City Ice Co., Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1976

226 N.L.R.B. 1333 (N.L.R.B. 1976)

CITY ICE COMPANY, INC 1333
City Ice Company, Inc. and Janet T. Smearman,
Obed R . Kimble, David J. Smearman , Robert R.
Burrows, and Kenton R. Kimble . Cases 9-CA-
10027-1, 9-CA-10027-2, 9-CA-10027-3, 9-CA-
10027-4, and 9-CA-10027-5
December 3, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
burg, West Virginia, on complaint of the General Counsel
against City Ice Company, Inc., herein called the Respon-
dent or the Company. The, complaint issued on March 31,
1976, on five separate charges, all filed on February 6,
1976, by the following five individuals- Janet T. Smear-
man, Obed R. Kimble, David J. Smearman, Robert R.
Burrows, and Kenton R. Kimble. The issues to be decided
are whether the Respondent unlawfully discharged each of
these five persons in violation of Section 8(a)(3) and (1) of
the Act, and whether agents of the Respondent engaged in
cther coercive conduct violative of Section 8(a)(1). Briefs
were filed by the General Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
On August 13, 1976, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions.
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 has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order .2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , City Ice Company, Inc.,
Parkersburg , West Virginia , its officers , agents, suc-
cessors , and assigns , shall take the action set forth in
the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge it is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
the the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently omitted from his recom-
mended Order any reference to the formulas to be used in calculating the
backpay due the discrimmatees . We correct this omission by ordering that
the discrimmatees herein shall be made whole in accordance with the for-
mulas set forth in F W Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co , 138 NLRB 716 (1962)
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
was held in this proceeding on June 24, 1976, at Parkers-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
City Ice Company , Inc., is a West Virginia corporation
engaged in the reprocessing of plastics at its Parkersburg,
West Virginia , facility. During the past 12 months, a repre-
sentative period , it purchased goods and materials valued
in excess of $50 ,000 from suppliers located outside the
State of West Virginia and caused such goods to be
shipped to its West Virginia location directly from such
out-of-State sources . I find that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Laborers' Local No. 1085, Laborers' Interna-
tional Union of North America, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
Organizational activities aimed at representation in col-
lective bargaining by the Union started among the Respon-
dent's approximately 30 employees in late October of 1975.
On October 31 the Union filed a petition for an election
with the Board (Case 9-RC-1 1279), a hearing on that peti-
tion was held on November 25, and the Regional Director
issued his Decision and Direction of Election on December
18. Janet Smearman and David Smearman were dis-
charged on December 16, 1975, and Obed Kimble was dis-
charged on December 22. Kenton Kimble and Robert Bur-
rows were laid off on December 24 and effectively
discharged on January 24. All these employees had been
active, in varying degrees, in the prounion activities, and
Grace Rice, one of the two owners of the Company and an
active manager of the business, admitted she knew who the
union activists were. The Board election, pursuant to the
representation petition, was held on January 16, the Union
won, and it was certified as bargaining agent on January
26.
The complaint alleges that all these five employees were
discharged in retaliation for their union activities. The Re-
226 NLRB No. 201
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent denies the commission of any unfair labor prac-
tices and as to each of the five employees advances an
affirmative defense of discharge for cause. The case turns
essentially upon necessary resolution of a pervasive ques-
tion of credibility that runs throughout most of the record
This is true with respect to alleged coercive interrogation
and threats-employee oral testimony against denials by
management agents-events in the past as to which the
witnesses gave conflicting versions, and whether or not the
Respondent in truth dismissed these employees for the rea-
sons which were advanced at the hearing.
B. The Discharge of Janet Smearman
No one questioned this girl's description of the job she
held as "laborer." It seems that most of the work in this
plant is unskilled, manual, and very ordinary. She signed a
union card on October 22, distributed several others
among the various employees and attended four or five
union meetings-some of which were held in her own
home. Indeed at the very first such meeting at her house,
held in October, Farr, a supervisor, was present.'
Mrs. Smearman testified that early in November she
heard Robert Daley say in the plant "he'd heard that we
was wanting a union in there. He said that he didn't think
we was going to get it." She added that a few days later
Daley said to her and another employee "if we got the
fucking union, that he was going to close down the plant
and move back to Vienna under a different name. And he
said if we got the fucking union, all of us was going to be
fired or laid off."
