AMF, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1976

222 N.L.R.B. 161 (N.L.R.B. 1976)

HEAD SKI DIVISION, AMF, INC. 161
Head Ski Division, AMF, Inc. and Midwest Regional
Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO. Case 27-CA-4244
January 13, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On August 13, 1975, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent and Charging
Party filed exceptions and supporting briefs to the
Administrative Law Judge's Decision, and the Gen-
eral Counsel filed a brief in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
In finding that Respondent violated Section
8(a)(1) of the Act by eliminating the postings of lead
and rank-and-file job openings in the Boulder facili-
ty, the Administrative Law Judge, in the section enti-
tled "The Remedy," recommends that because of the
imprecision of the record with respect to the number
of jobs affected and the time Respondent resumed its
prior practice, all lead and rank-and-file job vacan-
cies filled between August 16 and December 16,
1974, be subjected to scrutiny, and the manning of
these jobs traced to ascertain the extent to which the
present incumbency reflects that which would have
been the case but for the discontinuance of the job
posting policy. It is settled Board policy that an un-
clear record is no legitimate reason for denying em-
ployees full restitution by making them whole. Amer-
ican Fire Apparatus Company, 160 NLRB 1318
(1966). Thus, we shall require Respondent to make
available to employees those jobs which may have
become vacant from August 16, 1974, until the date
on which Respondent complies with the Order by
reopening and filling jobs pursuant to nondiscrimi-
natory bid procedure.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below, and hereby orders that the Respondent, Head
Ski Division, AMF, Inc., Boulder, Colorado, its offi-
cers, agents, successors, and assigns, take the action
set forth in the said recommended Order as so modi-
fied.
1. Substitute the following paragraph for para-
graph 2(b):
"(b) Reopen and make available all jobs at the
Boulder facility which may have become vacant dur-
ing the period from August 16, 1974, to the date Re-
spondent complies with the Order by reopening and
filling these jobs pursuant to a nondiscriminatory bid
procedure."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 Members Fanning and Jenkins disavow the implication that a no-
distri-bution rule prohibiting distribution of written materials "in working areas or
on working time" is necessarily a valid one . See their dissent in Essex Inter-
nationat, Inc., 211 NLRB 749 (1974) They agree that here the rule was
applied disparately.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, except to the extent permitted
by Section 8(a)(3) of the National Labor Rela-
tions Act, as amended, terminate Richard Ma-
honey or Barbara Vachon, or any other employ-
ee because of membership in Midwest Regional
Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT in any unlawful manner interro-
gate or threaten our employees in order to dis-
courage their activities on behalf of Midwest
Regional Joint Board, Amalgamated Clothing
Workers of America, AFL-CIO, or any other
labor organization; conduct a poll for the pur-
pose of learning the affinity of our employees to
the Union, or any other labor organization; en-
force a valid no-solicitation rule in an unlawful
manner in an effort to counter employees' inter-
est in the Union, or any other labor organiza-
tion; or eliminate the ski loaner program, the
use of the WATTS telephone line or cease job
postings in retribution for or to influence em-
ployee union activity.
WE WILL offer immediate and full reinstate-
ment to Richard Mahoney and Barbara Vachon
to their former positions or, if those positions no
222 NLRB No. 21
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer exist, to substantially 'equivalent posi-
tions,.-without prejudice to their seniority or
other rights and privileges._
WE WILL make Richard Mahoney and Bar-
bara Vachon whole for any loss they may have
suffered by reason of our discrimination against
them, together with 6-percent interest per an-
num on the pay they may have lost by reason of
our failure to employ them.
WE WILL reopen and make available all jobs at
the Boulder facility which may have become va-
cant during the period from August 16, 1974, to
the date Respondent complies-with the Order by
reopening and filling these jobs pursuant to a
nondiscriminatory bid procedure.
HEAD SKI DIVISION, AMF, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This case
was heard before me at Denver, Colorado, on March 11
and 12 and June 4, 5, and 6, 1975, pursuant to a complaint
and notice of hearing issued on January 31, 1975, by the
Regional Director of the National Labor Relations Board
for Region 27. The complaint, as amended at the hearing,
is based on an original charge filed on August 30, 1974;' a
first amended charge filed on September 5; and a second
amended charge filed on November 15. The complaint, as
amended, alleges violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, hereinafter
called the Act. The parties timely filed briefs with me on
July 11, 1974.
Upon the entire record in this case,2 I make the follow-
ing:
FINDINGS OF FACT
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes that Midwest, Regional Joint
Board, Amalgamated Clothing Workers of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act, and I so find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint, as amended, alleges that Respondent
violated Section 8(a)(1) of the Act by interrogating and
threatening employees; conducting a poll of employee sen-
timent designed to obtain knowledge of their union sympa-
thies; eliminating certain benefits and/or programs benefi-
cial to employees; and enforcing a no-solicitation rule in a
discriminatory manner. Further, the complaint alleges that
Respondent violated Section 8(a)(3) of the Act by discrimi-
natorily terminating the employment of Richard Mahoney,
Barbara Vachon, and_Lonnte Blooding.
The pleadings also raise an issue with respect to the su-
pervisory status of Nancy Platt but the record fails to es-
tablish that at pertinent times she possessed the requisite
authority or responsibility of a supervisor under Section
2(11) of the Act. - -
The Respondent denies the commission of any unfair
labor practices and asserts, affirmatively, that each of-the
alleged discriminatees was terminated for good cause unre-
lated to the union activities of the employees affected.
B. Pertinent Facts
1. Background facts
At relevant times, William Tabar served in the' capacity
of director of operations at Respondent's Boulder facility.
Tabar assumed that post in March 1974, and throughout
his incumbency reported directly to the president of Re-
spondent. During the period of time pertinent herein,
James Hanifin served as Respondent's director of employ-
ee relations. Thomas Stevenson, Dale Cutsforth, and An-
I. JURISDICTION
At all material times, Respondent has been a corpora-
tion duly organized under the laws of the State of New
Jersey and has maintained its principal office and place of
business at White Plains, New York.
Durmg times material herein, Respondent has engaged
in the manufacture and sale of ;sports equipment at its
plant in Boulder, Colorado. In the course and conduct of
its business operations, Respondent annually sells and
ships goods and materials valued in excess of $50,000 di-
rectly to points and places outside the State of Colorado.
Upon the facts which are not in dispute, I find that at all
times material, Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
1 Unless otherwise specified , all dates refer to the-calendar year 1974
2 Respondent's motion to correct the transcript of this proceeding in cer-
tain particulars is granted.
3 During the course of the hearing, the General Counsel challenged the
correctness of the ruling excluding from evidence the prehearing affidavit of
James Hanifin, formerly Respondent's director of employee relations. Hani-
fin was in the employ of Respondent at all relevant times prior to the hear-
ing but is no longer so employed Hanifin did not appear at the hearing and
the proffer of his prehearing affidavit came on June 5 during General
Counsel's cross-examination of William Tabar, Respondent's director of
operations Hannifin's employment with Respondent had ended prior to
June 5 General Counsel contended that the preheating affidavit could
properly be used in the manner of any prehearing statement of position
solicited by the General Counsel from an official of Respondent during the
investigatory phases of the proceeding. The proffer of the Hanifin affidavit
was for the avowed purpose of revealing a "shifting defense" with respect to
certain issues under litigation. The introduction of the prehearing affidavit
was rejected on grounds that a special body of procedural law and criteria
had been developed with respect to the use of prehearing affidavits which
markedly distinguish the use of those documents from other writings or
statements obtained by the government from respondents during the pen-
dency of litigation. General Counsel conceded the absence of precedent
supporting the proffer The ruling rejecting the affidavit is hereby affirmed.
HEAD SKI DIVISION, AMF, INC 163
drew Cobb served as departmental supervisors.
In early" 1974, an organizational campaign was. com-
menced bythe Union among the employees at the Colora-
do facility of Respondent. Richard Rothstein, a national
representative of the Union, was in charge of the effort. In
February, an employee organizing committee was formed
and alleged discriminatees Lonnie Blooding and Barbara
Vachon were members of the committee. During the
course of the Union's campaign, leaflets were distributed
designating both Blooding and Vachon as members of the
committee. Communications identifying Blooding and Va-
chon as such-were dispatched by the Union to Respondent.
Vachon was active in the organizing effort and made house
calls, distributed leaflets, and performed other tasks inci-
dental to the organizing campaign. Richard Mahoney,
whose - termination is alleged to have violated Section
8(a)(3) of the Act, was not a member of the committee but
executed a union authorization card which he discussed
with Hanifin and other employees on plant premises. Wil-
liam Tabar was designated by Respondent to direct the
company response to the Union's campaign.
On July 24, the parties entered into a stipulation agree-
ment pursuant to which a secret ballot representation elec-
tion was held on August 16 in the following described unit:
All regular full-time hourly paid production, mainte-
nance; warehouse and inspection employees employed
by the Employer at its facilities located at Broomfield
and Boulder, Colorado, but excluding summer stu-
dent employees, office clerical employees, plant cleri-
cal employees, confidential employees, technical and
engineering employees, professional employees, mar-
keting employees, guards and all supervisors within
the meaning of the Act.
Challenged ballots were determinative of the results of the
election.
2. The alleged interference, restraint, and coercion
a. The preelection period
(1) Hanifin speaks with Mahoney and Klose
On or about April -18, Richard Mahoney, Albert Klose,
and Richard Cashdollar who shared an apartment in Boul-
der, were visited in the apartment by Richard Rothstein, a
representative of the Union. Klose was sleeping and did
not speak with Rothstein. However, Mahoney executed an
authorization card and Cashdollar was presented with a
card for his signature. After Klose awakened he was in-
formed by Cashdollar of the visit of the union representa-
tive and was shown the union authorization card which
was presented to him.
