Allied Drum Service, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1970

180 N.L.R.B. 815 (N.L.R.B. 1970)

ASTRO CONTAINER COMPANY
Astro Container Company, a Division of Allied Drum
Service , Inc. and Julius L. Moye, Jr., and Arnold
Roe, Jr. Case 9-CA-5071-1,-2
January 20, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 7, 1969, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended they be dismissed.
Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed an
answering brief to the limited exceptions of the
General Counsel and cross-exceptions to the Trial
Examiner's Decision 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations, to the extent consistent with the
Decision herein.'
The Trial Examiner found that about October 16,
1968, Plant Manager Wood told employee Roe that
Wood needed someone to inform him of what was
going on in the plant. In the same conversation
Wood commented that "somebody was trying to
start a union," and also asked Roe if anyone had
talked to Roe "about union activities." The Trial
Examiner found that the question to Roe regarding
"union activities" was coercive as it invaded Roe's
right not to disclose anything about employee efforts
'In agreeing with the Trial Examiner that Respondent had knowledge of
Roe's union activity and that such activity was a basis for his discharge,
we rely only in part upon the Board 's small plant rule. Our primary
reliance is upon the inferences to be drawn from numerous violations of
Section 8 (a)(I) involving Roe and Respondent 's supervisors of
Respondent 's knowledge of union activity, as set forth in the Trial
Examiner' s Decision , and the additional conduct violative of Section
8(a)(1) found below . Moreover , we find it unnecessary to and do not rely
upon the Trial Examiner's finding that Roe was "a leading union
advocate."
815
to organize, but found Wood's preceding remarks
not coercive and thus not violative of Section
8(a)(1). Similarly, the Trial Examiner found that the
Respondent informed Roe on January 9, 1969, that
union activity had started up again and asked Roe if
Roe had been solicited to sign a union card. Wood
also mentioned to Roe that Wood understood union
activity was starting up again. The Trial Examiner
found that the first question was coercive within the
meaning of Section 8(a)(1), but that the second
remark was not coercive. We disagree that the
conversations of Wood with Roe on those two dates
can be fragmatized. In our view, the conversations
must be viewed in their entirety, and the
conversations as a whole were violative of Section
8(a)(1) as they not only constituted unlawful
interrogation , but were an effort to encourage
employee surveillance and their effect was also to
create an impression of surveillance.
The Trial Examiner further found that on or
about October 21, Personnel Manager Tessendorf
was introduced to Roe by Wood as an ex-boxer who
"had thrown more unions out the back door than I
[Wood] have ever seen ." The Trial Examiner
concluded that this statement was not coercive and
did not demonstrate union animus . We disagree. We
are of the opinion that Wood's statement would
reasonably be interpreted by Roe that the
Respondent would use force to discourage the
Union, and accordingly we find that such statement
was violative of Section 8(a)(1) of the Act.
The Trial Examiner also found that about
December 3, 1968, Wood's' statement to Roe that
Negroes were "behind this thing," and that Wood
intended to fire some of them was not a threat of
reprisal or otherwise coercive. The Trial Examiner
reasoned that the words "this thing" were too
ambiguous to reasonably imply that they referred to
union activity. In view of the fact that this
conversation followed several instances of
interrogations of Roe regarding the Union, we find
that Roe would reasonably infer that "this thing"
referred to union activities, and that the
Respondent's remarks "to fire some of them"
necessarily implied that Roe and other employees
would be discharged if they engaged in union
activities. Accordingly, we find, contrary to the
Trial Examiner, that the above conversation with
Roe was violative of Section 8(a)(1).
The Trial Examiner found that at some time
during the lunch period on February 5, 1969, Wood
summoned Roe to Wood's office and told Roe, in
the presence of Tessendorf, that Wood had
ascertained that Roe was behind Wood's
"problems" and thereupon discharged Roe. Wood
also said that he will put it "down on the record"
that Roe damaged 110 drums. When Roe replied
that "according to law" anyone could belong to a
union , Wood answered that "there would be no
union in here ." At this Roe stated that he was going
into the plant to obtain names of employees who
180 NLRB No. 123
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would "back [him] up in court on this thing or the
Labor Board ." Wood, however, forbade Roe to
return to the plant or to talk to anybody else. At
this point Tessendorf "grabbed" Roe by the arm
and "slung" Roe "across the room," causing Roe to
fall over a chair. Then Tessendorf and Wood
"charged" Roe and caused physical injury.
Following this, Wood said that if Roe attempted to
talk to anyone Wood would call the police and
assert that Roe started a fight. Thereupon
Tessendorf accompanied Roe to Roe's machine and
then to the parking lot, at the same time denying
Roe an opportunity to speak to anyone. Roe then
departed from Respondent' s premises.
The Trial Examiner concluded that the above
assault upon Roe did not constitute an unfair labor
practice because Roe's discharge placed him under
obligation to leave the premises and deprived him of
the right to insist upon returning to the plant to
speak to employees. We do not agree. We are of the
opinion that it is clear from the findings of the Trial
Examiner that Roe did not insist on going into the
plant, but simply made a statement to that effect
and that no overt act to re-enter the plant had been
made when Roe was assaulted. We further find that
a consideration of all the circumstances leads to the
conclusion that the real reason for Roe's assault was
to discourage him from exercising Section 7 rights
protected by the Act and not because he had insisted
on entering , or had attempted to reenter, the plant.
Accordingly, we find that the Respondent 's assault
upon Roe was violative of Section 8( a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Astro Container Company, a Division
of Allied Drum Service, Inc., Evendale, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Reletter paragraph 1(c) as paragraph 1(f) and
add the following new paragraphs 1(c), 1(d), and
1(e ).
"(c) Engaging in surveillance and creating the
impression of surveillance to its employees
concerning their and other employees' union
membership, activities, and desires.
"(d) Threatening to discharge or otherwise
discriminating against any employee because of his
activity on behalf of any labor organization.
"(e) Assaulting its employees to discourage them
from engaging in protected activity."
2. Insert as the third, fourth, and fifth indented
paragraphs of the Appendix attached to the Trial
Examiner's Recommended Order the following three
indented paragraphs:
WE WILL NOT engage in surveillance or create
the impression of surveillance to our employees
concerning their and other employees' union
membership, activities, and desires.
WE WILL NOT threaten to discharge or
otherwise discriminate against our employees
because of their activity on behalf of any labor
organization.
WE WILL NOT assault our employees to
discourage them from engaging in protected
activity.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case brought under the provisions of
Section 10(b) of the National Labor Relations Act, herein
called the Act. 29 U.S.C. 160(b). It was commenced by a
complaint issued on April 23, 1969, by the General
Counsel of the National Labor Relations Board, through
the Regional Director for the Ninth Region (Cincinnati,
Ohio). That complaint names Astro Container Company,
A Division of Allied Drum Service, Inc., as Respondent.
