Cooper-Hewitt Electric Co., Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1967

162 N.L.R.B. 1634 (N.L.R.B. 1967)

1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miscellaneous Drivers Local Union No. 83, Teamsters (Marshall & Haas), 133
NLRB 1144. I find that case clearly distinguishable from the instant case. In
Marshall & Haas the prime contractor was not a party to the dispute with the
subcontractor and the notice was given to show the possibility of a stoppage might
occur on the job and, presumably, to offer it the chance to settle the dispute. Here
Bums was a primary party to the dispute and the threats made to White and the
work stoppages were directed to the failure on the part of Burns as well as White
to sign a contract. Under such circumstances I find that the threats and coercion
directed to White were directed equally to Burns. It was only the fortuitous circum-
stance that Burns employed no engineers at the jobsite that precluded it from suffer-
ing stoppages. I shall therefore include Burns in the Recommended Order.
1V. THE REMEDY
Having found the Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
The General Counsel has requested that a Board Order issue in this case in
view of prior violations of the Act by Respondent and its failure to comply with
Board Orders.24 I agree and shall recommend an order in the form requested by
the General Counsel.25
Upon the foregoing findings and conclusions and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. By inducing and encouraging individuals employed by Chicago Bridge, Porier,
and White to engage in work stoppages and refusal in the course of their employ-
ment to perform any services, by threatening, coercing, and restraining Bums,
Chicago Bridge, Porier, and White with an object in each case of forcing and
requiring White to assign the work of operating its electrical welding machine at
Oyster Creek to employees engaged as operating engineers who are represented by
Respondent and who are not lawfully entitled to such work rather than to employ-
ees engaged as ironworkers who were represented by the Ironworkers and were
lawfully entitled to such work, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i) and (ii) (D) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.] 26
21 See Operating Engineers, Local 825, 145 NLRB 952; Local 825, Operating Engineers,
140 NLRB 458; enfd 326 F 2d 213 (CA. 3) ; Local 825, Operating Engineers, 138 NLRB
279, enfd 332 F.2d 478 (C.A. 3) ; Local 825, Operating Engineers, 131 NLRB 452; Local
825, Operating Engineers, 120 NLRB 545.
nLocal 825, Operating Engineers (United Engineers), 138 NLRB 279
In keeping with Board policy, see L. L. Glascock, Inc, 160 NLRB 922, in which the
Board revised Examiner Reel's notice to make it unintelligible to the average employee,
the attached notice has been drafted with the purpose of similar obfuscation. It might
appear, as it seemingly did to the Trial Examiner in Glascock, that it would be the policy
of the Board to make its decisions clear to those most vitally affected by them, which
in this instance would include union members as well as the employers. Such is not the
case. The operating engineer who understands this notice has missed his vocation He
should be deciphering the Dead Sea scrolls.
Sperti Sunlamp Division Cooper -Hewitt Electric Co., Inc. and
United Steelworkers of America , AFL-CIO. Case 9-CA-3669.
February 14, 1967
DECISION AND ORDER
On May 11, 1966, Trial Examiner Robert Cohn issued his Decision
in the above-named proceeding, finding that Respondent had
162 NLRB No. 158.
SPERTI SUNLAMP DIV. 1635
engaged in and was engaging in certain unfair labor practices alleged
in the complaint and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He further found that Respondent had
riot engaged in other alleged unfair labor practices and recommended
that such allegations be dismissed. Thereafter, Respondent and the
Union filed exceptions to the Decision, and Respondent filed a brief.
Respondent also filed a brief in answer to the exceptions filed by the
Union. Thereafter, the Union moved that this case be consolidated
with Case 9-CA-3553, on the ground that both cases presented com-
mon questions of law and fact, and consolidation was necessary for a
complete and just determination. Respondent opposed the motion.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in the case,' and adopts the Trial Examiner's findings only to the
extent consistent with this Decision.
The Trial Examiner recognized that the ultimate disposition of
the present case rested in large part upon credibility findings ; and in
finding that Respondent discriminatorily refused to recall the two
complainants, he relied almost entirely on parts of Roland's testimony
attributing discriminatory motivation to Plant Manager Razete.
It is our customary practice not to overrule a Trial Examiner's
resolutions as to credibility unless a clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Such
a preponderance exists here. Thus, the Trial Examiner conceded that
parts of Roland's testimony were not credible, but in crediting other
fragments thereof bearing specifically on the issue of Razete's dis-
criminatory motivation relied to a considerable extent on testimony
by Duff and Robertson concerning interrogations by Razete about
the Union. However, this testimony was given, not in the present case,
but before another Trial Examiner in an earlier case (Case 9-CA-
3553) 2 and stipulated into the present record. The Trial Examiner
' The Union's motion to consolidate is hereby denied, since we find that this case and
Case 9-CA-3553 Involve separate and distinct issues and consolidation is not necessary in
order to make a proper determination . The request of Respondent for oral argument is
denied, as the record and briefs in our opinion adequately present the positions of the
parties.
A 162 NLRB 1148.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thus had no opportunity to observe the demeanor of Duff or Robert-
son or to appraise their credibility. Moreover, he did not consider or
discuss the fact, likewise stipulated into the present record, that
Razete in the earlier case had denied the interrogations which Duff
and Robertson attributed to him; the Trial Examiner in the earlier
case, who did have an opportunity to observe the demeanor of Duff
and Robertson, discredited their testimony. In addition, we note that
Respondent was not found to have engaged in any unfair labor prac-
tices or exhibited any union animus in the earlier case.
Since in our opinion the credible evidence does not support the
Trial Examiner's finding that the Respondent was discriminatorily
motivated in failing to recall the complainants, we shall dismiss the
complaint in its entirety.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard at Cincinnati, Ohio, on January 4, 6, and 7, 1966, before
Trial Examiner Robert Cohn pursuant to a charge and an amended charge filed
August 18, and September 17, 1965,' respectively, and a complaint and notice of
hearing issued October 26, as amended December 20, presents issues as to whether
Sperti Sunlamp Division, Cooper-Hewitt Electric Co., Inc., Respondent herein, dis-
charged and/or laid off two of its employees on specified dates in March, and has
since failed and refused to reinstate them because of their sympathy for, mem-
bership in, and activities on behalf of United Steelworkers of America, AFL-CIO,
the Charging Party (herein called the Union).
