Charles Batchelder Co.

National Labor Relations Board - Board Decisions

Jun 25, 1980

250 N.L.R.B. 89 (N.L.R.B. 1980)

CHARLES BATCHELDER COMPANY
Charles Batchelder Company, Inc. and Steven Car-
michael and Edward J. Fleming Cases 2-CA-
15639 and 2-CA-15641
June 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On June 13, 1979, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, l and conclusions of the Administrative Law
Judge, as modified below.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by promising and granting wage increases to dis-
courage union activity. However, for the reasons
set forth below we find, contrary to the Adminis-
trative Law Judge, that Respondent also violated
Section 8(aX3) and (1) by discharging employee
Edward J. Fleming and by refusing to reemploy
Steven Carmichael.
Employees Fleming and Carmichael were re-
sponsible for the May 8, 1978, initial approach to
the Union; this had been inspired, at least in part,
by Respondent's decision to defer until September
1978 a wage increase the employees expected on
May 1 of that year. Fleming and Carmichael ac-
tively promoted the Union among the employees
and sought to have employees on all three shifts
sign authorization cards. Respondent became aware
of the union campaign among its employees not
later than May 12, as is established by the fact it
held a supervisors' meeting late that morning to
discuss the union activity that was taking place.
1. The discharge of Edward J. Fleming
Early in the afternoon of May 12, employee
Emanuelle drove his forklift into an area close to
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
250 NLRB No. 9
Fleming's workplace in the furnace area. Fleming
asked Emanuelle if he was going to the May 14
union meeting. Emanuelle replied he was not and
started to leave, but Fleming, also operating a fork-
lift at the time, blocked his egress and exclaimed:
"What do you mean you're not going .... It's for
your own benefit." Emanuelle's response was that
he had better things to do and that nothing would
be accomplished anyhow. Fleming replied some-
thing had already had been accomplished and
added: "If you don't like it, I'll take you out in the
parking lot and kick your ass .... " He then let
Emanuelle leave.
Rather than returning to his job, Emanuelle im-
mediately related the incident to Armand Plourde,
the shop foreman. He in turn reported it to Vice
President of Operations Beilin, who called Eman-
uelle to his office to repeat what had occurred.
After Emanuelle's departure, Plourde and Beilin
discussed Fleming's work. Plourde described Flem-
ing as a fair worker with an absentee problem.
Plourde recommended he be discharged; Beilin
agreed. Plourde then called both a policeman2 and
Fleming into his office, confronted Fleming with
Emanuelle's charges, rejected Fleming's denial of
Emanuelle's claims, made some references to Flem-
ing's asserted absentee problem, and then dis-
charged him. Fleming was escorted out of the
plant by the policeman. However, sometime later,
Respondent offered Fleming reemployment if he
would withdraw his charges filed in this proceed-
ing. 3
The Administrative Law Judge credited Re-
spondent's explanation for the discharge of Flem-
ing and, on the basis of such credibility finding,
concluded that Fleming was properly discharged
solely for making "a threat of bodily harm . . . to
an employee who had expressed his preference to
refrain from union activity." However, the ques-
tion of motivation where an alleged unlawful dis-
charge is involved is not one to be answered by
crediting or discrediting a respondent's professed
reason for the discharge, and thus we cannot
accept every credibility finding by a trier of fact as
dispositive of that issue. Rather, that question is
2 During their off-hours, local police were free to take jobs in their
regular uniforms as private security officers
. In his brief to the Board, the General Counsel requests that the
Board find that Respondent violated Sec. 8(a(XI) of the Act by condition-
ing its offer of reemployment on Fleming withdrawing his charges filed
with the Board. However, such conduct was not alleged to be unlawful
prior to the request in the General Counsel's brief (The General Coun-
sel's motion at the end of the hearing to conform the pleadings to the
evidence is insufficient to add to the complaint a new allegation of specif-
ic unlawful conduct ) Consequently, Respondent had no notice that the
legality of the conduct was in issue, thus had no reason to defend against
any such allegation, and the matter was not in fact litigated. Accordingly,
the General Counsel's request for an additional 8(a)(1) finding is neither
timely nor otherwise properly raised and is, therefore, denied
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one to be resolved by a determination based on
consideration and weighing of all the relevant evi-
dence. Consequently, we are not faced here with
the task of determining whether the various cir-
cumstances surrounding Fleming's discharge are
sufficient to upset the Administrative Law Judge's
credibility finding that Respondent's witnesses
were testifying truthfully when they stated Flem-
ing was discharged for his threat to Emanuelle. In-
stead, we must decide whether those circumstances
support the conclusion urged on us by the General
Counsel that Fleming was discharged for unlawful
reasons, rather than for the lawful reasons ad-
vanced by Respondent. Having carefully consid-
ered the various relevant factors, we find that the
Administrative Law Judge erred in his conclusion
concerning Fleming, for substantial record evi-
dence compels the finding that Respondent seized
on the alleged threat and also Fleming's absentee-
ism to rid itself of one of the two leading union ac-
tivists in the plant.
First, Fleming was a long-term satisfactory em-
ployee, holding an important, high-rated job-that
of furnace operator-and he received some recog-
nition from Respondent by being appointed safety
director in 1977. Second, the decision to discharge
Fleming, assertedly based primarily on his threat to
Emanuelle, was made without affording Fleming
an opportunity to present his side of the encounter
first.4 Third, Fleming's absentee record, which was
raised to help justify the discharge, was no worse
than the records of employees who were not dis-
charged, and Fleming had never been warned that
his absences were excessive or that they threatened
his job.5 Finally, we deem it unlikely that, in the
circumstances, the stated threat would be viewed
to be such egregious misconduct-if misconduct at
all-as to cause the summary dismissal of a valued
employee in an essential job. Thus, taken in con-
text, Fleming's statement to take Emanuelle to the
parking lot to "kick his ass" was essentially no
more than the angry statement expressed in tough
talk of an employee stating his displeasure and frus-
tration at a coworker's rejection of his efforts in-
4 Respondent contends that Plourde and Beilin reached only a tenta-
tive conclusion to discharge Fleming before Fleming was called into
Plourde's office for the exit interview. This claim, as the General Counsel
points out, is belied by Plourde's having a policeman present at the inter-
view to escort the discharged employee from the plant. It surely would
be doubtful at best to conclude that Plourde would call in the policeman
prior to having decided on a course of conduct that might warrant the
policeman's presence.
