Bernardin, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1965

153 N.L.R.B. 939 (N.L.R.B. 1965)

BERNARDIN, INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
939
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership of our employees in, or activities on
behalf of, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
or any other labor organization, by discharging or otherwise discriminating
against any of our employees.
WE WILL NOT harass or transfer any employees because of their exercise of
rights specified in Section 7 of the Act.
WE WILL NOT unlawfully interrogate our employees concerning their union
activities or sympathies.
WE WILL NOT threaten our employees with discharge or any other form of
reprisal because of their membership in, sympathy for, support of, or activities
on behalf of, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, or any other labor organization.
WE WILL NOT promulgate, maintain, or enforce any rule prohibiting our
employees during their nonworking time from distributing union literature in
nonworking areas of the plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of the rights to self-organization, to form, join, or assist the
above-named, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer C. H. Thomas, Gene Lyles, James L. Warnick, and Stanley J.
Palmer immediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and privileges
enjoyed, and make them whole for any loss of pay suffered as a result of dis-
crimination against them.
THE SINGER COMPANY, WOOD PRODUCTS DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-
3161, if they have any question concerning this notice or compliance with its provisions.
Bernardin , Inc., and District 153 of The International Association
of Machinists, AFL-CIO. Case No. f5-CA-2061. June 30, 1965
DECISION AND ORDER
On April 27, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
153 NLRB No. 91.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices and recommended that
such allegations of the complaint be dismissed. Thereafter, the
Respondent and General Counsel filed exceptions to the Trial Exam-
iner's Decision and supporting briefs and the General Counsel filed a
brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
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 the case, and hereby adopts the findings, conclusions, and recoin-
mendations of the Trial Examiner with the additions and modifica-
tions set forth.
We agree with the Trial Examiner that in the particulars found by
him the Respondent violated Section 8(a) (1) and (3) of the Act.
However, contrary to the Trial Examiner, we find that the Respond-
ent's letters, dated June 29 and 30, also violates Section 8(a) (1) of
the Act. Because these letters implied that strikes and the loss of cus-
tomers were inevitable if the employees selected the Union, the letters
tended to restrain and coerce the employees in the exercise of their
statutory rights.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Bernardin, Inc., Evansville,
Indiana, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
1. Add the following as paragraph 1(a) to the Trial Examiner's
Recommended Order, the present paragraph 1(a) and those subse-
quent thereto being consecutively relettered:
"(a) Threatening any of its employees with the curtailment or loss
of employment, or with less favorable conditions of employment, or
other economic reprisal, if they select a labor organization as their
bargaining representative, or engage in other concerted activities for
their mutual aid or protection."
1 See S. N. C. Manufacturing Co, Inc, 147 NLRB 809 Member Fanning finds that the
two letters when taken together and read in the context of Respondent's other conduct
constitute a violation of Section 8(a) (1). Member Jenkins would not find the letters to
violate Section 8(a)(1), and would affirm the Trial Examiner on all issues.
BERNARDIN, INC. 941
2. Make the following change in the Appendix to the Recommended
Order :
Insert the following paragraph as the first indented paragraph:
WE WILL NOT threaten our employees with loss of jobs, curtail-
ment in the amount of work available, with less favorable working
conditions, or other reprisal, if they elect to have a union repre-
sent them, or engage in other union activities.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, was heard before Trial Examiner George A. Downing at Evansville , Indiana,
on January 27 and 28, 1965 , pursuant to due notice . The complaint , issued on
November 20, 1964, and based on a charge dated October 7, 1964, alleged in sub-
stance that Bernardin , Inc., herein called the Respondent, engaged in unfair labor
practices proscribed by Section 8(a)(1) and (3) of the Act by various specified acts
of interference , restraint, and coercion ( i.e., threats of discharge and warnings of
economic loss and reprisals ) and by discharging and/or laying off Edwin Flick on
September 18 and George B. Jones on September 25, 1964, because of their union
membership and/or their union and other concerted activities . Respondent answered
on November 28, denying the allegations of unfair labor practices.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , an Indiana corporation, maintains a principal office and plant at
Evansville , Indiana, where it is engaged in the manufacture and sale of bottle caps
and other container products . It manufactured and sold in the 12-month period prior
to the issuance of the complaint products valued in excess of $50,000 of which prod-
ucts valued in excess of $50,000 were shipped to points outside the State of Indiana.
Respondent is therefore engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
District 153 of the International Association of Machinists , AFL-CIO, herein called
The Union, is a labor organization within the meaning of Section 2(5) of the Act.
IIL THE UNFAIR LABOR PRACTICES
A. Introduction and issues
The Union filed a representation petition on March 10 , 1964, in Case No. 25-RC-
2595 seeking representation in a unit of maintenance , tool-and-die , and machine
repair employees. Approximately 52 employees were involved of a total of approxi-
mately 400 plant employees. Following a representation hearing on April 8, an elec-
tion was held on July 2 in which George B. Jones and Edwin Flick acted as observers
for the Union . The Union lost the election by a vote of 31 to 21, but it filed no
objections.
On October 7 the Union filed the charge herein, which was limited to the discharge
and the refusal to reinstate Flick and Jones, though it contained the usual catch-all
that by "other acts and conduct " Respondent had engaged in interference , restraint,
and coercion. However, the complaint included specific allegations of interference,
restraint , and coercion which antedated the election, in support of which the General
Counsel offered at the hearing various pieces of Respondent 's campaign literature and
the testimony of a single witness concerning alleged conversations with a supervisor.
The postelection conduct included, aside from the Flick-Jones discharges (or layoffs),
testimony by the same witness concerning a single further conversation with the same
supervisor and testimony by Jones concerning separate conversations with two other
supervisors , upon the latter of which the General Counsel also relies to establish
discriminatory motivation for the discharges.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All issues of supervisory status were removed by admissions in Respondent's answer
and by stipulation at the hearing.
Respondent's witnesses denied or disputed all of the alleged conversations. Respond-
ent defended Flick's discharge on the ground that it was made for cause and it
defended Jones' layoff on the basis of economic reasons. The issues thus presented
are entirely factual save for the question whether Respondent's campaign letters were
violative of the Act in the respects claimed by the General Counsel, a question with
which we start.
B. Interference, restraint, and coercion
1. The letters to the employees
From June 22 through 30 Respondent sent to its employees a series of seven letters
concerning the impending election and stating Respondent's views concerning union
representation. Read in their entirety there was little in those letters which can be
said to imply any threat of reprisal or force or promise of benefit (see Section 8(c) ),
and, as will be seen, the excerpts upon which the General Counsel relies constitute
borderline material as to which Board (and court) law may fairly be characterized
as confused. See, for example, the review of Board and court decisions as made by
the Trial Examiner in Poray, Inc., 143 NLRB 617, 626.
By brief the General Counsel limits his claim to certain excerpts from Respondent's
letters of June 27, 29, and 30,1 though he contends that the entire content of the two
last letters is coercive. We begin with the letter of June 29, in which Respondent's
president began by informing the employees that it was his responsibility to tell them
the truth as he saw it. There followed seven numbered paragraphs the first four of
which contained, among other things, the statements on which the General Counsel
relies:
1.-I sincerely believe that if the Machinists' union gets in we will have strikes,
because that is the only way this union seems to try to enforce its demands
2.-I believe that if a union gets in, we will lose business. I have never heard
of a company that was able to operate during a strike and still be able to produce
and ship all the product[s] his customers wanted, and certainly the International
Steel Company had this trouble during its STRIKE.
