Aeroglastics, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1977

228 N.L.R.B. 1157 (N.L.R.B. 1977)

AEROGLASTICS, INC.
Aeroglastics, Inc. and Mildred Friend, and District
Lodge 59 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Cases 8-CA-9959 and 8-CA-9988
April 5, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On December 10, 1976, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the 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, findings,1 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.
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 the Respon-
dent, Aeroglastics, Inc., Bucyrus, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so
modified.
1. Substitute the following for paragraph 2(a):
"(a) Offer Shirleen Mathews, Thelma Shaw, and
Mary Chatman restoration to layoff status, unless on
the basis of their seniority they would have been
recalled absent the discrimination against them, in
which case immediately offer to recall them to their
former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for their lost earnings in the
manner set forth in the section entitled `Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative 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 her findings.
228 NLRB No. 146
APPENDIX
1157
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of you or otherwise
discriminate against any of you to discourage
membership in or support of District Lodge 59 of
the International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other
union.
WE WILL NOT encourage you to establish a shop
committee or solicit and promise to remedy
grievances for the purpose of undermining union-
organizing efforts.
WE WILL NOT coercively interrogate you about
your union activities or the union activities of
other employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Section 7
of the National Labor Relations Act, as amended.
WE WILL offer to restore Shirleen Mathews,
Thelma Shaw, and Mary Chatman to layoff
status, unless on the basis of their seniority they
would have been recalled absent discrimination
against them, in which case we will offer them
immediate recall to their former jobs or, if such
jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority or other
rights and privileges, and make them whole for
any loss of pay suffered as a result of their
discriminatory discharges plus interest at 6
percent.
AEROGLASTICS, INC.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
A hearing was conducted in this consolidated proceeding
at Bucyrus, Ohio, June 28-30 and August 4-6, 1976.1 The
charge in Case 8-CA-9959 was filed by Mildred Friend on
March 17, and served on the Respondent March 25, 1976;
the charge in Case 8-CA-9988 was filed by the Union
April 2, and served on the Respondent April 7, 1976. An
order consolidating cases, consolidated complaint, and
notice of hearing was issued May 21, 1976. The complaint
I The Respondent's motion to correct errors in the transcript of the
hearing is granted in the absence of objection.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was amended at the hearing, and duly answered by the
Respondent.
The issues are whether or not the Respondent violated
Section 8(axl) of the National Labor Relations Act, as
amended, by soliciting and promising to remedy employee
complaints and grievances and encouraging an employee
to establish a shop committee for the purpose of undermin-
ing organizational efforts, interrogating and threatening
employees, and promising an employee benefits if he would
cease his union activities ; and whether or not the
Respondent violated Section 8(aX3) of the Act by laying
off Tyree Mathews (and whether or not Mathews was a
supervisor), and discharging employees Mildred Friend,
Russell Hunter, Mary Chatman, Shirleen Mathews, and
Thelma Shaw.
For the reasons set forth below, I conclude that the
Respondent committed some , but not all , of the 8(axl)
violations alleged ; and unlawfully discharged Mary Chat-
man, Shirleen Mathews, and Thelma Shaw, but did not
discriminate against Tyree Mathews, Hunter , or Friend.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the Respondent and the General
Counsel, I make the following: 2
FINDINGS OF FACT3 AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is an Ohio corporation engaged at
Bucyrus, Ohio, in the manufacture of fiberglass boats. The
Respondent annually ships goods valued in excess of
$50,000 from its Bucyrus, Ohio, plant directly to points
outside Ohio. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The union charging party is a labor organization within
the meaning of Section 2(5) of the Act.
2 The Respondent filed a motion to strike the testimony of (l) its witness,
Supervisor Carolyn Boyd, on the ground that the General Counsel obtained
a pretrial affidavit from her without affording an opportunity for the
Respondent's counsel to be present, in violation of sec . 10056.5 of the
NLRB Casehandling Manual ; and (2) General Counsel's witnesses (a)
Walter Rapp , on the ground that the Board agent inserted certain dates in
his affidavit after he told the agent he had no knowledge of the dates; (b)
Mary Chatman and Thelma Shaw on the ground that the Board agent
solicited their signatures on their affidavits after they informed bins they
could not read his handwriting ; and (3) the above-named witnesses, Tyree
Mathews , and Shuleen Mathews on the ground that all their pretrial
affidavits were so illegible that the Respondent's counsel could not read
them . In its motion, to which the General Counsel filed an opposition, the
Respondent contends that the General Counsel effectively failed to comply
with the Jencks statute, 18 U.S.C.A. 3500, and precluded the Respondent
from impeaching these witnesses on cross-examination . The motion is
denied as without merit. As to ( 1), aside from other considerations, as the
NLRB Casehandling Manual confers no legal rights , the Respondent could
not have been legally prejudiced regardless of the purported noncompliance.
B.C. Hawk Chevrolet, Inc., 226 NLRB 527, fn. 2 (1976). As to (2Xa), careful
III. UNFAIR LABOR PRACTICES
A. Introduction
The Respondent admits and I find that the following
persons were at material times its agents and supervisors:
Neil Baker, president; Fritz Hawkins, plant manager; Gary
Wade, foreman.
The Respondent employs approximately 59 employees.
Organizational efforts began around early October 1975
when Russell Hunter and Thelma Shaw contacted Orga-
nizer Jake Knight who gave them union authorization
cards which they, Tyree Mathews, and other employees
distributed throughout the plant. The Union demanded
recognition in a letter dated November 7 and received by
President Baker November 10 or It, 1975. A Board
election was conducted December 12, 1975; the Union
won and was thereafter certified. All the conduct with
which we are here concerned is alleged to have occurred
during this period.