Upon the entire record,2 including my observation of the witnesses while testify-
ing, and after due consideration of the briefs filed by counsel for all parties, I
make the following:
FINDINGS OF FACT3
I. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background and setting of the issues
Respondent is engaged at its South Fort Mitchell, Kentucky, plant in the manu-
facture and sale of sunlamps. It has been so engaged at this location since the
latter part of 1963, and at the time of the events giving rise to the instant pro-
ceeding, employed approximately 54 production and maintenance employees,
principally females. For our purposes, it may be stated that the production facili-
1 Unless otherwise indicated , all dates refer to 1965
2 Pursuant to a stipulation of the parties at the hearing, I have also taken judicial
notice of certain designated portions of the transcript involving the same parties in a
prior proceeding. (Case 9-CA-3553 ) Such designations from each of the parties (which
were served upon each of the other parties subsequent to the hearing), have been in-
cluded in the formal exhibit file as Trial Examiner's Exhibits 1, 2, and 3, denoting
designations from the General Counsel, Charging Party, and Respondent, respectively.
Subsequent to receipt of such designations, General Counsel objected to certain desig-
nations of Respondent primarily on grounds of relevancy . I agree that some of the testi-
mony cited by all the parties has little bearing on the limited Issues in the Instant
proceeding, and some of that which has relevancy, Is cumulative and redundant. Accord-
ingly, I have relied on the cited testimony only minimally in my Decision , and where
relied upon, I have so specified.
3 No issue of commerce or labor organization Is presented herein. The complaint alleges,
and the admissions in the answer filed by Respondent establish, the facts to prove both
of those elements I find these facts to be as pleaded { . r
SPERTI SUNLAMP DIV. 1637
ties can be broken down into two principal departments: the glass manufacturing
department and the assembly line. The employees in the former classification are
the more skilled employees, require a longer period of training, and normally
have been with the Company for a longer period of time. During the greater
part of the critical period herein, i.e., late winter and early spring of 1965, one
John J Razete was production manager in charge of all the employees and the
day-to-day operation of the plant. Razete's chief assistants were Joyce Parsons, a
forelady, and Warren Miller, assistant production manager.4
During the first couple months of 1965, the Union began its organizational
campaign among the employees of the Respondent. Such campaign commenced
with the union organizer contacting employees advising them of the asserted bene-
fits of becoming members of the organization and having it represent them for
collective-bargaining purposes, and attempting to induce them to convey the same
message among their fellow employees. On or about March 4, the Union mailed
a letter to a number of the employees to which was attached a union authorization
card. The letter spoke of the benefits which the Union could offer employees, and
requested the recipient to sign the enclosed card and mail it back to the Union.
A second letter with a card enclosure was mailed to some of the employees of
Respondent on April 3, and at least two union meetings were held at a nearby
restaurant in the area during the week commencing March 29.
Both alleged discriminatees in this case were employees of Respondent prior
to and during the instigation of the Union's campaign. They testified that they
participated in the union activities heretofore described, and the General Counsel
and Charging Union contend that they were discharged and later refused rein-
statement because of such activities Respondent urges that both of them volun-
tarily quit their employment and were subsequently replaced, and that, in any
event, it had no knowledge of any union activities of the two. The issues thus
joined, we proceed to set forth and analyze the evidence respecting the opposing
contentions.
B. The alleged discrimination as respects Gladys Roland
Gladys Roland was hired by the Respondent on October 30, 1963, and worked
continuously until she became ill with pneumonia on or about February 10, 1965.
She was originally hired as a line worker on the assembly side since, at that time,
the Company was not producing glass products. At the time of her illness she was
being trained for the position of the line leader, which involved supplying mate-
rials to the employees on the line and was apparently a semisupervisory job. How-
ever, when it became apparent that due to the severity of her illness, Roland would
not be able to return to work for a matter of a month or more, Respondent
replaced her with another employee named Dora Riders
On either Monday, March 22, or Tuesday, March 23, Roland without previous
notification to the Company, returned to the plant for the first time following her
illness.6 Roland claimed that she returned to the plant, not for the purpose of
reporting for work (since she testified that the doctor had not released her to
return to work), but because it had been reported to her by fellow employees that
her lob was in jeopardy and she wished to talk to Razete about it. She was brought
to the plant by her husband, who waited outside for her in a car in the parking
lot. She did not punch a timeclock, as would normally be the custom; however,
she did report about 8 a.m. that day and saw Forelady Parsons at the latter's
desk. She told Parsons that she would like to talk to Razete, but Parsons advised
that he was not in the plant at that time and asked Roland if she could wait.
Roland said yes. Parsons then asked if Roland would repair some lamps while she
was waiting, and she agreed.
4 During the summer of 1965, Miller assumed some of the personnel as well as other
duties theretofore performed by Razete.
5 There is no issue of notification to Respondent of Roland's Illness She advised
Parsons by telephone , and Respondent was also kept informed through her sister, Clara
Miller, who worked at the plant Razete testified that he told Roland's husband to transmit
the message to her that " . . when she came back she would have a job, for her to get
well, not to worry about the job "
There is considerable disagreement among the parties as to which of the days Roland
actually came to the plant, she claiming that it was the 23d while the Respondent claims
the 22d I deem it unnecessary to resolve the conflict for the purpose of disposition of
the ultimate issue of discrimination.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After she worked for approximately an hour , Roland, according to her testi-
mony, advised Parsons that she could not stay any longer because her husband
was waiting . She expressed concern to Parsons about her job since , as she stated,
some of her fellow employees had visited her home and told her of various occur-
rences at the plant , the result of which she gained the impression that she might
not get her old job back . She asked Parsons if this were so, and , Parsons replied
yes-that the replacement ( Dora Rider ) had been made while Roland was sick.
Parsons asked Roland if the latter would call Razete later, and Roland said that
she would.?
After having repaired lamps for approximately 11/2 to 2 hours, Roland testified
that she thereafter left the plant without further conversation with any person
except that she did "pass some words with Joyce , walking down ." However,
Respondent offered the testimony of four employee witnesses ,8 who testified as to
some conversations involving Roland which occurred in the ladies' washroom dur-
ing the 10 o'clock break that morning. The substance of their testimony was that
Roland came into the washroom and took some small articles out of her locker.
