Drug Research, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1275 (N.L.R.B. 1976)

BROMINE DIVISION, DRUG RESEARCH, INC
Bromine Division, Drug Research, Inc and Interna-
tional Union, United Automobile , Aerospace and
Agricultural Implement Workers of America,
(UAW) Cases 7-CA-12020 and 7-RC-12981
June 18, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On February 23, 1976, Administrative Law Judge
Leonard M Wagman issued the attached Decision in
this proceeding Thereafter, the Respondent filed ex-
ceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
The Administrative Law Judge found that the Re-
spondent violated Section 8(a)(1) by threatening to
discharge Richard Capper and interrogating Doris
Biddix and violated Section 8(a)(3) and (1) by subse-
quently discharging Capper and by laying off Biddix
and Paul Constantinoff As indicated, the Respon-
dent filed exceptions to these findings We find merit
to those exceptions dealing with the 8(a)(3) findings
involving Constantinoff and Biddix
After talking with some other employees about or-
ganizing a union, Capper, the Company's shipping
and receiving clerk, contacted the UAW to see what
could be done As a result of this conversation, a
meeting was set for the evening of April 8, 1975, at
the local UAW hall' At that meeting, several of the
Company's employees, including Capper, decided to
form an organizing committee Also present was
Company Foreman Michael Hansen, an admitted
supervisor within the meaning of Section 2(11) 2
The next day, April 9, a Wednesday, Capper wore
a union organizing committee button to work That
afternoon, the Company's president, Dr Laurene 0
Paterson, confronted Capper and, according to the
Administrative Law Judge, threatened to discharge
him because of his union activities
Paterson admitted that Capper told her about his
union activities during the conversation of April 9
There was a conflict, however, as to what was said
i All dates refer to 1975
2
Hansen was invited by Capper to attend the meeting
1275
after that Capper testified that Paterson next told
him "not to get involved that I would not be there
after Friday " Paterson's version was that, after Cap-
per told her about his union activities, she first men-
tioned that there had been some indication that Cap-
per had been reluctant to follow the packaging
foreman's instructions She testified that she next
said, "Capper, if that's the way you feel, you'll be
gone Friday anyway "
The Administrative Law Judge credited Capper's
version of this conversation and construed Paterson's
remark that Capper "would not be there after Fri-
day" as a warning to Capper that his efforts to orga-
nize the Company's employees would lead to his dis-
charge 3 As indicated earlier, we believe the record
supports this finding
As to the finding that Capper's subsequent dis-
charge 2 days later, April 11, a Friday, violated Sec-
tion 8(a)(3), the Company defends by contending
that the record shows that the decision to discharge
Capper had been made before April 9,4 the date by
which the Administrative Law Judge found that Pa-
terson had learned of Capper's union activities, and
that therefore the motive for the discharge could not
have been union animus The Administrative Law
Judge concluded that the decision to discharge Cap-
per was not reached until after the Company became
aware of his union activities and that the reasons of-
fered to justify his discharge were pretextual We
agree
Paterson testified that by March 31, a Monday, a
decision had been reached to hire a new shipping
and receiving clerk to replace Capper According to
her testimony, however, the Company initially in-
tended only to remove Capper as the shipping and
receiving clerk and was considering transferring him
to another position 5 No decision to discharge Cap-
per was reached, according to Paterson, until the ex-
ecutive committee meeting of April 2 She stated that
at this meeting she, Charnov, and Opfordman decid-
ed to discharge Capper because his performance and
3 The Administrative Law Judge found that by April 9 Foreman Hansen
had told Paterson about Capper s union activities we note that even ab
sent this finding there is no doubt that the threat found herein was not
made until a ter Capper told Paterson about his union activities Capper
was also wearing a union button at the time
4 According to the Company the fact that the decision to discharge Cap
per had been made before April 9 would explain her statement of the of
ternoon of April 9 that Capper would not be there after Friday As we do
not find that the decision to discharge Capper was made before April 9 we
do not agree that Paterson was only informing Capper of a decision that
had already been made
5 By Paterson s admission therefore the advertisement for a new ship
ping and receiving clerk that the Company placed with the local newspaper
on March 31 was not evidence of a prior decision to discharge Capper For
the same reason Libby s testimony that Paterson told him the Monday
before April 9 that Libby would be training a new shipping and receiving
clerk is not corroboration for her testimony that she had decided to dis
charge Capper before April 9
224 NLRB No 177
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attitude for the last month had not been acceptable
Noting that there was no corroboration for
Paterson's testimony regarding the meeting of April
2, the Administrative Law Judge refused to credit her
