American Grinding & Machine Co.

National Labor Relations Board - Board Decisions

Jan 29, 1965

150 N.L.R.B. 1357 (N.L.R.B. 1965)

a
AMERICAN GRINDING & MACHINE CO. 1357
Region 9, shall, after being duly signed by the Respondent , be posted by it immedi-
ately upon receipt thereof , and be maintained for a period of 60 consecutive days'
thereafter , in conspicuous places, including all places where notices to employees and
members are customarily posted:- Reasonable steps shall be taken by the Respond-
ent to insure that such notices , are not altered , defaced, or covered 'by any other
material.
(b) Furnish to the said Regional Director signed copies- 'of said notice for posting
by the above-named Employer, if willing, in places where notices to employees are
customarily posted . Copies of said notice , to be furnished by the said Regional
Director, shall, after being signed by the Respondent , be 'forthwith returned to the
Regional Director for disposition by him.
(c) Notify the said Regional Director , in writing , within 20 days from the date,
of `tile receipt of this Trial Examiner 's Decision, what steps the Respondent has taken
to comply herewith .3
8 In the event 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 ; what steps the Respondent has taken to comply , herewith."
APPENDIX
NOTICE TO ALL' OUR MEMBERS AND To ALL EMPLOYERS OF
SERVICE ELECTRIC COMPANY
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 Rela-
tions Act, we hereby give notice that:
WE WILL NOT ' engage in , or induce or encourage any individual employed
by Service Electric Company , to engage in, a strike or refusal - in the course of
employment to perform any services , or threaten , coerce , or restrain the above-
named Employer, where an object thereof is to force or require Service Electric
Company to assign the work of operating the hydra-lift to employees who are
represented by our Union rather than to employees represented by Local Union
No. 183, International Brotherhood of Electrical Workers, AFL-CIO, except'
insofar as any such action is permitted under Section 8(b) (4) (D ) of the Act.
LOCAL UNION No. 181 , INTERNATIONAL-UNION
OF OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By--------------- ----------------------------
. ' (Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced ,.or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building , 550 Main Street , Cincinnati , Ohio , Telephone No.
381-2200 , if they have any questions concerning this notice or compliance with its
provisions. '
r
American Grinding & Machine Co. and District No. 8,' Inter-'
national Association of Machinists , AFL-CIO. Case No. 13-
CA-6016. January 29, 1965
DECISION AND ORDER
On May 28, 1964, Trial Examiner James IT. Constantine issued 'his
Decision in the above-entitled proceeding, finding,that the,,Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
150 NLRB No . 129. ' 1
1358, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner'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 that they be dismissed.. There-
after, the General Counsel filed exceptions to the Trial Examiner's'
Decision and a supporting brief, and the Respondent filed- cross-
exceptions and a supporting brief. '
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel, [Members Fanning, Brown, and
Jenkins]. I
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 findings, conclusions, and
recommendations of the Trial Examiner, except as noted hereafter.
We agree with the Trial Examiner that the Respondent had knowl-
edge of his employees' union activities. In so concluding we rely on
(1) the timing of the discharges the day after employees attended
a union meeting; (2) the Respondent's past practice of not laying
off employees when business was slow; (3) the Respondent's failure
to give any explanation to any of the employees when they were
terminated; (4) the fact that of the 12 employees who attended the
union meeting Saturday afternoon, 9 were discharged by telegram
the next day, Sunday, and 1 was laid off , on Monday, (1 employee
was discharged who had not been at the meeting, but he was the
father of 2 employees who had attended the meeting) ; (5) the small
size of the Respondent's plant; 1 (6) the rare Sunday meeting of
Respondent's managerial employees at which the decision was made
to discharge the employees in question; and (7) the implausible
defenses offered by the Respondent as to. the discharges.
The Trial Examiner dismissed the complaint as to the alleged
unlawful discharges of Billy Richardson and Jack Boardman be-
cause they failed to testify at the hearing. In all material respects
the discharge of these two employees did not differ from those of
other employees found to be discriminatees. They both discussed
the possibility of joining a union during the previous week; they
attended the union meeting on Saturday; and they were sent tele-
grams on Sunday notifying them of their immediate termination.
Although Richardson and Boardman did not testify because the
General Counsel was unable to locate them, no adverse inference can
be drawn from their failure to appear. In these circumstances, their
1 Member Jenkins agrees that under all the circumstances here, Respondent
' s knowledge
of the union activities of the discharged employee may be inferred , but in so finding
he would not rely on the "small size " of the Respondent ' s plant.
AMERICAN GRINDING & MACHINE CO. 1359
testimony was not an essential element in proving that they were
unlawfully discharged. We conclude that Richardson and Board-
man, in addition to the nine employees found by the Trial Exam-
iner, were discharged for their union activity in violation of Section
8(a) (3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order as modified herein :
1. Paragraph 2(a) of the Recommended Order is amended as
follows :
Insert "Billy Richardson, Jack Boardman," following the name
"Bob Parker".
2. Paragraph 2(b) of the Recommended Order is amended as
follows :
Insert "Billy Richardson, Jack Boardman," following the name
"Walter Hart".
3. Paragraphs 2(b), 2(c), 2(d), and 2(e) of the Recommended
Order are redesignated 2(c), 2(d), 2(e), and 2(f), respectively, and
a new paragraph 2(b) is included as follows:
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
4. The third full indented paragraph in the notice is amended
as follows :
Insert "Billy Richardson, Jack Boardman," following the name
"Lynn Smith".
5. The fourth full indented paragraph in the notice is amended
as follows:
Add the names "Billy Richardson" and "Jack Boardman" to the
list of names already set forth in that paragraph.
6. The address of Region 13 stated in the Appendix attached to
the Trial Examiner's Decision is amended to read : "219 South Dear-
born Street, Chicago, Illinois, Telephone No. 828-7572".
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is an unfair labor practice case initiated by a charge filed on November 12,
1963, by District No. 8, International Association of Machinists , AFL-CIO, against
American Grinding & Machine Co. A complaint based on that charge was issued on
775-692-65-vol. 150--87
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 31, 1963, by the General Counsel of the National Labor Relations Board,
through the Acting Regional Director for Region 13 (Chicago, Illinois), against said
American Grinding & Machine Co., herein called Respondent or the Company. As
amended at the hearing said complaint in substance alleges that Respondent has
engaged in and is engaging in unfair labor practices violating Section 8 (a) (1) and (3)
which affect commerce as defined in Section 2(6) and (7), of the National Labor
Relations Act. Respondent has answered, admitting some facts but putting in issue
the commission of any unfair labor practices.
Pursuant to due notice this cause came on to be heard before Trial Examiner
James V. Constantine at Chicago, Illinois, on February 17 and 18, 1964. All parties
were represented at and participated in the hearing and had full opportunity to adduce
evidence, examine and cross-examine witnesses, submit briefs, and offer oral argument.
Briefs have been received from Respondent and the General Counsel.
