B-D Laboratories, Inc.

National Labor Relations Board - Board Decisions

May 19, 1967

164 N.L.R.B. 786 (N.L.R.B. 1967)

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Falcon Plastics -Division of B-D Laboratories,
Inc. and United Rubber , Cork, Linoleum &
Plastic Workers of America, International
Union, AFL-CIO. Case 31-CA-387.
May 19, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On February 6, 1967, Trial Examiner Irving
Rogosin issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent with
this Decision and Order.
We agree with the Trial Examiner that
Respondent did not discharge Nhoon Reese because
of his union sympathies. However, contrary to the
Trial Examiner, we find merit in the General
Counsel's contention that Respondent terminated
Reese for engaging in protected concerted activity'
to secure increased wage benefits.
As found in the Trial Examiner's Decision, in early
March, Supervisor Lux called a meeting of his three
extrusion machine operators: Nhoon Reese; his
brother "Bootsie" Reese; and Horace Powell. Lux
advised them that the Company had acquired an
additional machine and this would require further
instruction and entail additional work. After the
meeting, the three operators discussed the fact that
while Lux had assigned them increased duties and
responsibilities, no mention had been made of a
corresponding wage increase. The three then
discussed what would compensate them for their
added duties and agreed not to accept anything less
than a 25-cent-per-hour raise. At the end of March,
' Washington Aluminum Company, Inc, 370 U S 9, Bonded
Armored Carrier, Inc , 147 NLRB 100
Respondent conducted its merit ratings. On
March 30, 1966, when Reese reported to work on the
second shift, Powell, who had just completed his
shift, told Reese that Brayton, an admitted
supervisor, had just offered him a merit increase of
10 cents, which he had turned down. Powell advised
Reese to do the same, but to do so politely.
After the close of Reese's shift, Foreman Byrd
came to him with his merit rating, and said he was
recommending a 10-cent raise. Reese refused to
accept the increase offered, maintaining that the
amount was inadequate. When Byrd pressed him for
his approval, Reese became adamant and said if that
was all the Company could offer, it could take the
raise and "shove it up their butt." The following day,
Byrd informed Brayton of his conversation with
Reese and the language Reese had used in rejecting
the merit increase. On April 4, Brayton informed
Lux about the incident involving Reese and that
Powell had also refused an offer of a similar merit
increase that same day. Lux called Reese into his
office and questioned him as to whether he had
made the remark attributed to him in refusing the
merit increase. Reese admitted this, but repeatedly
apologized for using such language. Despite Reese's
expressions of regret, Lux stated the Company
would not tolerate such behavior and terminated his
employment.
Based upon the above facts, and the conclusions
drawn therefrom by the Trial Examiner, as well as
Respondent's failure to take exceptions thereto and
its apparent acceptance of these conclusions, we do
not view Reese's discharge as simply an exercise of
an employer's inherent management right to
discipline recalcitrant employees. The record amply
supports the Trial Examiner's finding that the three
extrusion operators acted in concert in demanding
what they considered an adequate wage increase to
compensate for their added work and
responsibilities. And as the Trial Examiner found,
Respondent was aware or suspected that these
employees had agreed upon group action as a means
of securing additional benefits for themselves.2
Thus, on April 4, Brayton advised Lux that both
Reese and Powell had refused to accept the 10-cent
merit increase. And just before terminating Reese,
Lux asked Powell whether he was working a
"family" back there, adding that he and Reese "had
come up with somewhat the same thing."
The question remains, however, whether Reese
was discharged for insolen.;e and insubordination or
whether the reasons offered by Respondent were
pretextual. The only evidence of insubordination is
the remark made by Reese in rejecting the proffered
merit increase. Such language might in other
circumstances be regarded as so offensive in
character as not to be c -)ndoned. But the true
2 Walls Manufacturing Company , Inc , 137 NLRB 1317, enfd
321 F 2d 753 (C A D C ).
164 NLRB No. 101
FALCON PLASTICS 787
character of such mode of expression must be
evaluated not in the abstract but in the context of the
surroundings in which it occurs.' In this case there
is evidence that such language was commonly used
by employees at this plant in their work-a-day
associations. Further, Reese made the remark to a
supervisor with whom a personal relationship
existed. Byrd admitted that he was not offended or
outraged by the remark and that he did not regard it
as a personal insult or affront. And Reese asked
Byrd not to mention the remark to his superiors,
which indicates that Reese was not seriously bent on
challenging his employer's authority.
It also appears from the evidence that Reese was
subjected to disparate treatment. Just before
terminating Reese, Lux spoke to Powell about his
refusal to accept the merit increase, explaining to
him that this increase related only to his previous
work performance and would in no way affect any
future general wage increase. Powell apologized for
"causing this confusion" and agreed to accept the
merit raise . A similar explanation was given to
"Bootsie" Reese when he protested the inadequacy
of the proffered merit raise, and he also agreed to
accept it on that basis. But when Lux spoke to Reese
he never offered him such an explanation. And,
although Reese profusely apologized for his remark,
he, unlike his fellow workers, was not given an
opportunity to reconsider his refusal to accept the
merit raise. Respondent offers no reason why the
harshest penalty was imposed on Reese when the
personnel manual quoted in relevant part by the
Trial Examiner provided for punishment of lesser
magnitude. There was no evidence that Reese or any
other employee had ever been warned or
reprimanded for using such language.
Finally, the record indicates that at the time of his
discharge Reese was regarded by his supervisor to
be more than satisfactory in the performance of his
job.4 Respondent conceded that Reese had made a
number of constructive suggestions which were
utilized to remedy problems the Company had
encountered with its extrusion operation. Also,
Respondent admitted it was suffering from a
shortage of skilled labor at the time Reese was
terminated.
Under all these circumstances it seems obvious to
us that the reason assigned by Respondent for the
discharge of Reese was clearly pretextual. As the
Trial Examiner concluded, the record herein
establishes that Reese was not disciplined for using
profanity, and the inference is justified that while
Lux may have felt that Reese's behavior toward a
supervisor warranted severe disciplinary action,
what really disturbed Lux was his concern about the
concerted action of the employees in rejecting the
merit increase and the realization that the rejection
presaged a demand for higher wages. Contrary to the
Trial Examiner's holding, the above facts and
conclusions, far from leaving the matter in doubt,
establish prima facie that Respondent discharged
Reese because he had engaged in protected
concerted activities. Therefore, it was incumbent on
Respondent to rebut that showing. This it has not
done. Its asserted reason does not withstand
scrutiny in light of the customary usage of such
language at the plant, the disparate treatment
accorded Reese, the provisions of the personnel
manual , the failure to explain the imposition of the
harshest punishment, and the high level of Reese's
performance juxtaposed against an admitted
shortage of skilled employees. Accordingly, we are
convinced and find that, to foreclose such concerted
activity in the future, Respondent singled out Nhoon
Reese, the most outspoken participant in the
common cause, and terminated his employment,
thereby violating Section 8(a)(1) of the Act.5
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, we shall order that it cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It has
been found that the Respondent has discriminated
against employee Nhoon Reese by discharging him
in violation of Section 8(a)(1) of the Act. We shall
therefore order the Respondent to offer him
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and to
make him whole for any loss of pay he may have
suffered as a result of this discrimination against
him by payment to him of a sum of money equal to
that which he would have earned as wages from the
date of the discrimination to the date of
reinstatement, less his net earnings during such
period, in accordance with the formula prescribed in
F.W. Woolworth Company, 90 NLRB 289, together
with interest at the rate of 6 percent per annum to be
added to such backpay, such interest to be
computed in accordance with the formula
prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
' See Butcher Boy Refrigerator Door Company , 127 NLRB
1360,1370-72,enfd 290 F.2d 22 (C A 7)
" In January 1966, Reese received a written warning, cautioning
him about the defective quality of his work However, there was
evidence that within weeks , Reese showed a marked
improvement And, as already noted , in March Reese was
recommended for a merit increase , substantially based upon the
competent performance of his duties. In any event , Respondent
does not contend that Reese was terminated for performing his
job duties improperly
5 Nemec Combustion Engineers , 100 NLRB 1118 , enfd 207 F 2d
655 (C A 9), Salt River Valley Water Users Association , 99 NLRB
849, enfd as modified 206 F 2d 325 (C A 9)
298-668 0-69-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ADDITIONAL CONCLUSIONS OF LAW
1. Nhoon Reese was discharged in violation of
Section 8(a)(1) of the Act.
2. The unfair labor practice found above is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent
Falcon Plastics-Division of B-D Laboratories, Inc.,
Los Angeles , California , its officers , agents,
successors , and assigns, shall:
1. Cease and 'desist from:
(a) Discharging , employees or otherwise
discriminating in regard to their hire , tenure of
employment , or any , term or condition of
employment , because they have , engaged in
concerted activities for the purpose of mutual aid or
protection.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their right to self-organization , to form labor
organizations , to join or assist any labor organization,
to bargain collectively through representatives of
their own choosing , and to, engage in concerted
activities for the purpose of mutual aid or protection
as guaranteed in Section 7 of the Act, and to refrain
from any and all such activities.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act.
