Berkline Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1973

203 N.L.R.B. 63 (N.L.R.B. 1973)

BERKLINE CORPORATION 63
Berkline Corporation and United Brotherhood of Car-
penters and Joiners of America , AFL-CIO. Case
10-CA-9641
April 20, 1973
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On December 29, 1972, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief,
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Berkline Corporation, Mor-
ristown, Tennessee , its officers, agents, successors,
and assigns , shall take the action set forth in the said
recommended Order.
i Although we regard as erroneous the exclusion of the "final warning" on
June 8, 1972, to Charlie Davis for "unexcused absence and excessive absen-
teeism" (identified as Resp. Exh. 7 but rejected by the Administrative Law
Judge) and the Administrative Law Judge's consequential finding that Davis'
record had at no time resulted in disciplinary action against him, we do not
regard these as prejudicial errors since we are satisfied that a substantial
'reason for the dismissal of Davis was his concerted and protected activity.
2 As we do not now have before us all information relevant to resolution
of the issue concerning reinstatement and backpay to Hazlewood, we agree
with the Administrative Law Judge that the question of Hazlewood's fitness
for reinstatement is appropriate for determination at the compliance stage of
this case . Accordingly , we shall issue our customary reinstatement and back-
pay order as to Hazlewood . However , it is not intended to require
Hazlewood's reinstatement or backpay , if it appears in the compliance stage
of this proceeding that he is not entitled thereto under Board precedent.
R. G. LeTourneaµ Inc., 200 NLRB No. 66 ; Southern Airways Company, 124
NLRB 749.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge : This is
an unfair labor practice case litigated pursuant to Section
10(b) of the National Labor Relations Act, herein called the
Act. It was commenced by a complaint issued on August 22,
1972, by the General Counsel of the National Labor Rela-
tions Board, herein called the Board , through the Regional
Director for Region 10 (Atlanta, Georgia), naming Berkline
Corporation as the Respondent . Such complaint is based on
a charge filed on June 19, and amended on June 30 and
August 2, 1972, by United Brotherhood of Carpenters and
Joiners of America, AFL-CIO.
In substance the complaint as amended alleges that Re-
spondent violated Section 8(a)(1) and (3), and that such
conduct affects commerce within the meaning of Section
2(6) and (7), of the Act. Respondent has answered , admit-
ting some of the allegations of the complaint but denying
that it committed any unfair labor practices.
Pursuant to due notice this case came on to be heard, and
was tried before me, at Morristown , Tennessee , on October
11 and 12 , 1972. All parties were represented at and partici-
pated in the trial, and had full opportunity to introduce
evidence, examine and cross-examine witnesses , file briefs,
and offer oral argument . Respondent's motion to dismiss,
made when the General Counsel rested and renewed at the
close of the case, was denied . Briefs have been received from
Respondent and the General Counsel.
This case presents the following issues:
Whether Respondent:
(a) Interrogated employees concerning their and other
employees ' union membership , activities , and desires.
(b) Threatened employees with discharge for wearing un-
ion insignia or engaging in other union activities.
(c) Discontinued the assignment of more desirable work
and assigned less desirable work to employee Shirley Davis
because of her membership in or activities on behalf of a
union.
(d) Laid off two employees for approximately 4 hours on
a specified day and assigned less desirable work to a third
employee because of their membership in or activities on
behalf of a union.
(e) Discharged Charlie Davis and Morris Hazlewood be-
cause of their membership in or activities on behalf of a
union.
Upon the entire record in this case, and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent , a Delaware corporation, is engaged at Mor-
ristown, Tennessee , in manufacturing and selling furniture.
During the past calendar year, Respondent sold and ship-
ped finished products valued in excess of $50,000 to custom-
ers located outside the State of Tennessee. I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction over
Respondent in this proceeding.
n. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of Ameri-
203 NLRB No. 18
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ca, AFL-CIO, herein called the Union , is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
1. The discharge of Charlie Davis
In Morristown , Respondent operates three plants, but
each operates as a separate unit . Davis was last hired by
Respondent in October 1970 as a head builder and lathe
operator at plant 1 . His "trade" is that of head builder and
millwright . At the time of hiring , he received $2.02 an hour
for producing a given amount of piece work in an hour,
known as "standard ." If he exceeded standard in any hour,
his hourly rate for that hour was multiplied by the fraction
represented by the excess above standard over standard. If
he failed to turn out standard he received $2.02 an hour in
any event.
About May 8, 1972, Davis was elected to the Union's
committee of employees at Respondent 's factory. On the
same day, he signed a card for said Union . Thereafter he
solicited other employees to sign such cards, succeeding in
obtaining 150 to 200 cards, and also distributed union hand-
bills outside Berkline 's gates . In addition , at work he wore
two union buttons, carried a union sticker and shoulder
patch on each shoulder, and attached two "bumper stickers
around [his] hat." He also attended union meetings once a
week.
Prior to the time Davis commenced displaying union in-
signia on his person , his supervisors almost daily commend-
ed his work. But after such display said supervisors
remained at his machine a much greater length of time; and,
in addition , Davis' morning and afternoon breaks were
abolished, notwithstanding that other employees continued
to enjoy such breaks.
Early in the afternoon of May 25, 1972, Davis was told
there was no more work available for him at plant 1 and that
he had a choice of being laid off or being transferred to
plant 3 to work on "final trim ." Davis elected to work at
plant 3. He was informed that this became necessary be-
cause the lathes on which Davis worked were being moved
to Respondent 's factory at Livingston , Tennessee . The day
before this Davis had asked Supervisor Jeffers if Respon-
dent contemplated moving said lathes , only to be told that
Jeffers had heard nothing about it.
The rate for producing standard on final trim at plant 3
was $2 .02 an hour, and later became $2 .08. Since Davis was
inexperienced with final trim he was unable to make stan-
dard . As a result he earned but $2 .02 an hour, whereas he
averaged $3.77 an hour on the lathe in plant 1 . Moreover,
at plant 3 Davis was constantly watched by supervisors and
was even followed by them to the water fountain. Other
employees were not so treated. Moreover, after General
Supervisor Pete Long talked to the inspector , Davis was
unable in getting his work approved by said inspector. Other
employees ' work, however, passed inspection , although
their performance was no better than Davis'.
Notwithstanding that Davis was more experienced and
had seniority on two others , namely Stroud and Fox, on
building heads at plant 1, Stroud and Fox were retained in
plant I when Davis was transferred to plant 3 . Stroud and
Fox were assigned to grinding heads in plant 1, although
Davis was qualified to do this . And, within the same week,
Respondent hired a shaper man and trim boy to work in
plant 1 , both of which are millwright jobs, although Davis
was qualified to perform either job.
About May 26 , 1972, Supervisor Ray Tharp, foreman of
plant 3, said to Davis , "You've been sent up here to be
canned ." Tharp also implied in said conversation that Davis
"wasn't doing no good at . . . work at all."