At the close of the case Respondent moved to dismiss the complaint generally, and
also as to Alvis Potts. This motion was granted as to the alleged unlawful discharges
of Billy Richardson and Jack Boardman; but in all other respects it was denied on the
ground that a prima facie case had been presented if I accepted the General Counsel's
evidence in the light most favorable to him. Respondent also moved to dismiss para-
graph 9 of the complaint on the ground that no evidence of Section 8(a)( I) inde-
pendent violations had been presented. This was denied after the General Counsel
orally limited said paragraph to derivative Section 8 (a)( I) violations only.
The General Counsel in his brief requests that I reconsider the dismissal as to
Richardson and Boardman, contending that their testimony was not necessary to
establish their discriminatory discharge. (Neither one testified at the hearing, a factor
which I consider in dismissing the complaint as to them.) This request is denied.
Among other things, I desire to point out that the absence of Richardson and Board-
man have rendered it impossible for me to appraise President Kuchar's testimony as
to why they were discharged, since the former two on the witness stand could have
given evidence which would enable me to evaluate, along with Kuchar's testimony,
credibility issues upon this branch of the case.
Upon the entire record in this case, including the stipulations of the parties, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation, is engaged at Chicago, Illinois, in the general
business of grinding. During the calendar year 1962, it received goods and materials
valued in excess of $50,000 directly from points outside the State of Illinois. I find
that Respondent is engaged in commerce and that it will effectuate the purposes of
the Act to assert jurisdiction over it.
II. THE LABOR ORGANIZATION INVOLVED
District No. 8, International Association of Machinists , AFL-CIO, herein called
the Union , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Events preceding the discharges
Respondent operates a metal grinding business which, on November 8, 1963,
employed 31 employees in its small shop. Its night shift is under the supervision of
Foreman Louis LiTrenta, its day shift is superintended by William Kuchar, Jr., and
the entire shop is under the overseeing direction of President William Kuchar, Sr.
When Respondent hired LiTrenta on September 9 or 10, 1963, as foreman of the night
shift, without promoting an insider working there, employee rumblings over this
somehow came to the attention of President Kuchar. But no employees personally
made any oral complaints to management. Such dissatisfaction finally manifested
itself tangibly in a petition to President Kuchar signed by several employees the first
week in November.' Later that day Kuchar had a meeting with employees to explain
why LiTrenta was promoted, and thought that he had satisfactorily expounded the
advancement of LiTrenta. Nevertheless employees remained unhappy about the
promotion of LiTrenta and began discussing among themselves the desirability of
having a union . About a week after the above-mentioned meeting, employee Frank
Cardinallo called Joseph Butkus about organizing the shop.
1 All incidents hereinafter mentioned occurred In 1963 except as otherwise noted.
AMERICAN GRINDING & MACHINE CO. 1361
Joseph Butkus has been a business representative of the Union since November
1963, and before that, for about 2 years, he served as its assistant business representa-
tive. On November 8 Cardinallo, employed as a surface grinder by Respondent, called
Butkus on the telephone, stating that the employees would like to organize Respond-
ent's plant and requesting Butkus to meet with some employees that day.2 Because
Butkus was tied up on the 8th he made arrangements to meet the employees the next
day, a Saturday, at 1:30 p.m. The shop worked Saturdays until noon.
Prior to calling Butkus, Cardinallo gathered from talks with about 10 or 12
employees at the shop over a period of about a week preceding November 8, that they
would like to "get a union in the shop." 3 In these talks with employees, Cardinallo
suggested the desirability of having a union. Cardinallo engaged in such talks not
only during lunch time but also during working hours. William Kuchar, Jr., shop
superintendent, works in the same area as that in which Cardinallo spoke to employees
during working hours; but Kuchar leaves the shop during lunch time.
On November 9 the shop worked until noon. After the plant closed Cardinallo
accompanied by Trusz, Bob Barker, Barry Potts, Billy Potts, and few other employees,
congregated at a restaurant and thence proceeded to the union hall in Chicago where
they met and talked to Butkus. Other employees also came to that meeting, so that 12
employees in all were present. All 12 signed authorization cards and union member-
ship application cards.4 Two additional cards of absentees (those of Lynn Smith
and Joseph Martin) were later mailed in to the Union. Butkus also handed blank
authorization cards to Cardinallo and Trusz for soliciting at the plant.
The 12 employees attending the November 9 meeting are Alvis Potts, Billy Potts,
Barry Potts, Bill Trusz, Frank Cardinallo, Billy Richardson, Bronislaw Zlobnicki,
Charles Bellew, Bob Parker, Jack Boardman, Walter W. Hart, and Daniel Collins. On
the following Monday, November 9, about nine of the foregoing employees called
Butkus to notify him that they had been discharged over the weekend. We now turn
to these and other discharges.
B. The discharges
1. The discharge of William Trusz
Trusz was hired by Respondent about 1954 as a grinder. His rate of pay at the time
of his discharge on November 10, 1963, was $3 an hour. With Cardinallo, Trusz
spoke to fellow employees about having a union in the plant, but did not mention
the name of any particular labor organization. Some of these talks were conducted
in the plant, while others were made in a nearby tavern. Those in the shop occurred
openly both at lunchtime and during working hours, and were made daily for about
a week preceding November 9. No effort was made to conceal their nature. After
Cardinallo arranged for the November 9 meeting at the union hall, Trusz invited
fellow employees to attend.
After finishing work shortly before noon on November 9, Trusz and a group of
employees met at a nearby restaurant to enjoy coffee. From there this group drove in
two or three cars to the union hall. One of the cars belonged to Cardinallo. Trusz
did not use his for this purpose. After the meeting Trusz and Cardinallo encountered
employee Joseph Martin at a tavern, whom they solicited to join the Union. Having
had "a few drinks" Martin "couldn't see very good" but managed to sign an authoriza-
tion card. Then Martin gave the completed card to Trusz, who mailed it to the Union
that afternoon. Later that afternoon . Trusz ran into employee Lynn Smith in
another tavern, whom he invited to become a union member Trusz gave Smith a
union authorization card which Smith filled out and signed. Trusz also mailed this
card to the Union.
On November 10 Trusz received a telegram reading "Your employment with our
company is terminated immediately. American Grinding and Machine-Co."
At about 7.30 p.m. on the following Tuesday, November 12, Trusz telephoned
William Kuchar, Sr., Respondent's president, to ask "what [the telegram] was all
about." Kuchar replied, "we are slow. As soon as ... work comes in, you will be
called back." The next day, November 13, Kuchar telephoned Trusz to return to work
the following day, November 14. Trusz then resumed work on November 14.