The following day at the plant, Hanifin approached Ma-
honey and Klose separately.
In -speaking with Mahoney, Hanifin stated that he had
heard that Mahoney had some visitors the previous eve-
ning. Mahoney answered in the affirmative and Hanifin
inquired if Mahoney knew how the union representatives
had obtained his address. Mahoney answered in the nega-
tive. Thereupon, Hanifin asked if Mahoney had signed a
union card and after reflecting for -a moment, Mahoney
stated that he had done so. However, Mahoney added that
he was not sure that the Union was going through.
In speaking separately with Klose, Hanifin essentially
duplicated the comments and questions he had posed to
Mahoney.. However, he did not-inquire whether or not
Klose had signed a union authorization card a
(2) Hanifin speaks with Dahlstrom
During the course of her employment with Respondent,
Lois Dahlstrom was suspended for alleged excessive absen-
teeism. During the last week in July, she went to Hanifin's
office to protest her suspension.-Brad Fort, her supervisor,
was present. In speaking with Hanifin, Dahlstrom asserted
that her suspension had been unfair and specified the ratio-
nale supporting her contention. In response, Hanifin an-
swered, - "If you think things are tough now, sweetheart,
wait till you get a Union in here." 5
(3) The poll.
In July, prior to the execution of the consent election
agreement, the employees at the Boulder facility were as-
sembled outside the plant building and were addressed by
Respondent's president who stated, in substance, that he
desired to have the employees vote on whether or not they
wished to have temporary employees participate in the
Board representation election which was then in the offing.
The employees were told that the balloting with regard to
the issue of temporary employees would be held the follow-
ing week. Questions posed by some employees were parried
on the grounds that time would not permit discussion, and
employees were told to consult with their departmental su-
pervisors concerning any questions they might have.
Early in the following week, departmental supervisors
assembled the employees under their direction and in-
formed them that the vote on the issue of temporaryem-
ployees was to be taken. Employees were handed blank
pieces of paper on which they were instructed to write
either the word "Yes" or the word "No." The employees in
each department did so and the "ballots" were returned to
their departmental supervisor, who, together with'a depart-
mental employee whom the supervisor had selected for the
purpose, counted the "ballots" and recorded the results.
The tabulation revealing the numerical results of the bal-
loting by department were made available to Tabar and
Hanifin who scrutinized the tabulation. Tabar speculated
that the results of the poll was communicated to legal
counsel, although he did not do so himself.
4 The foregoing is based on the credited and unrefuted testimony of Rich-
ard Mahoney and Albert Klose. I have also considered the supporting testi-
mony of Richard Rothstein.
5 The foregoing is based on the credited and undisputed testimony of Lois
Dahlstrom. No witness was called to refute the testimony of Dahlstrom. I
have evaluated Dahlstrom's testimony to the effect that she was terminated
from her employment in late August on grounds of insubordination. I have
also considered her further testimony that she was a member of the union
organizing committee during the time she was employed by Respondent.
Dahlstrom impressed me as a thoroughly credible witness and I find no
basis on grounds of her asserted hostility towards the Company or prounion
propensity on Dahlstrom's part for rejecting her testimony.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the days that had preceded the events just delineated,
Respondent and the Union had engaged in extensive dis-
cussions with respect to the inclusion in the unit of tempo-
rary employees. Both the status of specified groups of em-
ployees as "temporary" and the propriety of permitting
employees falling within the designation of "temporary"
had commanded the attention of the parties. Management
knew that certain employees had acknowledged at the time
of hire their temporary status and had reason to believe
others intended to remain employed only for a brief stint.
Against this background, Respondent's management
reached the decision to conduct the balloting described
above.
Upon learning of the announcement which the president
of Respondent had made to the assembled employees, but
prior to the day of the balloting, Rothstein, the union rep-
resentative in charge of the organizing campaign, met with
employee organizing committee members. The propriety of
Respondent's plan, as well as the future involvement of
committee members in the balloting procedure itself, was
discussed at the meeting. It was decided that each commit-
tee member should participate or refuse to do so on an
individual basis. In any event, the issue of the inclusion or
exclusion of temporary employees was the topic of an arti-
cle given prominence in a publication circulated to all em-
ployees by the Union. This circularization transpired prior
to the balloting and revealed that the Union favored the
inclusion of employees arguably "temporary" in status
while the Company favored their exclusion.
b. The postelection period
(1) Job posting procedure modified
During the period of several months prior to June 1974,
under a policy adopted and effectuated by Hanifin, all per-
manent employment openings, including supervisory and
lead jobs, with exceptions not here relevant, were posted on
a bulletin board conspicuous to employees. Hanifin's poli-
cy had not received the final approval of Respondent's
president and by June 1974 became the subject of scrutiny
by management.' A meeting was convened by Tabar and
changes were adopted in the policy. Salaried positions were
eliminated from those jobs subject to posting, but lead and
rank-and-file jobs were to continue to be posted The first
evidence of the change being communicated to employees
came I week after the election when Shirley Apodaca was
informed by her supervisor, Thomas Stevenson, that all job
postings would be ceased until further notice.' In point of
fact, the number of job postings at the Boulder facility did
diminish significantly after the August election, in both the
lead and rank-and-file positions. Two lead jobs were post-
ed after the election, but during a period of weeks follow-
ing the election there was not widespread posting of rank-
and-file jobs.
6 That Hanifin's program had been in effect is not open to challenge
Tabar's credited testimony establishes that the merits of the program came
under scrutiny for legitimate management reasons
7 i have considered the testimony of William Tabar and Shirley Apodaca
in this specific regard
The record evidence establishes that in early August a
theft occurred at the Broomfield warehouse of Respondent
resulting in a substantial financial loss to Respondent.
Thereafter, the employment complement at the warehouse
was replaced The jobs were not filled under any bid proce-
dure but were filled through individual selection. Apodaca
had informed Stevenson of her interest in a Broomfield job
but was told that the jobs would be filled from "outside the
plant." Nonetheless, included in the small complement of
employees ultimately chosen to staff the Broomfield facili-
ty were plant employees known to oppose the Union. Job
postings at Broomfield appear to have resumed thereafter.
The record reveals that in late summer the hiring process
at Respondent's Boulder facility is normally at low ebb.
However, there is no evidence to suggest that hiring of
rank-and-file employees, or assignment of lead or supervi-
sory personnel, ceased in the weeks immediately following
the election.8
(2) Discontinuance of ski loaner program and WATTS
In 1972 and 1973, during the fall months prior to the
normal commencement of ski season, notices were posted
advising employees of the availability of skis to be ob-
tained on loan for personal use during the ski season. Em-
ployees availed themselves of this program during both the
1972 and the 1973 ski seasons. However, in the fall of 1974,
no notice was posted and employees Bensinger and Gun-
derson were informed by a leadman whose normal duties
would be to prepare the loaner skis that skis would not be
available. The explanation given Gunderson was that no
bindings were available for the skis.
Tabar testified that skis not of a quality acceptable for
sale on the open market were used in the ski loaner pro-
gram. He further testified that his scrutiny of the files had
indicated to him that employees had taken advantage of
the ski loaner program during the ski season 1974 which
commenced soon after the Board election. He was not
more specific with respect to identity of the individuals and
no documentation of Tabar's testimony was undertaken by
Respondent. Additionally, Tabar testified that ski sales
had transpired in the spring and early fall of 1974 which
had substantially depleted the number of the skis available
for use in the loaner program. In 1972 and 1973 ski sales
had been conducted but the loaner program had nonethe-
less gone forward. Tabar did not know whether a notice
concerning the availability of the skis for loan had been
posted in the fall of 1974.
During relevant times prior to the election, employees
were permitted to use the Company's WATTS telephone
line on Saturdays. It was in the personnel office, and there
was significant demand for and use of the line by employ-
ees.9 Immediately following the election, and at pertinent
times thereafter, employees Day and Klose endeavored to
gain access to the WATTS line on Saturday mornings but
found the personnel office locked and the telephone line
unavailable to them. Day was informed by the plant guard
8 In support of the foregoing, I have considered the testimony of Shirley
Apodaca, Richard Bensinger, Louise Knapp, Phillip Sutton, Lynn Gunder-
son, Richard Rothstein, and William Tabar
v Barbara Vachon, Albert Klose, and Shirley Day so credibly testified
HEAD SKI DIVISION , AMF, INC.
that the line was no longer available for employee use, and
Klose heard rumors that employee use of the line had been
discontinued.
The record establishes that an employee committee ex-
isted which had oversight authority over certain employee
programs, including the WATTS line program . A budget
was established over which the committee had general con-
trol , with the authority to allocate budget sums to various
employee programs such as the ski loaner program and the
WATTS line. The committee had authority , after taking a
consensus of employees in the various departments, to
eliminate a program . No evidence was adduced estab-
lishing that the committee voted to discontinue the
WATTS line program.
(3) The no-solicitation rule
At all material times, Respondent has maintained a no-
solicitation rule which reads as-follows:
The posting of notices or other written material on
Company property by employees and the circulation
or distribution of written material in working areas or
on working time is strictly forbidden. In addition, so-
licitation of any kind during working time is also pro-
hibited.
