Carbet Corp.

National Labor Relations Board - Board Decisions

Jul 2, 1971

191 N.L.R.B. 892 (N.L.R.B. 1971)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carbet Corporation and Kendall L. Ball
Carbet Corporation and Leonard Cybul . Cases 7-CA-
8210 and 7-CA-8426
July 2, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On April 13, 1971, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. She further found
that Respondent had not engaged in certain other un-
fair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter,
the Respondent 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 Na-
tional Labor Relations Board has delegated its powers
in connection with this proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as amplified.
1. We agree with the Trial Examiner's finding that
the General Counsel's prima facie showing that em-
ployee Kenneth L. Ball was discriminatorily dis-
charged has not been rebutted by Respondent's evi-
dence in support of its contention that Ball was
discharged because of a lack of work. In adopting the
Trial Examiner's Decision in this respect, we note, in
addition to the reasons set forth by the Trial Examiner,
that the record establishes that Rhodes, the employee
hired after Ball's termination, was no more qualified as
a surface grinder operator than was Ball. Additionally,
he did not have the experience at the operation of other
types of machinery in Respondent's plant which Ball
did. Since Ball had operated the surface grinder, and
this has been been the machine primarily operated by
Rhodes, Respondent, in effect, replaced Ball with
Rhodes. While in other circumstances the fact that
Rhodes was hired at $3.50 an hour as opposed to the
$4.80 which Ball was paid might suggest economic
motivation, we are not satisfied that this is so on the
facts of this case, as the record clearly establishes that
191 NLRB No. 145
Ball was not offered the alternative of remaining at
work at a reduced rate, although he was capable of
doing other work when the work on the jig grinder
declined.
2. We also agree with the Trial Examiner's finding
that employee Leonard Cybul was discharged because
of his concerted and union activities. In addition to the
facts relied on by the Trial Examiner, the smallness of
Respondent's plant and Respondent's interrogation of
Cybul and other employees about their union activities
and views provide further basis for inferring Respond-
ent knew of Cybul's involvement with the Union. But,
on the facts of this case, even the absence of such
knowledge would not preclude a finding that Cybul's
discharge was unlawful and violative of Section 8(a)(1).
In this regard, the record clearly established that Cy-
bul's complaints about the ventilation system on behalf
of himself and other employees constituted a concerted
protected activity under the Act. As the inadequate
ventilation system had long been the subject of com-
plaints by Cybul and other employees, we are satisfied
that Respondent was sufficiently aware of the concern
over the ventilation system to charge it with knowledge
of the concerted nature of Cybul's activities.'
Nor does Cybul's activity lose its protected status
because of the lack of a formal organization and the
fact that he had not been formally authorized as
spokesman for the employees. We have held that "Even
individual protests are protected as concerted activity
if the matter at issue is of moment to the group of
employees complaining and if the matter is brought to
the attention of management by a spokesman, volun-
tary or appointed for that purpose, so long as such
person is speaking for the benefit of the interested
group."2
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent Carbet Corporation, Pontiac, Michigan, its
officers, agents, successors, and assigns shall take the
action set forth in the Trial Examiner's recommended
Order.
' Cybul, a credible witness, testified regarding the ventilation system
"And I told [Martin, Respondent's president] that all I wanted was some
type of filter system put in here, not gust for myself, but for the good of
everyone who works here."
Hugh H. Wilson Company, 171 NLRB No 145, enfd 414 F.2d 1345
(CA 3); Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618
CARBET CORPORATION
TRIAL EXAMINER'S DECISION
JOSEPHINE H. KLEIN, Trial Examiner: This case was tried
in Detroit, Michigan, on January 27, 28, and 29, 1971, on a
complaint issued against Carbet Corporation, Respondent,
on November 24, 1970 (pursuant to a charge filed by Kendall
L. Ball on September 18, 1970), and amended at the hearing
(pursuant to a charge filed by Leonard Cybul on January 20,
1971).' All parties were afforded full opportunity to be heard,
to present oral and written evidence, and to examine and
cross-examine witnesses. Oral argument was presented on
behalf of the General Counsel and Respondent and Respond-
ent thereafter filed a brief.
Upon the entire record, observation of the witnesses, and
consideration of Respondent's brief, the Trial Examiner
makes the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
The complaint alleges, the answer admits, and the Exam-
iner finds that:
A. Respondent, a Michigan corporation with its office and
place of business in Pontiac, Michigan, is engaged in the
manufacture, sale, and distribution oflaminated dies and
related products. During the 12 months ending November 30,
1970, a representative period, Respondent, in the course of its
business, manufactured, sold, and distributed products
valued in excess of $300,000, of which products valued in
excess of $50,000 were shipped from the plant directly to
points outside Michigan. Respondent is, and has been at all
times herein, an employer engaged in commerce within the
meaning of Section 2(2),(6), and (7) of the Act.'
B. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW)
(the Union) is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Issues
In May 1970,3 the Union commenced an organizational
campaign among Respondent's production and maintenance
employees, numbering about 26 at that time. By a vote of 14
to 9, the Union lost an election which was held on June 25
pursuant to a stipulation for certification upon consent elec-
tion executed on June 5. So far as appears, the Union did not
file any objections to the conduct of the election or any unfair
labor practice charges.
The present complaint, as amended at the hearing, alleges
that during the preelection campaign Respondent, through
Benson Martin, its principal owner and manager, as well as
through two other supervisors, committed various acts of
interference in violation of Section 8(a)(1) of the Act, and that
Respondent thereafter discriminatorily discharged em-
ployees Kendall L. Ball and Leonard Cybul in contravention
of Section 8(a)(3) and (1) of the Act.
Respondent denies some of the allegations of interference
in violation of Section 8(a)(1) and contends that such allega-
tions as have been sustained or admitted do not warrant the
issuance of a remedial order. Respondent further contends
The substance of Cybul's charge was added to the complaint at the
hearing, after prior notice of Respondent.
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519,
29 U.S.C. Sec 151 et seq.)
Except as otherwise indicated, all dates herein are in 1970.
893
that the General Counsel has failed to establish by a prepon-
derance of the evidence that either Ball or Cybul was dis-
charged for unlawful reasons. Respondent maintains that
Ball was laid off for lack of work and that Cybul was dis-
charged for cause.
B. Alleged Violations of Section 8(a)(1)
1. Threats
On June 12, in his private office, Benson D. Martin, Re-
spondent's president, 80-percent stockholder, and in effect
the "boss," spoke to Ball for something over an hour. The
conversation was concerned primarily with the Union.