It is based on separate charges filed by Arnold Roe, Jr.,
on February 25, 1969, and Julius L. Moye, Jr., on March
5, 1969.
In essence the complaint alleges that Respondent has
violated Section 8(a)(1) and (3), and that such conduct
affects commerce within the meaning of Section 2(6) and
(7) of the Act. Respondent has answered admitting some
facts but putting in issue the commission of any unfair
labor practices.
Pursuant to due notice this case came on to be heard,
and was tried before me, on June 10 and ll, 1969, at
Cincinnati, Ohio All parties were represented at and
participated in the trial, and were granted full opportunity
to adduce evidence, examine and cross-examine witnesses,
submit briefs, and argue orally. When the General
Counsel rested, and again when the case closed,
Respondent moved to dismiss. These motions were denied
on the ground that I could not rule as a matter of law
that the General Counsel had failed to establish a prima
facie case. Briefs have been received from the General
Counsel and the Respondent.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Kentucky corporation, is engaged at
Evendale, Ohio, in manufacturing steel drums and
containers. During the year preceding April 23, 1969, the
date of the complaint, it purchased and received materials
valued in excess of $50,000 directly from points outside
the State of Ohio. I find that Respondent is an employer
as defined in Section 2(2), and is engaged in commerce
within the meaning of Section 2(6) and (7), of the Act,
and that it will effectuate the purposes of the Act to assert
jurisdiction over Respondent in this proceeding
ASTRO CONTAINER COMPANY 817
II. THE LABOR ORGANIZATION INVOLVED
Joint Council No. 26, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES AS PRESENTED BY
THE GENERAL COUNSEL
This case involves the issues of whether Respondent (1)
Coercively interrogated its employees about their union
activities; (2) Threatened employees with reprisals for
favoring the Union; (3) Conveyed the impression of
having engaged in surveillance of the union activities of its
employees; and (4) Discharged two employees because of
their union activities.
A. The Discharge of Julius L. Moye. Jr.
In early November 1968, Respondent's employees John
Green and John Bryant telephoned to James Felder, an
organizer of the Union, requesting that Felder organize
Respondent's employees. Thereafter Felder initiated a
campaign to organize said employees . During the course
thereof, i.e., in November and December, Felder
contacted said Green and Bryant and also employee Julius
Moye, Jr. During this period Felder saw Moye two or
three times a week and gave Moye some union
authorization cards. Moye returned to Felder 10 or 15
such cards signed by employees.
Employee Carl Johnson spoke to Moye about the
Union and also was present when Moye on five or six
occasions obtained signatures to authorization cards in
November 1968. This occurred during nonworking time
on the shipping dock. No supervisor was present on any
of these occasions. John Green, another employee, also
testified that he observed Moye obtain signatures to
authorization cards during lunchtime in November and
December 1968. One of these cards was signed by
employee Bernard Burckhard upon Moye 's solicitation.
Moye started working for Respondent on June Il,
1968. When the Union launched its drive to organize
Respondent ' s employees , Moye actively assisted in this
endeavor. He spoke to 18 or 20 employees on behalf of
the Union. At that time the complement of employees was
55
Sometime in November or December 1968, Richard G.
Tessendorf, Respondent ' s personnel manager , spoke to
Moye in the presence of Geoffrey Wood, its plant
manager . Among other things Tessendorf related that
benefits would improve "in the future" and inquired if
Moye had any hard feelings because Moye was
unsuccessful in bidding for a leadman's job. Moye replied
that he had got over any bitterness in not becoming a
leadman.
About December 10, 1968, Tessendorf again spoke to
Moye in the presence of Wood. This time Tessendorf
informed Moye that the latter ' s work was unsatisfactory.
Wood accused Moye of " messing up some screens."
Moye denied this, claiming that "whoever had cleaned the
screens was the one that messed them up ." However,
Moye did tell Wood that Moye "caused three screens to
be messed up" because Moye " was told " to use specific
mineral spirits, which turned out to be the wrong kind, in
cleaning the screens. Then Wood said that he was not
satisfied with Moye's screening. However Moye defended
himself by insisting that he was a shipping department
employee and did not "get a chance to screen." Prior to
this, in November 1968, Wood had warned Moye that
Moye did his screening work "like I [Moye] didn't want
to do it." Moye replied that Wood should fire him if
Wood was not satisfied with Moye's work.
On the Friday before December 17, 1968, Tessendorf
told Moye that the former wanted to transfer Moye to the
paint department on the following Monday. Moye
answered that he preferred to remain in the shipping
department and suggested that he would look for another
job rather than do painting work. Nevertheless Tessendorf
directed Moye to report to the paint department on the
following Monday because, as Tessendorf stated, Moye
and Shipping Department Supervisor Ernie Couch were
not getting along too well. Shortly thereafter Moye told
Couch, his supervisor, that Moye "would be looking for
another job" because Moye had a distaste for the paint
department.
Nevertheless Moye did report for work in the paint
department on the following Monday, December 16, 1968.
A few minutes later Moye was assigned to assist in
screening work because one of the screening employees
failed to show up for work. Thereupon Moye worked at
screening drums near the warehouse the remainder of the
day. Barrels screened by Moye were properly processed,
according to him. Screening is a process whereby writing
is placed on the side of a drum.
Moye also worked at screening the next day, Tuesday,
December 17, 1968, producing 600 or 700 barrels. At
about 4 p.m. Personnel Manager Tessendorf told Moye
that Supervisor Couch was dissatisfied with Moye's work
and that Moye was being discharged "for the better of the
morale of the plant." Further, Tessendorf added that
Moye had been warned previously twice before for
unsatisfactory work. Responding, Moye asked how his
screening could be called unsatisfactory when he had been
working at it only 2 days.
Moye testified that Supervisor Couch actually had
expressed satisfaction with Moye's work in the shipping
department. However, Bob Gayhart was Moye's
supervisor on December 16 and 17 in the screening
department. Moye also testified that he trained new
employees hired in the shipping department, and that he
"filled in" briefly for Supervisor Couch on three or four
occasions when Couch had to leave the plant. But he did
not act as a supervisor during these "filling in" periods.
When Moye picked up his paycheck on Wednesday,
December 18, 1968, he encountered Supervisor Couch.
Although Moye accused Couch of causing his discharge,
Couch merely replied, "Do you believe that?"