On the afternoon of June 22 , 1972, Davis did some hand-
billing after work . That morning Davis , with permission
from Respondent, had driven to Knoxville, Tennessee, to
meet his two minor sons by a previous marriage and give
them a ride from the bus station there to his home in Morris-
town . Then he , his two boys, and his wife , distributed union
handbills at Respondent 's plant I in the afternoon from
about 3 : 10 to 4 p.m., during change of shift time. A few
supervisors observed him so handbilling.
When Davis reported for work the next morning , June 23,
his timecard was missing from the rack . Then he ascertained
from General Supervisor Pete Long that he , Davis, had been
fired "for false pretense and participating in union activi-
ties."
2. The assignment of less desirable
work to Shirley Davis
Mrs. Davis , the wife of the foregoing Charlie Davis, was
hired by Respondent in about 1968 as a soft drum sander.
In about 3 or 4 months she became a hand sander. Some-
time thereafter she was made an edge belter but, because
she "was afraid of it and . . . could not make piece work
on it," she requested to be taken off this job. She feared
physical injury to her fingers thereon. This request was
granted . Although three others also worked on the edge belt,
they were all males. She then was placed on the buffer for
about a year and a half. On this latter job she earned $3 to
$3.60 an hour. The most she ever made on the edge belt was
$2.60 an hour . She was finally reassigned to the edge belt.
When she was transferred to the edge belt, there was buffer
work available for persons until recently.
About May 12 or 13, 1972 , Mrs. Davis was reassigned to
the edge belt . She made but $1.94 , the minimum rate per
hour on this job, for a long time because it was "harder to
run." The most she ever made on the edge belt was $2.60
an hour. When she was transferred the last time to the edge
belt, there was buffer work available for three persons until
recently. Now, however , some buffer work is still per-
formed . But buffing work became slack when the lathes
were moved out.
About May 7 or 8, 1972, Mrs Davis attended a union
meeting at which she signed a union card. Soon she began
wearing a union button . She also solicited employees to sign
union cards . On occasion she wore a union sticker as an arm
or shoulder patch . Some supervisors saw her wearing the
union button and arm patch . Before Mr. Davis was dis-
charged , Supervisor Hudgens asked Mrs. Davis how Char-
lie, her husband, was making out with the Union . I find that
this interrogation is noncoercive and therefore does not
BERKLINE CORPORATION 65
violate the Act.
Mrs. Davis accompanied her husband on June 22, 1972,
to Knoxville , Tennessee, to pick up the latter's children.
Upon returning to Morristown at about 9 or 9:30 a.m. the
same day , she went to work for Respondent . But her super-
visor gave her the option of going home for the remainder
of the day or running some wheels as no other work was
available for her. She elected to leave because she "was
afraid of the wheels ." That afternoon she assisted her hus-
band in passing out union handbills outside of
Respondent 's plant.
3. The discharge of Morris Hazlewood
Hazlewood was hired by Respondent in December 1971,
as a stool builder in plant 3 at $1 . 84 an hour . On May 8,
1972, he signed a union card at a union meeting. In addition
he solicited a few employees to sign union cards, wore a
union button , and "every now and then" wore a union
shoulder patch . Hazlewood is the son of Shirley Davis and
the stepson of Charlie Davis.
On June 22 , 1972, Hazlewood did not report for work as
he had no transportation to the plant . That morning his
stepfather, Charlie Davis , had driven to Knoxville to pick
up the latter's two sons at the bus terminal . So Hazlewood
sought a ride from a home about a mile away, but without
success . Then at about 6 or 6:30 a.m . he attempted to hitch-
hike or "thumb" a ride to work, but again without success.
Consequently , at about 10 or 11 a .m. he called the office of
Fred Parvin , the manager of plant 3 , and told Parvin 's secre-
tary that he, Hazlewood , would not be in that day as he
could not get a ride in . Said secretary promised to convey
this information to Parvin . Hazlewood remained at home.
He later learned that Respondent had sent someone to
Hazlewood 's grandmother's home to pick him up. But Ha-
zlewood lived with his mother and stepfather.
On June 21 , 1972, Hazlewood distributed union handbills
outside plant 3 . He repeated this activity on June 23.
When Hazlewood reported for work on June 23, he found
that his timecard had been "pulled ." Upon inquiring of
Hugh Cox , a junior supervisor , for the card , Hazlewood
learned that he had been fired.
Hazlewood , on cross-examination , testified he was 18,
and then changed this to 17. and that he "realized" that on
the day he testified he was not eligible for employment with
Respondent . A copy of his birth certificate (in the name of
Michael Hazlewood) discloses that he was born on Decem-
ber 10, 1955. (See Resp . Exh. 1.)
4. The temporary layoff of Roy C. Young
Roy C. Young, who is employed in Respondent 's rough
mill to lay up lumber for the cut off saws, testified substan-
tially as follows . His foreman is L. T . Hudgens, who is
admittedly a supervisor within the meaning of Section 2(11)
of the Act. Young signed a union card , wore a union badge
or button, and obtained signatures to a few union cards. His
supervisors spoke to him when he wore said union button.
He started to wear that button about May 8 or 9, 1972.
At noon around May 24, 1972, Young was sent home for
the rest of the day for lack of work. His usual quitting time
was 3 : 30 p.m . In the past , however , when work became
slack , Young was given some other work to do , but was
never (except on one occasion about 2 years before this)
sent home . Although there were 10 employees in Young's
group, only he and employee Mack Parker and another
employee were sent home on May 24 . Both Parker and said
other employees wore union buttons, but none of the other
seven in Young's crew wore any. However , others in the
rough mill department , but not in Young's crew, who wore
union buttons were not sent home that day . And in the past
"several" in the department , but not Young or anyone in his
planer group , had been sent home when work became slack.
The department employs 60 or 70 persons.
5. The temporary layoff of Mack Parker
Parker is employed on the planer crew in Respondent's
rough mill department under Supervisor L. T. Hudgens.
About May 1, 1972, he signed a union card and also induced
"some" employees to sign similar cards . He also wore union
badges or buttons on his shirt , and sometimes wore union
arm patches . While wearing such buttons, he sometimes
spoke to his supervisors.
About 9:30 a.m. on May 24, 1972, Supervisor Hudgens
advised Parker that some men would be sent home "and it
looked like it would be the ones, the way his [Hudgen's]
supervisor John Blair had put it, it would be the ones that
were wearing the union badges ." At noon Hudgens laid off
Parker, Roy Young, and Lonnie Harrell for the remainder
of the day. Their shift normally ended at 3:30 p.m. Only
these 3 in their group of 10 wore union badges. In the past
when work was slow Respondent "would get you some-
thing" at other work or asked employees "to volunteer to go
home." But on May 24 no one in Parker's group was given
the opportunity to volunteer to go home . Finally, Parker
testified on cross-examination that Delmar Harris, an em-
ployee in his department but not in his group, was not sent
home on May 24 although Harris wore a union button.
