . I am convinced that Sullivan put an emphasis and gloss on his
admonition which was not actually articulated to Spencer.
12 Ford did not complete the written statement until the following day.
Sullivan credibly explained that he gave this allowance of time to Ford so as
not to embarrass Ford who he knew lacked writing and language
proficiency.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The meeting between Ford and Sullivan ended with
Sullivan reprimanding Ford and admonishing him that he
would be terminated if he were again involved in a similar
incident. Sullivan stated that Ford had violated the rules
and that the rules would be applied fairly to everybody.13
At approximately 9 a.m. on the morning of September
20, Clark was instructed by J. W. Jones to report to
Sullivan's office. He did so, and present in the office were
Sullivan, Dedoes, J. B. Spencer, and another official of the
Company. J. W. Jones also attended the meeting which
transpired. Sullivan invited Clark to sit down and informed
Clark that the meeting was being taped. Sullivan thereupon
informed Clark that he had been warned once before about
creating disturbances in the plant. Sullivan stated that he
had written proof in "black and white" that Clark had
spent from 5 to 10 minutes "organizing." Sullivan told
Clark that he was terminated immediately and that he did
not desire to see Clark on the premises any more. He
handed Clark a paycheck which had been prepared in
advance of the meeting.
In response, Clark stated that he had not been organizing
or creating disturbances on company time. Sullivan
answered that he had proof in writing. Clark did not
pursue the matter. Upon receiving his check, Clark left
Sullivan's office. He, proceeded from Sullivan's office
accompanied by J. W. Jones. After changing his clothes, he
left the premises and did not return.14
g. The plant rules
At all relevant times since January 19, 1973, Respondent
has maintained in effect certain plant work rules which
have been promulgated in written form and posted on
company bulletin boards. Prior to July 1974 plant rules
containing the following (pertinent) provisions were in full
force and effect:
Failure to maintain -proper standards of conduct or
violation of the rules will be cause for disciplinary
action up to and including discharge. The Company
will continue the current practice of administering
lesser forms of discipline, such as warnings and
suspensions from work, in situations involving minor
rules, infractions. Repeated violations of minor and/or
a single major infraction will continue to warrant
dismissal.
1. Employees must be at the assigned work places and
ready to work at their regular starting time and must
continue at work until their regular quitting time.
Violations of this rule include but are not limited to:
F. Wasting time, loitering, or leaving place of work
during working hours without permission, or other
inattention to work.,
2. Employees must perform the work and use the
equipment and machinery assigned to them. They must
obey any reasonable orders from their supervisor or
from other authorized Company personnel. Violations
of this rule include but are not limited to:
C. Instigating or participating in a slowdown, walk-
out, or any other work interruption.
5. Employees must maintain, at all times, proper
standards of conduct and devote the time spent on
Company property exclusively to productive work.
Violations of the rule include but are not limited to:
G. Vending, soliciting, engaging in any personal
business , or distributing written or printed matter of
any kind on Company time.
On July 17, upon learning that the Union was undertak-
ing organizational efforts at the plant, Sullivan undertook
to obtain legal advice. As part of the advice received,
Sullivan was instructed to clarify the plant rules with
respect to discussion of union matters during working
hours. As a consequence, a notice was prepared which was
posted on company bulletin boards on January 23. The
written notice which was issued over the signature of
William Sullivan cautioned against discussion of unions
between members of management and employees "behind
closed doors" and urged that any such discussions be "out
in the open." Additionally, the notice invited employees
who had questions concerning the Union to ask any
member of management who would endeavor to give or
find the proper answer to any question propounded.
Additionally the notice contained the following paragraph:
A good rule is to just refrain from union discussions of
any kind except during breaks and lunch and before
and after you start work. That way is the right and
always lawful way.
Sullivan testified that the plant work rules dated January
19, 1973, were distributed to all present employees when
those rules were promulgated, and that all new employees
received a copy upon their entry into employment. Clark
denied having received or seen the 1973 rules posted on the
bulletin board, or having seen the July 1974 notice.
The Company maintains a fund for the purchase of
flowers for employees or their families on appropriate
occasions. Solicitation for other causes is not sanctioned by
company policy or rules. This prohibition has occasionally
been set aside by management in order to meet the
exigencies of a personal tragedy affecting an employee.
Sullivan testified that, except for the few limited occasions
arising from personal tragedy involving employees or their
families, he had no knowledge of solicitation being
undertaken on plant premises during working hours.
Sullivan further testified that he had instructed depart-
ment heads to read the January 1973 plant rules to
employees at convened meetings. He was unable to testify
whether or not his instructions had been followed. Further,
Sullivan testified that after July 23 he personally addressed
a meeting of employees at which he stressed the need for
13 The foregoing is based upon the credited testimony of Willie Ford and
William Sullivan I have also considered the written statement of Ford
which is in evidence. In crediting Sullivan as to the nature of his reprimand
to Ford, I have considered Ford's apparent inability to recall exactly the
nature of Sullivan's remarks in this regard. Moreover, at this point in time, I
am convinced Sullivan had decided to terminate Clark and desired to give
his action a veneer of evenhandedness.