Sometime prior to his discharge on December 17, 1968,
Moye had been reprimanded by Plant Manager Wood for
talking too much to employee Green, who worked about
100 feet from Moye, and suggested that Moye spend his
moments of inactivity during working time in sweeping
with a broom some wire waste "coming off those rings."
Moye answered that his conversation with Green took but
5 or 10 seconds and did not interfere with the production
of either party to the conversations. Tessendorf denies that
he told Moye to do any sweeping. Even if I credit Moye,
I find that Tessendorf's statement is neither an unfair
labor practice nor evidence of antiunion hostility
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Discharge of Arnold Roe. Jr.
Roe was hired by Respondent on October 7, 1968, as a
die setter in the press department. He became active in
seeking signatures to union membership cards from
employees at Respondent's plant. In about January 1969,
he obtained six or seven of such unsigned cards from
employee John C. Bryant, and after that returned them,
signed, to Bryant, who also engaged in union organizing
activity. Roe also "talked union" to some employees,
including Bernard Burckhard. Roe also had obtained three
blank cards from Burckhard.
Among others, Roe had "conversations .... about the
Union" with employee Carl Johnson in the men's room,
the lunchroom, or on the shipping dock. Roe also during
the lunch period obtained signatures to six cards at the
request of employee Green, an active union adherent, and
turned in such signed cards to Green. These blank cards
had been given by Green to Roe. This occurred about the
middle of January 1969. Roe succeeded in signing up 10
employees in all, one card being his own.
At the time of hiring Roe, Plant Manager Wood told
him that Wood had checked Roe's service record at
Meyer Drum Company, a former employer of Roe, and
found it quite satisfactory. Roe's starting rate of pay was
$3 an hour. About October 16, 1968, Wood told Roe that
Roe was a very dependable and excellent worker.
However, about December 3, 1968, Wood informed Roe
that Roe's wages were being reduced 55 cents an hour
unless Roe furnished information Wood wanted as to who
was behind the union movement at the plant. Roe replied
that he would quit work about January 15, 1969, because
of this cut, but would work until then because "the
holidays coming up" caused him to need money badly.
About January 3, 1969, Wood asked Roe to "stay on"
because "things were going to be better." Although Roe
asked if his pay cut would be restored, Wood answered
that he would discuss it "later."
About January 9, 1969, in the presence of Personnel
Manager Tessendorf, Wood told Roe that union activity
was "starting up again" and asked Roe if anyone had
solicited Roe to sign a union card. Roe acknowledged that
employees talked about the Union during the lunch
period, and mentioned that, "according to law, anyone
may belong to a union."
Then on about January 29, 1969, Wood told Roe that
Roe was being transferred to the silk screen machine and
that, "if it worked out," Roe's pay cut would be restored.
Roe answered that he preferred to remain in the press
department. Roe's work on the silk screen machine
continued until February 5, 1969, under Supervisor Ernie
Couch.
At some time during the lunch period on February 5,
1969, Wood summoned Roe to Wood's office and told
Roe, in the presence of Tessendorf, that Wood had
ascertained that Roe was behind Wood's "problems" and
thereupon fired Roe. Continuing, Wood said that he will
"put it down on the record" that Roe damaged 110
drums. When Roe replied that, "according to law,"
anyone could belong to a union , Wood answered that
"there would be no union in here." At this Roe stated
that he was going into the plant to obtain names of
employees who would "back me [Roe] up in court on this
thing or the Labor Board." But Wood forbade Roe to
return to the plant or to talk to anybody else.
At this point Tessendorf "grabbed" Roe by the arm
and "slung" Roe "across the room ," causing Roe to fall
over a chair. Then Tessendorf and Wood "charged" Roe
and "bruised [Roe] quite a bit." Following this, Wood
said that if Roe attempted to talk to anyone Wood would
call the police and assert that Roe started a fight.
Thereupon Tessendorf accompanied Roe to Roe's
machine, where Roe picked up his coat, and then to the
parking lot, at the same time denying Roe an opportunity
to speak to anyone. Roe then departed from Respondent's
premises.
According to Roe he had experienced difficulty on that
day, February 5, 1969, in running the drums in that "this
certain printing that they were printing on these drums,
they had never been able to run them .... good ... "
C. Interference, Restraint , and Coercion
Shortly after Personnel Manager Tessendorf was hired
Plant Manager Wood introduced him to employee Roe as
an ex-boxer who "had thrown more unions out the back
door than I [Wood] have ever seen." I find this is not a
coercive statement within the meaning of Section 8(a)(1)
of the Act, and that it does not demonstrate antiunion
animus.
About October 16, 1968, Plant Manager Wood praised
employee Roe as a worker and told Roe that Wood
needed someone to "let him know what was going on
through the plant" and also Wood "wanted to know had
anybody talked with [Roe] about union activities " Wood
added that "somebody was trying to get a union started."
Roe replied that someone asked him if Roe was interested
in the Union, but that "no one person" was getting it
started to his knowledge. On a few occasions thereafter
Wood again asked Roe "if [Roe] had found out
anything," and if anyone had solicited Roe to sign a card.
Roe replied that he had not been solicited to sign
About December 3, 1968, Wood told Roe that Wood
had ascertained that "the negroes was behind this thing,"
and that Wood was going to fire some of them, and that
Wood was cutting Roe's wages 55 cents an hour unless
Roe furnished the information Wood wanted. On or about
January 9, 1969, Wood asked Roe, in the presence of
Tessendorf, if anyone had asked Roe to sign a union card,
and added that he, Wood, understood "union activity ...
was starting up again." I find this last reference to union
activity does not amount to giving an impression of
surveillance.
IV. RESPONDENT'S EVIDENCE
A. The Testimony of Earl McCoy
Earl McCoy is production foreman in the Lengths Line,
the National Line, the punch press department , and the
double seaming department . Among others , he supervised
employee Arnold Roe, Jr ., from October 1968 to January
1969, who worked for him in the punch press and double
seaming departments . Roe had been hired because he had
5 years' experience with another employer in the drum
industry . Roe first started in the punch press department.
McCoy observed that Roe's alleged " ability did not
coincide with the experience he [Roe] was supposed to
have ." On one occasion , for example, Roe did not
understand what McCoy was talking about when he
assigned Roe the job of putting flanges in covers. At
another time Roe used oily gloves in inserting a lining on
lids for drums intended to contain edible products, thus
potentially exposing such products to contamination. As a
result McCoy rejected about 35 to 40 of these lids and
sent them to Queen City Barrel as unusable by
ASTRO CONTAINER COMPANY 819
Respondent. Consequently, McCoy transferred Roe, with
Plant Manager Wood's approval, to the double seamer.
