Cardinal Extrusions Co.

National Labor Relations Board - Board Decisions

Mar 27, 1962

136 N.L.R.B. 615 (N.L.R.B. 1962)

CARDINAL EXTRUSIONS COMPANY 615
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT dominate or interfere with the administration of the Employees'
Committee or any other labor organization or contribute financial or other
support thereto.
WE WILL NOT recognize the Employees' Committee or any successor thereto
and we permanently withdraw recognition from and disestablish it as representa-
tive of any of our employees for the purpose, in whole or part, of dealing with
or discussing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work.
WE WILL NOT suggest that polls be taken of our employees as to their senti-
ments respecting collective bargaining under circumstances constituting inter-
ference, restraint, and coercion within the meaning of Section 8(a)(1) of
the Act.
WE WILL NOT grant or imply that we will grant economic benefits to our em-
ployees in order to discourage membership in or activities on behalf of Inter-
national Ladies' Garment Workers' Union, AFL-CIO, or any other labor
organization.
MAGIC SLACKS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Cardinal Extrusions Company and District 50, United Mine
Workers of America . Case No. 9-CA-2336. [lla?'ch 27, 1962
DECISION AND ORDER
On December 21, 1961, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceeding, 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions I and the brief, and the entire record in
i The Respondent excepted to the Intermediate Report as being based upon an unfair
hearing, and it asserted that the Trial Examiner, in making his findings, manifested bias
against the Respondent and in favor of the Union (Charging Party) Upon careful
examination of the entire record and the Intermediate Report, we are satisfied that the
136 NLRB No. 58.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cardinal Ex-
trusions Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Dis-
trict 50, United Mine Workers of America, or any other labor organi-
zation of its employees, by discharging or refusing to reinstate any of
its employees, or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of employment,
except to the extent permitted by the proviso to Section 8(a) (3) of
the Act.
(b) Interrogating employees concerning union affiliation, activi-
ties, or desires, in a manner constituting interference, restraint, or co-
ercion in violation of Section 8 (a) (1).
(c) Threatening employees with discharge, closing of the plant,
or any other form of discrimination, if they engage in union or con-
certed activities.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist District 50, United Mine Workers
of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William G. Jones, Cletus Renfrow, Francis L. Nevitt,
and Walter E. Noe immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their senior-
ity or other rights and privileges, and make them and Chester S.
Simpson, Jr., and Roy H. Cumley whole for any loss of earnings they
may have suffered as a result of the discrimination against them, as
provided in "The Remedy" section of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
contentions of the Respondent in this regard are without merit. See N L R.B. v. Pitts-
burgh S S. Company , 337 U S 656, 659
CARDINAL EXTRUSIONS C01VIPANY 617
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due, as set forth in "The Remedy" section of the Intermediate Report.
(c) Post at its plant at Louisville, Kentucky, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of District 50, United Mine Workers of America, or any other
labor organization, by discharging or refusing to reinstate any
of our employees or in any other manner discriminating against
our employees in regard to their hire or tenure of employment, or
any term or condition of employment, except to the extent per-
mitted by the proviso to Section 8(a) (3) of the Act.
WE WILL NOT coercively or unlawfully interrogate our em-
ployees regarding their union membership, activities, or desires.
WE WILL NOT threaten our employees with layoff, discharge, or
other economic reprisal, for the purpose of discouraging union
membership or adherence.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist District
50, United Mine Workers of America, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act.
WE WILL offer to William G. Jones, Cletus Renfrow, Francis L.
Nevitt, and Walter E. Noe immediate and full reinstatement to
their former or a substantially equivalent position, without
prejudice to any seniority or other rights and privileges previ-
ously enjoyed, and make them and Chester S. Simpson, Jr., and
Roy H. Cumley whole for any loss of pay suffered as a result
of the discrimination against them.
All our employes are free to become or remain or to refrain from
becoming or remaining members of District 50, United Mine Workers
of America, or any other labor organization.
CARDINAL EXTRUSIONS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
Telephone Number Dunbar 1-1420, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices duly filed , the General Counsel of the
National Labor Relations Board issued a complaint dated July 25, 1961, alleging
that the Respondent , Cardinal Extrusions Company,' has engaged and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) of the
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein
called the Act. In substance the complaint alleges that during a campaign by the
Charging Union to organize the Company 's employees , Respondent interrogated
employees regarding their union sympathies , threatened economic reprisals if the
Union achieved representative status, and discharged six employees 2 because of their
sympathy for, membership in, and activities on behalf of the Union . The Respond-
ent filed an answer denying the substantive allegations of the complaint and the com-
mission of unfair labor practices.
Pursuant to due notice, a hearing was held before me in Louisville, Kentucky, on
September 25, 26, 27, 28, and 29, 1961. All parties were represented at the hearing
by counsel and were afforded full opportunity to be heard, to introduce evidence, to
examine and cross-examine witnesses , to present oral argument , and to file briefs.
On November 13, 1961, briefs were filed by the General Counsel and the Respondent,
which I have carefully considered.
'According to the uncontradicted testimony of William E Edwards, Jr, Respondent's
president , the name of Respondent as alleged in the complaint , to wit , Southern Extrusions
Company, d /b/a Cardinal Extrusions Company, is its former corporate name, and its
present correct corporate designation is as stated above Accordingly, I have amended
the caption to show Respondent's correct name.
3 William G Jones, Chester S Simpson, Jr, Francis L Nevitt, Roy H Cumley, Cletus
Renfrow, and Walter E Noe
CARDINAL EXTRUSIONS COMPANY 619
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Company, a Kentucky corporation, is engaged in the extrusion of aluminum
and the fabrication of aluminum products at its plant in Louisville, Kentucky. Dur-
ing the past 12 months, a representative period, Respondent sold and shipped from
its plant in Louisville, Kentucky, to points outside said State, products valued in
excess of $50,000. On the foregoing admitted facts, I find and conclude that the
Company is engaged in interstate commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The uncontradicted evidence discloses that District 50, United Mine Workers of
America, herein called the Union, is an organization in which employees participate,
which exists for the purpose of dealing with employers concerning grievances, labor
disputes, rates of pay, hours of employment, and other conditions of employment.
Accordingly, I find that the Union is a labor organization within the meaning of
Section 2(5) of the Act .3
III. THE UNFAIR LABOR PRACTICES
A. Background information
The Respondent is a wholly owned subsidiary of Alhom, Incorporated, a manu-
facturer of aluminum products , principally storm windows, doors, and awnings.