I The Administrative Law Judge concluded that Fleming's absentee
record, which was raised at the exit interview, played no part in the deci-
sion to discharge but was raised by Plourde only to provide further justi-
fication for a decision reached on the other ground-the threat of bodily
harm. The fact that Plourde felt it necessary to provide a justification for
a discharge assertedly based on perfectly lawful grounds is further evi-
dence that the asserted reasons for the discharge were not the real rea-
sons.
tended to benefit all employees. There is nothing in
the record to suggest that Fleming's language was
intended to be, or reasonably could be, taken liter-
ally. Fleming did not attempt to arrange any meet-
ing in the parking lot for an encounter; he simply
made his comment and that ended the incident.
Further, there was no background of any union-re-
lated violence and no evidence Fleming had ever
engaged in violent conduct or that Emanuelle6 or
Respondent had any reason to believe he would.
And certainly Respondent's subsequent offer of
employment shows that it did not view Fleming
disqualified for employment as an individual given
to violence or violent threats. Consequently, we
find, in view of the foregoing, that the reasons
given by Respondent for Fleming's discharge were
wholly pretextual and that Fleming was in fact dis-
charged because of his prounion stand. According-
ly, we find that Respondent in discharging Fleming
violated Section 8(a)(3) and (1) of the Act.
2. Refusal to reemploy Steven Carmichael
According to testimony credited by the Adminis-
trative Law Judge, employee Carmichael, having
heard of Fleming's discharge shortly after it hap-
pened, confronted Respondent's foreman, Armand
Plourde, by stating, "If Fleming is let go, I am
leaving too." Plourde replied, "If you walk out
now don't bother to come back." Carmichael re-
sponded with "O.K." and left. Approximately 20 to
30 minutes later, Plourde received a telephone call
from Carmichael in which Carmichael said, "I
want to apologize for my hasty decision, and see if
I can come back to work." In response Plourde an-
swered, "I got to think about it.... Call me back
Monday morning." Plourde testified that he
thought the matter over during the ensuing week-
end and, taking into consideration that Carmicheal
had quit on one prior occasion, he decided that
Carmichael's practice of quitting made him "use-
less." Consequently, on Monday when Carmichael
telephoned, Plourde told him not to return to
work.
From the foregoing facts the Administrative
Law Judge found that Carmichael's discharge was
solely the result of his quitting on May 12 and was
not the result, even in part, of his activities on
behalf of the Union. We disagree.
Without question Carmichael quit and was not
discharged on May 12. However, Respondent
could not lawfully deny him reemployment for
union-related reasons, 7 which were, we believe, the
I Fleming was not a stranger to Emanuelle, and on occasion Fleming
had driven Emanuelle to work.
? Phelps Dodge Corporation v NL.R.B., 313 U.S. 177 (1941).
90
CHARLES BATCHELDER COMPANY
basis for the refusal to take him back on May 15.
Thus, Carmichael began working for Respondent
in 1973, was a satisfactory employee, and on May
12 held the responsible position of furnace opera-
tor. During his lengthy employment history Carmi-
chael had previously quit only once-that was in
1976 and at that time he gave 2 weeks' notice of
his intention to leave. Consequently, we do not
have here the practice of quitting which Respond-
ent assertedly relied on in refusing to rehire Carmi-
chael; nor do we have any rational explanation or
other showings disclosing how or why the two iso-
lated quits-one of which lasted no more than a
half hour-rendered a good employee "useless." In
sum, the situation is one in which shortly after he
became engaged in union activity and shortly after
Fleming, the only other union activist, was unlaw-
fully discharged, Carmichael, a satisfactory em-
ployee for many years, was denied reemployment
for a wholly insubstantial reason. 9 In these circum-
stances, we find the reason given for the refusal to
be pretext and that Carmichael was refused reem-
ployment because of his prounion activity. Accord-
ingly, we further find that Respondent by refusing
to reemploy Carmichael on May 15, 1978, violated
Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affirma-
tive action in order to effectuate the policies of the
Act.
We shall order that Respondent offer Edward J.
Fleming and Steven Carmichael immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, and
make them whole for any loss of pay they may
have suffered as a consequence of the discrimina-
' Thus, for example, there is no contention or showing that Carmi-
chael's position was filled at the time he was denied reemployment on
May 15.
9 The Administrative Law Judge points to the possible deleterious ef-
fects Carmichael's May 12 conduct could have had on Respondent's op-
erations as justifying the refusal to reemploy him to his position of fur-
nace operator. However, Respondent did not advance any such reason as
a cause in whole or in part of its refusal to reemploy Carmichael.
Contrary to the dissent, in the cases of Fleming and Carmichael we are
not substituting our judgment for Respondent's in deciding what consti-
tutes a proper ground for discharge or refusal to rehire. Nor do we rest
our result on any determination that Respondent's actions were so unduly
harsh that they must have been discriminatorily motivated. Instead, we
have evaluated all the circumstances and factors in the case, and have
concluded that the reasons asserted by Respondent for its actions were
not the real reasons, but were pretexts, and that the true reasons were
discriminatory The fact that the Administrative Law Judge "credits" the
self-serving statements of Respondent about this ultimate fact does not,
contrary to our colleague, end our inquiry on this issue. Cf. NL.R.B. v.