Nevertheless, Roe's "abilities [on the double seamer]
were far below those of men that were drawing quite a bit
less [pay per hour]." Further, Roe was being paid $3 an
hour while other employees performing the same work
received $2.30 or $2.35 an hour; and these men
complained of this to McCoy. Notwithstanding Roe's
faults, McCoy did sometimes work him overtime. In
addition, Roe was "no speed demon" and produced less
parts per hour than "a lot of men ... making less money
on the hour" for the same work on the double seamer.
The deficiencies in Roe's performance described above
induced McCoy to complain thereof to Plant Manager
Wood. Thereafter McCoy moved Roe back to the punch
press room. But Roe was still "inadequate" as far as
McCoy was concerned. McCoy often warned Roe about
Roe's deficiencies , including the use of oily gloves on
containers for edible products.
About December 18, 1968, Roe informed McCoy that
union activities were "transpiring inside the plant," that
McCoy had told Wood and Personnel Manager
Tessendorf about it but they would not listen to him. This
was the first time McCoy heard of such activities there.
McCoy replied that "if the fellows want a union in the
plant that's up to them." Further, Roe stated that he had
been solicited to sign up employees for the Union but that
Roe "wanted no part of it." At this point Roe presented
McCoy with a blank union membership card, adding that
he, Roe , did not desire to sign it because he "didn't want
to get involved." McCoy reported this conversation "to
management."
Later Roe told McCoy that Respondent had several
employees who should be fired. Naming certain employees
as leaders in the union movement , Roe suggested "it
would be best" for the Company to get rid of them. But
they were never fired. McCoy also reported this talk to
Wood and Tessendorf. However, McCoy did not
recommend that Roe be discharged notwithstanding Roe's
faults as a worker, or that Roe's hourly rate be reduced.
Although McCoy did not supervise Julius Moye, Jr.,
McCoy observed Moye several times talking to men in
McCoy's department and thus hindering them from
working. McCoy complained of this to Couch, Moye's
foreman, and also reported it to Wood and Tessendorf.
B. Richard G. Tessendorf's Testimony
1. As to Moye's discharge
Tessendorf has been Respondent ' s personnel manager
since October zl, 1968.
On October 23, 1968, Tessendorf introduced himself to
employees individually, including Julius L. Moye, Jr.
During the conversation Moye expressed interest in a silk
screen job. Later that day Tessendorf met with Moye in
the presence of Plant Manager Wood. Wood stated that
Moye was not doing a satisfactory job and that no
changes could be made until Moye "showed a more
satisfactory work effort." After Moye stated that he
thought his work ' was satisfactory, Wood commented that
he had seen Moye walking in other departments away
from his work, thus neglecting his work.
Wood and Tessendorf again met with Moye on
November 19, 1968 . Wood reiterated his dissatisfaction
with Moye's performance, asserted that this was the
second time that it was being mentioned to Moye, and
added that "something would have to be done" unless
Moye improved. Although Moye defended his work as "a
good job," he also inquired why Wood had not fired him.
Wood replied that firing was distasteful to him and that
he hoped this meeting would relieve Wood of the necessity
of such action by encouraging Moye to do better work.
Tessendorf met with Moye on December 17, 1968, with
Wood coming "in and out" at times. Wood again stressed
that Moye had not improved, that Moye had "done work
improperly," and that it became necessary to discharge
Moye. Thereupon Tessendorf discharged Moye.
2. As to the discharge of Arnold Roe, Jr
On December 3, 1968, Tessendorf and Wood met with
Roe. Stating that Roe's work performance had not been
that which was expected, Wood told Roe that the latter's
$3-an-hour rate was not justified and that it was being
reduced to $2.45 an hour as others doing the same work
as Roe were receiving this lower rate. Roe responded that
he was "capable of doing better work" but that he would
probably quit around the first of the year.
At Roe's request, Tessendorf and Wood met with him
on December 18, 1968. When Roe told them about union
activities in the plant, they replied they were not
interested. Roe added that he was not interested in the
Union. Finally, Roe mentioned the names of the three
employees he believed should be discharged "because of
their intense union activities." None of them, however,
was discharged.
Wood and Tessendorf met with Roe on January 20,
1969. Wood stated he was giving Roe another chance"
and asked Roe if Roe could work on silk screening. Upon
receiving an affirmative answer, Wood told Roe that Roe
would be assigned to such work. Roe replied that he
wished Tessendorf and Wood had more faith in his ability.
Finally, Tessendorf and Wood met with Roe on
February 5, 1969. Wood stated that "things had not
gotten any better," that "a hundred plus drums" had been
scrapped by Roe's silk screening operation, and that,
therefore Wood was discharging Roe. Although Roe
asked to be laid off, Wood denied him this request.
Thereupon Wood asked Tessendorf to escort Roe out of
the plant. Tessendorf did so, first stopping with Roe at
Roe's work area where Roe picked up his coat.
As they left the plant Roe insisted to Tessendorf• that
Wood did not give the true reason for the discharge, and
that Tessendorf would be subpoenaed to "go to court."
Tessendorf offered no comment to these remarks.
However, Tessendorf testified that at no time did he or
Wood strike or touch Roe at this meeting of February 5,
1969.
C. The Testimony of Ernest Couch
1. As to Moye's discharge
Couch is a supervisor in Respondent's finishing
department. This department includes a portion of the
paint department, the drum finishing department, drum
storage, and silk screening. Julius L. Moye, Jr., worked
under him. Sometime in September 1968, - Couch
suggested to Moye that Moye had the possibility of
"making a position for himself-' at the plant. Moye was
"enthused about the possibility." At this time Moye was
employed in the shipping department.
Later Moye told Couch that Moye had heard that
Respondent intended to hire a leadman and inquired
about his chances to obtain such a job. Couch told Moye
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "we will just have to wait and see." Thereafter Couch
reported this conversation to Plant Manager Wood, who
assured Couch that any recommendation made by Couch
would be considered. But Moye did not get this job.
After this Couch observed "a drastic change" in
Moye's work habits and attitude. Moye "showed a
tendency to be very belligerent . [and] showed very
little, if any, initiative on his own " This was twice
reported to Wood by Couch. In addition, Couch called
Moye's above "drastic change" to Moye's attention.
Further, other foremen reported to Moye that Moye often
left his work area to talk to other employees. Couch also
talked to Moye about this. Finally, Couch also talked to
Moye about smelling alcohol on Moye's breath, and told
him that drinking on the premises was "a direct cause of
discharge." Moye testified that employees as a group were
told this but that he was not told this individually.
