Dale Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1964

145 N.L.R.B. 1050 (N.L.R.B. 1964)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dale Industries, Inc., Wyoming Service Company and United
Industrial Workers of America , Ind., Amalgamated Local 286.
Case No. 7-CA-4081. January 17, 19641
DECISION AND ORDER
On September 26, 1963, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices within the meaning of the Act and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, the Respondents filed
exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 Ex-
aminer's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein , the following paragraph :
Upon the entire record in this case , and pursuant to section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondents , Dale Industries , Inc, Wyoming Service Company , their officers,
agents, successors , and assigns , shall.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner A. Norman Somers in Detroit, Mich-
igan , on May 13 and 14, 1963, on complaint of the General Counsel and answer
of Respondents.' The issue was whether the reduction in the workweek of four
employees and the later discharge of two in that group were discriminatorily
motivated in violation of Section 8(a)(3), and whether Respondents invaded their
employees ' protected rights in other ways in violation of Section 8(a)(1) of the
Act. The General Counsel and Respondents , through respective counsel, presented
evidence and filed briefs , Respondents also presenting oral argument . All have
been duly considered.
On the entire record ( as corrected on notice ), and from my observation of the
witnesses , I hereby make the following:
i Charge and amended charge filed January 29 and February 13, 1963 , respectively
Complaint issued March 29, 1963
145 NLRB No. 108.
DALE INDUSTRIES , INC., WYOMING SERVICE COMPANY 1051
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondents are Michigan corporations located in Detroit. Dale Industries, Inc.,
manufactures and sells metal moldings, gutters, roofing edges, and related building
products. Wyoming Service Company supplies Dale with manpower. It was
stipulated at the hearing that for purposes of this case, the two may be treated as
parts of an integrated enterprise and as a single employer? Respondents, in regular
course, receive materials from and ship products to points outside the State in
quantities exceeding $50,000 a year in each category. It is not disputed and it is
hereby found that Respondents are engaged in commerce within the meaning of
the Act, and that it would effectuate the policies of the Act to assert jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
United Industrial Workers of America, Ind., Amalgamated Local 286, located
in Detroit, hereafter referred to as the Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
In late 1962, union organizers signed up employees working at the Dale plant.
After this there were some conversations between management and several em-
ployees. At the end of January 1963, Respondents reduced the workweek of four
employees,3 and about a week later, in February, discharged two of the latter?
The General Counsel contends that the conversations independently violated Sec-
tion 8(a)(1) of the Act, and also constituted evidence of union animus, which he
claims as the motivation for the adverse economic action constituting the alleged
8(a)(3) violations.
Respondents, on the other hand, dispute the General Counsel's versions of some
and challenge his interpretation of all of the conversations. Also, they deny their
conduct was antiunion motivated, and defend the reduction in the workweek as
having been prompted by economic considerations and the discharges as having
been for cause.
B. Background: The signing up of the employees and certain observations
preliminary to consideration of later events
In about mid-December two organizers for the Union solicited the membership
of all the employees of the Dale plant (then about 20 in number). This happened
on the street near the plant at the end of the shift. The union representatives
handed cards to the employees, telling them that if they wanted to join, to sign
and mail them in, and that this would be in confidence.5
Also receiving cards were the four here alleged to have been discriminated against
(supra, footnotes 3 and 4). They too signed as did the others. Ingram and
Mance testified further that they were part of a group of four who did so twice,
the second being when the organizers (this time not on the street but in a restaurant)
told them their cards had been lost, and so, then and there, they signed new cards.
Ingram remembered the four as being himself, Mance, and the other two com-
plainants-Ford and Landers. Mance, on the other hand, remembered them as be-
ing Ingram, himself, and Ford, but he recalled the fourth as being an employee other
than Landers.6 It is not altogether clear whether the General Counsel thought the
2 The enterprise includes also a third corporation, Steel Specialties, Inc., which is the
jobber. For a time it also made products like Dale Industries, but ceased doing so when
it was moved into the Dale plant. Its production personnel was then largely absorbed
by Dale.
3 Bruce Landers, Robert Ford, Emmett Ingram, and John Mance
'Landers and Ford.
5 biance testified that all signed up on that day.
9 Mance was probably right, for Landers testified only to his having been solicited on
the first occasion Ingram (an otherwise completely reliable witness) may well have been
confused by the fact that Landers had been with him, Mance and Ford in the specific
group spoken to by one of the organizers on the first visit, and additionally by the fact
that Landers' card shows him to have signed up, like Mance and himself, after Christmas.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second signing made the complainants more conspicuous as supporters of the Union
than the others. If he did, I would not agree, since unlike the first incident, which
occurred near the plant premises in sight of two department heads, the second, as
stated, was in a restaurant, for which no such exposure to view is claimed
As it happens, more significant on the issues as a whole was whether Respond-
ents, as Albert Fiuman, their president, testified in explaining the work reduction,
thought the entire force had joined-which he buttressed further with testimony
that he had given his managerial staff strictest orders not to ask any employees about
union membership, and which he followed to the letter. Bearing on these items are
matters treated in the section which follows.
C. The conversations
1. President Al Fruman and certain noncomplainants
John Mance testified that about 2 weeks after the first visit by the union organizers,
while working on stock in the shipping depaitment, he heard Paul Frailand and
John Brostean tell President Fiuman that they had not signed a union card. On
cross-examination, company counsel elicited from him further testimony that before
this and a few days after the first visit of the organizers, President Fruman asked
Paul Frailand and Max Fisher whether they had signed. Mance testified he saw
Fruman talking to Frailand and Fisher in the presence of Marshall Fruman, who
is the traffic manager and the president's son, and Ben Siegal, plant superintendent
However, it was not altogether clear-to me at least-whether his testimony was
that he had actually heard what President Fruman then said or had merely been told
about it. At any rate, in presenting Respondent's case, counsel put in evidence in
refutation of both conversations, without distinction between the two (which I would
presume was in deference to the rule of evidence that endows hearsay with eviden-
tiary competence if admitted without objection, or, as here, actually elicited by the
party affected thereby: 1 Wigmore, Evidence (3d ed.), § 18; Diaz v. U.S., 223 US.
442, 450). Counsel called Frailand. Brostean, and Al Fruman (who testified in
that sequence among them) and also Fisher.
Though Fisher was the first witness, we defer his testimony pending considera-
tion of that dealing with the Frailand and Brostean conversation. They testified
they came to Fruman and asked if they had to join the Union because they had
heard a rumor that if they did not join then it would cost them $25 more to do so
later. Fruman too testified that they so asked him. There was a slight variance
between them concerning what he said in reply (they testifying he answered they
did not have to join, and he, on the heels of his avowal of a rigid hands-off policy,
that he told them that he was not "authorized" to tell them either way); but on
either basis that question could hardly have suggested the unanimity of union
affiliation which Fruman testified he thought had existed. On whether they or
Mance gave the correct version, it is noted that Mance, who was thus corroborated
concerning an event in which his role was the normally suspect one of an eaves-
dropper, had nevertheless scrupulously limited his claim concerning its content'
he testified merely that he had heard Frailand and Brostean say they had not signed
a card, making no claim that he heard Fruman ask them if they had-an assump-
tion that one in his position would be prone to make, and which witnesses, con-
sidering their bias, sometimes persuade themselves they heard expressed 7 Frailand,
on cross, rather impressively vouched for Mance's integrity in the matter when, for
the first time, he was specifically informed of Mance's testimony. (On direct, this
had not been done, he having merely been asked whether management had ever
spoken to him about the Union.) When told that Mance, the day before, testified
that "he heard both of you say that you hadn't joined the union," Frailand responded'
That's possible, because he could of heard us because we were in the back.
We all work on stock and possibly he could have been somewhere where he
could have heard the conversation, the things that I said.
Also, a statement volunteered by Frailand at the outset of his testimony concern-
ing how the conversation with Fruman came about is more consistent with the dis-
avowal attributed to him by Mance than the question he attributed to himself He
explained that he "didn't wart to do anything behind fFruman'sl back," and
volunteered further that he had "evaded" the union organizer, and that he "took
7 "Witnesses will read an implication in a statement or acct, and acerthe to the speaker
or actor , an explicit utterance in conformity with It" Sears , Roebuck and Company,
123 NLRB 1236, 1240.
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1053
the card home and tore it up." Noted also is that Mance named Fisher as being
with him when he overheard the conversation of President Fruman with Frailand
and Brostean, but though he was called by Respondents, Fisher was not asked
concerning this conversation. The weight of credibility, as well as the manner in
which the opposing testimonies were given, supports Mance's version, and it is
credited 8
As to Fisher, on direct, he testified:
Q. Mr. Fisher, has anyone in management ever discussed with you anything
about any union or labor organizations?