Around the same time, Martin had a long conversation about
the union campaign in his private office with employee An-
thony De Boer, in another meeting. Around the same time,
in his office, Martin spoke about the Union with employees
Leonard Cybul, William L. Bowman, and Frederick Pevitt.
At least at this last named meeting, Kathleen Hatfield, Re-
spondent's office manager and Martin's secretary, was in at-
tendance. Martin testified that he had substantially identical
conversations with about all of the unit employees during the
preelection campaign period.
Employees Edward P. Essiambre,4 Ball, Cybul, and De
Boer all quoted Martin as having said, unequivocally and
emphatically, that he would close the plant if the Union won
the election. Ball and Cybul quoted Martin as having said
that he would close the plant unless the Union lost the elec-
tion by "an overwhelming majority." In these meetings Mar-
tin exhibited reports, or portions of reports, assertedly pre-
pared by a certified public accountant, which Martin
maintained established that Respondent was in a precarious
financial condition. The employee witnesses testified gener-
ally that they had not carefully examined the tendered finan-
cial data and were not competent to understand them in any
event.
Martin testified that after learning of the union campaign
he consulted counsel and secured specific advice as to what
he could and could not legally do and say in the course of the
preelection campaign. He maintained that in all his subse-
quent discussions of the matter with employees he adhered
closely to the substance of a set talk within the permissible
scope of free speech under Section 8(c) of the Act, as delin-
eated by counsel. He maintained that, in general, he advised
the employees of the company's marginal financial condition
and explained that he believed the company could not
economically stand the cost of the benefits and restrictive
rules which the Union would undoubtedly demand if it
became the employees' bargaining agent. He said that he
referred to two other named companies which had come
upon hard times because of union demands. Ball testified that
on June 17, at a meeting in Martin's office, Hatfield and senior
employee John Anderson, supporting Martin, stated, in
effect, that union demands for fringe benefits had caused the
financial ruin of companies they had previously worked for.
According to Martin he had at no time or to any extent
exceeded the bounds of "prediction" permissible under Sec-
tion 8(c). However, despite rigorous cross-examination, with
liberal use of leading questions, Respondent's counsel was
unable to shake the testimony of the General Counsel's em-
ployee witnesses that Martin had forcefully stated his uncon-
ditional intention to close the plant if the Union won the
election. For the reasons hereafter stated, together with ap-,
° Essiambre testified that Martin first spoke to him about the Union on
the day of the election, after the voting and while the ballots were being
counted The other employee witnesses, as well as Martin, placed their
conversations before the election.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
praisal of the witnesses based on careful observation of their
demeanor, the Examiner resolves credibility in favor the Gen-
eral Counsel's witnesses.
Most significant in deciding the credibility issue is Re-
spondent's failure to present available evidence. Martin tes-
tified that when he spoke about the Union to Cybul, Bowman,
and Pevitt, he had Hatfield attend to supply financial data
and because he "wanted her in there as a witness, as well."
Martin also had her present as a "witness" on June 17, when
he spoke with Ball and John Anderson and played a tape of
a long conversation he had about the Union with Ball on June
12. However, although Hatfield was present during the first
2 days of the hearing, she did not attend the third (and final)
day and was not called to testify.' Respondent did call Ander-
son as a witness. On direct examination, Anderson said there
had been no conversation about the Union at that time. When
questioned by the Examiner, Anderson testified that he was
unable to recall any pertinent portion of the lengthy discus-
sion on June 17. Ball's and Martin's testimony makes it clear
that the Union was discussed on the tape and in interruptions
to the running of the tape on June 17.
On June 12, Martin spoke with Ball for something over an
hour. Martin testified that at this meeting he gave what
amounted to his routine antiunion campaign speech. The
evidence is undisputed that the entire conversation was re-
corded on tape. However, Respondent never offered the tape
in evidence. When the `Examiner observed that the tape
would appear to be a ready means of resolving the testimonial
conflict, counsel indicated that its quality was such as to make
it virtually unintelligible.6 However, the tape had been re-
played at least once, apparently without acoustical difficulty,
and at several points Martin' and counsel' had suggested its
' On cross-examination, Ball testified that on June 17 Martin "stated that
I was fighting for my job, to get the Union, because if the Union got in then
I would not be there any longer." The following exchange ensued. "Q (By
Mr. Friedman) and who heard him say this? A John Anderson and Kath-
leen Hatfield. Q. And if they were to testify that he did not say this then
they would be liars, wouldn't they? MR WILKS: Objection TRIAL EXAM-
INER- Objection sustained Q. (By Mr. Friedman) Isn't that right9 A No, Sir.
TRIAL EXAMINER. I have sustained the objection, Mr. Friedman."
6' On the third day of the hearing, while Anderson was on the stand; the
following colloquy occurred- "TRIAL EXAMINER .. , Mr. Friedman, I have
been sitting here and I have heard about that tape, and I have heard every-
body tell me what it said, and I have not heard anybody offer to introduce
it into evidence MR FRIEDMAN I have it here. TRIAL EXAMINER I know
you have it there. I know that. But I have not heard anybody offer it MR
FRIEDMAN. We would offer it into evidence, but you won't be able to
understand it. It isn't of good quality, but I could put it in TRIAL EXAM-
INER I think it's a little late. Do you have the equipment to play it on?
MR FRIEDMAN Do you have the equipment here, Mr. Martin: MR
MARTIN No, I don't have MR FRIEDMAN• We tried it yesterday"
' On direct examination , on the second day of the hearing, Martin tes-
tified:,". I realized that no matter what I did I had to have some form of
a witness - and so I took the precautions when I talked to Ball in the' first
conversation to run a tape on our conversation, to make sure that it wasn't
distorted 'or colored with half truths or innuendos' or any ambiguous re-
marks. And, further, - to further guarantee that there wouldn't be any
distortions - I called Kathy [Hatfield] in there to make dam sure that there
was enough witnesses in this area. So she came in, and John [Anderson] was
there, and I put this tape in - I ran this tape . Q You have that tape don't
you? A. Well, I taped his conversation because over the years I realized that
Kenny [Ball] would stretch the truth a little here and there ...
On cross-examination, during the first day of the hearing, Ball testified
that Martin had spoken about a profit-sharing plan during the June 12
conversation. The cross-examination continued- "Q It was mentioned in
the tape? A. Yes. Q It would be on that tape, then, right? A Yes, sir Q
And if that tape comes in here and is in evidence and it isn't on there then
he wouldn't have talked to you about it in the second conversation, either,
would he'i MR WILKS: Objection. TRIAL EXAMINER. Objection sustained.
Mr Friedman, if you have the tape and want to play it, then at that time
we can make the necessary rulings, or I can do so; but this witness' charac-
ready availability as evidence.