Saylor asked if she were sick, to which Roland replied in the negative . Saylor then
inquired where she was going , and Roland responded she was leaving or going
home.9
As Roland was about to leave the washroom , Joyce Parsons came in and
requested that Roland fill out a worksheet for the 2 hours she had been there;
whereupon , Roland replied , "The hell with it," and left.10
Respondent also offered the testimony of Leota Crawford who testified that she
had a conversation with Roland at the 10 o'clock break; that she (Crawford) had
finished washing her hands and apparently met Roland in the hallway and inquired
where she was going . Roland replied, "I just quit this damn job," and proceeded
toward the dressing room . Crawford went to the lunchroom to have coffee, and
had no further conversation with Roland."
4 Parsons ' version is substantially different She related that Roland came in that
morning, stating that she was ready to go to work , and that she ( Parsons ) placed her
in the repair department where help was needed at the time . She further testified that
about 8*30 or 8 : 45, she went over to the repair department and asked Roland if the
latter wished to sit down, and offered her a chair. Roland said no, that she was going to
quit at 10 o'clock.
Parsons testified on direct examination, contrary to Roland , that the latter had a con-
versation with Razete that morning about 9 am , but that she did not hear what was
said However , later in her testimony, she changed her story, and recalled that she did
overhear part of the conversation , which took place at Razete ' s desk . He inquired as to
her health and recommended the repair department as a good opportunity for her, she
stated that she wanted her old job back and did not desire to work in repairs Parsons'
testimony in this regard is corroborated in its essential aspects by Razete In addition
he stated that he did not see Roland any more that day but that she called hint the
following morning and he asked where she went. She said that she had left the plant-
that she had quit. He requested that she reconsider , and about 2 days later she called
again and stated she wanted her old job back and he told her that he could not do that
for her but that he needed her help in the repair department , and asked her to come
into the plant at the earliest possible time
8 Stella Saylor , Goldie Woodyard , Wanda Cobey, and Opal Colcord
6 One of the witnesses , Opal Colcord , testified on direct examination that Roland stated
that she was "quitting " However, on cross-examination , Colcord conceded that she was
not certain whether Roland used the word "quitting," and admitted that the latter
could have stated that she was "leaving "
11 The record reflects , however , that Roland did sign a timecard indicating that she had
worked in the repair department for 2 hours on March 22 , 1905 ( Respondent ' s Exhibit 2).
Roland explained that Joyce Parsons gave her the document on March 26 when she visited
the plant , Parsons explaining that Razete had instructed that she fill out a worksheet
for 2 hours and to date it the 22d . Roland complied.
u As previously noted , Roland denied having conversations with other employees follow-
ing her work at the plant that day However , these employees appeared to be truthful
witnesses and I credit their testimony I am inclined to believe that Roland was attempt-
ing to minimize the import of her testimony on this occasion , and I have taken this into
consideration in making a determination as to whether any recovery should he allowed
her. Since I have found , as more fully detailed, infra, that Respondent has violated the
Act, which is a statute designed primarily to protect public-not private-rights, I have
determined that my finding in this regard should not affect the normal remedy in this
type of case.
SPERTI SUNLAMP DIV. 1639
Roland testified that she called Razete the next morning (Tuesday) and asked if
Parsons had told him that she had been in the plant, and he replied, "Yes, Joyce
told me you had quit." Roland replied that that was not true because she had not
been released by her doctor, that it would be another week before she could return
to her work, and asked Razete would she get her same job back when she returned.
He responded in the negative, and stated that he wanted her in the repair depart-
ment. He asked her to think it over and call him back in the afternoon. She testi-
fied that she called him back the same afternoon and told him that she had ". .
thought about the job, and that most probably I could come in to work the follow
ing Monday .. . ." He replied that he wanted her to come back to work but that
he also wished to speak to her at her earliest convenience. She replied that she
could come in the following Friday when her husband came into town to sign for
his unemployment.
Roland met Razete in the plant cafeteria about 2 p.m. on Friday, March 26
There was no one present but Razete and herself, and he asked her if she knew
anything about the Union. She inquired, "What union?" and he named the United
Steelworkers He advised her that he knew that the employees had been receiving
cards and letters because Helen Hook had showed him her card and letter and
tore it up in front of him, that he knew that five of his "old girls" were for it, but
that he was not going to have a union in the plant-that he would ". . . close the
doors and move first." He further advised that there was going to be a union meet-
ing at the Rio Rita (a restaurant) the following Tuesday evening and asked Roland
if she would attend, that if she went, ". . . the girls will be afraid to talk in front
of you, and the Union will be dead." He further requested that she report who was
at the meeting, and then he would tell her when she could come back to work.
Razete concluded the conversation by stating that he was going upstairs and call a
meeting of the employees and close the plant down.12 Roland told him that she
would attend the meeting and call him back.
Razete's version of the conversation differs substantially from Roland's. He stated
that he attempted to explain to Roland her value to the Company and particu-
larly at that time the dire need for someone with her experience in the repair
department. He asked her to explain what her problems were, and she responded
by saying that he had selected the wrong girl to take her place-that Dora Rider
was the union organizer. He responded, "That doesn't make a particle of difference
to me." For reasons cited below, his version is not credited.13
Roland testified that she next contacted Razete by the telephone the following
Monday to advise that she had been released by her doctor and was ready to return
to work. He replied that the only employees working were the girls in the glass
department and to call him after the meeting on Tuesday night.