During the organizing campaign, literature made avail-
able by Respondent's personnel department was placed on
the desk of supervisors and employees were made aware of
its availability.10 Dale Cutsforth, Lonnie Blooding's super-
visor, at a time prior to the election pointed out to Blood-
mg the availability of three separate items of literature
being made available to employees by the Company and
requested he take the literature and read it. Copies of the
same literature were distributed in certain departments
during working time by lead employees." Drew McSherry
passed out literature during working hours, and Bensinger
was interrupted during the course of his worktime by Mc-
Sherry to be presented with procompany literature. Apoda-
ca testified credibly that she observed distribution of com-
pany literature during working hours.
During the spring of 1974 and subsequently, in the fall of
the same year, Richard Benzinger observed employees
passing out literature favorable to the Company's position
on the union issue at points inside the gate leading to com-
pany property. Similarly, during the fall months prior to
the national elections of 1974, political candidates and
their nonemployee supporters were permitted to pass out
literature and meet with employees inside the company
gate. However, on several occasions, Bensinger endeavored
10 Thomas Stevenson so testified. That this practice was not limited to
Stevenson's department alone is suggested by the testimony of Karen Lian
and that of Lonnie Blooding.
11 In this regard I credit the testimony of Shirley Apodaca and Richard
Bensinger. The testimony of Thomas Stevenson reveals that Drew McSher-
ry, a lead individual under his supervision did, in fact, engage in distribution
of company literature. While the testimony of Karen Lian, Apodaca's lead
person, is credited to the extent of supporting a finding that she personally
did not distribute literature to the employees in her department, I nonethe-
less credit the testimony of Apodaca that she, Apodaca, became personally
aware of the involvement of lead personnel in the distribution of company
literature in the plant during employee working time.
165
to pass out literature favorable to the Union at points in-
side the company gate and was instructed by the guard to
move to a point several feet outside the gate. Shirley Apo-
daca had the same experience.12
3. The terminations
a. The termination of Richard Mahoney
(1) The setting
Richard Mahoney was employed by Respondent from
April 3 to July 9. He started as a janitor under C. Phillip
Sutton, lead janitor. In late March or early April, Sutton
informed Hanifin during the course of a general discussion
regarding the union campaign that Mahoney had been vis-
ited by a union representative. Hanifin's criticism of
Mahoney's work thereafter became intense and Hanifin
suggested Mahoney should be terminated. Sutton vigor-
ously defended Mahoney's work. Mahoney later transfer-
red to the tennis moulding area where he operated an ex-
truder machine. Thomas Stevenson was Mahoney's
departmental supervisor after his transfer to tennis mould-
ing. Working in the same department at pertinent times
was Shirley Apodaca who operated a mixing machine situ-
ated approximately 3 feet from the extruder to which Ma-
honey was assigned. In the department is synthesized the
mixture from which tennis rackets are fashioned. Apodaca
had responsibilities for performing certain mixing pro-
cesses and from her machine she transferred the synthetic
mixture or core material, which was fed into the extruder
machine by Mahoney.
The extruder machine which Mahoney operated had the
characteristics of a large meat grinder. The machine was
powered by a small motor which could activate a rotating
shaft within the machine capable of receiving material
placed in the throat-like opening at the top of the machine.
Material processed through the machine was extruded in
rope-like fashion through a cone-shaped opening in one
end of the machine. In actual operation, the core material
received from the mixing machine by the extruder operator
was placed by hand into the opening on top of the machine
and tamped by the operator down into the machine by use
of a blunt-end longhandled wooden tamping device ap-
proximately 12 inches long. Under prevailing operating
and safety instructions, core material was not to be forced
into the machine by direct use of fingers or hand.
(2) Mahoney's injury
On July 9, under the direction of Nancy Platt, a special
mix of core material prepared in the engineering depart-
ment was presented to Apodaca to mix and to Mahoney to
extrude. Platt was present in the tennis moulding area dur-
ing the run of the material. After she had mixed the materi-
al in question, Apodaca ventured the opinion that the core
12 There is evidence that prior to the election Apodaca was called to task
by supervision for making union authorization cards available to employees
who had approached her during working hours or on company property to
obtain cards from Apodaca. Similarly, following the election, Apodaca was
given a written warning for passing out union ballots on working time
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material was too dry and would not extrude properly.
Nonetheless, Platt desired to have the material run through
the extruder machine, and pursuant to plan, Mahoney
commenced the necessary machine operation. Following
proper procedures, he placed core material into the throat
of the machine by hand and tamped the material into the
machine by use of the wooden tamper. Notwithstanding
this, the material failed to extrude in ribbon-like fashion
from the cone-shaped outlet This was observed by Maho-
ney, Apodaca, and Platt. Platt expressed apprehension that
the material on hand would continue to dry out and sug-
gested that Mahoney add more material to the machine.
He did so, following proper manual procedures. The addi-
tional material did not extrude, causing the machine to
stall Platt became concerned and Mahoney showed a hesi-
tancy. Thereupon, Platt suggested that Mahoney add more
core material to the machine on the theory that this would
serve to force the machine to extrude Mahoney complied
but the machine jammed. Mahoney then used the tamping
device in an effort to force the material further into the
machine This did not serve to render the machine opera-
tive and Platt expressed concern that the machine would
overheat. Finally, she suggested that Mahoney endeavor to
remove some of the material from the extruder. In re-
sponse, Mahoney resorted to the tamping instrument for
that purpose but because of the design of the instrument
could not obtain sufficient leverage to enable him to effec-
tuate the removal of any material. Thereupon, he inserted
his hand into the throat of the machine in an effort to
extract material. Mahoney removed two small handfuls of
material but on the third attempt the cylinder in the ma-
chine released and Mahoney sustained an injury to the end
of one of his fingers. Mahoney shut off the machine and
left the area. He obtained medical attention at a health unit
maintained on plant premises.13
(3) Stevenson's investigation
Thomas Stevenson, supervisor of the tennis department
where Mahoney was employed, learned of Mahoney's acci-
dent from a lead lady, Evelyn McCord. Stevenson went to
the nurse's office at the plant and spoke with Mahoney.
Stevenson asked Mahoney what had happened and Maho-
13 The foregoing is based on a consideration of the testimony of Richard
Mahoney, Shirley Apodaca, and Nancy Platt i have also considered the
testimony of Thomas Stevenson and William Tabar insofar as their testimo-
ny may give insight into the incident described above
With respect to the conduct and verbal input of Platt, during the episode
described above, I have relied primarily on the testimony of Mahoney and
Apodaca and credit Platt only to the extent that her testimony is consistent
therewith Stated otherwise , I am unable to credit Platt's testimony which, in
effect, ascribed to herself a passive role in the dilemma which Mahoney
faced when the machine which he was operatingjammed Additionally, I do
not credit her testimony that she instructed Mahoney to shut the machine
off when it failed to extrude I have considered the absence of any reference
to this in her affidavit As I observed Platt testify concerning this aspect of
the entire incident relating to Mahoney , she impressed me as hesitant and
tentative and I did not find her testimony convincing On the other hand,
while Apodaca , as I observed her testify, manifested a clear union bias, her
version of the incident was supportive of the testimony of Mahoney who
impressed me as a thoroughly honest and understated witness, possessing an
unwillingness to shade or stretch the truth in furtherance of his own inter-
ests
ney informed him that he had put his fingers into the ma-
chine in order to release some material. In effect, Ste-
venson, in speaking with Mahoney, observed that he had
instructed Mahoney just prior to the accident not to place
his fingers into the machine. After satisfying himself with
respect to Mahoney's physical condition, Stevenson went
back to the work area and disassembled the extruder ma-
chine.14 During this process, workers gathered around and
miscellaneous comments were made both by Stevenson
and employees with respect to the accident. Stevenson
commented to the group that he had warned Mahoney just
prior to the accident not to put his fingers into the ma-
chine, and Apodaca commented that she too had spoken to
Mahoney in this vein and had endeavored to explain to
him the hazards involved. Another individual commented
that she had told Mahoney about the safety features of the
machine on several occasions is
After reassembling the machine, Stevenson spoke with
Platt and obtained her version of the incident. Platt stated
that Mahoney was extruding and the material would not
come out. She further stated that she had instructed Maho-
ney to shut the machine off in order to remove the material
from the machine. Stevenson then spoke with Hanifin. Ste-
venson imparted to Hanifin the information which he pos-
sessed. Stevenson added that he was going to recommend
that Mahoney be suspended
(4) The decision to terminate
Next, Stevenson spoke with John Bienzle , production
manager, and they together spoke with William Tabar. Ste-
venson again explained what he knew of the incident in-
volving Mahoney, and Bienzle participated in the discus-
sion.lb Additionally, Stevenson stated that he had warned
Mahoney several times, as had other individuals, about
putting his fingers into the extruder machine. Additionally,
Stevenson informed Tabar that he had last instructed Ma-
honey in this regard approximately 90 minutes prior to the
accident. Stevenson recommended that Mahoney be sus-
pended. After listening to Stevenson, and evaluating the
information supplied by Bienzle, Tabar stated that he had
reached the decision to terminate Mahoney. Tabar's obser-
vation came during the course of the conversation and he
had not consulted with Hanifin.17 Both Tabar and Ste-
venson deny having any knowledge at the time the decision
to terminate Mahoney was made, of Mahoney's involve-
ment in union activities.