It may well be, as Martin testified, that he sought advice
of counsel as to what he could or could not say in campaign-
ing against the Union.' It may,also be true that he attempted
to remain within permissible bounds. However, Martin is an
expansive person. As a witness,- he frequently had to be ad-
monished to confine his testimony within the scope of the
questions. It seems unlikely that he hewed to any finely drawn
line while talking to employees without a written text and
permitting some dialogue. Cf. Bush Hog, Inc., 161 NLRB
1575, 1581, 1583, enfd. 405 F.2d 755 (C.A. 5). He was not
asked to and did not undertake to repeat or even summarize
the specific advice counsel had given him.
In addition to making dies, Respondent has one punch
press, on which it produces laminations. There is a separate
corporation,called Precision Products Corporation, through
which such business may be conducted. Operation of the
press is essentially an unskilled operation.
Allen W. Warren, a former employee in Respondent's en-
gineering department, testified that sometime around the first
week of June, he was laid off. When Martin told'him of the
layoff, the two men had some conversation. Martin said that
he did not want a union in the shop and was considering
purchasing a second stamping machine and converting his
operation to one exclusively making laminations . Martin ex-
plained that he could then manage with a few skilled workers
and the rest "completely unskilled help," whom he could hire
"off the street, and he could even get housewives to do it."
Martin denied having threatened to convert to a stamping
operation if the Union won. Martin testified that Warren,
upon being laid off, asked when he might expect to be re-
called, to which Martin replied that he had no idea, adding:
"this union thing is over our heads ... and everything is in
a nebulous state. I don't know where we're at right now." He
referred to nationwide unfavorable economic conditions and
said that he did not know what business Respondent would
have in the future. At that point Warren asked about the
stamping operation, and Martin replied that "This little
punch press does a lot better than the tool and die business."
Martin said he would "gravitate toward whichever area [he
made] money in." He said he would stay in the tool and die
operation if he could make a profit,,but he did not think he
could do so if the Union came, in.
Although Martin ' may have attempted to, word, his state-
ments in the apparent form of "predictions," the timing and
context of his remarks was such as to threaten a conversion
to a stamping operation, with unskilled labor, if the skilled
tool and die employees chose to be represented by the Union.
In the Examiner's opinion, "the intended and understood
import of that message was not to predict that unionization
would inevitably cause the plant to close but, to threaten to
throw employees out of work regardless of the economic
realities." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 619.
On all the evidence, the Examiner credits the employee
witnesses for the General Counsel and finds that Martin
threatened employees with plant closure and/or loss of em-
ployment if they chose to be represented by the Union.
There also was considerable evidence concerning a profit-
sharing pension or retirement plan. Ball testified that in one
or both of his conversations with Martin in June, Martin said
that Respondent was in the process of setting up such a plan
and was then seeking governmental approval thereof. Ac-
cording to Ball, Martin said "that he had already done some
paper work on" a profit-sharing program "and that he would
terization of what is true or not true is not admissible "
9 It may, however, be observed that the original answer to the present
complaint was filed by Martin, without counsel
CARBET CORPORATION
not sign the completion papers ... if he didn't win with an
overwhelming majority, or if the Union got in ... he wasn't
going to sign these papers to finalize the program until after
he found out the outcome of the election." Ball testified that
Martin said that "if the Union got in ... he had a paper
drawn up that the plan was null and void." Cybul also quoted
Martin as saying that he would not put the profit-sharing plan
in effect if the Union won the election.
Martin testified that Respondent had initiated such a
profit-sharing fund with a contribution of $2,000 for 1969,
when "[t]here was no union rumble ." He said that Respond-
ent had received 'IRS approval before the hearing but Re-
spondent's current financial situation was such that no pay-
ment could ' be made into the fund for the year 1970.
According to Martin, he had simply explained to Ball, as he
did to other employees, "that if the Union got in there that
it would invalidate this [company-initiated plan], and they
would be covered by the Union 's pension plan." He did not
disclose the-basis of this opinion; nor did he suggest that the
issue would be negotiable . Martin 's testimony in this regard
is subject to the same infirmities as his other testimony, as
indicated, above.
On all the evidence, the Examiner finds that Martin threat-
ened to abandon the Company's profit-sharing plan if the
employees chose to be represented by the Union."
Robert Stewart, who serves as foreman or plant manager,
is vice president of and a 20-percent stockholder in Respond-
ent corporation. On May 19, when the union campaign com-
menced , Martin was on vacation and Steward was in charge
of the plant. Cybul testified that at this time Stewart made
many "disparaging remarks" about the Union. Among such
comments was the statement "that Mr. Martin wouldn't
stand for a union being in the place." According to Cybul,
Stewart also said "that business would be permitted to slow
down, and these people would be systematically eliminated
by layoff or some other means, and then another election
could be held, and this could go on until- well, another
election would be petitioned for, and if they didn't win that
time they would try again." Cybul further testified that Stew-
art had exhibited a stack of blueprints for potential contracts
which Respondent was going to refrain from bidding on so
that its business would decline to the point where it could lay
off many employees, all for the purpose of averting unioniza-
tion. According to Cybul, Stewart elaborated saying that if
the Union should get into the plant, Respondent would make
bids,for work at such high figures that it could not hope .to
secure the work. Thus, it would be necessary to lay off em-
ployees. And those most vulnerable to layoffs would be the
younger employees, who presumably were the ones generally
in favor of the Union. Cybul further testified that Stewart
frequently said that Cybul "wouldn't have a job there because
of his union activities.""
At the time of the"hearing, Stewart was in the hospital and
did not testify. Cybul's testimony in this regard was undis-
puted and in its brief Respondent in effect concedes its truth.
Respondent contends, however, that Stewart's statements do
not constitute violations by Respondent because Martin had
not authorized Stewart, admitted to be a supervisor, to make
them. Respondent's contention must be rejected since it is
well established that an employer is accountable for the coer-
10 The pension matter, though not specifically pleaded, was fully litigated
without objection
11 "A. Stewart said I wouldn't have a job there because of my union
activities. Q Did he express it in that way9 Did he make explicit reference
to that9 To union activities? A Well, he didn't say exactly union activities,
but he said, `if you're going to vote union you're going to - well, you're not
going to have a ,lob.' "
895
cive statements of its supervisors even when made without
authority or even in direct disobedience of instructions.
KTRH Broadcasting Co., 113 NLRB 125, 129, Lima Electri-
cal Products, Inc., 104 NLRB 344, 350.12
2. Interrogation
Respondent concedes that on June 12 Martin called Ball
into his private office and discussed the current union cam-
paign at some length. Martin said that he had heard.that Ball
was spearheading an organizational campaign and asked Ball
who else favored the Union. Ball refused to provide any
information . Martin conceded that he had asked Ball about
his "desires" concerning the Union."