3.-I must tell you the truth and thus give you all of the facts so here they
are-
Many of our customers give us 100% of their production in the caps we make
for them, because we do not have a union. This is a fact with at least ten of our
major customers. These customers have for years known that they could depend
on us for keeping them fully supplied without the danger of a "UNION STRIKE "
Now, with customers such as French-Blue Plate-Hiram Walker-Borden-
Heinz-to name a few, we seriously question their willingness to continue to give
us 100% of their production if there is danger of a work stoppage due to union
activity. I tell you this NOT as any threat, but as a hard and true fact that we
all must consider. Please think about this as you cast your vote on Thursday.
4.-I honestly don't know for sure whether we would have a union strike if the
union got in BUT I do know this that Machinists' union has had a lot of strikes
here in Evansville, and thus we could easily guess that we would have one in
our plant if they got in. And if we did, I believe that if we lose any of business
because of a strike we may never get it back, because it will probably go to a
competitor who does not have a union.
By brief the General Counsel assigned the contents of paragraph 3 as coercive, and
in oral argument he assigned as well the contents of paragraph 2.
The letter of June 30 contained in part the following statements:
I believe it is only natural for people to vote for what they think will genuinely
work to their benefit-but if you will think carefully and weigh this matter thor-
oughly, you will surely come to the conclusion that if the Union were to get
into this operation, the result would not be to benefit you but to harm you and
to harm you seriously. It is not mainly the interest of this Company-it is
mainly your own interests which are at stake in this election.
1 Though the General Counsel contended in oral argument that portions of the letter of
June 26 were also coercive, he was unable to cite authority to support his position and
stated he would do so in his brief His brief omits any reference to the June 26 letter
and cites no cases to support his argument.
BERNARDIN, INC. 943
I know that many of our largest customers would just not take a chance on
giving us 100% of their total requirements of caps if this Union should win the
NLRB election. You all know what this would mean to you and me. I tell you
this, not as a threat, but as an honest fact
Though the letter of June 27 preceded those of June 29 and 30, the General Coun-
sel argues that in the context of the latter the following statement in the letter of
June 27 is coercive:
We say that with a union in our plant we can not operate to the best advantage
of our employees, customers, and our company.
The single case which the General Counsel cites and relies upon is S N C. Manu-
facturing Co., Inc., 147 NLRB 809. There the Board affirmed the Trial Examiner's
finding of a violation in the distribution to employees of letters written by the employ-
er's paid sales repiesentatives in which the latter expressed their concern over the
possible unionization of the plant and pointed to the danger of losing the business
of its large customers. The letters stated in part that it was respondent's lack of "labor
difficulties" which had prompted those customers to give it their business for so long
and that.
It was because we were able to jump in and take it over after some other sup-
plier had not been able to deliver, because of labor difficulties, and had to tell
our customers to cancel and try to help themselves elsewhere.
Another excerpt was as follows
... In the past we have been able to secure many orders due to the fact that
you have a non-union shop. Many of our customers have placed orders with us
rather than our competitors due to this one factor.
We were very concerned when we learned there was a possibility of a union
going in at SNC. We feel we may be handicapped in future sales if the Union
is established
Please advise at your earliest convenience what develops on the Union This
will be most important to us as it will certainly affect our transformer sales in the
Minneapolis area.
Also pertinent here for purposes of comparison was the Board's further holding
on four other letters which the employer itself wrote its employees and which were
found not to be violative of Section 8(a)(1). In one of those the employer com-
mented on the "bargain basement" claims of the union, stated that the result of unions
pricing their members' work too high was unemployment, that strikes to enforce the
union's excessive demands would cause employees to lose money, and that a fancy
union contract was worth nothing unless "you have a job to go with it " Another
letter commented further on the theme that the employees might be without jobs if
they selected union representation. A third letter stated that the employees might
have been told that the union would force the company to grant higher wages and
greater benefits, but that the union would make no difference, and that even a strike
would not force management to abandon its responsibility for the success of the busi-
ness. A fourth letter told the employees, "it is our honest belief that a union cannot
do anything for our employees," and that "a union can create a situation where not
only benefits are eliminated but whole jobs go out of existence."
Decisions ii other recent cases make it clear that the criterion which the Board
applies in determining the coercive effect of such statements as were involved in
S N.C. is whether they were more than mere predictions of future events and whether
they were designed to convey the firm impression that strikes and the loss of business,
or work, or benefits, or security, arising therefrom will be the inevitable results of
union representation. See, e.g., Herman Wilson Lumber Company, 149 NLRB 673;
Brownwood Manufacturing Company, 149 NLRB 921; Mayfair Midwest, Inc., 148
NLRB 1602.
Despite agreement on that principle, however, the decisions reflect neither unanim-
ity nor consistency of application to statements which appear to be no less than sub-
stantial equivalents Thus despite the similarity of the employer's language in the
following cases, a violation was found in Herman Wilson Lumber Company, supra,
and in Brownwood Manufacturing Company, supra, and none was found in Poray,
Inc., 143 NLRB 617, in Mayfair Midwest, Inc., supra, or in Lester Brothers, Incor-
porated, 142 NLRB 992 (Appendix B, pp. 1016-1018), while in S.NC, supra, one
set of statements was found to be coercive and another one was not. Thus the normal
occupational hazards involved in the decisional process at the Trial Examiner level
are increased by the necessity of choosing between mixed precedents, without the aid
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of "canons of construction " or of any other criteria which might "save us from the
anguish of judgment ." Frankfurter, Some Reflections on the Reading of Statutes, 47
Col. L. Rev. 527, 544 (1947).
Proceeding therefore to apply here the principle of "mere predictions " versus
"inevitable results," I conclude and find that Respondent 's statements concerning
strikes and the possible loss of business plainly avoided suggesting the inevitableness
of either . Thus, though expressing belief that both would occur, Respondent sets
forth the reasons for that belief , but explained further that it did not "honestly know
for sure" whether a strike would result though it "could easily guess" that it would.
Further consideration is necessary concerning the language in the June 30 letter that
"the result would not be to benefit you but to harm you and to harm you seriously."
In Cleveland Woolens, a Division of Burlington Industries , Inc., 140 NLRB 87, sub-
stantially equivalent language was found to be coercive though the Board commented
in affirming the Trial Examiner that even assuming arguendo the employer 's speech
did not constitute a threat to close the plant if the Union won the election, it was
nevertheless violative of Section 8(a)(1) because of the context of other unlawful
conduct which the employer otherwise engaged in.
In Surpienant Mfg Co., 144 NLRB 507, the Board again found substantially
equivalent language to be violative of the Act , but its holding was overturned by the
court of appeals ( 58 LRRM 2484 , 2486 ( C.A. 6), decided February 27, 1965). In
Th,eads, Incorporated , 132 NLRB 451, 461, the employer 's speech again contained
the "serious harm" language, but neither Trial Examiner or Board based a finding
of coerciveness upon it. Though the General Counsel relied upon that language at
the enforcement stage as sustaining the Board 's finding that the employer 's speech was
coercive , the court of appeals rejected the contention ( 308 F. 2d 1, 9 (C.A. 4) ).
