Blackstone Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 172 (N.L.R.B. 1976)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blackstone Corporation and James T. Kestler. Case
3-CA-6284
June 24, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On April 13, 1976, Administrative Law Judge Paul
E. Well issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that the Re-
spondent had discriminatorily discharged James T.
Kestler and James A. Hutchinson' for engaging in
union activities in violation of Section 8(a)(3) of the
Act. He also found that a supervisor for Respondent,
Emmott, had interrogated employee White concern-
ing the Union, in violation of Section 8(a)(1).
The Respondent has excepted to the findings of
the Administrative Law Judge and, more specifically,
to the credibility resolutions upon which he based his
conclusions. We find merit in these exceptions.
It is the Board's established policy not to overrule
the Administrative Law Judge's credibility resolu-
tions unless the clear preponderance of all the rele-
vant evidence convinces us that the resolutions are
incorrect.' Having carefully examined the record in
this case, we have concluded that the credibility reso-
lutions of the Administrative Law Judge are in many
instances erroneous and, on the whole, cannot be re-
lied on in determining whether the discharges of
Kestler and Hutchinson were unlawful.'
In finding that Kestler and Hutchinson were dis-
charged in violation of Section 8(a)(3), the Adminis-
trative Law Judge dismissed as pretextual Re-
spondent's asserted reason for the discharges;
i The Administrative Law Judge referred to this employee as James L
Hutchison However, the record reflects that the above spelling of his name
is correct
2 Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 183 F 2d
362 (CA 3, 1951)
3 We also note that the Administrative Law Judge stated that his findings
were based not only on the record, but in consideration of the briefs filed
with him by the General Counsel and the Respondent However, the Gener-
al Counsel did not file a brief in this case
namely, that Kestler and Hutchinson had abused the
Company's sick leave policy by taking a day of sick
leave when they were not sick but had in fact gone
hunting. This finding of the Administrative Law
Judge was to a great extent bottomed on what he
characterized as the credited testimony of Hutchin-
son. More specifically, he credited, inter aka,
Hutchinson's testimony as to his union activities, his
conversation with Quality Control Manager Walpole
(which the Administrative Law Judge found showed
Walpole's awareness of Hutchinson's union activity),
and concerning Walpole's knowledge that other em-
ployees abused the sick leave policy. However,
Hutchinson did not testify as to any of this, and in
fact did not engage in any union activities whatsoev-
er. Rather, the testimony attributed to Hutchinson
was given by Kestler.
Although one might argue that in writing this De-
cision the Administrative Law Judge merely con-
fused Kestler and Hutchinson, this does not with-
stand scrutiny. In other sections of his Decision, the
Administrative Law Judge correctly associates Kest-
ler with conversations involving Tutmaher and
Moore.
Because of these not insignificant discrepancies in
his findings, we are compelled to evaluate the evi-
dence concerning the discharges without regard to
such credibility findings.
The record shows that union activity among
Respondent's clerical employees began in late Sep-
tember 1975 ° when Kestler arranged with the presi-
dent of the IAM 5 (which also represented some of
Respondent's production and maintenance workers)
for an organizational meeting of the clerical employ-
ees. Thereafter, Kestler engaged in various organiza-
tional activities among the employees and set up a
meeting to take place on October 29.
On October 20, both Kestler and Hutchinson
called in sick (whereby they would be paid for the
day although not working) and went deer hunting.
While hunting, they met with one of Respondent's
lower level supervisors, Nelson, and Hutchinson told
Nelson that they had called in sick. That same eve-
ning Kestler bowled in the company bowling league,
as did Walpole.
The following day Walpole asked Bill Johnson,
Kestler's immediate supervisor, to ascertain whether
Kestler had in fact been sick the day before. Johnson
reported back that it was common knowledge that
Kestler and Hutchinson had gone deer hunting. Wal-
pole then took up the matter with the assistant per-
sonnel director, Brookmeyer, and the two of them
All events occurred in 1975
5 International Association of Machinists and Aerospace Workers, AFL-
CIO
225 NLRB No. 25
BLACKSTONE CORPORATION 173
took the matter to C. A. N Johnson, Respondent's
executive vice president.' Johnson made the decision
to discharge Kestler and Hutchinson and the dis-
charges were carried out on the morning of October
22.