(a) Offer Nhoon Reese immediate and full
reinstatement to his former or substantially
equivalent position , without prejudice to his
'seniority or other rights and privileges previously
enjoyed.
(b) Make the above-named employee whole for
any loss of pay,he may have suffered by, reason of the
discrimination against him , in the manner and in
accordance with the methods referred to in the
section above entitled "The Remedy."
(c) Notify the above -named employee if presently
serving in the Armed Forces of the United States of
his right to full, reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service "Act, as
amended , after discharge from the Armed Forces.
(d) Preserve and, upon' request, make available to
the Board or its agents, for examination and copying,
all payroll records, social' security payment' records,
timecards , personnel records and reports, and all
other ' records necessary to analyze the amount of
backpay due and the rights of employment under the
terms of this Order.
(e) Post at its, establishment in Los Angeles,
California , copies of the attached notice marked
"Appendix." '' Copies of said notice , to 'be furnished
by the Regional Director for Region 31, shall, after
being duly signed by Respondent's, representative,
'be posted by Respondent immediately upon' receipt
thereof, and 'be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall 'be taken by
Respondent to insure that said notices are not
altered,'defaced, or covered by any other material.
(f) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint,
insofar as it alleges violations of the Act not herein
found 'be, and the same are,,hereby dismissed.
6 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify all employees that: _
WE WILL NOT discharge any of our employees
or discriminate in' regard to their hire; te.iure of
employment, or any , term or condition of
employment, because they have engaged in
concerted activities for the purpose of mutual
aid or protection.
WE WILL NOT in any like or,related manner
interfere with,,restrain, or coerce employees in
the exercise of their right to-self-organization, to
form , join , or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.
WE WILL offer Nhoon Reese immediate and
full, reinstatement to his former or substantially
equivalent position without prejudice to his
seniority or other rights and privilges previously
enjoyed.
WE WILL make Nhoon Reese whole for any
loss of pay 'he may have suffered by'reason of
the discrimination against him.
FALCON
PLASTICS-DIVISION OF
B-D LABORATORIES, INC.
(Employer)
Dated By
(Representative ) (Title)
FALCON PLASTICS 789
Note: We will notify the above-named employee,
if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor, Bartlett Building, 215 West 7th
Street, Los Angeles, California 90012 Telephone
688-5801.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner: The complaint, issued
July 14, 1966, alleges that, since about January 18, 1966,
Respondent, by its officers, agents, and supervisors, has
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act,
by various acts or conduct; and, on or about April 4, 1966,
discharged Nhoon Reese, and has since failed and refused
to reinstate him, because of his union or other concerted
activities, to discourage membership in a labor
organization, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) and 8(a)(3) and
Section 2(6) and (7) of the Act.'
Respondent's answer admits the jurisdictional
allegations of the complaint, and the supervisory status of
named employees, but denies generally the remaining
allegations of the complaint, including the status of the
Union as a labor organization, and the commission of any
unfair labor practices. Hearing was held on October 5
through 7, both inclusive, and 11, 1966, at Los Angeles,
California. The General Counsel and Respondent were
represented by counsel, afforded full opportunity to be
heard, to examine and cross-examine witnesses, to
introduce oral and documentary evidence relevant and
material to the issues, and to argue orally and file briefs
and proposed findings of fact and conclusions of law.2 The
General Counsel declined to argue orally but reserved
leave to file a brief. Respondent's counsel argued orally on
the record. Motion of the General Counsel, at the close of
the hearing, to conform the pleadings to the proof, was
granted without objection. Pursuant to leave duly granted,
both parties filed briefs, on November 15, 1966.
Upon the entire record in the case, and the observation
of the witnesses, their attitude and demeanor on the stand,
and the briefs of the parties, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer generally
admits, and it is hereby found that Falcon
Plastics-Division of B-D Laboratories, Inc.,3 Respondent
herein, is a California corporation, with its principal place
of business at Los Angeles, California, engaged in the
manufacture of plastic disposable medical laboratory
products.
Respondent sells and causes to be transported products
valued in excess of $50,000 annually directly to customers
located outside the State of California. Similarly,
Respondent purchases and receives materials and
supplies valued in excess of $50,000 annually directly from
sources outside the State of California.
It is, therefore, found, upon the basis of the foregoing
and upon the entire record, that, at all times material,
Respondent has been an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, but Respondent's answer denies,
that United Rubber, Cork, Linoleum & Plastic Workers of
America, International Union, AFL-CIO, is, and, at all
times material has been, a labor organization within the
meaning of Section 2(5) of the Act. For reasons not
established by the record, Respondent has denied the
status of the Union as a labor organization. Upon the basis
of affirmative and uncontroverted evidence introduced by
the General Counsel, it is hereby found, contrary to
Respondent's contention, that the Union is, in fact, a labor
organization within the meaning of the Act.4
Ill. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent, through its supervisors,
violated Section 8(a)(1) of the Act, by engaging in coercive
interrogation of employees concerning their union
affiliation and activities; creating the impression of having
engaged in surveillance of their union or other concerted
activities; promising employees economic benefits to
combat the Union; granting employees on the swing and
graveyard shifts premium rates of pay; threatening
employees with discharge or other reprisals for engaging
I The charge was filed and served on April 25, 1966
References are as follows The Charging Party or the Union,
United Rubber, Cork, Linoleum & Plastic Workers of America,
International Union, AFL-CIO, the General Counsel, unless
otherwise specified, his representative at the hearing,
Respondent or the Company, Falcon Plastics-Division of B-D
Laboratories, Inc , the Act, the National Labor Relations Act, as
amended (61 Stat 136, 73 Stat 519, 29 U S C Sec. 151 et seq )
Unless otherwise noted, all dates are in 1966
t Respondent's petition to quash subpena directed to it, on the
ground of irrelevancy, and the further ground that it called for
documents outside the scope of the complaint, was denied at the
outset of the hearing
9 The complaint names Respondent as Falcon
Plastics-Division of Becton-Dickinson & Company The name
has been corrected to conform to Respondent's answer, and the
stipulation of the parties at the hearing
4 This finding is based upon the credited and unrefuted
testimony of Field Representative Joseph S Nelson, the Union's
constitution , as amended , in effect at the time of the hearing, as
well as at the time of the organizational activities, and the
activities themselves at Respondent's plant , as well as officialt the
other end until the contents are released by removing the finger
activities themselves at Respondent's plant, as well as official
notice of numerous Board decisions , in which the status of the
Union as a labor organization has been determined.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in union or concerted activities; and issuing an employee
warning notice to Nhoon Reese.
2. Whether Respondent discharged Nhoon Reese
because he had engaged in union or other protected
concerted activities to discourage membership in a labor
organization, in violation of Section 8(a)(3) of the Act.
B. Interference, Restraint, and Coercion
1. Introduction
Falcon Plastics, a division of B-D Laboratories, is a
wholly owned subsidiary of Becton-Dickinson &
Company, a manufacturer of medical products located at
Rutherford, New Jersey. Except for certain overall
controls by the parent company and divisional head,
Falcon Plastics is independently operated under the
general supervision of General Manager Irving Horn.
Respondent manufactures some 60 types of products,
including sterile plastic products, consisting of single-use,
nontoxic, internally calibrated pipets, petri, and tissue
culture dishes, test tubes, and specimen containers, for
use in laboratories and hospitals. During the period with
which we are concerned, Respondent employed a total
complement of 225 production and maintenance
employees in various departments under the direction of
separate supervisors. The department involved in this
proceeding, injection molding and extrusion, has some 50
employees, under the general supervision of Rudolph
"Rudy" Lux. There are four supervisors, exclusive of
leadmen, under his direction. The extrusion department
operates on three shifts. In January, one extrusion
operator was employed producing pipets on each shift.5
The pipet is a plastic tube, about 8 inches long and 3/16
inches in diameter, tapered at the tip, and internally
calibrated for accuracy in measurement, printed, and
plugged with cotton to protect the user from absorbing the
contents when used by mouth.6 Respondent stresses the
need for high quality control, stricter than the
requirements imposed by the Food and Drug
Administration and other government agencies, not only
from the standpoint of health and safety but also from that
of its pride in reputation of its products. The parent
company maintains Biological Safety and Quality Control
committees which audit Respondent as to both aspects of
this production and Respondent itself maintains detailed
quality production control records.