B. Violations of Section 8(a)(1)
1. President Neil Baker
The complaint alleges that Baker, inter alia, interrogated
employees, encouraged an employee to establish a shop
committee , and solicited employee complaints and/or
grievances and promised to remedy them to discourage
employees from engaging in activities in support of the
Union.
These allegations are based on the testimony of former
employee Walter Rapp, who claimed to be against
unionism. He testified on direct examination that some
time in late October or early November 1975, after he
signed a union authorization card at the request of Tyree
Mathews, Rapp approached President Baker and men-
tioned forming a committee because Rapp did not want the
Union in the shop; that Baker said there formerly had been
such a committee but employees stopped coming to it and
it was dropped, and asked Rapp to go and talk to the
people and see if he could start the committee up again,
and let him know what became of it; and that Baker asked
him about a week later what became of their conversation
and Rapp said the idea did not go over. I credit this
testimony which was corroborated in part but denied in
study of the transcript reveals evidence of no impropriety in the taking of
Rapp's affidavit. As to (2)(b), the witnesses ' remarks regarding their inability
to read portions of their affidavits do not, in my opinion , provide a valid
basis for striking their testimony , although I have taken their remarks into
consideration in assessing the witnesses' credibility. As to (3), I have found
no indication in the transcript that the Respondent's counsel was unable to
read any of the pretrial affidavits , and, in my judgment , although some of
the affidavits are difficult , none are impossible to read . As the General
Counsel made available to the Respondent 's counsel all pretrial affidavits in
his possession which were properly requested , and as counsel was given full
use of them for cross-examination, I find that the statutory requirements
were complied with and the Respondent suffered no illegal prejudice.
3 In resolving credibility issues consideration has been given to
comparative demeanor , recall, and constancy of the witnesses , corrobora-
tion, and probability in light of the record as a whole . I have in certain
instances credited some and discredited other testimony of the same witness.
It has been said and often repeated that it is a common thing to believe some
but not all of what a person says . N.LR.B. v. Universal Camera Corporation,
179 F.2d 749,754 (C.A. 2, 1950).
AEROGLASTICS, INC.
critical part by Baker. The weight of authority indicates
that remarks of the kind which Baker made to Rapp
constituted unlawful interference with employees' union
activity .4
I do not, however, credit Rapp's additional testimony
that Baker asked him who was responsible for starting the
union activity and that Rapp named Tyree Mathews, as
Rapp became quite uncertain about this alleged aspect of
the conversation on cross-examination and finally seemed
to concede it did not happen.
On the day President Baker received the Union's
November 7 demand letter, he carried it into the plant
lunchroom during the lunchbreak where he held it up and
asked, "Is this true?" When none of the employees present
responded, Baker told them to go ahead and answer as
nobody could be fired for being in favor of a union, and
asked them how many were in favor of it and why they
wanted it .5 I agree with the General Counsel that Baker's
reassuring remark did not lift his questioning to the
standard required by Struksnes Construction Co. Inc., 165
NLRB 1062 (1967), for polling employees about their
union proclivities. I conclude that Baker coercively
interrogated employees in violation of Section 8(a)(1).6
2. Plant Manager Fritz Hawkins
The complaint alleges that Hawkins interrogated an
employee, and solicited employee complaints and/or
grievances and promised to remedy them in an attempt to
undermine organizational efforts.
Employee Myra Zornes testified, and Hawkins did not
specifically deny, that Hawkins approached her at her
work place on a day toward the end of October and told
her he "heard some of us girls were trying to start a Union
there"; Zornes replied she did not know too much about it;
and Hawkins commented, "he knew we were having
problems back there, and that the Company was aware of
them, and was trying to straighten them out."
The soliciting allegations also involve two employee
meetings Hawkins called in mid-November and early
December 1975. Fritz Hawkins, presently manager of
another plant of the Respondent's, was production manag-
er at Bucyrus in 1973; then, while Fred Eggelston was
production manager, Hawkins was production engineer. In
late October, Hawkins resumed the production manager
job when Eggelston was discharged for allowing produc-
tion to slow down by failing to schedule availability of
parts properly and to keep employees supplied with tools,
failing to be on time to get the day off to a good start, and
by not giving employees their correct pay. Although it is
clear that few, if any, employees had complained about
Eggelston,7 Hawkins said he called the employee meetings
(after the Union's demand letter had been received by the
4 Cromwell Printery Incorporate, et al, 172 NLRB 1817, fn. 5 (1968), L.
C. Cassidy & Son, Inc., 171 NLRB 951, 954 (1968), enfd. in this respect 415
F.2d 1358 (C.A. 7, 1969); Abex Corporation -Engineered Products Division,
162 NLRB 328, 329 (1966).
5 Based on the credited testimony of Myra Zornes and Carolyn Boyd.
Baker's account is not credited to the extent it diverges from theirs which is
consistent with uncontradicted evidence that Baker attempted to obtain
similar information from Boyd separately at about that time.
6 No evidence supports an allegation that Baker solicited employee
complaints and promised to remedy them, and it will be dismissed.
1159
Company) to tell the employees he could see the big
problems which Eggelston had caused but needed help to
find out others, and with their help he could get their pay
back up.