Alhom's plant is located in the same building as Respondent, and its officers and
directors are the same as those of Respondent. Alhom's purchases of Respondent's
products represent about 40 percent of the latter's total sales.
At the times material herein, Respondent's total personnel roster consisted of only
about 50 employees, including supervisors and office employees. Overall super-
vision of the plant, subject only to policy direction by Respondent's president and
treasurer, was in B. E. Daugherty, its plant superintendent, familiarly referred to by
the employees as "Gene." The Company has two principal departments, production
and fabrication. The production department, where aluminum billets are extruded,
and the extrusions are cut to specified lengths, is under the supervision of Production
Superintendent Paul Lanham. A substantial portion of Respondent's products re-
ceive no further processing. However, such secondary operations as its customers
specify, such as buffing, drilling, and sleeving, is done by the fabrication department,
which was under the supervision of Bobby Daugherty, a brother of Gene, on the
critical dates herein. Both of these departments operate two shifts per day. During
the critical dates involved herein, Edwin Colvin and Bobby Tarter were the shift
foremen in production and Joe Downes was the leadman in fabrication.4 Most of
the supervisors were on a first-name basis with Respondent's employees, and many
of them rode to and from work in automobiles with rank-and-file employees.
B. The commencement of union organization
In late March 1961, the Union commenced a campaign to organize Respondent's
employees. At the outset, according to the Union's International Representative
O Respondent 's answer originally admitted that the Union is a labor organization, but
at the outset of the hearing, Respondent was permitted to amend Its answer to deny this
allegation. Thereafter, Respondent sought to subpena and introduce into the record so-
called sweetheart collective-bargaining agreements between the Union and other employers,
purportedly for the purpose of showing that the Union was not a labor organization, or
person, capable of filing a charge within the meaning of the Act Since such agreements,
assuming their existence, were Irrelevant to the issue of whether the Union is a labor
organization, or person, within the meaning of the Act, and since the merit or lack of
merit of the Union, as a representative of employees, is unrelated to any issue in this
proceeding, I rejected Respondent's offer of proof in this regard
In the case of the night shift in fabrication, Respondent referred to the person In
charge as a "leadman," but in view of the nature of his total responsibility and control,
the absence of any other supervision, and the admissions in Respondent's answer, there
Is no real question and I find that the leadman in fabrication on the night shift is a
supervisor within the meaning of the Act
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Austin O. Ball, Jr., all he did was to observe the plant and its employees during shift
changes, and later, he spoke to some employees. On May 22 and 31,5 between 3:30
and 5 p.m., Ball stood at the entrance road leading to Respondent's parking lot, and
distributed to the occupants of all the automobiles which entered and left the parking
lot, union leaflets with union authorization cards attached. On May 22, Ball also
arranged with one of Respondent's employees for the latter to distribute union
authorization cards to the Company's employees.
Knowledge of the Union's organizational campaign was acquired by Respondent's
officials and supervisors coincident with the distribution of the leaflets. President
Edwards testified that he saw the leaflets being distributed when he left the plant
early one day. Plant Superintendent Gene Daugherty admitted that he saw the
leaflets all over the plant "around the first of June." Although opposed to the Union,
President Edwards assertedly instituted no countermeasures and held no meetings of
supervisors to instruct them regarding employees' rights. Indeed, according to
Edwards and Gene Daugherty, they did not discuss the Union or its organizing
campaign at all, either with each other, or with supervisors or employees.6
C. Inerference, restraint, and coercion of employees
1. In the latter part of April, Walter E. Noe, a shipping department employee of
Respondent, asked Fabrication Foreman Bobby Daugherty if he thought a union
would be good in a place like the Company. Daugherty responded "no." He
said the Company could not afford union wages, and that if a union did get in,
there might be more money per man but there would be less work. Noe asked
Daugherty what he meant by less work, and the latter explained that when work in
shipping was done for the day, the employee would be sent home instead of being
sent to help in other departments, which was the current practice?
The General Counsel contends that the foregoing statement of Bobby Daugherty
constitutes interference, restraint, and coercion within the meaning of Section
8(a)(1) of the Act. I do not agree. One reasonable interpretation of Daugherty's
remarks is that in view of higher wage rates under the Union, the Company, for
the sake of economy, would have to forgo the luxury of permitting employees to fill
out the day in other departments when their regular work was finished. So con-
strued, the statement is an expression of opinion and not coercive. In the absence
of any testimony indicating that a coercive connotation was intended when this
statement was made, I conclude that it did not violate Section 8(a) (1) of the Act.
2. In the latter part of May and in early June, Billy D. Allen, whose supervisory
status was admitted by Respondent's answer, questioned employees Wililam G. Jones,
Bruce Morris, and Blandford Newton as to whether they were for or against the
Union.8 So far as this record discloses, there had been no demand by the Union
for recognition by Respondent. Accordingly, the interrogation was unrelated to any
lawful objective of Respondent 9 and constituted interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act, unless Respondent is not respon-
sible for Allen's interrogation of employees. The evidence concerning Allen's in-
terrogation of employees was elicited by the General Counsel early in the hearing
without objection by Respondent that Allen's conduct was not binding upon it.
Toward the close of the hearing, Respondent moved to amend its answer to deny
Allen's supervisory status.'° No explanation was offered by Respondent, either as
to who was responsible for the admissions in its answer, or as to how the alleged
"mistake" occurred. I denied Respondent's motion to amend as untimely. More-
over, on the entire record, including Jones' testimony that Allen was his supervisor
on June 5, the date of the interrogation, Production Superintendent Lanham's ad-
mission that Allen was a "foreman trainee" in charge of the day shift on June 5
and that he made work assignments and looked after the shift, and the admission
in Respondent's answer of Allen's supervisory status, I am persuaded that at the
6 This and all dates hereinafter refer to 1961 unless otherwise specifically noted
61n view of the interrogation and threats by many of Respondent's supervisors herein-
after found, and its inherent implausibility, I do not credit the testimony of Daugherty,
who had complete control and direction of Respondent's plant operations, that he did
not discuss the Union with Respondent's supervisors
7 The foregoing is based on Noe's credited testimony.
g The foregoing is based on the uncontradicted and credited testimony of Jones and
Morris. Allen was not called by Respondent to testify
9 Cf. Blue Flash Express, Ino, 109 NLRB 591.
"Earlier in the hearing, I had permitted such an amendment in respect to the super-
visory status of Charles Bennett, and, as aforestated, I had also permitted Respondent
to withdraw its admission that the Union is a labor organization.