In Lester Brothers , Incorporated , 142 NLRB 992, the Board had before it (Appen-
dix B , p. 1016 ) the identical language as that contained in the first paragraph
which is quoted above from Respondent 's letter of June 30 above , In disagreement
with the Trial Examiner , the Board found that the employer 's speech which embodied
that language contained neither illegal promises of benefit nor threats of reprisal and
was protected under Section 8(c).
It would be difficult to find Respondent here to be guilty of an unfair labor practice
for using language which tracks exactly that upon which the Board placed its stamp
of approval in Lester. Furthermore , as previously found, Respondent's letters other-
wise avoided giving any firm impression that the predicted results would flow inevi-
tably ftom unionization . I therefore conclude and find that the excerpts from
Respondent's letters upon which the General Counsel relies , whether considered alone
or in entire context , did not constitute threats or reprisal and were protected under
Section 8(c).
2 The Kifer-Smith conversations
Cecil Kifer testified to two conversations with Supervisor Roderick Smith before
the election and to one after the election. Kifer's recollection of the content of the con-
versations was quite hazy and repeated refreshment by leading questions was some-
times necessary In one instance when refreshment was attempted ( concerning state-
ments he had testified to a few minutes earlier ), Kifer testified that it was "impossible
to remember such insignificant items," and that " it was just like a passing hello."
Smith admitted discussing the Union with Kifer before the election but testified
that Kifer solicited his opinion and advice . ( Kifer admitted that he asked Smith
about the Union .) As Smith denied making the coercive statements which Kifer
attributed to him, I am unable to credit Kifer's testimony in view of his admitted
haziness and his appraisal of Smith's alleged statements as insignificant.
As for the alleged conversation following the election concerning a newspaper
clipping which Smith allegedly showed Kifer ( denied in toto by Smith), it is unnec-
essary to resolve the credibility conflicts , for Kifer 's testimony did not establish a
violation. Thus admitting that he could not "place" the content of the item nor "pic-
ture" what it said, Kifer testified that it concerned a milk company and had something
to do with a union and a layoff, and that Smith 's comment was substantially to the
effect, "Aren ' t you glad it didn't happen here?"
Testimony by George B Jones, a discriminatee, concerning two other conversa-
tions, related directly to the alleged discriminatory motivation for the discharges and
is set forth in the following section.
C. Discrimination
1. Union activity ; the conversations between Jones and the supervisors
There was no evidence that a union campaign in the usual sense was conducted at
the plant . Jones and Flick testified that around February 19 they received cards
BERNARDIN, INC. 945
from the Union through the mail and that they signed and returned them. Flick tes-
tified to talking with two employees about union benefits before worktime at the plant
around February 24 and Jones testified that he had several conversations on the tele-
phone with the union organizer, who finally came to his home on March 21 to discuss
the matter of getting more employees to sign cards. There was no evidence that
Respondent had knowledge of the foregoing union activities of Flick and Jones or of
the union activities of any other employees. However, both Flick and Jones served
as the Union's observers in the election,2 and under the General Counsel's theory it
was the fact which brought them into the full view of the top management and which
accounted for their terminations. Jones' testimony directly supported that contention.
Thus Jones testified to a conversation with Edwin Holder 3 in late July or early
August which was started by Jones' inquiry as to what the Company's stand was going
to be concerning the Union. Holder replied that he had attended a meeting of top
management on the Monday following the election and that two of the representatives
present said, "We have got to get rid of these so-called radicals." Holder stated that
in reply he denied that he had any radicals in his department and that he thought no
less of Jones for being the union representative (at the election) than he had before
and held Jones in high regard at all times. Jones then attempted to identify the two
management representatives by calling off to Holder the names of various company
officials, starting with Al Bernardin, president, Guerin Bernardin, vice president, and
Ed Bussey, comptroller. To each of those names Holder replied, "Not that one."
Jones then named Robert Vaughan, works manager, and Weigand Kneer, personnel
manager, and Holder said in each case, "You said it. I didn't." Jones commented that
he (Jones) need not go any further.
Holder admitted having the discussion with Jones and testified that it started with
Jones asking him how he thought things might go in relation to the disposition of
employees after the election, that is what might happen to them as to layoffs or firings,
and that he informed Jones he did not know. Though Holder denied specifically that
he attended any such management meeting as Jones referred to, that he told Jones he
had done so, and that the matter of getting rid of "radicals" was brought up in such a
meeting, he became uncertain when questioned about Jones' alleged calling off of the
names of management officials and about his response thereto, testifying that he did
not recall and did not think so.
Holder's testimony on further examination developed a number of inconsistencies.
At one point, contrary to his former testimony, Holder testified that he may have
started the conversation by telling Jones there were no hard feelings between them,
that Jones agreed, and "that's all there was to it." Contrary to that and to his earlier
testimony that he answered Jones' original inquiry by stating he did not know, Holder
testified that he told Jones that everything was going to be all right and that Jones
replied he was glad to hear it. At another point Holder testified he thought Jones
may have felt that hard feelings existed because of his becoming an observer. Though
at first adding that he did not feel Jones was disappointed because the Union lost
the election , he gave the following testimony on leading questions on redirect
examination:
Q. (By Mr. Yocum.) Was it at this conversation that you learned that George
wasn't disappointed as to the results of the election?
A. Yes.
Q. Prior to that time, you had thought he was disappointed about it?
A. I didn't know. There was some little something there that wasn't accord-
ing to Hoyle and that's why I said what I did.
A further inconsistency developed when Holder was questioned about whether the
Union was mentioned. He testified that he himself said nothing about the Union and
9 Though Respondent 's counsel refused to concede at the hearing that Respondent had
knowledge that Jones and Flick served as the Union ' s observers , they had signed the
official tally of ballots as observers for the Union along with Respondent's observers, one
of whom was Ernest E. Weber, who was stipulated by Respondent to be a supervisor. Fur-
thermore Jones testified that both union and company observers received their Instruc-
tions from the Board representative at the same time in Respondent 's conference room.
3 Holder had formerly been Jones ' supervisor as foreman over the tool-and-die depart-
ment but was assigned to the engineering department about 2 weeks after the election on
July 2. Holder 's supervisory status was stipulated at the hearing.
796-027-66-vol. 153-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Jones' only reference to it was a statement to the effect that he was satisfied with
the wage adjustments and revaluation which had been made by the Company and
that he was "through with it." The questioning continued:
Q. He was through with what?
A. His participating in the union, I presume.
Q. Did he say union activities?
A. I think so. I don't remember the exact words.
Though Holder testified that he reported the conversation to Dedman and possibly
to Vaughan, Respondent questioned neither Vaughan nor Dedman concerning it and
it called no other witness whose names were mentioned by Jones except for Weigand
Kneer. Kneer testified that he attended such management meetings as had to do with
what he did at the plant, that there were no such meetings after the election, and that
he attended none around July 6. He denied further that around that date he had
a discussion with "a rank and file hourly rated employee" concerning a labor union
but that he could not say whether he did nor did not have a discussion with Holder
concerning the Machinists Union. He denied, however, discussing with Holder any
question concerning what employees were in favor of a labor union or stating to
Holder that the radicals among the employees should be dismissed or discussing with
Holder the officials of management who were in favor of dismissing radicals.