Pacific Grinding Wheel Co., Inc., 572 F 2d 1343, 1347 (9th Cir. 1978).
tion against them by payment to them of a sum of
money equal to that which they would have nor-
mally earned as wages from the date of the dis-
crimination against them1 o to the date of such offer
of reinstatement to Fleming or of employment to
Carmichael less their net earnings during said
period. Said backpay and interest thereon is to be
computed in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 1
CONCLUSIONS OF LAW
i. The Respondent, Charles Batchelder Compa-
ny, Inc., is an employer within the meaning of Sec-
tion 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Local 1040, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Edward J. Fleming and by re-
fusing to reemploy Steven Carmichael because
they engaged in protected union activity, Respond-
ent violated Section 8(a)(3) and (1) of the Act.
4. By promising and granting benefits to induce
employees to refrain from engaging in union activi-
ty, Respondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Charles Batchelder Company, Inc., Newton, Con-
necticut, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging its employees or refusing to
reemploy former employees because of their union
activities.
(b) Promising or granting wage increases or
other benefits for the purpose of inducing employ-
ees to refrain from engaging in union activity.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
'O In the case of Fleming the date of the discrimination is May 12,
1978, and for Carmichael May 15, 1978
"L See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1902)
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Edward J. Fleming and Steven Carmi-
chael immediate and full reinstatement to their
former positions or, if those positions are no longer
available, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole for any loss of earnings they may have suf-
fered as a result of the discrimination against them
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its place of business in Newton, Con-
necticut, copies of the attached notice marked
"Appendix."' 2 Copies of said notice, on forms pro-
vided by the Regional Director for Region 2, after
being duly signed by a representative of Respond-
ent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER TRUESDALE, concurring in part and dis-
senting in part:
Like my colleagues, I would affirm the Adminis-
trative Law Judge's finding that Respondent violat-
ed Section 8(a)(1) of the Act by promising and
granting wage increases to discourage union activi-
ty. Unlike my colleagues, however, I also would
affirm that portion of the Administrative Law
Judge's Decision which dismisses the allegations
that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employee Edward J. Flem-
ing and by refusing to rehire employee Steven Car-
michael. As more fully set forth in his Decision,
the Administrative Law Judge found that Respond-
ent lawfully discharged Fleming because he had
threatened a coworker with bodily harm when the
coworker indicated he preferred to refrain from
union activity. The Administrative Law Judge fur-
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
ther found that Respondent was under no obliga-
tion to rehire Carmichael who had tendered his
resignation and walked off the job in protest of
Fleming's discharge. 3
The General Counsel argues that Respondent's
asserted reasons for its action were pretextual and
offered testimony by Fleming and Carmichael to
support its claim that Respondent's actions had
been discriminatorily motivated. However, the Ad-
ministrative Law Judge, who had the opportunity
to observe all of the witnesses, discredited Fleming
and Carmichael and found Respondent's explana-
tion for its actions was plausible and credible. In
the absence of any evidence that Respondent had
ever condoned the type of behavior engaged in by
Fleming or Carmichael and the lack of any credi-
ble corroborating testimony, the Administrative
Law Judge found that the General Counsel had
failed to establish that the discharge and refusal to
rehire had been pretextual and unlawfully motivat-
ed. In such circumstances, I agree with the Admin-
istrative Law Judge's observation that the only
grounds for finding Respondent's actions to be dis-
criminatory entails "a naked substitution of judg-
ment for that exercised by management."
In reversing the Administrative Law Judge, my
colleagues have done just that; they have substitut-
ed their judgment for that of Respondent's officials.
They surmise that the discharge and refusal to
rehire were overreactions and were unduly harsh
and therefore must have been discriminatorily mo-
tivated. In my view, such an analysis is based upon
unsupported inferences and is without record sup-
port. Accordingly, for the reasons set forth in the
Administrative Law Judge's Decision, I dissent
from my colleagues' findings that Respondent un-
lawfully discharged Fleming and refused to rehire
Carmichael.
i3 In view of the finding that Fleming had been discharged for engag-
ing in unprotected activity, Carmichael's conduct in support of Fleming
was also unprotected.
APPENDIX
NoTIICI TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represent-
ed by their attorneys and afforded the opportunity
to present evidence in support of their respective
positions, it has been found that we have violated
the National Labor Relations Act, as amended, in
certain respects and we have been ordered to post
this notice and to carry out its terms.
92
CHARLES BATCHELDER COMPANY
WE WILL NOT discharge you or refuse to
reemploy you for engaging in union activities.
WE WILL NOT announce or grant benefits to
you to dissuade you from engaging in union
activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist Local 1040, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization, to bargain
collectively through representatives of their
own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from
any and all such activities.
WE WILL offer Edward J. Fleming and
Steven Carmichael immediate and full rein-
statement to their former positions or, if those
positions are no longer available, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges
previously enjoyed.
WE WILL make Edward J. Fleming whole
for any loss of earnings he may have suffered
as a result of our having unlawfully discharged
him for engaging in union activity, plus inter-
est, and make Steven Carmichael whole, with
interest, for any loss of earnings he may have
suffered as a result of our refusing to reemploy
him because he engaged in union activity.
CHARLES BATCHELDER COMPANY,
INC.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: A
hearing was conducted in the above-captioned proceed-
ing on January 29 and 30, 1979, on an original unfair
labor practice charge filed on May 22, 1978, and a con-
solidated complaint issued on June 30, 1978, which, as
amended, alleged that Respondent independently violat-
ed Section 8(a)(1) of the Act by creating the impression
of surveillance and by promising and granting wage in-
creases to discourage union activity. The complaint fur-
ther alleged that Respondent violated Section 8(a)(3) and
(1) of the Act on May 12, 1978, by discharging its em-
ployees Carmichael and Fleming, the Charging Parties
herein, in reprisal for their union activity. In its duly
filed answer, Respondent denied that any unfair labor
practices were committed. Following close of the hear-
ing, briefs were filed on behalf of the General Counsel
and Respondent.