CARDINAL EXTRUSIONS COMPANY 621
time of such interrogation, Allen was a supervisor, and that, therefore, Respondent
is responsible for Allen's interrogation of employees regarding their union sympathies.
Accordingly, I conclude that Respondent thereby engaged in unfair labor practices
within the meaning of Section 8(a) (4) of the Act.
3. According to the uncontradicted and credited testimony of Respondent's former
employee, Gerald Smothers, in the latter part of May, as he was riding home with
Production Foreman Edwin Colvin, the latter asked him whether he had heard any
discussion of the Union. Smothers replied that he had heard such discussions among
the employees who worked with him," and asked Colvin not to say anything about
it. Colvin replied that Production Superintendent Lanham had said that if he heard
of any employee who discussed the Union or tried to get the Union in, such employee
would be discharged. Whether or not Lanham actually made such a statement to
Foreman Colvin, the utterance thereof by Colvin, an admitted supervisor, to Smothers
clearly restrained and coerced the latter in the exercise of Section 7 rights, and thereby
Respondent violated Section 8 (a) (1) of the Act.
4. According to the credited testimony of employee Chester S. Simpson, Jr., on
the morning of June 5 he was at the plant to pick up his paycheck. In the presence
of employees Roy H. Cumley and R. K. Daunhauer, Simpson asked Production
Superintendent Paul Lanham what he thought about the Union . Lanham obscenely
replied that the Union was inappropriate in a small plant like that of Respondent,
and that if anyone were caught trying to get the Union in, he would receive the
same treatment as that which "happened over at Alhom." According to Simpson,
the reference to what happened at Alhom was to a prevailing belief in the plant that
2 years earlier, employees were fired at Alhom, Respondent's parent company, for
trying to organize a union. Lanham denied making the foregoing statement to em-
ployees, but since I regard his testimony as generally unreliable,12 I do not credit his
denial. Accordingly, I conclude that by Lanham's implied threat that union pro-
ponents would be discharged, Respondent restrained and coerced employees in the
exercise of rights guaranteed by the Act, in violation of Section 8(a) (1).
5. On Saturday, June 3, shipping department employee Walter E. Noe and his
foreman, Dalton Riley, went after work to a nearby bowling alley. According to
Riley's own admission, Noe on that occasion asked Riley what he thought of the
Union and the latter replied that the Union might be all right in some places but not
at Respondent's plant, that the Company could not operate with or afford to have
a union in the plant, and would be forced to close down if the Union got in. I
regard Riley's statement to Noe as coercive of employees' rights to organize, and
therefore conclude that by the above threat, admitted by Riley, Respondent coerced
employees and engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
D. The discriminatory discharge of William G. Jones and Cletus Renfrow
On June 5 Respondent discharged employees Jones and Renfrow, allegedly for
incompetence. The complaint alleges that Respondent "terminated" these employees
because of their union adherence and sympathies in violation of Section 8(a)(3)
and (1) of the Act.
Jones was first hired by the Company in 1956 as a press loader in the production
department. He was fired 6 months later by Plant Superintendent Gene Daugherty
because, according to the latter , Jones "had no initiative , didn 't seem to have any
ability, [ and] seemed to act dumb at times." 13 Notwithstanding Jones' asserted
incompetence , in the fall of 1959 he was asked to come back to work for the Com-
11 Smothers worked on the production line as a puller and saw-table man with Jones,
Renfrow, and Offer.
"For example, Lanham testified that he worked days, generally left the plant at regu-
lar quitting time, and yet knew nothing of the Union's leaflet distribution described
above, or of its organizational efforts, until sometime after June 5, the date he recom-
mended the discharge of Jones and Renfrow Most of Respondent's officials and super-
visors, including its plant superintendent, admitted seeing the Union's leaflets being
distributed and all over the plant prior to June 5 Fabrication Foreman Bobby Daugherty
admitted that not much occurred in this small plant that did not quickly become a matter
of general knowledge . As noted above, employees and supervisors rode to work together
and were on a first-name basis with each other Under these circumstances, Lanham's
professed ignorance of the Union' s organizing campaign and leaflet distribution is beyond
belief.
13 Jones testified that be was advised that his discharge was for failure to call in when
absent Since Jones' first discharge by Respondent is immaterial to the issues herein,
I deem it unnecessary to resolve this conflict in the testimony.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany by Production Superintendent Lanham and was rehired as a puller.14 Except
for a layoff between Thanksgiving of 1959 and March 1960, because of a cutback in
production, Jones thereafter worked continuously for Respondent until his discharge
on Monday, June 5, 1961.
Jones' regular job as puller required him to grab the hot aluminum extrusions as
they came out of the press, pull them down a long, narrow table for a distance of
about 75 feet, and return to the press in time to snatch the next extrusion as it
emerged. Since the extrusions were 800° F. as they left the press, asbestos gloves
were worn by the pullers, and the temperature in that portion of the plant was about
130° F. during the summer months. As a consequence, Respondent admittedly ex-
perienced difficulty in recruiting and retaining employees in the job of puller. In
addition to Jones' regular job as puller, he also was utilized by Respondent as tempo-
rary substitute on practically all of the other operations in the production department
whenever vacancies occurred as a result of absences, vacations, or terminations.
However, in all such instances of substitution, Jones was compensated at his regular
rate as puller, the lowest paid of all classifications in the plant, and returned to his
regular job of puller when the temporary vacancy ended. On such temporary basis,
Jones performed the work of press loader, head stretcher, tail stretcher, saw-table
helper, and others. Jones' regular supervisor was Shift Foreman Bobby Tarter. On
occasions, Jones also worked under the supervision of Shift Foreman Edwin Colvin.
According to Jones' uncontradicted and credited testimony, both of his shift foremen
complimented him on his work as a puller, and his only reprimand, one by Tarter in
the fall of 1960, related to his failure to work fast enough to keep up with the flow
of metal to the saw table while he was substituting on that job. Other employees
who worked with and close to Jones, including former employee Gerald Smothers,
and present employees Bruce Morris and Robert Phelps, attested to Jones' compe-
tence as a puller.
Jones signed a union authorization card on May 26,15 and between that date and
his discharge, distributed union cards to other employees and spoke to employees
about joining the Union. On Monday, June 5, as Jones was completing his day's
work, he was called to Gene Daugherty's office and advised that he was fired.