Cybul testified that on May 20, the day before the first
union meeting, he received a telephone call from Stewart.
According to Cybul, Stewart inquired about the forthcoming
meeting and also asked about Cybul's views of the Union and
the identity of other employees who were going to attend.
Stewart specifically inquired about employees Ball and Pre-
vitt. Cybul provided no answers except possibly to indicate
that he planned to attend the meeting. Cybul said he would
let Stewart know where the meeting was to be held, but
apparently did not fulfill that commitment. Stewart's ques-
tioning of Cybul is undenied.
Employee Warren testified that sometime late in May,
Chief Engineer Arthur Cunnings, an admitted supervisor,
asked Warren how he wanted to vote on the Union. When
Warren said he did not know, Cunnings asked if Warren
would like to be placed on salary so that he would not have
to vote in the election. Warren declined the suggestion. Cun-
nings did not testify and Respondent admits that he ques-
tioned Warren. Even though Warren was not in the bargain-
ing unit involved, interrogation of him would be violative of
Section 8(a)(l).
Respondent's defense is based on the absence of any au-
thority conferred on Stewart and Cunnings by Martin to
question employees concerning their union sympathies or
activities. As stated above, this defense must be rejected, since
Respondent is responsible for the coercive interrogation by its
supervisors.'°
3. Creating the impression of surveillance
The complaint alleges that Respondent, through Martin,
created the impression of surveillance over the employees'
union activities.
It is undisputed that on June 12, Martin told Ball that he
understood that Ball was spearheading a union campaign. In
the same conversation, Martin said that, whatever Ball might
think, employee John Anderson would not vote for the
Union."
12 This rule is, of course, quite different from imputing knowledge in
determining the motivation for an allegedly discriminatory discharge, the
situation referred to in Morgan Products, Inc, 172 NLRB No 15, TXD n
20, cited by Respondent.
" Martin first said he "did ask people about their desires," but then said
he thought Ball was the only one
1' The complaint also alleges that Cunnings "promised employees pro-
motions if they would abjure their support of and activities on behalf of the
Union " Cunnings' misguided offer to place Warren on salary so that he
would not have to vote in the election does not prove this allegation And
the record contains no other evidence which might be directed to this
allegation.
11 Martin 's precise words in expressing this opinion became a source of
serious controversy, which led to Martin's playing the tape recording on
June 17. Although considerable conflicting testimony was adduced, the
Examiner finds it unnecessary to decide whether, as Ball testified, Martin
had expressed or implied a vulgarly derogatory opinion of Anderson's cour-
age If such decision were necessary, however, the Examiner would resolve
(Cont.)
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Former employee De Boer testified that a week or two
before the election he was called into Martin's private office.
Martin started the conversation by saying that "he was aware
of what was going on about the union bit" and "brought up
the fact that he was well aware that Kenny [Ball] was the
ramrod of this union-activity bit." According to DeBoer,
Martin then suggested that Ball was not a very competent
worker and might have difficulty securing a job elsewhere.
Former employee Donald L. Freyburgher testified that
shortly after the election, in the course of a disagreement
concerning the cancellation of Freyburgher's vacation, Mar-
tin said that he knew Freyburgher "voted for the Union or
[was] for the Union." The conversation in question was held
at Freyburgher's request because he had then gleaned that
Martin "was trying to get rid of' him.
The Examiner finds that, in the context of Martin's overall
vigorous antiunion campaign, the statements above summa-
rized would naturally convey the impression that Martin was
maintaining surveillance, with keen interest concerning the
sympathies of individual employees. It is accordingly con-
cluded that, as alleged, Respondent violated Section 8(a)(1)
of the Act by creating the impression of surveillance over
union activities of the employees.
C. The Alleged Discriminatory Discharges
1. Kendall L. Ball
On September 23, 1965, Ball, then a high school student,
was hired by Martin. Martin was then a part owner of Ander-
son Design Service, an engineering company, and was in the
process of establishing Respondent, which primarily pro-
duces dies for use in making laminations and also makes some
laminations itself. For an initial brief period Ball worked for
and was paid by Anderson Design , but, as Respondent got
into operation, he gradually worked into production and was
one of the first two people regularly employed by Respond-
ent. While continuing attendance at high school from 8 to I 1
a.m., Ball was considered a part-time employee, but he tes-
tified, without contradiction, that he often worked 7 days a
week, more than 40 hours. In August 1966, after turning 18,
Ball formally embarked on an apprenticeship program estab-
lished by Respondent under the aegis of the United States
Department of Labor and the Michigan Department of Edu-
cation. Commencing in the fall of 1966, under the apprentice
program, he attended a community college trade school 4
hours on each of two evenings a week. The apprentice pro-
gram required approximately 8,000 hours of work, including
general shop, shaper operations, lathe, milling machine,
grinder, and "bench and layout." Ball satisfactorily com-
pleted his apprenticeship and received a certificate of comple-
tion in June 1969. He is the only employee ever sponsored by
Respondent for an apprenticeship.
In the early stages of his employment, Ball performed mis-
cellaneous chores where needed, thus acquiring rudimentary
or elementary working knowledge of the various machines in
the plant. Apparently sometime in 1968, Martin assigned Ball
to work on a machine called a jig grinder, under the tutelage
of John Anderson, a long-experienced operator. Martin tes-
tified that he had decided to assign Ball to the jig grinder
because it is an expensive, "key" machine, relatively easy to
operate, and Ball was very reliable. There is no dispute that
Ball became a proficient jig grinder operator and his work
was well regarded. Within a short time of his initial assign-
ment to the machine, he was working it practically full-time,
the matter in favor of Ball's testimony because of Respondent's failure to
offer the tape recording or to call Hatfield, who had been present when the
tape was played on June 17
and Anderson went to work full-time on the jig bore, a ma-
chine related to the jig grinder but involving somewhat
heavier work. Except for possibly one brief period, Ball
worked on the day shift. William J. West operated the jig
grinder on the night shift. West was originally hired as a
part-time employee but later acquired full-time status. How-
ever, by personal preference, West frequently worked fewer
than the 58 hours per week customarily worked by the other
employees. Whenever the amount of jig grinding work fell off,
West would take time off. Although West had had about 14
years' experience, Ball's work was more highly regarded.16
In its brief, Respondent refers to Ball as "the person that
all, including [Martin], acknowledge as the prime union
mover." It was Ball who made the initial contact with the
Union and was most active in talking in favor of the Union
and soliciting memberships. The record leaves no doubt that
Martin was strongly opposed to having a union in the plant
and felt that Ball's conduct reflected, at the least, a lack of
proper gratitude. In this connection, Martin testified in part
as follows concerning his talk with Ball on June 12:
... I said that I had heard that he was in the process of
organizing the company for the UAW, and I didn't be-
lieve this. I stated that he had worked for me for a long
time, and I had never had and disagreements with Ken-
dall Ball. Kenny and I - he would bring his guns in and
he would use the machinery on occasion, and I called
this to his attention, to make gun parts ... So I called
this to his attention and called his attention to the fact
that I didn't believe it. And he said that he - well, that
it wasn't his idea, but that he was involved in the Union,
and that he believed in the Union. And I told him that
I couldn't understand why he was, because ... he was in
the process of making $17,000 a year, which I thought
was good for a 21 year old boy, or a man that had just
completed his apprenticeship by only a few months
Former employee Donald L. Freyburgher credibly testified
that sometime after the election he overheard Martin say to
West: "It's kind of bad when you let a guy go to school and
then he turns around and sticks you in the back." The refer-
ence obviously was to Ball.