The Administrative Law Judge relied principally
on three factors in determining that Respondent's as-
serted reason for the discharges was a pretext used to
cover up the real reason for the discharges-to get
rid of the union leaders.
First, he relied on statements made by Walpole at
a meeting for employees held on November 6 to
show that the Respondent did not welcome organiza-
tion among its white collar workers.
The second factor he relied on to show that the
Respondent had knowledge of the union activities of
the dischargees was the statement by Production
Foreman Emmott to clerical employee White that he
had heard that Hutchinson and Kestler were trying
to start a union. This conversation supposedly oc-
curred on October 20, the same day Hutchinson and
Kestler had called in sick and gone hunting.
Third, and most important, he found that manage-
ment knew of and condoned abuses of the
Company's sick leave policy, citing specific instances
where supervisors had allowed such abuses in the
past, and the failure of Respondent to show that
other employees had been discharged for these abus-
es.
We do not agree with all of these findings of the
Administrative Law Judge, nor do we believe that
the General Counsel has shown by a preponderance
of the evidence that the discharges herein were dis-
criminatory.
First, although we agree that the statements made
by Walpole at the November 6 meeting do show that
management did not welcome the idea of its white
collar employees organizing,' we do not agree that
this amounted to a showing that Respondent wished
to get rid of union adherents, especially Hutchinson
and Kestler. It must be noted that this meeting took
place some 15 days after the discharges had taken
place and about 7 days after the first union meeting.
There is also nothing in the record to show that any
employees had signed authorization cards prior to
the date of the discharges, or prior to the October 29
union meeting.
We also believe that the evidence is insufficient to
show that Respondent had knowledge of union activ-
ities on the part of Kestler and Hutchinson. Al-
6 It is unrefuted in the record that Johnson was temporarily taking over
though it is clear that Kestler had been instrumental
in attempting to organize the employees , it is equally
evident that Hutchinson engaged in no union activi-
ties whatsoever , and had told Kestler that he did not
want to get involved . Further , although the Adminis-
trative Law Judge credited White's testimony that
Emmott , a foreman of union-represented production
employees , told him on October 20 that he had heard
that Kestler and Hutchinson were trying to start a
union , we note that it is unrefuted on the record that
Emmott did not speak of this to other members of
management , especially to Walpole or others in-
volved in the discharge action.
The Administrative Law Judge 's finding concern-
ing management 's condonation of abuse of sick leave
is also not supported by the record, in our opinion.
Although the record shows that some supervisors did
allow employees to use sick leave when they were not
sick, it does not show that any of the members of
management involved in the discharge decision were
aware of , or condoned , such abuses. The Administra-
tive Law Judge found significant the fact that Kestler
(whom he referred to as Hutchinson), had requested
a leave of absence for November 19 to 21 , 1973, to go
deer hunting. Although Walpole had denied approv-
al of this leave, Kestler allegedly called in sick at that
time and went deer hunting. Unlike the Administra-
tive Law Judge, we do not believe this shows that
Walpole knew of or condoned this abuse of sick
leave, in that his denial of approval of the leave of
absence occurred almost a month prior to Kestler's
calling in sick, and there is no showing that Walpole
had any reason to suspect that Kestler was other
than sick when he later requested the sick leave. Fur-
ther, although, as stated by the Administrative Law
Judge, there is no evidence that others have been dis-
charged for abuse of sick leave , there is likewise no
evidence that Walpole had ever caught anyone in-
volved in such abuse, or that such a matter had ever
been brought to the attention of the personnel direc-
tor, or to C. A . N. Johnson , who was performing the
duties of the personnel director . The fact that lower
level supervisors had the right to grant sick leave
does not detract from the right of Johnson to impose
the discipline of his choice for what he believed was a
very serious infringement of company policy.8
Based on the foregoing , we believe that the record
fails to show that Hutchinson and Kestler were dis-
charged because of union activity, and we will dis-
miss that allegation of the complaint.