Upon the entire record in this proceeding, including
my opportunity to observe directly the witnesses while
testifying and their demeanor, and upon consideration of
the post-hearing briefs, it is hereby found as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Connecticut corporation with a princi-
pal place of business in Newtown, Connecticut, from
which it is engaged in the smelting and manufacture of
aluminum ingots. In the course and conduct of said oper-
ation, Respondent annually sells and ships from its plant
goods and materials valued in excess of $50,000 directly
to points outside the State of Connecticut.
The complaint alleges, the answer admits, and I find
that Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Local 1040, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR L ABOR PRACTICES
A. Background
This proceeding relates to an initial organization cam-
paign, as to which, according to the General Counsel,
Respondent, in swift reaction, terminated Steven Carmi-
chael and Edward Fleming, the employees responsible
for the advent of the Union, under conditions proscribed
by Section 8(a)(3) and (1) of the Act. Also involved are
independent 8(a)(l) allegations based on surveillance of
union activity as well as the promise and grant of wage
increases in order to induce employees to withdraw their
support from the Union.
Respondent's basic operation involves the salvaging of
aluminum from industrial scrap. The plant, with a work
force numbering some 35 employees, operates on a three-
shift basis, with employees having no history of union
representation.
Historically, employees received annual wage in-
creases each year on May 1. However, in April 19781
employees were notified that expected annual increases
would be deferred until September, and made retroactive
to May 1.2 Dissatisfied with this turn of events, Steven
Carmichael, at the suggestion of fellow employee
Edward Fleming, on Monday, May 8, contacted the
Union by telephone, and later met with its representa-
tive, Edward lulo. The latter provided Carmichael with
blank authorization cards for distribution to employees at
the plant. On that occasion, Carmichael signed such a
I Unless otherwise indicated, all dates refer to 1978
H Based on the credited testimony of Ronald Beilin. Respondent's xlce
president in charge of operations To the extent inconsislent therewith,
the testimony of Fleming and Carmichael is rejected
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card and agreed to afford lulo an opportunity to meet
w;th employees.
That same Monday evening, Carmichael briefed Flem-
ing as to what transpired with Iulo, and they agreed to
embark upon an organizational effort. Pursuant thereto,
Fleming and Carmichael, during that week, discussed the
Union with employees on all three shifts and solicited
signatures to authorization cards. Carmichael also con-
sulted with employees as to their interest in, and when
they could attend, a meeting with Iulo. Said meeting was
arranged and scheduled for Sunday, May 14, at the
union hall.
Overt signs of union activity became manifest in the
plant on Friday morning, May 12, when Carmichael and
a fellow employee, Tom Elliot, posted union organiza-
tional literature in various locations around the shop, in-
cluding restrooms, and an area immediately adjacent to
their workplace. 3 With this information, Bruce Bat-
chelder, apparently the son of Respondent's president, in-
structed Shop Foreman Armand Plourde to call a fore-
men's meeting for that morning because, as Plourde
related, Batchelder "wanted to find out what was going
on."
That afternoon, Fleming was discharged following a
confrontation with another employee stemming from
Fleming's insistence that the latter attend the scheduled
May 14 union meeting. Within minutes after the Fleming
discharge, Carmichael approached Plourde advising the
latter of his intention to leave work. The circumstances
under which this occurred are the subject of a sharp
conflict in testimony, with the General Counsel urging
that Carmichael simply advised Plourde that he was
leaving because he had fallen ill and Respondent con-
tending that he had quit in protest of the Fleming dis-
charge. Plourde subsequently blocked Carmichael's at-
tempt to return to work.
On Sunday, May 14, employees intent on attending the
union meeting were to meet at Respondent's parking lot
and then carpool to the union headquarters. However,
Carmichael, apparently the first to arrive at the plant
that day, upon approaching the parking lot observed a
policeman, wearing the uniform of the local law enforce-
ment authority, on the parking lot. In consequence, he
did not enter the lot but detoured in order to head off
employees. In this connection, it is undisputed that Re-
spondent sometime on May 13 intensified security by
hiring uniformed, off-duty policemen regularly employed
by the local municipality. Such an officer was present on
the parking lot not only on May 14, but during several
weeks thereafter, including occasions when Fleming,
Carmichael, and union agents handbilled the plant.
Following this handbilling, aside from the pendency of
this proceeding, the record suggests, as might well be ex-
pected, a decline in union activity at the plant. It does
appear that, sometime in June, Respondent informed em-
ployees that the wage increases previously due on May I
would not be granted on September I as previously an-
nounced, but on July 1. The increases were granted on
July 1, and made retroactive to May 1.
3 I did not believe Fleming's uncorroborated testimony that such post-
ers were placed in his work area
B. The Alleged Discrimination
1. The discharge of Edward Fleming
Fleming, prior to his discharge, had been employed
for almost 8 years. At the time of his termination, he
held the position of furnace operator, apparently a highly
rated blue collar job.
The decision to terminate Fleming was made by
Armand Plourde, after consultation with Ronald Beilin.
According to the credited testimony of Plourde in the
early afternoon of May 12 employee Joe Emanuelle ap-
proached Plourde to report on a confrontation with
Fleming. Emanuelle advised that he was in the vicinity
of Fleming's furnace, driving a forklift, when waved
over by Fleming. Fleming asked Emanuelle whether he
was going to attend the union meeting that had been
scheduled for the following Sunday. Emanuelle indicated
that he would not and attempted to drive off. At that
point, Fleming, who was also on a forklift, blocked
Emanuelle's truck so that he could not proceed. Fleming
again stated, "What do you mean you're not going ....