3 Cardinallo also stated that a poll concerning union sentiment had been taken in the
plant and that it disclosed that 21 out of a total of 31 favored union representation
Another employee , William Trusz , was at Cardinallo ' s side during this telephone
conversation
3 The shop has been described as "just one big room."
* Initiation fee was waived because the Union waives it during an organizing drive
"if an entire plant is signed up, "according to Butkus
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Lynn Smith
Smith was hired by William Kuchar, Jr., shop superintendent, about 2 weeks before
November 10, 1963, as a helper to the grinders. Insisting that he did not want the
job unless it was permanent, he was assured by Kuchar that it would be permanent and
that "they had plenty of work." Smith was assigned to the second shift. About
November 8, Billy Potts talked union to Smith in the shop. Later that day, at shift
change time, Smith asked Superintendent Kuchar to transfer him to Richardson's first
shift job. This was accomplished when Richardson, who was present, consented to
accept Smith's second shift position.
As a result of a telephone call, Smith went to a tavern in the afternoon of Saturday,
November 9, where he met Trusz, Richardson, and another employee. After dis-
cussing the Union with them, Smith was asked to, and did, sign a union authorization
card and handed it to Trusz. On Sunday, November 10, Smith was discharged by a
telegram worded exactly (except for name and address) like that sent to Trusz. Smith
has not since been recalled.
3. The layoff of Bronislaw Zlobnicki
Zlobnicki was hired by Respondent on November 14, 1962, as a steel cutter. His
immediate supervisor is Kurt Stahl, whom I find to be a supervisor under the Act.
Like other employees, Zlobnicki worked until noon on Saturday, November 9, 1963.
Shortly after noon, as he proceeded to his car in Respondent's parking area, employee
Trusz called Zlobnicki to the Trusz car, which was parked in the immediate area. A
few others sat with Trusz. Trusz invited Zlobnicki to the union meeting 'at 1 p.m.
that day, and Zlobnicki accepted. Nothing further was said. Zlobnicki at that time
spoke in the same tone of voice as at the hearing I find that, at the hearing, Zlob-
nicki's voice was unusually soft and at times almost inaudible. This conversation
lasted but a few seconds. As Trusz and Zlobnicki were conversing, Supervisor Stahl
"was about 3 yards away," going to his car. Shortly thereafter Zlobnicki went to the
union meeting where he signed an application for membership and authorization card.
On the following Monday, November 11, Zlobnicki reported to, and did, work
although he noticed "a few men were notworking." At about 4 p.m. Supervisor Kurt
Stahl handed Zlobnicki a yellow envelope. Upon inquiring from Zlobnicki as to the
reason therefor, Stahl replied, "It's your last check .... This is your last day of work,
and we paid you." Zlobnicki then asked why he was fired. Replying, Kurt accused
Zlobnicki of complaining to employees about his work and added that, "If you are
dissatisfied to work here, or if you are complaining that we don't pay you enough, you
can find another job." Zlobnicki thereupon insisted that he had never complained
to anyone or that he had said he was dissatisfied.
Immediately following this talk with Stahl, Zlobnicki sought and found President
Kuchar in the latter's office. Zlobnicki asked if it was true that he was fired, but
Kuchar replied that Zlobnicki was laid off because business was slow, rather than fired.
Then Zlobnicki asked why Kuchar fired "all men who went to meeting," but Kuchar
denied knowing "anything about your meeting " Upon inquiry from Zlobnicki as to
how long he would remain out of work, Kuchar replied that this condition would con-
tinue until more work was obtained in his department. Kuchar explained that Zlob-
nicki was let go because he had the least seniority in the cutting department. Zlobnicki
has not been recalled.
4. The discharge of Robert Parker
Parker was hired about 3 months before his discharge in November 1963, as a
surface grinder. His immediate supervisor was William Kuchar, Jr., Respondent's
shop superintendent.
For about a week before November 9, employee Trusz discussed the Union with
Parker at the plant, both during working and nonworking periods. Parker also
engaged in conversations concerning the Union with employees Billy Potts, Frank
Cardinallo, and a couple of other employees; mostly at lunch time at the plant on
various days during that same week.
On Friday night, November 8, Parker and some other employees agreed to meet the
next day immediately following the noon closing of the plant, and to proceed together
to the union hall. On Saturday, November 9, Parker went to the meeting at the union
hall where he signed a card "and a ... small piece of paper" not otherwise identified.
On Sunday, November 10, Respondent sent Parker a telegram identical in text to
that sent Trusz, set out verbatim above; but Parker did not receive it. When Parker
reported for work on the following Monday, November 11, at about 7:30 a.m. Presi-
dent William Kuchar told him that Parker did not work there any longer. No explana-
tion accompanied this statement. Parker merely commented, "I know," and left.
Parker has not since been recalled.
AMERICAN GRINDING & MACHINE CO. 1363
5. The discharge of Billy Potts
Potts was hired as a grinder about 8'/z years before testifying on February 17, 1964.
His rate of pay at present is $3 an hour. During the week prior to November 9, 1963,
Potts discussed the union movement at various times with fellow employees. Most
of these conversations were held during lunch time. On November 9, Potts attended
the meeting at the union hall, where he signed a union card "and a letter type" not
further described.
On Sunday, November 10, Potts received a telegram from Respondent informing
him, in text identical to that received by Trusz, that his employment was "terminated
immediately." The following Wednesday, November 13, Potts was recalled to work
by Respondent. He has remained with Respondent ever since.
At no time prior to his discharge did Potts overhear other employees discuss the
Union in the plant.
About the middle of January 1964 a new employee, Larry Scrivner, was hired as a
helper and later "they ... made him into a grinder." And at the time of the layoff
of Potts, two other grinders who had less seniority than he (Krause and Collins), were
retained.
6. The discharge of Alvis Potts
This employee was hired as a grinder's helper by Respondent about 6'/z years before
he testified at the hearing on February 17. His rate of pay is $2 an hour.
Potts did not attend the union meeting on November 9, nor did he discuss that meet-
ing or the Union with anyone. Potts testified he was not for the Union. Nevertheless
he did sign a union card on November 11, which Mr. Butkus, the union representative,
gave to him at about 10:30 that morning at Butkus' office. He did so onl because
he was mad as the result of a fresh layoff. On Sunday, November 10, Potts had
received a telegram from Respondent, the text of which, identical to that received by'
employee Trusz, notified him that his employment had been "terminated immediately."
Three days later, on Wednesday, November 13, Potts was rehired by Respondent.
Although Potts originally testified that he signed the card on Saturday, November 9,
he later retracted this and insisted that the correct date should be November 11. I
credit this retraction and find that November 11 is the true date. I do so because (a)
Potts was not laid off or discharged until November 10, so that he could not, have
been motivated on November 9 in signing a union card by anger resulting from a
layoff, and (b) some of the other dischargees, according to Potts, were present in the
union office at the time, and admittedly these employees were not discharged until
November 10.
7. The discharge of Barry Potts
Potts was hired by Respondent as a night shift grinder about 21/a years before he
testified on February 17, 1964. Shop Superintendent William Kuchar, Jr., is his
immediate superior. As Potts entered to work on Friday, November 8, 1963,
employees Trusz and Cardinallo discussed the Union with him.