Manager Daley was called in defense apparently to re-
fute this testimony, but it is by no means clear his state-
ments amount to a contradiction. Repeatedly he said he
really could not remember "to be honest about it." Finally,
asked generally had he made "the other statements that
these witnesses have attributed to you?" he answered "It's
possible, but I don't think so "
Be that as it may, Smearman was absent from work for 3
days-December 12, 13, and 14-because she was sick.
There is a rule that when employees were going to be ab-
sent they were supposed to have someone call in and ad-
vise management . Smearman said her husband called for
her on the 12th and another employee called in on the 13th
for her. She did not call in on the 14th. On the 15th she
returned to work as scheduled. She worked-according to
her-for about an hour, felt sick again, and told Manager
Robert Daley, who then said she "could go home." Daley's
version of what he did that morning is: "I told her it would
be all right if she went home. She told me she was sick." He
said the girl worked only "five or ten minutes ." The next
day Smearman came again ready to work and Grace Rice,
Daley's sister and comanager, fired her, with the statement,
according to Rice "you could have called off." On the 17th
Smearman [nee Horn] was back, asked for a discharge no-
1 As a witness for the Respondent Farr said he thought the meeting he
was going to was only a "party," with beer Asked had he signed a union
card that night-as earlier witnesses had said-he replied he "Just scribbled
on it You couldn't make it out because I had a cast on my thumb " Farr
was not a convincing witness
tice of some kind, and Rice then and there wrote out, and
handed her, the following statement:
12-17-75
After not showing up for 3 days and not informing
the management of this Company that she was com-
ing back to work it was assumed that Janet Horn had
quit her job and we no longer needed her as an em-
ployee.
Grace Rice
Sect of City Ice, Co.
It is true Smearman, absent from work on the 14th, did
not "call off" that day and thereby violated a rule after
being told the month before, as were all other employees,
that they could be discharged for that. But it is not true
Rice discharged her on the 16th for that reason. For the
manager to say-as she precisely wrote on the 17th-that
she "assumed" the girl had quit, after not showing up, it is
a deliberate falsehood. The girl had shown up, and worked
on the 15th. Rice could not have "assumed" an intent to
abandon the job while knowing the employee had come to
work and had worked for a while the day before! And
there is no question that Grace Rice knew the girl had
worked on the 15th, for she admitted she had approved the
girl's timecard that day "I gave her the benefit of the doubt
and marked her out at 7:30." To strengthen her assertion at
the hearing that Smearman had "quit," herself chosen to
abandon the job, Rice even said that at one point in her
testimony "I did not fire either of them [Janet and her
husband David]. I never at any time told them they were
fired." In the next breath she changed that testimony:
"The next day ... I had already intended to let her go that
day. The next day she came in and I told her that I
wouldn't need her any more, because she had missed too
much work."
The obvious inconsistency between one manager's, the
sister's, assertion the girl was released for having aban-
doned the job-or failing to call in on the 14th-and the
other manager's, the brother's, action in permitting her to
work on the 15th, and even graciously giving her leave to
go home because of her illness, appeared clearly as the
hearing progressed. In the attempt to reconcile the irrecon-
cilable, counsel for the Respondent then put two straight
leading questions to his own witness:
Q. Were you aware that Grace had made the deter-
mination to discharge Janet Smearman when she
came in that morning and told you she was sick and
went home?
A. Yes I was.
Q. You were aware that Grace had discharged her
that day?
A Yes
Not only were these factual statements spoken by the law-
yer, and not by the witness, but they were not even true.
Grace Rice had made no such decision at all; rather, she
approved the girl's timecard after her brother had told her
she could go home.
I can conceive of one manager deciding to take punitive
action and another, ignorant of his partner' s determina-
tion, acting inconsistently therewith. But this was Daley,
CITY ICE COMPANY, INC
clearly with authority to discharge employees, saying that
the discharge decision had already been made before
Smearman came to work, that he knew it had been made,
and that he permitted her to work anyway. Whatever the
affirmative defense is supposed to be with respect to this
employee, it is incomprehensible. Are the two owner man-
agers, brother and sister, to be viewed as unrelated compo-
nents of the single entity? For these, and for the reasons to
follow, the clearest fact emerging from this record is that
Robert Daley and Grace Rice came to the hearing pre-
pared to tell a completely fabricated story. They stand dis-
credited witnesses.