At the meetings, which were similar in nature , Hawkins
told the employees present the Cohipany had had problems
with Fred Eggelston as plant manager but now that he had
been discharged the problems would be taken care of, and
he wanted to know what the employees' complaints were.
Receiving no initial response , Hawkins said he heard the
employees were organizing a union so they must have some
gripes and he would like to know what they were so he
could straighten them out. Employees then mentioned the
need for a pay phone to be installed for their use, the need
for parts to perform their work, and problems with their
pay. Debbie Musselman stated that the Union was a
problem to her and she did not intend to vote. Hawkins
told her it was important to vote, adding that he personally
did not like unions. Hawkins wrote the complaints voiced
on a pad and subsequently contacted employees with short
paychecks and corrected their pay and looked into the pay
phone matter.8
The Respondent does not appear to contend seriously
that management-employee meetings had been held on a
regular or frequent basis in the recent past, and the credible
evidence is to the contrary.
I have no doubts about the Respondent's legitimate
business concern in ferreting out and solving production
problems created by the mismanagement of its former
plant manager. However, the evidence seems to clearly
demonstrate that a significant factor in its decision to seek
out employee gripes and complaints was to influence their
choice in the approaching Board election. Thus, there was
no regularly established practice of holding such meetings,
and Hawkins tied his invitation that employees present
their complaints, which he concededly promised to rectify,
in with their organizational activity in his opening remarks;
he expressed his dislike of unions; and a campaign leaflet
he distributed to employees between the two meetings
reminded them of the discharge of the former manager and
stated, "You didn't need a union to get things straightened
out - the Company straightened things out for you on its
own."
Accordingly, I find that in his remarks to Zornes and at
his meeting with employees, Hawkins interrogated employ-
ees, and solicited employee complaints and grievances and
promised to remedy them for the purpose, in significant
part, of undermining organizational efforts, and I conclude
that this conduct interfered with employees' Section 7
rights in violation of Section 8(a)(l) of the Act.
7 1 do not credit Vice President Coulter 's testimony that employees
constantly complained about Eggelston as no reason appears as to why they
should have singled him out while voicing no complaints to Baker or
Hawkins. The employee witnesses did not support Coulter in this respect.
8 No reliance is placed on Thelma Shaw 's testimony that Hawkins told
the assembled employees he had promised to recall Mildred Friend the week
after Shirleen Mathews returned to work, or Shaw 's or Myra Zornes'
testimony of Hawkins' alleged interrogation and polling of employees, as it
was not mutually consistent, and it was, in the circumstances , unlikely.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Foreman Gary Wade
The complaint alleges that Wade interrogated an
employee. Myra Zomes testified, without dispute, that
Wade asked her, the day after the first union meeting with
employees, "what we had found out the night before," and
she replied, "they had told us what a Union does, if they
come into a plant." The Board has said that interrogation
like this "which seeks to place an employee in the position
of acting as an informer regarding the union activity of his
fellow-employees is coercive."9 I conclude that it violated
Section 8(a)(1).
C. 8(a)(3) and (1) Violations
1. Tyree Mathews
The complaint alleges in effect that the Respondent laid
Mathews off on November 4, 1975, and refused to recall
him, because of his union activities; that President Baker
informed him he was laid off for being a troublemaker and
attempting to organize a union and promised to recall him
if he ceased his union activities; and that Plant Manager
Hawkins informed him he was not recalled because he had
started trouble by instigating union activities among the
employees. The Respondent asserts that Mathews was laid
off for economic reasons when the night shift to which he
was assigned was discontinued and that he will not be
recalled until the night shift is reactivated because he was
unable to get along with employees on the day shift; the
Respondent denies that the unlawful remarks were made
and contends that Mathews was, in any event, a supervisor.
The Respondent hired Mathews October 8, 1974, and
employed him for 11 months as a grinder. He was then
assigned to learn to be a chopper, spraying fiberglass and
resin on boat frames with a chop gun. After about a month
at this duty, Mathews was transferred to the night shift as a
chopper. About 6 weeks later, November 5, 1975,10 he was
laid off.
With regard to Mathews' alleged supervisory status, the
record shows that there were a total of eight or nine
employees assigned to the night shift, including Mathews,
the only chopper, and five employees who rolled the
fiberglass after each chop. Gary Wade was the night shift
foreman.
I am satisfied that Mathews had no supervisory authori-
ty, for the following reasons : Hawkins' testimony that all
choppers carried the additional classification of leadman or
leadlady was not supported by Foreman Wade who was
not sure Mathews was a leadman ; and it was contradicted
by the testimony of Debbie Musselman , now a chopper on
the day shift, that Carolyn Boyd's responsibilities and
authority as chopper-leadlady were greater than hers, and
by Mathews' testimony that he was not a leadman.
Moreover, there is no credible evidence that Mathews filled
out employee work evaluation forms as Boyd and former
chopper Reeves upon occasion did. Mathews' testimony
9 Abex Corporation, supra.
10 Although a record in the Respondent 's possession indicates November
3 as the date of Mathews' layoff, a preponderance of the evidence
establishes the date as November 5.
11 No reliance is placed on Vice President Coulter's testimony with
that, although he was responsible for checking the work of
the rollout employees, he called the foreman if he
discovered defects or if the rollout employees had any
problems is more persuasive than Wade's and Hawkins'
testimony that Mathews himself instructed rollout employ-
ees how to do their jobs and to correct defects, in view of
Mathews' limited experience in his job and the few
employees on the night shift under Wade's direction. Any
responsibility Mathews had to "line up production" and
keep the rollout employees working, as Wade testified to,
appears to have been confined to his obligation to perform
his chopping duties with regularity and dispatch and to see
to it that needed supplies were available. Although
Mathews turned in a nightly report of the number and kind
of boats chopped and the names of rollout employees
present, I find that he did not grade their work contrary to
Wade's testimony that he did.