A. Nobody in the shop-No-just do what I was going to do.
Q. Did Mr. Fruman ever ask you whether you were a member of the Union?
A. No, he did not ask.
Q. Did you ask Mr. Fruman anything about the Union9
A. No, I did not.
After the completion of his direct examination, Fisher's denials underwent
significant change. On cross, he testified:
Q. (By Mr. SCHMIDT.) Mr. Fisher, did you ever talk about the Union at
all and signing a card.
A. Maybe I did. At one time, I was going to ask him whether-whether-
it occurred to me I'd lose a job if I signed it for the Union, but he said, no,
I wouldn't.
This raised the question of how he came to ask that of Fruman. After several
answers indicating hesitancy to disclose the facts, he finally testified
TRIAL EXAMINER: Now tell us about that conversation
The WITNESS: Well, I just went into his office with the bills and he wanted
to see me-if I had heard anything going around the shop, and I said, "No,
I haven't heard anything."
TRIAL EXAMINER: What did you understand that to mean, when he asked
you if you had heard anything going around the shop? What did that mean?
The WITNESS- He just asked me if there was any union going around.
TRIAL EXAMINER: He asked you that?
The WITNESS: Yes.
TRIAL EXAMINER: What did you say to him"
The WITNESS: I asked him if it was possible for me to lose my job and he
said no .9
The above, implicating President Fruman in an effort to obtain information about
the union activity of others, was never denied by President Fruman, nor did he
try to reconcile it with the strictures that he testified he imposed on himself and his
staff.1°
2. Traffic Manager Fruman and complainant John Mance
John Mance testified that about the second week of January, Marshall Fruman
called him into his office and asked him "right off" why he had signed a card for
the Union. Mance explained that it was for the "benefits." Marshall told Mance
"he would lease his trucks out or something to that effect and no longer would have
them there." He also told him that "it would be a union shop by the books." In
the same conversation, Marshall Fruman discussed with Mance his "work attitude,"
9 No finding will be made concerning whether the above was inferentially In response to
a question whether they had joined, as this is rendered unnecessary in the light of the
other findings In the case.
e Max Fisher timed this as having occurred about 3 or 4 months before the hearing,
which would put it in January or February, but in the context of the entire case, the
greater probability is that it was in January.
10 In view of my uncertainty as to whether Mance's testimony, as elicited on cross-
examination, was that he actually heard the conversation between Fruman and Fisher in
the presence of the younger Fruman and Superintendent Siegal, as opposed to having
merely observed it, I make no finding concerning whether the earlier interrogation by
Fruman of Fisher actually occurred. Since this is the only such incident in which Super-
intendent Siegal is implicated even as a person present, the allegation in the complaint
that Siegal engaged in interrogation of employees is recommended for dismissal.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manner indicated in the footnote.ii Fruman never took the stand, however,
to deny Mance's testimony concerning the conversation or its prima facie implica-
tion: that having opened the conversation with an inquiry concerning the reason for
Mance's having joined it, followed by a threat to lease out the trucks and to subject
employees to more stringent conditions (a "union shop by the books"), the intent
or naturally foreseeable effect was to impress upon Mance that interest in the Union
could adversely affect the employees' tenure and working conditions.
3. President Fruman's two conversations on January 28 with complainant Bruce
Landers and his conversation at lunch with four employees in Landers'
presence
Shortly before lunch on January 28 Landers requested of Fruman a pay advance
of $10-he having in the past been granted such an advance whenever he asked for it
(about six times in all), either by President Fruman, Superintendent Siegel, or Sales
Manager Tom O'Reardon. Landers testified that this time Fruman said, "You sure
have a lot of guts. You mean to tell me you'd ask me for $10 advance? Go get
your union boys and they'll give you an advance"; that he asked Fruman what he
meant, and Fruman replied, "You know what I mean. A certain party told me
that you were one of the ringleaders here"; Landers denied that he was a "ring-
leader," but admitted that he signed a card "to try to get the union in"; Fruman
asked, "Why did you want to do that?" and Landers replied he did it "to go along
with the rest of the gang."
Landers then joined four of his fellows in the shipping department at lunch 12
Fruman accosted them immediately afterward. In the presence of Landers, he
asked whether "any of you fellows would trust [Landers] for a $10 advance." He
then put the same question to each of them individually and they all replied that
they did not have the money.13
Toward the end of that day, Landers and the other three complainants were
notified their workweek had been shortened from 5 to 3 days-a subject treated
in the next section. About 10 minutes later, Landers entered President Fruman's
office. There, with Marshall Fruman and Gene Gale, a supervisor, also present,
he again asked President Fruman for the $10 wage advance. Landers testified that
Fruman replied, "I told you, man, I can't let you have it. You go around to your
union buddies. I know you're one of the ringleaders"; that Landers stated "Chief,
someone told you wrong," and Fruman retorted, "No, the right man told me. The
right fellow told me that you were going on this union deal around here." Landers
then complained of the cut in his workweek, and when President Fruman said
"things are getting slow," Landers remonstrated that this was normally the time
when "we . start our spring cleaning and everybody starts needing gutter[s]
[Landers' most frequent line of work]"; that Fruman responded, "Well, I'm going
to tell you something, we're not going to run it this year the way we run it last year."
Fruman testified that when Landers asked him for the advance the first time that
day, he reminded Landers that in October, when he had last advanced him $10,
he said he would no longer do so, first because Landers had then told him he needed
that sum to take care of a parking ticket, which turned out be only $2 (Fruman
on the stand explained that he nevertheless advanced Landers the balance of $8
because he had "committed" himself to the larger sum), and secondly that he
had decided not to make any more wage advances, because it placed an added clerical
burden on Respondents. Fruman testified further that when Landers requested the
"He told Mance his work performance would be better if he asked Frailand, his lead-
man, less often to help him push trucks and also if he came to work more promptly.
Mance's undenied testimony was that Fruman did not tell him his work was unsatisfactory,
and that he had expressly told him at about Thanksgiving time that it was satisfactory
He then told Mance that until then he had considered him a "part-time" employee (which
was news to Mance, since he had been working full time) but that now he was made a
"regular" employee. Mance indicated that in the conversation in January, Marshall Fruman
told him that he was speaking about coming to work promptly because he was considering
putting him on the "paint line" ( entailing greater responsibility, as Respondents suggested
in another context), where the men worked as a team and promptness was important
12 They were John Mance, Emmett Ingram, Max Fisher, and Collins Robertson. All are
still employed by Respondent
18 Fruman testified that Ingram replied that Landers' "credit was not good." Ingram
testified he replied, as did all the others, that "I didn't have the $10 to loan him." No
witness supported Fruman's version, including Fisher, who had been called by Respondent,
but was not asked about this incident.
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1055
advance the second time, he "must have looked at him as though he was insane"
in view of what he had told him earlier in the day, and so he "turned him down
again ." He denied telling Landers he was a "ringleader" in the Union, and did
not specifically address himself to the alleged conversation concerning the work
reduction and his statement about running things differently "this year."
Landers, on cross and before Fruman testified, confirmed that the occasion for
the last previous $10 advance was when he had had a parking ticket of $2, but denied
that Fruman had then complained about the difference (Landers explaining he had
needed the balance for other matters) or had then told him he would give him no
further advances. Landers also denied that Fruman on January 28 had mentioned
the earlier incident. Fruman would appear to have given unwitting corroboration to
Landers in quoting himself as having said to Landers at the time of the October ad-
vance that he "didn't have to lie about it, if you need it to ask about it." [Emphasis
supplied.] More crucial to our resolution are a number of other items. First, Fru-
man's versions of the conversations on direct examination varied in material respects
from his pretrial affidavit. On direct, he omitted stating that in either conversation he
told Landers to "see his union buddies for a loan." When specifically asked about
it on cross, he admitted having said it in the first conversation, but testified he did
not "recall whether [he] said that the second time." Shown the apparent con-
tradiction on that score in his pretrial affidavit, he testified that "it's possible that
I said that"; pressed for his actual recollection, he gave the same answer; and when
asked about it again, his response was, "I don't recall. If it's here, I say it's possible.