On November 9 5 Potts attended the meeting at the union hall and there signed a
union card as well as a "sheet of paper" which he did not further depict. Potts'
brother, Billy, received a discharge telegram on November 10. Knowledge of this
prompted Potts to ascertain his own status immediately from Respondent. Conse-
quently, at lunch time on November 11, Potts asked Shop Superintendent Kuchar if
the absence of his timecard from the "box" connoted that he had been laid off. Kuchar
laconically replied, "Yes."
Two days later, on November 13, Potts was recalled; but he did not return to work,
for personal reasons, until November 15.
8. The discharge of Charles Bellew
Bellew was hired about 2 years ago by Respondent as a shipping and receiving clerk.
His present rate, following a raise in pay about January 1964, is $2.25 an hour. He
discussed the Union with "practically everybody in the shop," including Trusz and
Cardinallo, for about a week preceding November 9. On that day he attended the
meeting at the union hall, where he signed one union card in addition to "one form."
He testified that the union card was "an affidavit to have a union election." On
November 10 a telegram was sent to him immediately terminating his employment, but
he did not receive it.
The following Monday, November 11, Bellew presented himself for duty. As
Bellew entered the plant, President William Kuchar, Sr., accosted him with the state-
Potts did not work on November 9 as the night crew does not work on Saturdays.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that "You know you don't work here any longer." No explanation was offered
by Kuchar for this summary action. Bellew merely replied, "All right." Bellew was
reemployed by Respondent on Thursday, November 14, at $2.25 an hour.
When Bellew was laid off business was slow, and when he was rehired it had picked
up, according to his own testimony. In the past, however, when business slackened
he merely did not work on Saturdays but he was never laid off.
9. The discharge of Walter Hart
Hart was hired by Respondent about January 1963, as a helper. About 5 months
later he became a surface grinder at the rate of $2 an hour. Prior to November 9 a
few employees talked to him in the shop about the Union.
On November 9 he attended the meeting at the union hall where he signed a card.
Although a telegram was sent to him on November 10 notifying him that he was
immediately terminated, he did not receive it. Hence he went to work as usual on
Monday, November 11. However, as soon as Hart arrived at the shop President
Kuchar notified him that his employment with the Company was terminated. No
reason was given for this abrupt severance of the employee relationship. About a
week later Hart was rehired.
On Monday, November 11, "just before working hours," Cardinallo overheard
President Kuchar say to Walter Hart, that Hart no longer worked there. Later in the
day, at about 2 p.m. Cardinallo spoke to Kuchar, stating that he, Cardinallo, "was
just as guilty as anybody else, but [I] believe everybody was fired because of this union
deal ...." But Kuchar expressly denied that "these men" were fired "because of the
union."
C. Respondent's defenses
Respondent is engaged in a job shop business. It manufactures no products of its
own and is dependent entirely upon customers who send in orders or ask for their
materials to be further fabricated. Hence business is, according to President Kuchar,
"rush, rush" or "sudden death." 6 Respondent's general practice when its business is
slow is cut down the number of hours worked rather than to lay off employees. This
policy has been followed in order to have good men around for others which come
in at all times of day. If work is so slow that employees have no production work to
perform, they will be assigned to sweeping floors or to other maintenance work for as
many as 2 or 3 days in a week. Hence prior to November 10 no layoffs had been
made in 1963 or 1962, and, according to President Kuchar, there were none since 1942,
except there "may have been" small ones in 1945 and 1951, because "ours has been a
fairly steady growth" since 1942.
Since November 1963 Respondent has hired two helpers. Business was so good in
October that overtime was extensive; but it started to decline the first week of
November. However, it began to pick up by the middle of the week commencing
November 11. As a result, some of the discharged or laid-off employees were recalled.
The decision to terminate employees was made by President Kuchar on Sunday
morning, November 10, following a conference with other officials of Respondent.
That conference was called that morning and had not been contemplated prior thereto.
Sunday conferences are not usual. That decision was motivated, according to Presi-
dent Kuchar, by a desire to make an example, during a period of slackness, of some
of the employees who, in his opinion, "were dogging it on the job" and thus ["I was]
pushed around by the fellows." By this he meant that there became evident a "gen-
eral dissatisfaction that the boys had been showing previous [for] several weeks, espe-
cially since" one LiTrenta was hired on September 9, 1963, as night foreman 7 over
those who were senior to him.8
According to President Kuchar, employees to be punished were selected for layoff
pursuant to seniority, except in "areas where there would be more work," i.e., where
work was not slack. Nevertheless, Kuchar claimed, some of those laid off had not
6 Generally backlogs amount to no more than 2 or 3 days.
7 Of the laid-off or discharged employees, Kuchar specified only Trusz as complaining
about the appointment of LiTrenta. I do not credit Kuchar but I do credit Trusz on
this, and find that Trusz did not complain to Kuchar. Further, Kuchar expressly denied
that the following complained to management about LiTrenta's promotion: Billy Potts,
Lynn Smith, Zlobnicki, Bellew, Parker, Alvis Potts, Barry Potts, and Hart. Kuchar
claimed this last group was laid off because "they were all the new employees we had."
8 This dissatisfaction, according to President Kuchar, culminated in a petition addressed
to him by employees protesting the promotion with a substantial increase in pay, of
LiTrenta. After Kuchar explained to the employees how this came about, they "were
still grumbling around . . . and sloppy in their work," according to Kuchar.
AMERICAN GRINDING & MACHINE CO. 1365
complained about LiTrenta's promotion. In this latter group were those, including
Trusz, laid off as discipline for sloppy work. However, although Kuchar observed
Trusz "scrap a lot" of work on November 6, Kuchar did not warn Trusz that a repe-
tition thereof would result in disciplinary action; all that Kuchar did was to "let
[Trusz] know that he did it, and it wasn't the right thing to do."
Although President Kuchar testified that noncomplaining employees were termi-
nated strictly according to seniority, Danny Collins was retained out of seniority
(having been hired only about 6 months prior to November 10, 1963), because he
was working on the night shift "and we had to keep our night shift active."
"Alvis Potts was terminated because his two sons were terminated," according to
President Kuchar. And the two sons were terminated because there was "nothing of
a fancy nature [which they] could do," 9 although "we had plenty of . . . work . .
that didn't require too much supervision" to be performed by Collins, "a relatively
new man."
1. Defense as to the Potts family
President Kuchar testified that Alvis Potts was discharged because he "came back
and forth to work" with his two sons; and, since Alvis.is a helper, and a helper had
to be let go, he decided on Alvis. Billy and Barry Potts were let go because "we had
no work for [their] machines." In addition Billy Potts had on previous occasions
objected to working nights, so that no night work was tendered to him.
2. Defense as to Trusz
Trusz was discharged because he was "doing a lot of talking," an increase in his
scrap production, and a decrease in actual production. So Respondent Kuchar
explained on the stand.
3. Defense as to Parker
Parker was one of those with the least seniority, and "was not too good an oper-
ator." He had previously been terminated a few years ago for performing inferior
work. He was rehired only "because we had a lot of work" and was again terminated
because he was a new hire whose work as a grinder was "not very good."