I find that by Daley's statement to Smearman and an-
other employee that the Company would close its plant,
even move it to another town, and fire the employees if
they persisted in their prounion activity, the Respondent
violated Section 8(a)(1) of the Act. And I find that by dis-
charging Janet Smearman on December 16, 1975, the Re-
spondent violated Section 8(a)(3).
C. The Discharge of Kenton Kimble, Burrows, and Obed
Kimble
The stories of the discharge of Obed Kimble and Kenton
Kimble, father and son, and of Robert Burrows, must be
told together because here there is a direct conflict in testi-
mony, focusing again on the principal defense witnesses,
that ties these three alleged unfair labor practices together.
Obed Kimble was discharged on December 22 and the two
others were sent home 2 days later. As to the father, what-
ever the real motivation, there is no question about when
the decision against him came about. But as to the other
two, the asserted affirmative defense starts suffering in
credibility on the threshold question of when the discharge
decision was made and when it was implemented in rela-
tionship to the moment of the decision. According to the
company witnesses, the insufferable disobedience and dis-
play of incompetence occurred on December 22, and the
decision to get rid of these two persons permanently was
made then and there. But young Kimble and Burrows were
not released that day. Two days later there was a mass
layoff of 18 employees, over half the total complement. On
January 24 these people were all recalled with the excep-
tion of the two men in question. The managers admit no
one ever told the two men they were terminated, dis-
charged, or no longer employees. When were they dis-
charged? If they in fact misbehaved on the 22d as badly as
the Company witnesses described 6 months later , why were
they not sent home that day? If the men merited dismissal
as so graphically explained at the hearing, what reason was
there for the Employer to conceal its just criticism and to
lay them off 2 days later without a word of censure? If a
final dismissal resolution had in fact been reached by the
24th, what purpose could there have been in lulling the
men into a false sense of security that they too would come
back to work? Or could it be, as other parts of the manag-
ers' testimony strongly indicates, that the decision to dis-
charge, however and whenever the determination may
have been reached, was not made until after December 24,
and had nothing to do with any claimed terrible incident of
the 22d?
1335
Obed Kimble used to get along well with both Farr, the
supervisor, and with Robert Daley, the owner Kimble be-
came active in the union movement; he signed a card on
October 22, he went to three or four union meetings and it
was he who took Supervisor Farr to one of them, where
Farr signed a union card. Kimble frequently used to drive
Farr to his home for lunch.
A few days after the union meeting they both attended
Farr told Kimble he no longer cared for the Union.
Kimble's testimony continues that a week later Farr told
him: "Robert Daley said whoever was fooling with the
union would be fired. They was just hurting theirselves."
Kimble then continued that Farr once asked him,"if I was
attending the meetings, and I told him I was." Called by
the Respondent, Farr said he never heard the manager say
anything about retaliating against the men because of
unionism, but he did not directly deny either asking Obed
was he still going to union meetings or saying that Daley
had expressed displeasure, as Kimble quoted him.
Kimble's son, Kenton, was also very active in the Union.
He went to more than seven meetings, he signed a card, he
distributed about 12 others among the employees and col-
lected them again, all signed. Burrows also had signed a
union card; more important, he had attended practically
all the union meetings, perhaps as many as 12. Kenton's
father testified that one day about 2 weeks before the De-
cember 22 events, he invited the manager to have a drink
of whiskey with him from his bottle in the office. As the
two talked, according to the employee, Robert Daley said-
"I'm going to have to lay your son Kenton off for a week,
or maybe two weeks, and then in a little while we'll call
him back...." "I'm going to have to lay off, then I'll call
back who I want to call back. ... Them people fooling
with the union are just hurting themselves." Farr was also
in the office when Obed's bottle was being passed around.
He recalled Daley saying to Obed "there was going to be a
cut back to his son." Obed's son Kenton was also in the
office with the group, and he testified he heard Daley say:
"he was going to have to get rid of people that was causing
him trouble . . . they had to get rid of the people that was
causing them trouble through the Union, and he was going
to have to lay me and my father off."