A few days after his injury, Mahoney returned to the
plant to pick up his paycheck. He spoke with Stevenson
who suggested that Mahoney speak with Hanifin. Ste-
"There is evidence that prior to the special run the machine had been
improperly assembled by Mahoney The Respondent does not raise this as
an issue justifying termination
is The credible and undisputed testimony of Thomas Stevenson supports
the foregoing findings The comments and observations of individuals, as
found above, are considered for their evidentiary value only as reflecting
Stevenson 's state of mind when later he spoke to his superiors in manage-
ment
16 The record suggests that the information which Bienzle possessed con-
cerning the incident was obtained from his discussion with Stevenson
17 The foregoing is based upon a composite of the testimony of Stevenson,
Nancy Platt, and William Tabar
HEAD SKI DIVISION, AMF, INC.
venson accompanied Mahoney to the personnel offices
where Hanifin's personal office was located, but Hanifin
was not in. Thereupon, Stevenson personally informed
Mahoney that he had been terminated for insubordination
and a gross safety violation.18
Tabar testified that in reaching the decision to terminate
Mahoney, he relied on the information imparted to him by
Stevenson which, in his mind, reflected an act of insubordi-
nation on Mahoney's part, when viewed against the safety
instructions and admonition which Stevenson had given
Mahoney approximately 90 minutes before the accident.
Moreover, Tabar testified, in effect, that against the back-
ground of safety instructions and warnings which had been
communicated to Mahoney, his conduct in placing his fin-
gers into the machine constituted a gross violation of safety
instructions. Mahoney concedes that, on the morning of
the accident, he had been warned to keep his fingers out of
the machine.
(5) Safety instructions and warnings
Stevenson credibly testified that on the day Mahoney
commenced working on the extruder machine he fully in-
structed Mahoney on the operation of the machine and
showed him how to assemble, disassemble, and clean the
machine. Stevenson also instructed Mahoney how to turn
on and off the machine and told him that if a problem
should develop with respect to the machine to turn it off
immediately and contact, him. Mahoney had been in-
formed by Apodaca and by other employees that a previ-
ous operator had been injured in the operation of the ex-
truder machine.
At times relevant herein, safety regulations were in effect
which, in pertinent part, decreed that safety glasses must
be worn by all employees at all times in the production-
area and that, in the event of jamming or malfunction of
any machine, all power to the unit should be turned off
and the appropriate supervisor notified. These regulations
were embodied in a two-page document covering plant
safety regulations. The document was, at pertinent times,
posted in the plant. Pursuant to practice, a copy of safety
regulations is presented to each new employee upon hire
and the specific regulations in question were distributed to
employees in their pay envelopes subsequent to their adop-
tion.19 During the oral instructions given new operators,
the content of the safety regulations is not called specifical-
ly to the attention of the new employees. Rather, the safety
hazards of the operation of the specific machine in ques-
is called to the attention of the employee.20 Stevensontion
18 The testimony of Richard Mahoney and Thomas Stevenson supports
the foregoing finding.
19 The credited testimony of Thomas Stevenson supports the foregoing
finding The testimony of Shirley Apodaca to the effect that she received a
copy of the safety regulations in her pay envelope at an unspecified time has
been considered . I have also considered the testimony of Apodaca and
Mahoney to the effect that they could not recall having seen the safety
regulations posted at times prior to the accident. 1 find it unlikely, however,
that the Company would have promulgated plant rules affecting all employ-
ees and would have failed to give them prominent posting
20I have considered the testimony of Richard Bensinger which has a
thrust contrary to this finding but I do not credit Bensinger's testimony in
this regard for it runs counter to that of Stevenson , Apodaca, and Mahoney
167
called these safety matters to the attention of Mahoney
during the course of Mahoney's orientation on the first day
of his service as an extruder operator.
After receiving instructions from Stevenson on the initial
day of his employment as an extruder, Mahoney worked
side by side with another machine operator.- Later in the
day, Stevenson observed Mahoney operating the machine
and using his fingers to press material into the throat of the
machine. Stevenson cautioned him against that practice.
Subsequently, over the ensuing weeks, Apodaca had occa-
sion to caution Mahoney against removing his-safety glass-
es, and during the month of June, Stevenson again ob-
served Mahoney placing epoxy into the throat of the
machine by using his fingers.21 He warned Mahoney in
emphatic terms not to follow this procedure and stated that
he did not intend to caution Mahoney again- Subsequently,
on the morning of the accident, Stevenson observed Mahct
ney again placing epoxy into the throat of the extruder
machine by use of his fingers and told Mahoney in harsh
terms to keep his fingers out of the machine. Stevenson
said that Mahoney's failure to follow this procedure would
result in a loss of his finger and his job "at the , same time."
Stevenson also instructed Mahoney to keep his safety
glasses on at all times 22
(6) The aftermath
In the days following Mahoney's injury, rumors circulat-
ed concerning Mahoney's impending termination. Apoda-
ca heard them and approached Stevenson and spoke to
him. Apodaca stated that she felt that the decision to ter-
minate Mahoney was a miscarriage of justice and that she
accordingly felt compelled to inform Stevenson that Platt
had contributed to Mahoney's injury by insisting that he
continue to place epoxy into the machine as an aid to un-
jamming the machine. In substance, Apodaca` stated that
Mahoney had acted as he did on the occasion in question
in response to Platt's instructions. Apodaca requested that
this be communicated to Hanifin. Stevenson and Apodaca
went to Hanifin's office. Stevenson met with Hanifin in
Hanifin's office, but Apodaca remained outside. Stevenson
was in Hanif in's office for approximately 15 minutes and
upon leaving the office told Apodaca that Personnel would
handle the matter. He was not more definitive.23
21 Sutton had warned Mahoney about removing his safety glasses earlier
during his employment stint
22 The foregoing is based on a careful consideration of the testimony of
Thomas Stevenson, Richard Mahoney, Shirley Apodaca, and C Phillip Sut-
ton. Initially, I am unable to credit the testimony of Mahoney to the effect
that he was warned on only one occasion by Stevenson against the practice
of using his fingers to place epoxy into the machine Stevenson 's testimony
in this regard was substantially more convincing than that of Mahoney and
I credit Stevenson I credit the testimony of Apodaca and Mahoney to the
effect that Apodaca did not, in fact, have occasion while working in con-
junction with Mahoney to warn him against the use of his hands in trans-
mitting epoxy to the machine . I am convinced that the testimony of Ste-
venson suggestive of the contrary, resulted from a misinterpretation of the
nature of Apodaca 's comments to him , following the accident Apodaca
credibly testified that she had on many occasions , prior to the accident,
cautioned Mahoney against falling to wear his safety glasses It was this
comment which Stevenson incorrectly interpolated.
23 The testimony of Shirley Apodaca relating to the foregoing was con-
Continued
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the occasion in question, while Apodaca waited out-
side, Stevenson spoke with Hanifin in Hanifin's office and
explained in some detail his information concerning the
events surrounding Mahoney's accident as well as his inter-
pretation of the rationale surrounding Tabar's decision to
terminate Mahoney. Hanifin accepted Stevenson's state-
ment and did not recommend any departure from Tabar's
decision.24
Three or four days later, Apodaca approached Tabar
and conveyed to him the same information concerning
Platt's role in Mahoney's accident as she had previously
described to Stevenson. Additionally, Apodaca sought to
learn Tabar's reason for the termination, and Tabar stated
that it was a decision of the personnel department and gave
her a full explanation. This led to a discussion of safety
regulations and the extruding process. Apodaca labelled
the Company's termination of Mahoney as unfair. Nothing
Tabar told Apodaca suggested that the decision with re-
spect to Mahoney was based on union considerations.25
During the summer of 1974, subsequent to Mahoney's
termination, a Workmen's Compensation hearing was held
before a referee. Mahoney, Stevenson, and Hanifin ap-
peared at the hearing and testified. As a consequence of
testimony received, the referee reduced by approximately
one half the amount of compensation which Mahoney nor-
mally would have received. The basis for this reduction
was a finding that Mahoney had violated a safety rule.26
On October 11, Mahoney was in the plant parking lot
and encountered Robert Lindley, manager of safety, secur-
ity, and training for Respondent. Addressing Lindley,
Mahoney stated, "If this place goes up in flames, you will
know who did it." Lindley called the sheriff and Mahoney
was charged with one count of disorderly conduct and one
count of harassment.27
The parties stipulated that disorderly conduct is a class I
petty offense under the Colorado Criminal Code and car-
ries a maximum penalty of a $500 fine and/or 6 months'
imprisonment in the state penitentiary. Harassment is a
vincing and I credit her. On the other hand, Thomas Stevenson was unable
to recall these occurrences and he testified that he recalled only Shirley
Apodaca conveying to him her desire to speak with Tabar concerning
Mahoney's termination. The credited evidence discussed below reveals that
this transpired later. I find Stevenson's testimony insufficient reason for
discrediting Apodaca and I reject so much of Stevenson's testimony as may
be interpreted as a denial of Apodaca's testimony.
24 The testimony of Thomas Stevenson supports the foregoing finding.
Stevenson placed the event as transpiring subsequent to Mahoney's termi-
nation, i.e., his actual severance. I do not credit Stevenson in this regard for
I find, as set forth above, that Stevenson actually had met with Hanifin a
few days earlier, at the behest of Apodaca, prior to Mahoney's actual sever-
ance. I find it quite unlikely that the substantive discussion which Stevenson
described would have transpired during the course of still another meeting.
Thus, I find that Stevenson was incorrect in his assessment of the chronolo-
gy of this conversation and further find that the conversation actually tran-
spired while Apodaca remained outside Hanifin's office, a few days after
the injury to Mahoney but prior to the time Mahoney was given his check
and told of his termination.
25 The foregoing is based on a composite of the credited testimony of
Shirley Apodaca and William Tabar.
26 The foregoing is based on the credited testimony of Richard Mahoney
and Thomas Stevenson. I have also considered the testimony of Shirley
Apodaca.