14 The foregoing is based upon the credited testimony of Rudolph Clark.
William Sullivan did not testify in detail concerning the details of this
meeting and there is nothing in the testimony of Clark which casts doubt
upon his account of the meeting in question.
VECFA CONTRACT COMPANY 413
efficiency and productivity and alluded directly to plant
rules governing worktime conduct of employees in the
plant.
Clark credibly testified that over the years of its
employment, including the period of time during which he
worked in the employ of Respondent, employees conversed
together during the course of their work and supervisors
have participated in worktime discussions with rank-arid-
file employees. Clark characterized these types of discus-
sions as occurring frequently.15
A statement in explanation of Rudolph Clark's termina-
tion was given by Respondent, through counsel, on
October 3, 1974. The communication contained the
following paragraph:
Rudolph Clark was terminated from his employment
because he repeatedly left his work station and
wandered from department to department. He was
warned about this on several occasions and ultimately
was discharged when he stopped his work to consult
with another employee, Willie Ford , Jr. Mr. Ford as
equally guilty in the offense that led to Mr. Clark's
discharge; but, it being his first offense, he was warned
that another occurrence would Read to his own
discharge.
The October 3 statement generated no further inquiries or
requests for information.
Conclusions
I find that the termination of Rudolph Clark was
pretextual and accomplished in violation of Section 8(a)I(1)
and (3) of the Act.
The record establishes that Clark was known by
Respondent to be the leader of the union movem nt
among employees and that he had commanded that status
in two organizing efforts of which Respondent 's supervi-
sion had either direct or indirect knowledge . The latest
organizing effort, which commenced in July 1974, had ed
Respondent to examine its prerogatives in controlling
solicitation and conversation on plant premises. Despite an
effort to redefine its plant rules to give guidance on the
matter,' worktime interruptions for conversational purposes
continued . This is revealed by the undenied testimony of
record to the effect that interruptions for the purpos( of
general conversation were common and by the evidence of
a worktime interruption of Clark by Spencer, a leadman,
for the purpose of engaging Clark in conversa'non
concerning the Union.
In August 1974, William Sullivan, president of RespDn-
dent, called Clark into his office and reprimanded Clark
for alleged worktime conversations away from his mac ine
which 1 interfered with production. Clark was war ed
against a repetition of this alleged abuse. The matter rested
there for a month. No written warning or reprimand was
15 All of the foregoing findings with respect to the promulgation,
distribution, and application of the plant rules is based upon a consideration
of the testimony of William Sullivan and Rudolph Clark, viewed in lig^it of
documents in evidence In testifying concerning instances of work
solicitation during the entire term of his 11 years of employment, Clark
alluded to certain incidents transpiring prior to the Company's assumption
ever received by Clark. No other incidents offensive to
Sullivan's oral directive or the written rules occurred.
Then on September 19, after Clark had engaged in
permissible nonworktime card-signing activity on behalf of
the Union, on his lunch hour, in the parking lot, in full
view of plant personnel, he became involved in two
conversations with Willie Ford, a rank-and-file employee.
These conversations, as the record reveals, transpired at
Clark's machine during the course of his work. Both were
initiated by Ford, who worked in a relatively distant
department under a leadman, J. B. Spencer, vested with
responsibility in Ford's department. The record establishes
that Ford put his work aside in order to engage Clark in
conversation. The input of Spencer served as the precursor
of both conversations. Clark did nothing overt to generate
either conversation. A cessation of work occurred. Clark
was terminated as a consequence of this, without being
accorded an opportunity to explain his-role or the extent of
his involvement. The employment status of neither Ford
nor Spencer was affected.
The Respondent makes much of the fact that an
investigation of the incident was made and that it was
revealed through the investigation that Clark stopped
work, raised his visor to speak with Ford, and wrote with
his forger in the dust of the machines in support of his
dialogue with Ford over wages, The disruptions allegedly
lasted a total of 5 to 10 minutes. This is a mere disguise.
It is manifest that in any objective evaluation of the
incident undertaken for legitimate management and
personnel reasons, Sullivan would have learned that, with
respect to this incident, in contradistinction to other
occasions when employees had engaged in worktime
dialogue which has the effect of impeding production, no
supervisor or leadman approached the participants to
caution them against further conversation or direct them to
return to work. Moreover, Sullivan would have concluded
that rather than serving as the moving force in the event,
Clark, in a real ' sense, by a process of impressment at the
hands of Ford and Spencer, had been enmeshed in the
conversations which had as their principal objective the
return of Ford's authorization card. Additionally, the
investigation actually undertaken had disclosed that
Spencer was the individual who had caused Ford to leave
his work and initiate the conversations. The Respondent
had this knowledge when Clark was terminated. Nonethe-
less, Clark was discharged. The record is most meaningful
in establishing that Sullivan's admonitions to Ford and
Spencer'were, given the circumstances, including the severe
punishment meted out to Clark, of a singularly pallid and
mild variety. Sullivan chose to ignore the essentially
passive involvement of Clark' in the incident and chose,
rather, to highlight, for his own discriminatory purposes,
the expenditure of time by Clark in permitting himself to
become involved with Ford.