In late October 1969, Couch placed Moye "in to the
area of silk screen." At first Moye's work on this
operation was satisfactory. However, about November 15,
1968, Couch experienced difficulty in silk screening a
particular order of drums during an operation following
Moye's work of cleaning silk screens. It was finally
determined that the difficulty was caused by a dirty silk
screen which Moye had improperly cleaned. As a result 15
or 20 drums were ruined. Couch reported this to Plant
Manager Wood. Also, the silk screen was ruined; it cost
$35. Nevertheless Couch did not recommend that Moye
be discharged because of this. In addition, Couch
concluded that from and after November 15 the quality of
Moye's work was very poor. This conclusion was reported
to Wood by Couch.
Couch was not "directly responsible" for Moye's
discharge although he recommended such discharge about
the first part of November 1968.
2. As to Roe's discharge
Couch also supervised Arnold Roe, Jr., on the silk
screen operation for a week or two prior to Roe's
discharge on February 5, 1969. However, it became
evident to Couch after the first day that Roe was not a
silk screen operator, that he was not familiar with
Respondent's particular type of screening, and that he
"didn't show me [Couch] any knowledge of ever having
been assigned as a silk screen operator." Nevertheless
Couch directed Roe to assist employee Rash on the silk
screen until Roe became familiar enough to do the silk
screening himself.
On February 4, 1969, Respondent was running the silk
screen machine on a product which required two distinct
silk screen operations or phases. Rash was assigned to
operate the machine and Roe was directed to help him.
Roe's function was to pull and then return the silk screen
frames into position on each operation. Couch instructed
Roe on how to do this. About 400 to 450 drums were silk
screened that day. Only the first phase of the operation
was performed on February 4.
The second phase was performed on February 5. After
the first and second drums were completed on this day it
became obvious to Couch that registration problems
would arise . (Registration involves imprinting over the top
of a print already made on a drum.) This was because it
became apparent that the silk screen frame had not been
pulled back into position the previous day on each
operation. Accordingly, Couch reported this to Plant
Manager Wood. When Wood investigated the matter he
and Couch determined that the frame had not been
properly pulled back on the first phase the day before.
Nevertheless Couch continued to have employees silk
screen these drums for the remainder of the day.
However, 108 drums were ascertained to be unacceptable.
Notwithstanding this Couch did not recommend that Roe
be discharged.
D. Geoffrey Wood 's Testimony
1. As to Moye's discharge
Wood is Respondent's plant manager. In September
1968, Wood learned from Moye's foreman that Moye was
disappointed in being passed over for a vacancy in the
position of leadman. As a result Wood spoke to Moye on
September 11, telling Moye that Wood made the
decisions, and that Wood appointed another employee
(Henderson) as leadman, but that within a week another
man (Heil) was coming into the plant who, Wood hoped,
would become a "leader."
Thereafter Wood observed Moye's work and concluded
that it was "completely unsatisfactory." Thus Moye
"wandered around continuously out of [Moye's]
department" and sometimes Moye "sat down in the
shipping department doing nothing." On two occasions
Wood told Moye to "get up and start working."
However, Moye received a 15 cents an hour raise during
his employment with Respondent.
After this, on October 23, 1968, Wood spoke to Moye
in the presence of Personnel Manager Tessendorf. Again
Wood "warned" Moye about Moye's "past work," and
added that Moye would be given an opportunity to learn
how to operate and set up the silk screen machine From
then until November 19, 1968, Wood noticed that Moye's
work habits and general attitude towards his work had not
changed. Further, Moye's supervisor, Couch, reported to
Wood that Moye still remained an unsatisfactory
employee and was not doing a good job. In addition, the
supervisor of the press department, McCoy, complained to
Wood that McCoy was continuously in the press
department, where he had no right to be, talking to the
press operators
Finally, on November 19, 1968, Wood gave Moye, in
the presence of Tessendorf, "final warning" that Moye's
work on the silk machine and his work habits were
unsatisfactory. In this conversation Wood told Moye that
Moye's foreman had reported that Moye had ruined a silk
screen because Moye had not cleaned it with the proper
solvent, and that this was "one of the many incidents"
which led to this final warning.
Yet Moye continued after November 19 to be
completely unsatisfactory (1) as a worker, (2) by leaving
his department to talk to others, and (3) often sitting
down. This information was conveyed to Wood by Moye's
foreman, but Wood's personal observation of Moye
confirmed this appraisal by the foreman. In addition, the
foreman and also a Mr. Martin Paul informed Wood that
Moye had a drinking problem.
During the week preceding December 17 Wood decided
to dismiss Moye "at the earliest opportunity." So on
Tuesday, December 17, 1968, the end of Respondent's
payweek, Wood called Moye to Tessendorf's office where
Wood told Tessendorf to discharge Moye. As a result
Tessendorf fired Moye
ASTRO CONTAINER COMPANY 821
2. As to Roe's discharge
Approximately 3 days before Roe was hired on October
7, 1968, Wood questioned Roe about a statement on
Roe's application for work asserting that Roe worked for
a steel drum manufacturer on the West Coast. Detailing
his experience in this field Roe maintained that he "knew
the entire operation of the manufacturing of a drum."
After checking with Roe's previous employer in California
Wood hired Roe at $3 an hour as a set-up man and
operator in the press department. The usual starting rate
for new hires by Respondent is $2 an hour, while the
"operating rate" in the press department is $2.45 an hour.
After Roe commenced working for Respondent Wood
observed that Roe had no experience with presses, was
unfamiliar with the nomenclature of press parts "which
are common knowledge in the industry," and also was a
slow worker. Further, Roe's foreman reported the same
deficiencies to Wood.
Wood spoke to Roe on about December 3, 1968, with
Personnel Manager Tessendorf present. In this
conversation, Wood reduced Roe's rate of pay to $2.45 an
hour, the highest paid to any other press department
employee, because Roe was unable to do the work which
Roe claimed he could perform. Roe replied that he would
look for another job in early January 1969. Prior to this
two employees in the press department, one paid $2.35
and the other $2.45 an hour, had complained to Wood
that Roe was being compensated at the rate of $3 an hour
when they were doing better work than Roe. Prior to
December 3 Wood also observed that Roe's work in the
double seaming department was "of no assistance to the
crew on that operation." Further, Foreman McCoy
informed Wood that Roe's work "in the double seaming
area" was not only unacceptable but also "worse" than it
had been "in the press area."
On December 18, 1968, Roe told Wood, with
Tessendorf present, that there was union activity in the
plant but that Roe was against the Union. Wood stated he
was not interested, that he hoped a union was not
necessary, and that if the employees wanted a union it was
no concern of Wood's. Then Roe mentioned employees
Roquarth, Sparks, and Bir as prominent in the union
management at the plant. At no other time did Wood
discuss the Union with Roe.