5 By April, Respondent was employing between three and five
extrusion operators, with possibly two relief operators, and, at the
time of the hearing , eight or nine, on all shifts
6 When used in this manner, the fluid or specimen is drawn into
the pipet by suction, and retained by placing the finger at the
other end until the contents are released by removing the finger
It is, therefore, imperative that the end of the pipet to which the
finger is applied is smooth, to prevent injury to the finger, and that
the pipet is not defective so that the contents will not escape
The petition (Case 21-RC-9264) was originally filed in Region
21, and was formally closed before Region 31 was established
s These findings are based upon a stipulation of the parties at
the hearing It was further stipulated that no other representation
petition has been filed by any labor organization, and that no
unfair labor practice charges, other than the present charge, have
been filed against this employer
" It was stipulated that the Union handbilled the plant on
October 28, November 11, 1965, April 19, 26, 27, May 3 and 10,
1966, and later the same month According to Personnel Manager
Martin Farkas, he first learned that the Union was handbillmg the
plant when one of his foremen, Fate "curly" Saint, brought him
one of the handbills, and remarked that it looked as though the
The pipets are produced from plastic pellets by an
extrusion process, and, after inspection, cut and
"stretched" in the "stretch and center cut" operation into
two pipets of equal length, and calibrated internally, a
millimeter pipet being calibrated in tenths and one-
hundredths, the finest calibration consisting of 1/100th of a
millilitre.
2. Previous organizational attempts
The earliest attempt at organization of the employees
took place in the fall of 1964. On October 27, 1964,
International Union, Allied Industrial Workers of
America, AFL-CIO, Local 976, filed a representation
petition.7 No hearing was held on this petition but, instead,
a stipulation for certification upon consent election was
signed and approved by the Regional Director on
November 24, 1964. Mrs. Edwin Selvin represented the
Company; Charles A. Graham, that union. The union lost
the election, held on December 18, and, on December 29,
1964, the Regional Director certified the results. No
objections were filed to the conduct of the election.
On June 27, 1966, the Union, here, filed a representation
petition (Case 31-RC-295) which it withdrew, on July 6,
without a hearings
The Union had initiated its organizational campaign late
in October 1965, with the distribution by Field
Representative Nelson of some 175 handbills, with
authorization cards attached, at the company gate. On two
occasions in January, according to Nelson, he distributed
170 additional handbills at the plant. Further distribution
was made by Nelson in February, March, and June, but
not, according to him, in April or May.9
3. The events of January 18, 1966
On January 18, Shirl Brayton, administrative director,
molding, an admitted supervisor, issued an employee
warning notice to Nhoon Reese for defective work and
carelessness.is On the same date, according to Reese,ii
Brayton or Carl Byrd, second (swing) shift molding room
foreman, notified Reese to report to Supervisor Rudy Lux
at his office. Reese testified that when he got there he
found Lux in a "pretty bad rage," pacing the floor and
"cursing." Querying him as to "why do I have this damn
union to represent me and pay union dues," Lux, Reese
testified, asked him whether the Company had not treated
Company was going to have to "go through it all over again " Saint
also brought Farkas other handbills, which were subsequently
turned over to Mrs Selvin, who furnished them to the Regional
Office Although Nelson claimed he had distributed handbills at
the plant between November 1965, and April 1966, he failed to
produce copies for that period Nelson testified, however, that he
also circularized the employees by mail, on January 12, and
passed out handbills at the plant on May 3 and 10, and June 23
and 28, 1966 The dates of distribution of the handbills are
significant only in deciding whether Respondent was aware of the
union organizational campaign on the critical dates , discussed
later
"' The alleged violation of Section 8(a)(1) by the issuance of this
warning notice, and of Section 8(a)(3), by the subsequent
discharge, are discussed below Since the General Counsel's case
depends almost entirely on the events alleged to have occurred on
January 18, they are dealt with in some detail
i i All references to Reese hereinafter, unless otherwise stated,
are to Nhoon Reese, as distinguished from Governor "Bootsie"
Reese, his brother, who was also employed at the plant as an
extrusion operator on the graveyard shift
FALCON PLASTICS 791
him fairly enough so that it should not have been
necessary for him to pay anyone to represent him. Reese
asked Lux how he knew that he was having anyone
represent him. According to Reese, Lux told him that
there were "many ways of finding out things like that. "12
During the conversation, which lasted, according to him,
about 2 hours, Reese asked Lux why he had received the
"demerit," protesting that he had tried hard to do the best
work of any of the employees, that he knew his work was
"not bad," and that it was unfair to give him a demerit.
Reese testified that he told Lux that "if something else
[was] happening," Lux should have told him instead of
charging him with "putting out bad production."
According to Reese, Lux replied, "Well, probably you
came to work drunk."
Reese testified that he told Lux that, during the entire
period of his employment, he had come to work only once
after having two beers. Lux then ventured, "Well,
probably you were looking at the women." Reese denied
this, protesting his marital fidelity. With that, according to
Reese, Lux finally proposed, "Well, let's you and I be fair
with each other. Let's put our cards on the table." Lux
then asked Reese who was trying to get him fired. Reese
suggested that there were "any number of people." Lux
said, "Well, let's break it down to who you think it is."
Reese mentioned Carl Byrd, but Lux ruled him out, adding
that Byrd spoke highly of him, and never gave him a "bad
reference." Reese then asked whether it was Horace
Powell. Lux told Reese that it was not-that it was a white
man, not a colored man.13
Reese testified that Lux then remarked that since Reese
had signed with "this damn union," he had become
indifferent about his work, which had deteriorated
increasingly over the last few days. Reese retorted that he
had been "doing better inspecting of my work than I ever
had." Believing that Lux wanted to fire him then and
there, Reese told him that regardless of what had
happened, he would never vote for a union in the plant,
that the Union could only gain recognition by "being voted
in," and he would never vote in favor of the Union.
Reese pleaded with Lux to cancel his "demerit," since
he had never received one in his 15 years as an extrusion
worker, and, in the event of termination, his future job
opportunities elsewhere would be jeopardized by this
warning notice. Lux refused, but told Reese, according to
him, to continue as he had been doing, and the demerit
would in time take care of itself.
Discussion turned to the subject of wages, and Lux told
Reese that, according to his information, Reese was the
only extruder operator who was complaining, and
reminded him that the extruders had been receiving scale.
Lux told him, however, that since the Company had
installed an additional extrusion machine, necessitating an
extra operation, the wage scale for extruders would be
reevaluated and increased to $3.25 an hour.
Lux, for his part, denied that he engaged in any
conversation with Reese, on or about the date in question,
testifying that he knew of no such meeting. Shift Foreman
Byrd, Reese's immediate supervisor, testified that he had
no recollection of sending Reese to Lux's office on the
occasion about which Reese testified. He testified,
furthermore, that if Reese had had occasion to be away
from his extrusion machine for any length of time, it would
ordinarily have been necessary for Byrd to furnish a relief
operator from the assembly department, and that he had
no recollection of doing so on this occasion.'4 Shirl
Brayton, administrative director, molding, and Byrd's
superior, shared an office with Lux. Brayton testified that
he did not send Reese to see Lux on the date in question,
and that he did not recall seeing Reese in Lux's office that
day. According to Brayton, whose testimony was
corroborated by Lux, he was usually in the office between
3:30 and 5:30 or 6 p.m., when he prepared his production
cards and did his paper work as part of his daily routine,
and if Reese had, in fact, been in the office, he would
certainly have remembered it.
While the testimony of Byrd and Brayton reflected
something less than a categorical denial of Reese's
testimony, and somewhat less than complete
corroboration of Lux's more positive denials, their
testimony is perhaps nonetheless convincing and
persuasive for being couched in equivocal terms.
Judged by his own testimony, his attitude and demeanor
on the witness stand, and his obvious personal interest, his
account of his alleged conversation with Lux was
singularly unconvincing. His description of Lux's
behavior, during a conversation allegedly lasting 2 hours,
with Lux pacing the floor, cursing, and pulling his hair, in
an apparent "bad rage," seems wholly at odds with Lux's
general attitude and demeanor on the witness stand, and
the circumstances which are claimed to have provoked
this rage. Apart from the employee warning notice which
had been issued to Reese, and his mere union
membership, of which, as will be seen, management was
not even aware, nothing had occurred up to that time to
warrant the explosive outburst attributed by him to Lux.
Moreover, it may be noted that, at the time of the earlier
organizational attempt by the other union in 1964, several
meetings were held of supervisory personnel with the
Company's labor relations consultant, at which a
pamphlet, outlining the rights and duties of supervisors,
was distributed and discussed at length.'' Again, in
October 1965, when the Union embarked on its campaign,
another meeting of supervisory personnel, including
foremen, was held at which the same leaflet was
distributed and reviewed. Lux and Byrd attended both
meetings, and Brayton, the latter meeting in October."'
i' The allegation that Respondent created the impression of
surveillance is apparently based solely on this testimony
" Like Reese, Powell, his brother-in law, was a Negro Reese
testified that he concluded that it must have been Earl Hamilton,
a maintenance man, who was the only person, other than Powell,
to whom he had shown his union card, who had "snitched" about
Reese's union membership Reese assumed this because the
Saturday after he showed him his card, Hamilton had worked
while Reese had not Hamilton was not called to testify, and there
was no direct evidence that he revealed Reese's union
membership to any management representative
is According to Reese, Byrd instructed him to shut down his
machine Supervisor Lux testified that it takes several hours to
start up the extrusion machine once it has been shut down It is.