On July 3 Martin told Ball he was being laid off for lack
of work." Ball, whose hours had been cut to 40 per week
about a week before the election, did not question or protest
the layoff, to some extent welcoming the prospect of some free
time for work on an addition which he was then building to
his home. Ball told Martin that he would be immediately
available for any work that might arise, even for only an hour
or two. About 2 weeks later Martin telephoned Ball to come
to the plant to remove his tools.
Ball filed the present charge on September 18, about 2Y
months after the layoff. In explanation of the delay, ' Ball
credibly testified that he decided to file the charge only when
he learned that a new employee was operating the jig grinder.
Respondent maintains that the work and overall employ-
ment throughout the shop were relatively low at the time in
question. According to Martin, total employment (including
executive and office personnel) had declined to around 24
Ball's testimony to this effect was not contradicted
Respondent's answer to the complaint said that Ball was chosen for
layoff because he "had the least seniority and was the most undesirable of
the employees for reasons other than union activities." At the hearing it was
suggested that he was "undesirable" because, according to Martin, he was
not entirely truthful. However, this contention was not pressed and Re-
spondent maintains essentially that Ball was chosen because, although he
had very high seniority in the plant, he had less "seniority" (i.e. experience)
at jig grinding than did West.
CARBET CORPORATION
from a previous high of about 34. However, Respondent's
records do not reflect any substantial decline before October.
At the Examiner's suggestion, Respondent prepared a chart
of monthly employment figures, which was then placed in the
record by the Examiner. This chart shows a high of 33 em-
ployees in May, declining to 32 in June, and then to 31 in July
through September, inclusive. A chart of total wages, simi-
larly prepared by Respondent and placed in evidence by the
Examiner, likewise fails to show any drastic or substantial
decline until October or November. A third chart prepared
by Respondent and introduced as a Trial Examiner's exhibit
covers purchases of materials and shop supplies. It shows
unusually high purchases in May, June, and July, with those
in July being at an alltime high. The data thus do not support
the contention that business and employment were substan-
tially declining when Ball was first laid off and then ter-
minated in July."
On direct examination, Anderson testified that Ball had
been working on the jig grinder when he was laid off and that
thereafter Anderson did the jig grinding work, with nobody
hired to replace Ball. On cross-examination, Anderson tes-
tified that for about a week after Ball was laid off, the jig
grinder was idle. Then, when some jig grinding work came in,
Anderson did it and employee Fred H. Retz, who had worked
for Respondent about 1Y, or 2 years, took over Anderson's jig
bore operation. As of the time of the hearing, Anderson's
regular work was on the jig grinder, with Retz serving as the
regular jig bore operator, even though Anderson had been
hired by Respondent specifically to run a new jig bore which
Martin promised to get. When Anderson went on vacation
for 2 weeks in July, Ball was not called in. Instead, Rhodes,
who was hired after Ball was laid off, took over the jig grind-
ing, after being "trained" by Anderson. Anderson conceded
that Ball is a competent jig grinder, whereas Rhodes is not
and "only did roughing and stuff like that.""
In explanation of Respondent's having hired Rhodes (and
two or three other employees, who apparently did not stay
very long) despite Ball's termination for lack of work, Re-
spondent maintains that it needed people to work on surface
grinders, which were kept in somewhat 'more regular opera-
tion because of "detail" work (replacement and repair of
parts), as distinguished from production of new dies. Accord-
ing to Respondent, Rhodes was a surface grinder, whereas
Ball was not. There was considerable general testimony that
the jig grinder had been idle a substantial part of the time
both before and after Ball was laid off. For example, Ander-
son, Respondent's witness, testified that it had been down
about 2 of the 6 months preceding the hearing, at the end of
January. However, Anderson did not specify when during
that period the idleness occurred. West, the jig grinder opera-
tor on the night shift, testified that until "a couple of months"
before the hearing he had been scheduled for a full 58 hours
per week, working solely at the jig grinder, although it was
clearly established that customarily West had not worked
when the amount of jig grinding to be done was low. Frey-
burgher testified that as of September Rhodes, who had been
11 Martin's testimony was unreliable. At one point he said "We're aw-
fully close to extinction right today " Shortly thereafter, however, he said
that business "has gained momentum in the last couple of months or so,
but it has been a gradual thing; and it has gained momentum." Thereafter
he said business "started to slow down roughly about a year ago, and it has
become sever in rust the last few months. It's getting - well, I'm going to
have to really just hustle or we're going to be out in the street."
11 On cross-examination, Anderson testified: "Q. Was Kenny [Ball] able
to do finish grinding on the jig bore grinder? A. Yes. Q. Was Mr. Rhodes
able to finish grinding on it? A. No. Q He can't? No. He tried it, but he
scrapped a lot Q. The only thing he can do is a little rough grinding. A little
rough grinding on the jig grinder? A. Yes."
897
hired in July, was transmitting instructions as to the jig grind-
ing operation from the day shift to West on the night shift.
Anderson disclosed that Respondent maintains precise
time records of all operations on all jobs. In view of the
generality and vagueness of much of Respondent's evidence,
the Examiner finds it significant that Respondent made no
attempt to document its claim that a radical decline in jig
grinding work was the sole cause of Ball's layoff and termina-
tion.
Ball estimated that he had had "hundreds of hours" on
surface grinders and added: "For quite sometime that's all I
did, was surface grinding work ... I would say I ran them
approximately 8 months, and much of that was at 58 hours
a week. That was at the early part of my apprenticeship." He
testified that he "did quite a bit of roughing." Respondent's
witnesses Martin and Anderson could recall Ball's having
worked at a surface grinder for only about 2 or 3 weeks.