We also do not believe that the conversation be-
tween Emmott and White amounted to interrogation
the duties of the director of personnel, Brady, who was dying of cancer 8 It is also noteworthy that Hutchinson testified that although his immedi-
r The record does show that Walpole probably did make some statement ate supervisor, Scalise, covered for employees on sick leave who were not
at this time about Respondent's ability to learn who signed authorization sick, this was meant to be a well-kept secret from Scalise's superior, Dilling-
cards However , there is no allegation concerning this talk ham
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of Section 8(a)(1), as found by the Adminis-
trative Law Judge. According to White's testimony,
which the Administrative Law Judge credited, a pro-
duction supervisor , Emmott, told timekeeper White
that he heard that Hutchinson and Kestler were
trying to start a union. White replied that he "knew
nothing about it but something was going around; I
wish he would tell me about it." Emmott then stated
it probably had White's name on it, because he
(White) was such a radical. The two parties laughed
over the comment , and went on talking about
Emmott 's hunting trip.
Under the circumstances, we do not consider the
foregoing to amount to interrogation , but rather a
casual conversation between friends carried on in a
jocular vein . We will therefore dismiss that allega-
tion.
Having found that there was no conduct violative
of Section 8(a)(3) or (1), we will dismiss the com-
plaint in its entirety.
ORDER
this case and in consideration of the briefs , I make the
following- I
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation which operates a
plant in the city of Jamestown , New York , where it manu-
factures , sells, and distributes automotive equipment, ap-
pliances , and related products . Respondent annually pur-
chases , and causes to be delivered to its Jamestown plant,
goods and materials valued in excess of $50 ,000, transport-
ed directly from States of the United States other than the
State of New York and annually ships its products valued
in excess of $50 ,000 from its Jamestown plant directly to
points located outside the State of New York.
II THE LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union , is, and has
been at all times material herein , a labor organization with-
in the meaning of Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
PAUL E WEIL, Administrative Law Judge- On October
22, 1975, James T. Kestler, an individual , filed with the
Regional Director for Region 3 of the National Labor Re-
lations Board, hereinafter called the Board, a charge alleg-
ing that Blackstone Corporation , hereinafter called Re-
spondent , violated Section 8(a)(1) and (3) of the Act by the
discharge of Kestler and James L. Hutchison because of
their activities on behalf of a union . On December 10,
1975, the Regional Director of Region 3 on behalf of the
General Counsel, issued a complaint and notice of hearing
alleging that Respondent violated Section 8 (a)(3) by the
discharge of Kestler and Hutchison , and by the same acts
and by an act of interrogation of an employee concerning
union activity and by granting employees a general wage
increase to dissuade them from union activity , Respondent
violated Section 8(a)(l) of the Act Respondent duly filed
an answer admitting jurisdictional facts, that the Union is a
labor organization and that Kestler and Hutchison were
discharged, but denying the commission of any unfair la-
bor practices. On the issues thus drawn , the matter came
on for hearing before me at Buffalo, New York, on Febru-
ary 23 and 24, 1976. All parties were present and repre-
sented by counsel and had an opportunity to call and ex-
amine witnesses and to adduce relevant and material
evidence . After the hearing , briefs were received from the
111. THE UNFAIR LABOR PRACTICES
A Background
Respondent 's Jamestown plant has about 1,400 employ-
ees. The production and maintenance employees are repre-
sented by various unions including the Union herein The
clerical employees are not now nor have they in the past
been represented by any union , although at various times it
appears that they have sought representation by the Union,
but on each occasion have changed their minds after the
union organization commenced
Each year when the represented employees in the plant
received raises pursuant to their union contracts, the un-
represented clerical employees received a raise, usually in
the months of June or July. In the year 1974 this raise was
not given until August, admittedly later than normal In
1975, the production employees received a wage increase
during the summer, but by mid-September the clerical em-
ployees had neither received a wage increase nor ascer-
tained that they were to receive one.