4. Defense as to Smith- '
Smith had worked only 2 weeks and enjoyed no seniority. He was terminated
solely because he was a very new employee.
5. Defense as to Bellew
There was not enough work coming in to keep a man on the loading dock. Bellew
was a receiving and shipping employee. _ He was therefore laid off and another
employee performed this work as an additional task.
6. Defense as to Hart
Hart not only was a recent hire , but he also scrapped one piece of metal which
cost about $ 150. He was therefore discharged for both reasons when it became
necessary to reduce -the working force during a slack season.
7. Defense as to Zlobnicki
Zlobnicki worked in the burning department as a cutter of steel . When business
dropped off Zlobnicki was let go because he had less seniority than a night man whose
work also had slackened . This night man replaced Zlobnicki . Also, although a
helper's job was available , it was not offered to Zlobnicki because, according to Presi-
dent Kuchar, it paid 75 cents an hour less and such an offer would be an affront to
Zlobnicki . The foregoing testimony was elicited from President Kuchar.
8. Defense as to Hart
According to President Kuchar, Hart "was one of the men with the least amount
of seniority, on top of the fact that he did run some scrap also," 10 which scrap Kuchar
0 President Kuchar claims "we had plenty of work" on the Blanchard grinders for
employee Krause, so Krause was not terminated.
10 Kuchar claims the scrap started about 2 weeks before November 10.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"attributed to this period where all the boys were all talking about LiTrenta." Never-theless Kuchar also testified that Hart never complained about LiTrenta to him, and
that Hart, as an apprentice , did not aspire to LiTrenta's job as night foreman.
D. Concluding findings and discussion
1. Findings common to the entire case
a. Pertinency of the small plant rule
I find that union activity by employees was intense , open , unconcealed , nonclan
destine, and continued for at least a week prior to November 9. I further find that
some such activity included conversations relating to the meeting at the union hall
on November 9. Additionally, I find that Respondent 's shop physically is a small
plant and that on November 8 and 9 it employed 31 persons as production workers.
On these facts , and the entire record , it is reasonable to infer-and I find-that news
of such union activity came quickly to the attention of the shop 's, supervisors and
officers, although no direct or demonstrative evidence of company knowledge"
thereof is discernible in the record . New French Benzol Cleaners and Laundry, Inc.,
139 NLRB 1176, 1179. Cf. Angwell Curtain Company, Inc. v. N.L.R. B., 192 F. 2d
899, 903 (C.A. 7); Tru-Line Metal Products, etc., 138 NLRB 964, 966 . Respondent
relies on N.LR.B. v. Falls City Creamery Company, 207 F. 2d 820 (C.A. 8), to
require actual knowledge of union activity as underlying Section 8(a)(3) violations,
and that such knowledge may not be deduced from circumstantial evidence . I do not
so read it, but rather , I construe it to sanction an inference of such knowledge in
appropriate situations . In any event , I must follow the Board 's determinations that
knowledge may be inferred. Allied Distributing Corporation and Standard Optical
Company, 130 NLRB 1348, 1350.
The foregoing conclusion that Respondent was cognizant of union activity for
about a week prior to November 9 is not vitiated by the facts, which I find , that (1)
the machines when operating in the shop created so much noise that supervisors could
not have overheard employee conversations during working hours without being
within a few feet thereof; (2) much of the union activity occurred at a time (during
the lunch hour) when Shop Superintendent William Kuchar, Jr., was absent from
the plant; (3) the plant was so laid out that the vision of management officials in the
front office was obstructed in a manner preventing them from observing much of
the employee movements in the shop; and (4) the plant was located in a large metro-
politan city and not in a small community.
Notwithstanding the foregoing findings as to knowledge of union activity, I expressly
find that the record does not warrant an inference of company knowledge relating
to union activity outside the shop. Hence I limit said finding of knowledge of con-
versations and other union activity to that which took place in the plant itself and
specifically find that Respondent was not aware of any union activity occurring away
from its shop.12
b. Other considerations
In connection with the individual dischargees , which have been treated seriatim
below, I have found lawful cause existed for their layoff or discharge but that such
cause was used as a pretext to conceal the real cause , i.e., union activity or sympathy,
for their termination ,as employees . Nevertheless, I have not overlooked the impor-
tant doctrine that being a union adherent is not a guarantee against discharge for
cause. N.L.R.B. v. Birmingham Publishing Company, 262 F. 2d 2, 8-9 (C.A. 5).
Nor have I disregarded another familiar principle that "The mere existence of valid
grounds for a discharge is no defense to a charge that the discharge was unlaw-
ful ...." N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d 835, 837 (C.A. 7).
11 President Kuchar testified that he first obtained knowledge of the union activity
on Tuesday , November 12, when , he claims , Respondent was served with a copy of the
charge Yet the charge was filed on November 12 and was not received by Respondent
until November 15 Hence I do not credit him on this aspect of the case. Nevertheless
a refusal to accept his testimony does not constitute affirmative proof that he had
knowledge of union activity prior to November 10. Guinan v. Famous Players Corp.,
167 N.E. 235 , 243 (Mass ) However, for other reasons set forth herein, I have found
that circumstantial evidence establishes company knowledge.
12 Thus I find that Respondent knew that a meeting would be held at the union hall
on November 9 but the evidence is insufficient to charge it with knowledge of what
happened there.
AMERICAN GRINDING & MACHINE CO. 1367
See N.L.R.B. v. Texas Bolt Company, 313 F. 2d 761, 763 (C.A. 5). And I have con-
stantly borne in mind that the General Counsel has the burden of proving his case
and that the inability of Respondent to prove a defense does not amount to proof
of the contrary facts. N.L.R.B. v. Murray Ohio Mfg. Co., 326 F. 2d 509, 513
(C.A. 6). Finally I have not disregarded the absence of specific evidence showing
either a union animus on the part of Respondent or independent Section 8 (a) (1)
violations.
c. The failure to give a reason for the termination
Except for Zlobnicki, none of the employees was given a reason for their termina-
tion at the time of his layoff or discharge. I have taken this into consideration in
drawing inferences as to those terminated under such circumstances. The Fifth Cir-
cuit Court of Appeals has adjudged that the failure to offer a reason for a layoff
"alone would be enough to support an inference that the layoff was discriminatory."
N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278; Cf. N.L.R.B. v. Plant City
Steel Corp., 331 F. 2d 511 (C.A. 5), 56 LRRM 2078, 2080.
(1) The discharge of William Trusz
I find that Trusz was "terminated immediately" by a telegram he received on
November 10, that such termination was for union activity, and that President
Kuchar's testimony that this employee was terminated for an increase in scrap, a
decrease in production, and "doing a lot of talking" is a pretext to conceal the real
reason .13 It is true, and I find, that producing scrap and not devoting oneself faith-
fully to assigned tasks are causes for lawful discharge; but I find that, even though
Kuchar believed that Trusz engaged therein, they are not the true factors motivating
the discharge of Trusz. Cf. N.L.R.B. v. Martin Sprocket Co., 329 F. 2d 417 (C.A. 5).