statement that the executive committee had decided
to discharge Capper at that time Having discredited
this testimony, the Administrative Law Judge found
that the decision to discharge Capper was not made
until April 9 or later As a result, we agree that the
coincidence of Capper's statement to Paterson about
his union activities, her subsequent threat against
him, and his discharge 2 days later establishes, by a
preponderance of the evidence, that Capper's dis-
charge was unlawfully motivated
Contrary to the Administrative Law Judge, howev-
er, we do not agree that the layoffs of Constantinoff
and Biddix violated Section 8(a)(3)
On April 9, Constantinoff and Biddix wore union
buttons at work Both were laid off the next day,
April 10 The Administrative Law Judge inferred
from the timing of the layoffs and the reasons the
Company used to justify them that both layoffs were
discriminatorily motivated
The record indicates that the demand for the
Company's product generally increased during the
spring and summer, and so output was expanded
during this period During this busy season, the
Company's practice was to hire additional employees
for the production and packaging departments
Many of these employees worked seasonally, return-
ing to the Company for the peak production months
At the beginning of April, the Company realized
that the temporary loss of certain key personnel
would force a cutback of production for much of
that month As a result, the Company decided to
temporarily lay off several production and packaging
employees as of April 10 Included among those laid
off were Constantinoff and Biddix
Blohm, the supervisor of the production depart-
ment, testified that the regular production employees
were picked to stay during this slack period The
Company did not consider Constantinoff a regular
employee Constantinoff's work record supports this
view
Constantinoff had worked part time for the Com-
pany during 1973 and 1974, while working full time
at Brazeway Aluminum Only after his layoff from
Brazeway at the end of September 1974 did the Com-
pany put him to work full time At the end of No-
vember 1974, however, Constantinoff was seriously
hurt in a car accident Although it received notice
that his doctor had approved his return to work as of
January 13, 1975, the Company did not recall Con-
stantinoff until March 25, only a few weeks before
the general layoff of April 10
As the record does not show that Constantinoff
was a regular employee, and absent any other evi-
dence that would indicate disparate treatment, we
cannot conclude that the General Counsel has made
out a prima facie case of unlawful discrimination
against Constantinoff, even though his layoff fol-
lowed so soon after his open display of support for
the Union As his layoff was not discriminatorily mo-
tivated, and as the General Counsel failed to intro-
duce any other evidence from which we might infer
that the Company's failure to recall him several
weeks later was also discriminatorily motivated, we
shall dismiss the 8(a)(3) allegation involving Con-
stantinoff
We also find that the record does not support the
Administrative Law Judge's finding that Biddix's
layoff violated Section 8(a)(3)
As indicated, Biddix , a seasonal packer, was laid
off the day after she wore her union button to work
Again, however, the record shows that Biddix was
laid off with several other packaging department em-
ployees 6 Absent any evidence showing that Biddix
was treated any differently from the other seasonal
packers, we again find that the General Counsel
failed to make out a prima facie case that her layoff
was discriminatorily motivated As the evidence does
not show her layoff was discriminatorily motivated,
and as the General Counsel failed to introduce any
other evidence that would show that the Company's
decision not to recall her after production returned to
normal was motivated by any reason other than the
fact that she worked too slowly, we shall also dismiss
the 8(a)(3) allegation involving Biddix I
As to the challenged ballots, the Company has ex-
cepted to the Administrative Law Judge's finding
that Burgess and Sterling were eligible to vote For
the reasons set forth by the Administrative Law
Judge, we agree that Burgess and Sterling were eligi-
ble to vote Because of our findings regarding the
allegations involving Constantinoff and Biddix, we
conclude that neither was eligible to vote According-
ly, we shall sustain the challenges to the ballots of
Constantinoff and Biddix The challenge to Capper's
ballot is overruled 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
6 Biddix s testimony indicates that included among those laid off were
packers who had worked for the Company longer than she had
7 We do however agree with the finding that Supervisor Hansen s inter
rogation of Biddix violated Sec 8(a)(1)
The Company did not except to the Administrative Law Judge s find
rags that Kieswetter and Libbey were eligible to vote At the hearing the
parties stipulated that Schreck was ineligible to vote
BROMINE DIVISION, DRUG RESEARCH INC
lations Board hereby orders that the Respondent,
Bromine Division, Drug Research, Inc, Adrian,
Michigan, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discouraging membership in, support for, or
activities on behalf of International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, (UAW), or any other labor or-
ganization, by discriminating in any manner against