It's a casual remark. Unions have these credit unions." His volunteered comment
was a bit of improvising hardly commending itself for candor: having now been
shown to have made the "union buddies" statement on each of the two occasions,
he could not have meant it in a "casual" sense, as he claimed, and his intimation
that he meant no more by the expression than to suggest to Landers the use of
the union's institutional lending facilities hardly squares with the ordinary meaning
of the "union buddies" expression or his whole performance on the subject, includ-
ing the one at lunch, when he acted to demonstrate to Landers that his "union
buddies" would not "trust" him for a loan.
Fruman supported his denial that he made the "ringleader" accusation on the
fact, as Landers candidly admitted at the hearing, that he had not been more active
in support of the Union than the others-an admission consistent with what Landers
testified he told Fruman each time Fruman insisted that he had reliable information
to the contrary. In this connection, it will be recalled that Fruman avowed with
some emphasis that he never asked any employee about union activity. He under-
scored this further with the assertion that such conversation as he had about it
were not "behind closed doors." Yet Respondent's own witness, Max Fisher,
revealed that Fruman had sought information from him on that general subject in
the privacy of his office, and, as also appears, the discussion the younger Fruman
initiated with John Mance was also in the office-in each instance neither denied
nor explained.
One in high authority who seeks information about a subject from an employee
will normally be given it, even if not always accurately. (Landers, as Respondents
have emphasized in another context, is a big fellow. Also, he has an outgoing per-
sonality which could well give him an aspect of prominence beyond his factual role.)
Further considered is an additional material variance in Fruman's testimony from
that in his pretrial affidavit in another context, namely, his testimony at the hearing
that when he discharged Landers and Ford on February 6 for refusing to take a lie
detector test unless they could call someone "from downtown," the Union had not
been mentioned , when according to his pretrial affidavit he discharged them as soon
as one of them told him that they wanted to call the Union to have someone to
represent them.
The foregoing items bearing on Fruman's credibility are considered against the
factors relating to Landers'. First, just as he had disclaimed to Fruman that he was
particularly active in the Union, so too at the hearing did he refrain from ascribing
to himself a particular prominence in the Union, when it would have been in his
interest to do so in connection with his claim that the adverse economic action
against him had an antiunion motivation. Secondly, he attributed no antiunion
statements to Fruman in the conversation in front of persons friendly disposed to
him, at the same time that he attributed such statements to Fruman in the con-
versation occurring in the presence of Fruman' s son and Supervisor Gale. In the
latter instance , he could hardly have expected affirmative corroboration from those
witnesses on any basis, and he faced the risk of outright contradiction by them if
they could truthfully have supported Fruman 's version of the conversation as against
his. These witnesses were not produced and the failure to produce them never
explained.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The preponderance of the evidence supports Landers on the score of all criteria
relating to a credibility determination-the consistency of a witness' testimony
within itself, its consistency with prior declarations and established facts, and the un-
explained failure by one party to produce corroboration from sources prima facie
available to it for that purpose. Nor have I overlooked the element of demeanor,
about which I sail have more to say later. Landers is credited in respect to his
versions of both conversations with Fruman on January 28, and in his denial that
Fruman had told him at the last preceding wage advance that he would not give
him any in the future.
4. Legal conclusions concerning the conversations
I find the following conduct to have constituted interference, restraint, and
coercion in violation of Section 8(a) (1) :
Marshall Fruman's telling Mance that "he would lease his trucks" was a threat
of retaliatory economic action against employees in the event of their interest in a
union , and his statement that "it would be a union shop by the books" was a threat
that the employees would be subjected to more stringent conditions because of it.
President Fruman's telling Landers that he "had a lot of guts" asking him for
a loan in view of his being, as Fruman said he was informed, a "ringleader" of
the Union, and telling him to try to get a loan from his "union buddies," as well
as his taking the initiative to inquire among four employees in Landers' presence
whether they would "trust" him for a loan , was calculated to convey to Landers
and the employees that because of interest in the Union, Respondents would not
continue their prior practice of advancing loans to the employees. Its purpose or
reasonably forseeable consequence was to convey to the employees that because
of their interest in the Union they would be treated less favorably than before. Such
also was the purpose or reasonably forseeable consequence of Fruman telling Landers,
in the context of Landers' protesting the work reduction as a departure from prior
practice, that "we're not going to run it this year the way we run it last year."
President Fruman's twice telling Landers that he had information from sources
that he thought reliable that Landers was a "ringleader" of the Union implied to
Landers, and its purpose or reasonably foreseeable consequence was to instill in
him and the employees the belief or apprehension that the extent of employees'
activity or support of the Union was under surveillance or inquiry by Respondents.
In the context of all of the above and what follows, and the settings in which they
occurred, Marshall Fruman's asking Mance and President Fruman's asking Landers
why, respectively, they had joined the Union had a coercive thrust, and so too did
President Fruman's inquiring of Max Fisher in his office concerning the extent of
union organization in the plant.
D. The reduction in the workweek of Landers, Ford, Ingram, and Mance
Toward the end of the same day, January 28, in which President Fruman had
the conversations with Landers above discussed, Marshall Die, head of the shipping
department, told Landers and the other three complainants that their workweek had
been reduced from 5 days a week to 3 days. He disclaimed responsibility for the
action, stating that the decision to make the reductions and also the selection there-
for were President Fruman's. To Ingram, Die added, "I'd rather lay off two or
three of those guys in the pressroom, because you can do almost anything."
When this took place eight employees junior to the four were retained at full
time.
Briefly described, the work-as the wage scale of $1.15 to $1.20 an hour would
suggest-was something less than of the skilled category, and though as of any given
time, an employee's major activity would be in a particular line of work, the
employees were rotated among a multiplicity of tasks, a slackening in the need
for one operation being met by his being assigned to one or more of a diversity
of operations. Thus, Landers had worked 7 or 8 years with Steel Specialties (Re-
spondents' Fruman-owned affiliate, supra, footnote 1), at loading and unloading,
and on gutters. Early in 1962 (after a year's incapacitation because of an injury),
Landers on the recommendation of Sol Manheimer, Respondents' operating man-
ager of the Steel Specialties plant during his employment there, resumed at the
Dale plant (which meanwhile had absorbed'Steel Specialties' manufacturing work).
At Dale, Landers worked mainly in the gutter department, where he ran pipes feed-
ing the machines for round pipes. When that was slow, he worked at other parts
of the shop, running press machines for making louvers, slits, boxes, and vetters,
doing janitor work, and also (as had been his most frequent line of work at Steel
Specialties) loading and unloading. Ingram, who started with Respondents in Sep-
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1057
tember 1961, was in the shipping department, where he worked at a variety of press
machines, operated a Hi-Lo machine, and, like the other employees, also at sweeping.
Atter 4 months, the work was rearranged to give the task of sweeping to a single em-
ployee. This was Ingram, and it took up about half his day. The remainder of
his time he performed the other operations previously described. (President Fruman
testified, "He's used in a multitude of jobs.") John Mance and Robert Ford were
hired in June 1962. Mance worked in the shipping department, putting up stock by
hand, preparing small packages for parcel post dispatch, and preparing samples for
Sales Manager O'Reardon, and, during a rush in local orders, he operated a pickup
truck. Ford was a punch press operator, with prior experience in that work with
two large motor companies. He began with Respondents running louvers, then
ran gutter pipes, and for the last 4 months ran the machine for making valleys
(sheet aluminum pieces used in roof construction).
This was the first instance in which any employees' workweek had been reduced.
The complainants testified that work throughout the year had always been at a steady
level, even though there might be a slackening of the work in any given operation.
Thus, Landers testified that during the previous winter's seasonal slack in gutters,
he worked at other operations. Mance testified that local deliveries had slowed
down, but the work overall had not slackened. Ford testified the work was "pretty
steady the whole way through," that the press machines generally were operating
as they had always been, and that the press operators had then been working over-
time at 6 days a week.
President Fruman, however, testified that because of a falling off of certain aspects
of the business, "we saw how we were doing and that we should make certain
economies, and lay partially, some of these people off that were not used " He
testified that shipping was off in December, 25'/2 percent, and in January, 53 per-
cent, from the previous 5 months' average, that in the wintertime "people just don't
make gutters and pipes," and that that accounted for the "shorting" of Landers;
that Respondents were overstocked with valleys and that was why Ford had been
reduced 2 days, and though Ford could "have possibly been removed from there
to help temporarily in the shop," he was not so shifted because he was the "prin-
cipal operator of [the valley] machine," and "we considered him as the valley
machine operator"; that Ingram was "our porter," at which he works 4 hours daily,
and though for the remainder of the workday "we find plenty of other things he can
do," and "he's used at a multitude of jobs," it "doesn't necessarily mean he is the
best man for those other jobs"; and finally that Mance "worked in the warehouse
and also as a fourth driver, local," and since shipping had slowed down, he was
"shorted" as the "last man in the warehouse section "
Fruman testified that the complainants' union membership played no part in their
selection, for he had thought all employees had joined; and he justified "shorting"
the four complainants as against eight junior employees on the ground that Re-
spondents had no seniority policy, and that the four complainants "were in the lower
echelon of employees from a standpoint of value to the company in the event of
being on short time."