Cybul testified that he had seen Ball operating a surface
grinder "many times" and that, in Cybul's opinion , Ball was
"more qualified to run that surface grinder than many of the
surface grinders that were hired in there.
While the evidence shows that Ball was not a fully ex-
perienced, competent surface grinder, it also establishes that
neither was Rhodes. Anderson testified that there is both
complicated and uncomplicated surface grinding and that
Rhodes does the uncomplicated work. Employee Delbert
Phillips, also a surface grinder, appeared on behalf of Re-
spondent. He testified that "a man could come in off the street
and run the surface grinder with no training" and "ulti-
mately, with supervision, - after several months - he could
do ... some types of complicated work." Phillips, with 3
years experience at surface grinding, still has considerable
supervision, with little, if any, independence in his work.
Phillips' wage rate is $4.60 per hour, whereas Rhodes was
hired at $3.50, and Martin testified that wage rates are deter-
mined by his appraisal of employees' abilities.
The evidence was undisputed that Ball had had experience
on a wide variety of machines, whereas Rhodes had not.
Martin testified that Ball was laid off because there was no
work available at his rate of pay, which was $4.80 an hour,
and that Martin could "hire someone at, let's say, two and
a half dollars an hour to do what he would do." But it is
significant that Martin did not suggest to Ball the alternative
of his filling in on other work at a reduced rate of pay, and
Rhodes was soon hired in at $3.50. In addition , Martin tes-
tified that competent tool and diemakers were hard to find
and he emphasized the substantial investment Respondent
had made in training Ball.
To summarize: The General Counsel made a prima facie
showing of discriminatory discharge when he established that
Ball was the union ringleader, that Martin harbored a union
animus and knew of 'Ball's role in the campaign, and that
Ball's function was later performed by a new employee. Re-
spondent did not then establish its contention that Ball was
laid off and then terminated for lack of work. Accordingly,
on all the evidence the Examiner finds that Ball was dis-
criminatorily discharged in violation of Section 8(a)(3) of the
Act.
2. Leonard Cybul
Cybul, 49 years old, has been a tool and diemaker for some
20 years, having at one time operated his own shop. He was
hired by Respondent on December 19, 1966. Martin testified
that Cybul was a most competent and reliable worker and did
yeoman service in training younger employees.
He was discharged on September 11, The complaint alleges
that his discharge was based on his concerted and union
898 DECISIONS OF NATIONAL" LABOR RELATIONS BOARD
activities . Respondent , maintains that he was discharged for
causing "dissension" among Respondent 's employees.
According to Respondent, Cybul had a generally negative
attitude toward Respondent , which was reflected in repeated
derogatory remarks about the company 's management and
policies which , in turn , caused other employees to become
dissatisfied , some to the point of seeking employment else-
where.
There is little question that Cybul has a propensity for
being critical . Indeed , when asked on the witness stand if he
had criticised Martin , he replied:
Did I ever make derogatory statements ? I have made
derogatory statements against any man I have ever
worked for and yet I respect them . I mean these are
normal things. I don't know if you have ever had a boss
or not, but -
While admitting that he had undoubtedly criticised Martin,
Cybul said he did not believe he had made derogatory re-
marks about the company itself.
The record establishes that many employees made
"derogatory remarks" about management , primarily about
Stewart . Employee Phillips, Respondent 's witness , testified
that several employees , including himself, had commented on
the fact that Stewart and Martin drank at lunchtime and at
least Stewart frequently returned to work in a drunken state.
Phillips conceded that it was "possible" that he had com-
plained to Cybul about Stewart 's sarcastic comments at such
times. Indeed , there was some indication that one of the
improvements promised by Martin in the course of the Union
campaign was an end to drinking during working hours.
Respondent maintains that Cybul's special vice consisted
of making other employees , particularly the younger ones, so
dissatisfied with their wages as to leave Respondent for other
employment . Martin claimed that Cybul had been responsi-
ble for Respondent 's losing young employees. One was Phil-
lips who had left Respondent 's employ in March of 196920
and returned in October of the same year . Phillips, however,
testified that he had left because he needed to make more
money and went to work with his grandfather in a different
business. However , he preferred tool and diemaking .21 When
he returned to work for Respondent , he received a higher
wage rate than he had previously had. Martin testified that
Phillips had told him that Cybul' s suggestion and encourage-
ment had led to the departure . However Phillips testified only
that Cybul had voiced the opinion that Phillips "was at a low
rate" and that his grandfather 's proposal sounded promising.
Martin also referred to Mike Kuchala, who apparently 2
or 3 years ago had left Respondent to work for another
company at higher wages. According to Martin, Kuchala had
made the move on the recommendation or advice of Cybul.
Kuchala did not testify and no' detailed or specific evidence
was elicited concerning the matter . The Kuchala matter ap-
pears to be, at best , a hindsight makeweight , since, when
initially asked the reason for Cybul's discharge , Martin re-
ferred to the departure only of ' Phillips 22
20 Phillips' testimony was somewhat confused as to whether he had left
Respondent in 1968 or 1969. The precise dates are not crucial to the present
decision
" Cybul indicated that Phillips found the grandfather's business attrac-
tive because it was outdoors work, but Phillips became less enthusiastic in
the fall, with the advent of cold weather.
" Martin's testimony on direct examination was "I discharged [Cybul]
because it had come to my attention that there was several men that he
constantly had bothered, and one of them [Phillips] had left our employ, and
he since returned and is now working for us, but his remarks had dis-
couraged this man to the point of leaving our employ, largely through his
instigation."
The evidence does establish that Cybul advised several
young employees that they were being underpaid. Respond-
ent refers particularly to Steven Hill as an employee whom
Cybul made dissatisfied. But Martin himself testified that
when he questioned Hill about it, the young man reassured
Martin that there was nothing to worry about, since Cybul's
needling " .. goes in one ear and out the other." When
Respondent's counsel attempted to show that Phillips had
"complained" about Cybul's comments, it developed that he
had spoken to William Bowman, a rank-and-file employee."
On cross-examination, when asked if he had "complained" to
Bowman, Phillips said they had "talked this over" and
conceded that the two men were "just talking it over, one man
to another." It also appears that other employees frequently
complained about their wages, apparently without Cybul's
stimulation.
In seeking to hold Cybul largely responsible for employee
dissatisfaction with wages, Martin exaggerates Cybul's power
and influence, since, as Martin himself testified, "You can't
cheat anybody in this business in the form of wages because
they will go somewhere else, and there is a scarcity of good
men, so if you don't pay them somebody else will."
The evidence establishes that the exhaust (or "blower")
system in Respondent's plant is totally inadequate and that
the metal dust created in the operations is not drawn off,
apparently causing an actual or potential health hazard.