According to Jones, Daugherty told him that the Company's policy was to terminate
employees who failed to earn a promotion in a specified time, that since Jones fell
within that classification, he was through; Jones replied that he had deserved pro-
motion, and protested that he was being discharged because of the Union; Daugherty
responded that he could not discuss the Union with Jones, that Jones knew what
he had been doing, that Jones had been "dealing with the wrong organization,"
that Jones had "been discussing this matter [the Union] with other employees,"
that such discussion and Jones were "no good for the Company," and that Jones
was "fired," and should "get out." Jones further testified that he then left Daugherty's
office, encountered Production Superintendent Lanham, and unsuccessfully attempted
to entrap the latter into admitting the discriminatory motivation for his discharge
by telling Lanham that he had been advised by Daugherty that Lanham had informed
Daugherty regarding Jones' union activities. Jones also testified that Lanham denied
the accusation.16 Jones then left the plant. Since Respondent's reasons for Jones'
discharge are substantially the same as those it asserts for Cletus Renfrow who was
fired the same day, I shall report on the latter's employment record with the Com-
pany before consideration of Respondent's asserted reasons for their dismsisal.
"The foregoing is based on Jones' credited testimony which was not controverted by
Lanham although the latter testified for Respondent Gene Daugherty testified that
Jones applied to and was rehired by then Production Superintendent Bill Van Sickle while
Daugherty was out of town, that Van Sickle later advised Daugherty that Jones had
concealed his prior discharge, but that Daugherty nevertheless agreed to give Jones an-
other chance. Daugherty's testimony in respect to the manner in which Jones was re-
hired is obviously hearsay, and further it is implausible and unworthy of belief in view
of the reasons asserted by Daugherty for Jones' earlier dismissal
is Respondent's Exhibit No 9-D
1e Jones frankly admitted on cross-examination that his statement to Lanham was
false , and that he was not averse "to telling a lie when it suits [his] purpose" He denied,
however, that his testimony under oath was included in such admission In context,
I do not regard the foregoing as conclusive on the question of Jones' veracity Tones'
tactic in respect to Lanham is a device frequently used by police and other investigators
to pry admissions from reluctant witnesses Notwithstanding Jones' foregoing admission,
and several minor inconsistencies between his testimony and his affidavit to the General
Counsel, I was favorably impressed with Jones' demeanor and testimony, and credit his
version of the exit interview
CARDINAL EXTRUSIONS COMPANY 623
Cletus Renfrow was also a puller who had been employed by the Respondent for
about 2 years. According to Smothers , Morris, and Phelps who also worked close
to Renfrow , he was a competent worker and they never heard any criticism
of his work . Plant Superintendent Gene Daugherty testified that Renfrow was tried
briefly on the job of stretcher , but that he asked to be and was reassigned to his
job as puller . Apparently , Renfrow never signed a union authorization card,17
and the record does not disclose either any activity by Renfrow on behalf of the
Union, or that he was in favor of it. Renfrow was discharged on Monday, June 5,
1961, as he entered the plant to go to work on the night shift
According to Plant Superintendent Gene Daugherty and Production Superintendent
Paul Lanham, Jones had been an incompetent employee throughout his tenure with
the Company. Daugherty testified that he had personally observed that Jones was
slow as a puller, frequently requiring the press operator to hold up the press while
waiting for Jones to return for the next piece, that he was slow and did not try to
keep up with the assembly line when he worked as a tail stretcher, and that he was
likewise very slow when he worked as a press operator. Daugherty testified that he
discussed Jones' deficiencies with Lanham on a number of occasions , but nevertheless
never personally reprimanded Jones or instructed any supervisor to do so. Lanham's
testimony regarding Jones' lack of competence was substantially the same as that of
Gene Daugherty . Although Lanham testified that on several occasions he spoke to
Jones regarding his shortcomings , he was vague as to when he did so, furnished no
details regarding such conversations and, as far as the record discloses , never warned
Jones that he would have to work faster or suffer the penalty of discharge. Indeed,
according to Lanham, although Jones' immediate supervisor, Bobby Tarter, com-
plained to him that Jones' work on the press was "no good," Lanham admittedly
said nothing to Jones, nor did he instruct Tarter to do so.
The testimony of Gene Daugherty and Paul Lanham in respect to Cletus Renfrow's
work was much the same. According to Daugherty, Renfrow was stupid and unable
to learn; he had been tried on the stretcher job, but had asked to go back to pulling.
Daugherty testified, "After [a] while we kind of get loaded with those kind of people."
Daugherty also testified that several months before Renfrow's dismissal , he had told
Lanham that Renfrow was too slow , he was not trying, and he was dangerous to work
with because "he burned so many people" by holding the hot extrusions up in the
air and dropping them on other employees ' arms, ears , and backs . Notwithstanding
the above, Daugherty admittedly never criticized Renfrow's work. On cross-
examination, Daugherty admitted that he saw Renfrow carelessly throw hot metal
only once, and that notwithstanding the seriousness of this incident , he did not either
fire Renfrow or even speak to him about it. None of the "many people" who
allegedly were burned by Renfrow were identified by Daugherty, and no employee
testified to being burned . Lanham's testimony regarding Renfrow was more or less
a repetition of Daugherty 's. Renfrow was slow as a puller, incapable of handling
other jobs , and "burn [ed] a lot of other people." None such were identified by him.
Lanham testified that he regarded his method of handling the hot extrusions as
dangerous , that he spoke to Renfrow about it almost 3 or 4 months before his dis-
charge , but that nevertheless Renfrow continued , is because "he was just naturally
clumsy." Lanham did not testify to any further reprimands or discussions with
Renfrow either in respect to careless or clumsy handling of hot metal , his burning
people, or his slow work . Neither Daugherty , Lanham , nor any other witness for
Respondent testified that Jones or Renfrow were ever warned that they would have
to learn to perform other operations efficiently, or suffer discharge.