The reasons given for selection of the complainants for reduction as against at
least five of the juniors raised more questions then they answered, even on Fruman's
own standards.i4
14 Three of the eight juniors were on the paint line, at which none of complainants had
worked. On the other hand, of the remaining five, two were press operators as were Ford,
Landers, and Ingram (Recalled here is Department Head Die's telling Ingram be thought
him to be superior to at least two or three press operators retained on full time.) Two
were what Fruman termed "semi-truckdrivers," a description which would seem to fit
Mance. As to Brostean (one of the employees previously identified as having told Fruman
he had not signed up with the Union) Mance testified he, like himself, worked at loading
and unloading, and putting up stock. Fruman, however, described Brostean as being "in
charge" of samples. This characterization was explicitly negated by Brostean, who as a
witness for Respondents, on direct, answered "No" to company counsel's question of
whether he was "in charge of any particular Item in the shipping department " He testi-
fied that he did work "like loading, unloading and the molding department and also samples
and other various jobs " While he testified that to his knowledge no other employee
worked on samples, Mance's testimony was not specifically denied that his work included
"preparing different samples" for Sales Manager O'Reardon (for whom that work is done)
Frunian characterized Mance as a "marginal employee." This hardly squared with the
appraisal implicit in the younger Fruman's telling Mance, at Thanksgiving time, that lie
had been advanced to "regular" status, and telling him in the undenied conversation of a
little over a week before the reduction ( supra, footnote 11) that he was being considered
734-070-64-vol. 145-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But, as the evidence shapes up here, this is hardly crucial on the issue of motiva-
tion. Nor is it even crucial here whether Respondents attached more importance
to the complainants' support of the Union than that of the other employees, how-
ever directly this is demonstrated to be so in the case of Landers and inferentially
so in respect to Ingram and Mance, who were in the group through whom Fruman
acted to bring home to Landers that he could not count on his "union buddies" for
the loan he had requested of him (supra, footnote 12). The crucial item is not
whether Fruman deemed the four complainants least valuable "in the event of being
on short time" but the "event" itself. Concededly, there had never been such an
event, even though the factors that Fruman cited as accounting for the work reduc-
tion-a seasonal falling off in particular lines of work-had existed before. Fruman
admitted that it was his policy to keep employees on full time and to put them to
other work when their more frequent line had slackened. He qualified this with
the expression "to the best of my ability." Every indication is that what had
changed was not his ability but his desire. This is rather manifest from his telling
Landers in the second conversation, occurring about 10 minutes after the work
reduction, and in the same conversation that he referred Landers to his "union
buddies" for a loan, that "we're not going to run it this year the way we run it
last year." The action was a sharp reversal of the assurance Fruman had given
the employees a little over a month earlier, during the very very seasonal slack to
which he now attributed the reduction. In giving the employees their Christmas
bonus, Fruman, according to Landers' undenied testimony, told them that "he
believed in keeping his employees working every day," and further: "You fellows
don't have to be worried about being laid off . you'll be working fifty-two weeks
around the clock a year. There won't be no lay off."
One can hardly divorce this turnabout of policy from its timing: it occurred the
very day that Fruman angrily reacted to Landers' request for a loan in terms,show-
ing he deemed it an effrontery on the part of Landers and his "union buddies" to
expect that he would continue what he deemed to be a generous or considerate
treatment of them after they had made an alliance hostile to his interests, as the
sense of his talk with Landers and his son's talk with Mance showed Respondents
deemed it to be. Department Head Die's statement to the men in announcing the
reduction suggests that Fruman's decision caught him off base, as it did the others.
The timing of that step in relation to Fruman's conduct on that day and the senti-
ments expressed indicate that the decision to reduce was made after his first con-
versation with Landers and following the one with the group at lunchtime, as an
added demonstration, apart from the loan, that the employees could no longer
expect Respondents to continue making any special effort to keep them at full time
as they had in the past: that in this instance a slackening of an employee's more
frequent line of work would be handled not by filling up the slack with other work
but by a reduction in the time of those whose regular tasks were experiencing the
slack. The discrimination lay in the handling of that kind of situation differently
from before, so that in contrast with the prior assurance of a full week's work for
everyone, some would be "shorted," depending upon where the slack occurred.
The above conclusion would follow even if, on the question of whether the work
overall had indeed slackened, Fruman's testimony that it had done so were right
and the complainants' to the contrary were wrong. But refuting Fruman and cor-
roborating the complainants was Respondents' action beginning about 2 weeks after
the reduction. At that time, according to the undenied testimony of Ingram and
Mance, Respondents hired from Man Power (a labor-supplying outfit) five new
employees. Except for a 3-day hiatus during their first or second week, they
worked full time. The new hirings expanded and reached a peak of 12.
Respondents at the hearing never tried to reconcile this marked expansion in the
work requirements with the claim of a labor surplusage, to which they attributed
the work reduction. However, their brief now attempts to do so. It says: "We
know that operational conditions change from day to day." This implies that the
for the paint line-which Respondents suggested as a more responsible kind of work
accounting for the retention at full time of the three juniors engaged in it. Respondents
also stressed that the first week in January a truck had been damaged due to the way
Mance had handled a Hi-Lo machine. Bearing on whether the incident was regarded as
reflecting on Mance's competence is the fact that in their talk in mid-January, the younger
Fruman did not mention that matter to Mance The fair sense of the record rather in-
dicates that it involved a fine point in the handling of that mechanism, for the seasoned
leadman , Frailand had a like experience a day or two afterward, and the elder Fruman
took the occasion involving Fralland to explain to Mance the kind of technique he should
have used in the incident involving himself.
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1059
increased work needs came from the blue and Respondents had not reasonably
anticipated it. No one so testified, and in view of Fruman's long experience with
the business, the presumption is the other way. The regularity of that kind of up-
turn would serve to explain Respondents' admitted policy until then of keeping all
employees working at full time by rotating them among different tasks during a
seasonal lull in their own line. The occurence was a confirmation of Landers'
undenied reminder to Fruman, when he protested the reduction, that this was
about the time when roofing business normally began to pick up.
The brief says also that "none of these new men did the work of porter, Hi-Lo
operator [part of Ingram's duties] or drove a local delivery truck [part of Mance's]."
Respondents overlook the normal presumptions that come into play in resolving an
issue hinging on credibility: the complainants testified that at the time their work-
week was shortened, the overall workload had not fallen down and there was a
full week's work for all of them; Fruman, on the other hand, testified that these
four constituted a surplus in the work needs by 8 man-days a week. Two weeks
later, Respondents hired five persons at full time, thus indicating that far from a
surplus, they had a labor shortage of 25 man-days a week, and not long thereafter,
when they hired another seven, a shortage of still an additional 35 man-days. This
fact, unexplained, rather formidably casts the weight of persuasiveness in favor of
complainants' testimony on the point at issue as against Fruman's. On that score,
I am rather struck by the comment in Respondents' brief in referring to the new
hirings: "but this was after Ford and Landers had been discharged for cause."
At the time of their discharge, these two, under the shortened workweek announced
January 28, were putting in 6 man-days a week between them-1 day more a week
than a single employee working full time. If we are to understand that their
departure accounted for Respondents having to enlarge their force first by 5 and
ultimately by 12 men at full time, it rather endows them with a stature in startling
contrast with Fruman's explanation for their reduction, namely, that the 2 of them
at full time exceeded Respondents' need for them by 2 days a week each.
Further, apart from the precise objective situation on the given day of January 28,
the expansion-reasonably anticipated by Fruman as we must infer-goes to the
heart of the matter of motivation: how much weight is to be given to Fruman's
assertion that in reducing these men's time on January 28, he was genuinely con-
cerned about the economy affected in cutting down the working time of the force
by 8 man-days a week, so soon before an expansion in the work needs by over
three times and ultimately over seven times that amount, as against the elements
pointing to an antiunion motivation, such as the younger Fruman's warnings to
Mance, and the elder Fruman's total behavior on January 28, climaxed by his "we're
not going to run it [like] last year" statements to Landers, made only 10 minutes
after the cut had been announced?