The marked inference of discrimination which permeates
the record with respect to the termination of Clark is found
of management at the Dallas plant. Clark also referred to other incidents
wherein solicitations were made openly in the plant during working hours
However, Clark was singularly imprecise in specifying times, places, and
personnel involved and I attach little weight to his testimony. I find, upon
the testimony of Sullivan, that no instances of breach of plant rules was
brought to Sullivan's attention.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the effort which Respondent makes to link the
September 19 conduct of Clark with the alleged breach of
plant rules in August. It is noteworthy that the conversa-
tions with Ford which served to bring about Clark's
termination involve conduct quite different from that
about which Clark was warned in August, There is no
contention on Respondent's part that Clark had left the
machine or had traversed areas of the plant to engage Ford
in conversation on September 19. Only Ford had done
that. The only similarity in the "offenses" of August and
September is that a cessation of work resulted. But any
objective evaluation undertaken without predisposition
and ulterior motives would have required Sullivan to
recognize the fact that, upon being approached by Ford,
Clark had the option of ignoring Ford and continuing to
work or to respond to Ford's inquiries in a civil manner.
Sullivan knew that worktime interruption for the purpose
of engaging in conversation was not uncommon. Fairness
in evaluating the September 19 incident would have
required Sullivan to have taken these matters into
consideration and to balance them against the fact that
Ford and not Clark was the prime mover in the
conversations. Sullivan failed to do ' this. This failure,
coupled with the clear implications to be drawn from
Sullivan's decision to terminate Clark without according
him an opportunity for explanation, gives rise to the
conclusion, which I reach, that the decision to terminate
Clark was unlawful under Section 8(a)(3) of the Act.
In reaching this conclusion I fully recognize the right of
an employer to discipline and terminate the employment of
an employee for any reason so long as that reason does not
involve union activities. However, a termination accom-
plished, even in part, for reasons relating to the involve-
ment of an employee in union or concerted activities
violates Section 8(a)(3) of the Act. In the instant case,
Clark was a union advocate and the record supports the
contention of the General Counsel that Sullivan, in his own
mind, closely, identified the mere involvement of an
employee in the union activities as disruptive and destruc-
tive of the smooth operation of the plant. The record also
reveals that Sullivan translated these deeply held convic-
tions to the worktime activities of Clark, and assessed a
higher degree of conformity to plant rules and worktime
decorum against Clark than against other employees. The
record supports the conclusion that Sullivan carefully
scrutinized Clark's activities in the plant and waited for an
opportunity to terminate his employment. The events of
September, 19 gave Sullivan a plausible excuse, but the
foundations thereof were tainted, I find, because he
applied a standard of conduct against Clark - a union
adherent - that would not have been applied but for
Clark's involvement with the Union. The record requires a
conclusion that the September 19 incident was merely a
cloak for Sullivan's antiunion purposes. I fmd that the
termination of Clark was pretextual.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial 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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent unlawfully terminat-
ed the employment of employee Rudolph Clark in
violation of Section 8(a)(3) and (1) of the Act, I shall order
that Respondent offer Rudolph Clark immediate and full
reinstatement to his former or substantially equivalent
position of employment without prejudice to his seniority
or other rights and privileges and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest in accordance
with the policy of the Board as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing fmdings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Vecta Contract Company, Division of Vecta Group,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the;,Act.
2. United Brotherhood of Carpenters and - Joiners,
AFL-CIO, UBC Industrial Local Union 2848, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Rudolph Clark was, and has been, at all times
material herein, an employee within the meaning of the
Act.
4. By terminating Rudolph Clark, Respondent violated
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
16 The Respondent notes the absence of any accompanying conduct
allegedly violative of the Act. On the other hand, the General Counsel
contends that the plant work rules which were in effect at all tunes relevant
herein were per se violative of Sec. 8(a)(1) of the Act. On the record before
me, I find neither contention convincing or controlling.
VECTA CONTRACT COMPANY
ORDER 17
Respondent, Vecta Contract Company, Division of
Vecta Group, Inc., Dallas, Texas, As officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Brotherhood of
Carpenters and Joiners, AFL-CIO, UBC Industrial Local
Union 2848, or any other labor organization of its
employees by refusing to employ employees because of
their union membership, or in any like or related manner
discriminating against any of its employees in regard to
hire or tenure of employment or any term or condition of
employment, except to the extent permitted by Section
8(a)(3) of the Act, as amended.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Rudolph Clark immediate employment at the
Dallas, Texas, plant of Respondent in his former or
substantially equivalent position, and make him whole for
any loss of wages which he may have suffered by reason of
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
415
the discrimination against him, in the manner set forth
above in the section 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 to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Dallas, Texas, place of business copies of
the attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by a representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
18 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."