As a result of the unrest that ensued , the clerical or
white-collar employees commenced talking about the need
for union representation but no one took any positive steps
in that direction until James L. Hutchison, a quality con-
trol employee, decided that he would investigate the orga-
nizational possibilities further. In late September he met
with the vice president of the Union , an employee, and
made an appointment to meet with the president, which he
did The president of the Union told him that the white-
collar workers had attempted organization in the past but
that they always "chickened out" when it came to an elec-
tion. He indicated that the Union would not be prepared to
General Counsel and Respondent On the entire record in 1 Respondent ' s motion to correct transcript is granted in all particulars
BLACKSTONE CORPORATION 175
go ahead again unless Hutchison was able to show a broad
base of support among the affected employees . He agreed
to have a union meeting , suggesting that it be conducted on
a Wednesday , at which time cards would be handed out
authorizing the Union to represent the employees, and left
it to Hutchison to go forward if there appeared to be sup-
port . Hutchison was also warned at this time not to con-
duct any organizational activities on company time. The
union president told him that this could lead to discharge
and that it had in the past . Accordingly , during breaks and
lunch periods , before and after work , Hutchison inquired
among his fellow employees and found what he deemed to
be widespread support for union organization . He then set
up a meeting to take place on October 29, 1975, and com-
menced making the rounds of his fellow employees advis-
ing them of the forthcoming meeting.
Respondent was apparently almost immediately aware
of the resurgence of union talk among the white-collar
workers. On or about October 8, James T. Kestler, talked
about it with his immediate supervisor who admittedly told
the lab manager , Bloomquist , about the Union . Bloomquist
did not appear surprised at the information.2
On October 15, Dale Johnson , Hutchison 's immediate
supervisor , and Donald Walpole, his manager of quality
control, came to Hutchison at his job and asked him
whether he was happy with his job and told him that they
had heard that he was not happy. He protested that he was
not unhappy with his job , and they asked him if there was
anything they could do to improve it . He said that he could
use more money and Walpole said that he had been work-
ing on that but that so far he had not gotten anywhere.
Walpole on this occasion asked Hutchison whether there
was any job in quality control that Hutchison would prefer
and Hutchison answered , with some cheek , that he would
prefer Walpole 's job . Walpole also suggested that Hutchi-
son try again as he had once in the past to be transferred to
a toolmaker 's job that Hutchison thought he wanted to
learn . Hutchison pointed out that he had been informed, to
Walpole 's knowledge , that he could not be transferred un-
der company policy to a job covered by a union contract,
but Walpole suggested that nevertheless he try again.
Walpole testifying about the same incident , stated that
the conversation took place because the prior day Hutchi-
son had been placed temporarily in a lower rated job be-
cause the regular incumbent thereof was absent and had
complained that no one filled his (Hutchison's) job when
he was absent . This led to the confrontation between John-
son and Walpole and Hutchison because Hutchison had
expressed himself vigorously on the subject.
I credit Hutchison 's account of this meeting. If it had
taken place as Walpole testified , Walpole must have been
very well aware of the cause of Hutchison's unhappiness
and would presumably have addressed himself to it rather
than to the general conditions concerning which Hutchison
might be disgruntled . Furthermore , the implied promise
that if Hutchison tried again for the toolmaker apprentice
job he would be given more consideration , suggests an at-
tempt to remedy far more than Hutchison 's alleged cause
2 According to Moore , he did not mention any names to Bloomquist, but
simply asked him if he was aware of the union activity
of resentment , i. e., being temporarily transferred to a less
desirable job, and more an intention to remedy a general
dissatisfaction on Hutchison 's part . I believe and find that
the incident took place as Hutchison described it, that it
revealed Respondent 's awareness that Hutchison was lead-
ing the Union organization and was an attempt by Respon-
dent to head off union organization among the employees.