Roland testified that she attended two union meetings that week, one on
March 30 and the second on April. 1, at the Rio Rita Restaurant and Three-L
Highway, respectively, and that she contacted Razete by telephone following the
meetings. When she telephoned Razete on the morning following the March 30
meeting, he asked several questions about the meeting: How many were there
12 Razete called a meeting of all the production employees that afternoon about 4 p in ,
in the lunchroom. He told them that due to shortage of materials they would be laid off
and that the Company would be in contact with them over the weekend to advise the
people that were needed to report for work the following Monday morning Company
records (General Counsel's Exhibit 2), reflect that approximately half of the employees
were recalled to work the following Monday morning, and that the great majority had
been recalled by July 1965 (including those who had been "terminated" on April 19)
However, It is not alleged either in the instant or the prior proceeding involving this
Respondent that such layoff was discriminatorily motivated, and accordingly, it is not
an issue in this proceeding
13 Although I have not credited Roland on some other aspects of her testimony respect-
ing the events of March 22 (or 23), for reasons partially set forth sopra, and elaborated
upon snfra (in the Analysis section of this Decision), I credit her version of her con-
versation with Razete In the light of the following factors (not listed necessarily in
order of importance) - (1) From the record as a whole, Including the interrogations of
Roland in this proceeding, and of Duff and Robertson in the prior proceedings, I am con-
vinced of Razete's extreme interest in, and ardent desire to learn more about, the union
activities of the employees and of the identity of those taking part In such activities; (2)
the contradictions in his testimony as to when he first learned of such activities, as well
as in other respects; and (3) Roland did not impress me as one who would-or was intel-
lectually capable of-fabricating this line of testimony out of the whole cloth.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(about half of us ), if there was a vote (no), if a majority talked in favor of
the Union (yes), what the next move is (we are having another meeting the
following Thursday). Razete then advised that there was no point in Roland's
coming back to work since he just had employees in the glass department working,
and requested that she attend the next meeting and call him-that after he saw
what "they were doing," he would be able to say when she would be coming back
to work.
Roland attended the April 1 union meeting and testified that she called Razete
the following morning. He asked substantially the same questions as heretofore set
forth , and she responded similarly. He then inquired if any male employees were
there and she responded affirmatively. He asked who they were but she refused
to disclose their names; whereupon , he asked specifically if Carlos Webb was
there, and she said no. He then stated that Carlos was supposed to have worked
late that night but did not return , and commented , "Gladys, your story and the
other girls ' stories don 't jibe." 14
Roland's next contact with Razete was by telephone at the plant on or about
April 6. She asked if she could come back to work yet , and he replied that there
were many employees trying to get their jobs back who would ". . . tell me any-
thing I want to know about the Union lust to get their jobs ." He also advised that
he had employees who would testify that Roland quit her job,15 and that he had
girls who had told him that she was "a very busy little girl with union activities,16
and so far as he was concerned he wasn't bargaining with me, or any union
organization." 17
Roland testified that she called Razete at his home on a Sunday night in April.
She described it as follows:
I again asked Mr . Razete, I told him that he knew that I didn 't quit my job,
and that I would like to come back to work, that I needed my work because
of my husband being laid off. And he says, "Well, Gladys, but you did quit."
and he says , again he told me that he had girls that had told him that I had
quit-that they would testify that I had quit-and that he had girls that would
tell him that I was a very busy little girl with Union activities ; and that's the
way he felt , and I no longer had a job.18
It The foregoing findings respecting the events at the union meetings and Roland's
reports to Razete , are not specifically denied by the latter He merely testified that she
telephoned him on Monday , the 29th , requesting her old job back, and he replied that he
could not do this but that she could come back to work in the repair department ; that she
then threatened him by stating, "you will be receiving a letter, and then we will see who
comes hack to work in that plant " He testified that she called him again at the plant a
few days later and again requested her old job back ; whereupon he replied , "Gladys, this
is getting tiresome , please don ' t call me again if you are going to say the same thing,"
and hung up . Under all the circumstances , including the elements heretofore described,
and the fact that in the prior proceedings ( Tr. 70-71) Razete asked substantially the
same questions of Chelsea Robertson , I credit Roland ' s testimony and find that the con-
tent of the conversations to be substantially as she testified.
11 In this connection I note that Respondent 's witness, Leota Crawford, testified un-
deniably that the day following her conversation with Roland , heretofore set forth
(wherein Roland admitted to her on or about March 22 that she was quitting ), Crawford
advised Parsons concerning such conversation Parsons then asked Crawford If she would
sign a statement to that effect . The record is not clear as to whether she actually signed
a statement, but there is a reasonable inference that this was the type of testimony to
which Razete was referring
"'The record shows that about this time Roland solicited employees on behalf of the
Union at their homes, in the company of fellow employees , Jean Hickman , Pat Fteger, and
Clara Miller.
i This telephone conversation , and the contents thereof, are not specifically denied by
Razete , he testified that the next contact he had with Roland was a telephone conversa-
tion on a Sunday evening in April at his home, as described infra
11 Razete acknowledged that Roland had called him at his home on a Sunday evening
in April. but contended that she called primarily to apologize for what she had "done to
[himl and Joyce" , and that she wanted to talk to Joyce about her dog (Joyce had given
her a dog ) ; and that she wanted her old job back He responded that he could not go
through that again, that she had his offer and that In fact the repair job was now filled.
He denied that there was any conversation about any union or labor matters To the ex-
tent that the versions differ, I credit Roland for the reasons heretofore cited.
SPERTI SUNLAMP DIV. 1641
Parsons testified that Roland called her at her home one night in late April and
stated the following:
She asked me if she couldn't have her job back, that size would take any job
at any rate and I told her it was completely out of my hands. [Emphasis
supplied.]
Roland's last contact with the Company was a telephone call to Razete on
April 23, which, perhaps, may best be stated in her own words:
When I called Mr. Razete I told him that I knew that there were assembly
girls working as well as glass girls; and he says, "Yes, Gladys, all with the
exception of you, and you quit." And I said, "Mr. Razete, I did not quit." He
said, "You punched a card in and you punched a card out, as of . .." date
March 22, or 23, or some date. And I told him, "Mr. Razete, I did not punch
a card in or out," and I did not. And I told him that my husband drove me
down there because he was in a borrowed car from a garage waiting to have
ours fixed. I said I only came in to talk with him because I was interested in
my job. And again he told me that he had girls that had told him I had quit
my job, that would testify I had quit my job. Again he said girls said I was a
very busy girl with union activity, and so far as he was concerned I didn't
have a job there. And I said, "If you are not going to call me back to work,
Mr. Razete, I am going to put in for unemployment." And he said, "I don't
know what the procedure on that is, Gladys, I have never been in a position
to have to draw it." 19
There was no subsequent contact between Roland and the Company. She was
never recalled to work.