therefore doubtful that Byrd would have issued such
instructions
The pamphlet appears to have been a reprint of a leaflet
entitled "SOME DOs AND DON'Ts FOR SUPERVISORS Under
the I abor-Management Relations Act of 1947 and Labor-
Management Reporting and Disclosure Act of 1959," apparently
prepared by Charles A Kothe, vice president industrial relations,
National Association of Manufacturers
iF According to Personnel Manager Farkas, on whose
testimony the above findings are made, Brayton was probably not
a supervisor at the time of the 1964 meetings
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Granting that supervisors have been known to ignore such
instructions, it seems improbable, in light of the
indoctrination shown here, that a management
representative of Lux's level of supervision would have so
completely disregarded these instructions as to vent any
displeasure he may have harbored toward the Union by
castigating a rank-and-file union member in a 2-hour
tirade. Reese himself admitted that the extent of his union
activities consisted of signing an authorization card. He
did not distribute union authorization cards or literature,
did not solicit other employees to join the Union, and
engaged in no other union activity. Moreover, there was no
persuasive showing that management was aware of
Reese's union sympathy or adherence at the time of the
alleged conversation with Lux, apart from Reese's
testimony to that effect in that conversation. Any
contention that management knew Reese was a union
member must be based upon speculation that Hamilton or
Powell, Reese's brother-in-law, revealed his union
membership to someone in management , an inference not
warranted by this record. In fact, as will later appear, in
connection with the discussion of Reese's discharge,
Powell could not testify that Reese had shown him his
union membership card, and, according to Powell, he had
no knowledge of Reese's membership until he learned it at
the hearing. Hamilton, though still in Respondent's
employ, was not called as a witness, and Lux testified that
Hamilton, who was in his department, never discussed the
Union with him, and did not reveal to him that Reese
belonged to the Union.17 According to Lux, he learned of
Reese's union membership for the first time in May 1966, a
month after Reese's discharge, during a hearing on his
claim for unemployment compensation. Moreover, Lux
categorically denied discussing the employee warning
notice with Reese, testifying that he generally avoids any
direct contact with production employees, except in a
situation involving expansion of their department or
affecting the scope of their work, and that he relied on his
intermediate staff to handle day-to-day relations with the
employees.
Under these circumstances, Reese's testimony that
Lux, for no plausible reason, summoned him to his office,
and embarked on a tirade of vituperation because of his
union membership (of which Lux had not even been
aware ) and union activity (in which Reese admittedly did
not even engage), imposes a serious strain on one's
credulity.
The fact that the purported conversation with Lux is
alleged to have occurred within a week after Reese claims
to have displayed his union membership card to Hamilton,
and a day or two after the warning notice to Reese, has not
been overlooked Viewed in the light of Reese's
insignificant role in the organizational activities, these
coincidences are insufficient to lend credibility to Reese's
testimony as to his alleged conversation with Lux.
Moreover, it seems highly improbable that Reese could
have confused this conversation with the one several
months later, during his exit interview, detailed below.
" It is noteworthy that in a pretrial affidavit to a Board agent,
Reese mentioned only that he had shown his union membership
card to Hamilton Reese testified that he failed to mention Powell
in his affidavit because he knew that Powell would not divulge
this fact Reese also testified, however, that Hamilton had
actually talked to him about the Union, told him that it was the
best Union to join in the State of California, that he was a former
member, and had a withdrawal card from that Union It therefore
seems improbable that Hamilton would have betrayed him to his
employer Reese also testified that he spoke to other employees,
One is, of course, reluctant to condemn testimony out of
hand as a fabrication, but Reese's testimony as to his
alleged conversation with Lux is so palpably contrived to
furnish a basis for his claim of discriminatory treatment as
to be unworthy of belief. Perhaps the most charitable thing
to be said for Reese's testimony is that it was a case of
"the wish being mother to the thought."
It is therefore found that Lux did not send for Reese, on
or about January 18, 1966, and did not engage him in a
conversation, in which he made statements attributed to
him by Reese, and did not thereby engage in unfair labor
practices within the meaning of Section 8(a)(0 of the Act.
4. Alleged promises of economic and other benefits
The complaint alleges, and Respondent 's answer
denies, that Respondent promised the employees
economic and other benefits to refrain from affiliating with
the Union or engaging in other protected concerted
activities . The benefits, the complaint alleges, were
announced by a notice posted on the bulletin board at the
plant on January 19. The notice, on the letterhead of
Respondent , the only one during the period , was actually
dated January 27. This announcement , and the granting of
shift differential pay, presently discussed , constitute the
only basis for these allegations (apart from Reese's
testimony , previously discredited , that in the alleged
conversation of January 18, Lux promised to increase the
pay scale for extrusion operators to $3.25 an hour).
Because of the General Counsel' reliance on the notice in
support of this allegation , it is quoted in full . It reads:
January 27, 1966
NOTICE TO ALL HOURLY EMPLOYEES
PAY SCALES
As has always been our policy, employee benefits as
well as pay scales are constantly being reviewed to
maintain the highest possible level.
We have just completed a re-evaluation of our pay
structure. We have raised the starting rates as well as
the top rates on many job classifications. In addition
we have eliminated the previous policy of waiting one
(1) year between raises when you are near the top of
the scale. This was done so you can reach the top of
the pay scale sooner.
The new program works this way:
New employees will be given a Merit Review
three (3) months from their date of employment.
They then fall into the regular semi - annual
review period of March and September for
increases to go into effect the first Monday in
April and October.
As you already know, Merit Increases are not
automatic, they are earned. We hope you all earn the
whose names he could not recall, about the Union, and that he had
spoken to a maintenance supervisor during the 1964 union
campaign. He further testified that he told Lux, during the alleged
conversation, that he had started to talk to Byrd about the Union
outside the plant, in or about March 1966. In his pretrial affidavit,
however, Reese stated that he had no further conversation with
Lux or any other supervisor about the Union, between January 18
and the date of his discharge, and that he did not, during the same
period, discuss the Union with employees in the shop or solicit
them to join
FALCON PLASTICS 793
maximum increase . Since your performance is
directly related to the Company's ability to pay higher
salaries, it is to your benefit to work to the best of your
ability.
Remember, the amount of your increase depends on
your work performance, attendance, cooperation, and
attitude. Your attendance record weighs quite heavily
at review time. More raises are lost because of poor
attendance than for any other reason. For your own
benefit, be at work every day, be here on time and
perform to the best of your ability.
This new pay program will go into effect Monday,
January 31, 1966. The next regular review period will
be in March for increases to go into effect on April 4,
1966.
This is just part of our continuing program of making
FALCON PLASTICS the best place to work.
I. Horn
General Manager
IH/jsk
Reese testified that he read the notice, that it was on a
letterhead of the Company, signed by General Manager
Horn, and that it bore the date of January 19 or 20.
Although he could not recall the precise wording of the
document, he understood it to mean that under the new
policy all employees would be upgraded to the "top of the
scale" instead of by intermediate steps. He did recall,
however, that the change was to become effective on
April 4.1 11
According to the undisputed testimony of General
Manager Horn, top-level management representative at
the plant, Respondent had established a policy of
semiannual merit increases , based upon a review of the
employees' work performance, attitude, and attendance,
for several years prior to the announcement posted on
January 27. This was quite apart from individual increases
based on promotions or job reclassifications. Personnel
Manager Farkas testified that, during his tenure in that
capacity, some 5-1/2 years, the Company had conducted
15 to 20 merit reviews, and that he was certain that similar
notices had been posted in the past The last general wage
increase, prior to the posting of the January 27 notice,
granted in July 1965, effective August 2, amounted to 5
cents an hour, and a notice was posted announcing the
change. The only material changes effected by the
January 27 notice appear to have been an increase in
starting rates, as well as the top rates, in various job
classifications, based upon a reevaluation of the pay
structure, and the elimination of the 1-year waiting period,
to accelerate the time for employees to reach top scale.
This would be accomplished by granting new employees a
merit review 3 months after their initial employment, with
regular semiannual reviews thereafter, in March and
September, and corresponding increases in April and
October. As has been noted, the new pay program was to
become effective January 31,the next regular review to be
held in March, with increases to take effect April 4.1'
Assuming that the January announcement and
institution of the "new pay program" represented an
actual increase in wages and benefits (an impression
which the Company obviously intended to convey), there is
no affirmative evidence that the action taken was
calculated or reasonably understood by the employees to
be contingent upon their refraining from selecting the
Union as their bargaining agent. On the contrary, there is
credible and unrefuted testimony that the new wage
program was installed in an effort to attract qualified help
and halt excessive turnover in a highly competitive labor
market. According to Personnel Manager Farkas, the
Company had been losing employees to the aircraft
industry in the area.
What has been said is also true of Respondent's action
in granting swing and graveyard shift employees premium
pay of 7 cents an hour, in May 1966.21'
The General Counsel contends, however, that
Respondent instituted these economic improvements "in
the midst of an organizing campaign and [that the
changes] were accompanied by other unfair labor
practices and with expressed union animus ." To the
extent that he relies on the alleged episode between Reese
and Lux, on January 18, for reasons previously stated, it
has been found that no such encounter took place. For the
same reason, it has also been found that there is no
evidence that Lux created the impression of surveillance
(by telling Reese that there were ways in which Lux could
discover union adherents). As for the employee warning
notice given Reese on January 17, previously mentioned,
and discussed in more detail in connection with Reese's
discharge, the evidence, as will presently be shown, fails
to establish any discriminatory motive in regard to the
warning or that the giving of this notice in any way
constituted a violation of Section 8(a)(1) of the Act. This,
then, leaves 'the question of whether the coincidence of
timing of Respondent's actions justifies the conclusion
that it was prompted by antiunion considerations.