The foregoing conclusion is based upon the entire record and the following ingre-
dients , which I find as facts:
(a) With Cardinallo, Trusz was a prime mover of the union movement , attended
the union meeting of November 9, and signed a union card. Respondent had knowl-
edge of these two facts.
(b) I do not accept President Kuchar's testimony that Tursz complained to him
about the promotion of LiTrenta, but rather credit Trusz that he never complained
thereof. This credibility finding is based upon the fact that Kuchar was not consist-
ent on the stand. Kuchar first claimed "employees" complained, then said he remem-
bered only Trusz complaining, and finally was unable to give the approximate date
or circumstances touching upon Trusz' alleged complaint. Hence one of the reasons
for Trusz' discharge, i.e., his "too much talking" has vanished.
(c) Timing is important. New French Benzol Cleaners and Laundry, Inc., 139
NLRB 1176, 1179. Trusz was abruptly dismissed by telegram on Sunday, a non-
working day, although he had worked until noon the previous day without incident.
The dismissal occurred hard upon Trusz' attendance at the union hall where he
signed a union card and before he could return to work,
(d) Nearly all who attended the union meeting or signed up for the Union were
dismissed . It is more than mere coincidence that only union adherents 14 were
selected for layoff when business allegedly slowed down. N.L.R.B. v. Chicago Steel
Foundry, 142 F. 2d 306, 308 (C.A. 7), and cases there cited; Syracuse Tank & Manu-
facturing Company, Inc., 133 NLRB 513, 525; N.L.R.B. v. E. L. Dell, Jr., Trading
as Waycross Machine Shop, 283 F. 2d 733, 736 (C.A. 5).
(e) No explanation was given Trusz as to why he was terminated at the time.
I find this is significant.
(f) The alleged lack of business is problematical, although October was a better
month than November. However, October included a "terrific" amount of overtime,
so that, when October overtime is deducted from the statistics, it does not substantially
differ from November. Moreover, some employees were rehired in 2 or 3 days, thus
indicating that a slack of business was questionable.
(g) However, I do not place any reliance upon the fact that some employees,
including Trusz, were laid off out of seniority, as stressed by the General Counsel.
18I credit Kuchar only as to the fact that Trusz made some scrap. But I do not credit
Kuchar that Trusz' production lagged, because the documentary evidence fails to support
this. Moreover, I do not credit guchar as to the "lot of talking" by Trusz for I credit
Trusz to the contrary.
14 Except Alvis Potts, who testified he was not for the Union. However, he was laid
off only because his two sons were discharged, and I have found that they were
terminated for union activity.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Kuchar testified that in general he followed seniority in layoffs, no evidence
was introduced that this was a firm policy. Likewise, I do not rely upon the fact
that two or three new employees were hired after the discharges of November 10
and 11. Nor do I give much weight to the fact that no warnings were given to Trusz
about his scrap and inattention to work. Under the circumstances, these factors are
not impressive, i.e., there had been no prior misbehavior warranting a warning by
its repetition. Hence I do not find condonation.
(2) The discharge of Lynn Smith
I find that Smith was discharged for union activity, and not, as Respondent con-
tends, for lack of business. This ultimate finding is based upon the entire record
and the following factors, which I find as facts:
(a) Smith engaged in discussions about the Union while at the plant, and Respond-
ent was aware of this. Although Smith signed a union card, he did so at a place away
from the union hall, as he did not attend that meeting. Hence I do not find employer
knowledge of Smith's signing the card.
(b) Timing is significant. All persons discharged but one had engaged in union
activity or signed union cards and were terminated before the next working day after
the union meeting of November 9.
(c) I find significant the fact that no reason was given to Smith for his discharge
at the time.
(d) It is also significant that all but one of the dischargees attended the union
meeting of November 9 or had signed union cards.
(e) Smith was promised a permanent job with plenty of work but 2 weeks before
his discharge, at the time of his hiring.
(3) The layoff of Bronislaw Zlobnicki
This employee's only union activity consisted of attendance at the meeting of
November 9 at the union hall and his signing a union card there. I find that his
invitation at the parking lot by Trusz on November 9 to attend the union meeting
did not rise to the stature of union activity. And I find that the small plant rule is
inapplicable to charge Respondent with knowledge of this invitation because it
occurred out of the plant.15 Nevertheless, I find that, upon the entire record and
the following factors, Zlobnicki was discharged for union activity, and that the rea-
sons given to him are pretexts to mask the true reason for his termination:
(a) It is significant that only those who went to the union meeting and all those
but one who signed union cards were selected for layoff.
(b) Timing is significant. Zlobnickl was laid off the very first working day after
his initial union activity although his conduct was unobjectionable when he finished
work on November 9.
(c) Inconsistent reasons have been advanced for Zlobnicki's discharge. Thus
President Kuchar stated that Zlobnicki was terminated for lack of work, whereas
Kurt Stahl, his supervisor, told him, in handing him his last paycheck, that Zlobnicki
was fired because of dissatisfaction with the job. Moreover, I find that Zlobnicki was
never dissatisfied and that he never complained or expressed dissatisfaction on the job.
(d) President Kuchar testified that another type of work was available for Zlob-
nicki at 75 cents an hour less 16 but he did not want to offend Zlobnicki's dignity by
offering it to him. But nothing in the record even suggests that Zlobnicki was so
proud a man that he would have rejected a diminution in wages. Hence I find that
this tends to confirm the finding of pretext.
(4) The discharge of Robert Parker
I find that Parker-was discharged for union activity, and that the reason advanced
at the hearing, i.e., that he was laid off for lack of work, is a disguise or pretext. This
ultimate finding is based upon the entire record and the following subsidiary findings:
(a) Parker engaged in union activity at the plant and Respondent was aware of
this. He also signed a union card at the meeting of November 9.
(b) It is significant that nearly all those attending the union meeting on Novem-
ber 9, as did Parker, were discharged. This is more than mere coincidence. It is
151 also find that the evidence is insufficient to show that Zlobnicki'
s foreman over-
heard the invitation extended by Trusz.
19 Zlobnicki was paid at the rate of $2 25 an hour. The other job paid $1.50 an hour.
AMERICAN GRINDING & MACHINE CO. 1369
also significant that, in addition to those going to that meeting, all but one of those
who signed union cards (whether they attended that meeting or not) were discharged
or laid off.
(c) Timing is also important, as Parker was terminated on Sunday, November 10,
by a telegram which he never received. He was again orally terminated on Novem-
ber 11 as he reported for work. Thus he was laid off in the wake of the union meet-
ing where he signed a card and without the intervention of a working day.
(d) No explanation was given to him at the time he was laid off.
(e) I am unable to credit Respondent's contention that Parker was laid off for
want of work and that he was not a very good worker. I do so because (1) he was
not told that, and in fact was not given a reason for his termination; (2) this reason
was given for the first time at the hearing; and (3) whether work substantially
decreased is questionable. This finding contributes to the ultimate inference and
finding that the reason given at the hearing that Parker was laid off for want of work
is a pretext.