C. The alleged discrimination against Jean Hickman
This employee was hired November 24, 1964, on the assembly line. After
approximately 3 weeks, she was assigned to operate the rivet machine which she
did continuously until she ceased working for the Company in March 1965. During
her term of employment, her wage rate rose from $1.25 to $1.30 per hour, and
her testimony that she was complimented on her work during this period was
undenied. Indeed, in his testimony at the prior hearing, Razete testified that Hick-
man "operated the riveter along with other things, and she was good."
Hickman did not report for work on Monday, March 15, because, she asserts,
of illness. She requested her sister, Leova Morris, 20 and her half-sister, Ruby Van-
landingham, who were also employed by Respondent and with whom she rode to
work, to advise the Company that she would not be in. Morris testified credibly
that she advised Forelady Parsons on March 15 that Hickman was sick and Par-
sons replied that it was "okay." Morris further related that she told Parsons on
March 16 that Hickman was still sick and would not be back the rest of the week.
Vanlandingham testified credibly that a few days after Hickman became ill, Parsons
came to the sink where Vanlandingham was working and asked if Hickman was
sick, to which Vanlandingham replied in the affirmative. Parsons then asked her if
Hickman had "family difficulty," and Vanlandingham replied that she did not
know-that Parsons would have to ask Hickman about that 21
19 The foregoing testimony was not specifically denied by Razete ; he testified that lie
did not remember talking to Roland after the telephone conversation at his home in April.
20 Referred to in the record sometimes as Leota Morris.
n Parsons ( and the Respondent ) deny that they were ever notified of Hickman's
Illness Parsons testified that a day or two after Hickman failed to report for work,
she asked Vanlandingham where Hickman was, to which the latter replied that "she
didn't care to discuss it " Parsons then asked Morris, and the latter replied that Hickman
went to Georgia-that she had sold her furniture and moved , and that nothing was said
about being ill
That Hickman was in fact sick during this period is referred to by Respondent in its
brief ( p 5), wherein it is stated that in the prior proceeding the deposition of Hickman's
doctor was taken , and the doctor testified that lie saw and treated this lady on March 17
for a virus cold This testimony , taken with that of Vanlandingham and Morris , both of
whom impressed me favorably as witnesses (although I recognize the bias inherent in
their testimony clue to their relationship to Hickman ), leads me to believe that Hickman
was, In fact , ill, and that Respondent was so notified Finally , I notice in the prior
record that Razete testified that he asked Parsons several days after March 15 where
Hickman was , to which the latter replied, "She's off sick "
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously noted, Hickman returned to the plant on March 30 in the com-
pany of her fellow employee, Pat Fieger, to see about returning to-work. Accord-
ing to Hickman's testimony, Razete asked her how she was feeling. She told him
that she felt better and would like to return to work. He advised that there had
been a large layoff the preceding Friday due to lack of material, and that when
work started picking up he would call her and Fieger back. Hickman asked if she
should bring in a doctor's certificate, and he replied that that was not necessary.22
Hickman testified that she telephoned the plant during the next several months
seeking reemployment, without success.23 Whereupon, she visited the plant on
July 12 to see about getting her job back, and talked to Razete. He asknowledged
that he had called a few of the girls back,24 but there was still a material shortage
and as soon as work picked up they would call her back; however, he advised her
that he still considered her a voluntary quit. She asked why, and he replied that
she had not worked the 2 weeks before the layoff, and that if she did come back it
would be as a new employee making $1.25 per hour again, and that it probably
would not be until around September. He also advised he had heard "bad things"
about her but would not tell her what they were. In closing, he directed that she
leave her address and telephone number with the office employees.25
Hickman next visited Respondent's plant, in the company of Pat Fieger, on
September 8. At that time they were interviewed by Warren Miller who had appar-
ently assumed Razete's position with respect to hiring or recalling of employees.
When they asked Miller if they could have their jobs back, he replied that he
remembered Mrs. Fieger but did not recall Hickman.26 Miller advised that he
would check into the matter with Razete and would be in contact with them.
According to Hickman's testimony, she next called the Company on Septem-
ber 14 and spoke with Miller. She asked him when he was going to call her and
Fieger back to work, and he replied that he had not had a chance to talk to Razete.
Hickman advised that she thought Miller was treating them unfair, and giving
them the "run around," that she had contacted a union representative who had
advised her to file a charge of unfair labor practices. Miller asked that she give
him until the following morning and call him back. She did so, and he again stated
that he had not had an opportunity to speak to Razete, and to call him that after-
noon She did so, but was unable to speak to Miller because the person answering
the telephone advised that he was in a meeting.
Hickman finally contacted Miller on the morning of September 16 by telephone,
and asked him when he intended to call her and Fieger back to work. He replied
that he had sent a notice to Fieger to return to work on September 20, and advised
that he did not intend to call Hickman back. She asked if that was Razete's
decision, and he responded no, it was the Company's. Hickman ended the con-
versation by stating that she would fight for her rights and hung up.27
21 Hickman's testimony Is substantially corroborated by Fieger, who impressed me as a
credible witness. Accordingly, I credit this testimony over that of Ra',ete who stated that
on this occasion he asked Hickman where she had been and her reply was that she had
been ill. He then Inquired why she did not let the Company know, and she replied that
she had been out of town Whereupon, he advised that the Company had considered that
she quit and so designated It on the records. Razete claimed that Hickman denied she
had quit, and he told her that they could not hold her job without having had word from
her. Finally, according to Razete, he advised both women that the plant was partially
shut down because of lack of material, and that he was calling back people as he needed
them
za This is denied by Respondent, but I deem It unnecessary to resolve this particular
credibility question Insofar as It bears on the ultimate issue of alleged discrimination
24 Company records reveal that as of this date 41 of the original 54 employees included
in the layoff of March 26 had been recalled by the Company. This figure Included some
employees who had been "terminated" on April 19, and recalled after that action.
^- The foregoing finding is upon the testimony of Hickman which I credit In this
regard ; Razete testified that he had no further conversation with Hickman after March 30.