Mention has been made of the organizational campaign
accompanied by handbilling of the plant conducted by
another union, in the fall of 1964, in which that union failed
to achieve the right of representation. As has been noted,
no objections were filed to the conduct of the election in
that case, and no evidence has been offered in this
proceeding of union animus, hostility or opposition to the
rights of employees. The organizational campaign by the
Union, here, began in October 1965, with handbilling at
the plant by Field Representative Nelson. According to
Personnel Manager Farkas, who attempted to maintain a
complete file of handbills distributed by the Union, no
handbills were distributed between November 11, 1965,
" Reese admitted that no other such notice was posted on the
bulletin board during this period The notice, furnished by
Respondent in response to a subpena , was, as has been seen,
dated January 27 Governor "Bootsie" Reese also testified that
this was the only document of its kind posted at the plant during
the month of January It is apparent that Nhot n Reese was either
mistaken about the date or deliberately advanced the date to
coincide more nearly with the date of his alleged conversation
with Lux
" Questioned at the hearing about the January notice,
"Bootsie " Reese testified that he saw the announcement on one
of the three bulletin boards, and identified the copy introduced in
evidence Based on his recollection, he testified that the notice
provided for "merit" raises every 3 months, with a merit raise
starting in September, effective October It is evident that he did
not recall the entire contents of the notice According to him,
when he was hired by Lux on November 11, 1965, he was told that
after "some" months he would receive a raise
"' Alleged by amendment during the hearing as further
evidence of violation of Section 8(a)(1) Prior to this, male
personnel had received no premium pay, and female, 5 cents an
hour, for these shifts
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and April 19, 1966, and he had no knowledge of
handbilling between December 1965 and March 1966.
Despite Union Representative Nelson's testimony that he
tried to keep a complete file on his activities at the plant,
and made routine activity reports to the Union, he
produced no documentary support for his contention that
handbills were distributed at the plant between December
and March. Respondent argues, therefore, that Nelson
was mistaken in his testimony that he made distributions
at the plant during that period, and that there was, in fact,
no organizational activity in those months.''
Whether or not there was an actual suspension of
handbilling, it would be sheer sophistry for Respondent to
argue that it assumed that the Union had abandoned its
organizational campaign. It would be unrealistic to believe
that, because active recruiting by means of distribution of
literature might have been halted, Respondent ceased to
be aware of the Union's purpose to organize Respondent's
employees. The implicit argument that Respondent had no
reason to engage in a course of opposition to the Union is,
therefore, not too persuasive. However, there was no
adequate showing that Respondent had manifested
opposition to the Union or the self-organizational rights of
the employees. Respondent had already experienced one
organizational campaign a year earlier. Although that
attempt at unionization had failed, there was no contention
that the failure was attributable to unfair labor practices
on the part of Respondent. If Respondent had actually
been opposed to the self-organization of its employees, it
may be assumed it would have viewed this renewed
assault by another union with something approaching
concern, if not alarm. The absence, however, of any
evidence of opposition to the union in the former
campaign, or to the Union here (the only evidence of
Respondent's alleged misconduct having been rejected),
and the absence of any union animus, hostility, or other
misconduct, it must be concluded that the timing of the
announcement and establishment of the improved wage
program, in January, and the granting of the premium pay
or shift differential, in May, were merely coincidental
It is therefore found, on the basis of the foregoing, and
upon the entire record, that, by granting or promising its
employees economic benefits in the form of a new or
improved wage program, on or about January 27, and,
differential or premium pay to employees, in May 1966,
Respondent has not interfered with, restrained, or coerced
employees in the exercise of rights guaranteed in Section
7, in violation of Section 8(a)(1) of the Act.
It is further found that the allegation of the complaint
that Respondent, through Supervisor Lux, created the
impression of engaging in surveillance, during an alleged
conversation on or about January 18, has not been
sustained by the preponderance of the reliable and
probative evidence.
21 As has previously been noted, the Union did not file its
representation petition until June 27, 1966, and it was withdrawn,
without hearing, on July 6 The charge was filed on April 25
22 While performing maintenance work, he was on the day
shift, receiving the same hourly rate According to Reese, the top
rate of pay at the time of his discharge was `supposed to be"
$3 25 an hour, based upon what Lux had allegedly told him, but
Reese was uncertain whether the top rate was being paid at the
time Reese was receiving 82 85 at the tune of his discharge
C. Discrimination in Regard to Hire and Tenure of
Employment of Nhoon Reese
1. The employee warning notice
Nhoon Reese was employed by Respondent from July 1,
1963, to April 4, 1966, when he was discharged under
circumstances later described. Except for the period
between October 1963 and January 1964, and on random
occasions during slack periods when he performed
maintenance work, he worked as an extrusion operator on
the second shift, from 4 p.m. to 12 midnight, at an hourly
rate of $2.40 or $2.50.2 2
In October 1965 he joined the Union , signing an
authorization card which he had received with a handbill.
He mailed the signed card to the Union and later received
his membership card. Reese testified that about
January 12, he showed his union membership card to
fellow employees Earl Hamilton and Horace Powell, in
the plant.
On January 18, Supervisor Brayton issued an employee
warning notice to Reese for defective work, which Reese
called a "demerit."13 Brayton told Reese that he had
found defective parts in his work, and had no alternative
but to give him a written warning. Reese contended that
his work had not been inferior, and told Brayton that the
demerit was a reflection on him. According to Reese,
Brayton expressed regret at having to give him a demerit,
but said that Lux had instructed him to issue it Reese
testified that Brayton told him not to worry about it-that
"time could take care of everything." Reese admitted,
however, that Brayton had told him that he had found
some "bad end cuts" on parts he had produced, and
showed him three or four defective parts. Reese testified
that he had produced 5,000 parts on his shift, but that
Brayton did not disclose the total number of defective
parts he had discovered Reese had never before received
a warning notice, or been told that his work was "below
standard."
Later the same day, Reese testified, he was notified
either by Brayton or Byrd, Reese's foreman, to report to
Lux's office. Reese's testimony about this alleged
2 i The notice, on a printed form, read
EMPLOYEE WARNING NOTICE
NAME CLOCK NO
Nhoon Reese S-249
NATURE OF VIOLATION
V Defective Work
Safet,
Conduct
Lateness
Absence
Attitude
Housekeeping
Disobedience
\ Carelessness
s Shirl Bra y ton
Signature o f f oreman or
Supervisor
1st Notice X
2nd Notice
DEPARTMENT DATE
Molding 1 18/66
REMARKS
Nhoon has been cautioned
about his poor quality of
work on end cutting of
pipets in the past Molding
D epartment is getting
too mans kick backs from
Assent Dept
s Nhoon Reese
icie ignature
FALCON PLASTICS
incident, previously discredited, has been recounted
elsewhere. (Section III, B,supra.)
The General Counsel contends in his brief that the
issuance of the warning notice, on January 18, constituted
a violation of Section 8(a)(1) of the Act, that is to say,
amounted to interference, restraint, and coercion in the
exercise of rights guaranteed in Section 7.24 Presumably,
it is argued that the issuance of the notice constituted a
form of harrassment or coercion as a means of retaliation
for his union sympathy or adherence, and to inhibit him
from engaging in union activities in the future. There is no
foundation for this contention in the record. First,
because, as has already been found, there is no evidence
that Reese had in any way distinguished himself as a union
adherent or advocate, and, even if it be assumed that
Respondent was opposed to efforts at self-determination of
its employees, and knew of his union affiliation, an
assumption not warranted by the record, no cogent reason
has been advanced as to why Respondent should have
singled out Reese as a target for reprisal. Second, because
there is abundant evidence in the record to warrant the
conclusion that the warning was well deserved.
There is unrefuted evidence in the record that
Respondent was confronted, in January, with a problem of
defective pipets in the extrusion department. On
January 17, and, again, on the 18th, Foreman Fred Ross, of
the assembly department, notified Brayton that pipets
delivered to his department were defective. Brayton
verified this, on inspection in the assembly department,
discovering "bad end cuts." Some had been crudely cut
and others had been transferred from the "extruder cutoff
box" to the "unfinished product box," without having been
cut altogether. On the first visit, Brayton discovered two
boxes, each containing 2,500 defective units or pieces,
and, on a subsequent inspection the following day, found
four boxes with defective units. After his first inspection,
Brayton returned one of the boxes containing defective
parts to the extrusion department, and, on checking
through the production records, a relatively simple matter,
traced the defective parts to Reese.25
In January, Respondent employed three extruder
operators in the manufacture of pipets, Horace Powell,
Nhoon Reese, and Governor "Bootsie" Reese, one on each
shift, on the day, swing, and graveyard shifts, respectively.