6. Alleged violations of Section 8(a)(1)
of the Act
About June 23, 1972 , Supervisor L. T. Hudgens told em-
ployee Roy Young , "Pull those damn union badges [which
you are wearing] off, you know Davis has got fired over it."
Although Young refused to comply, nothing came of such
refusal.
Employee Billy Ray Seaton , who operates an automatic
shaper machine in department 16, plant 1, under Supervisor
Gene Jeffers , stated that he observed supervisors paying
"more attention" to Charlie Davis after Davis started to
wear union insignia . (Such "attention" was not devoted to
other employees .) This evidence was not offered to prove an
unfair labor practice but solely to show Respondent's al-
tered interest in Davis.
B. Respondent 's Defense
Respondent's supervisor of frame assembly is Clifford
Carter . He testified in substance as follows . He attended a
meeting of supervisors at plant 3 on the next-to -last Thurs-
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day in June 1972, i.e., June 22. When it ended at 3 p.m. he
returned to plant 1. As he so proceeded, he noticed persons
passing out handbills on the street . One of such persons was
Charlie Davis. About 3:30 p.m., as Carter left work, he saw
Morris Hazlewood also about 35 feet from Davis.
Eugene Buell, a quality control inspector, asserted that he
substituted for 2 weeks for Rod Long, another inspector, in
June 1972, and in this capacity inspected the work of Char-
lie Davis. Buell rejected some of the chairs Davis had
worked on . Sometimes Buell asked employee Bateman, the
instructor on Davis' line, to help Davis because of such
defective work. Further, Buell did not notice any company
supervisors "watching [Davis] working more than anybody
else."
David Earl Bateman is assistant supervisor over
Respondent's final trimmers in plant 3. A conspectus of his
testimony follows. Bateman instructed Charlie Davis how
to build and "fix" chairs. Thereafter, if Davis "needed"
Bateman he, Davis, "was to holler at" Bateman, who would
be nearby. Davis "frequently" called Bateman "for help."
Bateman also observed that some of Davis' work had been
rejected, but it deserved to be. Although Bateman 's superi-
ors instructed him to help Davis do a good job, no one told
Bateman to give Davis "a hard time" or that Davis' work
should be rejected. Nor did Bateman see anyone giving
Davis "harsher" treatment than any other employee.
Berkline's manager of lumber processing is Don Blair.
The superintendent of the rough mill, L. T. Hudgens, works
under him. Blair denies that he told Hudgens on May 24,
1972, when work became slack , to lay off only employees
wearing union buttons.
Betty Howington works as a clerk for Respondent in
plant 3 under Plant Manager Fred Parvin. She received an
absentee report from the guard's office before 8 a.m. on
June 22, 1972, that Charlie Davis would come to work that
day at "about lunch time." See Respondent's Exhibit 2. This
exhibit was prepared by Gordon E. Baker, a security guard,
who was called by Davis at about 5:56 a.m. on June 22,
1972. Baker recorded what Davis told him over the tele-
phone. Then Howington informed Parvin thereof. Howing-
ton also testified that Charlie Davis and Morris Hazlewood
had absentee records in 1972. See Respondent's Exhibits 3
and 4 for documentary evidence thereof. In addition, How-
ington testified that Morris Hazlewood called her in the
morning of June 22, 1972, to state that, as he had no ride,
he would not be in that day. Howington also reported this
to Parvin.
Ruby Pratt is the clerk for Kirt Bowlen, plant manager of
plant 1. She kept employees' absentee records for, among
other periods, January 13 to May 24, 1972, for department
16 in said plant. See Respondent's Exhibits 5A-5K. Exhibits
5H-5K disclose that many employees other than Young
and Parker were laid off for lack of work between May 16
and May 24, 1972.
Paul Brown is Respondent's general supervisor "over the
trainee people and mainly the quality of the work" in plant
1. He insists that he never cursed Charlie Davis or adjusted
the lathe of Davis to run faster. Brown did adjust said lathe
to run slower "due to the quality of the work."
Respondent's mill superintendent of plants I and 2 is Carl
J. Perkins. He hired Charlie Davis as a head builder, but
Davis was unable to do such work. Perkins denied that,
after May 10, 1972, he watched over Davis more closely
than over other employees.
Shirley Davis also worked under Perkins. At first Shirley
worked as a buffer but, when 90 percent of this work was
eliminated , she was assigned to operate the edge belt. Since
then very little buffing has been performed at these plants.
The two other buffers were also at the same time transferred
to work as buff drum sanders. These two were preferred as
such sanders because they were class A sanders , whereas
Shirley was a class B sander . Buff drum work is performed
by class A workers, while edge belt work is done by class
B workers. Perkins finally stated that women customarily
perform edge belt work; that Shirley Davis was producing
from 115 to 130 percent of standard on such work; and that
Shirley Davis never complained to him that such work was
undesirable and she did not want to do it.
Respondent's millroom sanding department supervisor in
plant I is Laydon Lathim. Shirley Davis, who worked under
him as an edge belt sander, in July 1972, complained to him
that she desired to be assigned back to the big buff drum
and would rather be laid off than operate an edge belt. But
he answered that he did not know if this could be arranged
as he "didn't know the production flow." On one occasion,
Mrs. Davis did tell him that she was afraid of "one
particular kind of work." As a result, he rescinded the order
to her to perform this specific operation, and he never again
asked her to do this type of work. Finally, Lathim testified
that Mrs. Davis was assigned to the edge belt because "very
little" of her former job remained at the plant; that she was
earning 110 to 135 percent of standard on the edge belt; and
that her union activity had nothing to do with her transfer
to the edge belt.
Until September 15, 1972, Robert Long was a unit man-
ager in upholstery for Respondent. One of his final trim-
mers was Charlie Davis. At no time did Long watch over or
observe Davis any more than other employees in the depart-
ment, nor did he instruct any supervisor to do so. Contin-
uing, Long described Davis' work as "poor," and that some
of it did not pass inspection.
On June 22, 1972, according to Long, Davis did not re-
port to work because Davis was going to Knoxville, Tennes-
see, to pick up his children. However, Long was informed
by Fred Parvin, manager of plant 3, that Davis "might be
in at lunch." Nevertheless Davis did not come in at all that
day. At about 3:30 or 4 p.m., Parvin informed Long that
Davis was passing out handbills in front of plant 1.
The next morning, June 23, Parvin instructed Long to
terminate Davis for "falsifying his excuse for being absent
the day before." Thereupon Long instructed Ray Tharp, the
immediate supervisor of Davis, "to terminate Davis for fal-
sifying his excuse for being absent the day before." So
Tharp removed the timecard of Davis from the rack at
about 6:50 a.m. When Davis came in and noticed his card
was missing he came to Tharp and Long, who were together
at the time, and said, "It looks like this is it." Then Tharp
told Davis that Davis "was being terminated for falsifying
his excuse for being absent the day before."