On January 20, 1969, Wood again spoke to Roe.
Personnel Manager Tessendorf was also present. This
time Wood told Roe that Roe was being transferred to
the silk screen machine because Respondent desperately
needed a silk screen operator. On February 4 Wood
observed Roe performing the function of pulling back the
carriage on the silk screen machine.
On February 5, 1969, Foreman Couch informed Wood
that Couch was experiencing registration trouble on the
silk screen job then being performed, i. e., "the second
imprint was not going on top of the first imprint." Wood
nevertheless did not stop the operation but, instead,
authorized it to continue while he sought to determine the
cause of the trouble. When the last drum had been run
Wood decided that Roe was responsible for the trouble
because Roe had not pulled the frame back on the first
phase of the operation every time. But Wood did not give
Roe an opportunity to defend himself, thus taking the
word of the operator. One hundred and eight out of a
total of 400 drums worked on were therefore so spoiled
that they had to be scrapped. See Respondent's Exhibits I
and 2 for imperfect imprints and Exhibit 3 for a proper
imprint. Good drums are valued at $6.20 each. Their
scrap value is 15 or 20 cents each.
(Roe denied that he pulled the frame at all on February
4, 1969. Roe also testified that on this day one Collins,
and, for a short while, one Kile, performed this operation,
and that he, Roe, fed drums into the silk screen machine
not only on February 4 but also on February 5.)
Following Wood's determination on February 5 that
Roe was responsible for the scrapping of 108 drums,
Wood informed Tessendorf that Wood intended to fire
Roe for this. Then Wood told Roe, in the presence of
Tessendorf, that Roe was discharged for ruining 108
drums. Although Roe begged to be laid off, Wood refused
this request Then Wood instructed Tessendorf to see that
Roe left the premises However, neither Wood nor
Tessendorf struck, touched, or laid a hand on Roe.
V. CONCLUDING FINDINGS AND DISCUSSION
A. As to the Discharge of Julius L Moye, Jr.
It is my opinion, and I find, that Moye was discharged
for cause, i.e., for unsatisfactory work and for straying
away from his work area to talk to employees; and I
further find that these reasons were not adopted as
pretexts to disguise another ground, namely union activity,
as the true motive prompting his termination as an
employee. These ultimate or concluding findings are based
on the entire record and the facts narrated below which I
find as subsidiary facts.
Initially I find that Moye was active in the union
movement at the plant, and that Respondent had
knowledge thereof. Although the record discloses no
affirmative evidence of such knowledge, I infer that
Respondent was aware of Moye's activities by reason of
the fact, which I find, that Respondent operated a small
plant employing about 55 persons. Under the Board's
small plant rule , employers operating a small plant may
be found to be cognizant of union activity in the plant
solely by reason of its small size. Angwell Curtain
Company, Inc. v. N.L.R B, 192 F.2d 899, 903 (C.A. 7);
American Grinding & Machine Co, 150 NLRB 1357,
1358, 1366. This finding is not vitiated by the fact, which
I find, that Moye engaged in union activity during
nonworking hours and that his said conduct was not
observed by any supervisor of Respondent. American
Grinding & Machine Co., 150 NLRB 1357, 1366.
Also, I find that neither union membership nor union
activity, nor both, shield or insulate an employee against
discharge for cause. Mitchell Transport, Inc., 152 NLRB
122, 123, 358 F.2d 281 (C.A. 7); Wellington Mill v
N.L.R B., 330 F.2d 579, 586-587 (C.A. 4); N L R.B v.
Bangor Plastics, Inc., 392 F.2d 772, 776 (C.A. 6);
Sutherland Lumber Company, Inc., 176 NLRB No. 143,
at p. 22 of TXD. And I expressly rule as a matter of law
that the burden rests upon the General Counsel to show
that an employee was discharged for union membership,
or activity, or both. N.L.R.B. v. Murray Ohio
Manufacturing Company, 326 F.2d 509, 513 (C.A. 6).
Further, I find that Moye's work was unsatisfactory
and that he wandered from his work area to speak to
other employees, and that these faults constitute cause for
discharge The General Counsel's evidence not consonant
with this finding is not credited. And I find that Moye
was warned about the said failure to perform satisfactorily
and to remain at his work station . In this connection, I
find that Moye's deficiencies constitute cause for
discharge, and that I may not review or pass judgment on
the soundness, justice, or harshness of an employer's
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision to discharge for cause when a lesser penalty may
arguably seem preferable. N.L.R.B. v. United Parcel
Service, Inc.. 317 F.2d 912 (C.A. 1); Indiana Metal
Products Corp v. N.L.R.B, 202 F.2d 613, 617 (C.A. 7).
Additionally, I find that Moye's faults were not seized
upon as a pretext to cover up a discharge for union
membership, or union activity, or both. For I find that the
real reason for Moye's discharge was his shortcomings as
an employee. It is true that elsewhere in this decision I
have found that Respondent entertained antiunion animus.
But this, without more, is not an unfair labor practice,
because an employer may lawfully dislike unions.
N L.R.B. v. Howard Quarries, 362 F.2d 236 (C.A. 8);
N.L.R B. v Threads, Inc.. 308 F.2d 1, 8 (C.A. 4).
Although such animus may be considered in ascertaining
the true reason for a discharge (Maphis Chapman Corp.
v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4); N.L.R.B. v.
Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5), 1 find that
such animus is not behind Moye's discharge and that the
discharge is not proximately connected to said dislike of
unions by Respondent.
Further, I find that Moye was given one raise in pay
and that some time elapsed between Respondent's
detection of Moye's faults and his actual discharge. Often
these facts indicate either satisfactory work or
condonement of unsatisfactory performance. But I find
that Moye's faults developed after the one raise he
received and persisted from then on until he was
terminated. And I find that overlooking Moye's faults
amounted to no more than benevolent patience in assisting
him to readjust himself to his work and did not, under the
circumstances, constitute a condoning or acceptance of
unsatisfactory work or a commitment to continue to
employ Moye regardless of his failings.
Finally, I have found elsewhere in this decision that
Respondent committed other unfair labor practices.