20Fieger worked In the glass department where Miller was formerly supervisor
n The foregoing findings are based upon the testimony of Hickman , Fieger , and Miller,
which is not disputed In Its essentials . Miller corroborated the testimony of Hickman
and Fleger, respecting the interview In the plant In September. He further testified that
he received two telephone calls from Hickman during September, the first of which was In
the early part thereof, before the personal interview In that conversation, she asked If
she was going to be called back to work, and he advised that he « as not familiar with
SPERTI SUNLAMP DIV. 1643
With respect to her union activities, Hickman testified that prior to her illness
she had received the union letter and had talked to fellow employees at work about
the matter, trying to find out how many of them had signed cards and sent them
back into the Union. She testified that she signed union cards herself on March 30
and April 5,28 and in the company of Pat Fieger, Gladys Roland, and Clara Miller,
visited employees in their homes who had not received the letter or had not
attended the first union meeting , to get them to sign cards.
D. Analysis and concluding findings
As counsel acknowledged, and as is plainly evident from the most cursory
reading of the foregoing recitation, the ultimate findings and conclusions in this
case rest in large part upon credibility findings. This always unhappy and difficult
chore of the fact finder is rendered perhaps more so here for the reason that the
principal participants have told their stories on the witness stand at least twice
(and some more than that) in addition to having given prehearing affidavits in at
least two different cases bearing upon similar factual situations. Under such circum-
stances, it would be an unimaginative advocate indeed who could not discover and
forcefully aigue discrepancies and contradictions in testimony. Added to this is the
fact that the hearing herein took place some 9 months following the critical events.
I have considered all of these factors in making credibility findings including,
as previously noted, my observation of the witnesses while testifying, along with
the "consistency and inherent probability of testimony." (Universal Camera Cor-
poration v. N.L.R.B., 240 U.S. 474.)
I have concluded that some of the witnesses for each party testified truthfully
in some respects and untruthfully in others. At first blush, this may seem not to
comport with reality, but "nothing is more common in all kinds of judicial decisions
than to believe some and not all" of the testimony of a witness [N.L.R.B. v. Uni-
versal Camera Corp., 179 F.2d 749, 754 (C.A. 2)]. As a result, "it is no reason for
refusing to accept everything a witness says, because you do not believe all ... .
(Ibid.)
With the foregoing principles in mind, we proceed to a discussion of the merits
of the allegations in this case. Of course, as Respondent correctly argues, the bur-
den is upon the General Counsel to prove the charges, and not upon Respondent
to disprove them. In order to sustain his burden in this type of case, the General
Counsel must prove that the alleged discriminatees engaged in union activities,
that the Respondent knew or had reasonable cause to believe that they were so
engaged, and that it discriminated against them because of such conduct.
However, Respondent incorrectly stated the rule in its brief when it contended
that engaging in protected activities had to be "the sole reason for the discharge
" Rather, the correct principle was stated by the Court of Appeals for the
Second Circuit in N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d
352, enfg. 133 NLRB 911:
The issue before us is not, of course, whether or not there existed grounds
for discharge of these employees apart from their union activities. The fact
that the employer had ample reason for discharging them is of no moment.
It was free to discharge them for any reason good or bad, so long as it did
not discharge them for their union activity. And even though the discharges
may have been based upon other reasons as well, if the employer was partly
motivated by union activity, the discharges were violative of the Act.
[Emphasis supplied.] 29
her at all and had to check the records to see why she had not been called back, which
lie did In the next conversation, he advised her that the records showed that she had left
of her own accord (which she denied) ; that he had spoken to Mr Razete about it, and
"we weren't bringing her back" ; and she said that if they did not recall her she would
bring charges, to which he responded that that was up to her.
29 The second card apparently in response to the Union 's letter ( General Counsel's
Exhibit 5a).
29 See also N.L R B v. Longhorn Transfer Service, Inc. 346 F 2d 1003 (C A. 5, 1965)
Agwilines, Inc. v. N.L.R.B., 87 F.2d 146 (C.A. 5, employee Lazarus) ; N L R B v Harris-
Woodson Company, Inc., 162 F 2d 97, 100-101 (C.A. 4, 1947) ; N.L.R B. v. Jamestown
Sterling Corp, 211 F 2d 725 (CA 2). That this would be true even in the case of a
"dissident and annoying employee." see Duo-Bed Corp. v. N.L.R .B , 337 F.2d 850, 851
(C A. 10).
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, even though Respondent may have had good cause for the terminations
or the refusals to recall the alleged discriminatees herein, such is not necessarily
dispositive of the issue.
As previously noted, the complaint, as amended, alleged that Respondent dis-
charged Roland on March 22 and laid off Hickman on March 26 because of their
union activities. In its answer, Respondent alleged that Hickman left her job during
the week beginning March 6, without notice or excuse to Respondent, and
remained away continuously until April 10; that in the meanwhile Respondent
filled her job and terminated her employment. The answer further contends that
Hickman had had numerous, prior unexplained absences, and had been warned that
any further violation of the rules would be grounds for immediate dismissal
I lay aside for the moment the question of whether or not General Counsel
proved a prima facie case of discriminatory layoff as respects Hickman to state
that, in my judgment, Respondent's proof does not support the foregoing allega-
tions as regards Hickman. The only evidence in the record concerning prior
absences is the vague testimony of Razete, unsupported by any records of Respond-
ent, as follows:
By Mr. SMITH:
Q. Do you recall what if any prior absence she had had?
A. Spotty, I am saying one day here, two days there, something like that, I
am not positive.
Q. You are referring to prior to March of 1965?
A. Yes.3o
Moreover, there was no testimony that such prior, unexplained absences were
ever cited to Hickman as the reason for Respondent's refusal to recall her. On the
contrary, she was consistently told that the reason was because she voluntarily quit
her employment, which reason is, incidentally, noted on the Company's records.
There is absolutely no evidence of Hickman's being warned that another recur-
rence would result in immediate dismissal.