(5) The discharge of Billy Potts
As noted above, President Kuchar contended that Billy Potts was laid off because
"we -had no work for [his] machines." I do not accept this reason for the layoff or
discharge of Potts because I find that (a) he was discharged for union activity, and
(b) the reason given at the hearing 17 is a pretext to conceal the real motivation which
actuated the discharge. These ultimate findings are made on the basis of the whole
record and the following components, which I find as facts:
(a) Work of a "non-fancy" nature was available, but it was assigned to Danny
Collins, "a relatively new man" with much less seniority and skill than Potts, accord-
ing to President Kuchar. Nevertheless Collins was preferred over Potts solely
because the available work "didn't require too much supervision," and "we had to
keep our night shift active," according to President Kuchar. . But Potts' experience
manifestly was superior to that of Collins. Hence I am unable to credit Respondent's
contention that Potts was not retained because of a lack of work.
(b) Potts engaged in union-activity at the plant, and Respondent had knowledge
of this. In addition, Potts attended the meeting of November 9 at the union hall
and there signed a union card.
(c) Again, timing is significant, as Potts was abruptly discharged on the Sunday
following his attendance at a union meeting.
(d) It is more than sheer accident that nearly all those attending the November 9
union meeting and all but one signing a union card were discharged. In my opinion
this is significant.
(e) No reason was given for the summary discharge on November 10. It is diffi-
cult to understand why a reason could not have then been assigned or why the dis-
charge had to be made precipitately on a Sunday. It is strange that a reason for the
discharge was withheld until, according to President Kuchar, it was decided to
recall him.
(f) Of minor significance is the fact that Billy Potts was not offered available
night work. His past reluctance to work nights may well have dissolved if he were
faced with the alternative of unemployment.
(6) The discharge of Barry Potts
Like his brother Billy Potts, Barry was laid off because "we had no work for [his]
machines," according to President Kuchar's testimony. But I do not credit this rea-
son advanced for the first time by Respondent at the hearing, but rather expressly
find that (a) Barry was discharged for union activity, and (b) the above reason
given at the hearing is a pretext to obscure- the fact that Barry was discharged for
union activity. This ultimate conclusion is based on the entire record and the fol-
lowing factors, which I find as facts:
(a) Barry engaged in union activity at the plant and Respondent was aware of
this. In addition he attended the union meeting of November 9 and there signed
a union card.
(b) Although a telegram was mailed to him on November 10 terminating him
immediately, he did not receive it. Nevertheless no reason was assigned in the
telegram nor in the oral discharge the next day as to why he lost his job.
'?If, as Respondent contends, no work was available, it is difficult to understand why
this was not known at Saturday noon, November 8, when the plant closed down for the
weekend Moreover, Potts was rehired on November 13, thus indicating that work was
not materially slack between November 11 and November 13.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Work of a "non-fancy" nature was available, but it was given to Collins, a
much less skillful worker with far less seniority. Although Respondent did not
inflexibly follow seniority in layoffs, it did seek to retain experienced workers. Hence
the failure to keep Barry, and the insistence on retaining Collins, are significant.
(d) Timing is important. Barry was abruptly discharged by telegram on Sunday
and orally on Monday following his attendance at a union meeting where he signed
a card.
(e) More than mere coincidence is involved in the discharge of only those who
engaged in union activity and all but one of the signers of union cards. This is a
fact laden with significant import, in my opinion.
(7) The discharge of Alvis Potts
According to President Kuchar, "Alvin was terminated because his two sons
[Billy and Barry] were terminated." Kuchar resorted to this, he claims, because
Alvis rode to and from work with his sons and Alvis would probably not have a ride
otherwise. But the record is barren of evidence that Alvis was unable to come to
work in his own car, or by some other means of transportation. Hence I do not ac-
cept this purported defense. Rather I find that Alvis was laid off because of the union
activity of his sons and to discourage union activity by him and his sons. This con-
clusion is based on the entire record and the following factors which I find as facts:
(a) I expressly find that Alvis did not engage in any union activity and that he
opposed the Union prior to November 10. However this does not dispose of the
matter for he may still be terminated under circumstances warranting the inference-
which I hereby draw-that antiunion motivations led to his discharge.
(b) It is significant that Alvis was discharged only because his two sons were
discharged. Since I have found that the two sons were discharged for discriminatory
reasons prohibited by Section 8(a)(3) of the Act, it is reasonable to infer-and I
do so-that Alvis was discharged to discourage the protected activities of his sons.
See Owens-Corning Fiberglass Corporation, 146 NLRB 14921; Marathon Electric
Mfg. Corp., 106 NLRB 1171, 1179; Murray, Selwyn Golub and Albert Golub d/b/a
Golub Brothers Concessions, 140 NLRB 120, 121. Cf. Dofflemyer Bros, 101 NLRB
205. The cases of Jaxton Manufacturing Corporation, 130 NLRB 465, 467, and
Hill & Hill Truck Line, Inc., 120 NLRB 101, 128, 129 are distinguishable on their
facts.
(c) With some hesitation I conclude that Respondent mistakenly believed that
Alvis was one of those who went to the union meeting and signed a card. This is
due to the fact that Respondent had knowledge that his two sons would attend that
meeting and, as President Kuchar testified, Alvis always rode to and from work with
his sons. Hence Alvis was a victim of this mistaken belief. As such the Act protects
him. See Arnoldware, Inc., 129 NLRB 228, 229.
(8) The discharge of Charles Bellew
Respondent contends that Bellew was laid off for lack of work, and that he was
let go, along with others, as punishment for neglecting his work as a disaffected
worker following the promotion of LiTrenta. I do not credit this asserted justification
for Bellew's discharge. Instead I find that this alleged reason is a pretext and that the
true reason for Bellew's discharge is his union activity. This ultimate finding flows
from a consideration of the whole record and the ensuing factors, which I find as
facts :
(a) Bellew engaged in union activity at the shop, of which Respondent became
aware. He also attended the November 9 union meeting and signed a union card.
(b) Whereas Respondent had always merely discontinued Bellew's Saturday morn-
ing assignments when business slackened in the past, on this occasion Respondent
dismissed Bellew from its service.
(c) Timing again cannot be ignored. Bellew was dismissed by telegram immedi-
ately after attending the union meeting of November 9, i.e., on November 10, and
again on November 11, the first working day following that meeting.
(d) More than coincidence emerges from the fact that all but one (Alvis Potts)
of the persons laid off or discharged attended the union meeting or signed union
cards. And although Alvis Potts was not a union adherent he was laid off because
his sons engaged in union activity.
(e) No reason was communicated to Bellew for the abrupt termination of his
services.