Cybul, who has suffered from respiratory and related ail-
ments," frequently complained about the blower system,
both to Martin and Stewart and to other employees. Other
employees made similar complaints. Although it appears that
Cybul had made some complaints earlier, he became insistent
about the matter around December 1969 or January 1970,
when he began to have serious difficulty with breathing,
which led him, on doctor's orders, to stay out of work during
all of February and one week in either January or March."
Martin maintains that Cybul's complaint about the ventila-
tion played no part in the discharge, since Martin agreed with
Cybul on that score and confidently hoped eventually to cor-
rect matters. Respondent maintains further that Cybul's ac-
tivities with respect to the ventilation problem were not pro-
tected "concerted" activities, but rather were simply
individual complaints voiced by Cybul, neither in concert
with other employees nor designed to have the employees join
together to secure action.
The evidence establishes that the ventilation problem was
one of the matters which led to the attempted unionization.
For example, Cybul testified that when he spoke about the
problem to employee Anthony DeBoer, DeBoer replied
"We've got to get a union, and maybe they could help us get
it." DeBoer who has since left Respondent's employ, testified
that during the campaign Martin asked him why they needed
a union and he replied that one of the reasons was to get a
satisfactory blower system installed. Cybul testified, without
contradiction, that around December 1969 or January 1970
he asked Stewart when a new dust collecting system would
be installed and Stewart replied that it would be when a new
building was constructed. Then around March, upon his re-
turn from sick leave, Cybul repeated the question and Stewart
replied that Respondent would "never" get a new blower
23 Bowman is now a group leader, but not a supervisor.
" Some years earlier Cybul had been hospitalized for tuberculosis.
25 At the hearing, Respondent's counsel stated that Cybul was discharged
for the additional reason that, because of ill health, he was physically unable
to perform his duties. Counsel established that after Cybul was discharged
he filed a workmen's compensation claim for total disability because of
respiratory disease That claim apparently is still pending However, Martin
unequivocally denied that Cybul's health was a factor in his discharge
CARBET CORPORATION 899
system. It was not until after the Union appeared on the scene
that Respondent took even preliminary steps toward rectify-
ing the situation . During the preelection campaign Martin
promised to remedy matters and had two or three companies
inspect the premises to prepare plans and give cost estimates.
No action had been taken as of the time of the hearing.
Martin testified that because business was then so bad that it
was problematical whether Respondent could survive, he was
reluctant to spend the approximately $12,000 required to
install an adequate blower system.
There was some evidence to the effect that Cybul had
suggested a slowdown to some of the employees . For exam-
ple, employee Hill testified that Cybul frequently asked why
Hill was working so fast for his inadequate wage rate. Hill
also testified that he had heard Cybul make similar remarks
to employee Richard S . Przybylowicz and former employee
Essiambre. Przybylowicz did not testify. Essiambre testified
that Cybul's remarks to that effect had always been made in
a joking manner. Lawrence Beeler, a quality control inspector
who sometimes operates machines , testified that Cybul had
also asked him why he worked so hard at the machines.
Beeler acknowledged that Cybul's objection was that, by op-
erating two or three machines at the same time, Beeler was
depriving other actual or potential employees of work, and
that Beeler should do more inspecting, for which he was
employed. Both Hill and Beeler testified that Cybul's remarks
had had no effect on their work speed. Significantly, in testify-
ing, Martin did not refer to any alleged statements by Cybul
calculated to persuade employees to slow down.
There is no dispute that Martin made no complaints to or
about Cybul before the Union appeared on the scene. Martin
testified that, although Cybul "had been doing these things
. for several years," Martin didn't really realize the impact
of it until, "prompted by the union campaign , he made an
investigation, as a result of which "all of these things came
into perspective." However, when conceding that he had not
received any complaints from other employees about Cybul,
Martin volunteered: "It was my observation that brought this
to my attention. As I have mentioned, the shop is small, and
when you deal with all of the people that I deal with you get
a perceptiveness that you don't have ordinarily, and I could
perceive him doing this." With his acquired perceptiveness,
he must have observed that, as he testified was the fact, Cybul
promptly spoke to every employee "To find out how much
money he made, and see where he could nail the company."
Yet Cybul received two wage increases in 1970, the second
being on May 18, the day before the union campaign began.
Martin testified that he first spoke to Cybul about the
matter during the preelection campaign. Cybul indicated that
Martin first raised the subject shortly after the election. At
that time, Martin said that Cybul appeared to be very dis-
satisfied working for Respondent and Martin asked Cybul
why he did not quit. Thereafter, according to Cybul, Martin
did not talk to him at all until about 2 weeks later, when
Cybul was requested to return the key which he had to the
plant.26 The only other conversation the two men had was
when Martin discharged Cybul on September 11.27 Martin
testified that the final decision to discharge Cybul was made
after Martin questioned Hill a second time and Hill said that
Cybul was still "needling," even though, as previously stated,
°° Martin denied that the request for return of the key had any relation
to dissatisfaction with Cybul as an employee.
1' Martin testified that he had had engineering supervisor Cunnings
present as a witness at the discharge interview. Cunnings did not testify.
Hill also said that he paid no attention to Cybul's negative
attitude."
Essiambre credibly testified that sometime around the end
of July he asked for a pay raise, and Martin "said he wouldn't
give me a raise because us guys were detrimental to the com-
pany, and he said he has one guy in here now that he's trying
to get to quit, and he won't do it, and he said he won't do it,
and he was going to get rid of him." Martin identified the
employee in question as Cybul. Essiambre was laid off in
October, ostensibly for lack of work, although at the hearing
Respondent's counsel attempted to establish that Essiambre
was an unsatisfactory worker. Martin's testimony, however,
indicates that Essiambre was considered a very competent
and fast worker , although his haste occasionally led to some-
what careless work.
Around the end of July, DeBoer and Freyburgher were
transferred to the night shift. DeBoer quit rather than work
nights. Freyburgher testified that shortly after the election he
gained the impression that Martin was "trying to get rid of'
him. Freyburgher did quit in October.
Although the terminations of Freyburgher, DeBoer and
Essiambre have not been alleged as violative of the Act, it
should be noted that they were all pro-Union. It will also be
recalled that Stewart had earlier predicted that work would
be allowed to decline with the result that the younger, pre-
sumably prounion employees would be laid off. By mid-Octo-
ber at least 5 prounion employees had left Respondent's em-
ploy, and Martin testified that in the few months before the
hearing , i.e., since November or December, business had been
"gaining momentum" (supra, fn. 18).29 Since the employment,
payroll and purchase figures in evidence do not reflect any
"gaining momentum" through the end of 1970, Martin's
statement apparently reflects expectation . It is consistent
with a plan of eliminating union adherents through planned
economic layoffs and subsequent rebuilding of the business.