But lack of substance of Respondent's position, does not, of course, make the
case for the General Counsel, although, as he argues, conflicting reasons do tend
to support an inference of discrimination, assuming a prima facie case is made out
[Citing C. W. Radcliffe d/b/a Homedale Tractor & Equipment Co., 101 NLRB
167, 169, enfd. as modified on other grounds 211 F.2d 309 (C.A. 9), cert. denied
348 U.S. 833.] 31
Company knowledge of protected activities is, of course, an essential element
of General Counsel's proof, and, as previously noted, Respondent denies that it
was aware of the union activities of either of the two. As of the time of the alleged
discriminatory terminations, there is concededly no direct evidence of company
knowledge; indeed, as respects Roland, there is slight evidence that she even
engaged in union activities prior to March 22. As respects Hickman, the only evi-
dence of her union activities prior to March 30 was that shortly after she received
the first letter from the Union, she "talked to the girls at work . . . trying to find
out how many of them had signed cards and sent them back to the Union." She
conceded that she did not sign a union card herself until March 30. Accordingly, I
find that there is insufficient, competent evidence upon which to base an inference
that the Respondent knew of any protected activities of Roland or Hickman as of
the time of the terminations alleged in the complaint. I shall, therefore, recom-
mend that the complaint be dismissed insofar as it alleges that Respondent dis-
charged or laid off the two for discriminatory reasons.32
30 At the prior hearing, Razete was asked.
Q Are you familiar with her [Hickman's] record of attendance
A. No, sir. (Tr p. 841)
Later (Tr 975), after his recollection was refreshed, lie testified:
Q. Will you state whether or not she was off in February 7
A. Yes, she had absences during the month of February
Q And to your knowledge did you have any knowledge of what those absences
were for
A. Illness.
31 See also Plains Cooperative Oil Mills, 154 NLRB 1003 Detroit Plastic Products Com-
pany, 121 NLRB 448.
"In addition to lack of company knowledge, I find, as regards Roland, based upon
credited testimony hereinabove discussed, that as of March 22 she was disinclined to
SPERTI SUNLAMP DIV. 1645
However, the complaint, as amended, alleges discriminatory refusal to reinstate
the two, so it is necessary to further examine and analyze the evidence pursuant
to this contention. Respondent, in its answer, as amended, concedes that it has
refused to reinstate or reemploy them, and cites as reasons therefor that both quit
their job, and, as regards Roland, states that Respondent on various occasions after
March 22 offered reemployment to her, which was refused; whereupon Respondent
replaced her with another person 33 I find that the evidence does not support
Respondent's contentions.
Thus the union campaign increased in intensity during the week commencing
March 29.34 There were two union meetings that week, and solicitations for union
membership among the employees accelerated. That these activities came to the
attention of management is shown by the testimony of Razete who admitted that
he first learned of the union activities among the employees on March 30 when
notices of the union meeting filtered through the plant.35 Based upon Roland's
credited testimony, it appears that Razete first intended to use her as a company
spy, but then, after her and the other girls' stories "didn't jibe," he became con-
vinced that she was doublecrossing him. Thus, direct testimony establishes com-
pany knowledge of Roland's union activities, her sympathy with its objectives, and
Respondent's opposition thereto.
There is no such direct testimony of company knowledge as regards Hickman.
However, as previously noted, she testified as to signing a union card(s) and to
soliciting fellow employees. This is corroborated by testimony of Bessie Forrester
(in the prior proceedings) who stated that "Jean and Pat" solicited her at her
home to sign a union card. It may reasonably be assumed that such activities,
occurring in a small, community,36 involving employees employed at a relatively
small plant, came to the attention of management and that it thereby acquired
knowledge of the participants 37 Such an inference would seem to be more war-
ranted where, as here, there is substantial evidence of employer interrogation of
employees concerning union activities and requests for reports on such activities.38
continue working for Respondent unless she could return to work at her old job, and
that it was her intention at that time to quit her employment. However, as discussed in fi a,
.the evidence shows that subsequently such intention changed
R3 As respects Hickman, Respondent offered no additional reason for refusing reemploy-
ment to her, but stands upon the reason previously discussed ; i.e., previous, unexplained
absences coupled with eventual replacement.
3+ This may have been a direct consequence of the layoff on March 26
3; Consider, however, Razete's other testimony that on March 26, Roland advised him
that Dora Rider was a leading union adherent See also, e g , testimony of Clara Miller
who stated that Parson asked her if she had received a Steelworkers' letter and card as
early as March 18. Parsons' testimony that Miller could not identify the sender of the
letter and therefore Parsons did not know that the letter emanated from the Union is
incredible ; moreover, Parsons was contradicted and impeached by her prehearing affidavit
on this point. It has been held that a supervisor's knowledge of union activities may be
imputed to a Respondent (The Bama Company, 145 NLRB 1141, 1152, and cases cited
therein)
w The population of South Fort Mitchell, Kentucky, as of 1960, was 4,086 (World
Almanac of 1966).
87 Quest-Shon Mark Brassiere Co., Inc, 80 NLRB 1149, enfd. 185 F.2d 285 (C.A. 2),
cert. denied 342 U.S 812 ; N L.R B. v. Angwell Curtain Company, 192 F 2d 899 (C A 7) ;
NL.R B v. Abbott Worsted Mill8, Inc, 127 F.2d 438, 440 (C.A. 1) ; Wiese Plow Welding
Co., 123 NLRB 616, 617; Malone Knitting Company, 152 NLRB 643.
38 See testimony in prior proceeding of Duff (p. 90) and Robertson (pp. 70-71). While
I did not, of course, have the opportunity to observe the demeanor of these witnesses, I
have considered, with respect to the testimony of Robertson, that Razete made substan-
tially the same inquiries of her as to what occurred at the union meetings and who was
there, as he made of Roland. Such corroboration by two different employees in two sepa-
rate hearings, lends substantial credence to the veracity of their testimony, in the opinion
of the writer.
On the other hand, I have not given any weight (contrary to the urgings of counsel
for the General Counsel and for the Charging Union), to the circumstance that in the
conversation between Hickman and Razete on July 12, the latter stated, "I've heard
bad things about you." I am not sufficiently persuaded that the epithet referred to Hick-
man's union activities since it is also reasonable to infer that lie was alluding to her
"family difficulties" i.e., separation from her husband It is thus distinguishable from
Angwell Curtain, supra, where the court found that "this thing" meant the union orga-
nizational campaign because no other "thing" had been started in the plant.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Permacold Industries, Inc., 147 NLRB 885, 886. Moreover, as the Board held in a
recent case (Texas Industries, Inc., 156 NLRB 423), "It has been well established
that direct evidence is not necessary to support a finding of knowledge but that
such knowledge may be inferred by the Board from the record as a whole." 39
Thus, based upon all of the evidence, in the light of the foregoing principles and
precedents, I find and conclude that as of the week commencing March 29
Respondent became aware of Roland's and Hickman's union activities.