All of the above assumes that the record is altogether silent concerning what the
new hirees did, and even then, under the presumption rationally applicable, it sup-
ports the complainants' testimony that there was full work for them when their time
was reduced, as against Fruman's contrary assertion, and undermines his assertion
that he acted out of a genuine belief that his labor supply exceeded the work demands
or out of a genuine motive to effect an economy because of it. But in addition to
the above, there is affirmative evidence concerning what some of the new help did
All of it confirms the presumption and there is none to negate it. Ingram testified
without denial that some of the new hirees worked in the pressroom, which would
indicate they were doing Ford's regular type of work and also work at which Landers
and Ingram had been used (and as Ingram still is ). Ingram and Mance further
testified, again without denial, that two of these were put in the shipping room,
their department. They did loading and unloading, which was part of Mance's
regular duties, and which Landers had done regularly during his 7 or 8 years at
Steel Specialties and partially also at Dale. Mance indeed testified, without denial,
that the two men were put to work in the same area with him, doing his identical
kind of work.
Bearing upon the animus which underlay the action on January 28, is the mani-
festation of Fruman's continued animus even after the new hirings took place,
when there was no longer any question of Respondents' capacity to use the employees
at full time. According to Ingram's undenied testimony, Department Head Die
(who, as earlier noted , had regretfully informed the complainants of the reduction
and disclaimed any role in it) informed Ingram that he had suggested to Fruman
that he now put back at full time Mance and Ingram , the two surviving complainants
after the discharge of Landers and Ford. Fruman's response was, "No, let them
stay out there." They continued as the only employees working part time, and
were finally restored to full time in April, after the complaint in this case issued.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The preponderance of the evidence points to the work reduction as having been
motivated by a desire to demonstrate to the employees that they would fare less
favorably than they had in comparable situations in the past as a result of their
interest in the Union: The conclusion is that but for that motivation, Respondents
would not have resorted to the work reduction and would have continued the
admitted prior policy of rotating the employees among other work in order to
keep them on full time.
By such reduction Respondents discriminated in respect to the hire and tenure of
Bruce Landers, Robert Ford, Emmett Ingram, and John Mance in order to dis-
courage membership in the Union, in violation of Section 8(a) (3) of the Act, thereby
interfering with, restraining, and coercing employees in the exercise of their rights
under Section 7, in violation of Section 8(a)(1) of the Act.
E. The discharge of Landers and Ford
Landers and Ford were discharged by President Fruman the morning of Feb-
ruary 6. The occasion was an incident between Landers and John Bykaylo, who
is either a leadman or supervisor in the gutter department. The two had been getting
the machine started for the rounding out of some pipe. Bykaylo set the machine up.
On instruction from him, Landers cranked and fed metal into the machine while
Ford (who had been taken off his regular work for that purpose) caught the rounded
pipe as it came out. The operation began smoothly and Bykaylo left. However,
as it is not unusual at this early stage, the metal caught in the machine and Landers
called Bykaylo back. Bykaylo set up the machine again and, on instructions from
him, Landers resumed the same procedure. As before, it started and then caught.
Bykaylo muttered oaths at the machine and set it up again. Landers cranked and
fed it, and the metal stuck again. At this point, Bykaylo, according to Landers,
criticized his handling the process with the same earthy invective that he had used
at the machine, and after Landers claimed the machine's behavior was not his
"fault," Bykaylo responded with an obscenity, and when Landers asked what he had
done, Bykalo let loose on Landers a grosser obscenity, which Landers returned in
the same language. Ford testified that he could not hear the precise words over
the noise of the machine but he could see that Bykalo was shouting angrily at
Landers and Landers was answering back. The machine at last ran smoothly, and
Bykaylo left the two at work in the apparent belief that this ended the matter,
although from Bykaylo's mood Landers judged Bykaylo was going to "cool off."
He and Bykaylo had worked together at gutters a number of years, first at the
Steel Specialties plant as coworkers, and then at Dale, with Bykaylo as leadman,
and though there had been previous times together when the machine would act up,
their relationship had until then been unmarred by friction or ill will.
This time Landers was soon angrily confronted by President Fruman with the
accusation that he had raised a hammer against Bykaylo, which he denied, and there-
upon told he was lying by Fruman, who said the same to Ford, when the latter sup-
ported Landers' denial. He challenged them to a lie detector test, which they at first
agreed, and then, in the course of their questioning the impartiality of the tests'
auspices, refused unless they could make a call "downtown," meaning the Union, to
have someone to "represent" them, whereupon Fruman discharged them at once.
Fruman testified that he acted as he did when he was informed by Department
Head McBride that Bykaylo was changing into his street clothes to go home and
upon his seeing Bykaylo, the latter gave him his version of the incident, which in-
cluded the hammer-raising accusation, whereupon he told Bykaylo to change back
to his work clothes-with which the latter complied-and he went over to the ma-
chine to make the confrontation, culminating in his discharging Landers and Ford.
Bykaylo's story, as Fruman described it, was substantially the one given us by
Bykaylo, which is treated below. -
Bykaylo in his testimony, told of the starting troubles with the machine substan-
tially as had Landers. Although he showed difficulties with the language, Bykaylo
was utterly explicit in his claim that he.had mildly reproved Landers for his manner
of starting the machine (forward instead of in reverse), saying, "You know better
than that, Bruce," whereupon Landers raised the hammer and swore at him. He
testified and reemphasized that there was a total lack of provocation on his part
of any character-that he had not as much as uttered an oath during the encounter.
This imputation of violence to Landers without the remotest provocation carried
its inherent seeds of doubt. It was inconsistent with the whole man as shown by
Landers' 8 years with the enterprise, free of any conduct of that character and as
one could observe him on the stand-a large outgoing personality with no hostility
of manner that one could observe. On the other hand, the actions of Bykaylo as
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1061
described by Landers and Ford were altogether consistent with his personality as
shown at the hearing room. As I stated my impression of him, during counsel's
summation , "I can see he is a very nervous man. His register of patience seems
very low. As he expressed himself on the stand, it was obvious that he is not a
placid personality."
Apart from the probabilities in terms of ordinary human experience, Bykaylo's
own narrative negated the provocation-free conduct that he attributed to himself.
He testified:
I said, "Reverse and go back." Then I had the wrench and tied them
down. I say "Okay, let them go." They start to go forward and they go
back again. I said, "You know better than that, Bruce." He said "You
son-of-a-bitch. You're not going to call me a god-damn-thing," just like that
and this one said, "You 've got no business telling him that."
Q. By "this one," you mean Mr. Ford'
A. Mr. Ford in the front and the one with the hammer-"you're not going
to call me a son-of-a-bitch."
The very words Bykaylo imputed to Landers indicate it was in reaction to some-
thing Bykaylo had called him and that Ford, the onlooker, spoke reproachfully
of Bykaylo's abuse. (As to this last, during the General Counsel's case-in-chief,
Respondents, by questions to Landers and Ford on cross-examination, strongly sug-
gested, as an additional reason for discharging Ford, that Bykaylo had also com-
plained that Ford had told him he had no right to give orders to Landers and that
Fruman so told Ford during the confrontation. That line was not pursued during
Respondents ' presentation , and no such claim is now made.)
Respondents stress the well-taken point in law that the issue turns not on whether
the truth lay in Bykaylo's accusation or in Landers' and Ford's negation of it, but
on the honesty of Respondents' motivation in the light of the facts before them:
were Fruman's actions motivated by union animus or did he act out of a genuine
desire to discourage violence in his establishment by getting at the truth of the ac-
cusation before punishing the offender? Respondents urge, as Fruman testified,
that he was made "furious" by an accusation of an old trusted employee that
another had threatened him with violence, the first incident of its kind in the plant;
that he sought to find out the truth through a lie detector test, and that when Landers
and Ford reneged on their earlier acquiescence in the test, this "confirmed [his]
suspicion from the beginning" that Landers had been guilty as charged and that
Ford was untruthfully covering up for him, and so he discharged them.