Management's contention that Mathews was a supervi-
sor seems inconsistent with its contention that he was
transferred to the night shift because he teased, annoyed,
and agitated employees on the day shift, while the latter
contention, as well as Mathews' testimony that Wade and
Production Manager Eggelston told him, at the time they
transferred him to the night shift, that he was not a
supervisor and not to pick on rollout employees by telling
them they worked too slow and not to tell them what to do
are consistent with nonsupervisory status.
In the above circumstances,11 and as the Respondent did
not contend in its answer to the complaint that Mathews
was a supervisor, I find that he was not.
With regard to Mathews' layoff, it is undisputed that he
and four other second-shift employees received notice of
layoff from Baker and Hawkins at the same time, and that
they were told the layoff was for lack of work; and that
Mathews was told that only one chopper was needed and
Carolyn Boyd was a more experienced, more senior
chopper, and the layoff was temporary and he would soon
be back at work. The General Counsel seems to concede
that the entire night shift was laid off, Mathews admitted
work was slow at the time, the record shows that a number
of employees in various classifications were also laid off
from the day shift, and Mathews admitted he had the least
chopper seniority.
It is undisputed that Mathews was active in the union
campaign. After being approached by Russell Hunter, he
signed an authorization card and took some cards from
Hunter and passed them around among employees during
lunch periods and after work, returning signed cards to
Organizer Knight. He also talked up the Union and
attended meetings . Moreover, it is clear that Foreman
Wade was given reason to know about his prounion stance
after his layoff, as Wade visited Mathews' home that same
evening and while he was there Mildred Friend came to get
a card to sign and Union Organizer Knight came to see
Mathews. However, the only direct evidence that the
regard to this issue , as he conceded he has been out of touch with employee
duties and responsibilities at this level for more than a year . There is
insufficient reliable evidence for determining whether Mathews was paid
more or less as a chopper than as a grinder, or the basis for Boyd's $20-a-
week bonus which Mathews did not receive.
AEROGLASTICS, INC. 1161
Respondent knew about Mathews' union activity before it
selected him for layoff,12 or that it was motivated thereby
in selecting him for layoff or refusing to recall him, is based
on the testimony of Mathews himself which was uncorrob-
orated except in one instance . That one instance was
Mathews' testimony that during Wade's visit to his home
on the evening of November 5, Wade allegedly told him he
would not be called back because the Company found out
he was working for the Union. This testimony was
corroborated by Mathews' wife Shirleen. Although Wade's
denial alone would not be sufficient in my mind to
outweight the Mathews' testimony, it is sufficient consid-
ered in light of the failure of Myra Zornes, who they all
said was also present , to confirm them.13
Mathews also testified that on a visit to the plant only a
week after his layoff, Hawkins admitted he knew Mathews
was working with the Union and when Mathews accused
Hawkins of refusing to recall him for that reason, Hawkins
at first denied it but then immediately admitted he had
refused to recall him because he "agitated the women" and
tried to organize a union.
Mathews testified that on subsequent visits to the plant,
he asked Hawkins if the reason for his layoff was that he
and his wife were both working and that Hawkins agreed,
adding that it was company policy not to hire married
couples. This testimony seems most unlikely, as no
question of hiring was involved, Mathews admitted there
were four married couples on the payroll, and Mathews'
wife was laid off at the same time he was. Hawkins'
explanation of the policy as not employing a husband and
wife on the same shift seems more reasonable in the
circumstances.
The record shows that the next time Mathews came to
the plant he saw President Baker in Vice President
Coulter's presence and protested a notice from the
unemployment-compensation office that he was terminat-
ed. Baker informed Mathews he was not terminated but
was on layoff status, and immediately also informed the
unemployment-compensation office by telephone. Accord-
ing to Mathews, he than asked Baker why he was laid off
and Baker said, "because you have been in trouble with the
Company." Mathews asked what Baker meant by that, and
Baker allegedly replied "trying to organize the women
against me and I have been good to you." Baker then
allegedly volunteered that if Mathews would drop his
union activities, Baker would think about taking him back.
Baker and Coulter both denied the Union was mentioned
at this interview. They testified that after Baker straight-
ened out the termination mistake with the unemployment-
compensation office, an argument developed over Ma-
thews' employment record and Baker reminded Mathews
about getting into fights and agitating on the day shift.
Baker, Hawkins, and Wade testified that while Mathews
was a grinder he got into several fights with Roger Pinion,
whose job was that of carpeting boats and who was located
next to the grinding area, and with Foreman Fred Miller.
Baker and Hawkins testified it was because of this that
12 1 have not credited Rapp's testimony that he tipped President Baker to
this
13 Mathews also testified without dispute that Fred Eggelston told him
on the day of the Board election that in Eggelston's opinion Mathews was
laid off because of his union activities . Although Eggelston may well have
Mathews was assigned to learn chopping ; and that it was
because he teased, annoyed, and agitated other employees
while on that job that he was transferred to the night shift
and would not be recalled until the night shift is
reactivated. Although Mathews testified he was never told
his transfer to the night shift was caused by any unaccept-
able behavior on his part, it is clear that he was fight-prone,
and he conceded, as recounted above, that he was told not
to pick on night shift employees or tell them what to do.