It's for your own benefit." Emanuelle responded that he
had "better things to do," opining that nothing would be
accomplished by what Fleming was doing. This angered
Fleming who argued that something had already been
accomplished, and then proceeded to berate Emanuelle
with profanities, concluding with: "If you don't like it
I'll take you out in the parking lot and kick your ass
.... " Upon receiving this information, Plourde in-
formed Emanuelle that he would take care of it.4
Plourde consulted Beilin, passing on the information
he had received from Emanuelle, who contacted Eman-
uelle to afford again his version of what had occurred in
the presence of Plourde, Beilin, and Bruce Batchelder.
After Emanuelle left, Beilin asked Plourde as to Flem-
ing's work reputation. Plourde indicated that he was a
fair worker but that he had a problem with absenteeism.
Plourde elected to discharge Fleming, and Beilin con-
curred. Plourde, at Beilin's suggestion, secured the pres-
ence of a local police officer. These steps were taken
without extending Fleming the opportunity to submit his
version of the incident.
Plourde then called Fleming to his office. The dis-
charge interview was conducted in the presence of the
police officer. When confronted with the charges made
by Emanuelle, Fleming denied everything. Plourde did
not believe him and effected the discharge. Fleming was
escorted to the washroom and out of the premises by the
police officer. Fleming's testimony concedes to a con-
frontation with Emanuelle during the early afternoon of
May 12. He admits to having become "a little annoyed"
with the stance adopted by Emanuelle, and to calling
Emanuelle "the biggest griper in the place." He denied
threatening Emanuelle in any way, but claims to have
expressed his peeve by demanding that Emanuelle pay
him $5, an amount which Emanuelle allegedly owed him
for rides to work afforded by Fleming some months ear-
4The foregoing is based essentially on the mutually corroborative tes-
timony of Plourde and Emanuelle.
94
CHARLES BATCHELDER COMPANY
lier. 5 As between Emanuelle and Fleming, the testimony
of Emanuelle was more believable. 6 While regarding
Fleming as generally unconvincing, his testimony in this
immediate respect seemed overly sanitized and improb-
able. 7
Based on the credited facts, it is found that the trigger-
ing event for the discharge was a threat of bodily harm,
by a key protagonist of the Union, to an employee who
had expressed his preference to refrain from union activi-
ty. Such conduct, if not itself unlawful under this Act,
involved an intrusion upon the Section 7 right of em-
ployee Emanuelle to refrain from union activity. It was
unaccompanied by circumstances of a mitigating nature
reducing its coercive nature to the inconsequential or
trivial.
Nonetheless, the General Counsel argues that the dis-
charge was motivated, at least in part, by Fleming's
union activity, or in the alternative that the record war-
rants a conclusion that Respondent seized upon his mis-
conduct as a pretext to rid itself of a key union protago-
nist.
With respect to the pretext claim, the General Counsel
lays challenge to the bona fides of Respondent's judg-
ment in effecting the discharge. Thus, Fleming was a
long-term employee, whose value to the Respondent was
evident in his designation as safety director in 1977. 9
Fleming's regular job was a key position and the highest
rated classification of a nonsupervisory nature in the
plant. Indeed, Respondent had not discharged a furnace
operator during the 2 years preceding Fleming's termina-
tion. It is also true that the decision to discharge Fleming
was made without obtaining Fleming's side of the story.
Finally, as evidence of Fleming's competence, the Gen-
eral Counsel points to testimony that sometime after the
discharge Respondent, acting through Fred Bresson, of-
fered to rehire Fleming, under substantially the same
conditions he formerly enjoyed, provided that Fleming
waive or withdraw pending National Labor Relations
Board charges.
On balance, I am not persuaded that the record sup-
ports the General Counsel's claim. The arguments made
from the foregoing as to the unlikelihood of such harsh
discipline imposed on a long-term, valued employee
I Emanuelle credibly denied that any reference was made at the time
to rides to work.
e I have not overlooked an apparent discrepancy between Emanuelle's
testimony and a statement in his prehearing affidavit to the effect that he
did not inform Plourde of the union meeting while reporting on his en-
counter with Fleming.
I Both parties concede that during the discharge interview Plourde
mentioned Fleming's adverse record of absenteeism. Plourde credibly tes-
tifled that he did so because this matter came up in consulting with Beilin
when the latter questioned Plourde as to Fleming's work record. I find
that absenteeism furnished no independent causation for the discharge,
and reject the General Counsel's view that said reference was indicative
of a resort to shifting explanations. Instead, I am convinced that absentee-
ism was injected by Plourde as an argumentative, though human, ploy
whereby past indiscretions were drawn upon to reinforce the justness of
the discharge. In any event, while it is true that the record does not dis-
close that during the period in 1978 Fleming's attendance record was the
most reprehensible, on its face, it was something less than exemplary.
' Cf. N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584, 587 (1965).
9 This position imposed on Fleming the responsibility of assuring com-
pliance by employees with safety standards by reporting violations there-
of to supervisors. Fleming received additional compensation of $500 an-
nually during the first year in which he held this additional position
entail a naked substitution of judgment for that exercised
by management in circumstances where traditional evi-
dence of pretext is lacking, and where the cause assigned
for the discharge is not inherently lacking in foundation.