Shortly thereafter Long filled out a termination slip per-
taining to Davis . (See Resp. Exh. 6 .) However, Luce Russell,
a clerk, also wrote on it "Violation of Company Rules, L.R.
BERKLINE CORPORATION
6/28/72." Finally, Long insisted that the union activity of
Davis did not enter into the decision to terminate him.
In writing the words, "Violation of Company Rules" on
the termination report of Davis (see Resp. Exh. 6), Long had
no knowledge of what rules were involved or whether Davis
had broken any such rule. Long so wrote only because he
"accepted that as being true because Mr. Parvin had told
[him] so." General Counsel's Exhibit 2 does not specificially
mention Davis' offense as a ground for being disciplined
(see pp. 26-28 thereof), but it does state that "The foregoing
enumeration of rules covering discipline and dismissal is
primarily presented here by way of illustration and shall not
be deemed to exclude the Company's right to discipline or
dismiss employees for other just causes." (See p. 28 of G.C.
Exh. 2.)
Ray Tharp, Respondent's supervisor of line 3, upholstery,
was the immediate supervisor of Charlie Davis. Tharp's
immediate supervisor was Robert Long. When Davis re-
ported for work, following his transfer on May 25, 1972,
under Tharp, Davis pointed at his union insignia and com-
plained, "They transferred me up here, and they shafted me.
They think I'll quit, but I won't." Later that day Davis
offered Tharp $1,000 to fire Davis, but Tharp replied he had
no reason to do so. Further, Tharp never watched Davis any
more closely that he did other employees. However, Davis
did "poor work" and some of it was rejected because of the
quality of the work and not because of any other considera-
tions.
According to Tharp, Davis was discharged for "being
out, filing false absenteeism the day before," and union
activities had nothing to do with it.
Gene Jeffers, the supervisor of the first shift of the shap-
ing department in Respondent 's plant 1, admitted that be-
ginning May 10, 1972, he did "stay" at the machine of
Charlie Davis more often than at any other employee's. This
occurred because "when I [Jeffers] would leave, he [Davis]
would." In fact Jeffers told Davis to "stay on the machine."
Further, Jeffers did tell Davis not to take breaks during the
workday, but Jeffers also commanded the other lathe opera-
tors not to take any. This is because the lathes operated
constantly except when they were shut down for 25 minutes
at lunch . Such lathe operators were compensated for their
lunch period to make up for the loss of said breaks.
Jeffers denied that he ever told Davis that he, Jeffers, had
not heard that the lathes were to be moved. In fact, Jeffers
told Davis that the lathes would be moved about April 1972.
Jeffers once gave Davis a written warning on January 24,
1972, for failing to report to work on a Saturday. (See Resp.
Exh. 8).
Kirt Bowlin, manager of Respondent 's plants 1 and 2,
testified that early in February 1972, he was informed that
lathes would be moved in late May 1972. As a result, the
lathe work performed by Charlie Davis and two others was
eliminated . All three were then assigned to nonlathe jobs.
Bowlin also stated that Charlie Davis was hired as a lathe
operator and that, although he was also assigned work as a
head builder, Davis' latter work was unsatisfactory and he
"could not build heads, quality heads." However, Davis as
a repairer of heads was rated fair by Bowlin. Davis did
much repair work of this nature. Lathe operators, according
to Bowlin, were not given breaks because they worked on
67
a continuous operation, but they were paid for a 25-minute
lunch period to make up for this.
Continuing , Bowlin asserted that he did not consider
working on an edge belt sanding machine as a dangerous
job, and that women have worked on such machines. Only
minor accidents have occurred on such a job.
Further , according to Bowlin , when the lathes were
moved out of the Morristown plant the buffing operation,
being dependent on said lathes , "decreased a great deal."
Also, when such lathes were moved Bowlin transferred Da-
vis to a job which Bowlin felt was suitable for Davis and for
which Davis was competent to perform; but Davis' union
activity had nothing to do with such transfer.
Connie Haun is supervisor over Respondent's stool de-
partment. His immediate superior is Hugh Cox. Morris Ha-
zlewood worked under Haun. According to Haun,
Hazlewood missed a day's work a week "on the last" part
of his employment. On June 22, 1972, Haun was informed
by Fred Parvin's secretary, Betty Howington, that Hazle-
wood would not be in that day because of lack of transpor-
tation. As a result Haun at about noon asked one of
Respondent's guards to proceed to Hazlewood's home and
provide the latter with a ride to work. Said guard did go to
Hazlewood 's grandmother 's home , but did not find him
there as "he [Hazlewood] was living with his mother and
stepfather." The guard telephoned this information to
Haun, but the latter did not tell him to try to pick up
Hazlewood at the latter's stepfather 's home.
About 3:30 p.m. on June 22, Fred Parvin informed Haun
that Hazlewood was handbilling plant 1. At about 6:30 a.m.
on June 23, 1972, Plant Manager Parvin instructed Haun to
"terminate Hazlewood for falsifying excuse for absentee-
ism." Parvin did not ask Haun for a recommendation
whether Hazlewood should be retained . Haun carried out
this command by removing Hazlewood's timecard from the
rack and telling the latter, when he asked for such card, that
he, Hazlewood , "was no longer employed at Berkline, on
falsifying absenteeism ." Later , Haun signed, but did not
personally make out, a termination report on Hazlewood.
Said report, in evidence as Respondent's Exhibit 9, states
that the reason Hazlewood was discharged is "Falsifying
excuse for being absent on 6-22-72.... Violation of Com-
pany Rules."
Respondent's supervisor of its rough mill is L. T. Hud-
gens . He denied that he ever asked Shirley Davis how Char-
lie Davis was doing at plant 3 or with the Union, or that he
told Shirley that a speech given by Howard Westhauer
would change the minds of employees. And at no time did
Hudgens discuss the Union with Mrs. Davis. Further, Hud-
gens denied that he told Roy Young to take off union insig-
nia because Charlie Davis had been fired for displaying the
same . However, Hudgens did tell Young to remove union
insignia the latter was wearing on his hard hat or helmet
"because that was defacing Berkline property." Such helmet
was owned by Berkline which loaned it to Young for work-
ing purposes. However, employees were allowed to write
their names on a tape and attach such removable tape on
the outside of their helmets . When such tape was removed
some marks remained on the hard hats.
Additionally, Hudgens denied that he told employee
Mack Parker or any other employee that Hudgens was in-
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed by Supervisor Don Blair to send home for the day
those employees wearing union buttons . In fact, Hudgens
never selected for a day's layoff any employees because they
were or were not wearing union buttons.