By means of the production and quality control records,
the defective parts were traced to Nhoon Reese, the sole
operator on the swing shift.
When Reese reported for work about 4 o'clock,
January 17, Brayton pointed out the discrepancies in his
pipets, and, after examining the parts, Reese conceded
that he was responsible for them. At the hearing, Reese
himself did not deny that he had produced the defective
parts, but relied, instead, on the fact that the female
inspector had "OK'd" the "end cuts." He admitted,
however, that this inspection consisted merely of a spot
check. Reese also attempted to attribute the defective
'a There is apparently no allegation or contention that
Respondent violated Section 8(a)(3) by issuance of the warning
notice
2-1 Because of the critical standards required by the nature of
the product manufactured, Respondent maintains detailed
production and quality control records These records include a
form. designated as Vendors Lot No Pipet Extrusion Control,
showing the raw material, certified by the vendor to meet certain
standards, and bearing the code and control numbers of each lot
Thus, Respondent is enabled to trace any item manufactured,
795
parts to the dullness of the cutter blades and the necessity
of adjusting the tension on the spring cutter.26
Next day, January 18, Brayton reported to Lux on the
rejections of pipet tubes and Reese's involvement in the
defective production. Brayton told Lux that he intended to
give Reese a written warning because he had already given
him oral warnings, including one the day before. Lux
obviously concurred, and Brayton wrote out the warning,
and submitted it to Reese for his signature. Reese signed
the notice, without protest, other than what has been
related.
General Manager Horn conceded that there is a certain
percentage of rejects in the production of pipets. The
production and quality control records, during the period
in question, however, indicate a sharp increase in
rejections in January. Horn testified that, during casual
patrols through the plant, he observed the records of
"stretch and end cut operations," questioned Assembly
Supervisor Ross about the increase in rejections, and
asked him what the problem was. Ross agreed to look into
the matter, and reported to Horn that the defective parts
were coming from the molding and extrusion department.
Horn told Ross to take care of the matter. During a casual
encounter with Lux, Horn mentioned , in passing , what he
had learned from Ross about the rejections coming from
the extrusion department.
Production records, maintained in the usual course of
business,•introduced in evidence, and unchallenged by the
General Counsel, establish that rejects in the production
of pipets, primarily due to defective end cuts, increased
from a norm of approximately 2 percent to 5 6 percent and
6.3 percent in January at the stretch and center operation.
Respondent had apparently had no complaint about
Reese's work prior to January. Moreover, Respondent
conceded that Reese had made a number of constructive
production suggestions in 1963, when Respondent was
encountering problems with the extruding operation,
admittedly requiring a technical knowledge, which
Respondent utilized. At least , until December 1965,
Reese's work performance had been generally
satisfactory, and Superintendent Lux admitted that he had
been a "good worker" until then. It cannot be disputed,
however, that the quality of Reese's work deteriorated
substantially during the period in question. Lux conceded,
however, that after the written warning, Reese's work
gradually improved until , by March, some 2 months later,
he had achieved at least the same level of performance as
he had established prior to December 1965.
A careful analysis of the statistical and documentary
evidence offered by Respondent, together with the
credible and substantially uncontradicted testimony of
various management representatives, to say nothing of
Reese's own admission, abundantly establishes that the
warning notices, both oral and written, given Reese on
January 17 and 18, were fully justified.
from the start of the operation until the finished product is
released by the laboratory Without going into the details of
manufacture, each box containing parts which leaves the
extrusion department is numbered, and the operator responsible
for production of those parts is required to initial the extrusion
control form, indicating that he had worked on the parts contained
in the box
"' As a matter of fact, Respondent had complained that Reese
had made adjustments on the extrusion machine without
authorization
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is therefore found that Respondent did not, by issuing
the employee warning notice, on January 18, interfere
with, restrain, or 'coerce employees in the exercise of
rights guaranteed under the Act. The coincidence of
timing in issuing the warning notice, within a week after
Reese allegedly apprised Hamilton and Powell of his union
membership, is wholly insufficient, in the circumstances
of this case, to overcome the overwhelming evidence that
the warning was given for legitimate reasons rather than
for those proscribed by the Act.
2. The events culminating in the discharge of Reese
Early in March, Lux called a meeting at his office of the
three extrusion operators.27 Brayton, Byrd, and Earl
Deeds, apparently another supervisor, were also present.
Lux told the operators that the Company had acquired a
new extrusion machine, and this would necessitate some
instruction and entail additional work. He explained that
two female employees would be assigned to each shift, and
announced that Powell was being designated as "senior
operator." Lux said nothing about any increase in wages,
and this was the subject of discussion among the extrusion
operators after they left the meeting.
"Bootsie" remarked that, although much had been said
about increased duties and responsibilities, no mention
had been made of a corresponding increase in wage rate.
According to Nhoon Reese, either he or Powell mentioned
that Lux had promised to raise the basic hourly rate to
$3.25. The men discussed what they would consider an
acceptable hourly rate when the increase they expected
went into effect.28 Mention was made of a 25-cent
increase. Reese pointed out that in order to bring him up to
a $3.25 rate, he would have to receive a 40-cent raise.
Powell observed that, at the rate he was receiving for
operating only one machine, a 25-cent raise would not be
sufficient to compensate him for operating two machines,
27 Although "Bootsie" Reese had been working on the
graveyard shift at the time, he and the others had worked on the
day shift for the 3 days preceding this meeting
28 This was apparently based on the announcement of the "new
pay program," made on January 27, 1966
29 Reese could not recall the exact date, but assumed that it
was on March 28 or 29 Byrd, his foreman, gave the date as
March 30, which he fixed as a Wednesday Byrd's testimony as to
the date is probably more reliable.
3' Reese quoted Powell as saying "be nice and talk nice to
him"
31 According to Byrd, between 11 and 11 30 p in., on March 30
32 The sheet , presumably the merit rating form , reproduced
here in full, does not appear to have a place for the employee's
signature.
FALCON PLASTICS
MERIT RATING FORM DATE 3/7/66
NAME- DEPT 91 d,
300 nn E Mo dec er S 4
RATE RA G
DATE OF HIRE-dZT2/63u AMT I AST INC T'S^'C^7^ ner_
DATE LAST INCREASE
CURRENT RATE 2A6
MERIT INCREASE .10
NEW RATE T
E ATFF
C Ii
S
FOR SUPERVISOR ONLY
FXCFLLENT GOOD AVERAGE BELOR AVERAGE
ATTENDANCE
SKILL
QUALITY
QUANTI
APPHOAC
INITIATIVE
INCREASE
PECOMMENDATION .10
REMARKS
FOR DEPARTMENT HEAD ONLY
NO INCHEASF
R^ h.
and that he felt he should receive an increase of at least 50
cents. He said, however, that if the others were willing to
accept a 25-cent raise, he would go along with them, but
that he would not agree to anything less than that.
In March, Respondent conducted its merit ratings. The
recommendations, reduced to writing on a form provided
for the purpose, were signed by the supervisor, and
approved or disapproved by the department head, Lux, in
the case of the extrusion operators. On March 30,29 when
Reese reported for work on the second shift, Powell, who
had just completed his shift, told Reese that he had been
offered a 10-cent raise, which he had refused. He advised
Reese to do the same, cautioning that he do it politely,3°
but to tell Byrd that he would rather it be added to the
October increase so that he could feel he was receiving a
worthwhile increase.
Some 5 or 10 minutes before the close of his shift,31
Byrd came to Reese with his merit rating. According to
Reese, Byrd told him to hurry and sign it because he,
Byrd, had been running late and had almost forgotten to
give him his rating. Byrd told him that he was
recommending a 10-cent raise .32 Reese declined the raise,
maintaining that the rate was to have been increased to
$3.25, and that he had no intention of accepting the raise
offered. Byrd, according to Reese, urged him to "sign,"
remarking that the raise amounted to almost $10 a week.
Reese retorted that it was "short of $10.00 by about
$6.00," and that if that was all the Company could offer, it
could take the raise and "shove it up their butt." Byrd
asked Reese if he wanted him to put that on the form.
Reese replied that he decidedly did not, and asked Byrd to
note merely that Reese had refused the 10- cent raise but
that he would be willing to accept it in October, with the
next increase , so that he could feel he had received an
appreciable raise. According to Reese, Byrd agreed to do
50.33
33 Byrd's version of this conversation did not differ materially
from Reese's. According to Byrd, he told Reese that he had his
merit rating, and that the Company had decided to grant him a 10-
cent increase, bringing his rate up from $2.85 to $2.95. In Byrd's
version, Reese said that the Company could "take it and stick it
up their ass until they can give me more." Byrd corroborated
Reese to the effect that he had asked Reese whether that was
what he wanted him to put on the form, and that Reese replied
that he did not, but insisted that he had been promised $3.25
Byrd thereupon explained to Reese that he was within 5 cents of
the top rate of $3.00, and that until that rate was increased, that
was all he could get him. Reese refused the increase, and the
interview ended.