There is no suggestion that Respondent ever condoned
conduct akin to that of Fleming, although it does appear
that Respondent had in the past discharged two employ-
ees, Jerry Bradley and Rick Lesko, for threatening su-
pervisors. to
Insofar as the General Counsel seeks to override Flem-
ing's misconduct under the mixed-motive test, serious
doubt exists as to the viability of such a theory on the
instant facts. Under such a view, absent due caution, the
statutory standard of "just cause" would be circum-
scribed critically. Managers have the right to maintain
discipline in the workplace by corrective action should
an employee organizer overstep protected areas and
seek, through substantial misconduct, to impose coercive-
ly his views upon resistive coworkers. Yet, at the same
time, it would compromise industrial reality to a.ssume
that elimination of such a prounion influence was totally
alien and plainly neutral to the effectuation of such pre-
rogative. Experience and assessment of probability are
key aids to the inference-drawing process, but their ap-
plication would prove too much were the mixed-motive
theory applied hastily in such a context. In sum, absent
more direct proof, I am unwilling to infer that Respond-
ent acted, in part, upon a proscribed motivation, even
though convinced that Fleming was a union protagonist.
discharged on the basis of events stemming from his or-
ganizational activity by an employer opposed to union-
ization of its employees.
Accordingly, having found that Fleming threatened
fellow employee Emanuelle with bodily harm, and there-
by impeded Emanuelle in the exercise of rights guaran-
teed by Section 7, and that the General Counsel has
failed by a preponderance of the evidence to establish
that said misconduct was invoked by Respondent as a
pretext, it is concluded that Respondent did not violate
Section 8(a)(3) and (I) by discharging Fleming.
2. Steven Carmichael
Carmichael, as will be recalled, made the initial con-
tact with the Union, and he, together with Fleming,
spearheaded the organization effort during the week
which culminated in his separation. Carmichael's em-
ployment with Respondent was not continuous but cov-
ered two separate periods. Initially employed in March
1973, Carmichael quit in September 1976 to obtain other
employment. Later, in November 1977, he was offered a
job on a second shift by Armand Plourde, and resumed
his employment with Respondent. As of May 12, Carmi-
chael, like Fleming, held the position of furnace opera-
tor.
As indicated, pivotal to an assessment of the circum-
stances under which Carmichael was terminated is a
sharp conflict in testimony. According to Carmichael, at
about 12:30 p.m., on May 12, red smoke emerged from
'o There is no evidence that, prior to the Fleming-Fmanuelle incident,
any employees had ever threatened a nonsupervisory cosAorker
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his furnace. This was the telltale sign that a rectifier, ca-
pable of emitting noxious fumes, had been included in
the scrap fed into the furnace. Carmichael claims that he
and his assistant, Tom Elliot, were exposed to the fur-
nace fumes for about 20 minutes. He testified that he
became ill, with his stomach turning, his head pounding,
and sweat pouring off his face. Carmichael relates that a
new load of scrap was brought to his work area at or
about I p.m., but that he was too ill to continue working
and, therefore, sought out Plourde to report that he was
too ill to work. While en route to Plourde's office, Car-
michael admittedly received information from an em-
ployee that Fleming had been fired. Upon locating
Plourde, Carmichael sought confirmation of the Fleming
discharge. Plourde advised that Fleming "was all
through." Carmichael then told Plourde that he was sick
and had to go home. Plourde allegedly gave no re-
sponse. II Carmichael then went to the washroom, where
he observed Fleming with the police officer.i 2 Carmi-
chael went on to testify that he then left the plant and
went to his mother's house, because it was closer than
his own home, where he rested. He claims to have felt
better at about 2:30 or 3 p.m., whereupon he telephoned
Plourde advising him of his improved state and indicat-
ing he would report to work on Monday, May 15.
Plourde instructed Carmichael to phone him on Monday
morning before reporting to work, declining to explain
why this would be necessary.
On Monday, May 15, according to Carmichael, as in-
structed by Plourde, he telephoned the latter before re-
porting to work. Plourde told Carmichael not to report
as he had quit on the previous Friday. Carmichael
denied that this had been the case, charging that he had
been fired. When Carmichael attempted to inquire as to
the reason for the termination Plourde reiterated that
Carmichael had quit.
Contrary to the testimony of Carmichael, that offered
on behalf of the defense is to the effect that on Friday
afternoon, May 12, Carmichael left work, not by reason
of any illness, but in protest of Fleming's discharge, and
for that reason alone. Thus, Armand Plourde, with cor-
roboration from Edward Salowski, Jr., who is charged
with responsibility for Respondent's cost and quality
control function, testified that at approximately 1:30 p.m.
that afternoon, following the discharge of Fleming, Car-
michael approached him, stating, "If Fleming is let go, I
am leaving too." Plourde responded, "If you walk out
now, don't bother to come back." Carmichael indicated,
"O.K." and left. L3
" On direct examination by the General Counsel, Carmichael testified
that no one was standing near Plourde during their conversation On
cross-examination, Fleming first testified that Plourde was in the scale
room, and that no one else was there when he spoke to Plourde. Later,
however, he testified that Ed Salowski was in a corner of the scale room
at the time.
2z Carmichael could not recall what words were exchanged between
himself and Fleming on that occasion.
3a Salowski, contrary to Carmichael, testified that the incident involv-
ing the noxious fumes at Carmichael's furnace occurred earlier that morn-
ing about 10 a.m. Carmichael, together with corroboration from Fleming,
indicated that it took place at between 12:30 and I p.m. This issue is
deemed irrelevant and need not be resolved, for it is undisputed that Car-
michael's assistant, Elliot, after Carmichael's departure complained of
being ill and was allowed to go home
Plourde went on to testify that about 20 minutes to 1/
2 hour later he received a telephone call from Carmi-
chael, in which the latter stated, "I want to apologize for
my hasty decision, and see if I can come back to work."
To this, Plourde claimed to have responded, "I got to
think about it .... Call me back Monday morning."
Plourde testified that he considered the matter and, after
taking account of the fact that Carmichael had quit on
one prior occasion, he decided that Carmichael's practice
of quitting rendered him "useless." Accordingly, when
Carmichael telephoned on Monday, Plourde informed
him that he could not return to work. Plourde denied
that Carmichael, during their conversation, expressed
that he had left work because he was sick or nauseous on
Friday.