For the above reasons, and because Mathews' testimony
with regard to statements by management purportedly
betraying discriminatory motives in the layoff and refusal
to recall him was for the most part uncorroborated,
uncharacteristic, and unlikely, I do not credit him.
I further find that the credible evidence fails to support
the allegation that the Respondent was discriminatorily
motivated in laying him off and refusing so far to recall
him. The General Counsel contends that the Respondent
should have bumped Mathews back into the grinder job
and laid off the grinder who was junior to Mathews in that
job. In the absence of any evidence of an employer practice
of bumping in selection for layoff or recall, however, there
is no basis for expecting that the Respondent would have
done that but for Mathews' union advocacy. In any event,
the Respondent's contention that Mathews got into fights
as a grinder is clearly established (even though it is not so
clearly established that he was invariably the one at fault),
as is its contention that Mathews cause friction as a
chopper on the day shift. Moreover, although Musselman
has now been made a chopper on the day shift, the record
shows that she became experienced at chopping by taking
Boyd's place when Boyd was off before Mathews learned
to chop, and that she still does some rollout work which
Mathews has never done. Finally, there is no indication
that the night shift has been reactivated, or that other night
shift employees have been recalled to the day shift.
Accordingly, I recommend that the complaint b.
dismissed as to Tyree Mathews.
2. Mildred Friend
The complaint alleges that Hawkins solicited grievances
from Friend and promised to remedy them, and that the
Respondent discharged her November 24, 1975, to discour-
age union activities. The Respondent denies the solicita-
tion, and contends that Friend was never discharged.
Friend was hired in August 1974 and laid off in August
1975. She was still on layoff at the time of the union
campaign in the fall of 1975. As described above, she
visited Tyree and Shirleen Mathews' home on the evening
of November 5 where, in the presence of Foreman Wade,14
she asked Myra Zornes for a union authorization card and
Shirleen Mathews gave her one and the three women
adjourned to the living room where Friend signed the card.
On Tuesday, November 11, 6 days after that, Friend
received a telephone call from Fritz Hawkins who said he
understood Eggleston had not recalled her to work when
told Mathews that , I do not believe his professed opinion was reliable in
view of his absence from management circles for some weeks and his
probable hostility toward the Respondent over his own discharge
14 Based on the corroborative testimony of Zornes, Friend , Shirleen
Mathews, and Tyree Mathews, Wade's denial is not credited
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he should have, and asked if she could return the next
Monday. Friend replied that she wanted to return as she
needed the job, but her son was ill and she was not sure she
could return on Monday. Hawkins asked her to let him
know on Friday. The following conversation then en-
sued: 15
Then he said, "Mary, we found out that there was a
lot of problems going on around here that we didn't
know about. You know, Fred Eggelston isn't with us
any more. You know the girls are trying to get a Union
in," and then he said, "that is a dumb thing to do,
because all they do is take your Union dues. They take
your money."
I told him, I said, "Well, the girls are always in an
uproar in the back. There is always confusion because
you don't know what was expected," and I said, "you
never get any satisfaction. They are always ignored."
I told him, "If you worked back there, you would
understand why the girls want a Union in there."
And he said, "Well, if you would have come to me,
we could have gotten it all straightened out:' He was
going to straighten everything out... He said, "You
know Vassil Manufacturing here in town, they closed
because of Union demands."
He said, "I am having a meeting this Friday with the
girls. We are going to take care of all of this stuff, and
we are going to get it straightened out."
On Friday, November 14, Friend telephoned Hawkins,
and told him she could not return to work Monday, and
asked if she could wait a week. Hawkins knew, he testified,
that Friend's refusal of this offer constituted a quit, but he
did not tell her that. Instead, he so informed the
unemployment-compensation office 16 and instructed them
to discontinue her payments. The next time Friend
telephoned him she protested this action, but he told her "it
was a state law that if you refused to return to work that
your unemployment rights are discontinued," and that, "if
she would come in and fill out an application, as soon as
we got everybody called back that were on layoff, she
would be the first person called in because she had
experience and we would rather rehire her than to take
somebody with no experience:'
In my opinion, Hawkins' statements to Friend in their
November 11 telephone conversation, similar as they were
to the statements he subsequently made at the employee
meetings and similarly tied in with the union campaign,
constituted an additional violation of Section 8(a)(1) and I
so conclude.
I do not believe, however, that this evidence, nor a
preponderance of the evidence considered as a whole, is
sufficient to sustain a fmding that Hawkins' treatment of
Friend's refusal of his offer of recall as a quit was
discriminatorily motivated. It may well be that, knowing of
15 Based on Friend's account, which is consistant with other statements
found to have been made by Hawkins.
16 For their last two conversations, I rely substantially on Hawkins'
accounts because they seem more probable . Friend's accounts seemed to be
based on misunderstandings of what Hawkins said to her as they were
illogical and not corroborated even inferentially by any other evidence.
17 Based on Hunters credited testimony . Hunter also credibly testified
her prounion sentiments, he was glad she refused the offer,
but the fact remains that such a refusal is technically a quit,
and in the absence of any evidence of disparate treatment,
it is just as likely that he was motivated by the desire to
reduce by one the number of the Respondent's employees
collecting unemployment compensation . Accordingly, I
must recommend that the 8(aX3) allegation as to Friend be
dismissed.