Jones testified that on the Monday following Flick's layoff on September 18, he
spoke to Jack Brinkman, foreman of the machine repair department, about it, com-
menting that it was "a lousy thing." Brinkman replied, "[T]hey weren't supposed
to do it. It won't settle their problems. Their problems still exist. These men are
only the representatives of the people they voted for and these people are still dis-
satisfied." Brinkman added that he could talk to Guerin Bernardin but for some rea-
son could not "get through" to Kneer, who seemed to become angry at Brinkman's
position that action should not be taken "against these people," by which Jones under-
stood Brinkman to mean the people who were under discussion in the meeting; i.e.,
Flick and himself, who as observers for the Union were the only ones in full view of
top management. Admitting that there was no specific mention of the Union, Jones
explained that he thought that "was understood by everyone."
Brinkman testified that he did not discuss labor unions as such with Jones though
they discussed what the Company might do to make conditions better for the employ-
ees. Though Brinkman denied he had any occasion to discuss Flick's discharge with
Jones, his testimony became uncertain when questioned directly about specific state-
ments which Jones testified to. Thus when asked whether Jones said that Flick's dis-
charge was a lousy thing, Brinkman testified that he did not "recall this," and further
that he did "not remember" whether he told Jones the Company was not supposed
to discharge Flick.
In resolving the credibility conflicts between Jones and Holder it is to be noted
initially that Holder held Jones in high esteem (as apparently did Jones' other super-
visors) and that his testimony was given with a seeming air of reluctance and dis-
taste. Furthermore, his direct denials related mainly to the points surrounding the
"management meeting," what he learned there, and what he told Jones about it. But
when questioned specifically about Jones' calling off of names and his own identi-
fication of the two management officials who were arguing for liquidation of the
"radicals," Holder professed a failure of recollection. Coupled with the other incon-
sistencies in his testimony as pointed out above, I do not find the latter testimony a
persuasive denial of Jones' positive testimony, and I credit the latter.
It is also to be noted that Respondent's attempts to corroborate Holder were on a
very limited plane. Thus, though under Jones' testimony the management meeting
was one which was obviously attended by a number of management officials, Respond-
ent called only Kneer, who testified he attended those which concerned his own job.
Furthermore, though both Kneer and Vaughan were identified as those who were urg-
ing the elimination of "radicals," Respondent did not call Vaughan as its witness,
and there is no denial of record that Vaughan's position was any different than as
reported to Jones.4
& It is also to be observed that insofar as discriminatory motivation is concerned, it is
immaterial whether an actual management meeting was held if Holder was correctly
reporting the attitude of management officials toward the Union's observers. Further-
more, insofar as the alleged Section 8(a) (1) violation is concerned, it is immaterial whether
Holder was correctly reporting that attitude, for what is decisive on the latter issue is
what he told Jones, not whether it was true.
BERNARDIN, INC. 947
Furthermore, the later conversation between Jones and Brinkman threw further
light on the truth concerning management's attitude as reported by Holder. Though
Brinkman denied flatly that he had occasion to discuss Flick's discharge with Jones,
he professed failure of recollection when asked specifically whether Jones stated that
Flick's discharge was a lousy thing and whether he told Jones the Company was not
supposed to discharge Flick. Brinkman also made no denial of Jones' testimony
concerning his own references to Guerin Bernardin and to Kneer, nor that his own
position before Kneer was that no action should be taken against the union observers.
1 therefore find Brinkman's testimony to be wholly inadequate as a denial or refuta-
tion of Jones' testimony, which I credit, and under which Brinkman's statements con-
cerning management 's attitude toward the Union's observers plainly accorded with
Holder's own report on that attitude.
We now turn to the actual terminations.
2. Flick's discharge
Edwin Flick was employed on January 19, 1951, and, after 2 weeks in department 5,
was transferred to the maintenance department as a welder. His rating on that job
(under Respondent's system of job evaluation) fluctuated between a low of 62 and a
high of 815 and his wage rate advanced through a succession of raises from $1.31
to $2.12 an hour. On October 1, 1961, he was assigned to the job of fork-truck
mechanic at a rate of $2.20, was raised to $2.27 on January 2, 1963, and to $2.36 and
$2.41 in March 1964. When first assigned to the fork truck job he was rated by
Foreman Clarence Weese at 54, and on January 2, 1963, at 60, and Weese made no
changes thereafter. Flick testified that in early 1964, two foreman in the press
department complimented him on jobs he did for them and that Weese also praised
his work on the fork-truck job a year or so prior to his termination No denials
were made of that testimony. Indeed, Respondent stipulated at the hearing that Flick
had the highest labor grade of any employee in the maintenance department in 1964.
Flick was discharged 6 by Weese on September 18, at the end of a workday and
the end of a workweek. Flick testified that he protested the suddenness of the action
and asked whether he was doing his job properly. Weese replied affirmatively but
stated that the Company was reducing its labor force and that Flick was the most logi-
cal one that Weese could come up with. Flick commented that he hoped the man
who got his job did as good a job as he did, and Weese replied that it would probably
be the Belmont Equipment Company, a concern which serviced parts for the fork
trucks
Weese testified that he simply told Flick that he did not work for Bernardin, Inc ,
any more and that he did not recall anything further. He made no denial of Flick's
testimony as summarized above.
On Respondent's personnel records Weese entered and signed a notation that Flick
was discharged for "Loafing on Job & Hiding out," and Respondent furnished to the
State unemployment commission a Form 501 which recited the same reason. Weese
testified, however, that the reason for his decision to discharge Flick was "absolutely"
faulty woikinanship and loafing on the job, and he gave the following account of why
Flick was discharged at the time:
Some 2 or 3 days before the discharge Plant Engineer Dedman directed him to
make a reduction in force and he suggested to Dedman that he would choose Flick.7
Weese testified that his decision to discharge Flick was made at that time, that he
recalled nothing further that he said to Dedman either then or at any other time after
Dedman directed him to reduce the force.
Dedman's testimony was in striking conflict with Weese's account of the foregoing
events Thus, his testimony contained no mention of a conversation with Weese some
2 or 3 days before Flick's discharge and no mention of his direction of a reduction in
force, but he testified instead to a conversation with Weese on the day of the discharge
which Weese nowhere referred to and which was in fact refuted by Weese's testimony.
'Respondent's rating takes into account such factors as education, trade knowledge
necessary to do the job, experience, initiative, ingenuity, and responsibility for equipment
or process, for material or product, for the safety of others, and for the work of others.
A rating of 60 denoted average or a little above.
6 Though Flick testified that Weese informed him he was being laid off, his testimony
on rebuttal accorded with Weese's that the latter stated that Flick no longer worked for
the Company
7 In line with earlier discussions with Dedman of Flick's faults and an earlier recom-
mendation in August which Dedman did not approve at the time
'948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'T'hus directly contrary to Weese's testimony that his final recommendation to Ded-
man was in the earlier conversation concerning a reduction in force, Dedman testi-
fied that on the day of the discharge, Weese recommended that Flick be discharged
because of an incident which occurred that day concerning Flick's conduct in weld-
ing a piece of equipment in the aisle of the plant without a protective shield. Dedman
testified that he concurred in Weese's recommendation at that time because of numer-
ous complaints he had on Flick and that he chose that time to discharge Flick
"because of the nature of the work he was doing and the danger to people's eyes. In
other words it could put people's eyes out "
Respondent's remaining evidence was directed to establishing various derelictions
and shortcomings on Flick's part which it contended occurred with increasing fre-
quency beginning in the spring of 1964, and which included the final one which Ded-
man referred to.