If the above were all to the case, I would unhesitatingly conclude the General
Counsel has not met his burden of proof and recommend dismissal of that portion
of the complaint. It must be said, however, that Fruman's response to Bykaylo's
accusation and his whole conduct at the confrontation toward Landers is iather
difficult to divorce from a preexisting animus. One would have expected that in
ordinary course his insights derived from long experience in managing people would
have made him a bit skeptical about an accusation of violence in which the ac-
cuser claims to have been free of the remotest provocation in the incident. Whether
it would excuse the threat of violence is another matter, but at least he would have
wanted to see the matter whole. One would have expected him to have asked
Landers first what happened, and upon being told by Landers and Ford of the
undoubted provocation to which Landers had been subjected, to have perhaps seen
the hammer raising-even if he believed it had occurred-against the perspective
of Landers never having been charged with such conduct in his 8 years of em-
ployment , and indeed as a gesture of protest having no more significance as an in-
tended act of violence than he would attach to the threat he made to Landers,
when he came to the machine, that he would "blow" Landers' (obscenely described)
"brains out."
Before proceeding to the details of the confrontation , it is in point to note prelimi-
narily that a measure of how one would reasonably have expected Respondents to
handle this incident in ordinary course is afforded us by how it disposed of a like
incident involving the same Bykaylo and a new employee. John Mance testified
that some time after the Landers' incident, he observed an argument between Bykaylo
and that employee in the gutter room, in which the latter told Bykaylo "to take his
hands off him or he'll cut his neck off"; that Bykaylo then came back with Depart-
ment Head McBride; and that the employee was removed from gutters and put to
other work. Bykaylo admitted such a transfer had taken place, but asserted that he
had only complained to McBride of the employee's incompetence. But he could
hardly have failed to complain of the threat in the face of his going to McBride as
soon as it was made, even though it may well have been a miscue , as he saw it,
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that inspired the incident with that employee as it had with Landers. The inference
that Bykaylo complained of the threat is fortified by McBride 's appearance on the
scene immediately after Bykaylo's departure and was not explained otherwise by
McBride, who did not testify.
This incident achieves additional relevance from the fact that despite the strik-
ing similarity of that incident to the one involving Landers, it was handled and dis-
posed of at the lower echelon by McBride-the very person to whom Bykaylo first
made his complaint regarding Landers. It is difficult to escape the conviction that
that, ordinarily, is how the Landers' incident would have been handled, with an out-
come no more adverse to Landers than to the new man and, in all probability better,
in view of their long prior relationship without incident , most of it under the su-
pervision of the same McBride.
The fact is that the Landers incident too had begun to be handled at the lower
echelon. First to speak to Landers was Department Head Die, who told him that
Bykaylo had accused him of "cussing him out" and raising a hammer at him, and
asked Landers what happened. Landers replied, "He cursed at me and I cursed
at him," but that he "didn't raise a hammer on Johnny." Before Die could act,
Fruman came on the scene and this brings us to the details of the confrontation.
Landers' and Ford's version of what happened was substantially corroborated by
Fruman in his own sketchy account of the occurrence . He gave it without specific
denials of the description of his manner and his language. And in the respect in
which he disputed an item to which Ford had testified (as to whether the Union
was mentioned in connection with their request to be represented by someone at
the test, which immediately preceded his discharging them), he was contradicted
by his pretrial affidavit. Further, Die, who was there, was not put on the stand
in corroboration of Fruman 's version . The description of what happened is thus
a composite of the three versions with Landers and Ford credited in respect to such
variances as there were between their versions and Fruman's.
As soon as Landers gave his explanation to Die and before the latter could act,
Fruman came over in a rage. He said, "He wasn't going to have anybody out in the
shop talking about killing somebody " At the same time he told Landers he would
"blow [his] brain out" (preceding this last with an obscenity , as mentioned).
Landers twice tried to explain , and Fruman each time cut him off saying he was
lying and repeated the "blow [ his] brain out" threat . Landers then stopped the
machine and managed to get in his description of the interchange , describing
Bykaylo's language and then his own , and denying he had drawn a hammer. Fruman
again said he was lying. Landers said the "man down there catching the pipe .
can tell you what had happened ," and Fruman turned to Ford. Ford told him that
Bykaylo had cursed Landers and Landers had answered back and had drawn no
hammer. Fruman accused Ford of lying and Ford said he had no reason to lie, for
he had "nothing to `uphold ' [ sic]." Fruman proposed a lie detector test and they
accepted . He left for his office and Superintendent Siegel called them to the office.
As they were leaving the gutter department , Fruman encountered them and said
they "couldn 't fool the machine , it could tell if they were lying." Ford at this point
asked who would give the test , and Fruman said he had gotten a name out of the
telephone book . Ford then said he knew nothing about lie detector tests and that
he wanted to call "someone from downtown ." Fruman refused , and Ford asked
the test be taken in some impartial place, suggesting a police precinct . Fruman
said it would "cost too much to go down to a precinct ," and said the test would
be given in his office by the man whose name he got out of the telephone book. Ford
and Landers then repeated they wanted to call "someone from downtown" to repre-
sent them . Ford testified that Fruman asked whether he meant "some of your union
friends," to which Ford replied "No, just someone to represent me," and at this
point he told them to "hit the clock," adding to Die, who turned to him for in-
structions , "Get these fellows their cards and get them out of here and don't send
them back here anymore ." We have previously mentioned that Fruman, in his
testimony , denied that the Union was as much as mentioned on that occasion. In
his pretrial affidavit , Fruman described the terminal incident as follows:
I asked the other two and they agreed at first, but on the way out of the
room , when I reminded them that they couldn 't fool the machine , it could tell
if they were lying, they started to stall and Landers said, he wouldn't take it
unless his man was there. I said, "Who is your man?" Landers said, "The
union man " He was not the representative and he had no business being
present when I had them take this test so I told them to get out . They went
and that was the last of Ford and Landers.
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1063
Fruman acknowledged that Respondents had never before resorted to a poly-
graph test except in rare instances involving theft and disappearance of property.
Respondents assert his proposal to use it here was because this was the first time an
employee had been accused to threatening violence; that his only purpose was to
know where the truth lay before coming to a decision , and since they did not co-
operate in the quest he discharged them . Yet his actions could hardly have been
more calculated to invest them with suspicion of his purpose and doubts of the
impartiality of the test's auspices . He preceded his proposal with an absolute state-
ment of his judgment that they were lying. Despite this, they assented to the test.
Nevertheless , he acted to deepen their apprehensions by, in his own words,
"remind[ing ] them that they couldn't fool the machine, it could tell if they were
lying." It is difficult to understand what else Fruman could reasonably have ex-
pected than that their confidence in the test 's auspices would be shaken and that
they would ask about it, and so too would be their faith in the integrity of his pur-
pose after he refused to permit them to arrange for someone to represent them and
rejected the eminently reasonable proposal that the test be taken away from the
manifestly hostile setting of his office and given in the less surcharged one of a
police precinct . It is rather difficult to envision the knowledgeable Fruman himself
submitting to a test on a polygraph machine under such auspices , and it is no less
difficult to conceive of him as reasonably expecting that they would do so. An
added perspective in viewing that occurrence is afforded us by the conduct on that
occasion of Department Head Die. He would seem to have looked with some in-
credulity toward Fruman when he told the two to "hit the clock," for Fruman repeated
that instruction to Die; and a measure of how Fruman 's performance registered
upon his subaltern, who could hardly be deemed to have viewed it with a bias
against management , is what he said to Ford as he was leaving. Die then whispered
to him, according to Ford's undenied testimony, "You fellows have a union. Why
don't you go down there when you leave and talk with them about it and perhaps
they can help you fellows out." The content of Die's statement is less significant
than his action : that a representative of management should have been moved to
act as he did in this situation is some indication of how Fruman 's performance would
be calculated to strike the persons directly involved and the reasonable foresee-
ability to Fruman of how they would respond to it.
Fruman's total performance from the time Bykaylo spoke to him reflects an anger
triggered off but not caused by Bykaylo 's story. If the story he got from Bykaylo is
the one Bykaylo gave us-as it must be presumed to be-every reasonable expecta-
tion is that he would have received Bykaylo 's account of the incident with con-
siderable pause: he would at least, as did Department Head Die before him, have
asked Landers what happened , and not have met him with the "blow [his] brains"
out threat before even hearing him, and having heard him and Ford , every reason-
able expectation is that he would have concluded the matter with a warning to
Landers-since he had theretofore not been even remotely implicated in that kind
of conduct , or at worst have put Landers to other work , as was done with the other
employee. And it is reasonable to anticipate that he would have counseled Bykaylo
on the wisdom of making some effort to keep his temper in tow. My impression of
Bykaylo, as stated during the hearing , was the mildest way I could muster to denote
what was apparent to one seeing that witness , and as I would presume, was ap-
parent also to Respondents from the manner of their disposition of a like complaint
by Bykaylo against another employee: that this dour little man, with every defer-
ence to his craftsmanship , is the living embodiment of unbridled irascibility-
a crank bereft of patience , or any objectivity where he is involved . This last was
apparent when he insisted , as he must also have done to Fruman , that at no time
in the incident had he uttered a swear word, and, for added measure, that when he
had made the criticism that evoked Lander 's hostile reaction as claimed, he spoke
calmly. Throughout his testimony , his tone and manner showed him to be skirting
the edge of sheerest exasperation , which led me to ask whether he thought he was
calm now, to which he answered "yes." The vacuum in his objectivity was ag-
gravated by a showing of irresponsibility in improvising an answer to why Landers
should have reacted that way to mere criticism when he had not done so in the past
during trouble with the machine . His answer was, "I think he's alcoholic now.
I think he's alcoholic now." Asked whether he told that to Fruman, his answer was
"yes." (Respondents have never so claimed )
On redirect, company counsel elicited from the witness that earlier that day
Landers had expressed disgruntlement with the amount of work he was now getting,
thus linking the affair of February 6 with Respondents ' own action of January 28.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would agree the linkage exists, but the fair sense of the record would indicate Re-
spondents have put their finger on the wrong man. The record is devoid of the
slightest credible showing of animus on Lander's part toward Respondents, and he
showed none at the hearing. In contrast, the record abundantly shows an animus on
the part of Fruman, owner of Respondents, toward Landers, not as a person or for
his performance as an employee, but for what he represented to him. He showed
it in telling Landers he had a "lot of guts" asking him for a loan when, as "a certain
party told [him]," Landers was the "ringleader" of the Union; he showed it in tell-
ing him he could go to his "union buddies" for a loan and in his performance at
lunch when he subjected Landers to the humiliation of asking those employees, in
Landers' presence, whether they would "trust" him for the loan; he showed it the
second conversation that day when he again accused Landers of being the "ring-
leader" based on what the "right man" had told him; and he showed it that same
day when, without prior warning, he reduced the workweek of Landers and three
others, telling Landers that "we're not going to run it this year the way we run it
last year." The lingering animus toward what Landers and, by parity of association,
Ford and the other complainants represented to him is reflected in Fruman's conduct,
after the discharge, in continuing the two surviving complainants on a part-time
basis over their supervisor's suggestion that they go back to full time and despite the
dramatic increase in Respondents' workweek removing all color of claim to reduced
work needs; and, if I may suggest, it appears also in Fruman's highly intemperate
performance on February 6, which was not reasonably commensurate with the
situation before him.
Motivation, as Respondents' counsel properly observes, is a subjective matter.
Of necessity, the assertion that Fruman's action was motivated by a managerial con-
cern to get at the root of a claimed threat of violence must be tested against his pre-
viously demonstrated animus derived from viewing the attributed leadership of
Landers in the Union as an ingratitude for what he regarded as past favors to Landers
and the force. In such a matter, the determination of where the preponderance lies
hinges largely on the probabilities. So considered, Fruman's performance first
against Landers, and then also against Ford when he supported Landers, takes on
more of the aspect of a preexisting grudge than the genuine sense of outrage he at-
tributed to himself. Even then, since the burden of proof is on the General Counsel,
I would have been disposed to resolve the doubt in favor of Respondents on that
issue were the quality of Fruman's testimony such as to stand up against the probabil-
ities. Regrettably to him, it cannot be said this was so, for he rather gravely under-
mined his reliability in the numerous instances in which assertions on material
matters, however positive his manner in making them, were discredited when tested
against established fact or prior statement These include: his assertion that he
thought all employees had signed up in the Union as against the showing that several
employees had expressly disclaimed to him they had signed; his stout insistence that
he had never inquired about union activity of any employee at any time, much less
so behind "closed doors," as against the contrary revelation of Respondents' witness,
Max Fisher; his omission on direct of any reference to his "union buddies" statement
in both conversations with Landers and his claimed nonrecall on cross that he made
it in other than the first one, as against the contrary showing in his pretrial affidavit,
to which he responded not by acknowledging his error but volunteering that it was
"casual[ly]" made, when the fair sense of his statement in each instance was that it
was the heart of his message to Landers, and further improvising the "unions have
these credit unions" explanation, with its manifestly spurious intimation concerning
his intended meaning ; his positive assertion that the Union was not mentioned when
Ford and Landers made their request to call "downtown" for someone to represent
them in the lie-detector test, after which he discharged them, as against his contrary
statement in the pretrial affidavit: and his portrayal of the work reduction of Janu-
ary 28 as having been motivated by considerations of economy resulting from an
excess of labor supply over work needs in the face of imminent and never explained
expansion showing the reverse and in any event negating the probability that he
would then genuinely be interested in saving the expense involved in the 8-man-days
a week in the face of a reasonably anticipated enlargement of work needs in multiples
of that manner. A further example of liberty with fact appears on a matter which
though no longer crucial on the evidence as presented, seemed material when he
testified to it: in justifying the retention of junior employees as against Respondents.
he gave as the reason for retaining the junior Brostean, that he was "in charge of
samples," which was discredited by that employee's express disclaimer that he was
in charge of any item in the shipping department and his testimony that he handled
samples among a variety of other duties akin to Mance (supra, footnote 14).
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1065
As significant as the contradictions was his manner when faced with them. He
is a forceful personality, formidable in fact, whose directness of delivery and air
of righteous anger originally carried conviction to me despite a propensity to use
the expression of "lying" toward others-until he was confronted on significant items
by prior contradictions in his pretrial affidavits. He never lost his air of assurance,
yet he never acknowledged that his present recollection had changed in the light of
admittedly contradictory statements in his affidavit, and he uttered the spurious
retrieve previously described with a somewhat less than rehabilitating air of scorn
toward his interrogator.
As one appraises Fruman's testimony when scrutinized against demonstrated facts,
one notes in him a characteristic of certain strong personalities who have a low
tolerance for being crossed: he believes what he asserts at the moment, however it
might not square with his assertions of previous moments. He may well have
believed his testimony concerning the motives with which he acted toward Landers
and Ford. But, as shown, his belief does not always square with fact.
The above is not to indicate that I deemed the testimony of all complainants with-
out blemish. I have found nothing to impugn Ford, yet I do have a reservation
about a single aspect of Landers' testimony Landers testified there was no hammer
at the machine where the affray occurred, while Ford, though he heard Landers
testify on that point, said there generally is one there, which i ather indicates that
Ford would not have been disposed to uphold Landers on any item not squaring
with his genuine recollection.
A word should here be said about the two remaining complainants, Ingram and
Mance. I found them both truthful, and though Mance was in error in recalling
the incident in which he damaged a truck in the handling of a HI-Lo machine as
having occurred after January 28, when Respondents' records show it occurred the
beginning of January (supra, footnote 14), his testimony on other points was markedly
corroborated by Respondents' witnesses, was previously indicated
Respondents claim that the failure to take punitive action against Mance when he
had the Hi-Lo accident early in January negates the inference that they were motivated
by union animus in the action against Landers on February 6. The conclusion would
not follow since the premises are not alike. The unequivocal manifestations of
union animus were shown to have occurred later that month-in Marshall Fruman's
talk with Mance in mid-January and President Fruman's talks with Landers on
January 28; also, President Fruman's accusation of Landers as the "ringleader"
showed he put the larger and more mature Landers in a slightly different category
from the boyish and somewhat ingenuous looking Mance. Another point is that
discriminatory motivations are not always expressed in coldly contrived and pre-
meditated schemes to find a pretext for discharge. In some cases, the resentment is
touched off by an incident . Landers had the bad fortune of provoking Fruman
by what appeared to him to be his sheer gall in coming to him for a loan in the
face of what Fruman deemed to be ungrateful conduct in leading the union move-
ment. He also had the bad fortune of being involved in the incident with Bykaylo
in the flush of Fruman's still abiding -anger touched off the day of the work reduc-
tion. Antiunion motivation, while sometimes the unalloyed reason for discriminatory
action, is more often interwined with other motives, with it playing a substantial con-
tributing part in the action. The result legally is the same. The established prin-
ciple, most recently articulated in N L.R B. v. Electric Steam Radiator Corporation,
a subsidiary of Landers, Frary and Clark, 321 F. 2d 733 (C.A. 6), in that:
It is not necessary that antiunion motivation be the only reason for the dis-
criminatory action complained of. It is sufficient if it is a substantial reason,
despite the fact that other reasons may also exist [citing cases l.
On close and careful weighing of all the evidence both ways, I conclude that the
preponderance of the credible evidence supports the General Counsel's contention:
that Respondents' manner of handling the Bykaylo-Landers incident was a departure
from the way they would normally have handled it but for the animus against Landers
for his presumed union leadership, and that the discharge of Landers, and also of
Ford for supporting Landers' version, was a result of that animus. I also find that
further contributing to the discharge was the aggravation of Respondents' union
animus caused by Landers' and Ford's conveying to Fruman that they wanted to
call the Union in order to have someone represent them at the taking of the polygraph
test. Respondents thus discriminated against Landers and Ford in violation of
Section 8(a)(3), and interfered with, restrained, and coerced employees in the ex-
ercise of their guaranteed rights in violation of Section 8(a) (1). of the Act.
1066 DECISION S OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
The findings call for the usual cease-and-desist requirement, here of a broad
character in view of the nature of the violations found.
The affirmative remedial action will include the usual posting of notices, offers
to Landers and Ford of immediate and full reinstatement to their former or substan-
tially equivalent positions,15 without prejudice to seniority or other rights and pri-
vileges, and reimbursement in accordance with the standard make-whole formula,I6
of Landers, Ford, Ingram, and Mance for loss in pay sustained in consequence of
their discriminatory work reduction on January 28, and of Landers and Ford, further,
in consequence of their discriminatory discharge on February 6, 1963, with interest,
in each instance, at 6 percent per annum.17
Upon the foregoing findings, and upon the entire record in the case, I hereby state
the following:
CONCLUSIONS OF LAW
1. By reducing the workweek of Bruce Landers, Robert Ford, Emmett Ingram,
and John Mance for the purpose of discouraging membership in the Union, Respond-
ents discriminated in respect to their hire and tenure, thereby engaging in an unfair
labor practice within the meaning of Section 8 (a) (3) of the Act.
2. By discharging Bruce Landers out of animus for his assumed leadership in the
Union and Robert Ford because he had supported Landers in his version of the
incident precipitating the discharge and by discharging both in further resentment
over their expressing a desire to consult the Union about representation in the
polygraph test, Respondents discriminated against them in discouragement of mem-
bership in the Union, thereby engaging in an unfair labor practice within the mean-
ing of Section 8(a) (3) of the Act.
3. By the above, and also by threatening, because of employee interest in the
Union, to discontinue the business in whole or in part, to put employees under stricter
regulation, and to discontinue prior policies in respect to granting of loans or other
benefits, and in respect to keeping employees on full time; by causing or attempting
to cause, through claims of possession of information, employees to believe or ap-
prehend that their union activities are under surveillance or inquiry; and by question-
ing employees concerning union membership in a total context giving such action the
force of coercion, Respondents interfered with, restrained, and coerced employees
in the exercise of their rights under Section 7, thereby engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The above unfair labor practices affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondents have not engaged in any unfair labor practices alleged in the com-
plaint other than as herein specifically found.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondents, Dale In-
dustries, Inc. and Wyoming Service Company, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from •
(a) Discouraging membership in United Industrial Workesr of America, Ind.,
Amalgamated Local 286, or any other labor organization, by discriminatory discharge,
layoff, reduction of the workweek, or other form of economic reprisal.
(b) Threatening employees that because of their interest in or support of this or
any other union, Respondents will or may discontinue the business in whole or in
part, place them under more stringent regulations, or change to their detriment prior
policies in respect to the granting of loans or other benefits, or in respect to keeping
them employed at full time.
(c) Cause or attempt to cause, by claims to possession of information or other-
wise, employees to believe or apprehend that their union activity or degree of union
support is under surveillance or inquiry
(d) Interrogate employees concerning their or other employees' membership or
support of the Union, and their reasons therefor, for the purpose or with the fore-
15 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, 829
1e F TV. Woolworth Company, 90 NLRB 289. 291-294
17 Isis Plumbing & Heating Co., 138 NLRB 716
DALE INDUSTRIES, INC., WYOMING SERVICE COMPANY 1067
seeable effect of interfering with, restraining, or coercing them in the exercise of
their rights under Section 7 of the Act.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in ,any other concerted
activity for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities (except insofar as any future contract, if
lawfully made in accordance with Section 8(a)(3) of the Act, might condition em-
ployment on membership in a labor organization).
2. Take the following affirmative action which it is found will effectuate the policies
of the Act-
(a) Offer Bruce Landers and Robert Ford immediate and full reinstatement
to their former positions, or if unavailable, to substantially equivalent positions, with-
out prejudice to seniority or other rights and privileges, in the manner provided in the
remedy section of this Decision.
(b) Make whole Bruce Landers, Robert Ford, Emmett Ingram, and John Mance
for the loss of pay sustained by the reduction of their workweek on January 28, 1963,
and Landers and Ford, further, for their loss in pay resulting from their discharge
on February 6, 1963, in the manner provided in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other data relevant to compliance with
the preceding subsections.
(d) Post at the plants or places of business of Dale Industries, Inc., and Wyoming
Service Company, copies of the attached notice marked "Appendix." 18 Copies of
said notice, to be furnished by the Regional Director for the Seventh Region, shall,
after being signed by the Respondents' authorized representative, be posted by the
Respondents immediately upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Seventh Region, in writing, within 20
days from the date of this Decision, what steps Respondents have taken to comply
therewith.19
It is further recommended that the complaint be dismissed insofar as it alleges any
unfair labor practices other than as herein found.
18 If this Recommended Order is adopted by the Board, the words "A Decision and Order"
shall be substituted for the words "The Recommended Order of a Trial Exaimner" in the
notice. If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "A Decree of the United
States Court of Appeals, Enforcing an Order" for the words "A Decision and Order."
10 If this Recommended Order is adopted by the Board, this provision shall be modified
to read* "Notify the Regional Director for the Seventh Region, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in or activities on behalf of United
Industrial Workers of America, Ind., Amalgamated Local 286, or any other
labor organization, by discharging, laying off, reducing the workweek, or other-
wise discriminating against any employee.
WE WILL NOT threaten employees that because of their interest in or support
of this or any other labor organization, we may discontinue the business in whole
or in part, place employees under more stringent regulations, or change to the
employees' disadvantage our policies in respect to granting of loans or other
benefits, and in respect to keeping employees at work on full time.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, by claims to possessing certain information or otherwise,
cause or try to cause you to believe or fear that we are watching or having others
watch and inform us about your union membership or activity.
WE WILL NOT ask any employee about his or any other employees' union
activity in order to or with the effect of putting him or any of you in fear of
freely exercising your rights under the National Labor Relations Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce you
in the exercise of the right to self-organization, to form labor organizations,
to join or assist United Industrial Workers of America, Ind., Amalgamated
Local 286, or any other labor organization, to bargain collectively through
representatives of your own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or mutual aid or protection,
or to refrain from any or all such activities (except insofar as this right could be
affected by any possible future contract, if made in accordance with law, re-
quiring membership in a labor organization as a condition of the job).
WE WILL offer Bruce Landers and Robert Ford immediate and full rein-
statement to their former positions, or, if unavailable, to substantially equiv-
alent positions, without prejudice to their seniority or other rights and privileges.
WE WILL make whole Bruce Landers, Robert Ford, Emmett Ingram, and
John Mance for their loss in pay sustained because of the reduction in their
workweek on January 28, 1963, and make whole Bruce Landers and Robert
Ford for their loss in pay resulting from their discharge on February 6, 1963,
in each instance with interest at 6 percent a year.
All our employees are free to join or not to join, without fear of discrimination
or other reprisal, United Industrial Workers of America, Ind., Amalgamated Local
286, or any other labor organization (except as this right may be affected by any
lawful contract conditioning employment on union membership).
DALE INDUSTRIES, INC., WYOMING
SERVICE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-If any employee above named, who is to be offered reinstatement, should
now be serving in the Armed Forces of the United States, then we will notify him of
his right to full reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive, days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Any employees having a question concerning the meaning of the above notice
or concerning compliance with its requirements may inquire by mail, telephone,
or in person at the Board's Regional Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan, Telephone No. 226-3230.
Myca Products Division of the Kane Company and International
Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO. Case No. 8-CA-32 f8.
January 17, 1964
DECISION AND ORDER
Upon the filing of a charge on August 8, 1963, by International
Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board, by the Regional
Director for the Eighth Region, issued a complaint on September 4,
1963, and an amendment thereto on September 19, 1963, alleging that
145 NLRB No. 111.