3. Russell Hunter
The complaint alleges that Hawkins interrogated Hunter
and threatened him for engaging in union activities; that
President Baker interrogated Hunter and solicited com-
plaints from him and promised to remedy them in order to
discourage union activities; and that the Respondent
discharged him November 28, 1975, and refused to
reinstate him because of his union activities. The Respon-
dent denies knowledge of Hunter's union activities and
contends he quit.
Hunter, a carpenter, was hired by the Respondent
October 10, 1974. He worked in the carpenter shop with
Don Frizell, an apprentice who was hired April 17, 1975. In
mid-October 1975, Hunter contacted Union Organizer
Jake Knight and told Knight he was interested in
organizing the Respondent's plant. Knight gave him 15-20
authorization cards to have signed and Hunter passed them
out among employees, mostly at an inn near the plant
during lunch periods, obtaining signatures on 18 or 19
cards.
During a lunch period in late October or early Novem-
ber, Hunter asked Foreman Gary Wade, at the same inn, if
he wanted to sign a card and have a union. Wade replied
that he could not because he was a manager.17 A week or
two later, Hunter credibly testified, Plant Manager Haw-
kins came into the carpenter shop and "asked me if I was
organizing a Union"; when Hunter said he was, Hawkins
told Hunter "he thought it was pretty rotten of me to be
stabbing him in the back after all the things that they had
done for me," such as giving Hunter a job "with your
record" and lending him money without interest.18 Hunter
also credibly testified that 3 or 4 days after that, President
Baker called him to the office and asked "if I was in on the
Union." Hunter said yes, and Baker asked "if I had been
helping to organize it." Hunter again said yes, he had been
getting cards signed. Baker asked why, and Hunter
explained it was the working conditions and the money
situation mostly. Baker then told Hunter he should not
push the Union so hard, that he should wait and give the
Company time; now that they had discharged Plant
Manager Eggelston, they would straighten out their own
problems; the employees did not need a union, it would
just be a waste of union dues, and they could do more for
the employees than the Union could. The conversation
ended, according to Hunter, with his telling Baker, "I was
that Wade said he knew that Thelma Shaw and Mary Chatman were getting
cards signed but he did not care one way or another. Wade was not
questioned about this conversation.
18 Hawkins was not questioned about this particular conversation,
although he testified he had no conversations with any employees about the
Union.
AEROGLASTICS, INC. 1163
going ahead with it," and Baker's saying, "well, it didn't
matter, he didn't care if we did get a Union in there." 19
Although Hawkins' stab-in-the-back remark did not
constitute, in my opinion, an implied threat to fire
Hunter,20 it is clear that Hawkins and Baker both
coercively interrogated him, and that Baker impliedly
promised to remedy his complaints for the purpose of
dampening Hunter's enthusiasm for the Union. I conclude
that the Respondent thereby violated Section 8(a)(l).
On November 18, 1975, Hunter gave notice to Baker and
Hawkins of his intent to quit November 28 and leave town
because of personal problems. Baker telephoned John
Wurm of Wurm Lumber Company a day or two after
Hunter gave notice , told him the carpenter had quit, and
asked if Wurm could increase his workload for the plant.
Wurm responded he would do his best. Baker then
instructed Hawkins not to hire another carpenter but to
keep only Frizell on the payroll, and get additional precut
wood from Wurm's. Although the cost might be a little
higher, Baker said, they would not have to worry about an
employee missing work , and Wurm's was dependable. On
November 21, Hunter told Baker and Hawkins he had
solved his personal problems and no longer wanted to quit.
They informed Hunter, however, that they had arranged
for precut wood with a jobber. When Hunter asked about
unemployment compensation, Baker said he did not think
Hunter would get it as he was listed as a quit .21 Hunter was
denied unemployment compensation on the ground that he
quit his job.
Here again I have little doubt that the Respondent
welcomed the news that Hunter, who was the chief
instigator and advocate of the union movement, was
quitting . But, also again, the evidence does not, in my
opinion, sustain the inference that, but for his union
advocacy, the Respondent would have canceled its ar-
rangements for precut wood and allowed him to revoke his
announced intent to quit. No disparate treatment has been
shown . And it does not seem unreasonable that the
Respondent would opt for an available and dependable
substitute for Hunter 's services . Accordingly, I fmd that the
allegation that the Respondent discharged and refused to
reinstate Russell Hunter because of his known union
activities is not supported by a preponderance of evidence
on the record as a whole, and conclude that it must be
dismissed.
4. Shirleen Mathews, Thelma Shaw, and Mary
Chatman
The complaint alleges that these three employees were
discharged December 11, 1975, the day before the Board
election, because of their union activities. The Respondent
contends they were discharged for cause.
Shirleen Mathews and Chatman were hired in 1974,
Shaw in July 1975. Shaw contacted Union Organizer
Knight in late September or early October 1975, and he
19 Baker was not asked about this conversation , although he testified he
had no conversations with employees about the Union except for the
lunchroom incident on the day he received the Union's demand letter,
discussed above. In these circumstances , and as the remarks attributed to
Baker by Hunter are consistent with management views found to have been
expressed on other occasions , I credit Hunter.
came to her home . Knight gave Shaw six or seven union
authorization cards; she signed one and distributed the
others to employees during lunch breaks. Chatman also
passed cards, which she received from Knight and Shaw,
among employees during lunchbreaks, and was slated to be
the Union's observer in the Board election . Shirleen
Mathews signed a card for her husband Tyree Mathews,
and, as found above, gave a card to Mildred Friend in the
presence of Foreman Wade on November 5. As indicated
above, Russell Hunter credibly testified that Foreman
Wade told him during their conversation in early Novem-
ber that he knew Thelma Shaw and Mary Chatman were
passing out cards.