Weese testified that several times in 5 years he found Flick reading newspapers
and off his job, but admitted that he never mentioned the matter to Flick. He testi-
fied further that some 2 or 3 weeks before the discharge, he caught Flick asleep in the
welding booth and warned him that unless he stopped he would be given a long vaca-
tion.8 Weese testified further that it had been necessary during the 2 years that Flick
was on the mechanic's job for him to follow around behind Flick trying to find him.
Weese also recited complaints that he received from other foremen throughout the 2
years that Flick held the mechanic's job. Those complaints concerned both Flick's
alleged lack of cooperation as well as the manner in which Flick had performed his
job The final instance of that type was a complaint from Foreman Jack Brinkman
concerning a faulty welding job which Flick had done in August. Brinkman corrobo-
rated that testimony, testifying it was obvious that the piece (a clutch collar) had been
deliberately destroyed, and Weese testified that Flick had burned a big hole in the
part because of "over-powering" his welder at the start of the job. When Weese
questioned Flick about it, Flick contended a new part should have been used to begin
with.
Weese testified that the latter incident occurred about the same time as his warn-
ing to Flick about sleeping on the job, and that though he had previously discussed
with Dedman, Flick's faults, such as his hiding out and his work, he recommended
Flick's discharge on the occasion when Flick burned out the clutch collar on Brink-
man's job. Dedman's testimony was to similar effect, and he testified that he sug-
gested to Weese that Flick should have another chance in view of his many years of
seniority.
Under Weese's testimony nothing further occurred prior to the time he decided
to discharge Flick pursuant to Dedman's direction to reduce the force. He testified
however that on the afternoon of the discharge, he had given Flick orders to repair
a plating rack on which welding was required, directing Flick to do it in the plating
department. Instead, Flick did the welding in the main aisle of the building where
the breakdown occurred. Weese did not testify, however, that he criticized Flick con-
cerning the incident or that he had any discussion with him about it. Flick denied
that anything was said to him about the matter or about the fact that he did not use
a protective device, and explained that he did not use one because it was a small job
and that he had welded in the aisle before.
Since Weese had already decided upon Flick's discharge and since , under his tes-
timony previously summarized , the incident could have played no part either in influ-
encing that decision or in the actual making of the discharge, the incident is without
significance except to demonstrate the conflicts and inconsistencies in Respondent's
evidence and the efforts which Respondent made after the discharge to build a record
of "cause" for discharge.
3. Jones' layoff
George Jones was hired in November 1956 on the job of heat treatment of metals
and for the last year and a half of his employment he also took care of the tool crib
on the day shift jointly with the tool inspector. Jones started at $1 89 an hour and
progressed through raises to a final $2.75 per hour in March 1964, when Holder
informed him he was considered one of the Respondent's best employees Indeed,
the evidence is undisputed that Jones was considered to be an excellent employee and
that he was highly regarded by his supervisors (if not by top management officials).
Jones testified that on Friday afternoon, September 25, he was asked by his fore-
man, Ernest Weber, to come into Kneer's office. Jones asked whether Weber was
8 Flick admitted that he sometimes read a newspaper at times when his work was caught
up and he admitted the warning about sleeping, though he denied he was threatened with
discharge.
BERNARDIN, INC. 949
going to fire him and Weber replied he did not want to. In Kneer's office, Weber told
Jones he had been instructed to inform him they were laying him off and were going
"to send his work out." Jones replied that Weber knew better and Weber responded
that he had been "sick" all afternoon because he did not know how to tell Jones.
Jones told Weber not to feel badly because since Flick had "gotten it" the previous
Friday, Jones expected also to be discharged.
Weber testified that he told Jones he was laying him off because "home canning
sales were not up to expectations and the Company was going to send its heat treat
work out," and that he could not recall that anything further was said. Though insist-
ing he told Jones that canning sales were not up to expectations, Weber admitted on
cross-examination that the canning season ended in August, that he therefore did not
know how canning sales could have had any connection with the layoff and did not
know whether his department had ever been affected by the canning season before,
and that he had never laid off anyone from his department since he had been with the
Company. It was Dedman, he testified, who made the decision to lay off Jones; and
when questioned whether he was telling Jones the truth as to the reason for the layoff,
Weber answered simply, "That's what was told to me [by Mr. Dedman]."
The personnel release form which Weber signed and which was initialed by Ded-
man recited that Jones was laid off for the following reason: "Discontinued Heat
Treating-Home canning sales not up to expectations."
Dedman testified on direct examination that it was his decision to lay off Jones and
that the reason was a purely economic one: that in looking for ways to reduce costs
he found that it would be cheaper to have the heat treat work done by Benerson, a
local outside concern, which had done some of his cyanide work in the past because
Respondent did not have a cyanide pot At no time on direct or cross-examination did
Dedman refer to any conversation with Weber concerning Jones' layoff, but when
confronted on cross with Weber's testimony that he told Weber the reason was that
canning sales were not up to expectations, Dedman testified that was one reason and
that the other was the fact that the Company could get the heat treating done cheaper
on the outside. He did not explain why the entry on Jones' personnel form omitted
the latter reason. Dedman would not concede that the canning season ended in
August, as Weber testified. Indeed, he contended that the season tapers out through
September and even possibly into November, though he was unable to cite an example
of any product which is home canned at so late a season.
Kneer's testimony corroborated Weber's that the canning season ended in August.
Indeed, he testified that a general layoff was made at that time because "as soon as the
canning season is over," Respondent has to disband the compo department and the
two-piece department which "are very active in the summer months due to the need of
canning fruits, vegetables, and such."
On the subject of the negotiations with Benerson, Dedman's testimony was also
sharply contradicted by Paul Vierling (Benerson's president), who was called to cor-
roborate him. Thus Dedman testified that negotiations with Benerson had gone on
for some year and a half, during which time he and Vierlmg had talked back and
forth; that he first gave Benerson some heat treat work in June 1964 but in September
he told Benerson that he was going to give them all of it. In explaining how the
matter happened to come to a head just at that time, Dedman testified:
Benerson Corporation had been working for a number of years building up
their heat treat department for the sole purpose of doing outside work....
And again-
The Benerson Corporation has gotten to the point where they could do the
heat treat for several companies here in Evansville. Up until that point we had
no good source of heat treat.
Vierling's testimony was substantially a complete refutation of the crucial portions
of Dedman's testimony. Thus Vierling testified that his company had been in business
since 1949; that it acquired additional equipment in 1959 or 1960 (and a few pieces
since), but that so far as the work is concerned which it is doing for Respondent, that
particular heat treating service has been available since 1949; that Dedman was aware
of those services for he discussed them with Dedman several times over a period of
10 years; that Dedman stated that "if need developed" he would consider using those
services; that his arrangement with Respondent is the same as with any other cus-
tomer, i e., "They bring in what they want done"; and that he began supplying serv-
ices to Respondent "in volume" within the past 6 or 8 months. Vierling also testified
that his last prior discussion with Dedman was in May, June, or July, 1964; that he
could recall no further discussion with Dedman concerning any proposed increase in
the volume of his work and could not recall that prior to the increase Dedman
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed him that Respondent proposed to send him more business than it had in
the past; and that the business picked up simply by Respondent sending in what it
wanted and by Benerson getting the jobs out.