27 The foregoing is based on the credited testimony of Richard Mahoney
and Robert Lindley.
class III misdemeanor under the Colorado Criminal Code
and carries a maximum fine of $50 and maximum penalty
of $750 fine and/or confinement in the state penitentiary.
The parties further stipulated that Richard Mahoney
pleaded guilty to the count of harassment and the charge
of disorderly conduct was dropped. He received a deferred
sentence. On May 19, 1975, the count of harassment was
dismissed by the court and all records except the record of
arrest have now been expunged.28
4. The termination of Vachon
Barbara Vachon worked in the employ of Respondent
from March 7, 1973, until August 8, 1974, when she was
terminated from her position as a core wrapper, assigned to
the second, or afternoon shift.
During the month of June, Vachon requested medical
leave in order to enter the hospital for a surgical operation.
Vachon made the request to her supervisor, Andrew Cobb,
informing Cobb that it was presently expected that she
would enter the hospital on July 8 and be hospitalized for
approximately 1 week. Vachon further informed Cobb that
she anticipated a week of recuperation after leaving the
hospital. Her request was for medical leave commencing
July 8 and for a grant of 3 days' vacation time leading into
the July 4 weekend. Cobb authorized 3 weeks' medical
leave to cover "contingencies." He told Vachon to obtain
and present a medical release on her return. Vachon took
her vacation and entered the hospital as scheduled on July
8. Because of complications, Vachon was actually hospital-
ized 2 weeks.
Upon being released from the hospital on July 22, her
physician advised her against returning to work but in-
formed Vachon that it was medically permissible for her to
travel to New Hampshire for the purpose of visiting family.
Her physician indicated, however, that she should remain
away from work for 2 weeks and released her from his
medical care on July 22.29
Following her release from the hospital, Vachon ap-
proached her neighbor and leadlady, Faye Fullen, and in-
formed Fullen that her physician had instructed her to re-
main away from work for 2 additional weeks for the
purpose of recuperation. Vachon also told Fullen that she
was going to take a trip to New Hampshire to visit her
family. Fullen had previously communicated messages
from Vachon to company personnel, including supervision,
and she transmitted Vachon's message to Cobb. She in-
formed Cobb that Vachon had come over to her house and
had told her that she was going to New Hampshire for 2
weeks. She additionally informed Cobb that Vachon had
stated that she would be back to work on a Monday when
the 2 weeks were up.
Vachon returned from New Hampshire on Sunday, Au-
gust 4. Fullen was aware of Vachon's return. When Fullen
28 The document embodying the stipulation of the parties has been re-
ceived sua sponte as an administrative law judge exhibit and is made part of
the record.
29 Respondent adduced hearsay testimony, considered below, to the effect
that Vachon's physician had given his approval to Vachon to return to work
immediately after July 22, No credible verification of this was furnished and
I credit Vachon in finding she was told by her physician to recuperate for 2
weeks before returning to her work tasks.
HEAD SKI DIVISION, AMF, INC. 169
reported to work the following afternoon, August 5, Cobb
inquired into the whereabouts of Vachon. Fullen stated
that she did not know but that she was aware that Vachon
had returned home the previous afternoon.
In the meantime, on the morning of August 5, Vachon
had endeavored by telephone to contact her physician for
the purpose of getting a medical release which Cobb, prior
to her medical leave, had informed her would be necessary
on her return. In speaking by telephone to the receptionist,
she was informed that her physician was not in. She did
not inquire further. However, the following day, Tuesday,
August 6, she went to her physician's office but found that
he was on vacation. The afternoon of August 6, Vachon's
daughter informed Fullen that Vachon had been unable to
obtain a medical release by reason of her physician's ab-
sence on vacation. Fullen was also informed by Vachon's
daughter that it would be impossible for her mother to
receive the necessary medical release until Friday of that
week. When Fullen reported to work on the afternoon of
Tuesday, August 6, she told Cobb that Vachon was having
trouble obtaining her medical release and that because
Vachon's physician was on vacation, Vachon would be un-
able to obtain the release until Friday. Cobb did not re-
spond directly to the information 30
Vachon did not return to work during the week of Au-
gust 5 and on August 7, Fullen expressed annoyance to
Cobb over Vachon's absence and asserted, in substance,
that she challenged Vachon's good faith with respect to the
delay in obtaining a doctor's release.
In the meantime, on August 5, Cobb had spoken with
Tabar and informed him that he had understood that Va-
chon was to return to work on August 2. That she had not
done so and that, further, she had failed to report to work
on Monday, August 5. Cobb informed Tabar that
Vachon's medical leave had expired on Monday, July 29,
and that to this point in time she had not shown up for
work. Tabar recommended that they wait and see if Va-
chon reported to work31
On August 7, Cobb recommended to Hanifm and Tabar
that Vachon be suspended in accordance with company
policy. It was Cobb's view that having failed for 3 days to
communicate with the Company concerning her absence
and having become long overdue from her medical leave,
she should be suspended.
In this regard, Cobb went first to the personnel depart-
ment and talked to Hanifin to whom he articulated his
30 Andrew Cobb, denies having been informed by Faye Fullen on Tues-
day, August 6, that Vachon was having difficulty obtaining a medical re-
lease However, I find no basis for concluding that Faye Fullen would have
failed to communicate the information in her possession concerning
Vachon's status , and there is no record basis for concluding that Fullen had
not been informed on Tuesday afternoon of the anticipated delay in
Vachon's ability to obtain a medical release from her doctor. I find that she
had, in fact, been informed and that she did, in fact, communicate this in
detail to Cobb on the afternoon of Tuesday, August 6 Her cross -examina-
tion testimony in this regard was convincing and augments her testimony on
direct
3i The Respondent adduced no credible evidence to the effect that Tabar
questioned Cobb why, if Vachon's medical leave had expired on July 29, he
had, in effect, granted a week's grace period to her without taking some
personnel action. Tabar testified, as discussed below, that this was a "sensi-
tive" period of time.
recommendation. Thereafter; he spoke separately with Ta-
bar. Cobb reviewed for Tabar's benefit the situation which
pertained with respect to Vachon. It was Cobb's expressed
view that Vachon's medical leave had expired on July .29,
that he had received a message that Vachon would return
on August 5; that she did not return on the date in ques-
tion but conveyed a message to the effect that she would
return on August 7; and that he heard nothing at all from
her as of August 7. Cobb reiterated his recommendation
that Vachon be suspended 32 Thereupon, Cobb and Tabar
went to Hanifin's office.
During the meeting in Hanifin's office, Hanifin and Ta-
bar indicated their concurrence with Cobb's recommenda-
tion. It was decided that a telegram would be sent to Va-
chon. The telegram was received by Vachon on the
morning of August 8 and it informed her that she had been
suspended from work. It instructed her to report to the
personnel office at 3 p.m. on August 8 to meet with Hani-
fin.
Vachon reported as directed and met with Hanifin,
Cobb, and Tabar in a meeting which lasted approximately
30 minutes. During the course of the meeting, Vachon was
told that she had not followed company policy in renewing
her medical leave. Pertinent provisions of the company
handbook were referred to Vachon who stated that she had
relayed the message of the delay in her ability to obtain a
physician's release through Fullen. Cobb asserted that he
had not received the message. Vachon was asked why she
did not call in and inform the Company and she stated that
she "didn't have the money to go walking and calling up
people" and that she had conveyed the message through
her leadlady. Hanifin stated that the company nurse had
been informed upon contacting Vachon's physician that
Vachon had been released for work "two weeks, after July
9." 33 In substance, Vachon asked the company partici-
pants to make a decision with respect to her status. She was
told to leave the office and stand by. She did so, and when
she was called back into the office she was informed of her
termination.
Tabar testified that Vachon was terminated because of
an infraction of company policy with reference to leaves of
absence and because she had been absent for a period of 3
days without notifying her supervisor.
Tabar testified that under company policy which gov-
erned medical leaves of absence an employee could obtain
a leave of absence for medical reasons for specific periods
up to a period of 30 days. Requests must be submitted to
and approved by the director of employee relations. In the
event an employee desires to seek an extension of medical
leave, it is necessary, under policy prevailing at pertinent
times, to make application with the director of personnel or
the director of employee relations. Extensions may be
granted to a maximum of 90 days.
Tabar also testified that it is company policy to termi-
nate an employee who does not advise supervision of the
reason for his or her absence for a period of 3 days. Ab-
32 As in their prior discussion, the record reveals no disposition on
Tabar's part to probe more deeply into Cobb's tacit acquiescence into
Cobb's lack of followup after Vachon's failure to report for duty on July 29.
33 No record documentation of this was furnished . Neither the nurse nor
Vachon's physician was called to testify.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bence in excess of 3 days without notice to supervision re-
sults in automatic termination under prevailing policy, ac-
cording to Tabar's testimony. Tabar testified that approxi-
mately 24 or 25 employees had been terminated for breach
of the 3-day, no call-in policy, but that he had waited ap-
proximately I week to terminate Vachon because of the
"very sensitive timing" relating to the pendency of the elec-
tion . Conceding his awareness at the time in question of
Vachon' s membership on the union organizing committee,
Tabar explained that the Company did not wish to act
hastily with respect to Vachon.
The regulation relating to medical leave is contained in a
copy of the Company's handbook which is made available
to employees . Vachon was familiar with the rule. On the
other hand , the 3-day absence, no call-in regulation justify-
ing automatic termination is contained only in a policy
memorandum distributed to supervisors . It is the assigned
responsibility of supervision to familiarize employees with
this rule.