Carmichael was an unreliable witness, whose testimo-
ny was marked by important contradictions and what I
perceived to be lack of candor. His testimony that sick-
ness actuated his departure from work on the heels of
the discharge of his collaborator in the union drive im-
pressed me as contrived.t 4 At the same time, the testi-
mony of Plourde, Salowski, and Bresson, when weighed
against the undisputed facts, struck me as the more prob-
able. I find that Carmichael quit because Fleming had
been discharged, and declined to abandon this course in
the face of Plourde's clear warning that to do so would
mean his job.
Nonetheless, the Gealeral Counsel contends that Re-
spondent's failure to reinstate upon Carmichael's timely
apology and strong expression of a desire to return to
work was discriminatorily motivated. Firstly, in this con-
nection, while there is merit in the General Counsel's po-
sition that Respondent was mindful of Carmichael's
standing as a key union protagonist, 5 I am not persuad-
ed by the General Counsel's argument that Respondent's
past history of treating Carmichael favorably is sufficient
to support a conclusion that Respondent "would have
not acted so harshly," if Carmichael had not been in-
volved in union activity. 16 A number of factors are cited
'4 Fred Bresson, a furnace operator who, according to Fleming, at one
point described himself as a foreman, testified that he attended the union
meeting on May 14 During the meeting, Bresson related, someone men-
tioned that, following the discharging of Fleming, Carmichael had
walked off the job. Carmichael then confirmed that this had occurred,
whereupon a union representative advised Carmichael, "No you didn't
.Go back to work on Monday and tell them you were sick." Carmi-
chael claimed that the only reference to May 12 made at the meeting was
a statement that he had gotten sick, and a charge that his job was gone
on Monday because of his union involvement. I believed Bresson.
'S The unit was small, and evidence indicates that the newly emerging
organization campaign was a subject of discussion between employees
and supervisors on the morning of May 12. Respondent's interest in de-
veloping information as to just what was going on is evident from
Plourde's testimony that he was instructed to call a meeting of foremen
for that purpose at noon that day. In addition to his other union activi-
ties, Carmichael had posted union literature in the area proximate to his
furnace. Aside from the foregoing, Carmichael's having quit that moring
out of announced peeve at the discharge of Fleming furnished strong evi-
dence that, at a minimum, he was in league with those responsible for
union activity.
'6 In support of his contentions in this regard, the General Counsel
cites two prior decisions of the Board involving quite different fact pat-
terns. In Sibilios Golden Grill, Inc., 227 NLRB 1688 (1977), it was con-
cluded that the quitting did not occur during worktime and was not
taken seriously by the employer The refusal to employ occurred only
Continued
96
CHARLES BATCHELDER COMPANY
in support of this view. Thus, it is true that Carmichael
had been restored after his earlier resignation in 1976, as
to which he had afforded the Company 2 weeks' notice.
In this same vein, while of dubious weight, it has not
been overlooked that Carmichael testified that in 1976
after a company party he was invited to the Batchelder
home, where Carmichael claims that he felt on friendly
terms with Bruce Batchelder. Finally, the General Coun-
sel points to the fact that Respondent had been lenient in
affording time off to Carmichael in the past, upon his re-
quest, to handle personal problems at home. Here again,
the primary thrust of the General Counsel's contention is
addressed to a conclusion that employee misconduct be
excused by a substitution of my judgment for that of
management. In any event, the facts on which he relies
do not exceed normal manifestations of cordiality be-
tween employer and employee. They are not necessarily
indicative of any special status held by Carmichael
which, objectively viewed, would carry an inherent sug-
gestion that, in other circumstances, his unprecedented
breach of his employment obligations would have been
excused. Carmichael walked out in midshift after the dis-
charge of another furnace operator. His action in this re-
spect brought about an immediate further reduction in
Respondent's operating capacity on the first shift, leaving
only one of three furnaces with an operator. He created
this situation in the face of a warning by Plourde that it
could mean his job. Suspicion that arises from his known
support of the Union and his key role in the campaign,
even accepting Respondent's union animus, 7 failed to
insulate Carmichael from the legitimate cause presented
by his abandonment of work in midshift without prior
notice. Absent evidence that Respondent had condoned
any similar misconduct, any conclusion that Respondent
was obligated to reemploy him would rest upon sheer
speculation and an unwarranted substitution of third-
party judgment with respect to a management decision
not wholly lacking in rational foundation. Accordingly, I
find that Carmichael quit his job on May 12, 1978, and
that the General Counsel has failed to substantiate by a
preponderance of the evidence that the refusal to allow
after the employer had inquired and learned that the employees had
sought out a union. The Administrative Law Judge reasoned that the su-
pervening union activity was the only available explanation for the refus-
al to employ when the employees appeared for work at their regularly
assigned shift. With respect to Pinter Bro, Inc., 227 NLRB 921 (1977),
absent a spot citation by the General Counsel, it is presumed that he
claims support from findings by the Administrative Law Judge therein
that employee Doris Bonadonna was discharged and denied reinstatement
in violation of Sec. 8(aX3) of the Act. These conclusions derived from
findings that Bonadonna had been badgered into quitting because of her
union activity in circumstances constituting an unlawful constructive dis-
charge. The subsequent failure by the employer therein to permit rescis-
sion of her quit was found ". .. but a further manifestation of its deter-
mination to effect her permanent separation from the other employees."
227 NLRB at 939. Thus, the cases relied upon by the General Counsel
were decided on materially distinct fact patterns, and are deemed inappo-
site.
'7 Although Carmichael was generally regarded as an unreliable wit-
ness, I accept his uncontradicted testimony that in 1976, some 2 years
prior to the instant campaign, Bruce Batchelder made a statement to the
effect that he would close the plant rather than deal with a union. Bruce
Batchelder did not testify, and Carmichael's testimony in this respect was
allowed to stand. Otherwise, the record, while tending to suggest Re-
spondent's opposition to unionization during the 1978 campaign, does not
disclose expressions of hostility in an equally excessive degree
Carmichael to rescind his quit was motivated by unlaw-
ful considerations; the 8(a)(3) and (1) allegations of the
complaint in this respect are dismissed.