Both Daugherty and Lanham admitted that the sudden dismissal of Jones and
Renfrow without warning did not result from anything unusual that either of these
employees did on their last day of work. Both Lanham and Daugherty testified
that the sudden decision to discharge Jones and Renfrow resulted from the fact that
there were four employees out in the production department as a result of vacations,
accident, and absence , that Jones was temporarily filling one such vacancy as press
operator with his usual "incompetence," that Renfrow was incapable of filling any of
the vacancies , and that on Lanham's complaint to Daugherty to the foregoing effect,
they decided to fire Jones and Renfrow and to replace them with more versatile and
competent employees . Accordingly , Daugherty testified , he called Jones into the
office, told him he was fired because the Company had to get someone more efficient
17 Although the General Counsel was directed to turn over to Respondent the union
authorization cards of all the employees who were alleged to be discriminatees and did
so, he had no card for Renfrow.
is Lanham did not specify whether Renfrow continued to burn people or only to handle
the hot metal carelessly.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and more trainable ; Jones protested that someone had been telling lies about his
connection with the Union and asserted that he had nothing to do with the Union;
and that Daugherty replied that he could not discuss with Jones whether he was
for or against the Union because it was against the law . In respect to Renfrow,
Daugherty testified that he called him into the office as he came in to work on the
night shift , told him that he was fired because the Company needed someone "more
efficient and more trainable," and that Renfrow merely responded that he "had
better get back down to Beaver Dam and watch those taters grow " because that was
all he would "have this summer."
I do not believe the testimony of either Daugherty or Lanham in respect to the
alleged incompetence of Jones and Renfrow or the asserted reasons for their sum-
mary dismissals without warning . I find it impossible to believe that Jones, having
once been fired for alleged incompetence , and rehired and retained to give him
"another chance," would have been tolerated for 11 years if he were as incompetent
and slow as Daugherty and Lanham would have me believe . Moreover , Renfrow's
continued employment by Respondent for 2 years despite his alleged carelessness
and clumsiness in handling the hot aluminum extrusions , and his burning "a lot of
people" is even more incredulous . I regard the continued employment of Jones
and Renfrow as pullers as wholly inconsistent with their asserted incompetence and
I credit the testimony of their fellow employees that their work was satisfactory.
Moreover , the reasons asserted for the sudden decision to discharge Jones and Ren-
frow are likewise wholly implausible and unworthy of belief. The job of puller
is physically exacting, hot, and unpleasant . Respondent has always had difficulty
in recruiting employees willing to stay on this job. Indeed , after the dismissal of
Renfrow and Jones , Respondent hired 12 persons in the course of a few weeks before
it succeeded in obtaining replacements for them who were willing to stay on the
job, and 8 of the new recruits quit on the day they were hired In view of the known
difficulty in recruitment , it is incredible that Respondent , already four employees
short, should dismiss two more employees and thus increase its personnel shortage,
merely because Jones and Renfrow could not adequately fill other vacancies. Sig-
nificantly Respondent admittedly then had in its employ and continued thereafter to
employ another puller , Oscar Oller , who also was unwilling and unable to perform
any of the other jobs in production . When asked to explain the disparate treatment
of Renfrow and Oller, both of whom had worked for Respondent about the same
length of time, Daugherty explained that Oller recognized his inability to do other
work, whereas Renfrow tried to do the job of stretcher before he requested that he
be reassigned to pulling. I regard the attempted explanation as unworthy of belief
and an exercise in pure semantics.
The sudden termination of these two employees without warning and without any
unusual act on their part to warrant dismissal , and the implausible and incredulous
reasons asserted therefor , persuade me that the reasons advanced for their discharges
are pretextual and were advanced by Respondent for the purpose of concealing the
true reasons therefor . In the case of Jones , the true reason is not difficult to per-
ceive. The Union was engaged in an organizing campaign . Jones was an active
supporter of the Union . Promotion Superintendent Lanham had threatened that
union adherents would be fired . Daugherty , although evasive at first, reluctantly
admitted that he was opposed to the union representation of Respondent 's employees.
Daugherty 's statements to Jones during the exit interview that Jones had been "deal-
ing with the wrong organization ," that Jones had "been discussing this matter [the
Union] with other employees ," and that such discussion and Jones were "no good
for the Company," clearly reveal that antiunion motivation was the real reason for
Jones' peremptory dismissal . The discharge of Renfrow presents a somewhat dif-
ferent question in view of his lack of membership or interest in the Union. The
solution to this question lies in the uncontradicted testimony of Chester S. Simpson,
Jr., an employee who was laid off on the same day, assertedly for lack of work. On
June 10. in a conversation with Supervisor Charles Bennett , the latter told Simpson
that the foremen had held a meeting on June 5 at a bowling alley, and had decided
whom to fire and whom to lay off because of union activities , and that Jones and
Renfrow had been fired because "they were old men [ in relative seniority]" and "it
would scare the hell out of the rest of them ." 19 Bennett was not called by Respond-
is Bennett's supervisory status was originally admittedly Respondent's answer, but as
noted above , the admission was withdrawn by an amendment to the answer which I
granted The record, however , shows that on June 5, 5 days prior to the above conversa-
tion , Bennett was made "leadman" in the fabrication department on the night shift, a
position previously held by Joe Downes whose supervisory status was admitted by Re-
spondent and never questioned. Moreover , the record shows that there is no other super-
CARDINAL EXTRUSIONS COMPANY 625
ent to testify, and no explanation was offered for the failure to call him . From the
foregoing it is quite apparent that Renfrow's discharge was effected by Daugherty
and Lanham to discourage the union activities of its remaining employees.
Additional evidence regarding Respondent's discriminatory motivation for the
discharge of Jones and Renfrow was furnished by former Foreman Edwin Colvin, a
witness for the General Counsel. Colvin had been discharged by Production Super-
intendent Lanham after he had given an affidavit to the General Counsel. Contrary
to that affidavit, Colvin testified that on the morning of June 5, the day Jones and
Renfrow were fired, Lanham asked Colvin to tell him the names of those who favored
the Union, that he was going to fire them, that Colvin named Jones as a union ad-
herent, that Lanham inquired about other employees, including Renfrow, and that
Colvin said he did not know about them. On cross-examination Colvin frankly
admitted the falsity of his first affidavit, testified that he was motivated in its execu-
tion by fear of discharge, admitted that he regarded Lanham as responsible for his
later dismissal, that he considered his discharge as unjustified, and that he was
motivated in his decision "to straighten things out" partly because of his animosity
to Respondent engendered by his dismissal. Notwithstanding the foregoing, I am
persuaded by Colvin's candor and demeanor, and because his testimony accords with
the credited testimony of Smothers and Simpson regarding like threats uttered by
Production Superintendent Lanham, that Colvin's testimony at the hearing was truth-
ful and I therefore credit it 20
For all the foregoing reasons, I find and conclude that Respondent discharged
Jones because of his membership in and activities on behalf of the Union, and
dismissed Jones and Renfrow to discourage the union adherence of Respondent's
remaining employees, and that thereby Respondent engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act zi
E. The discriminatory layoff of Chester S. Simpson, Jr., Roy H. Cumley, Francis L.
Nevitt, and Walter E. Noe
On June 5, the same day that Respondent discriminatorily discharged Jones and
Renfrow, it also laid off three buffers in the fabrication department, Simpson,
Cumley, and Nevitt, as they came in to work on the second shift, and on the follow-
ing morning, Respondent also laid off Noe, a helper in the shipping department. The
complaint alleges that these employees were also laid off to discourage the union
organization of Respondent's employees. Respondent, on the other hand, contends
that this reduction in force was necessitated by a seasonal decline in business which
reduced the quantity of metal to be buffed and the volume of its shipping.