Although these are relevant in evaluating the true motive
behind Moye's discharge, I find that they did not
contribute to Respondent's decision to release Moye and
that, therefore, they are not proximately related to such
termination of Moye. Reading & Bates, Inc. v. N.L.R.B.,
403 F.2d 9 (C.A. 5).
B. As to the Discharge of Arnold Roe, Jr
On the other hand, I conclude and find that Roe was
discharged for union activity, and that the reason given to
him for his release, i.e., unsatisfactory work , is a pretext
to hide the above real reason. This finding is based on the
entire record and the following facts, which I hereby make
as subsidiary findings. Respondent's evidence inconsistent
with either said subsidiary or concluding findings are not
credited
Initially I find that Roe engaged in union activity and
that, under the Board's small plant rule, Respondent was
aware thereof. As narrated elsewhere in this decision I
have found that Respondent entertained antiunion animus
and committed unfair labor practices. While neither
dislike of unions nor engaging in unfair labor practices
alone will support a finding of a discriminatory discharge,
they may be evaluated along with other evidence in
determining the motive behind a discharge . In assessing
the evidence on this aspect of the case I find that such
antiunion hostility and the commission of other unfair
labor practices are proximately related to Roe's discharge.
Secondly, I find that Respondent interrogated Roe on
about December 3, 1968, and January 9, 1969, as to Roe's
knowledge of those behind the union movement at the
plant. Roe's failure to disclose such names, and his reply
that anyone may lawfully belong to a union, creates an
inference that Roe's conduct caused Respondent to desire
to discharge him therefor and to await an opportunity to
seize upon some lawful cause as an excuse to justify his
discharge.
It is true that Respondent was disappointed in Roe's
work abilities prior to February 4, 1969, and after
October 7, 1968, and I so find. And I find that, regardless
of its soundness, nondiscriminatory cause existed prior to
said February 4, 1969, warranting Roe's discharge. But
the failure to discharge Roe between October 7, 1968, and
January, 1969, is significant, for Roe did not engage in
union activity during this period. On this issue I find that
Roe's union activity did not commence until January
1969. It was not until after January 1969, that
Respondent became overconcerned with Roe's
shortcomings. Even then Respondent did nothing about
them, so that I find that they were overlooked or
condoned from January 1969, to the occasion of Roe's
discharge on February 5, 1969.
Then, again, I find that on February 4, 1969, someone
failed to pull back the frame on the silk screen machine,
causing defective screening which showed up on February
5, 1969, when the second phase of the screening took
place. But I find that Roe did not perform the function of
pulling back the frame; rather I find that Childs, or Kile,
or both, failed to properly return or pull back the frame,
so that they, and not Roe, are responsible for the defective
imprinting of February 5 on the drums. In this connection
I expressly find that Roe fed drums into the silk screen
machine and that he did not work at pulling back the
frame. Hence I find that Respondent gave a false reason
for discharging Roe on February 5, 1969. Assigning a
false reason for a discharge is laden with probative value
in arriving at the ultimate finding that a discharge was
induced by antiunion motives. N.L.R.B. v. Joseph Antell,
Inc., 358 F.2d 880 (C.A. l).
Further, crediting Wood to this extent, I find that Plant
Superintendent Wood observed the silk screen operation
on February 4, 1969. Yet he testified that he did nothing
to stop further production. It is difficult to understand
why he permitted the operation to continue if he observed
the employees as they worked at the machine. For if he
watched he would have noticed that the frame was not
being pulled back far enough. Thus Wood's inaction, even
on his own testimony, suggests that cause had been
discovered to discharge Roe for defective workmanship,
and that Roe would not be warned of his improper
performance lest he remove said cause. Failure to warn is
significant. E. Anthony Sons, Inc: v. N.L.R B., 163 F 2d
22, 26-27 (C.A.D.C.); N.L.R B v. Melrose Co., 351 F.2d
693 (C.A. 8); Dunclick, Inc., 159 NLRB 10, 11, fn. 1. As
found above, however, I find that Roe did not work on
the frame but, rather, fed drums into the machine.
Although not conclusive, another fact pointing to the
conclusion that Roe was discriminatorily discharged is
that Wood summarily decided that Roe was at fault
without granting Roe an opportunity to present his
version of what happened on February 4, 1969. Thus
Wood's failure to conduct a fair and objective
investigation of Roe ' s alleged poor performance is
evidence of a discriminatory intent, especially when viewed
in the context of Respondent's opposition to the Union on
whose behalf Roe was active. Norfolk Tallow Co., Inc.,
154 NLRB 1052, 1059; Jerry Davidson Buick & Service,
Inc. v. N.L.R.B., 415 F.2d 324 (C.A. 6).
ASTRO CONTAINER COMPANY 823
Further , I find that Roe's discharge furthered
Respondent ' s opposition to the Union . "Obviously the
discharge of a leading union advocate is a most effective
method of undermining a union ." N.L.R.B v. Longhorn
Transfer Service , 346 F.2d 1003, 1006 (C.A. 5).
Finally, it is not necessary that union activity be the
only reason leading to a discharge to find it
discriminatory . It is sufficient that such activity be a
motivating , or substantial reason for such termination.
N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 285
(C.A. 6); N. L.R.B. v. Symons Mfg. Co., 328 F.2d 835,
837 (C.A. 7). And I find that Roe ' s union activity was a
substantial reason for his discharge . N.L.R.B. v. Park
Edge Sheridan Meats, 341 F.2d 725, 728 (C.A. 2).
C. As to Interference, Restraint , and Coercion
1. As to interrogation and certain other alleged
coercion
for Roe's failure to furnish Wood with "the information
Wood wanted." I do not credit Roe on this issue Rather
I credit Respondent's evidence to the extent that it reveals
Roe's hourly rate was diminished because Roe's work was
not as good as what Respondent had expected and
because other employees performing the identical work at
$2.45 an hour complained about Roe's higher rate. In not
crediting Roe I have considered not only demeanor of all
witnesses on this issue, but also the fact, which I find, that
Roe had not engaged in union activity until January,
1969, and also because the "information" Wood solicited
from Roe is not further identified in Roe's testimony
narrating Wood's conversation. It is difficult to
understand why Wood should be so indefinite about a
subject resulting in a substantial reduction in Roe's
compensation.
Of course the fact that I have credited witnesses in part
only is not fatal. For a trier of facts may accept part and
reject other parts of the testimony of the witnesses.
About January 9, 1969, Plant Manager Wood told
employee Roe that union activity had started up again
and asked Roe if Roe had been solicited to sign a union
card. Since no lawful occasion for such an inquiry is
disclosed by the record, such as an attempt to ascertain
whether a union has majority status at the time of
demanding recognition , I find that this question is
coercive within the meaning of Section 8(a)(1) of the Act.
Respondent's contrary evidence is not credited. Wood also
mentioned that Wood understood union activity was
starting up again. I find this is not coercive, and does not
give the impression of surveillance.
On February 5, 1969, Wood told Roe that Roe was
behind Wood's problems. I find nothing coercive in this
statement.