Other than saying he might have made the coercive
statements attributed to him by the several government
witnesses , Daley consistently held to the position that he
simply could not recall any of the conversation at all.
We come to what happened on the 22d. Obed sometimes
worked on a machine called a grinder, as he was doing that
day. It seems that plastic materials, sometimes in ribbon
form, are fed into it for processing, and that sometimes the
machine clogs up, stops, and emits excessive dust. Obed
testified that as he worked that day Daley told him not to
run the ribbons, but to put the materials into the machine
in another form. He did that. Soon Daley was back and
told him he was doing it wrong even that new way. Obed
answered he was doing it as he was told, Daley argued with
him, and the two fell into an incoherent conversation. With
this, still according to Obed, he told the manager: "Bob,
what are you going to do, fire me or let me get off, or
what?" and that the manager answer: "No, I'm not doing
either damn one." Obed then said to the manager: "It
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
looks to me you'll have to do something." Unable to un-
derstand what was going on, Kimble then went to the of-
fice to talk to Grace Rice . "Grace, just what the hell is
going on?" And she answered, "I don't know. . .. You
better go back and talk to Bob." The employee's final story
is that after a certain amount of yelling and bickering-
with Daley "drunk and cussing all the time"-he was paid
off and left.
Daley's version of this incident is by no means clear. His
only coherent statement was that the day before he told
Obed not to run the ribbon material through the machine.
Asked to state what happened the day of the discharge, the
witness then said: "He was running ribbons when I told
him not to, and he got disgusted and mad at me and de-
manded to be fired or quit." Beyond this, asked by Re-
spondent's counsel several times, with the use of deliberate
and extremely leading questions, to relate who said what,
Daley did no more than repeatedly answer he could not
remember. As it stands, the manager's story is that Obed
said both that he was quitting and that he wanted to be
fired. No attempt was made by the witness to explain this
irrational inconsistency he attributed to the employee.
About this incident, his sister's story is no more consis-
tent or convincing. She started by saying she could look
out into the plant from her office through sliding glass
doors, she heard her brother "yell" at Obed "don't run that
pile of ribbon," and she heard the grinder clog up. "I heard
it go down again." Despite this she admitted that when
Obed came to her in a quandry about what was expected
of him that moment, she said she did not know "You'll
have to talk to Bob about it." In a very heated and argu-
mentative tone Rice then added that Obed repeatedly de-
manded to be fired, pounded the table, shook his fist in the
air, and simply kept yelling at her. Why Obed should insist
so many times on being discharged and scream at the sis-
ter, no one tried to explain at the hearing. And finally
Grace Rice said it was she, in disagreement with her broth-
er, who decided to discharge the man, and that her reason
was because "I got tired of being cussed, and I got tired of
my desk being hit, and I got tired of fists being shook in my
face." Apparently counsel for Respondent was also unable
to make sense of this almost ranting testimony of the man-
agers, for in his brief he asserts a totally different reason
underlying the discharge decision. "Obed R. Kimble was
discharged for not following direct orders of the superviso-
ry personnel." 2
Kenton Kimble and Burrows were at work that day as
usual. As they often did they operated a plastic cutting
machine that sometimes went out of order It is called a
guillotine ; a hydraulic press lifts large pieces of plastic to
four blades in fixed position up above, which cut the plas-
tic as it is pushed up, into smaller pieces. Both Burrows and
Kimble testified that this machine broke down once several
weeks before December 22, that two of the blades at that
time had come off, and that the machine, within a day or
so, had been repaired, with only two blades remaining in
use, and that they continued to operate it that way thereaf-
2 This is also what Grace Rice wrote , directly contrary to her later testi-
mony, in a discharge slip she gave Obed Kimble on the 23d, the day after
the dismissal
ter. Both men said unequivocally nothing happened to the
machine on the 22d; Kimble even recalled it was still being
operated by others on the 24th, when he was told to go
home temporarily because "of lack of production."
In direct conflict with both these witnesses , Grace Rice
told a story of deliberate destruction of the machine by the
two employees on the 22d. In his testimony, Robert Da-
ley, who ostensibly was in charge inside the plant that day,
did not make much of the incident ; "I seen the roll up on
the guillotine where it shouldn't have been, you know, and
I dust shut it down completely and put them off on another
job, or seen that they was put off on another job until we
could get settled down." The manager added only that his
sister wanted him to discharge the two men but that he
refused.