All of the employees selected by Respondent for layoff, with the possible excep-
tion of Nevitt, had signed union authorization cards before their layoff.22 Simpson
had been especially active in the Union 's organizing campaign , having distributed
about six union cards to employees and solicited eight to join. On the day he was
laid off, Simpson had unfortunately discloesd to Foreman Lanham that he was
interested in the Union, by asking the latter what he thought of it, and Lanham,
as found above, had vehemently expressed his lack of regard for the Union, and
vision in the fabrication department at night other than that of the "leadman," that
Bennett directed employee McCoy's work , told him what to do , changed his jobs, ex-
amined his work , told him what material to scrap, and when to stop work and start
cleaning up. On the foregoing uncontroverted record, I find that on and after June 5,
Bennett was a supervisor within the meaning of the Act.
20 Baltimore Steam Packet Company, 120 NLRB 1521, 1523.
al also find that as alleged in the complaint , Respondent further engaged in inter-
ference , restraint , and coercion of employees in violation of Section 8(a) (1) of the Act,
by Daugherty 's statements to Jones during the exit interview , and by Supervisor Bennett's
statements to Simpson on June 10, 1961
22 The record is not clear regarding the date on which Nevitt signed a union card.
Nevitt did not testify . According to the testimony of Respondent 's supervisor, Joe
Downes , about a week after the layoff, Nevitt told him that he and the other laid-off
employees went to the union hall and "back dated " their union authorization cards In
respect to the employees other than Nevitt, Downes ' testimony was clearly hearsay, and
their union cards in evidence show no sign of alteration . Accordingly , in respect to their
cards, I do not credit Downes' testimony of "back dating ." Nevitt's card does appear to
have been altered as to date from June 5 to June 2 However, in view of my conclusion
hereinafter explicated that Respondent 's motivation for the layoff was to discourage the
union organization of all its employees , I regard the fact that Nevitt may not have
signed a union card before his layoff as immaterial.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened that union adherents would be discharged. Noe had also advised his
supervisor, Riley, on the Saturday preceding the layoff that he was for the Union
and had sent in a union authorization card 23 As found above, on the day of the
layoff, Production Superintendent Lanham asked Foreman Colvin for the names of
the employees who were in favor of the Union and threatened that such employees
would be fired. On this occasion, Colvin told Lanham that Simpson had inquired
about the Union, and, in view of Simpson's like inquiry of Lanham, the latter
obviously knew of Simpson's interest in the Union. Moreover, as found above,
Supervisor Bennett had told Simpson that the foremen had held a meeting on June 5
at which they had decided whom to fire and whom to lay off because of union
activities. In addition, according to Simpson's credited testimony, when he was
advised of his layoff by Daugherty, he protested that it was because of the Union,
and Daugherty replied, "Chester, the law forbids me to say but that might have
something to do with it." 24 All of the foregoing, as well as Plant Superintendent
Gene Daugherty's hostility to the Union, Respondent's discriminatory discharge of
two other employees that same day, the precipitate manner in which the decision
to lay off employees was made,25 and the timing of the discharges and layoffs coin-
cident with the Union's organizing campaign, establish, at least prima facie, that
Respondent was motivated by antiunion considerations in its decision to lay off the
four employees.
In view of my conclusion aforestated, it obviously becomes necessary to examine
the evidence adduced by Respondent in support of its contention that the layoff was
motivated by economic considerations. Respondent's President Edwards testified
that Respondent's business is seasonal, that there are slack seasons, generally at the
end and middle of the year, and that such slack periods lasted from 2 to 8 weeks,
generally about 6 weeks.26 The decision to reduce the work force was made by
Plant Superintendent Gene Daugherty. He testified that on Saturday, June 3, he
studied the Respondent's daily sales reports 27 and came to the conclusion that be-
cause of a drop in the footage of fabrication orders 28 a layoff of three buffers
and one employee in shipping would be necessary. Daugherty further testified
that on the following Monday, June 5, he separately called in his brother Bobby,
Respondent's fabrication foreman, and Dalton Riley, its shipping foreman, advised
them of the necessity for an immediate layoff,29 suggested they designate their least
efficient employees, that Bobby proposed Simpson, Cumley, and Nevitt, and Riley
designated Noe. According to Daugherty, the determination that three buffers
rather than other classifications in the fabricating department had to be dropped
was based on an analysis of Respondent's orders on hand. However, Respondent
did not produce the orders on which it assertedly made this determination. The
failure to do so compels the inference, which I make, that the orders if produced
would not have supported Daugherty's testimony in this respect.30 Moreover,
notwithstanding Daugherty's alleged decision that three "buffers" had to be dropped,
he testified first that he told his brother Bobby to designate three "people" for
layoff, later, when confronted with this apparent inconsistency, Daugherty was unsure
23 The foregoing is based on Noe's testimony, which I credit. Riley, although admitting
that he did not recall the entire conversation, denied that Noe had told him be belonged
to the Union or wanted a union in the plant In view of Riley's admitted uncertainty
about the conversation, I do not credit his denial
24 As alleged in the complaint, I find that by this statement, Respondent restrained
and coerced employees in the exercise of their rights guaranteed by the Act.
25The employees selected for layoff received no advance notice, but were apprised of
their termination only as they reported for work Because of its sudden decision, Re-
spondent paid the laid-off employees for that day although they performed no work
26 Edwards also attempted to testify orally regarding the generally poor financial condi-
tion of Respondent throughout the relatively short period of its existence, but I rejected
this testimony because I regard the Company's records as the best evidence of its financial
condition, and because I regard such testimony as immaterial and irrelevant, in view of
Respondent's contention that the layoff was occasioned by a decline in business during
May 1961, and thus was not based on the state of Respondent's finances
n Respondent's Exhibit No. 4 and General Counsel's Exhibits Nos 6 and 7
28 Daugherty testified that the volume of business in fabrication is determined by the
quantity of the footage rather than dollar volume.