About October 16, 1968, Wood told Roe that Wood
needed someone to inform him of what was going on in
the plant. I find this is not coercive. In the same
conversation Wood commented that "somebody was
trying to start a union." This, too, is not coercive, and I
so find. However, Wood at the same time also asked Roe
if anyone had talked to Roe "about union activities." I
find that this question is coercive as it invades an
employee's right not to disclose anything about employee
efforts to organize. Respondent's evidence inconsistent
therewith is not credited.
On a few occasions after October 16, 1968, Wood
asked Roe if Roe had "found out anything," and if
anyone had solicited Roe to sign a card. Respondent's
contradictory evidence is not credited. It is reasonable to
infer , and accordingly I find, that " anything" alludes to
union activity. Hence I find that the inquiry about
"anything" is coercive . In addition I find that the question
concerning Roe's being invited to sign a card is likewise
coercive.
About December 3, 1968, Wood told Roe that Wood
had found out that Negroes were "behind this thing" and
that Wood intended to fire some of them. This is not a
threat of reprisal or otherwise coercive, and I so find,
since " this thing" is too ambiguous to reasonably imply it
refers to union activity . Specifically I find no impression
of surveillance and no threat to fire for union activity.
2. As to Roe's reduction in pay
About December 3, 1968 , Roe's wages admittedly were
reduced 55 cents an hour ; i.e., from $3 to $2.45 an hour.
Roe claims this occurred because Wood was retaliating
3. As to the alleged assault on Roe
On February 5, 1969, Plant Manager Wood and
Personnel Manager Tessendorf assaulted Roe to prevent
Roe from returning to the plant following Roe's
discharge . But I find that this assault does not constitute
an unfair labor practice . This is because Roe's discharge
placed him under an obligation to leave the premises and
deprived him of the right to return to the plant to speak
to employees . G. C. Murphy Co., 171 NLRB No. 45,
TXD, affd . sub nom . Food Store Employees Union, Local
347 v. N.L.R.B., 422 F.2d 685 (C.A.D.C ). Therefore it
was not an unfair labor practice to eject Roe when Roe
insisted on entering the plant . The fact that force was used
to eject him does not alter this result.
Accordingly , I find that this incident of February 5,
1969, does not contravene the Act . More specifically, I
find that Roe was not struck because of his union
activities.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section V,
above, found to constitute unfair labor practices,
occurring in connection with its operations described in
section 1, 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.
VII. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices prohibited by Section 8(a)(1) and (3)
of the Act , I shall recommend that the National Labor
Relations Board order it to cease and desist therefrom and
to take specific affirmative action , as set forth below,
designed to effectuate the policies of the Act. Since the
discharge found to be illegal goes "to the very heart of the
Act" (N. L.R.B. v. Entwhistle Manufacturing Company
120 F.2d 532, 536 (C .A. 4)), 1 shall recommend that the
relief provided in the Board ' s Order be broad enough to
prevent further infraction of the Act in any manner. R &
R Screen Engraving , Inc.. 151 NLRB 1579, 1587.
As Respondent has discriminated against Roe in
discharging him I shall further recommend that it offer to
Roe immediate and full reinstatement to his former
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position or one substantially equivalent thereto without
prejudice to his seniority and other rights and privileges
previously enjoyed by him, and to make him whole for
any loss of earnings he may have suffered by reason of his
discharge. In making him whole Respondent shall pay to
Roe a sum of money equal to that which he normally
would have earned as wages from the date of his discharge
to the date of reinstatement, as the case may be, less his
net earnings during such period. Such backpay shall be
computed on a quarterly basis in the manner provided in
F W. Woolworth Company, 90 NLRB 289, and shall
include the payment of interest at the rate of 6 percent
calculated according to the method set forth in Isis
Plumbing & Heating Co, 138 NLRB 716. 1 shall also
recommend that Respondent preserve and make available
to the Board or its agents, upon reasonable request, all
pertinent records and data necessary to ascertain whatever
backpay may be due.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2 Respondent is an employer as defined in Section
2(2), and is engaged in commerce within the meaning of
Section 2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of
employment of Arnold Roe, Jr., thereby discouraging
membership in the Union, a labor organization,
Respondent has engaged in an unfair labor practice
condemned by Section 8(a)(3) and (1) of the Act.
4. By coercively interrogating Roe concerning his and
other employees' membership in, desires for, and activities
on behalf of, the Union, Respondent has engaged in unfair
labor practices condemned by Section 8(a)(I) of the Act.
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. Respondent has not committed any other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Board enter an Order that
Respondent , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization , by discharging employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of
employment.
(b) Coercively interrogating its employees concerning
their and other employees' union membership, activities,
and desires.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights
safeguarded to them by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Arnold Roe, Jr., immediate and full
reinstatement to his former position or one substantially
equivalent thereto, without prejudice to his seniority and
other rights and privileges enjoyed by each, and make him
whole for any loss of pay he may have suffered by reason
of his discharge, with interest thereon at the rate of 6
percent.
(b) Notify said Roe if presently serving in the Armed
Forces of the United States of his right to reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
(c) Preserve and, upon reasonable request„ make
available to the Board or its agents, for examination and
copying, all payroll records and reports and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant in Evendale, Ohio, copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being signed by a duly- authorized
representative of Respondent, shall be posted by it
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 displayed. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
'If this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended
Order of a Trial Examiner." In the further event that the Board 's Order is
enforced by a decree of a United States Court of Appeals, the words "a
Decree of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
'If this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing,
within 10 days from the date of this Order, of the steps which Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in Joint
Council No. 26, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, or any other labor
organization, by discharging any of our employees or in
any other manner discriminating against them in regard
to tenure of employment or any term or condition of
employment.
WE WILL NOT coercively interrogate our employees
concerning their and other employees' union
membership, activities , and desires.
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 Act,
ASTRO CONTAINER COMPANY 825
except to the extent that such rights may be affected by
a union shop contract requiring membership in a labor
organization as a condition of employment.
WE WILL offer to Arnold Roe, Jr ., immediate and
full reinstatement to his former position or one
substantially equivalent thereto, without prejudice to his
seniority and other rights and privileges enjoyed by
him. We will also pay him whatever loss of pay he may
have suffered as a result of his discharge by us, with
interest at 6 percent per annum.
All our employees are free to become members or, if
already members , to remain members, of said Joint
Council No . 26, or any other labor organization. They are
also free to refrain from becoming members or, if already
members, to refrain from remaining members , of said
Joint Council No. 26.
ASTRO CONTAINER
COMPANY
(Employer)
Note: We will notify Arnold Roe, Jr. if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board 's Regional Office, Room 2407
Dated By Federal Office Building , 550 Main Street, Cincinnati,
(Representative ) (Title) Ohio 44199, Telephone 513-684-3686.