Moreover, the handbook contains a section dealing with
attendance . Under the heading , "Attendance" is the fol-
lowing paragraph : "If you are going to be late or absent,
call the plant receptionist , (449-2000) and leave the mes-
sage with her. You are required to call into the plant each
day you are going to be absent."
In practice , employees had frequently conveyed mes-
sages relating to tardiness and absence to supervision to
lead or other personnel. On several occasions , Fullen had
relayed messages to Cobb from employees concerning
these matters and Cobb had accepted the information
without comment . On at least one occasion prior to the
matter here under scrutiny, Fullen had relayed a message
to Cobb from Vachon concerning her attendance , and Ful-
len had previously served as a conduit of messages from
Vachon to the Company, prior to August 1974. Moreover,
other employees had followed the practice of reporting in-
tended absences to lead personnel.34
Nonetheless , during the early summer of 1974, Cobb en-
deavored at departmental meetings to impress employees
with the necessity of communicating intended absences di-
rectly to him and not through intermediaries . However, his
instructions were not uniformly followed.
5. The termination of Lonnie Blooding
Lonnie Blooding worked in the employ of Respondent
from October 1973 to August 1974. His last assignment in
the employ of the Company was in the paint room where
approximately 10 individuals were employed on the three
shifts , which were then being worked Blooding worked
under the supervision of Dale Cutsforth.
Blooding was planning to be married on August 10 and
at that point in time he had accrued 1 week 's vacation.
Accordingly, on August 9 he submitted to Cutsforth his 2
weeks' notice of intention to resign . He informed Cutsforth
that he had obtained a better payingjob with another em-
ployer. He also informed Cutsforth that he intended to re-
turn to school in late September . Cutsforth expressed his
34 The testimony of Barbara Vachon, Faye Fullen , Lois Dahlstrom, and
Shirley Apodaca supports the foregoing finding
regret over Blooding 's decision to resign and informed him
that he was a good employee who had achieved proficiency
in his work.
Blooding commenced his vacation on August 10 and
during the days that followed , his job was posted . Seven or
eight employees bid for the job and a selection was made.
This had been accomplished by August 14 or 15. The suc-
cessful bidder was an employee employed in a department
other than painting.
When Blooding returned from his vacation after a
week 's absence, he informed Cutsforth that he desired to
"stay on" at the Company because he would be going to
school , and did not want to start a new job. Cutsforth in-
formed Blooding that his job had been filled but that he
would speak with Bienzel concerning the matter. He re-
ported back that he had been unable to speak with John
Bienzel , but that the information he had received from his
superiors was not promising . Cutsforth reported Blooding's
request to Tabar and also spoke with Hanifin . Tabar is
Cutsforth's immediate superior and Cutsforth reports to
Tabar on personnel matters relating to his department. Ta-
bar instructed Cutsforth that as the successor to Blooding
had been selected , a consistent application of policy dictat-
ed that the selection should not be countermanded. Cuts-
forth reported to Blooding that the bid procedure had been
followed and the selection made and that the Company
could not now inform the successful bidder that the job
was not available . Blooding expressed his understanding of
the matter.
On two recent occasions prior to the resignation of
Blooding, individuals had left the employ of Respondent
but had returned and been awarded anotherjob. One indi-
vidual was a supervisor who left with the understanding
that a job opening would be found for him upon his return.
The other was a rank -and-file employee who indicated his
intention to resign but within 2 days changed his mind. His
position had not been posted or filled.
Cutsforth testified credibly that he selected Blooding's
successor . While the details of the selection process were
handled by the personnel department, the selection was
Cutsforth's. Neither Tabar nor Hanifin endeavored to dic-
tate the selection. Indeed, there is no evidence of record to
suggest that either individual made any input.
The record reveals that there was no explicit discussion
between Blooding and Cutsforth, on the one hand, and
Cutsforth and Tabar or Hanifin, on the other, of alternate
employment for Blooding . There is no indication in
Blooding's testimony that he pressed the matter. Tabar
credibly testified that Blooding's situation varied from that
of the other rank-and-file employees who had resigned but
quickly recanted because, in substance , Blooding's resigna-
tion had actually led to personnel action resulting in the
selection of a successor ; and Blooding had conveyed his
intention to leave the employ of the Company in a short
time to return to school . Tabar testified that , although the
Company hired a large number of summer employees, the
resignation of Blooding occurred late in the summer and he
did not desire to retain Blooding for the interim period left.
Cutsforth testified that he did not hire employees who soon
planned to return to school.
After the election , and when Blooding's employment
HEAD SKI DIVISION , AMF, INC.
had ceased , Fullers expressed the opinion to Cobb, her su-
pervisor, that Blooding's treatment had been unfair. Cobb
responded that Blooding was a potential "yes" vote -for the
Union.35
Conclusions
a. The 8(a)(1) violations
The evidence of record establishes, and I find, that prior
to the Board election on August 16 Respondent, through
supervision, engaged in conduct which- violated Section
8(a)(1) of the Act.
Specifically, the evidence establishes that, in April, Han-
ifin unlawfully interrogated Klose and Mahoney concern-
ing their meeting with a known representative of the
Union, including Mahoney's-card-signing activities. Then,
in the preelection period, Respondent applied a valid-no-
distribution rule in a disparate manner by countenancing
distribution of company literature by lead personnel in the
plant during the working hours, while strictly enforcing the
rule with respect to the distribution of prounion literature.
Additionally, Respondent bent the rule as it pertained to
distribution of material on company property, to accom-
modate individuals other than union advocates, but strictly
enforced the situs aspect of the rule-with respect to union
advocates. In July, as.the-election drew closer, in speaking
with employee Dahlstrom, Hanifin uttered a threat of more
onerous working conditions in the event the -Union pre-
vailed; and Respondent conducted a poll of employees
which, in the context of the election issues then extant, was
designed to disclose the leanings and preference of the to-
tal employee complement which, with exceptions not here
relevant, was subjected to the poll. The poll was conducted
against a backdrop of, open and expressed conflict between
the Company and the Union with respect to, the inclusion
in the voting group of certain categories of "temporary"
employees. Each party had publicized its position and the
Union favored a liberal interpretation which would max-
imize the participation in the Board election of employees
not clearly identifiable as "permanent." The Company
made known its preference for limiting the voting group to
employees with greater permanency. As conducted, the
poll served as a plebiscite of a sort, as between the two
opposing positions. It was conducted on a departmental
basis and separate -departmental tallies were made. While
the essentially crude polling method employed was not
purposely structured by the Company to disclose individual
voting preference,-no precautions were taken to guarantee
secrecy even though some departments were populated by
only a small complement of employees. Employees rec-
orded their preferences often, with supervisors in the close
vicinity. No advance assurances against retribution had
been given. The poll thus placed employees in jeopardy of
unwittingly or unwillingly disclosing their union sympathy.
The potential-given ' the circumstances of the poll-is suf-
ficient to offend the statute. The Act constructs a shield
against employer interference in the union affairs of em-
3s Faye Fullers so credibly testified. An electionrerun was a possibility at
the time in question.
171
ployees, and a reasonable application of the statutory pur-
poses commands-a finding that.the poll here conducted by
Respondent ran counter to statutory purposes and violated
Section 8(a)(1) of the Act 36
Respondent carried its unlawful activities into the post-
election period to visit retribution upon the employees for
their union involvement and to sound a warning as to the
future in the event of a rerun of the election. Respondent
did this by severely curtailing job postings in certain job
categories which prior to the election had -routinely been
posted; by withdrawing from employee use the WATTS
line and by failing to offer the ski loaner program. The
termination of the WATTS line availability immediately
after the election graphically conveyed to employees an
attitude of retribution and the curtailment of job posting
and cessation of the ski loaner program in the month fol-
lowing the election conveyed the same message. I find
nothing in the defense proffered by Respondent to justify a
conclusion that the cessation of the ski loaner program, em-
anated from a dearth of available skis; nor do I find that
the mere suggestion of authority in an employee committee
to modify or terminate programs justifies the inference that
employee action rather than management mandate
brought about the end of either WATTS line use or the ski
loaner program. Additionally, the evidence of record sug-
gesting that supply had been depleted by ski sales is not
sufficient to overcome the inference that only the failure of
the Company to issue the essential directive that skis be
prepared for rental was responsible for the absence of a
sufficiency of loaner skis.
Finally, I find that the evidence introduced by the Gen-
eral Counsel preponderates in favor of a finding that Re-
spondent violated Section 8(a)(1) by failing to post jobs at
the Boulder plant following the election. The record estab-
lishes to my satisfaction that job openings occurred at
Boulder which, under practice prevailing prior to the elec-
tion would have been posted. On the other hand, I find no
basis for faulting the Company for not pursuingnormal job
posting procedures in the restructuring of the employee
complement at the Broomfield facility. Considerations at-
tached to the staffing of that facility warrant this conclu-
sion.37
b. The discriminatory discharges
I further find that the evidence preponderates in favor of
a finding that Respondent violated Section 8(a)(3) and (1)
of the Act by terminating Richard Mahoney and Barbara
Vachon. I find, however, the record does not support a
finding that Lonnie Blooding was unlawfully terminated.
Rather, I find that he voluntarily resigned his employment
and Respondent -was guilty of no postresignation discrimi-
nation with respect to Blooding.