As above stated, on March 29 Respondent recalled some 24 of its employees
laid off on March 26. By April 19, when Respondent "terminated" many of the
employees who had not been recalled, 32 of the 54 had returned to work. And, by
July 12, when Hickman interviewed Razete concerning return to work, an addi-
tional 9 (or approximately 76 percent), of the original 54 had been recalled.
Razete testified, both in the instant and prior proceedings, that the two criteria used
in determining which employees to recall were length of service and relative skill.
Of course, as previously noted, the more skilled employees worked in the glass
department and these were the ones who were first secured to return. Neither
Roland nor Hickman had had experience in the glass department, but the record
establishes that both were versatile employees possessed of various skills and capa-
ble of performing various jobs in the assembly department. As such, they were
certainly more valuable to Respondent than some of the other employees subse-
quently recalled and clearly more so than new hires.
I find singularly unpersuasive Respondent's defense that it refused to recall Hick-
man because the records disclosed she had quit. In the first place, the credited evi-
dence belies this contention. But even if Respondent's witnesses are believed to the
effect that Hickman did not notify the Company of her whereabouts between
March 12 and 30, Respondent's own evidence is that she did present herself for
reemployment on the latter date and thereafter contacted the Company on several
occasions renewing her application. This conduct would clearly negate any infer-
ence Respondent might have me draw as to Hickman's desire to permanently sever
her employment. Accordingly, having previously found no evidence to support
Respondent's contention that it refused to recall Hickman because of prior, unex-
plained absences after a warning, I find equally pretextual its asserted defense that
it refuses to recall her because she had "quit." Accordingly, I find and conclude
that the real reason Respondent failed and refused to recall Hickman was because
she engaged in activities on behalf of the Charging Union. It thereby violated
Section 8(a)(3) and (1) of the Act.40
With respect to Roland, it is true that I have found that on or about March 22
she had an intention to quit her employment when advised that she would not be
able to secure her old job back upon her return to the plant. The evidence is clear
that she persisted in this endeavor for several weeks thereafter, without success.
Finally, in latter April, according to Parsons' testimony, Roland advised that she
would take "any job at any rate," but Parsons told her that it was completely out
of her hands 41 Considering the high esteem in which Respondent held Roland
prior to the advent of the union campaign, I am convinced that had it not been for
her union activities Razete would have recalled her after she offered to waive her
contention respecting the necessity of securing her old job. Accordingly, I find
that Respondent's failure and refusal to recall her after that time was for the
° See also F. W. Woolworth Company v. N.L.R B., 121 F 2d 658, 660 (C.A. 2).
40 Although Respondent never actually claimed it sought to contact Hickman subsequent
to March 30 for reemployment , it did offer certain evidence , both oral and documentary,
which tended to show that she changed addresses frequently and therefore it would have
been futile to attempt to notify her to return to work. Thus it offered into evidence an
envelope ( Respondent's Exhibit 5), dated April 12, addressed to Hickman , which was re-
turned by the Post Office Department marked unknown at the address in Covington,
Kentucky , to which it was mailed. According to Razete 's testimony , the envelope originally
contained Hickman ' s W-2 form for income tax purposes However Hickman testified
that she had received such form while she was still at work in January or February.
Razete was unable to locate the W-2 form which he claimed was returned to the plant,
and contradicted himself with respect to the distribution of the forms on the same page
of the transcript ( p. 435 ), all of which I have taken into consideration in assessing
credibility in this case.
41 In the prior proceeding ( Tr. 830 ), Razete testified that in a telephone conversation
at his home on or about April 25,' Roland said, "I want any kind of a fob back."'
SPERTI SUNLAMP DIV. 1647
purpose of discouraging membership in the Union, thereby constituting a violation
of Section 8(a)(3) and (1) of the Act 42
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section I, above, occurring in con-
nection with the business operations of the Respondent, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
III. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act, I will recommend that it
cease and desist therefrom and take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent unlawfully discriminated against Hickman
and Roland by failing and refusing to recall or reinstate them subsequent to
March 30 and April 25, respectively, I shall recommend that the Respondent offer
to each immediate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights and privileges.
With respect to the amount of backpay due them, the record is not clear as to
precisely what date following their respective dates of availability jobs became
open which suited their capabilities.43 Accordingly, I shall recommend that Hick-
man and Roland be made whole for any loss of earnings suffered by them as a
result of the discrimination against them by payment to each of them a sum of
money equal to that which they would have earned from the date after the dis-
crimination, when a job for which they were qualified became available, until the
date of such offer, less their net earnings during the period.44 Backpay with interest
at the rate of 6 percent per annum shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Com-
pany, 138 NLRB 716.
Because the Respondent by its conduct violated fundamental employee rights
guaranteed by Section 7 of the Act, and because there appears from the manner
of commission of this conduct a disposition to commit other unfair labor practices,
it will be recommended that Respondent cease and desist from in any manner
infringing upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Sperti Sunlamp Division, Cooper-Hewitt Electric Co., Inc., is an employer
within the meaning of Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of
Gladys Roland and Jean Hickman , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
'a Respondent alleged in its amended answer to complaint that a determination of the
Kentucky Unemployment Insurance Commission , "a quasi-federal body," finding that
Roland voluntarily quit her job , is determinative of the issue in the instant case. Such
a contention is without merit. Wells Dairies Cooperative, 110 NLRB 875, 885, footnote 8.
431n this connection , I note with respect to Roland that Respondent recalled her re-
placement , Dora Rider , on April 19, which was prior to Roland 's offer to "take any job "
However , the record establishes that Roland was competent to perform other jobs in the
plant, such as in the repair department.
With respect to Hickman , Razete testified that "she operated the rivet machine, mostly,"
but that "she moved from position to position at the head of the line ." In the prior
proceedings (Tr. p. 844) he testified that she "filled in many spots on the line . . "
" Cf Shawnee Industries , Inc, 140 NLRB 1451 , 1454-55.