Respondent establishes wage rates on an individual basis
and with an air of secrecy. For example, Ball testified that the
range of wages "was never really a known thing in the shop.
Everybody had to fend for himself." And Martin testified that
DeBoer "put it very adequately when he said it's what they
can get; and how badly a person needs it." Indeed, John
Anderson refused to disclose his wage rate until directed to
do so by the Examiner.30
Martin left no doubt as to his opposition to unionization.
He repeatedly expressed the opinion that the company could
not survive economically if a union came in. His first reaction
to the news that a union was organizing was: "boy-oh-boy,
here is all of my work down the drain"; he feared that unioni-
zation might cause him to lose everything and therefore he
had to decide whether to give up the business forthwith or to
risk possibly arriving at "such a point that [he] couldn't get
out of it and still retain some money."
By waging a vigorous campaign, including, as heretofore
found, preelection unfair labor practices, Respondent de-
feated the Union. But there was always the threat of resur-
gence. Cybul's frequent complaints about the exhaust system
had been a substantial factor leading to the first, abortive
attempt at unionization. His frequent complaints about wages
28 The evidence generally suggests that the younger employees had great
respect and even considerable affection for Cybul.
" It should be noted that Ball was originally "laid off" but soon ter-
minated, despite Martin 's protestation that he had hoped to be in a position
to recall Ball.
30 On the second day of the hearing Anderson solicited the signatures of
16 employees to a statement reading, "We the undersigned at Carbet Corpo-
ration do not wish to work with Kenny Ball because of his lies and deceits "
This document was rejected when offered by Respondent's counsel to im-
peach Ball.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obviously were a threat to the established pattern of secrecy
and individual bargaining as to wages. Manifestly, Cybul's
"negative attitude" toward certain conditions at the plant
were a clear and present danger of renewed activity.
While Cybul had not initiated the union campaign, he was
identifiably in favor of the Union, having solicited Phillips'
membership and having transmitted information concerning
union meetings and activities in the plant.
On all the evidence, the inference is inescapable that Cybul
was discharged because his past conduct had been instrumen-
tal in bringing about the union campaign which began in May
and his continued employment by Respondent constituted a
continuing threat of renewed concerted and/or union activi-
ties. His discharge was part of a determined effort by Re-
spondent to prevent a resurgence of such activity. Accord-
ingly, the discharge was violative of Section 8(a)(1) and (3)
of the Act.
CONCLUSIONS OF LAW
1. By interrogating employees concerning their union ac-
tivities and sympathies, by creating the impression of surveil-
lance over employees' union activities, and by threatening
employees with plant closure and loss of jobs if they chose to
be represented by a union, Respondent interfered with, re-
strained and coerced employees in the exercise of their rights
under Section 7, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. By laying off Kendall L. Ball on July 3, 1970, and by
discharging Leonard Cybul on September 11, 1970, and
thereafter failing or refusing to reinstate them, in order to
discourage concerted and union activities, Respondent has
discriminated in regard to hire and tenure of employment, in
violation of Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. It has not been established that Respondent engaged in
unfair labor practices other than those specified above.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of interference, re-
straint, coercion, and discriminatory discharge in violation of
Section 8(a)(1) and (3) of the Act. These will require Re-
spondent to cease and desist from the unfair labor practices
found, to offer reinstatement with backpay to the employees
discriminated against, and to post a notice to that effect. In
accordance with usual requirements, reinstatement shall be
to the discriminatees' former positions, or, if these position no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
The discriminatees shall be made whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them of sums of money equal to those they would
have earned from the dates of their discharge to the date of
offer of reinstatement, less net earnings, if any, during such
period, to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices Respond-
ent has engaged in, the Examiner will also recommend that
Respondent be required to cease and desist from infringing in
any manner upon the rights guaranteed to employees by Sec-
tion 7 of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
the Trial Examiner hereby issues the following recom-
mended:31
ORDER
Respondent, Carbet Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their or
other employees' union preference, affiliation, or activities or
other concerted activities.
(b) Creating the impression of surveillance of union or
other concerted activities.
(c) Threatening employees with plant closure or loss of jobs
or benefits if they choose to be represented by a union.
(d) Discouraging membership and activities in any labor
organization by discriminating in regard to hire and tenure
of employment of Respondent's employees.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Kendall L. Ball and Leonard Cybul immediate
and full reinstatement to their former jobs, or, if those jobs
no longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered
as a result of their discharge, in the manner set forth in "The
Remedy" section herein.
(b) Notify the above-named employees if presently serving
in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Pontiac, Michigan, copies of the
attached notice marked "Appendix."32 Copies of said notice,
on forms provided by the Regional Director for Region 7,
after being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof and be main-
tained 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 Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
11 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
39 In the event that this recommended Order is adopted by the Board
after the exceptions have been filed, notify said Regional Director, in writ-
mg, within 20 days from the date of the Board's Order, what steps Respond-
CARBET CORPORATION 901
IT IS FURTHER ORDERED that the amended complaint be, equal jobs) with the same rights and privileges they
and it hereby is, dismissed insofar as it alleges unfair labor would have if we had not laid them off or fired them.
practices other than those found herein. WE WILL also pay to Kendall L. Ball and Leonard
ent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give evi-
dence, it has been decided that we, Carbet Corporation, have
violated the National Labor Relations Act, and we have been
ordered to post this notice, and we intend to carry out the
order of the board and abide by the following:
We give you these assurances:
WE WILL NOT ask you about your or any other em-
ployees' opinion of, membership in, or activities for any
union.
WE WILL NOT threaten that we will close the plant or
change the nature of its operations or that you will lose
your jobs if you choose to have a union represent you.
WE WILL NOT do' anything to make you believe that
we are watching your union activities.
WE WILL NOT fire you or take any other action
against you because you have joined or supported, now
support, or will join or support any union.
WE WILL offer to give Kendall L. Ball and Leonard
Cybul back their jobs (or, if those jobs no longer exist,
Cybul all pay they lost because we discharged them, with
6 percent interest.
WE WILL NOT in any other way interfere with our
employees ' rights, guaranteed under the law , to organ-
ize, to form , join, or assist a union , to bargain through
the union they may choose, to act together for their
mutual aid or protection, or to refuse to do any of these
things.
All of our employees are free to become or remain, or to
refrain from becoming or remaining , members of the Interna-
tional Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), or any other
union.
Dated- By
CARBET
CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500 Book
Building, 1249 Washington Boulevard , Detroit , Michigan
48226, Telephone 313-226-3200.