The terminations from employment of Mahoney and
Vachon are found to have been pretextual and are similar
36 Salient to this finding is the observation that by departmentalizing the
voting the Company could best gauge areas of company strength and identi-
fy enclaves of union support
37I do not view the complaint as challenging the staffing of the Broom-
field facility on grounds that the selection process was tainted by antiunion
considerations . This issue is not before me. -
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the disclosed willingness of Respondent to seize upon a
plausible excuse for effectuating the termination of em-
ployees known or suspected to have had prounion affinity.
The two terminations here under scrutiny are likewise simi-
lar in that, in each instance, a basis for discipline existed
but for unlawful strategical reasons the most severe form of
personnel action was chosen. It is concluded that, but for
the union affinity of Mahoney and Vachon, their re-
spective terminations would not have been effectuated.
With respect to Mahoney, the record supports the find-
ing, which I make, that Hanifin knew that Mahoney had
signed an authorization card. While Tabar's declaration
that he was not aware of Mahoney's prounion manifesta-
tion when he terminated Mahoney is not directly refuted,
in drawing an inference on the question of knowledge,
Tabar's assertion must be assessed against Hanifin 's state-
ment to Apodaca and against the hasty, aberrant nature of
Mahoney's termination. I infer and find that, despite
Tabar's testimony to the contrary, Tabar believed to the
point of certitude at the time that he terminated Mahoney
that Mahoney supported the Union. In this regard, the rec-
ord discloses that Tabar was in charge of the campaign to
combat the Union's organizational efforts; that he coordi-
nated to some degree these efforts and his general person-
nel decisions with Hanifin; that, fully aware of Mahoney's
card-signing activity, Hanifin had endeavored to adversely
influence Mahoney's janitorial leadman against Mahoney,
and to obtain Mahoney's early termination on extremely
tenuous grounds; and that the Company was endeavoring
to counter the Union, and desired to gain the most advan-
tageous voting unit composition possible. Given these cir-
cumstances, it defies common logic to assume that in the
period prior to Mahoney's termination his union affinity
had not been conveyed by Hanifm to the management of-
ficial vested with guidance control over the company cam-
paign effort. In short, as found, I infer knowledge to Tabar
and attribute antiunion motivation to him.
Against the background of the above, I find upon the
record as a whole that Mahoney had a propensity to use
his hands in a potentially dangerous manner to facilitate
the feeding and operation of the machine to which he was
assigned. I further find that he had been warned by super-
vision concerning the matter, and that the last such warn-
ing preceded the accident of July 9 by only an hour or
more . However, I further find that Stevenson had not fol-
lowed personnel procedure by issuing written warnings to
Mahoney and that the accident involving Mahoney tran-
spired under severely stressful conditions involving the ac-
tive participation of an individual, Nancy Platt, who, while
not a supervisor, was acting on the day of the accident in
an oversight and instructive capacity fully aligned with the
interests of Respondent. As found, Platt, caught up in the
dilemma which confronted Mahoney in the brief moments
when the machine clogged and failed to function properly,
played an instructive and directive role which added to the
dilemma confronting Mahoney and served as a motivating
factor in his desperate effort to free the machine by im-
proper use of his fingers 38
3s Clearly , in the prevailing circumstances , blanket instructions to turn off
the machine in event of problems, were overcome as imperative modus oper-
The information which came to the attention of Ste-
venson, Mahoney's supervisor, did, in point of fact, reflect
adversely on Mahoney, and, of course, Stevenson knew
that just prior to the accident he had given Mahoney a
safety warning. Stevenson also knew that Platt had been
present when the incident transpired and he had obtained
Platt's version of the matter. This was communicated to
Hanifin with the recommendation that Mahoney be sus-
pended. Tabar and Bienzel next considered the matter al-
legedly in context only of the information furnished by
Stevenson, and Tabar decreed that Mahoney must be ter-
minated. The decision which Tabar reached was achieved
without according Mahoney a reasonable opportunity to
state his version of the incident.39 No hearing was held-
although procedure appears to dictate one in "normal" cir-
cumstances-and apparently no in-depth search of the per-
sonnel records was undertaken, for Tabar's decision was a
quick one based entirely on Stevenson's oral version of the
incident. If the personnel records had been scrutinized, no
written warnings from Stevenson to Mahoney would have
been found, and this would have disclosed to a dispassion-
ate evaluator that Mahoney's safety offenses may not have
been as serious as his supervisor had proclaimed.
The record discloses no convincing basis for concluding
that quick, incisive, and decisive action with respect to the
Mahoney incident was essential to protect Respondent's
legitimate interests. It is to be remembered that Stevenson,
the supervisor most intimately involved and affected by the
incident, had recommended suspension. It is, therefore,
reasonable to conclude that, at least in Stevenson's mind,
the offense was not so grave as to compel purgative or
excisive action on the part of management. It is thus to be
inferred that Stevenson held the conviction that sufficient
imprint could be made upon Mahoney and other employ-
ees by following the suspension route. Company interests
would remain protected. Nevertheless, on grounds that
Mahoney had engaged in a gross violation of safety regula-
tions and had acted in an insubordinate manner to Ste-
venson, Tabar dispensed with the hearing process and di-
rected Mahoney's immediate termination. He adhered to
this position even though, prior to Mahoney's actual depar-
ture from employment, the role of Platt had come to the
attention of management 4°
It involves no challenge to Tabar's authority to con-
clude, as I do, that in the prevailing circumstance, his deci-
sion may not stand under the statute because it must be
found to have been tainted by antiunion hostility. Disre-
garding the counsel of Stevenson, Tabar' indulged in over-
kill, casting a fatal pallor and suspicion over his act. He
acted as he did, I find, for reasons violative of Section
8(a)(3) and (1) of the Act.
I find a similar excess of the termination of Barbara Va-
chon.
ands by reason of Platt's interposition.
39 Stevenson had questioned the injured Mahoney in the immediate after-
math of the accident and while the disquieting effects of the entire episode
still affected him
40 The postdischarge reduction of Mahoney's workman's compensation
award supports the record evidence of Mahoney's breach of safety precau-
tions, but does not substitute for independent findings made by a trier of
fact on a record fully developed during the course of an adversary unfair
labor practice hearing.
HEAD SKI DIVISION, AMF, INC.
The record evidence establishes that initially Cobb
granted Vachon medical leave to Monday, July 29, and
informed Vachon that it would be necessary for her to
provide a medical release on her return. As found on credi-
ble and convincing evidence, Cobb learned through Fullen
that Vachon's absence would extend I week beyond July
29-i.e., to August 5-and he accepted this information
without resorting to any form-of adverse personnel action.
Not until the afternoon of August 5 did Cobb so much as
broach the subject of Vachon's absence to Tabar. Signifi-
cantly, Tabar treated Cobb's advisory in a manner which
disclosed that he, like Cobb, found no fault in Vachon for
"overstaying" medical leave. The asserted concern of Ta-
bar was with the prospect of her continued absence. He
didn't press Cobb for an explanation of the week's lag from
July 29 to August 5 because he recognized through Cobb's
inaction that an extension of leave had explicitly or implic-
itly been granted. His generosity towards Vachon had thus
been imposed and he had no plausible alternative. He ap-
preciated, as Cobb did that, as matters turned out, Fullen
had served as an effective conduit of information from Va-
chon. Thus, in the prevailing circumstances, Tabar coun-
seled patience for he anticipated that if Vachon's absence
continued for 3 consecutive days from August 5 through
August 7, a basis for colorably legitimate disciplinary ac-
tion would arise under the separate 3-day absent-no-call-in
rule. Then, the following day, Cobb received the informa-
tion from Fullen concerning Vachon's inability to obtain a
medical release. He knew then, or had basis for knowing,
that Vachon would be absent for the balance of the week,
until she obtained the medical release. On Wednesday, Au-
gust 7, when Vachon's anticipated absence materialized,
Cobb again consulted with Tabar and a telegram was sent
convening a hearing. Fullen' s message concerning Vachon
had thus served to foil Tabar's hopes for termination
grounds based on 3 days of unexcused absence, but it is
clear that Tabar decided to proceed on a pretext, ground-
ed,-instead, on Vachon's failure to renew her medical leave.
Tabar knew, of course, that Vachon was on the organizing
committee and the Union had given voice to an issue in-
volving Vachon and management in a leaflet distributed
during the course of the campaign. Moreover, at this point
in time, the scheduled Board election was drawing closer.
Vachon's termination would serve the dual purpose of
sounding a warning to employees disposed towards the
Union and of eliminating a vote in favor of the Union in
the forthcoming election.
A careful scrutiny of the record compels a conclusion
that the hearing held pursuant to the August 7 telegram
was a pro forma affair convened merely to formalize a deci-
sion already reached. It is to be noted that during the
course of the hearing, Vachon informed Tabar and other
management personnel present that she had communicat-
ed through Fullen her inability to obtain the medical re-
lease which she understood to be requisite. On the other
hand, Cobb inferred in a dialogue with Tabar that he had
received no message from Vachon during the week and his
version was ostensibly accepted- by Tabar. Fullen,
Vachon's lead lady, was not consulted, even though she
was the one individual who could shed light on the bona
fides of Vachon's claim. Interestingly, Fullen, to Cobb's
173
knowledge, had.vented criticism against Vachon and could
have been expected to provide a balanced input. In any
process legitimately fashioned to elicit truths, Fullen's pres-
ence could reasonably be characterized as essential.
A further indication of the ritualistic character of the
hearing accorded Vachon was the introduction during the
course of the meeting with Vachon of the motion that the
Company had information establishing that Vachon's phy-
sician had released her for duty immediately following her
July 22 hospitalization. This inference of malingering was
not verified in any concrete terms for Vachon's benefit
and, of course, she was not in any position during the
course of the brief meeting to effectively challenge the
hearsay allegation. Notably, despite asserted possession of
this information Respondent took no definitive action fol-
lowing its receipt to memorialize it as a basis for discipli-
nary action. The singular absence of any followup or relia-
ble verification of the malingering concept warrants an
inference that management was building a case to buttress
a preordained decision and had no sound underpinning for
it.