Shirleen Mathews was laid off November 5 and recalled
(in place of Mildred Friend) apparently on November 17.
All three were laid off as of November 21, 1975, Shaw and
Chatman for the first time. While on layoff status, they
visited the plant twice and Hawkins discharged them
December 11, the day before the Board election, for the
stated reason of coming into the plant for the third time
and bothering working employees after he told them not to
do so.
I find that the following events lead to the terminations
based on the mutually corroborative testimony of the three
employees substantiated in part by other witnesses. On
November 26, Shirleen Mathews and Shaw came into the
plant together to pick up their paychecks and ask about
being recalled to work. They entered by the front door, saw
that Hawkins was not in his office, and went back to their
old work area where they spoke to several of the women
who were working , remaining in the aisle 5 or 6 minutes.
Hawkins appeared, and the three of them walked together
toward the front of the plant while they asked him for their
paychecks and asked when they would be called back.
Hawkins told them he hoped to recall them soon and to
come back and check with him again . He asked them to
wait in the lunchroom while he inquired about their
paychecks. After a short wait, they received the paychecks
and left.
Whenever Chatman went by the unemployment-com-
pensation office she was told to ask her employer if she
could go back to work. Her first visit to the plant was made
after being at the unemployment-compensation office
December 2. She entered by the front door, observed that
Hawkins was not in the office, and walked back into the
work area where she laid a bag of doughnuts on a mold for
the employees. After speaking to some employees as they
got doughnuts out of the bag, Chatman asked Carolyn
Boyd if she knew when Chatman would be called back.
Boyd replied that she did not know. Hawkins appeared
then, and asked what Chatman was doing there, and
Chatman said she had only brought the employees
something to eat. Hawkins smiled, and Chatman left the
plant. She was there no longer than 5 minutes.
Shirleen Mathews and Shaw visited the plant office
separately December 5 and asked Hawkins if they were to
20 Montgomery Ward & Co., Inc., 217 NLRB 165 (1975); Airlines Parking,
Inc., 196 NLRB 1018 (1972), affd. 470 F.2d 994 (C.A. 6).
21 Baker and Hawkins seem more reliable than Hunter and apprentice
Frizell as to what they told Hunter on November 21, as no reason appears
for their promising to arrange for him to collect unemployment compensa-
tion, which they did not do, as the employees testified.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work. He told them no, and they said they would
check with him again next week.
Chatman returned to the plant December 9 or 10, to see
about coming back to work. This time she entered through
the back door near the work area. She did not recall
speaking to any of the workers on this occasion , but as she
approached Boyd, Hawkins came up to her in the aisle and
asked if he had her telephone number. She said he did, and
he told her he might possibly call her back Monday,
December 15.
On December 11, Shirleen Mathews, Shaw, and Chat-
man planned to meet at the plant and go shopping from
there. Shaw parked her car in a lot nearby, and she and
Shirleen Mathews went in the back door and put a bag of
doughnuts on the mold for the employees to eat when they
had time. Boyd told them she heard they were to come
back next Monday, by they said they did not know, and
were there to see Hawkins about returning . Several
employees said they had not seen him that morning and
asked where Shaw and Shirleen Mathews were going. They
said they were going shopping, and left by the back door,
asking carpenter-apprentice Frizell on the way out if he
had seen Hawkins but he had not seen him either. Outside
they found Chatman parked along the street by the plant
waiting for them, and got into her car. Chatman observed
them approach, walking normally, and although Chatman
saw Hawkins just as the other two got in her car, they did
not see him. Shaw and Shirleen Mathews were in the plant
10 or 15 minutes, but Chatman did not enter the plant that
day. Shaw saw Hawkins when she returned for her car but
she did not speak to him as she was due at home then to get
lunch for her family.
Chatman received a telephone call from President Baker
late that afternoon and he told her she was fired for
trespassing on company property and interfering with
production. When Shirleen Mathews and Shaw came to
vote in the Board election the following morning, Decem-
ber 12, they were challenged by the Board agent on the
ground that they had been discharged. Shaw and Shirleen
Mathews testified they asked Hawkins why their votes were
challenged, and he told them they were on company
property the day before. They protested they were only
checking on their jobs as he had told them to do, but he
responded, "I told you I would see you tomorrow," a
statement he did not explain and they did not understand.
Hawkins testified that although he did not observe Shaw
and Mathews in the work area of the plant December 11,
he had observed them there November 26 and observed
Chatman on both her visits, and that on each of these
occasions the laid-off employees were surrounded by
employees who were supposed to be working and he told
them they were disrupting production and that they were
not to go into the work area again while on layoff status.
Although Debbie Musselman testified she got one of the
doughnuts Shaw and Mathews brought, and Carolyn Boyd
testified some employees did so, when they were supposed
to be working, the overwhelming weight of the testimony of
employee witnesses who observed these events was that the
employees did not neglect their work to gather around the
visitors. Nor was there any corroboration of Hawkins'
alleged warnings to them.