29 Riley, a witness for Respondent, denied that Daugherty told him the layoff would
occur immediately Riley testified that Daugherty said that "if business doesn't pick
up . . he would have to lay someone off "
80 See 2 Wigmore, Evidence ( 3d ed. ) ; sec. 285; see also Wh4tin Machine Works, 1610
NLRB 279, 285.
CARDINAL EXTRUSIONS COMPANY 627
whether he said three people or three buffers , then he testified he must have said
three buffers , and finally when pressed further, Daugherty testified that he did not
recall what he said to his brother in this regard . Daugherty 's testimony in respect
to the need for the layoff was likewise contradictory . He first testified that he based
his decision on the drop in orders for fabrication footage during the last 2 weeks
in May. He testified , "Anytime we have a consistent 2-week drop in the amount of
business such as we had in this case we determine that business is getting too slack
and we try to determine from the sales reports and from the orders on hand how
many people we are going to need to operate within the immediate future." Then,
in contradiction of the above , he denied that every time there is a substantial 2-week
drop in orders , Respondent effects a reduction in force. Daugherty admitted that
(1) the Company 's sales records in evidence do not reflect how much work for
buffers Respondent had on hand at the time of the layoff ; ( 2) there was a time
lag between orders, production , and delivery, depending on the backlog of orders;
and (3) there was nothing in the record from which there could be computed the
number of days of work on hand in fabrication , or with which to compare such
backlog with periods of full employment . It is, therefore , quite obvious that Re-
spondent has failed to come forward with any objective evidence with which to
assess its asserted contention that the layoff was motivated by economic necessity,
and, since I regard Plant Superintendent Daugherty as a witness whose testimony
is generally not trustworthy , I do not credit his subjective testimony regarding the
need for the layoff.
Moreover, the sales records in evidence , although they show a sales drop in fabri-
cation footage during the last 2 weeks in May , nevertheless negate the asserted
necessity for the layoff . Thus, the total of the fabrication orders for the month
of May-543 , 162 feet-was greater than that in the preceding month, April, when
the total was 508,829 feet and, indeed , was greater than such sales in all but 3
months in 1961.31 Also significant in this regard is the fact that Respondent 's fabri-
cation sales in the week immediately preceding the layoff rose from 59,928 feet,
the week before the layoff, to 76,198 feet. Finally, a comparison of the sales
figures at the time of the layoff and those at the time when the laid-off buffers were
offered reemployment because of an alleged increase in business , discloses that
Respondent 's sales were greater at the time of the layoff than when it recalled the
laid-off employees.32 Thus, notwithstanding the asserted seasonal nature of its
business , the meager records which Respondent did produce negate the contention
that a layoff was necessary , and quite obviously also refute that the decline in busi-
ness during the last 2 weeks in May was so drastic as to require the sudden ter-
mination of employees without notice and as they reported for work . All of the
foregoing persuades me that the assertion that the layoff was necessary because of a
decline in business is merely another pretextual device on the part of Respondent
to conceal the antiunion motivation for its sudden reduction in staff.
I am further persuaded that the motivation for the layoff was based on anti-
union considerations by the implausibility of Respondent 's testimony in respect to
the manner in which the four employees were selected for layoff. Early in the
hearing, Respondent's counsel asserted that Respondent 's selection of employees for
layoff was based on seniority and relative competency . Nevertheless , although both
Simpson and Noe had greater seniority than other employees in their classifications
and were admittedly competent, employees with lesser seniority were retained.
However, in the case of Cumley and Nevitt , their relatively low seniority was one of
the factors asserted by Respondent for their selection for layoff. The reliance on
seniority in the selection of Cumley and Nevitt for termination , and the failure to
apply seniority in the case of Simpson and Noe, conclusively indicate that Respond-
ent utilized seniority as a basis for layoff only when it coincided with its selection
for layoff made as a result of other considerations.
According to Gene and Bobby Daugherty , the reasons for Simpson's designation
for layoff were: ( 1) He was not dependable , he habitually gambled on pinball ma-
chines, and Respondent never knew when he would wind up in jail; and (2) he
Only February, March, and September fabrication sales were greater
Chester S Simpson, Jr., was notified by Respondent to return to do special fabrica-
tion work on about August 5, when, according to Gene Daugherty , Respondent started
to get a lot of such work . Contrary to this testimony , Respondent 's sales records show
no fabrication sales at all between August 3 and 18 , inclusive Roy H Lumley and
Francis L Nevitt were notified to return to their old jobs as buffers on August 30
Respondent 's fabrication sales for that week , 64,163 feet, were less than the sales in the
week in which the three buffers were laid off for alleged lack of work.
641795-63-vol. 136-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frequently irritated other employees, kept them upset, and slowed down their pro-
duction by counting their work and comparing their performance with his own.
Both Daughertys admitted that they had no complaint regarding Simpson's work.
Bobby Daugherty testified that on occasions, Simpson's production would drop when
he was worried about finances or other matters unrelated to Respondent's business.33
However, Simpson testified without contradiction that he was assigned the hardest
buffing jobs because he could produce the best polish on the aluminum which he
buffed. Moreover, Simpson was recalled by Respondent on about August 14 and
assigned to special fabrication work, a job which admittedly required greater skills
than that of buffing. It is thus quite apparent that Simpson was selected for layoff
despite his greater seniority and competence, the factors allegedly used in selection
of employees for layoff. In respect to Simpson's alleged irritation of other employees
by comparing their production with his, not a single employee was called who so
testified, and I therefore do not credit the hearsay testimony of the Daughertys in
this regard. Obviously, in the light of Simpson's recall by Respondent to a better
job, none of the factors asserted as the reason for his layoff were seriously regarded
by Respondent. I therefore conclude that the reasons asserted by Respondent for
Simpson's selection for layoff were not the true reasons therefor.