Respondent's records reflected the following payments to Benerson in 1964: May,
$5, June, $5; September, $7; October, $68.80, November, $93 50; and December,
$132.40 Dedman testified that he had estimated Benerson's services at approxi-
mately $75 a month.
Under the new arrangement Respondent sends the materials by company truck
to Benerson's plant, usually by the foreman, and it generally picks it up when the
work is completed. Dedman agreed that with Jones doing the work in the plant there
was no problem about transferring the materials back and forth and that in that
sense the in-plant arrangement may have been a little more efficient, but he testified
that with such a guarantee that work sent out in the morning would be back at noon,
Respondent has no plans to resume its own heat treating as long as it has the service
which Benerson is supplying. Also bearing on the point of efficiency was Jones'
credited testimony that in a conversation with Weber at Benerson's plant on Jan-
uary 4, Weber stated it would be a lot simpler for him if Jones were back.
On the point of comparative costs these facts are also to be noted: (1) Though
Jones' pay approximated $110 week, he spent a large portion of his time (15 to 25
hours) on the tool-crib job; (2) Infer, the tool-crib attendant on the night shift,
devoted a portion of his own time to minor duties connected with heat treat; and (3)
Respondent's heat treating equipment, representing an investment of approximately
$4,000 (but fully depieciated for tax purposes), stands idle.
Further bearing on the issue of discriminatory motivation was the question whether
under Respondent's seniority practices it was obliged to offer Jones other jobs, on
which question the following evidence is relevant:
Jones' work was not confined to doing heat treat work. For the last year and a
half he was assigned by Holder to serve jointly with Frank Campbell as a tool-crib
attendant on the day shift in place of John Oakes, who became storekeeper in the
store crib. Jones spent from 15 to 25 hours a week on that job during intervals when
his furnaces were loaded and while he was waiting for metals to come out. The crib
attendant on the night shift was Cecil Kifer, whose duties were identical with those
which Jones and Campbell performed in the crib on the day shift. Oakes' job as
storekeeper was also wholly comparable with that of the tool-crib attendant since both
involved the issuance of stock or materials and the same abilities were involved.
Jones testified that he was qualified to perform both the night-shift job as tool-crib
attendant and the storekeeper's job on the day shift,9 that his seniority exceeded
Kifer's by 4 years and Oakes' by 5 or 6 months, but that he was offered neither job
at the time he was laid off. Respondent offered no refutation of that testimony, con-
tenting itself with Jones' admissions that he made no request for another job when
he was laid off.
The General Counsel claims that Respondent followed a plantwide seniority prac-
tice, relying largely upon Vaughan's following testimony at the representation hearing:
Q. (By Mr. DONOVAN) Mr. Vaughan, when an employee-if there is a layoff,
what kind of seniority do you follow: I mean, here's a guy who is a tool and die
maker, machinist, maintenance man, tool inspector, and say he's the youngest
one. What happens to Stanley Fulks if you don't need a tool and die maker B
and he is the youngest one? What happens to him? Where do you put him?
A. He would be transferred to some other job within his capacity, within his
demonstrated or expected capacity, depending upon the depth to which a layoff
may be necessary because of economic conditions, business conditions. Nor-
mally these people would be transferred to some other work of some skill in
set-up or some other productive department.
Q. Some job he can perform?
A. Yes
Q. And if it was a set-up man, which is outside the unit sought by this union,
and he was capable of doing the job of a machine repairman or crib man, lathe
operator, would he be switched into that classification?
A. I'm sure he would if circumstances dictated.
9 Vaughan 's testimony at the representation hearing confirmed Jones ' testimony that
the jobs of tool-crib attendant and storekeeper were approximately identical ; I e , "they
issue stores and supplies to whoever comes to the issuing window with a request " Indeed,
Vaughan testified more explicitly that the employees on the two jobs did much the same
work and that the two job titles are almost interchangeable
BERNARDIN, INC. 951
Q Is it fair to say that you basically try plant-wide seniority, provided they
can do the job?
A. Right.
Q. (By Mr. DoNovAN.) Incidentally, a man like that,1° if he was going to be
laid off would he be put on this plastic press operator job if seniority allowed him
to move there?
A. He could be. He's had experience and he could transfer back. Or he
could be put in the tool crib. [Emphasis supplied.]
At the present hearing Vaughan acknowledged that testimony and conceded that
it was "essentially true," but denied that in layoff situations the Company followed
plantwide seniority provided the employees could do their job, testifying that, "It
depends on the nature of the work. It isn't always possible." He added that in a
layoff situation he would "not necessarily" retain a senior employee who could per-
form the job of a less senior employee and let the less senior go, and he testified that
though a skilled employee would not be transferred to doing janitor work, for exam-
ple, Respondent has transferred skilled employees to production-type work and has
made layoffs or transfers of the nonskilled employees. Vaughan also testified that
transfers of skilled employees to less skilled jobs would not necessarily involve senior-
ity and that such transfers are made on the basis of the retention of skill in the plant.
Kneer testified similarly that transfers are usually made at the request of the
employees themselves and that the factors considered are ability, willingness to work,
etc., and that seniority itself does not bar a request. As Kneer explained it, Respond-
ent's seniority policy was that if there are two people in the same department of the
same ability, the one with the longest seniority will have preference. Plantwise
seniority applies so far as vacations and the 5-year-plus club are concerned but does
not apply to layoffs. Supervisors who have too many employees get rid of the excess
employees in case of a layoff according to the amount of work they have.
Dedman testified that he laid off employees for economic reasons in his department
before Jones but he was able to cite only a single example some 3 years before when
a saw operation was discontinued He testified further that after Jones was laid off
he decided also in the interest of economy to cut out Oakes' job as storekeeper, that
Oakes was laid off also without the offer of another job, and that no one was hired
to replace Oakes, whose work was divided up among three or four other employees.
Dedman admitted that he hired three new employees in October, but testified they
were hired as toolroom helpers and trainees on tool-and-die work, which was work
Jones could not do, and that he hired in December another "A-Number One" oper-
ator on a lathe job, which was also work which Jones could not do.
The evidence also showed that Cecil Kifer quit in November. Jones testified that
Weber stated during their January conversation at Benerson 's that Kifer was replaced
by another man. Vaughan, when questioned about that replacement, testified that
he did not know of it. Weber, who admitted having a conversation with Jones at
Benerson 's, testified that it related only to Christmas and to the date of the hearing
in this matter. He made no denial of specific statements which Jones attributed to
him. As Respondent made no attempt otherwise to negate the fact that it hired a
replacement for Kifer, I credit Jones' testimony.