AMERICAN GRINDING & MACHINE CO. 1371
(9) The discharge of Walter Hart
While it is true-and I find-that Hart was a junior in length of service and did
scrap an expensive piece of metal, as testified by President Kuchar, I find that he was
not genuinely laid off or discharged for these reasons. Rather, I find that the imme-
diate or actual determinant leading to his discharge was his union activity, and that
the foregoing justifications advanced at the trial are pretexts to cloak the true inten-
tions behind the termination of Hart. While this ultimate finding is based upon the
entire record, it also flows from the following constituents, which I find as facts:
(a) Hart discussed and showed interest in the Union in the plant. Respondent
had knowledge of this. He also attended a union meeting on November 9, at which
Hart signed a union card. Respondent was aware of the meeting because it was
openly and freely discussed by employees at the shop.
(b) Although Hart scrapped a piece of metal costing about $150, he was not dis-
ciplined or even warned about it at the time. Neither the telegram admittedly sent
to him (which he did not receive) mentioned this or any other cause as responsible
for his being "terminated immediately"; nor did the oral termination by President
Kuchar the next day contain any reason therefor. These components have per-
suasive value in pointing the way to a correct resolution of the real motive behind
Hart's termination.
(c) Some weight attaches to the fact that all but one 18 of those terminated signed
union cards or attended the union meeting of November 9. Cf. Nachman Corpora-
tion, 144 NLRB 473. Instead of characterizing this situation as merely a coincidence,
I find that it is significant that only union adherents and the father of two of those
adherents were simultaneously picked for immediate termination.
(d) Finally, I attach some consequence to the fact that Hart, like the other union
adherents, was terminated swiftly after his attendance at a card signing union meet-
ing without the intervention of any other cause and before he returned to work
following that meeting.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent found to constitute unfair labor practices, as set
forth in section III, above, occurring in connection with the operations of the Respond-
ent as set forth in section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in specific unfair labor practices prohib-
ited by Section 8(a)(1) and (3) of the Act, it will be recommended that it be
ordered to cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. In view of the findings that Respondent
discriminated with respect to the tenure of employment of employees enumerated
in the margin,19 it will be recommended that Respondent be ordered to offer to each
of those not yet recalled 20 immediate and full reinstatement to his former position
or one substantially equivalent thereto, without prejudice to his seniority and other
rights and privileges. It will further be recommended that all those employees named
in this paragraph 21 be made whole for any loss of earnings suffered by reason of the
discrimination against him. In making such employees whole Respondent shall pay
to each of them a sum of money equal to that which he would have earned as wages
from the date of such discrimination to the date of reinstatement or a proper offer
of reinstatement, as the case may be, less his net earnings during such period. Such
backpay, if any, is to be computed on a quarterly basis in the manner established by
F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calcu-
lated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB
$ Even this person was terminated for being the father (Alvis Potts) of two of those
discharged for signing union cards (Barry and Billy Potts).
19 Alvis Potts, Billy Potts, Barry Potts, William Trusz, Bob Parker, Lynn Smith,
Charles Bellew, Walter Hart, and Bronislaw Zlobnicki.
20 Zlobnicki, Smith, and Parker.
zt I.e., Alvis Potts, Billy Potts, Barry Potts, William Trusz, Bob Parker , Lynn Smith,
Charles Bellew , Walter Hart, and Bronislaw Zlobnicki.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
716. It will also be recommended that Respondent preserve and make available to
the Board or its agents, upon request, all pertinent records and data necessary to aid
in analyzing and determining whatever backpay may be due.
Since the discrimination involved in the discharges goes "to the very heart of the
Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4)), it will be recom-
mended that the order issued safeguard employees against infringement in any manner
on the rights vouchsafed to them by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the definition thereof in Section 2(5)
of the Act.
2. Respondent is an employer engaged in commerce within the scope of Section
2(6) and (7) of the Act.
3. By discriminating in regard to the tenure of employment of Alvis Potts, Billy
Potts, Barry Potts, William Trusz, Bob Parker, Lynn Smith, Charles Bellew, Walter
Hart, and Bronislaw Zlobnicki, thereby discouraging membership in a labor organi-
zation, Respondent has committed unfair labor practices embraced by Section 8(a) (3)
of the Act, and derivatively, also by Section 8 (a) (1) of the Act.
4. The above unfair labor practices affect commerce within the contemplation of
Section 2(6) and (7) of the Act.
5. Respondent has not committed any unfair labor practices independently viola-
tive of Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record, it is recommended that Respondent, its officers, agents, successors, and
assigns, shall: 22
1. Cease and desist from:
(a) Discouraging membership in the Union, or in 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) In any other manner interfering with , restraining , or coercing its employees
in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Bronislaw Zlobnicki, Bob Parker, and Lynn Smith immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously enjoyed by them.
(b) Make whole Alvis Potts, Billy Potts, Barry Potts, William Trusz, Bob Parker,
Lynn Smith, Charles Bellew, Walter Hart, and Bronislaw Zlobnicki in the manner
set forth above in the section entitled "The Remedy" for any loss of earnings suffered
by reason of the discrimination against them.
(c) Preserve and make available to the Board or its agents upon request, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary and pertinent
to compute the amount of backpay and ascertain the right to reinstatement.
(d) Post at Respondent's place of business in Chicago, Illinois, copies of the
attached notice marked "Appendix." 23 Copies of said notice to be furnished by
the Regional Director for Region 13, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately upon receive thereof, and
ra If this Recommended- Order is adopted by the Board, this provision shall be modified
to read: "Upon the entire record In this case, and pursuant to Section 10(c) of the
National Labor Relations Act, the National Labor Relations Board hereby orders that
Respondent , its officers , agents , successors , and assigns , shall:"
zv In the event that 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 notice. 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".
AMERICAN GRINDING Sr MACHINE CO. 1373
be maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writing within 20 days from
the date of receipt of the Trial Examiner's Decision and Recommended Order, what
steps Respondent has taken to comply herewith.24
It is further recommended that unless Respondent , in writing , notifies said Regional
Director within the , prescribed period that it will comply with the foregoing recom-
mendations , the Board issue an Order requiring Respondent to take the aforesaid
action.
.24 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for Region 2, in writing , within
10 days from the date of this Order , what steps 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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in District No. 8, International Associa-
tion of Machinists , AFL-CIO, or any other labor organization , by discharging
employees or otherwise discriminating against employees in regard to their hire
or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization to form labor organi-
zations, to join or assist the above-named union or any other labor organizatioi,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
by Section 8(a)(3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Bronislaw Zlobnicki , Lynn Smith , and Bob Parker immedi-
ate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges.
WE WILL make whole the employees named below for any loss of earnings
they may have suffered as a result of the discrimination against them.
Alvis Potts Lynn Smith
Billy Potts Bob Parker
Barry Potts Charles Bellew
William Trusz Walter Hart
Bronislaw Zlobnicki
All our employees are free to become or remain , or to refrain from becoming or
remaining members of the above -named Union or any other labor organization, except
to the extent that such right may be affected by an agreement in, conformity with
Section 8(a) (3) of the Act.
AMERICAN GRINDING & MACHINE Co.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street , Chicago , Illinois, Telephone No. Central 6-9660 , if they , have any
questions concerning this notice or compliance with its provisions.