Fred Parvm , Respondent 's manager of plant 3 , testified
substantially as follows . In late May 1972, Kirt Bowlin
asked Parvin if Parvin needed employees. When Parvin
replied that he could use some as final trimmers in the
upholstery department, Bowlin told him that employee Da-
vis and another were available . Final trimmers are classified
as grade 9 and their standard is $2.26 an hour.
On June 22, 1972, Parvin learned that Charlie Davis had
to go to Knoxville and, therefore, would not be in to work
that day until noon. On that same day, Parvin also was
informed that Morris Hazlewood would not be in to work
because he had no transportation ; that Morris was not at
his grandmother's home but was at his stepfather's home;
but efforts were made to locate him , to give him a ride to
work , only at the grandmother 's home . Between 2 and 2:30
p.m. that afternoon Larry Musick , Respondent's personnel
manager , told Parvin that Davis and Hazlewood were pass-
ing out handbills in front of plant 1.
About 4 p.m. on June 22, Parvin and Musick "discussed
this thing." During such discussion, Parvin ascertained from
Respondent 's records that Davis "had a final warning for
unexplained absence and excessive absenteeism ." After fur-
ther reviewing "this thing," during which it developed that
Mrs. Davis , who went to Knoxville with Davis , "made it
back to work at between 9 and 10 o'clock ," it was decided
to terminate Davis . It was additionally decided to fire Ha-
zlewood because (a) "if he 's living with his mother now and
she could make it back between 9 and 10, why couldn't
Hazlewood make it" ; and (b) Hazlewood had been absent
"maybe a day a week . . . for the last little while."
In the morning of June 23, Parvin instructed Connie
Haun to terminate Hazlewood for "falsifying his excuse and
being away from work a full day." Parvin did not mention
Hazlewood 's absentee record to Haun . Not long after this,
Parvin told Pete Long to discharge Davis for "falsifying
excuse for being away from work a full day." Parvin did not
"add to that in any way that it was for violating company
rules" or for having an unsatisfactory attendance record.
Further, Parvin insisted that the decision to discharge
Davis and Hazlewood was in no way based upon the com-
pany handbook in evidence as General Counsel's Exhibit 2,
or upon their union activity. ( It was stipulated that G.C.
Exh. 2 has been in existence for about 3-1/2 years and that
a "rule book similar to [it] . . . has been in existence at the
company for 12 years.") Finally, Parvin admitted that he
did not talk to Hazlewood or Davis prior to deciding to
discharge them.
Respondent's final witness , Larry Musick, its personnel
manager, testified in substance as follows . Between 2 and
2:30 p.m. on June 22, 1972, he observed a number of people
in front of plant I handing out handbills . Among them he
recognized Charlie Davis and Morris Hazlewood. This
caused Musick to report the fact to Parvin. Later that day,
at about 4:30 p .m., Parvin and Musick discussed "the case"
and reached the conclusion that both Davis and Hazlewood
should be discharged for "falsification of excuse for being
absent." Neither General Counsel's Exhibit 2 nor printed
rules entered into the said discussion.
Continuing, Musick asserted that, 2 or 3 weeks before
Davis and Hazlewood were discharged , another employee
had been discharged by Respondent "because of falsifica-
tion of a reason for absence ." No "regard" was given to
General Counsel's Exhibit 2 in dismissing this employee.
C. Concluding Findings and Discussion
In arriving at the findings hereinafter set forth I have
been guided by, and have followed, certain rules of law.
(a) The burden of proof rests upon the General Counsel to
establish the allegations of his complaint, and this burden
never shifts to the Respondent at any time. N.L.R.B. v.
Murray Ohio Co., 326 F.2d 509, 513 (C.A. 6). A corollary is
that there is no burden on Respondent to disprove any of
the allegations of the complaint . (b) Also, the failure of the
Respondent to prove any one or more of its defenses does
not constitute affirmative evidence which can aid the Gen-
eral Counsel in sustaining his burden of proof. N.LR.B. v.
Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 8), cert.
denied 396 U.S. 823; Council of Bagel Bakeries, 175 NLRB
902, 903. (c) Finally, as hereinafter recited I have not cred-
ited Respondent 's evidence on certain aspects of the case.
But this does not amount to affirmative evidence capable of
supporting the General Counsel 's obligation to prove his
case . "The mere disbelief of testimony establishes nothing."
N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1).
See Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.).
1. The discharge of Charlie Davis
It is my opinion, and I find, that Davis was discharged for
engaging in union activity, and that the ground assigned for
terminating him, i .e., "falsifying excuse for being away from
work a full day," is a pretext to dissemble the true reason.
This ultimate finding is based upon the entire record and the
following subsidiary facts which I hereby find as facts.
Respondent's evidence not consonant with said facts is not
credited . Further, I find that Davis was not transferred from
plant I to plant 3 for discriminatory reasons, as I find that
this became necessary because the lathes on which Davis
worked in plant 1 were lawfully moved to Respondent's
factory in Livingston.
(a) Davis was an active proponent of the Union, and
Respondent had knowledge of this. In fact it was his distrib-
uting handbills which caused Plant Manager Parvin and
Personnel Manager Musick to discuss the absence of Davis
from work on June 22, 1972. 1 realize , and expressly rule,
that engaging in union activity, no matter how extensive,
will not immunize or insulate an employee from being ter-
minated for lawful cause . N.L.R.B. v. Murray Ohio Co., 326
F.2d 509, 515 (C.A . 6). But patently an employee who
strongly espouses a union may become a target for employ-
er concern . "Obviously the discharge of a leading union
advocate is a most effective method of undermining a union
organizational effort." N.L.R.B. v. Longhorn Transfer
Service, 346 F.2d 1003, 1006 (C.A. 5). This fact may be
evaluated in ascertaining the actual reason inspiring a dis-
charge . Maphis Chapman Corp. v. N. L. R. B., 368 F.2d 298,
304 (C.A. 4).
BERKLINE CORPORATION 69
At this point it may be remarked that "Direct evidence
of a purpose to discriminate is rarely obtained, especially as
employers acquire some sophistication about the rights of
their employees under the Act...." Corrie Corporation v.
N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Nowadays it is usual-
ly a case of more subtlety." N.L.R.B. v. Neuhoff Bros., 375
F.2d 372, 374 (C.A. 5). In my opinion, the foregoing state-
ments are applicable to the discharge of Davis.
(b) Respondent harbored union animus . This alone will
not sustain a conclusion that Davis was discriminatorily
discharged. N.L.R.B. v. Murray Ohio Co., 326 F.2d 509, 514
(C.A. 6); N.L.R.B. v. Threads Inc., 308 F.2d 1, 8 (C.A. 4).
Nevertheless it is a factor which may be evaluated in am-
ving at the true reason for terminating Davis.