any of its employees in regard to their hire and ten-
ure of employment, or any term or condition of em-
ployment, because of their union membership, sym-
pathies, or activities
(b) Coercively interrogating employees about their
union membership, activities, or sympathies, or the
union membership, activities, or sympathies of other
employees
(c) Threatening discharge, loss of benefits, or
other reprisals because its employees engage in union
activity or express prounion sentiment
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act
2 Take the following affirmative action necessary
to effectuate the policies of the Act
(a) Offer Richard Capper immediate and full rein-
statement to his former job or, if this position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges, and make him whole for such loss of pay
he may have suffered as a result of the Respondent's
discrimination against him, in the manner set forth in
the section of the Administrative Law Judge's Deci-
sion entitled "The Remedy "
(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
(c) Post at its plant in Adrian, Michigan, copies of
the attached notice marked "Appendix " 9 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 7, after being duly signed by an
authorized representative of the Company, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
1277
what steps the Company has taken to comply here-
with
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges unfair labor practices not
found herein
IT IS FURTHER ORDERED that the ballots to which
challenges have been overruled be opened and
counted and the appropriate certification be issued
'In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge you or otherwise dis-
criminate against you because you have engaged
in organizing activity for, or are a member or
supporter of, International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, (UAW), or any other
union
WE WILL NOT ask you whether you are a union
member, or are helping the UAW or any other
union
WE WILL NOT ask you whether other employ-
ees are members of, or are helping the UAW, or
any other union
WE WILL NOT ask you about your union senti-
ments
WE WILL NOT threaten you with discharge or
other reprisals because you are a member of
UAW, or any other union, or because you are
helping UAW
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7
of the Act
WE WILL offer Richard Capper reinstatement
to his former job or, if that job no longer exists,
to a job substantially equivalent, without preju-
dice to his seniority or other rights and privi-
leges , and WE WILL make him whole for any loss
of pay he may have suffered because we dis-
charged him, with interest at the rate of 6 per-
cent per annum
BROMINE DIVISION, DRUG RESEARCH, INC
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
LEONARD M WAGMAN, Administrative Law Judge Upon
a charge and an amended charged filed by International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, (UAW) (referred to here-
in as the Union), in Case 7-CA-12020, on May 15 and
June 1, 1975,1 respectively, the Regional Director for Re-
gion 7 issued a complaint on June 30 The complaint al-
leged that Bromine Division, Drug Research, Inc (referred
to herein as the Company), had violated Section 8(a)(1) of
the National Labor Relations Act, as amended (29 U S C
15 1, et seq ), referred to herein as the Act, by coercively
interrogating employees concerning their union activity
and sentiment toward the Union, and by threatening em-
ployees with discharge because of their union activity and
sympathy toward the Union The complaint also alleged
that the Company discriminated against six of its employ-
ees and thereby violated Section 8(a)(3) and (1) of the Act
In its answer, the Company denied commission of the al-
leged unfair labor practices
Pursuant to a Stipulation for Certification Upon Con-
sent Election in Case 7-RC-12981, executed by the parties
and approved by the Acting Regional Director, an election
was held among the Company's employees in the following
unit on June 13
All full-time and regular part-time production and
maintenance employees employed by [the Company]
at its 1406 E Michigan Street, Adrian, Michigan
plant, but excluding all office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act
Of the 20 valid ballots counted, 11 were for and 9 were
against the Union, 10 ballots were challenged and were
sufficient in number to affect the results of the election On
June 30, the Regional Director ordered a hearing on all 10
challenged ballots which he consolidated with the hearing
on the instant complaint Five of the 10 challenged ballots
were cast by alleged discriminatees named in the com-
plaint The consolidated hearing was held before me on
September 17, 18, and 19, at Tecumseh, Michigan
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and the Company, respectively, I
make the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
its operations, the Company purchased and caused to be
transported and delivered to its Adrian, Michigan, facili-
ties, goods and materials valued in excess of $100,000 of
which goods and materials valued in excess of $50,000
were transported and delivered to those same facilities, di-
rectly from points located outside the State of Michigan
From the foregoing admitted commerce data, I find, and