4. Concluding findings
Considering the case first as postured in the light of the General Counsel's evidence,
Jones' credited testimony concerning his conversations with Holder and Brinkman
plainly made out a prima facie case that the terminations of himself and Flick were
discriminatorily motivated, particularly in view of their record of long and satisfac-
tory service (excellent in Jones' case), the circumstances of their terminations as
Jones and Flick testified to them, and the failure to offer Jones other jobs in the
department 11 for which he was so obviously qualified.
10 Identified in the record as one DeWitt, who filled in for the tool-crib attendant or the
storekeeper from time to time.
u Despite Vaughan's testimony at the representation hearing that he tried "basically"
to follow a plantwide seniority policy, I find on the entire evidence that Respondent did
not apply its policy strictly on a plantwide basis By the same token, however, the
evidence not only established that departmental seniority was followed, but Vaughan's
testimony concerning the assignment on layoff of a setup man outsade the unat to the job
of crib man emphasized more strongly that Respondent was required at a minimum to offer
Jones the jobs of tool -crib attendant and storekeeper.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We turn then to Respondent's evidence to determine whether it is sufficient to over-
come the General Counsel's showing of discriminatory motivation and to establish
Respondent's defenses that the terminations were made for good cause, and we start
with the basic premise that where an alleged Section 8(a)(3) violation is involved
it is the "real motive" of the employer which is decisive. N.L R.B. v. Brown Food
Stoie, 375 U.S. 962, and cases there cited. In other words, "the fact that a lawful
cause for discharge is available is no defense where the employee is actually dis-
charged because of his Union activities." N.L R.B. v. Ace Comb Co. and Ace Bowl-
ing Co., Division of Anierace Corp., 342 F. 2d 841 (C.A. 8), decided March 30, 1965.
But Respondent's evidence, fairly viewed, did no more than strengthen and confirm
the General Counsel's showing that Respondent acted from discriminatory motives
and that the various reasons which it assigned were mere pretexts behind which to
screen its true underlying reason of eliminating the only union adherents who had
openly attracted its attention.
It is necessary here to review briefly only the more conspicuous conflicts, incon-
sistencies, and contradictions which appeared at every turn of Respondent's case and
the welter of shifting causes which its witnesses assigned to justify the action which
they took or were directed to take.12
In Flick's case:
Weese did not deny Flick's testimony that he assigned "reduction in force," a
ground which in fact accorded with Weese's testimony concerning the direction he
received from Dedman.
Weese entered on the personnel record the ground, "Loafing on Job & Hiding out."
Weese testified the ground was "absolutely faulty workmanship" and loafing on
the job.
Weese testified that he made the decision 2 or 3 days before the discharge, pursuant
to Dedman's direction to reduce the force and to his own earlier recommendation,
and that he made no subsequent recommendation and had no further conversation
with Dedman.
Dedman testified to no such conversation as the foregoing and he made no refer-
ence to a reduction in force.
Dedman testified that Weese's recommendation was made on the day of the dis-
charge and was brought about by an incident which occurred that day when Flick
was welding in the aisle without a shield. Dedman testified that he chose that time
to discharge Flick because Flick's work was endangering the eyes of other people.
Weese, though testifying to the latter incident, did not claim to have discussed it
with Flick. Furthermore he testified he recalled no conversation with Dedman about
Flick after the one some 2 or 3 days before the discharge.
Aside from the foregoing, Weese dredged up out of the past in support of his origi-
nal recommendation, a miscellany of derelictions which were obviously of no conse-
quence in view of his own rating of Flick as a satisfactory employee in 1963 (and
unchanged since), and which were even more at odds with the stipulation at the
hearing that Flick had the highest labor grade in his department in 1964.
In Jones' case:
The personnel forms signed by Weber and initialed by Dedman specified the ground
that heat treating was being discontinued because home canning sales were not up to
expectations.
Weber testified that though that was also the ground he orally assigned to Jones at
Dedman's direction, the canning season ended in August, and that he therefore knew
of no connection between canning sales and the layoff and knew of no prior instances
where his department had been affected by the canning season. Weber pointedly
refused to certify to the truth of the reason as given to him by Dedman.
Dedman on direct-examination made no reference to any conversation with Weber
concerning the reason for Jones' layoff and testified that he decided upon the action
solely in the interest of reducing costs through having the heat treat work done by an
outside concern.
Reminded of Weber's testimony on cross-examination, Dedman testified that can-
ning sales were one of the reasons, but made no attempt to explain why Jones' per-
sonnel form omitted that reason.
12 "When an employer shifts position several times in explaining why an employee has
been fired, his own case is weakened, and the Board's conclusion that the true reason was
for union activity is correspondingly strengthened" N.L R B. v. Georgia Rug Mill, 308
F. 2d '89, 91 (CA 5), and see N.L.R.B. v. Schell Steel Products, Inc., 340 F. 2d 568, 573
(C.A 5).
BERNARDIN, INC. 953
On all critical points, Dedman's testimony concerning the negotiations with Bener-
son and the reasons for and the circumstances surrounding the change were wholly
contradicted and refuted by Vierling. Thus, contrary to Dedman's claims, Benerson
had been equipped for many years, to Dedman's knowledge, to furnish the services
which Dedman did not begin using in volume until October; and again contrary to
Dedman's claims, there were no discussions after May-June-July, but Dedman sim-
ply began sending in more work without notifying Benerson to expect an increase.
The demolishment of Dedman's testimony by a "corroborating" witness, disinterested
in the outcome, was emphasized, of course, by the fact that because of the business
arrangements between them, Vierling's interests would appear normally to lie with
Dedman.
Finally, the failure to offer Jones other jobs in the department was itself significant
in view of Jones' seniority, skills, capabilities, and his outstanding record. That Jones
did not affirmatively request another job does not advance Respondent's defenses
under Vaughan's examples of transfers which Respondent made to retain skilled
employees in other layoff situations. Though Respondent argues also that Jones
would not have taken a lower paid job, it could easily have tested him (and protected
itself) by offering him one. Indeed, it seems clear that the reason for not offering
Jones another job was not Respondent's claimed belief that he would not take it but
it feared that he might do so and that it would thereby be faced with retaining an
employee whom it had decided to eliminate.
The evidence concerning other personnel actions in the department is not sufficient
to overcome the heavily preponderant weight of the evidence summarized above
(much of which was supplied by Respondent's witnesses) that Jones' layoff was dis-
criminatorily motivated. Indeed, so far as the job of crib attendant is concerned,
there was no contention that it has been abolished and no denial that a replacement
was hired for Kifer.
Neither does the apparent monetary saving which has resulted from the sending
out of heat treat work establish that it was economic considerations which constituted
the real motive for Respondent's action. For Dedman's explanations of how and
when he entered upon the arrangement with Benerson's were completely exploded by
Vierling's testimony, just as his assignment of home canning sales was exposed by
Weber's testimony. When those circumstances are considered together with the state-
ments which Holder and Brinkman made concerning contemplated action to eliminate
the Union's observers as "the representatives of the people," the conclusion is ines-
capable that Respondent acted from discriminatory motivation; that Dedman's arith-
metic was performed after his experience showed that a saving was demonstrable,
and that his "explanation had been contrived after the controversy had arisen."
N.L R B. v. E. C. Brown Co, and Production Line Manufacturers, Inc., 184 F. 2d
829, 832 (C.A. 2). "Such explanations, instead of being an answer to the inferences
naturally following from the sequence of events, only serve to confirm them." Id.