On October 20, apparently the start of deer hunting sea-
son, Hutchison arranged to go deer hunting with Kestler
and called the plant stating that he was sick . He went hunt-
ing and while there was seen by one Nelson , a lowgrade
supervisor . That evening Hutchison bowled as was his cus-
tom in a company bowling league of which Walpole was a
member and was present . On October 21, Hutchison and
Kestler came back to work and worked as usual. However,
on October 22 when they came into work they found that
their cards had been removed from the timecard rack and
they were directed to go to the administrative offices where
they were discharged for abuse of sick time. On this occa-
sion, Hutchison protested that everyone abused sick time
and that he had gone hunting on sick time in the past,
which was well known to Walpole, and no one had ever
said anything about it. He asked why he was being selected
for discharge because of this, but was simply told that it
was a matter of company policy. Hutchison and Kestler
departed and Kestler filed the instant charges.
On October 27, Hutchison and Kestler drove back to the
plant to meet one of their fellow employees on the parking
lot with regard to a part for a gun . On that occasion they
met Joseph Tutmaker, the assistant superintendent of the
radiator department , who had a short conversation with
Kestler . According to Kestler, Tutmaker asked how things
were and he answered "I'll be back here pretty soon" and
said " it was a pretty rotten deal, them firing me." Tutmak-
er answered something to the effect that the reason given
him was not the reason he was discharged . According to
Tutmaker's version, he asked Kestler what they were doing
on the company parking lot and Kestler answered some-
thing like "we are coming back " Tutmaker said he did not
know about that and Kestler said "we are probably the
only guys who ever went hunting," to which Tutmaker an-
swered "probably you're right."
The General Counsel contends that the Tutmaker-Kest-
ler exchange amounted to something in the nature of an
admission on the part of Respondent 's agent that the two
men were discharged for reasons other than those given
them. However , in view of the situation and the circum-
stances of the conversation , I find in neither version a clear
enough statement to warrant making such a finding.
On October 20, Lee Emmott , foreman in the radiator
division , had a conversation with Bruce White. According
to the testimony of White, Emmott stated to him that he
had heard that Hutchison and Kestler were trying to start a
union . White answered that he knew nothing about it but if
something was going around he wished Emmott would tell
him about it. Emmott answered , according to White, that
it probably had my name on it because I'm such a radi-
cal." On the same day, White was given a week's discipli-
nary layoff. When he came back to work, he went to his
supervisor , Morrison, and told Morrison that he had been
contacted by the National Labor Relations Board and
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would probably have to sign a statement and he was con-
cerned about his job . Morrison answered that he had heard
that White had talked to the Board and that if it were he,
he would not sign anything and suggested then that White
talk to John Landon , the timekeeping supervisor .3 White
then went to Landon 's office and told him that he felt that
the 1-week layoff was somehow connected with the fact
that his name had been linked with Kestler and Hutchison
as a union organizer and he felt that he wanted to let Re-
spondent know that he was not involved in the union orga-
nization . Landon told him that it was just a coincidence
that it all happened at one time , that the disciplinary layoff
was given because he felt that White needed disciplinary
action . In the ensuing discussion White stated that he felt it
was wrong that they should fire someone for misuse of sick
time when everyone else does it including management and
pointed out that Landon had done it too. Landon agreed
with him and said yes, he knew he had but it was a mistake.
Landon finished saying it was just one of those things that
happens, it is just a coincidence . They also discussed the
fact that on two occasions in the recent past White had
taken off half days and without being asked , Landon had
put him on sick leave, although he knew White was engag-
ing in personal business on those occasions. White testified
he never requested sick time and when he was given it he
never questioned it. With regard to the White/Emmott
conversation , Emmott testified that he asked White how
the Union was coming or something of that nature. White
answered "What do you mean?" and that was all he re-
called . When asked specifically whether he had mentioned
the names of Hutchison or Kestler in a conversation, he
testified "I may have but I wouldn't say positively ." Asked
why he made the remark , he testified with a smile that he
did it to harass White. He also testified that he was aware
at the time that Hutchison or Kestler might be engaged in
some union activity . He had heard rumors, he did not re-
call where they were from. He also testified he did not
communicate them to anyone . He also testified that neither
Landon nor Walpole ever told him about the Union.