When the subject of these two men-Kenton Kimble
and Robert Burrows-was first opened with Grace Rice as
a company witness, she immediately gave indication of the
nature of her testimony. Asked "how come" the two men
were no longer working for the Company, she answered
"they were laid off, but they should have been fired." This
was the witness, in her first breath, attempting to explain
away the inexplainable failure to fire the men when her
story, yet to come, would have dictated immediate action.
Rice went on that she could see the guillotine through a
door on the 22d: "I heard a noise that shook everybody in
the place. The guillotine was breaking apart in pieces... .
it tilted the table, and it broke the sides out of the whole
structure that held the blade. It split the blade, both sides.
Itjacked the side of it up out of the ground, which is buried
ten, twelve feet into the ground, at least It tore the whole
thing up, and you could hear pieces of metal breaking and
popping all over the place."
Four men were working at the machine that day. After
describing the extensive destruction, Rice was asked what
were Kenton Kimble and Burrows doing that moment:
"They were standing there, and it looked to me like they
were laughing and talking and having a good time while
this thing exploded, and I don't see how they could keep
from-no way they could have kept from knowing it was
happening." And again, in the middle of her story of the
misbehavior of Kimble and Burrows, Rice started to talk
about why she did not retaliate against the two other oper-
ators then working on the same machine. But the explana-
tion of her disparate treatment was really articulated by the
lawyer, not by the witness: "Q. The other two men were
not in a position where they could reach the controls. Is
this correct: A. That's correct."
However that may be, Rice then said the two men
"pushed the button" to deactivate the machine-now di-
rectly in conflict with her brother' s statement that it was he
"shut it down completely." Rice also did recall Daley say-
ing "just put them in another job and forget it.... Just
leave them alone. . ." It is not possible to credit such a
picture of wanton destruction if in the opinion of the oper-
ational manager whatever happened-if anything at all did
happen that day-called for no more than moving the men
to other work
Rice's testimony continues in like vein . She said she told
her brother to discharge the men summarily but that he
refused. Her desire that they be dismissed immediately was
CITY ICE COMPANY, INC. 1337
so intense she threw a spool at her brother in resentment
when he refused to dismiss them. And then, to give rational
appearance to her own failure to act, she said she was the
"secretary" and Daley the manager But that very day she
had fired Obed Kimble-while Robert Daley did not care
to do so, and only a few days earlier had fired both Janet
Smearman and her husband David!
On this total record, but particularly in the light of the
demeanor of the Respondent's principal witnesses , I do not
credit Rice or Daley. I find there was no accident or mis-
conduct worthy of note by Kenton Kimble or Robert Bur-
rows that day, as the Company people testified. There had
been damage to the guillotine several weeks earlier and it
had been repaired. Thomas Daley, another brother of
Grace Rice , and also a supervisor, said it took him 4 days
to repair the machine on the earlier occasion, but he was
careful , as a witness , to make it clear he was not witness to
what happened on the 22d. And I do not credit Delores
Lowther, a current employee, who testified she heard a
loud noise that day, saw the machine in very bad condi-
tion , and the two men in question "talking and laughing,
and they could have just reached around and hit the thing
and knocked it out , but they didn't." This witness was ar-
guing the merits of the defense assertion more than stating
facts. It is incredibly unlikely an employer will take no
disciplinary action against employees who do damage of
the kind described here and simultaenously stand in sight
of their supervisors "laughing."
Finally, even in the attempt to explain the Respondent's
failure to take what would have been normal disciplinary
action , Grace Rice could not keep her story straight. She
quoted her brother as saying, when he refused to discharge
the men : "we're having them laid off in two days." This
means that by the 22d the decision to lay off a large group
precisely on the 24th had already been reached. Again
from Rice's testimony: "my brother decided rather than
fire them on the spot, just to put up with them for two
more days... .
And then came the following from the witness:
Q. That was a decision made by whom, you and
who else?
A. The decision to lay off, or whom to lay off?
Q. To.
A. To lay off, my brother Robert and I made the
decision to lay off, due to the fact that our spool activ-
ity would no longer be, for a while.