C. Interference, Restraint, and Coercion
1. Surveillance
On May 13, 1978, Ronald Beilin directed Armand
Plourde to strengthen Respondent's security by hiring
off-duty policemen of the local law enforcement authori-
ty. Plourde was instructed to place the police inside the
parking lot on company property. Beilin credibly testi-
fied that on May 12 he made the decision to take such
steps out of concern for the atmosphere at the plant fol-
lowing the discharge of Fleming because of the threat
that had been made and the possibility of sabotage. This
augmentation of Respondent's existing security continued
for approximately 2 weeks. There is no suggestion in the
record that Respondent in retaining additional security
had knowledge or a basis for believing that employees
intended to utilize the area policed by the new security
force for union or protected activity. Nor does it appear
that the security guards were aware of the identity of
employees, that they took steps to identify them, or to
record their presence in the plant area on any occasion.
Contrary to the General Counsel, neither the nature of
the uniforms worn by the "moonlighting" police officers,
nor the expense born by the Company to retain this
group,' s detracts from Respondent's legitimate right to
adopt preventive measures assuring that its property not
be violated."9 I find that Respondent did not violate Sec-
tion 8(a)(l) by its utilization of off-duty police officers
during the 2-week period following May 12.20
2. The promise and grant of wage increases
It is undisputed that, prior to 1978, Respondent award-
ed annual periodic wage increases every May 1. Until
1977, the new increases were accorded at a time corre-
sponding with the April 30 close of Respondent's fiscal
year. In 1977, Respondent altered its fiscal year to run
from September 1 through August 30. In 1978, Respond-
ent felt it desirable to shift the date for the annual in-
creases to conform with the end of the new fiscal year in
1978 and, because of this change, it was determined in
'a Other security guard firms retained by Respondent provided serv-
ices at lesser rates.
ID This conclusion is not altered by the fact that a police officer was
present on Sunday, May 14, on the company parking lot-the location
which employees sought to use as a rendezvous point prior to their at-
tendance of the union meeting-and the fact that such officers were pres-
ent while union officials and dischargees distributed union literature on
subsequent days. The record is devoid of evidence that the presence of
the officers was anything other than incidental to the legitimate exercise
of the Employer's right.
20 Cf. Baptist Memorial Hospital, 229 NLRB 45 (1977), where surveil-
lance by security guards was found to be unlawful in the context of the
employer's enforcement of a no-distrinbution rule prohibiting employees
from distributing union literature on hospital premises during their own
time 229 NLRB at 51. See also Shrewsbury Nursing Home. Inc., 227
NLRB 47 (1976), where a like violation was found with respect to the
hiring of a security guard the day after the union began distribution in
circumstances where the guard selectively positioned himself to enable
him to observe such distribution when the union representatives ap-
peared.
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1978 to delay implementation of employee wage
increases to September 1, 1978. Consistent with such ob-
jective, in April 1978, prior to the advent of union activi-
ty, employees were notified that the anticipated wage in-
creases would be deferred from May 1 to September 1,
1978. This deferral gave the initial impetus to union ac-
tivity. In mid-June 1978, Respondent notified all employ-
ees that the new wage increase would become effective
July 1, 1978, rather then September 1 as announced prior
to the advent of the Union. This update in the an-
nounced timetable for the new wage levels is left unex-
plained by the testimony. Nonetheless, in his brief, coun-
sel for Respondent concedes as follows:
Because of the magnitude of the employee concern
over the amount of the increases, Respondent noti-
fied all employees in mid-June of 1978 that the new
wage increases would become effective on July 1,
1978 and would be retroactive to May 1, 1978 as
previously promised .... Due solely to the large
scale dissatisfaction with the delay involved in ad-
justing to Respondent's new fiscal year, Respondent
revised its implementation schedule to the July 1,
1978 date.
From the foregoing it is apparent that this adjustment
sought to quell employee dissatisfaction, emerging from
the very issue which prompted employees to seek out
the Union in the first instance. Respondent's action rep-
resented a departure from the position announced to em-
ployees prior to the union campaign and was calculated
to resolve a fundamental grievance at a time when union
organization remained viable. 2t As the employee discon-
21 Respondent defends on grounds that as of June 1978 organization
activity had abated. This claim lacks merit. There is no evidence that the
Union abandoned its representational interest. Furthermore, its mere sus-
pension of overt efforts in pursuit of employee support, while an unfair
labor practice proceeding of this type was pending, is neither unusual nor
indicative of the campaign's curtailment.
tent may not be disassociated from the union activity it
produced, 22 the two are synonomous and, consistent
with well-established Board policy, I find Respondent
violated Section 8(a)(1) in this respect. 23
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 1040, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By promising and granting benefits to induce em-
ployees to refrain from engaging in union activity, Re-
spondent violated Section 8(a)(1) of the Act.
4. Respondent did not violate the Act in any other re-
spect.
5. The unfair labor practice specified in paragraph 3,
above, is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
[Recommended Order omitted from publication.]
22 Beilin testified that employee discontent was derived from anxiety
over the amounts of the increases, rather than their timing. Although it is
difficult to imagine that such a specific objection would be held uniform-
ly by all members of the work force and, indeed, if that were the case,
that Beilin would have direct knowledge thereof, I fail to see the import
of such a distinction. The unalterable fact remains that an effort to allay
that unrest, whatever its specific focal point, was made during the organi-
zational campaign under circumstances in which Respondent reversed its
previously announced position.
23 See, e g., Arrow Elastic Corporation, 230 NLRB 110, 11i (1977).
98