APPROVED DISAPPROVED
REMARKS Ve od .,1006,,, bu eede ,o
DATE
r e
FINAL APPROVAL BY M E
FALCON PLASTICS 797
Next day, when Brayton asked Byrd if he had completed
his merit ratings,34 Byrd told him of the problem he had
encountered with Reese, and the language Reese had used
in rejecting the merit raise.
Lux had been out of town when the incident occurred.
When he returned on Monday, April 4, Brayton and Deeds
reported the incident involving Reese. Lux told Brayton
that they would wait to see what Byrd had to say when he
came to work. Meanwhile, Lux discussed the matter with
General Manager Horn. Horn apparently made no specific
recommendations relying on Lux to decide what action to
take.
At or about 3:30 p.m., Byrd arrived, and Lux spoke to
him in Brayton's presence. Byrd confirmed that Reese had
refused the merit increase and made the remark in
question. Lux asked Byrd whether he was in the habit of
letting his employees talk to him that way. Byrd said he
was not-that he felt such an attitude warranted
discharge, and that he was "mad enough ... [to] fire him
on the spot," but was so taken aback that he decided to
await Lux's return. Besides, Byrd told Lux he was
uncertain whether he had the authority to fire employees
under his supervision.
About 4 o'clock that afternoon, Lux told Byrd to have
Reese report to his office. Byrd escorted Reese, and when
they arrived, Lux and Brayton were there. Questioned
about whether he had made the remark, as quoted by
Byrd, Reese admitted it, and said he was "sorry." Lux told
him that that did not excuse his behavior toward his
supervisor. Reese said he realized that, and repeated that
he was sorry. Lux declared that the Company could not
tolerate such behavior, and that he had no alternative but
to terminate him. Reese reiterated his regret, and asked
Lux to reconsider. Lux told him that employees could not
be permitted to gain the notion that they could speak to
supervisors in that manner.ss
Reese told Lux that he had made the remark to Byrd on
a personal basis, and had not expected Byrd to report it to
management . Lux repeated that that was no excuse for
using such language to a supervisor. Reese explained that
he had supposed that he and Byrd were good friends,
intimating that the remark was made more or less in
confidence.36 Reese appealed to Byrd to tell Lux that he
had not meant anything by the remark, and had certainly
never intended it to get back to Lux. Byrd said that he was
sorry but that he had reported the incident to Lux.37 Reese
told Lux that he did not believe his conduct warranted
discharge. He told Lux that he had been planning to sell
his home in Pasadena and move closer to work. Lux was
unmoved. Brayton then told Reese to "punch out," and
return the next day with his uniforms and pick up his
check.
Next day, Reese went to the personnel office to sign the
necessary papers for his voluntary retirement refund.
Personnel Manager Farkas remarked that Reese had been
with the Company a long time. According to Farkas, in a
discussion of his termination, Reese acknowledged that he
had made some improper remarks, and that he understood
the reason he had been discharged, adding that he "would
have done the same thing," in the Company's position.38
Reese asked Farkas whether he would advise him what to
state on any future employment application as the reason
for his discharge. Farkas told him that he could use his
name as reference (because he "happened to like the guy
personally"), but that if inquiry were made as to the reason
for Reese's discharge, he would be obliged to state that it
was for misconduct and insubordination. Reese replied,
according to Farkas, that he would "have to live with it,"
referring to the fact of his discharge.
With regard to the two other extrusion operators, both
accepted the merit raise offered them by the Company
after the ratings were made. Powell, whose rate in January
was $3, at first refused a 15-cent raise offered him by
Brayton after his rating. He told Brayton, as he later
advised Reese to do, that he preferred to have that raise
added to the next pay raise, so that he would feel he was
receiving a more adequate increase. When Brayton
pointed out that the 15-cent increase would amount to $6 a
week, Powell told him that he preferred to continue at his
then rate rather than accept a 15-cent raise. Brayton
suggested that the matter be held in abeyance until Lux
returned, and Powell agreed. On his return, Lux sent for
Powell and questioned him about his rejection of the 15-
cent raise. Powell told Lux that he did not feel the raise
was adequate to compensate him for the extra work on the
second extrusion machine. Assured that the increase was
intended only in recognition of his past performance, and
that it would not affect any future increases, Powell
apologized for "caus[ing] this confusion," and agreed to
accept the raise, with thanks. According to Powell, Lux
then remarked, "What am I working back there, a family,"
adding that Reese had "come up with somewhat the same
thing." Powell disavowed the implication, and said that he
"had nothing to do with what anybody else" does, and that
he was only concerned about himself. Lux then broached
the incident involving Reese, and Powell commented that
he himself refused the raise, but he did it in "a nice way,
without get[ting] out of line with Shirl." Brayton, who was
present during Powell's interview with Lux, confirmed
this. Lux stated that he was undecided about what to do
with Reese.
"Bootsie" Reese, who had been employed about 11
months at the time of the hearing, was hired initially at the
rate of $2.48, and increased to $2.67.
The day his brother, Nhoon, was discharged, "Bootsie"
discussed his merit rating with Kenny Calcut, his
supervisor, in the diner at the plant. " Bootsie" examined
the form, which his supervisor had prepared, and noted
34 According to Byrd , he had conducted 14 merit reviews the
night before
35 According to Reese's version, Lux mentioned during this
interview that the Company had planned to use Reese in a
supervisory capa.ity, but that his attitude in this instance
precluded that, and that as far as Lux was concerned, Reese "was
through "
i6 Byrd, who referred to himself as a working supervisor,
testified that there was no one within earshot of his conversation
with Reese He admitted that he had gone on fishing trips with
Reese, and that he had frequent personal conversations with
Reese during working hours He conceded that he was not
shocked by the use of the epithet itself, and testified that by the
next day, his anger had cooled to the point where he had a
personal conversation with Reese
' The transcript of the proceedings quotes Reese as saying,
"So Carl said `I am sorry I told him."' It is not clear whether
Reese meant by this that Byrd said that he was sorry, but that he
had told Lux, or that Byrd had said that he was sorry that he had
told Lux In view of the context, it is more probable that Reese
intended to testify to the former version
33 Called in rebuttal, Reese denied this remark, but did not
deny any of the other remarks attributed to him by Farkas in this
exit interview Although unnecessary to a resolution of the issues,
it is more probable that Reese made this remark possibly as a
conciliatory gesture
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that his performance had been rated as excellent. He
protested, however, that the amount of his merit increase
was inadequate to compensate him for the increased work
entailed in operating the added extrusion machine. When
his supervisor explained that the merit increase was only
in recognition of his past performance, and that after full
production was started on the new machine the wage scale
would be reviewed, he agreed to accept the increase.
3. Contentions regarding Reese's discharge
The General Counsel contends that Reese's discharge
was provoked either by his union activity or his concerted
activity in connection with Respondent's proposed merit
increase. Respondent maintains that Reese was
discharged solely because of his attitude of disrespect and
insubordination toward Supervisor Byrd during his merit
rating, which culminated in Reese's rejection of the
increase offered.
As regards Reese's union activity, as has already been
shown, it consisted of little more than the signing of an
authorization card, which has not been shown by the
preponderance of the evidence, to have been known to
Respondent. The General Counsel's reliance on the
employee warning notice to Reese, about a week after he
received his union membership card, and allegedly
displayed it to two fellow employees, one of whom, his
brother-in-law, at the very least, was unable to recall this
incident, and the other, an apparently ardent union
adherent, whose sympathies were well known to
management (and who, incidentally was not called to
corroborate Reese), has nothing more to commend it than
the coincidence of timing. Moreover, as has been clearly
established by this record, and Reese fairly acknowledged,
the warning notice was entirely deserved.
With respect to the question of whether Reese actually
engaged in protected concerted activity in March, the
preponderance of the credible evidence fairly establishes
that, when Respondent introduced the new extrusion
machine and announced it to the operators, all three, in
effect, agreed to make common cause in demanding a
wage increase of not less than 25 cents an hour to
compensate for the added work and responsibility which
the new machine would entail. Contrary to Respondent's
contention, it is immaterial whether it was aware that
these employees had agreed to act in concert in
demanding the raise. If the employees were, in fact, acting
concertedly in asserting their demands, they would have
been protected against unlawful discharge.