I find in Emmott 's testimony no denial of the remark
attributed to him by White that he had heard that Hutchi-
son, Kestler , and presumably White were involved in union
organization . Indeed , I find support for my conclusion that
he made that statement in his admission that he had heard,
prior to that time , that Kestler and Hutchison were in-
volved with the Union . I credit White .4
Landon was not called to testify. Accordingly , White's
testimony with regard to the conversation with Landon
stands undenied on the record and I credit it.
On October 22, all supervisors were notified to tell the
employees under their supervision that they were given an
across-the -board raise of 15 cents an hour effective Octo-
ber 20.
3 White is a timekeeper
I generally credit White in all of his testimony While he obviously took
some pleasure in his "radical" status in Respondent 's employ , I felt that he
testified frankly and openly to the best of his recollection
B. Discussion and Conclusions
The discharges
The General Counsel admits that the two alleged dis-
criminatees abused Respondent 's sick leave policy, but
contends that their discharge was pretextual and that the
real motivation was to get rid of the union adherents or
leaders. The elements of a pretext discharge are all present
here. Respondent certainly did not welcome organization
among its white -collar workers. Respondent tried to meet
this element by showing that it had good relationships with
the Union and with other unions in its various plants, but
there is no controversion of the testimony of White that
Walpole, in a meeting conducted by management with em-
ployees during the union campaign , stated that it was just
as silly for the office hourly employees to want a union as
it was for him to read a speech , and went on to say that he
could have access to the union authorization cards and
determine who among the employees had signed them.
The second element necessary to a finding of a pretext
discharge is that Respondent had knowledge of the union
activities of the dischargees . This is clearly demonstrated
by the testimony , again of White , that on the day the two
men went hunting Emmott told White that he had heard
that Hutchison and Kestler were trying to start a union,
indeed Emmott testified that he had heard "rumors" that
these were the men involved in starting the Union.
Finally, we must determine whether the discharges were
for the reason given or were not . It is clear that Respon-
dent had a sick leave rule, that the employees were well
aware that sick leave was not to be used for personal busi-
ness, and that sanctions would be applied if sick leave were
openly used for purposes other than that for which it is
granted . On the other hand, it is equally clear that over the
years sick leave has been constantly used for reasons other
than the sickness of the employee and that the misuse of
sick leave was no surprise to management . White testified
that he had been placed on sick leave on two occasions by
Landon , the manager of his department , on which occa-
sions Landon was well aware that White was not sick but
had taken time off for personal business . Hutchison in
1973, after having had a leave of absence disapproved for
the avowed purpose of going hunting, went hunting any-
way, called in sick , and was paid for the day without com-
ment Walpole professed to have never considered the in-
crease of the use of sick leave during the hunting season, a
rather amazing statement for top management to make,
especially in a plant where parallel management were very
well aware of the misuse of sick leave and joined in it. No
discharge for the misuse of sick leave had ever been seen at
Respondent 's plant , as far as the record reveals . Respon-
dent had at its disposal other sanctions such as the discipli-
nary layoff levied on White. No explanation was given for
the failure of Respondent to consider such sanctions with
regard to the two men here affected, other than the testi-
mony of C. A. N. Johnson, a corporate officer who stated
that he was the one who ordered the discharge because he
considered that it was akin to theft from the Respondent to
use sick leave for the purpose used by the discriminatees
here.