Noe was an employee whom Gene Daugherty regarded as potential foreman
material He had worked at various jobs in the production department, but because
of personal disagreement with his foreman, Colvin, had asked to be transferred from
his job of extrusion press operator to the shipping department. His work in the
latter department was admittedly competent, and he had more seniority than another
shipping department employee who was not laid off. Thus, like the case of Simpson,
Noe was laid off despite his greater seniority and his admitted competence. Gene
Daugherty testified that he selected Noe for layoff because Foreman Dalton Riley
told him he was not as fast as the other employees in shipping, and because Daugh-
erty was disappointed in Noe because he had requested a transfer to shipping, a
lower paying job, and thus was not utilizing his full capabilities. I regard the latter
reason for Noe's selection for layoff as implausible, and, in the absence of objective
evidence that Noe's work was slower than the others, in the light of the entire record,
I do not credit the subjective testimony that he was slower than all the other shipping
department employees.
In respect to Cumley, the reason asserted by Gene and Bobby Daugherty for his
selection for layoff was that he was lazy and spent too much time at the water foun-
tain, but cross-examination revealed that this failing, even if true which I doubt, was
corrected long before his layoff, and did not deter Respondent from later giving
Cumley a raise in pay or from recalling him on September 9 to his former job as
buffer. Bobby Daugherty also testified that Cumley's production was low, but in
view of the asserted destruction of the production records shortly before Cumley's
layoff and his subsequent reinstatement to the same job, I do not credit his sub-
jective testimony in this respect.
According to Gene and Bobby Daugherty, Nevitt was selected for layoff, not-
withstanding that he was a "pretty good buffer" and "worked good," because of an
incident which occurred a month before his layoff.34 This incident was obviously
not the reason for Nevitt's selection for layoff, since Respondent continued Nevitt's
employment, gave him an increase in pay, and offered him reinstatement after the
layoff. I therefore do not credit the Daughertys' testimony in regard to this reason
for Nevitt's selection for layoff.
I am also persuaded that the motivation for the layoff of these four employees was
based on antiunion considerations because of the failure of Respondent to offer any of
the laid-off employees an opportunity to fill two job vacancies for which Respondent
hired two new employees on the very same day it laid off the four. These two jobs
were in a new remelting department which Respondent instituted on June 5. The
two jobs consisted of loading scrap aluminum into a melting furnace and casting
the molten metal into ingots. The rate of pay for these new jobs was to be $1.65
per hour after a short training period, the same rate which Respondent paid its
buffers, and 10 cents more than the rate which Noe received in the shipping depart-
ment. During the training period, the rate for the new jobs was $1.45 per hour.
Daugherty testified that he did not offer these jobs to the laid-off employees because
a3 The daily production records in the fabrication department were discontinued and
the existing records assertedly were destroyed by Respondent shortly before the layoff.
34 On this occasion, Nevitt was reprimanded for taking the night off because of alleged
illness, but instead of going home, borrowed a car, got drunk, and returned to the plant
in that condition later that night.
CARDINAL EXTRUSIONS COMPANY 629
he thought the layoff would be temporary. I regard this testimony as incredible in
the light of President Edwards' testimony that Respondent's slack periods generally
last 6 weeks, and sometimes continue for 8 weeks. Obviously, any employee faced
with a period of unemployment of such duration would gladly work at a slightly
reduced rate rather than be without income at all.35 Daugherty's further attempted
explanation, that Respondent had to train the people in the remelting department
to peak efficiency as soon as possible, is inconsistent with Respondent's professed
desire for versatility in its employees, and I therefore do not credit it. A stable
labor force is quite obviously the desire of good management, and absent other
considerations, I regard it highly unlikely that Respondent would not have offered
these two jobs to its present employees, unless it was motivated by a desire to be
rid of them.
All of the foregoing considerations persuade me that the layoff of Simpson, Cumley,
Nevitt, and Noe was based on Daugherty's hostility to the Union, and his belief in
their union adherence obtained through the interrogation of employees and super-
visors as found above, and by virtue of the fact that everything that occurred in the
Respondent's plant quickly became a matter of general knowledge. Accordingly,
I conclude that by laying off these four employees by reason of Respondent's belief
that they were members of or in sympathy with the Union, Respondent thereby
discriminated against employees and discouraged membership in the Union in viola-
tion of Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminated against William G. Jones, Cletus
Renfrow, Chester S. Simpson, Jr., Roy H. Curnley, Francis L. Nevitt, and Walter
E. Noe, I will recommend that the Respondent be ordered to offer Jones, Renfrow,
Nevitt,36 and Noe immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of earnings they may have suffered because
of the discrimination against them by the payment to each of a sum of money equal
to the amount he normally would have earned as wages from the date of his discharge
or layoff, as the case may be, to the date of the offer of reinstatement,37 less his net
earnings during said period, with backpay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294.
I will recommend that the Respondent also make Simpson and Cumley whole for
any loss of earnings they may have suffered because of the discrimination against
them, by the payment to each of a sum of money equal to the amount he normally
would have earned as wages from the date of his layoff to the date when he was
reinstated by Respondent, less his net earnings during said period computed quarterly
in the same manner as above.
I shall also recommend that the Respondent make available to the Board upon
request, payroll and other records to facilitate the determination of the amounts due
under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall there-
35 In fact, Simpson's layoff was for more than 2 months, Cumley's lasted 3 months, and
Noe was never recalled to work. Nevitt was offered reinstatement by registered letter,
return receipt requested, at the same time as Cumley, but the post office never returned
a signed receipt, Respondent never made inquiry as to whether Nevitt had received notice
of his recall, and thus the record does not disclose whether Nevitt ever received the letter.
3e Jay Company, Inc., 103 NLRB 1645, 1646-1647
"'In the case of Nevitt, the backpay period shall be from the date of his layoff until
September 5, 1961, when, according to Respondent's apparently undelivered letter, he
was offered reinstatement Jay Company, Inc, supra
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. District 50, United Mine Workers of America , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discouraging membership in a labor organization through discrimination
in employment , and by interfering with , restraining , and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a) (3)
and (1) and Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Orkin Exterminating Company of Kansas, Inc. and Taxicab,
Produce Employees , Ambulance and Funeral Drivers, Local
Union No. 587, affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 17-CA-1817. March, 28, 1962
DECISION AND ORDER
On December 18, 1961, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, 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 Intermediate Report
attached hereto. He also found `hat Respondent had not engaged in
certain other unfair labor practices, and recommended dismissal of
the complaint pertaining thereto. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
1In our opinion , Chairman MCCulloch's reliance on Snow & Sons to support his con-
clusion that Section 8(a) (5) was here violated is misplaced . Member Rodgers dissented
in the Snow case and would not have found a violation of Section 8(a) (5) because even
though the union had been designated by a majority of employees in a private card
check, there was no evidence that the employer was motivated by bad faith in requesting
136 NLRB No. 59.