the Company concedes, that the Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Company admitted, and I find, that International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, (UAW), is a labor organi-
zation within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
In late April, company employee Richard Capper con-
tacted a union representative regarding the possibility of
organizing the Company's plant On the evening of Tues-
day, April 8, the union representative met with company
employee Richard Capper and seven other employees at
the Union's hall in Adrian Also present at the meeting was
Foreman Michael Hansen, an admitted supervisor within
the meaning of Section 2(11) of the Act The union repre-
sentative took the minutes of the meeting which were
signed by Hansen, Capper, and the seven other employees
in attendance, and which read as follows
The present working conditions in the plant were dis-
cussed in detail it [sic] was unamousily [sic] decided
that because of the deploriable [sic] conditions the
present work force are [sic] required to work under
[sic] the people present would become as of this meet-
ing an official organizing committee on behalf of the
U A W and all present signed U A W authorization
cards Also each person present took a number of
peaces [sic] of literture [sic] and U A W buttons were
accepted by all present
The Union's ensuing campaign resulted in a Board-held
representation election on June 13, among the Company's
Adrian, Michigan, production and maintenance employ-
ees 2
The issues presented, are whether the evidence shows
that in opposing the Union's organizing effort, the Compa-
ny violated Section 8(a)(1) of the Act by (a) coercively
interrogating employees regarding their union activity and
sentiment toward the Union, and (b) threatening an em-
ployee with discharge because he supported the Union,
and Section 8(a)(3) and (1) of the Act by (a) discharging
Richard Capper and Francisco Rincon because they sup-
ported the Union, (b) laying off employees Doris Biddix
and Paul Constantinoff because of their support for the
Union, (c) refusing to reinstate employee Shirley McCarley
2 The facts regarding the Union s April 8 meeting the preelection cam
paign and the election are undisputed
The Company is a Michigan corporation, with principal
office and place of business and a plant in Adrian, Michi-
gan, where it manufactures, sells, and distributes swimming
pool chemicals and related products During the year end-
ing December 31, 1974, which period is representative of
1 Unless otherwise stated all dates refer to 1975
BROMINE DIVISION DRUG RESEARCH, INC
from maternity leave because of her actual or suspected
support for the Union, and (d) reprimanding employee
Donald Blaker because he supported the Union
B Richard Capper
1 The facts
Shipping and receiving clerk Richard Capper, a compa-
ny employee since October 1, 1973, reported for work at
the Company's Adrian plant, at 7 a in, on the morning of
April 9, visibly wearing a union organizing committee but-
ton This button symbolized his selection as leader of the
Union's plant organizing committee, an event witnessed by
Foreman Hansen at the previous evening's union meeting
Early in the afternoon of Wednesday, April 9, the
Company's president, who was also Capper's immediate
supervisor, Dr Laurene 0 Paterson, approached and
asked him "what was all this talk [he] was doing against the
Company " When Capper denied talking against the Com-
pany, Paterson responded "I want the truth " At this,
Capper declared "The truth is that we are trying to orga-
nize the union " Paterson then warned him not to get
involved" adding that he "would not be there after Fri-
day"
On the afternoon of April 11, 2 days later, Company
Personnel Manager Richard D Neuhouser directed Cap-
per to report to Neuhouser's office at the end of Capper's
shift At approximately 4 p in, Capper reported to Neu-
houser Shortly after Capper's arrival, Abraham Charnov,
a consultant, who the Company admits and I find, was, at
all times material herein, a company supervisor, joined
them Charnov handed Capper an envelope containing a
paycheck and announced that Capper was terminated
When Capper sought an explanation, Charnov stated that
he was terminated for failure to obey a direct order Cap-
per was dismayed and remarked that he could not remem-
ber having failed to carry out any order Charnov could
not enlighten Capper as to the specifics of the asserted
misconduct Instead, Charnov stated that he had repeated
Dr Paterson's words, and that he regretted having to ter-
minate Capper Following some discussion of Capper's en-
titlement to vacation pay, Capper left the plant and has not
returned since 3
2 Analysis and conclusions
I find ample factual ground for the General Counsel's
contention that the Company discharged Richard Capper
because he supported the Union There can be little doubt
that by the time Dr Paterson confronted Capper and his
union button on the morning of April 9, Foreman Hansen
had informed her of Capper's union activity on the previ-
ous evening Indeed, her attempt to coerce Capper into
3 My findings of fact regarding Capper s discharge are drawn from his full
and forthright testimony which is undisputed except as to the April 9 en
counter with Dr Paterson Dr Paterson s version of the April 9 encounter
differs substantially from Capper s account However as Dr Paterson s tes
timony regarding Capper s discharge was generally unreliable as shown
below I have accepted Capper s account
1279