Q. When was that decision made?
A. The 23rd, so that we could have the pays made
up on the 24th, which they were paid before Christ-
mas.
Q. You and your brother made the decision on the
23rd of December to have the layoff on the 24th of
December?
A. That's right. We knew it was coming, but we
hadn't set the date yet.
Q. Not until the 23rd had you set the date for the
layoff on the 24th. Is that right?
A. No-yes.. . .
Rice 's testimony simply cannot be believed. I do not be-
lieve there was any misconduct or serious error by Kenton
Kimble and Burrows that day, and I do not believe they
were discharged for any just cause, as contended by the
Respondent for the first time at the hearing. I credit in-
stead the testimony of Lucy Holbert, that the day before
she was laid off with the large group, but after Obed Kim-
ble had been discharged-therefore on December 23-she
heard Robert Daley say "that he'd finally got rid of that
one that had started the union, when he fired Kimble .. .
he told him [the man Robert Daley was talking to] that
there had never been a union there, that they had tried in
Vienna, and he had fired everybody, and said he'd do the
same thing there, because he'd never had the union there."
I also credit the following testimony by David Smearman,
then an employee, although denied by Rice. He testified
that in late November she "asked me if I knew who started
the union. The first time I acted like I never heard it... .
She asked me again, and I said Gabe [Obed's nickname]
Kimble started it." David Smearman's testimony continues
that that same day Rice also asked him "how I felt about
the union . . . I told her I thought it'd do a lot of good in
there. . . . she said if the union did get in there, it wouldn't
do anybody any good, because she'd fire them."
I find that by telling Holbert he had discharged other
employees for joining the Union and that he would dis-
charge employees in this plant to discourage their union
activities, and by telling both Obed Kimble and Kenton
Kimble he was going to get rid of the employees who were
"causing trouble through the Union," Daley, for the Re-
spondent, violated Section 8(a)(1) of the Act. I also find
that by questioning David Smearman about who started
the Union, and then telling him prounion employees would
be fired, Grace Rice also violated Section 8(a)(1). And fi-
nally I find that the Respondent discharged Obed Kimble
on December 22, 1975, and Kenton Kimble and Robert
Burrows on January 24-by failing to recall them when all
others were recalled-because of their prounion activities,
and thereby violated Section 8(a)(3) of the Act?
D. Discharge of David Smearman
I find the probative evidence of illegal motivation in the
December 16 discharge of this employee insufficient to sat-
isfy the affirmative burden of proof resting upon the com-
plaint, and shall therefore recommend dismissal of the
complaint as to him. He did attend some union meetings
and he did sign a card at home. There is confused evidence
3In his brief the General Counsel effectively argues that the total evi-
dence would support a finding that the mass layoff of December 24 was
directly tied to the election scheduled for January 16 The threats voiced by
management to utilize exactly that technique to kill off the union campaign,
the timing of the events, the absence of objective proof to support the other-
wise general statement that such a layoff was necessary , and the recall, only
a week after the election, of the total group with the sole exception of the
two known union activists, certainly is strong indication of illegal motive in
sending such a large number of employees home at just that time But the
complaint does not allege the action of December 24 to have been unlawful,
and the case was not tried with such a contention as an issue in litigation
However strong the Respondent's animus against the Union may have
been, as shown on the record, it was still entitled, as is any respondent, to be
told in advance that it would be held accountable for such a broadside
charge I think it would be unfair to make the broad unfair labor practice
finding now belatedly urged by the General Counsel
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on whether one or two union meetings were held at his
home-was he or was he not living in the same apartment
with Janet Smearman at the time, the girl whose discharge
is considered above, and whom he married on December
24? The matter is of little significance; he solicited no one
else to join the Union.
He was absent from work 3 consecutive days, December
13, 14, and 15, and he said he had someone call in for him
only the first day. His story is he had a bad knee and had
gone to the doctor. He did not report for work on the 16th
either, again violating the conceded reporting rule, for he
admitted he had no one report him off for that day. When
Janet Smearman was told, on the morning of the 16th by
Grace Rice, that she was being dismissed, she returned and
told David he too had been discharged. This is David's
testimony. With this, he came to the plant and showed
Rice a doctor's certificate, apparently hoping it would
serve to save his job. Rice told him the certificate had noth-
ing to do with the question, and so long as he had violated
the known rule he was through.