Just as an economic justification which an employer advances need not prove to be
economically sound, so also the fact that the operational change may have turned
out to be economically advantageous does not establish that Respondent acted from
that motive. For economic considerations must be honestly invoked, and an employer
may not attempt to disguise an antiunion motive by speaking the language of economic
necessity. N.LR.B. v. Savoy Laundry, Inc, 327 F. 2d 370, 372 (C.A. 2). Here
Respondent's own evidence itself furnished part of "reasonable cause for believing
that the ground put forward by [it] was not the true one and the ground was because
of union activity." N.L R.B v. Texas Bolt Company, 313 F. 2d 761, 763 (C A. 5).
I therefore conclude and find on the entire evidence that the Respondent discharged
Flick and laid off Jones to discourage membership in the Union in violation of Sec-
tion 8(a) (3) and (1) of the Act. I conclude and find further that by the statements
which Holder and Brinkman made to Jones concerning management's intention to
take action against the Union's observers, Jones and Flick, Respondent interfered
with, restrained, and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action which is conventionally ordered in such cases, as provided in the Recom-
mended Order below, and which I find necessary to remedy and to remove the effects
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the unfair labor practices and to effectuate the policies of the Act. For reasons,
which are stated in Consolidated Industries, Inc., 108 NLRB, 60, 61, and cases there
cited, I shall recommend a broad cease-and-desist order
Though I shall recommend that Respondent make the usual offer of reinstatement
to Jones of his former or substantially equivalent position, that recommendation is
not to be construed as impairing Respondent's right thereafter to make such changes.
in the handling of its heat treat work as it may deem justified, provided however, that
its action is not discriminatory or otherwise violative of the Act. Since the former
change was discriminatorily motivated, Respondent is obliged "to disentangle the
consequences for which it (is) chargeable from those from which it is immune."
N L.X.B. v. Remington Rand, Inc., 94 F. 2d 862 (C.A. 2).
I shall not recommend that Respondent be required to offer reinstatement to Flick,,
for I find on the basis of the following evidence that Flick refused a valid offer of
reinstatement on January 11:
Flick testified that Attorney Donovan called him on January I1 and informed him
his job was open if he wanted to go back and that he informed Donovan he wanted'
to think it over after getting home. Donovan called him again that evening and
repeated the offer, and Flick said he needed more time because the company he was.
working for had been good to him and he wanted to give them at least a week's notice.
Donovan informed him the job might not be open after a few days or a week, but it
was open at the time. On rebuttal, Flick's testimony included further details concern-
ing his own preference for jobs should he accept reinstatement, but it also showed that
Donovan expressed Respondent's agreement with Flick's desires.
On January 13, Donovan wrote Flick repeating the substance of the telephone con-
versations and concluding with the request that Flick let Donovan know immediately
whether the statements in the letter were accurate. There was no evidence that Flick
complied and none that he later notified Donovan either that he was accepting or
rejecting the offer of reinstatement. 13
I shall therefore recommend that the backpay period in Flick's case end on Janu-
ary 11, 1965.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
2. By discharging Edwin Flick and by laying off George Jones because of their
activities in serving as the Union's observers, Respondent engaged in discrimination,
to discourage membership in the Union, thereby engaging in unfair labor practices
proscribed by Section 8(a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the National Labor Relations Act, as amended.
I hereby recommend that the Respondent , Bernardin , Inc., its officers , agents, suc-
cessors , and assigns, shall
1. Cease and desist from:
(a) Discouraging membership in District 153 of the International Association of
Machinists , AFL-CIO, or in any other labor organization of its employees , by dis-
charging , laying off, or in any other manner discriminating against employees in
regard to hire or tenure of employment or any term or condition of employment.
(b) Informing employees that management intends to take action to discharge or
get rid of them because as the representatives of the employees they served as the
union observers in the election.
(c) In any other manner interfering with , restraining, or coercing its employees
in the exercise of their rights to self-organization , to form, join , or assist said District
153 of the International Association of Machinists , AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own choosing,
or to engage in other conceited activities for the puipose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
13 Cf. Elliott-Williams Co., Inc, 149 NLRB 1242, footnote 4.
BERNARDIN, INC. 955
2. Take the following affirmative action:
(a) Offer to George Jones immediate and full reinstatement to his former or sub-
stantially equivalent position , without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of pay he may have suffered by payment
to him of a sum of money equal to that which he would normally have earned from
September 25, 1964, to the date of the offer of reinstatement , less his net earnings
during said period ( Crossett Lumber Company , 8 NLRB 440 ), said backpay to be
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company , 90 NLRB 289 , together with interest thereon at the rate of 6 percent
per annum Isis Plumbing & Heating Co ., 138 NLRB 716.
(b) Notify the said George Jones 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 Service Act of 1948, as
amended, after discharge from the Armed Forces.
(c) Make whole Edwin Flick in the manner provided in paragraph ( a), supra,
for any loss of pay he may have suffered by payment to him of a sum of money equal
to that which he would normally have earned from September 18, 1964, to Janu-
ary 11 , 1965, inclusive.
(d) Preserve and, upon request , make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under this Recommended Order.
(e) Post in its offices and plant at Evansville , Indiana, copies of the attached
notice marked "Appendix ." 14 Copies of said notice , to be furnished by the Regional
Director for Region 25, 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 ensure that said notices are not altered , defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 25, in writing , within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.15
14 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice If the Board ' s Order Is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words , "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words " a Decision and Order".
"If this Recommended Order is adopted by the Board , this provision shall be modified
to read . "Notify the Regional Director for Region 25, in writing , within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that.
WE WILL NOT discourage membership in District 153 of the International
Association of Machinists , AFL-CIO, or in any other labor organization, by
laying off or discharging employees or in any other manner disciimmatmg in
regard to hire or tenure of employment or any term or condition of employment.
WE WILL NOT inform employees that management intends to take action to
discharge or get rid of them because as the representatives of the employees they
served as the Union 's observers in the election.
WE WILL NOT in any other manner interfere with, restrain , or coerce employees
in the exercise of their right to self-organization , to form, join , or assist District
153 of the International Association of Machinists , AFL-CIO, or any other
labor organization , to bargain collectively through representatives of their own
choosing, or 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 such
activities.
WE WILL offer to George Jones immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges , and make him whole for any loss of pay he may have suf-
fered as a result of our discrimination against him in the manner provided in the
Trial Examiner 's Decision.
WE WILL make whole Edwin Flick for any loss of pay he may have suffered
as a result of our discrimination against him in the manner provided in the Trial
Examiner 's Decision.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of the above-named or any other labor organization.
BERNARDIN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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 Universal Military Training and Service
Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. Melrose 3-8921.
United Packinghouse, Food and Allied Workers Union , AFL-CIO,
Local 46, and its agents, Clarke Knowles, Paul Sulentic, Ray
Edsill , T. F. Mclnteer and Clarence Paige [Rath Packing Com-
pany] and Samuel W. Berry. Case No. 18-CB-209. June 30,
1965
DECISION AND ORDER
On March 25, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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, brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications :
We agree with the Trial Examiner and find that since May 29, 1963,
and continuing to August 10, 1964, Respondents have restrained and
coerced employees of Rath Packing Company in the exercise of their
153 NLRB No. 77.