(c) Respondent suddenly revived Davis' absentee record
and used it in part to warrant his dismissal . But such record,
assuming it was bad, had at no time in the past resulted in
disciplinary action against him. Hence I find that it was
condoned or overlooked. And I further find that resur-
recting said record is some indicia of a desire to discharge
a strong, if not vigorous, proponent of the Union. Cf. Avco
Corporation, 199 NLRB No. 86, where an employer
searched through an employee 's personnel files to find a
pretext for a discharge.
(d) Davis was precipitately discharged during the height
of the Union's campaign . It is undeniable , and I rule, that
abruptness of a termination during a union's drive does not
preclude a finding that such discharge was effected for
cause . Cf. Miller Electric Mfg. Co. v. N. L. R. B., 265 F.2d 225,
226-227 (C.A. 7); Whitcraft Houseboard Division, 195
NLRB 1046. But I find that the abruptness of the decision
to terminate Davis , when appraised together with other
facts found herein , points to the result that his absence from
work on June 22 would not have resulted in his discharge
if he had not engaged in distributing union literature while
so being away from work. In addition, the timing of the
discharge , i.e., at a time concurrent with union handbilling,
has probative value.
In this connection it is true , and I rule, that I may not
question the severity of the penalty imposed upon Davis for
what some may treat as a possible minor infraction. For an
employer's judgment in disciplining employees is an "unfet-
tered right" which may be reviewed, revised, or modified in
this proceeding. N. L. R. B. v. United Parcel Service, 317 F.2d
912, 914 (C.A. 1); N.L.R.B. v. Murray Ohio Co., 326 F.2d
509,514 (C.A. 6); N.L.R.B. v. Ace Comb Company, 342 F.2d
841, 847 (C.A. 8). But "even though unexcused absence
from work . . . would be good cause for discharge, if the
exercise of this right is tainted with a discriminatory motive
under Section 8(a)(3) of the Act, a violation may be found."
N.L.R.B. v. Murray Ohio Co., 326 F.2d 509, 517 (C.A. 6). I
find such taint in the discharge of Davis, and I draw "the
inference that Respondent seized upon [Davis'] unexcused
[absence ] as an opportunity to rid itself of a union man."
N.L.R.B. v. Murray Ohio Co., 326 F.2d 509, 517 (C.A. 6). I
make this inference even though Davis' performance of his
work may have deteriorated. Cf. N.L.R.B. v. Murray Ohio
Co., 326 F.2d 509, 516 (C.A. 6), Miller's case.
(e) I find that Respondent neither conducted a fair and
impartial investigation of the reason for Davis' absence, nor
offered him an opportunity to explain his absence or other-
wise to defend himself. At the trial, Davis contended he had
permission to take off the entire day on June 22, 1972,
whereas Parvin never asked Davis about this prior to dis-
charging the latter . Parvin merely took another person's
word that Davis would be off only till noon on that day
without seeking Davis' version . Yet Davis was terminated
without even the semblance of a chance to vindicate him-
self. Absence of a fair investigation under these circum-
stances is evidence of a discriminatory attitude toward the
employee affected thereby. Norfolk Tallow Co., Inc., 154
NLRB 1052, 1059. And the failure to inquire of Davis for
his account of this incident warrants the inference of a
discriminatory motivation towards him. Service Technology
Corporation, 196 NLRB 1036 . I draw that inference.
In this area of the case it is also significant that Davis'
immediate superior was not consulted or allowed to partic-
ipate in the decision to discipline Davis . While not conclu-
sive , this attitude of Parvin suggests that Parvin was
interested in terminating Davis regardless of what rec-
ommendation may have been proposed by Davis' supervi-
sor. Virginia Metalcrafters, Inc., 158 NLRB 958, 962;
Bendix-Westinghouse, 161 NLRB 789, 796.
(f) It is not imperative that Davis ' discharge be motivated
solely by discriminatory considerations to render it illegal.
It is sufficient to find that he was unlawfully terminated if
a substantial ground leading to his dismissal was his union
activity notwithstanding that a valid reason may also have
simultaneously existed for taking disciplinary measures
against him. N.L.R.B. v. Lexington Chair Co., 361 F.2d 283,
295 (C.A. 4); N.L.R.B. v. Whitin Machine Works, 204 F.2d
883, 885 (C.A. 1); Sinclair Glass Co. v. N.L.R.B., 465 F.2d
209 (C.A. 7); N.L.R.B. v. Murray Ohio Co., 358 F.2d 948,
950 (C.A. 6).
(g) Finally, Davis was abruptly discharged long after his
alleged unacceptable absenteeism occurred and contempo-
raneously with the Union's organizing campaign . This cir-
cumstance makes operative the principle that abruptness,
manner, and timing of a discharge cast light upon the ques-
tion of whether an employee was terminated for a lawful
cause or whether the reason advanced for such discharge is
a pretext to disguise antiunion hostility prompting such ac-
tion. Arkansas-Louisiana Gas Company, 142 NLRB 1083,
1085-86 . "The abruptness of a discharge and its timing are
persuasive evidence as to motivation ." N.L.R.B. v. Mont-
gomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied
355 U.S. 829.
While I am mindful that the suddenness of a discharge
during a union campaign will not automatically brand a
discharge as unlawful , I nevertheless am aware that "The
mere existence of valid grounds for a discharge is no defense
to a charge that the discharge was unlawful...." N.L.R.B.
v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7). I
expressly find that discriminatory motives played a substan-
tial part in deciding to terminate Davis, and that such mo-
tives overrode any idea of discharging him for a valid
reason.
2. The discharge of Morris Hazlewood
A careful examination of the entire record convinces me,
and I find, that Hazlewood was discharged because he had
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in union activity , and that the reasons given at the
trial for terminating him, i .e., (1) for "falsifying his excuse
and being away from work a full day ," and (2) being absent
"maybe a day a week . . . for the last little while" are
pretexts to mask the true reason . This ultimate finding is
derived from the entire record and the following subsidiary
findings , which I hereby find as facts.
(a) Hazlewood engaged in union activity , including the
distributing of union handbills on June 21 and 22. I credit
Hazlewood that he distributed such handbills on June 21
and believe that Respondent 's witnesses should be credited
that he also did so on June 22.
(b) Respondent entertained union animus as found else-
where herein . While this in itself does not constitute an
unfair labor practice , it may be evaluated with the remain-
der of the pertinent evidence to arrive at the true reason for
his discharge.
(c) Hazlewood was never told that he was being dis-
charged in part for being absent "a day a week ... for the
last little while ." Failing to notify Hazlewood of this reason,
advanced for the first time at the trial , is perhaps of minor
significance , but it tends to show , especially when consid-
ered along with the finding in the next paragraph below,
that it amounts to a pretext.
(d) At no time was Hazlewood 's allegedly poor atten-
dance record called to his attention , nor was he disciplined
therefor . Thus his absenteeism was overlooked or con-
doned . Midwest Towel Service, 143 NLRB 744, 754, enfd.