Unlike the case of Janet, as to whom Grace Rice could
not have assumed an intent to quit after the girl had al-
ready come back to work, here it is a fact David Smearman
stayed away at least 3 days without sending any word in to
management. If, as Grace Rice said also with respect to
this employee, she assumed he intended not to return at all,
she could logically do so. In these circumstances, the Gen-
eral Counsel's argument that general animosity towards the
union movement-as clearly shown on this total rec-
ord-suffices to prove pinpointed intent to discriminate il-
legally against this particular individual, is not sufficiently
persuasive. When a working rule is clearly in effect, and
when an employee without question violates it, something
more than general evidence of union animus in the em-
ployer is required before a violation of Section 8(a)(3) of
the Act can be found. Moreover, David Smearman's unre-
liable testimony does not serve to strengthen his case. He
tried to justify his earlier absences on the ground that his
medical condition prevented him from working, but the
certificate he produced to prove the assertion is dated the
13th and says nothing more than that the "patient may
return to work Tuesday, 12-16, 75." And to explain his
failure to go to work on the 16th, he said he had an ap-
pointment with the doctor for that day. In the end he ad-
mitted he never did keep such an appointment, not even
calling his doctor's office to say he was not going.
IV. THE REMEDY
The Respondent must be ordered to cease and desist
from committing future unfair labor practices, to reinstate
the unlawfully discharged employees, and to post appropri-
ate notices.
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By discharging Janet Smearman, Obed Kimble, Ken-
ton Kimble, and Robert Burrows for engaging in union
activities the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
2. By the foregoing conduct, by telling employees the
Respondent would close its plant or move it to another city
if the employees continued their union activities, by threat-
ening to discharge employees in retaliation to put a stop to
their union activities, by interrogating employees about
their union activities, and by questioning employees about
the union activities of other employees, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
The Respondent, City Ice Company, Inc., Parkersburg,
West Virginia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against employees because of their union activities.
(b) Telling employees the Respondent would close its
plant or move it to another State if the employees contin-
ued their union activities, threatening to discharge employ-
ees in retaliation to put a stop to their union activities,
interrogating employees about their union activities, or
questioning employees about the union activities of other
employees
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-orga-
nization, to form, join, or assist Laborers' Local No. 1085,
Laborers' International Union of North America, AFL-
CIO, or any other labor organization, to bargain collective-
ly through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
CITY ICE COMPANY, INC
(a) Offer Janet Smearman, Obed Kimble, Kenton Kim-
ble, and Robert Burrows immediate and full reinstatement
to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges.
(b) Make whole these four employees for any loss of pay
or any benefits they may have suffered by reason of the
Respondent's discrimination against them, plus interest at
6 percent per annum.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its place of business in Parkersburg, West
Virginia, copies of the attached notice marked "Appen-
dix." 5 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
its representatives, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by it to insure
that said notice is not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days of the date of this Order, what steps the
Respondent has taken to comply herewith.
To the extent that the complaint alleges illegal discrimi-
nation against David Smearman, I hereby recommend that
the complaint be, and it hereby is, dismissed.
5 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
1339
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Janet Smearman, Obed Kimble, Ken-
ton Kimble, and Robert Burrows immediate and full
reinstatement to their former positions or, if such posi-
tions no longer exist, to substantially equivalent posi-
tions.
WE WILL pay to each of these four employees for any
loss of earnings they may have suffered as a result of
our discrimination against them, plus 6-percent inter-
est.
WE WILL NOT discharge employees or in any other
manner discriminate against them because they
choose to engage in union activities.
WE WILL NOT tell our employees that we will close
our plant or move it to another city if the employees
continue union activities.
WE WILL NOT threaten to discharge employees in re-
taliation to put a stop to their union activities.
WE WILL NOT interrogate our employees about their
union activities.
WE WILL NOT question our employees about the
union activities of their fellow workers.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the excercise of
their rights to self organization, to join or assist Labor-
ers' Local No. 1085, Laborers' International Union of
North America, AFL-CIO, or any other labor organi-
zation, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual
aid or protection or to refrain from any and all such
activities.
CITY ICE COMPANY, INC.