BLACKSTONE CORPORATION
A clue to Respondent's action in this can be taken from
the testimony of Walpole, who testified that he saw Hut-
chison at the bowling alley the night he was reported to
have been sick. The following day, he testified, he asked
Bill Johnson to ascertain whether Hutchison had been sick
and Johnson reported back that it was common knowledge
that Hutchison and Kestler had gone hunting. Walpole
then, apparently without making any decision, took the
matter up with his superior, Brookmeyer, who took the
matter to the highest officer, C. A. N. Johnson, for deci-
sion. There is no evidence that decisions of this sort had
ever gone so high in the Company's hierarchy before In-
deed, Landon apparently had authority to grant sick time
to White for personal business without checking any high-
er. The explanation tendered by Respondent, that the per-
sonnel manager was dying and that Johnson was taking
over his duties, is hardly tenable in the absence of any
indication that Johnson had changed the ground rules, as it
were, among lower supervision. There is no such evidence.
Since no explanation was tendered, I infer that the reason
the action was taken to higher and higher authority by
Walpole, is because of the union activities of Hutchison
and Kestler of which Walpole was well aware. Whether
Johnson, as he testified, was dead set against the misuse of
sick leave is really irrelevant if but for the fact that the
issue was brought to him for discriminatory reasons the
discharges would never have occurred. This is not a situa-
tion where, aware of a problem, Johnson chose to tighten
up Respondent's reaction to the problem. I conclude that
but for the union activity of Hutchison and Kestler, the
discharges would not have occurred. Accordingly, all ele-
ments of a pretextual discharge having been shown to exist,
I find that Respondent violated Section 8(a)(3) and 8(a)(1)
by the discharge of these two men.
The wage raise
I conclude that the wage raise was not shown by the
General Counsel to have been motivated by the union ac-
tivity of the employees . The record reveals clearly that each
time the production employees got a raise under their con-
tract, the white-collar workers got one too and it is clear
that the production workers got a raise in June or July
1975. It is also clear that all of the conditions for a raise
were present ; an increase in the cost of living, and the
increased wage rates paid to the production workers The
only explanation for the failure to give the wage raise in a
timely fashion is that offered by Respondent that Brady,
the personnel manager, was sick and indeed dying, and
that Respondent , in the person of C. A. N. Johnson,
hoped that Brady would be able to return to the plant as he
had been doing, long enough to be consulted about the
wage raise before it was granted When Brady took a turn
for the worse and died on October 22, Johnson immedi-
ately released the wage raise that had already been decided
upon and promptly announced it to everyone in the plant
through supervision . Granting Respondent 's union animus,
I find insufficient evidence to infer that this wage raise was
granted for the purpose of defeating the union organiza-
tion . It is clear that it would have been granted whether or
not a union organization existed, and no explanation other
177
than that offered by Respondent for the delay appears.
Accordingly, I shall dismiss this allegation.
The interrogation
General Counsel contends that the interrogation of
White by Emmott which Emmott characterized as harass-
ment of White, violated Section 8(a)(1) of the Act. I agree.
There is no question that the conversation as reported by
White, whom I credit, amounted to interrogation and I
believe that the interrogation of White was a rather shrewd
move on the part of Emmott, since White is the type of
outspoken person who would be most likely to react to
such interrogation by disclosing what he knew of the union
organization. Accordingly I find that the interrogation vio-
lated Section 8(a)(1) of the Act as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's violations of Section 8(a)(1) and (3) of the
Act, occurring in connection with its operations set forth
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Blackstone Corporation is an employer engaged in
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act
2. The Union, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Kestler and Hutchison because of
their activities on behalf of the Union , Respondent has
discriminated against employees in regard to the hire and
tenure and terms and conditions of employment of its em-
ployees, thereby discouraging membership in a labor orga-
nization in violation of Section 8(a)(3) of the Act.
4. By the discharge of Kestler and Hutchison and by the
interrogation of White, Respondent has interfered with, re-
strained , and coerced and is interfering with, restraining,
and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby violating Sec-
tion 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies and purposes of the Act
Among other things, the recommended Order shall require
Respondent to reinstate and make whole James T. Kestler
and James L. Hutchison in accordance with the rule in
F. W Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]