Hawkins testified with regard to events of December 11
that he saw Shirleen Mathews and Shaw come out the back
door of the plant and when they saw him they ran to
Chatman's car which was standing in the employee parking
lot and drove off; he went into the plant where he saw
employees eating doughnuts and asked if there were any
left, but there were not ; and someone told him Shaw and
Shirleen Mathews had brought them. Hawkins testified he
thought that Chatman had sent the other two into the plant
after he had warned her twice not to come in, the last time
only the day before that. He and Baker testified that
Hawkins reported to Baker that the three laid-off employ-
ees were in the plant again, in open defiance of his
warnings ; that Baker said the company attorney had
instructed them to do what they normally do, and Hawkins
said he normally would recommend termination; Baker
agreed, and dictated letters advising the three they were
terminated "for trespassing on Company property and
interfering with production after previous warnings."
Baker was unable to reach Shirleen Mathews or Shaw on
the telephone, but he reached Chatman that afternoon and
read the letter to her.
I do not credit Hawkins here either. As Baker's
information was based wholly on what Hawkins told him, I
do not consider his testimony corroborative. In addition,
by Hawkins' own account, his immediate reaction was not
that of a supervisor goaded into drastic action, and his
explanation for taking such drastic action against Shaw
and Mathews after only one alleged prior warning - that
he thought Chatman had sent them - redounds against
rather than in favor of his credibility and his motives.
Moreover, in view of the serious concern these three
employees showed throughout for being recalled, I cannot
believe they deliberately endangered their jobs by flouting
an order not to enter the work area.
Hawkins' credibility here was further undermined by his
inconsistency with respect to these three employees' alleged
violation of a posted rule which it is clear none of the
employees had ever heard of. Thus, Hawkins initially
asserted that their conduct was in violation of a written rule
posted in the plant which said, "No Visitors. All visitors
must go through the office ." He was then shown his pretrial
affidavit in which he had stated, "Employees on lay-off are
not told they are not to come in the plant while on lay-off
until the initial occurrence. There is an unwritten company
policy to this effect," and he thereafter affirmed his
affidavit to the effect that the alleged company policy was
an unwritten one and that the "No Visitors" rule did not
apply to employees on layoff status.
President Baker, Vice President Coulter, Foreman Wade,
and employee Don Frizell also testified to the existence of
a company policy prohibiting any nonworking person from
going into the shop, and some of them, Hawkins, and
employee Sharon Goin cited instances when management
occasionally had asked relatives and friends of employees
to leave the plant. Hawkins testified he never failed to
"speak" to anyone he saw in the plant in violation of this
policy. By contrast, Carolyn Boyd, Tyree Mathews,
Thelma Shaw, Shirleen Mathews, Myra Zornes, and
Russell Hunter all testified that they were aware of no such
company policy and that visitors came and went with
AEROGLASTICS, INC.
impunity. I am unable to conclude from all this that there
was a consistently enforced policy to exclude laid-off
employees from work areas of the plant. Moreover, there is
no evidence that any employees were ever disciplined for
violating the alleged policy, and President Baker conceded
that Shaw, Chatman, and Shirleen Mathews were the first
employees ever to be discharged for this reason.
In all the above circumstances, I fmd that the Respon-
dent did not discharge Chatman, Shaw, and Shirleen
Mathews for the reason advanced. As no other credible
reason has been offered, and in view of the Respondent's
strong opposition to the unionization of its employees, its
knowledge through Foreman Wade of their support of the
union cause , the disparate way it treated them, and the
timing of the discharges on the day before the Board
election, I infer and fmd that it manufactured the reason
advanced as a pretext to conceal its real motive which was
to influence the outcome of the election and discourage
union activity among its employees. I conclude that the
discharges were discriminatory, in violation of Section
8(a)(3) and (1) of the Act.
REMEDY
In order to effectuate the policies of the Act, I
recommend that the Respondent be ordered to cease and
desist from the unfair labor practices found and, in view of
the nature thereof, to cease and desist from infringing in
any other manner on its employees ' rights guaranteed by
the Act . N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A.
4, 1941).
I have also found that the Respondent discriminatorily
discharged three employees who were on layoff status. I
shall recommend that the Respondent be ordered to offer
them restoration to layoff status, unless on the basis of
their seniority they would have been recalled absent the
discrimination against them, in which case to offer
immediately to recall them to their former jobs, or to
substantially equivalent jobs, without prejudice to their
seniority and other rights and privileges and to make them
whole for any loss of earnings suffered by reason of the
discrimination against them, plus interest at 6 percent per
annum . F. W. Woolworth Company, 90 NLRB 289 ( 1950);
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER22
The Respondent, Aeroglastics, Inc., Bucyrus, Ohio, its
officers, agents, successors, and assigns , shall:
22 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 Board' s Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be waived for all purposes.
1165
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee to discourage membership in or support of
District Lodge 50 of the International Association of
Machinist and Aerospace Workers, AFL-CIO, or any
other union.
(b) Encouraging employees to establish a shop commit-
tee or soliciting and promising to remedy employee
complaints for the purpose of undermining union organiza-
tional efforts.
(c) Coercively interrogating employees about their or
other employees' union activities.
(d) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Shirleen Mathews, Thelma Shaw, and Mary
Chatman restoration to layoff status, unless on the basis of
their seniority they would have been recalled absent the
discrimination against them, in which case immediately
offer to recall them to their former jobs, or to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for their
lost earnings in the manner set forth in the section of this
Decision entitled "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 records necessary to
analyze any amount of backpay which may be due under
the terms of this Order.
(c) Post at its plant in Bucyrus, Ohio, copies of the
attached notice marked "Appendix." 23 Copies of the
notice, on forms provided by the Regional Director for
Region 8 , after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
23 In the event the Board 's Order is enforced by a Judgment of the
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.