Respondent's contention that there was no evidence
that management was aware of any concerted activities
among the extrusion operators regarding the merit
increases goes not to the question of whether the
employees were actually engaging in protected concerted
activities, but whether Respondent was aware of Reese's
participation in that activity as a postulate for a finding of
discrimination in regard to his discharge. There is
evidence in the record to justify the inference that, if Lux
was not actually aware that these employees were
disgruntled about the amount of the merit increase being
offered, and had initially agreed to refuse anything less
than 25-cent increase, he at least had reason to suspect
3' Although, as has been noted, the three men were actually
members of the same family, it is evident that this is not the sense
in which Lux intended the remark. The remark is more
reasonably interpreted as reference to their concerted action
that the extrusion operators had agreed to act in concert
on this issue. Thus Lux's musing, after Powell had agreed
to accept the merit increase, previously refused, about
whether Lux was "working [a family] back there," and his
comment that "Bootsie" had "come up with somewhat the
same thing." obviously referred to the attitude of the
extrusion operators in rejecting the merit increase.39
Even assuming, however, that the action of the
extrusion operators constituted protected concerted
activity, of which Respondent was aware, these
circumstances are not in themselves sufficient to establish
a discriminatory motive in connection with Reese's
discharge. For, although knowledge, or at least suspicion,
of the discharged employee's union or concerted activity is
indispensable to a finding of discrimination, such
knowledge or suspicion does not, without more, establish a
discriminatory motive, where the employee has been
discharged for cause, without regard to his concerted
activities. For., it is axiomatic that an employee who
engages in union or concerted activities is not insulated
from discharge for cause, unless it can be shown that his
union or concerted activities were a consideration in the
employer's decision.4° And, in determining whether the
employer was, in fact, motivated by the employee's
protected activities, the presence or absence of union
animus, hostility or opposition to the self-organizational
rights of its employees, and the commission of unfair labor
practices are relevant considerations.
Reese's behavior and attitude toward Supervisor
Byrd, and the language with which he underscorded his
disgruntlement about the proffered merit increase,
undoubtedly provided cause for discharge. The apparently
personal relations which existed between this employee
and his supervisor, which may have led him to assume that
his friend would not report his remark to management,
might be relevant if mitigation or extenuation were a factor
in making a determination. Clearly, Reese did not intend
that Byrd should relay his impetuous remark to his
superiors. But, it is not our province to decide whether the
penalty imposed by the employer was lust or reasonable in
light of all the circumstances, or to substitute our
judgment for that of management in meting out
punishment for the offense. If there is one precept more
well entrenched under the Act than any other, it is that an
employer may discharge an employee for good cause or
bad, or, indeed, none at all, provided only that he does not
do so for reasons proscribed by the Act. The principle,
however, is more easily stated than applied, for, in dealing
with motivation, a subjective state of mind, the
determination must take into account all the surrounding
facts and circumstances, including the severity of the
punishment in relation to the offense.
Manifestly, Reese was not disciplined for the use of
what might be regarded as a vulgar or obscene remark.
Whether Reese used the word imputed to him by Byrd or
one which Reese may have regarded as somewhat more
innocuous, it is evident that Reese was not discharged for
using profanity, per se, toward a supervisor. Byrd himself
acknowledged that the use of the expression, which he
attributed to Reese, was certainly not extraordinary as
shop talk in a plant, and did not outrage him or offend his
"" See Electra Controls, Inc , 161 NLRB 307. N L R B v Park
Edge Sheridan Meats, Inc, 341 F 2d 725, 728 (C A 2), and cases
cited
FALCON PLASTICS
sensibilities. Nor does it appear that Byrd regarded the
remark as a personal insult or affront to him. It is even
possible to assume that, when Byrd queried Reese as to
whether he wanted him to note his remark on the merit
rating form, Byrd may himself have asked this in a jocular
manner. At any rate, whatever may be said for Byrd's
conduct, he undoubtedly assumed he was discharging his
reponsibility to his superiors in reporting that Reese had
rejected the Company's offer. It is difficult to separate the
fact of the rejection of the merit increase from the rude,
perhaps insolent, manner in which the rejection was made.
When the incident was first reported to Supervisor Lux,
his immediate reaction may well have been indignation at
the language employed by Reese. It seems improbable,
however, that if an employee had used the same language
in a different context to a fellow employee or even a
supervisor, Lux would have felt impelled to discipline the
employee if, indeed, the matter would even have reached
Lux. It therefore becomes fairly inferable that, although
Lux may have felt that such behavior toward a superior
warranted severe disciplinary action, what really
disturbed Lux was his concern about the rejection of the
merit increase, and the realization that the rejection
presaged a demand for higher wages. In this connection,
the expression of incomprehension by both Byrd and
Brayton when Reese and Powell refused what was stated
to them as a $6-a-week increase is not without
significance.
It is also significant that the personnel manual
distributed to all employees at the time of their
employment, provides for alternative penalties for
insubordination, as Respondent characterized Reese's
conduct.91 The pertinent language reads:
The following Company's rules and regulations are
intended to define and protect the rights and
responsibilities of all employees. Violations of any of
these rules will be sufficient grounds for disciplinary
action ranging from reprimand to immediate
discharge, with loss of accumulated vacation and/or
severance pay, depending on the seriousness of the
offense in the judgment of Management.
When an employee who has been disciplined
maintains a clean slate for the following six months,
his entire record will be considered as cleared.
There follows a list of rules and definitions.
Rule No. 3. Insubordination: Insubordinate or refusal
to do work assigned.
Rule No. 17. Poor Attitude: Poor attitude produces
poor work and will not be tolerated.
Various offenses with applicable penalties, consisting of
written warning, disciplinary layoff, and discharge, follow.
With regard to "Misconduct," which covers
insubordination, according to Respondent, the penalty
provided in the manual is for either a disciplinary layoff or
discharge for the first offense, with discharge for the
second offense.
"' Respondent did not claim that it relied on the manual in
discharging Reese The manual was produced in response to my
request after I established that such a manual existed
"t This rule was invoked by the General Counsel, in inquiring
whether it included by definition "cursing," of which Reese had
accused Lux in the alleged conversation of January 18
43 Respondent admittedly was not relying on the employee
warning notice, issued Reese on January 18. In fact, Respondent
799
A further rule, designated as rule 2, relates to "Immoral
Practices: Guilty of Obscene or immoral practices on
Company premises." It is obvious that Respondent was
not relying upon violation of this rule, which, apparently,
would in any event carry the same penalty.42
In view of the alternative penalties provided in the rules,
and the fact that this was Reese's first offense, 43 one is
tempted to wonder why Respondent chose to impose the
extreme penalty of discharge rather than layoff, in view of
his prompt apology, and Respondent's professed shortage
of qualified personnel and problem of labor turnover. As
has already been pointed out, however, it is not for us to
decide whether the punishment meted out to Reese was
disproportionate to the offense. It is our responsibility to
decide only whether Respondent discharged Reese
because of his union or protected concerted activities for
the purpose of discouraging membership in a labor
organization , as proscribed by the Act.
It has already been shown that Reese' s union activities
were minimal, consisting only of the signing of a union
authorization card. Moreover, there is a total absence of
evidence of union animus , hostility or opposition to the
Union, or of the commission of unfair labor practices by
Respondent. Any possible unlawful motive, therefore,
must be sought in the concerted activity in which Reese
may be found to have engaged with his fellow employees in
rejecting the merit increase offered by Respondent. It may
be assumed that Respondent had concluded that, of all the
extrusion employees who had initially refused the merit
increase , Reese had been most vociferous and, perhaps,
even that his attitude did not bode well for Respondent's
future wage structure.44 By the same token, Respondent
had been aware that the two other extrusion operators had
initially refused the merit increase on the same basis as
Reese. After receiving management 's explanation of the
purpose of the merit raise, however, they accepted the
increase offered.
To hold that Reese was discriminatorily discharged
because Respondent chose to impose the penalty of
discharge rather than layoff, it would be necessary to find
that Respondent was bent on eliminating a stormy petrel
and that it seized upon the incident as a pretext for doing
so. It would also deprive Respondent of its inherent
management right to discipline recalcitrant employees.
Personnel Manager Farkas testified that the Company
could not countenance an attitude of insolence and
insubordination toward supervisors without taking drastic
action lest other employees be tempted to follow the
example set by the errant employee. The right of an
employee to indulge in the argot of the plant in his day-to-
day relations with his fellow employees and perhaps, even
in certain circumstances, with his superiors, must be
weighed against the right of the employer to maintain plant
discipline and morale, and respect for superiors. Even
when such language is resorted to in the heat generated
conceded that Reese's work performance had steadily improved
thereafter and, by March had reached substantially the same level
as in December 1965, when his work had admittedly been
satisfactory This is further manifested by the fact that
Respondent actually offered him the merit increase, in March
44 It should be noted, parenthetically, that Reese had been
expressly admonished by Powell to be affable and respectful
toward his foreman in refusing the merit increase
800 DECISIONS OF NATIONAL
during the give and take of negotiations , an employer is not
required to countenance insolence and disrespect toward
superiors , whether or not accompanied by vulgarity.
Any doubt or misgivings regarding Respondent's
motivation in disciplining Reese by the extreme penalty of
discharge can only be a matter of conjecture , and must be
resolved in favor of Respondent . An appraisal of the
record , taken as a whole, does not warrant the conclusion
that the allegations of the complaint have been sustained
by a fair preponderance of the reliable, credible, and
probative evidence , and it will, therefore, be
recommended that the complaint be dismissed in its
entirety.
LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent , Falcon Plastics-Division of B-D
Laboratories , Inc., is, and at all times mentioned herein
has been , engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Rubber , Cork, Linoleum & Plastic Workers
of America , International Union , AFL-CIO, is, and at all
times mentioned herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) or (3) of the Act.
[Recommended Order omitted from publication.]