A final element of the meeting which reveals its surface
nature and casts substantial doubt upon the legitimacy of
the decision reached by Tabar to terminate Vachon, is the
absence during the course of the meeting to any reference
to Vachon's asserted breach of the 3-day, no-call-in provi-
sion. Carefully analyzed, the credited record evidence es-
tablishes that the preoccupation of management and the
entire thrust of management's dialogue with Vachon relat-
ed to her asserted failure to renew her medical leave. It was
not until after the decision to terminate her had been
reached that Vachon was given indication that her 3 suc-
cessive days of absence commencing with August 5 served
as an asserted ground for her termination. The belated ma-
turing of an ultimate ground for termination bears the
clear indicia of a rationalized defense and I reject it as a
valid explanation for Vachon's termination. I interpret it as
additional proof of an improper motive.
In sum, the evidence pertaining to Vachon's termination,
under all of the prevailing circumstances indelibly defined
in the record, including her union affinity, the medical cir-
cumstances attending her absence, the not untypical role
which Fullen played as a conduit of information from Va-
chon to supervision and management, the perfunctory na-
ture of the hearsay accorded her, and the stake which Re-
spondent had in removing Vachon from the voting unit
while at the same time impressing other voting unit em-
ployees with the authority of management to influence
their work destiny, all support the conclusion that
Vachon's termination was pretextual. As with Mahoney,
Respondent resorted to the most severe form of discipline
in a circumstance which was accompanied by highly exten-
uating considerations. The quality of Vachon's perfor-
mance as an employee was never placed in issue. Her dis-
inclination to more aggressively inform Respondent of her
job intentions may well have warranted some form of disci-
pline, but the record facts establish to my satisfaction that
the form chosen was selected to serve antiunion methods
and was discriminatory within the meaning of Section
8(a)(3) of the Act.
On the other hand, I am of the opinion and find that the
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations which attached to the termination of Maho-
ney and Vachon did not carry over to the personnel action
affecting Lonnie Blooding. Blooding's separation from em-
ployment occurred through voluntary resignation motivat-
ed by his desire to improve his employment status. The
vacancy created by his resignation was filled pursuant to
normal procedures and antiunion considerations regarding
Blooding were not present in the selection of his successor.
When Blooding returned and announced his change of
mind, he did not press for assignment to a new or different
job and there, were valid reasons attending the season of
the year and the known school plans of Blooding to ex-
plain Respondent's passivity in not actively recruiting him
to a new assignment. Clearly, on the record before me,
Respondent had no legal obligation to countermand its se-
lection of Blooding's replacement, and the record is too
murky with respect to alternative employment, vacancies
and Blooding's own initiative at the time-as distinct from
afterthought-to assess legal responsibility against Re-
spondent for failing to make use of Blooding's proffered
services.
In counterpoint, the timing of the events surrounding
Blooding's resignation, and the demonstrated willingness
of Respondent to terminate employees to counter the
Union, support the General Counsel's allegation with re-
spect to Blooding. The theory of Cobb expressed to Fullen
that the decision with respect to Blooding had been influ-
enced by antiunion considerations has been carefully as-
sessed but does not, in my opinion, tip the scales in favor
of the General Counsel. Cobb was not shown to have
played any role in the Blooding matter, and his conjecture
may well have reflected nothing more than an informed
insight into the discrimination visited upon Vachon, and
an extension of that knowledge into a supposition regard-
ing Blooding. On the evidence as I view it, I am compelled
to find that the General Counsel has failed to prove the
allegation relating to Blooding by the preponderance of the
evidence, and I shall dismiss that allegation of the com-
plaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and take certain-affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully terminated
the employment of Richard Mahoney and Barbara Vachon
in violation of Section 8(a)(3) and (1) of the Act, I shall
order that Respondent offer Mahoney and Vachon imme-
diate and full reinstatement to their former or substantially
equivalent positions of employment, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of the discrimination against them 41 Backpay
shall be computed in the manner prescribed in F. W
Woolworth Company, 90 NLRB, 289 (1950), together with
interest in accordance with the policy of the Board as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Having found that Respondent unlawfully terminated or
eliminated certain employee benefits or programs, and for
discriminatory purposes ceased for a period of time posting
job vacancies arising at the Boulder facility -and involving
employees employed at the Boulder facility, I shall order
Respondent to reinstate said employee benefits and pro-
grams and to prospectively pursue a nondiscriminatory job
posting and job bidding program with respect to its em-
ployment complement. Because the evidence of record is
imprecise with respect to the number of jobs affected at the
Boulder facility by Respondent's cessation of its job post-
ing program for lead personnel and rank-and-file employ-
ees, and because the record is not clear as to when Respon-
dent resumed the prior practice of posting lead and
rank-and-file jobs at the Boulder facility, I shall order that
all lead and rank-and-file job vacancies filled at the Boul-
der facility during the period August 16, 1974, to Decem-
ber 16, 1974, be subjected to scrutiny, and the manning of
said jobs traced in order to determine the degree to which
the present incumbency of said-jobs reasonably reflects the
incumbency which would have prevailed had the job post-
ing policy for lead and rank-and-file personnel not been
discontinued at the Boulder facility.42 To restore to the ex-
tent possible the status quo ante with respect to said jobs at
the Boulder facility, where jobs are found not to have been
posted in accordance with practice and policy in effect
from March to June 1974, it is hereby ordered that, in
those instances, the job or, jobs be reopened for bid and
filled pursuant to a nondiscriminatory bidding procedure.
On the other hand, it having been determined that special
circumstances attended the reconstitution of the staff at
the Broomfield warehouse, and as the alleged discriminato-
ry manner in staffing said facility was not placed in issue at
the hearing, the order herein extends- only to a mandate
that, prospectively, lead and rank-and-file jobs at that fa-
cility be filled pursuant to a nondiscriminatory bidding
procedure.
CONCLUSIONS OF LAW
1. Head Ski Division, AMF, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
41 Specifically, with respect to Richard Mahoney , I find no basis ground-
ed on his posttermination conduct on plant premises on October I I for
depriving him of his reinstatement rights.
2 Any excess in time duration should be resolved in favor of the employ-
ees and- against the Respondent who unlawfully closed job postings The
time frame is considered adequate to properly balance the equities and
correct Respondent's wrongdoing.
HEAD SKI DIVISION, AMF, INC. 175
2. Midwest Regional Joint Board,, Amalgamated Cloth-
ing Workers of America , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Richard Mahoney and Barbara Vachon were at all
times material employees within the meaning of the Act
and. were terminated by Respondent in violation of Section
8(a)(3) and (1) of the Act.
4. In violation of Section 8(a)(1) of the Act, Respondent
unlawfully interrogated employees concerning their union
activities and sympathies ; threatened employees with repri-
sals because - of their union activities ; conducted a poll of
employees designed to obtain knowledge of, their union
propensities and interests and did thereby threaten and
coerce them ; enforced a valid no-solicitation , rule in a dis-
criminatory manner; and eliminated certain employee ben-
efits, including a ski loaner program, use of a WATTS tele-
phone facility, and the posting of lead and rank-and-file
job openings in the Boulder facility.
- 5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. At-times material-herein, Nancy Platt was an employ-
ee and not a supervisor within the meaning of Section 2(11)
of the Act, as alleged by the General Counsel.
7. Except as specifically found herein, Respondent en-
gaged in no conduct violative of the Act.
Upon-the'foregoirig findings of fact, conclusions of law,
and- the entire record , 'and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER43
Respondent , Head Ski Division , AMF, Inc., Boulder,
Colorado, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Midwest Regional
Joint Board, Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization of its employ-
ees, by terminating employees because -of their membership
in the Union, or in any other manner discriminating
against any of its employees in regard to hire or tenure of
employment or any term or condition of employment, ex-
cept to the extent permitted by Section' 8(a)(3) of the Act,
as amended.
(b) In any unlawful -manner interrogating or threatening
43 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules-and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all-objections thereto shall be
deemed waived for all purposes.
employees; conducting a poll designed to obtain knowl-
edge of employee union preferences; enforcing a valid no-
solicitation rule in a discriminatory manner; eliminating
employee benefits, including the use of a WATTS tele-
phone facility, enjoyment of a ski loaner program, and the
advantages of a nondiscriminatory job posting policy, or in
any other manner interfering with, restraining, or coercing
employees-in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Richard Mahoney and Barbara Vachon imme-
diate and full reinstatement to their former or substantially
equivalent positions of employment, and make them whole
for any loss of wages which they may have suffered by
reason of the discrimination against them, in the manner
set forth above in the Section entitled "The Remedy,"
(b) Restore to the extent possible the status quo-ante
with respect to the staffing and manning of lead and rank
and file job positions in the Boulder facility, in the manner
and to the extent set forth in the section entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all. other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order and to effectuate the analysis
specified in this recommended Order with respect to the
rectification of any discrimination resulting from the tem-
porary cessation of job postings in the Boulder facility.
(d) Post at its Boulder, Colorado, and Broomfield, Colo-
rado, facilities copies of the attached notice marked "Ap-
pendix." 44 Copies of said notice to be provided by the Re-
gional Director for Region 27, after being duly signed by a
representative of the Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not,altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
44 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read `-`Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "