Dart Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1975

216 N.L.R.B. 1046 (N.L.R.B. 1975)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tupco, Division of Dart Industries, Inc. and Carole
Dees . Case l-CA-9835
March 13, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On November 18, 1974, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions3 of the Administrative
Law Judge to the extent consistent herewith and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend=
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Tupco, Division of Dart Industries, Inc.,
Auburn, Massachusetts , its officers , agents , succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
Substitute the following for paragraph 1(a) of the
recommended Order:
"(a) Discouraging membership in, or activities in
behalf of, Laborers International Union of North
America, Local 243, or any other labor organization,
by failing and refusing to recall employees from
layoff status or by discriminating in any manner as
to any term or condition of employment of any of
Respondent's employees in order to discourage
union membership or other concerted activities."
MEMBER KENNEDY, dissenting:
Since I agree with the view expressed by former
Chairman Miller in footnote 3 of the decision
reported at 215 NLRB No. 90 (1974), I would find
that Respondent did not violate the Act in failing to
recall Dees on November 26, 1973.
It is clear that Dees' layoff on September 14, 1973,
was due to bona fide business reasons. As found by
Administrative Law Judge Corbley in the earlier
case, Dees had agreed with Plant Manager Perreault
that "her performance on two jobs showed that she
was not producing efficiently by comparison with
other polishers." I am not persuaded that Respon-
dent's failure to recall Dees was motivated by
unlawful consideration.
i In adopting the Administrative Law Judge's finding that Respondent
violated Sec . 8(aX3) and (I) of the Act by not recalling Charging Party
Carole Dees on November 26, 1973, we note our decision in Tupco, Division
of Dart Industries, Inc., 215 NLRB No. 90 (1974). In that case , we adopted
certain unfair labor practice findings of the Administrative Law Judge
therein and , in addition , found that Respondent violated Sec . 8(aX3) and (1)
of the Act by reducing Dees' overtime opportunities from August 6 through
19, 1973. In so finding, we specifically observed that Respondent wanted to
get rid of Dees because of her union activities . Although occurring more
than 6 months before the filing and service of the charge herein , the events
in the earlier case demonstrate Respondent 's union animus and may be
considered as background to shed light on Respondent 's motivation in the
instant case where it has failed to establish bona fide business reasons for
not recalling Dees on November 26, 1973. Dan River Mills, Incorporated, 125
NLRB 1006 (1959); Paramount Cap Manufacturing Co., 119 NLRB 785
(1957), enfd. 260 F .2d 109 (C.A. 8, 1958).
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 The Administrative Law Judge concluded that Respondent also
violated Sec . 8(a)(4) of the Act, finding that a further reason for its failure to
recall Dees was the fact that she testified against Respondent in the prior
Board proceeding. We note , however, that Dees did not give testimony in
that proceeding until January 29, 1974, and the record does not establish
that her testifying in fact became an additional reason standing in the way
of her recall . Therefore, we dismiss the 8(a)(4) allegation and shall modify
the recommended Order accordingly.
DECISION
STATEMENT OF THE CASE
MAURICE S. BusH, Administrative Law Judge: This case
was presented by General Counsel as an offshoot of a prior
proceeding before Administrative Law Judge Corbley in
Case 1-CA-9297 involving the same Respondent, Tupco,
in which, under a decision issued on May 24, 1974, he
found Respondent in multiple violation of Section 8(a)(1)
and (3) of the Act.'
The violations found by Administrative Law Judge
Corbley took place in the midst of a campaign by Local
243 of the Laborers International Union of North America
to organize Respondent's plant. It was known to Respon-
dent's management that Charging Party Carole Dees, 1 of
11 polishers in its plant, took a leading part in the
campaign to unionize the plant . She also testified under the
Act against Respondent in the earlier proceeding.
In a Board-conducted representation election held on
August 3, 1973, Local 1243 lost the election by a wide
margin.
Some 5 weeks later on September 14, 1973, Respondent
laid off Charging Party Dees. It is undisputed that her
layoff was for economic reasons.
The complaint herein alleges , however, that Respondent
i Appeals from Administrative Law Judge Corbley's decision are
pending before the Board.
216 NLRB No. 185
TUPCO, DIV. OF DART INDUSTRIES, INC.
should have recalled Dees from on or about November 26,
1973,2 but failed and refused to do so because of her union
activities and because she had testified against Respondent
under the Act in the prior unfair labor practice proceeding.
Respondent denies any unfair labor practices by its
failure to recall Dees . Its defense for not recalling Dees is
that there has been no business necessity to recall her.
Under the above undisputed but skeletonized facts, the
issue herein is whether Respondent has refused to recall
Dees from and after November 26, 1973, because of her
union activities and testimony under the Act in violation of
Section 8(a)(1), (3), and (4) of the Act , or because
Respondent for strictly economic reasons has had no need
for her services.
The complaint herein was issued on July 3, 1974,
pursuant to a charge filed and served on May 20, 1974.
The case was heard on September 5 and 6, 1974, at
Worcester, Massachusetts . Briefs, filed by counsel on
October 4, 1974, have been carefully reviewed and
considered.
For reasons hereinafter indicated , I find Respondent in
violation of the Act as alleged in the complaint.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent herein is Tupco, Division of Dart
Industries, Inc., a Delaware corporation . Tupco maintains
an office and place of business in Auburn , Massachusetts,
where it is engaged in the manufacture, sale, and
distribution of molds and related products. In the course
and conduct of its business , Respondent causes large
quantities of steel used by it in the manufacture of molds to
be purchased and transported in interstate commerce from
and through various States of the United States other than
the Commonwealth of Massachusetts , and causes substan-
tial quantities of molds to be sold and transported from its
plant in interstate commerce to States of the United States
other than the Commonwealth of Massachusetts . Respon-
dent annually ships from its plant at Auburn, Massachu-
setts, goods valued in excess of $50,000 directly to points
outside the Commonwealth of Massachusetts . By reasons
of the above-admitted facts and by admission in its
pleadings , Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Laborers International Union of North America,
Local 243, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Tupco is engaged in the manufacture of
stainless steel molds primarily for sale to Tupperware,
1047
another division of the parent company, Dart Industries,
Inc. Tupperware in turn uses those molds for the
manufacture of its well-known plastic Tupperware kitchen
products such as tumblers, stacking canister sets, and
refrigerator bowls among other molded plastic products.
Tupco has a normal stable work force of 50 to 55
employees who fall into two main classifications; namely,
production and maintenance employees as one group, and
polishers, as the other. This proceeding relates primarily to
Tupco's polishing department as the Charging Party,
Carole Dees, herein, worked as a polisher for the
Company. She was laid off on September 14, 1973, because
of lack of work and never recalled. Findings as to whether
Respondent's business improved sufficiently enough from
and after November 26, 1973, to justify her recall will be
dealt with in a later section of this Decision.
Tupco's production employees are lathe operators,
commonly called machinists . To become a journeyman
machinist takes an. apprenticeship of 8,000 hours or 4
working years. The work of a polisher requires an
apprenticeship of 6 months to a year. Charging Party Dees
advanced from an apprenticeship polisher to a "B" class
polisher in about a year. The rate of hourly pay for
experienced machinists is, as might be expected, higher
than that for polishers. It is the function of the machinists
to fashion blocks of steel on their lathing machines into
molds. The molds, as worked up by machinists, contain
cavities designed to be used in the manufacture of plastic
kitchenware or other products. The final process in the
manufacture of molds is the polishing of their cavities. This
function is performed by Respondent's polishers. They
smooth or polish the cavities in the mold by a combination
of handtools, brush, and hand. Some molds require more
polishing than others. The testimony of Respondent's plant
manager, George Perreault, shows that the work of the
Company's polishers is tedious and monotonous.
Although a mold is referred to in the singular, it may
contain when shipped to the consignee as many as 80
individual cavities. The average mold, however, consists of
16 cavities. These cavities are assembled into the mold by
means of bolts or screws.
The manufacture of a mold normally requires a
minimum of 6 months' work after receipt of order. Some
activites can be polished only by one polisher at a time;
other cavities can be polished simultaneously by two or
more polishers. In 1973, the Company was generally able
to make deliveries 6 months after receipt of an order. In
1974, mold delivery time was increased to a minimum of 12
months, after the receipt of an order, due to a backlog of
orders.
Since the opening of its plant in 1966, Respondent has
always sought to work its employee 55 hours per week. It
has been forced to have a longer than the normal 40-hour
workweek because of inability to find enough skilled labor
in its labor market to meet production goals . To meet its
production schedules, the Company requires its machinists
to work a minimum of 50 to 55 hours per week and its
polishers, 55 hours per week. Some of Respondent's
employees work less than these hours , but the Company
2 By typographical error the year of alleged failure to recall is shown in
the complaint as 1974; at the hearing it was amended to read 1973.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strives for an average of such work hours from its work
force as a whole. The plant is operated 24 hours a day.
Thus a cavity on which only one polisher can work on at a
time, may have two or more polishers working on it over
the 24-hour day.
Some of Respondent's employees who are regularly
employed as machinists may be called upon to work in the
plant's polishing department as needed from time to time.
Similarly, some of the Company's polishers who have
competence as machinists may be called upon as needed to
work as machinists.
Respondent manufactures approximately 50 different
kinds of molds each year.
B. Union Animus
Pursuant to motion of counsel for General Counsel,
official notice is taken of a decision issued by Administra-
tive Law Judge Corbley in Case 1-CA-9297 on May 24,
1974, in an unfair labor practice proceeding involving
Tupco, the same Respondent here involved. General
Counsel relies exclusively on the findings in the decision in
the prior case for evidence of Respondent's union animus
and accordingly has adduced no independent evidence of
union animus in the instant case . Specifically, official
notice is taken of the fact that in the prior case Respondent
was found in multiple violation of Section 8(a)(1) and (3)
of the National Labor Relations Act. In his decision,
Administrative Law Judge Corbley specifically states:
"Respondent's [Tupco's] animus against the unionization
of its employees and particularly by this union is well
demonstrated by Ansley's [Tupco's president] speech and
the conduct of Respondent's supervisors . . . found
violative of Section 8(a)(1) of the Act."
Administrative Law Judge Corbley's decision shows that
the unfair labor practices in the prior case took place in the
midst of Local 243's campaign to organize Respondent's
plant which began in the first week of May 1973, and
continued until a Board-conducted representation election
on August 3, 1973, pursuant to a petition filed by the
Union, which Local 243 lost by a wide margin. As
heretofore noted he found in his decision numerous
violations of the Act by the Respondent for a period
beginning in early May 1973, and extending 10 days
beyond the election date, to August 13, 1973. The
violations found are best summarized, although indirectly,
in the cease-and-desist order as follows:
(a) Discouraging membership in, or activities in
behalf of, Laborers International Union of North
America, Local 243, or any other labor organization by
establishing or implementing a written warning system;
or by discriminating in regard to overtime work or by
discriminating in any other manner in regard to any
term or condition of employment of any of Respon-
dent's employees in order to discourage union member-
ship or other concerted activities.
(b) Coercively interrogating employees concerning
their fellow employees' union membership or activities;
threatening to shut down or phase out the plant or take
3 Upon motion of counsel for General Counsel, pursuant to leave
granted at the hearing, and with consent of Respondent, Joint Exh. 3 is
any other reprisal if the employees organize a union;
creating the impression among employees that it has
ways or means of identifying employees who partici-
pated in union activities and of knowing when these
activities are; holding out to the employees that they
would have virtually unlimited overtime opportunities
but for thg Union; suggesting that employees resign
because they joined the Union or in any other manner
interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
The above indicates both the seriousness and pervasive
nature of the Respondent's union animus which manifest-
ed itself even as late as 10 days after the Company won the
election of August 3, 1973.
Based upon my official notice of the findings in
Administrative Law Judge Corbley's decision in the prior
case, I find union animus on the part of Respondent not
only in the period involved in the earlier case from early
May 1973 through August 13, 1973, but also by inference
therefrom, not in any way contradicted by the testimony in
the instant case, to the period here involved from and after
November 26, 1973, in which the complaint alleges that
Respondent failed to recall Charging Party Dees because
of her union activities and because she testified against the
Respondent under the Act.
C. Charging Party's Work Recor4 Layoff, Union
Activity, and Company Knowledge Thereof
Charging Party Carole Dees has had an uninterrupted
period of employment with Respondent as a polisher for a
period of approximately 3-1/2 years from April 1969 to
September 14, 1973, when she was laid off. It is an
undisputed fact that her layoff was due to a slump in
Respondent's business. Two other polishers were also laid
off in that same month of September for the same reason.
Of the three layoffs, Dees, with 3-1/2 years of employment,
had the greater seniority. Polisher John Mastoris who had
been with the Company for 2 years was laid off in early
September and polisher Robert T. Dion who had been with
the Company as a polisher for 6 months was laid off at the
end of September. (Robert T. Dion is not to be confused
with his father, Robert J. Dion, who is Respondent's senior
polisher in terms of service and who was never laid off.) At
the time of the layoffs of the three mentioned polishers,
Respondent made no layoffs of its machinists, presumably
because they were hard to replace and also because some
of them could be temporarily transferred to polishing work
as needed.
From Joint Exhibit 33 and testimony of record, I find
that for the period June 3, 1973, to August 31, 1973,
Respondent had a staff of II full- time and part-time
polishers in its polishing department and that with the
three layoffs of September 1973, it has had a staff of full-
time and part-time polishers which has varied from 8 to 7.
The Company has not employed any new polishers since
the three layoffs in September 1973 although the projected
backlog for the entire plant increased from 36,000 man
hours of work on September 2, 1973, to 49,500 hours on
hereby received in evidence as a posttrial exhibit and made part of the Joint
Exhibit file.
I
TUPCO, DIV. OF DART INDUSTRIES, INC.
December 31, 1973, and to 61,500 hours on January 6,
1974.
As heretofore noted, Charging Party Dees has never
been recalled by Respondent since her layoff of September
14, 1973. Polisher Mastoris, was recalled, not as a polisher,
but to a machinist's job in about 6 weeks but voluntarily
quit a month later. A month or two after polisher Dion's
layoff, he took a job elsewhere and was dropped from
Respondent's payroll list as a layoff.
Respondent's "Position and Salary Record" for Charg-
ing Party Dees shows that after she started working for the
Company in April 1969 at $2 an hour she received three
successive "merit increases" in her first year as apprentice-
polisher to $2.50 per hour; that she received another "merit
increase" to $2.70 some time in 1970 when she was
promoted to a class "B" polisher; that thereafter in 1971
she received two additional merit increases of 10 cents each
which brought her hourly wage up to $3.10 per hour; that
in 1972 she received a "step increase" of 15 cents to $3.25;
and that she received a final step increase of 15 cents to
$3.40 on May 14, 1973, just 4 months prior to her layoff of
September 14, 1973.4
Administrative Law Judge Corbley in his decisiofi in the
prior unfair labor proceeding found that one of Respon-
dent's foremen , Josef Lovec, told bees in the early part of
August 1973 that the Company's record for the preceding
years showed that she "had gotten the most amount of
raises and the most money of anybody." In the light of that
finding which is herein adopted, I do not credit the
testimony of Plant Manager Perreault that Dees would
have received faster and greater merit increases if the
quality and quantity of her work had been better. Dees'
immediate foreman, Harry Penniman, testified herein that
the quality of Dees' polishing was "about average"but that
the quantity of her output was "less than average."
Based on the record as a whole I find that Dees' work
performance, although not the best, was an acceptable
performance, particularly as shown by company records
that she "had gotten the most amount of raises and the
most money of anybody."
At the time of Dees' layoff, the Respondent's two top
polishers were receiving about $4.50 an hour; the next two
best polishers were receiving about $4 an hour; and the
next two polishers, Foster and Stevens, were receiving a
lesser hourly pay than Dees' aforementioned $3.40 per
hour, but they were not laid off. I infer and find from the
fact that polishers Foster and Stevens dvere paid a lesser
hourly wage than Dees' that their work performance was
not as good as Dees' . At the time of Dees' layoff on
September 14, 1973, she was the only female polisher in
Respondent's plant and Respondent has not had any
female polishers since Dees ' layoff.
Dees' personnel record and the testimony in the case
show that she has never received any oral or written
reprimands on her work, but the combined testimony of
Plant Manager Perreault and Dees' immediate superior,
Penniman , shows that some dissatisfaction over the
quantity of her production was expressed to her some time
4 Of the eight wage increases received by Dees in the course of her 3-1/2
years' employment with Respondent as a polisher , the first six of these
increases are designated "merit increases" and the last two are designated
1049
in the summer of 1973. The record, however, shows that
notwithstanding this criticism she received a merit raise on
May l4, 1973.
The record herein and the decision of Administrate Law
Judge Corbley in the prior proceeding shows that Dees was
one of the leaders in the Union's campaign during the
summer of 1973 to organize Respondent's plant. As stated
in his decision, "Dees, a polisher, was a very active union
adherent who participated in the conference on the
representation election petition [by the Union] at the
Board's office in Boston and had served on the Union's
organizing committee at the plant."
Dees was algo one of the principal witnesses against
Respondent under the Act in the prior unfair labor
practice case. Many of the important findings of violations
in that decision are based on the credited testimony of
Dees. In his decision Administrative Law Judge Corbley
mentions Dees by name no less than 40 times.
Plant Manager Perreault admits by his testimony in this
proceeding that he had knowledge of Dees' union activities
to organize the plant during the summer of 1973. I find
that his knowledge of Dees' union activities thus became
Respondent's knowledge.
Dees on September 11, 1973, was told by Penniman, her
foreman, that he had been instructed by Plant Manager
Perreault to lay her off temporarily as of September 14 due
to lack of work. (It is again noted that it is undisputed that
Dees was laid off due to lack of work; the issue here is
whether with increasing business, Dees should not have
been recalled on or about November 26, 1973.) He asked
Dees if she intended to come back to her employment with
Respondent and she replied in the affirmative. Later that
day she asked him how long the layoff would be and
Penniman told her it would be at least until Thanksgiving
but that he "couldn't know for sure beyond that." After
her layoff, Dees returned periodically to Respondent's
plant to make payments to keep up her medical insurance,
but was never offered reemployment. In early May 1974,
Dees had a conversation with Respondent's personnel
manager, Richard Morris, in his office at which he told her
that the Company no longer deemed her as an employee
because of company policy to consider all layoffs of more
than 6 months' duration to be terminated. Respondent's
"Position and Salary Record" for Dees shows that as of
March 20, 1974, she is marked "permanent layoff." On
May 20, 1974, Dees filed her charge with the Board,
charging the Respondent has failed to recall her because of
her union activities and because she gave testimony before
the Board.
The findings above, based on the findings in the decision
in the prior proceeding, show that Respondent through one
of its agents expressed a strong personal animus against
Dees because of her union activities. In his decision
Administrative Law Judge Corbley notes that several days
after the representation election of August 3, 1973, which
the Union lost, Lovec, the aforementioned foreman, had a
talk with Dees. In that conversation Lovec reminded Dees
that the employees who were for the Union had said they
"step increases" in her "Position and Salary Record." However, Respon-
dent's plant manager described all these increases as merit increases. (G.C.
Exh. 4.)
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were going to quit because they did not think they would
have their jobs if the Union lost the election . Thereupon it
is noted in the decision that Lovec said to Dees, "So, why
don't you get the f- out?"
D. Post Layoff Economic Data Relating to
Question of Whether Respondent Has Had Bona
Fide Business Reasons for its Failure To Recall
Charging Party Dees
Respondent keeps a weekly report on its work backlog in
terms of hours of labor required to complete deliveries on
orders at hand. The weekly report as of September 2, 1973,
shows a backlog of work in progress of 36 ,000 labor hours;
as of December 31, 1973, a backlog of 49,500 labor hours,
and as of January 6, 1974, a backlog of 61,500 labor hours.
There is no evidence of record as to what the backlog of
man hours of labor was on or about November 26, 1973,
when the complaint alleges Respondent should have
recalled Charging Party Dees. Similarly there is no
evidence of record of the backlog of work for any weeks
other than the 3 above -mentioned , presumably because of
General Counsel's reliance on the hourly workload for
those 3 weeks as sufficient in themselves to show that
Respondent should have recalled Charging Party Dees no
later than December 31, 1973.
As heretofore noted there are two phases in the
manufacture of stainless steel molds . The first phase is the
machine fashioning of molds out of ingots of stainless steel
in Respondent's machine shop . The second or final phase
is the polishing of the rough cavities of the molds in
Respondent 's polishing department.
The record shows that as the number of orders for molds
increases , the amount of the polishing load likewise goes
up but not necessarily proportionately because some molds
require more and some less polishing than others .5
The above-noted increases in Respondent's backlog of
work is one of several indicators relied on by General
Counsel to establish a showing that Respondent should
have recalled Charging Party Dees on or about November
26, 1973 . General Counsel also relies on the time required
to make deliveries on orders on hand as a second such
indication. The record shows that while for the year 1973,
Respondent was making deliveries within a minimum of 6
months from the date of order, in 1974 Respondent
required a nunimtun of 12 months from date of order for
delivery because of the pileup of back orders.
A third classification of evidence adduced by General
Counsel to show that Dees should have been recalled on or
about November 26, 1973, is documentary evidence
showing that in the weeks ending December 2 and 9, 1973,
Respondent worked two of its polishers about 70 hours per
week . This was in large part due to the fact that from and
after the three layoffs of September 1973 the Respondent
was attempting to put out as much polishing with 8
polishers as it formerly did with 11 polishers.
5 The above finding is established by the testimony of Plant Manager
Perreault under cross-examination by counsel for General Counsel. Under
later cross-examination , Perreault appears to contradict his earlier testimo-
ny by stating that if the amount of workload increased from 30 ,000 labor
hours to 60,000 labor hours on hand , the amount of polishing would not
increase but would stay the same . This apparently seemingly contradictory
In that week ending December 2, 1973, Respondent's
eight polishers put in a total of 475.3 polishing hours. In
that week, one full-time polisher, Boucher, worked 70.7
hours; another full-time polisher, Gauthier, worked 67.8
hours, and two other full-time polishers, Zukowski and
Foster, put in a 60-hour week.
In that same week ending December 2, 1973, no polisher
worked less than 50 hours, except two part-time polishers,
Spinnie and Stevens. Spinnie put in 45 hours that week
polishing but worked an additional 24 hours in the
machine shop, or a total of 69 hours during that week. That
same week Stevens put in 48.4 hours at polishing and
worked an additional 20.8 hours driving truck for Respon-
dent or a total of 69.2 hours for the week.
In the next week ending December 9, the eight polishers
put in a total of 476.8 polishing hours. That week full-time
polishers, Boucher, Gauthier, and Foster, worked 73.5,
73.8, and 65.5 polishing hours, respectively, and no full-
time polisher put in less than a 50-hour week.
That same week, part-time polisher LaBonte spent 4.6
hours polishing out of his total workweek of 79.5 hours and
part-time polisher Stevens spent 49 hours polishing out of
his total workweek of 71.7 hours.
For the following week ending December 16, the total
polishing hours slumped to 310.2 hours from the approxi-
mate 475 hour level of the 2 preceding weeks. Nevertheless
full-time polisher Gauthier put in 73.8 polishing hours that
week. In that same week, part-time polisher, LaBonte,
spent 46.8 hours of his time polishing out of his total 63-
hour workweek. The remaining polishers put in an average
of no less than 47 polishing hours that week.
The testimony of Plant Manager Perreault shows that in
the above-noted 3-week period full-time polishers Gauthier
and Boucher worked over 19 straight successive days,
without even a Sunday off, and often worked 12 hours per
day. Similarly, the record shows that Stevens, who was not
a full-time polisher, worked stretches of over 7 days per
week and over 70 hours a week on both his polishing and
other work.
Documentary evidence further shows that full-time
polishers Boucher and Gauthier continued to work at least
an average of 65 polishing hours per week from December
2, 1973, through May 5, 1974. This is about 4 months
beyond the time that the complaint alleges Charging Party
Dees should have been recalled.
Plant Manager Perreault only used the Company's part-
time polishers when the workload in the polishing
department was too great for full-time polishers. The
record shows that the employees in the other departments
also worked 55 or more hours per week at all times here
pertinent and that the minimum delivery time on orders
increased from 6 months for most of 1973 to 12 months in
late 1973 and 1974.
The Company's need for working its polishers such long
hours from December 2, 1973, to at least May 5, 1974, was
in part made necessary by the illness of Respondent's most
testimony is not credited . It appears , however, that what Perreault was
really trying to say was that once Respondent's machine shop reached
capacity production , its polishing department could not exceed that
capacity in polishing work unless Respondent took on additional polishers
which it was unable to do in the tight labor market in which its plant is
located.
TUPCO, DIV. OF DART INDUSTRIES, INC.
experienced and highly qualified polisher, the elder Dion.
He was off work due to illness from November 23, 1973,
through January 21, 1974, and thereafter he worked only a
maximum of 40 hours per week on the orders of his doctor.
Working its polishers the long overtime hours they have
been putting in has been very costly to Respondent as it
pays them time-and-a-half for all overtime over the first 40
hours of work and double-time for work on Sunday when
the employees work a straight 7-day week.
Finally, as further evidence bearing on the question of
whether Respondent should have recalled Charging Party
Dees in late November or early December 1973, as alleged
in the complaint, the record shows that Respondent for the
first 9 months of 1974 had subcontracted about 1-1/2
percent of its polishing work to subcontractors, but the
record also shows that it has been company policy to
subcontract between I and 2 percent of its total polishing
work since it opened its plant in 1966.
Discussion and Conclusions
The record compels the conclusion that Respondent has
failed to establish its defense that it had bona fide business
or economic reasons for not recalling Charging Party
Carole Dees on Monday, November 26, 1973; i.e., on or
about the date alleged in the complaint that Dees should
have been recalled .6 I specifically find that she should have
been recalled to her former job on November 26, 1973.
The evidence is conclusive that Respondent as of the
week beginning on November 26, 1973, had a dire and
compelling need to take on at least one additional polisher
in its polishing department . This is evident from the fact
that in that week the Company had so much pressing
polishing work on hand that two of its full-time top
polishers had to work an average of 70 hours and two other
full-time polishers had to put in 60 hours of work and all
other full-time polishers had to work no less than 50 hours
that week . In addition, the Company was so pressed for
polishers that week that it transferred two employees from
other departments to work in its polishing departments,
with each working 45 and 48 hours , respectively, at
polishing that week in addition to their regular work in
their own departments which combined with their polish-
ing gave them each a 69-hour workweek.
The urgency of the Company's need for an additional
polisher is made even more evident by the hours its
polishers worked in the following week beginning on
Monday, December 3, 1973. In that week three of
Respondent's full-time polishers worked 73.5, 73.8, and
65.5 hours, respectively, and no full-time polisher put in
less than 50 hours that week . In addition, one part-time
polisher spent 49 hours polishing out of his total workweek
of 79.5 hours.
The basic reason for these inordinate overtime hours was
the huge increase in the Company's orders for molds
between the month of September 1973 when it laid off
three of its polishers and the latter part of November 1973.
6 Respondent's work records , as reflected in Joint Exhs . 1, 2, and 3, show
work hours per week for each employee as of the end (Sunday) of each
week . But as the complaint alleges that Charging Party Dees should have
been recalled as of the beginning of a workweek (to wit, Monday,
November 26), all references to workweeks in this section of the Decision
1051
In September 1973, the backlog of polishing work hours on
hand was 36,000 hours. By December 31, 1973, the backlog
was 49,500 hours, and by January 6, 1974, it was 61,500
hours. Although the record does not show the backlog of
polishing hours as of November 26, 1973, when the
complaint alleges Dees should have been recalled, I infer
and find from the amount of overtime put in by
Respondent's polishers as of the week beginning on
November 26, 1973, that the Company had substantially
the same backlog of polishing work hours as of November
26 as it did as of December 31, 1973.
The record further shows that even with the almost 75
hours of work per week some of its polishers were putting
in, the Respondent still found it necessary to subcontract
approximately 1-1/2 percent of its total polishing work to
subcontractors, although it preferred to have this work
done in its own shop.
The reason Respondent was calling upon its polishers to
put in such almost unheard of overtime hours is that as the
volume of its polishing work hours increased, it was
attempting to get along with only 8 polishers as against the
11 polishers it had prior to the layoff of Charging Party
Dees and two other polishers in September 1973.
Despite the terrific amount of overtime its polishers put
in, Respondent in its brief contends that "there still was no
need to hire or recall a polisher. This is because the
difficult period lasted only a matter of 3 weeks." While the
record does not show the same degree of detail as to the
volume of polishing work beyond the 3 weeks referred to
by Respondent, Joint Exhibit 1 shows that full-time
polishers Boucher and Gauthier continued to work no less
than an average of 65 polishing hours per week for some 4
months beyond the 3 weeks in November and December
1973 Respondent has made reference to.
However, even if Respondent had only the indicated 3-
week rush of business, simple arithmetic shows that the
Company would have been a great deal of money ahead if
it had recalled Charging Party Dees for those 3 weeks. Due
to the heavy backlog of polishing hours, Dees' recall would
still have required Respondent to work their polishers more
than 40 hours per week but at least for the 40 hours per
week Dees could have worked in the 3 weeks in question, if
she had been recalled, the Company would have saved a
substantial part of the time-and-a-half and Sunday double-
time it was paying to its other polishers for their overtime
in those 3 weeks if the Company had recalled Dees.
I do not credit Plant Manager Parreault's testimony that
Dees was not recalled because her past performance was
not satisfactory. The fact that Respondent not only kept
Dees on its payroll as a polisher for 3-1/2 years but also
gave, her more and larger merit raises than to any other
employees belies the assertion that her work was not at
least reasonably satisfactory. While the record shows that
the quantity of Dees' production was not as great as that of
Respondent's top and more experienced polishers, the
record also shows that her production was at least equal to
or greater than that of at least two other polishers.
will refer to a workweek beginning on a Monday, rather than ending on a
Sunday. However, it is evident that the hours employees work in any given
week would be the same whether the week is described as one starting on a
Monday or ending on a Sunday.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, from the record as a whole I find and
conclude that the Respondent had no legitimate or bona
fide business or economic reasons for not recalling Dees on
November 26, 1973.
I further find and conclude that Respondent did not
recall Dees, a former union sympathizer and activist,
because of its strong union animus as established in the
prior unfair labor proceeding and because of its knowledge
that Dees had taken a very active role in seeking to
organize the plant some weeks prior to her layoff and for
the further reason that she had testified extensively against
the Company in the prior proceeding before Administra-
tive Law Judge Corbley.
For these reasons I find and conclude that Respondent's
failure to recall Dees to her former position as of
November 26, 1973, was in violation of Section 8(axl), (3),
and (4) 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. Tupco, Division of Dart Industries, Inc., the Respon-
dent herein, is an employer engaged in commerce within
the meaning of Section 2(6) of the Act.
2. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(axl) of the Act.
3. By discriminatorily failing and refusing to recall
Carole Dees on November 26, 1973, from her layoff status
because of union activities and because she had testified
against the Respondent under the Act in a prior unfair
labor practice proceeding, Respondent has engaged in
further unfair labor practices within the meaning of
Section 8(aX3) and (4).
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the recommended Order below, which I find necessary
to remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act. Because
of the character and scope of the unfair labor practices
found, I shall recommend a broad cease-and-desist order.
Upon the foregoing findings of fact and the entire record
in this proceeding, I make the following recommended:
ORDER?
Respondent Tupco, Division of Dart Industries, Inc., its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities in behalf
of, Laborers International Union of North America, Local
243, or any other labor organization, or discouraging
employees from giving testimony before the Board, by
failing and refusing to recall employees from layoff status
or by discriminating in any manner to any term or
condition of employment of any of Respondent's employ-
ees in order to discourage union membership, other
concerted activities, or testimony before the Board.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Carole Dees immediate and full recall and
reinstatement from her layoff status to her former job or, if
her job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and to make her whole for any loss of pay
she may have suffered from and after November 26, 1973,
when Respondent discriminatorily failed to recall her from
layoff status, by payment to her of a sum of money equal
to that which she would normally have earned from said
date of November 26, 1973, to the date of such offer of
recall or reinstatement , less her net earnings during said
period (Crossett Lumber Co., 8 NLRB 440 (1938)), said
backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), together with interest
thereon at the rate of 6 percent per annum (Isis Plumbing &
Heating Co., 138 NLRB 716 (1962)).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order and necessary to ensure compliance
with the record expungement requirements of this recom-
mended Order.
(c) Post at its plant in Auburn, Massachusetts , copies of
the attached notice marked "Appendix."8 Copies of this
notice on forms provided by the Regional Director for
Region 1 , after being duly signed by Respondent's
representative , shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that such notices are not altered , defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
s In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
TUPCO, DIV. OF DART INDUSTRIES, INC. 1053
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in the Labor-
ers International Union of North America, Local 243,
or any other labor organization of our employees, by
discriminatorily failing or refusing to recall employees
from layoff status or in any other manner discriminat-
ing against employees in regard to hire or tenure of
employment or any terms or conditions of employ-
ment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of any
rights guaranteed them by the National Labor Relat-
ions Act.
WE WILL offer Carole Dees immediate, full and
unconditional recall from her layoff status and thereby
immediate , full and unconditional reinstatement to her
former job or, if her job no longer exists, to a
substantially equivalent position , without prejudice to
her seniority or other rights and privileges, and to make
her whole for any loss she may have suffered from and
after November 26, 1973, when we discriminatorily
failed to recall her from layoff status, by payment to
her of a sum of money equal to that which she would
have normally earned from said date of November 26,
1973, to the date of such offer of recall , and reinstate-
ment, less her net earnings during said period.
TUPCO , DIVISION OF DART
INDUSTRIES, INC.