339 F.2d 948 (C.A. 7). Failure to warn or alert Hazlewood
that he risked discharge for such absenteeism has probative
value in determining the actual ground for terminating him.
E. Anthony & Sons, Inc. v . N.L.R.B., 163 F.2d 22, 26-27
(C.A.D.C.); N.L.R.B. v. Melrose Processing Co., 351 F.2d
693,699 (C.A. 8); Krestmark Industries, Inc., 199 NLRB No.
171.
(e) Hazlewood was not only abruptly discharged but im-
mediately after handbilling for the Union. While not con-
clusive , this fact has probative value in ascertaining the true
reason for terminating him. And I draw "the inference that
Respondent seized upon [Hazlewood 's] unexcused [ab-
sence] as an opportunity to rid itself of a union man." N.L.
R.B. v. Murray Ohio Co ., 326 F .2d 509 , 517 (C.A. 6).
(f) I further find that Respondent neither conducted a
fair and impartial investigation of the reason for
Hazlewood 's absence , nor offered him an opportunity to
explain his absence or otherwise to defend himself . Hazle-
wood was terminated without a fair chance to vindicate
himself and without Respondent 's even discussing the mat-
ter with his foreman . Failure to consult Hazlewood 's imme-
diate supervisor prior to discharging Hazlewood has some
probative value . Guilford Mills, 164 NLRB 615 , 620. Under
the circumstances the absence of a fair investigation and the
failure to ask Hazlewood for his side of the incident mani-
fest a discriminatory motive behind Hazlewood's discharge.
Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059; Service
Technology Corporation, 196 NLRB 1036 . Although of mi-
nor significance , it is worthy to mention that Respondent
did not even instruct its guard to pick up Hazlewood at the
latter's home after said guard reported Hazlewood 's correct
address to Respondent , at a time when Respondent alleged-
ly dispatched said guard to give Hazlewood a ride to work
on June 22.
(g) Finally, it is not essential that Hazlewood' s union
activity be the only ground for his discharge to find that he
was unlawfully terminated. N.L.R.B. v. Challenge-Cook
Brothers, 374 F.2d 147 (C.A. 6). His discharge will be found
to be discriminatory, notwithstanding a valid ground may
have existed warranting his dismissal , so long as his union
activity was a motivating or substantial reason for terminat-
ing him . N.L.R.B. v. West Side Carpet Cleaning Co., 329
F.2d 758, 761 (C.A. 6). I find that a substantial ground-but
not necessarily the only one-for firing Hazlewood was his
union activity.
3. The assignment of less desirable
work for Shirley Davis
A critical evaluation of the entire record convinces me,
and I find , that Mrs. Davis was not assigned to edge belt
work for discriminatory reasons. Consequently, I find that
such assignment does not violate any provision of the Act.
Accordingly, I shall recommend that this aspect of the com-
plaint be dismissed.
I cannot overstress at the outset that merely because Mrs.
Davis engaged in union activity of which her employer had
knowledge , which I find , is not enough to ascribe illegal
motives to Respondent in effectuating this transfer. Nor is
the fact, which I find, that Respondent harbored hostility to
unions sufficient to render the transfer illegal . Respondent
may transfer for any cause, whether good, bad, or indiffer-
ent, or for no cause , so long as it is not motivated by illegal
considerations.
Nor am I authorized to pass judgment upon or otherwise
appraise Respondent 's decision to transfer Mrs. Davis. Re-
gardless of whether said transfer was sound or not, or
whether another employer would not have made this trans-
fer, Respondent 's decision in, this connection may not be
reviewed in this proceeding. See P. G. Berland Paint, Inc.,
199 NLRB No. 177. Otherwise an employer who displayed
poor judgment in operating his business would be answera-
ble in unfair labor practice cases for such conduct . But that
is not the law. See P. G. Berland Paint, Inc., supra.
It is true that Mrs. Davis once asked to be relieved of edge
belt work, and this request was honored by placing her on
the buffer. But I find that Respondent lawfully and in good
faith thereafter so modified its method of operating that
buffer work became negligible . As a result it became imper-
ative to prescribe other work to Mrs. Davis and a few other
buffers. But I find that Mrs. Davis was properly selected to
be returned to edge belt work when buffing became scarce,
and that no discriminatory motives entered into this deci-
sion.
It may be that edge belt work was more onerous. And I
am aware that sometimes giving less desirable work to an
employee may be discriminatory. Extendicare of Kentucky,
Inc., 199 NLRB No. 47. But I find that union animus did
not enter into the decision to give Mrs. Davis edge belt
work. And I consider S. S. Kresge Co., 199 NLRB No. 52,
not applicable to the instant case, for in Kresge it was found
that a refusal to change an employee 's work schedule was
discriminatorily motivated. Here I find no illegal motive in
assigning Mrs. Davis to edge belt work when buffing work
BERKLINE CORPORATION 71
was greatly reduced in amount.
4. The temporary layoffs of Roy C. Young
and Mack Parker
a. As to Young
Upon the record unfolded in this case, I am of the opin-
ion, and find, that Young was not unlawfully laid off for the
afternoon of May 24, 1972. Accordingly, I shall recommend
that this branch of the complaint be dismissed.
No one doubts that there was a shortage of work in the
rough mill for the afternoon of May 24, and I so find. Hence
I further find that Respondent was obliged to send some
employees home for that period. On the record before me
I am unable to find that Young was selected to be laid off
for that afternoon for discriminatory reasons. It is true, and
I find, that Young wore a union button and that Respon-
dent had knowledge of it. He also signed a union card and
obtained signatures to a few union cards . But the evidence
does not disclose that Respondent had knowledge of this
latter union activity.
Improper motives in laying off Young may not be infer-
red simply because he belonged to the Union. Cf. P. G.
Berland Paint, Inc., 199 NLRB No. 45. As a matter of fact,
nonunion employees in Young's department, but not in his
"group," were also sent home that afternoon. This demon-
strates that the temporary layoff was not restricted to union
adherents . It is true that the three union members in
Young's group were laid off for that afternoon. But no
contention is made that Respondent was unlawfully moti-
vated as to one of these three; i.e., Lonnie Harell. Nor is
there evidence that Respondent departed from seniority in
making said layoffs. This shows an absence of antiunion
attitude in choosing employees to be so laid off.
The General Counsel stresses the fact that, in the past,
when work was slack employees were given other work
rather than be sent home. But I find that this practice was
not consistently followed, so that on some occasions em-
ployees were sent home when work became unavailable. In
any event, the General Counsel has failed to establish that
other work remained to be performed to which Young could
be transferred for the afternoon. Hence I find that the argu-
ment advanced in this paragraph is not supported by the
record. In this connection, I find that Respondent's business
judgment in deciding that a temporary layoff had to be
resorted to and that Young should be one of those sent
home may not be questioned, regardless if it was sound or
not, unless motivated by antiunion considerations. And I
further find that no antiunion motives played any part in
arriving at said business judgment.
For the reasons recited above in finding that no unfair
labor practice was committed when Young was laid off for
the afternoon of May 24, I find that Parker was lawfully sent
home that afternoon for lack of work. However, certain
testimony of Parker requires further evaluation at this point.
When Foreman Hudgens informed Parker at or about
9:30 a.m. on May 24 that Parker would not work that af-
ternoon , Parker claims that "the way [Hudgen's] supervisor
John Blair had put it , it would be the ones that were wearing
the union badges" who would be sent home . I do not credit
Parker that Hudgens uttered this remark . In any event, it is
clear that several nonunion employees in the department
were also laid off, and one union employee, Delmar Harris,
was not laid off, so that I find that union animus did not
enter into the decision to layoff Parker. In addition, I find
no union animus on this occasion.
Further, Parker testified that on prior occasions when a
lull in work activity was encountered Respondent either
assigned employees to other work or asked employees "to
volunteer to go home"; and that on May 24 no one in
Parker's group was given the opportunity to volunteer to go
home for the afternoon . But I find that some divergence
from this practice had'occurred in the past. Consequently,
I find that failure to abide by this loosely observed system
was not due to antiunion motives.
Since I have found that Parker was not deprived of work
on the afternoon of May 24 because of discriminatory mo-
tives , I shall recommend that this segment of the complaint
be dismissed.
5. Alleged violations of Section 8(a)(1)
of the Act
About June 23, 1972, Supervisor L. T. Hudgens told em-
ployee Young to remove union badges which decorated the
latter's clothing, and added, "You know Davis has got fired
over it." Respondent's evidence inconsistent with this state-
ment is not credited. I find that this is a threat of reprisal
for exercising a right protected by the Act and, therefore,
contravenes Section 8(a)(1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Those activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurri>;ig
in connection with its operations described in section I,
above, have a close , intimate , and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
b. As to Parker
As in the case of Young, I find, upon assessing the entire
record, that Parker was lawfully laid off for the afternoon
of May 24 when work became slack. I find that Parker
belonged to the Union and that Respondent was aware of
this. In addition, I find that he induced some employees to
sign union cards, but evidence is wanting to indicate that
Respondent knew of this conduct.
V. THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it take specific ac-
tion, as set forth below , designed to effectuate the policies
of the Act.
In view of the finding that Respondent unlawfully termi-
nated Charlie Davis and Morris Hazlewood, it will be rec-
ommended that it be ordered to offer each immediate and
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full reinstatement to his former position, or, if such is not
available, one which is substantially equivalent thereto,
without prejudice to the seniority and other rights and privi-
leges of each . It will further be recommended that each be
made whole for any loss of earnings suffered by reason of
his termination.
There is evidence in the record that Hazlewood is less
than 18, and that Respondent generally does not hire per-
sons under 18. However, Hazlewood's termination report
prepared by Respondent expressly states that Hazlewood is
"eligible for rehire." (See Resp. Exh. 9.) If there is any
impediment to Hazlewood's being taken back by Respon-
dent it may be resolved at the compliance stage of this
proceeding , as it was inadequately litigated at the trial be-
fore me.
In making Davis and Hazlewood whole, Respondent
shall pay to each a sum of money equal to that which he
would have earned as wages from the date he was terminat-
ed to the day he is reinstated or a proper offer of rein-
statement is made , as the case may be, less his net earnings
during such period. Such backpay, if any , is to be computed
on a quarterly basis in the manner established by F. W.
Woolworth Company, 90 NLRB 289, with interest thereon at
6 percent, calculated according to the formula set forth in
Isis Plumbing & Heating Co., 138 NLRB 716. It will also be
recommended that Respondent preserve and make avail-
able to the Board or its agents , upon reasonable request, all
pertinent records and data necessary to aid in analyzing and
determining whatever backpay may be due. Finally, it will
be recommended that Respondent post appropriate notices.
The discriminatory discharges of Davis and Hazlewood
go "to the very heart of the Act." N.L.R.B. v. Entwistle
Manufacturing Company, 120 F.2d 532, 536 (C.A. 4); N.L.R.
B. v. United Mineral Corp., 391 F.2d 829, 837-838 (C.A. 2).
Consequently, the Board's Order should be sufficiently
comprehensive to prevent further infraction of the Act in
any manner, and I shall so recommend. Cf. R & R Screen
Engraving, Inc., 151 NLRB 1579, 1587.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
tion 2(2), and is engaged in commerce as defined in Section
2(6) and (7), of the Act.
3. By threatening reprisals against employees wearing
union badges Respondent committed an unfair labor prac-
tice proscribed by Section 8(a)(1) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Charlie Davis and Morris Hazlewood, thereby dis-
couraging membership in the Union, a labor organization,
Respondent engaged in unfair labor practices condemned
by Section 8(a)(3) and (1) of the Act.
5. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'
Respondent, Berkline, Corporation, Morristown, Ten-
nessee , its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization , by discharging employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(b) Threatening employees with reprisals for wearing or
displaying union buttons or insignia.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Charlie Davis and Morris Hazlewood each im-
mediate and full reinstatement to his former job, or, if that
job no longer exists, to a substantially equivalent one, with-
out prejudice to the seniority and other rights and privileges
previously enjoyed by each, and make each whole for any
loss of pay he may have suffered by reason of Respondent's
discrimination against him , with interest at the rate of 6
percent as provided in the section above entitled "The Rem-
edy."
(b) Preserve and, upon reasonable request, make avail-
able to the Board or its agents, for examination and copy-
ing, all payroll records and reports, and all other records
necessary to ascertain the amount , if any , of backpay due
under the terms of this recommended Order.
(c) Post at its premises at Morristown, Tennessee, copies
of the notice marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for Region 10,
after being signed by a duly authorized representative of the
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places , including all places where
notices to employees are customarily displayed. Reasonable
steps shall be taken to insure that said notice is not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
1 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
2 In the event 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 "
BERKLINE CORPORATION 73
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discourage membership in United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization , by dis-
charging employees or otherwise discriminating in any
manner in respect to their tenure of employment or any
term or condition of employment.
WE WILL NOT threaten employees with reprisals for
wearing or displaying union buttons or insignia.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the National Labor
Relations Act.
WE WILL offer Charlie Davis and Morris Hazlewood
each immediate and full reinstatement to his former
position , or, if such position no longer exists , to a sub-
stantially equivalent one, without prejudice to the sen-
iority and other rights and privileges enjoyed by each,
and make each whole for any loss of pay he may have
suffered by reason of his discharge , with interest there-
on at the rate of 6 percent per annum.
All our employees are free to become , remain , or refuse
to become or remain , members of the above-named Broth-
erhood of Carpenters or any other labor organization.
Dated By
BERKLINE CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office , Peachtree Building, Room 701,
Atlanta, Georgia 30308, Telephone 404-526-5760.