confessing his part in the April 8 union meeting revealed
that she was already well informed about the signed min
utes setting out the employees' complaints Then, when
Capper declared that the employees intended to organize
themselves, she responded with hostility Dr Paterson
warned him of his imminent discharge Given Dr
Paterson's position as Company president and her authori-
ty to terminate employees at will, her warning was a threat
In this context she was threatening to discharge Capper in
reprisal for his leading role in the Union s organizing ef-
fort By thus coercively interrogating Capper and threaten-
ing him with discharge, I find that Dr Paterson violated
Section 8(a)(1) of the Act, and also provided compelling
evidence that his discharge 2 days later was in reprisal for
his leading role in the Union's organizing campaign at her
plant
Indeed, "it stretches credulity too far to believe that
there was only a coincidental connection between"
Capper's attendance at the April 8 meeting, his selection as
chairman of the Union's organizing committee, his con
frontation with Dr Paterson on April 9, and, his discharge
on April 1 I Angwell Curtain Company v N L R B, 192
F 2d 899, 903 (C A 7, 1951)
The Company claims that union activity had nothing to
do with its decision to terminate Capper According to the
Company, the decision was made during the workweek be-
fore it learned of Capper's union activity and sentiment
and was based wholly upon his work performance I find
no merit in the Company's proffered defense
The Company's claim regarding the timing of its deci-
sion to terminate Capper is not borne out by the record
The testimony provided by Dr Paterson, the sole company
witness on this important fact issue, was uncertain, shift-
ing, and punctuated with pleas of faulty memory Although
Dr Paterson testified that on April 4 Personnel Manager
Neuhouser knew of the decision, the Company neglected
to obtain corroboration from him during his testimony be-
fore me This omission suggests that such corroboration
was not available
The final blow to this portion of the Company's defense
is the fact that Dr Paterson did not warn Capper of his
impending discharge until Wednesday, April 9 For assum-
ing the decision had been made during the week of March
31, the more likely time for its disclosure would have been
on Friday, April 4 In sum, the Company's claim regarding
the timing of its decision to terminate Capper was unsub-
stantiated Instead, the record sustains the inference that
the decision was made after Capper's emergence as the
leading union advocate
The remainder of the Company's defense is afflicted
with fatal defects Initially, doubt is cast on the Company's
stated reasons for Capper's discharge by their shifting and
inconsistent nature Thus, on April 11, the Company, by
Mr Charnov, told him he was being terminated for failing
to obey a direct order At the hearing, Dr Paterson testi-
fied that Capper's attitude, "more than anything," caused
his discharge Finally, in its brief the Company asserts that
"Capper was discharged because of his failure to perform
duties and his generally uncooperative attitude " Such un-
certainty suggests that the Company is attempting to mask
the real reason for Capper's discharge
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event , none of the stated reasons withstand scru-
tiny Capper's credited testimony shows that the disobedi-
ence referred to in Charnov's April 11 reply to Capper in-
volved an incident in which Capper had failed to carry out
instructions from Dr Paterson 1 month before that date
However, that misconduct had been punished by repn-
mand and a warning that repetition would mean discharge
Nothing further was said about the incident until April 11
There is no showing that Capper had in the meantime re-
peated this offense Thus it appears that the 1-month old
incident was being used as an expedient to answer
Capper's question Certainly , Dr Paterson did not consider
that incident as a ground for discharge as is shown by her
failure to testify about it or refer to it as a factor in the
decision to terminate Capper
Dr Paterson 's testimony exemplifies the pretextual na-
ture of the Company's stated reasons for discharging Cap-
per She testified that she received complaints from Super-
visor Blohm as early as August 1974 about Capper's refusal
to carry out Blohm's instructions She also testified that
other employees and Foreman Hansen had continually
complained about Capper 's uncooperative attitude for 5
months prior to April 9 However, it does not appear that
these incidents were considered serious prior to April 9
For, nowhere in the record , including Dr Paterson 's testi-
mony, is there any showing that the Company punished
Capper or raised these asserted manifestations of an un
cooperative attitude prior to his discharge on April 11
Thus, it appears that the Company tolerated Capper's as-
serted shortcomings until it learned of his strong prounion
sentiment
In any event, the Company's complaints about Capper s
performance and attitude are simply unwarranted For, Dr
Paterson conceded that the complaints she received about
Capper's refusals to assist other supervisors or fellow em-
ployees arose from his compliance with her instructions
Thus, when Dr Paterson assigned Capper to a task or job,
she instructed him to give that assignment priority unless
she otherwise instructed him In the process of carrying out
these orders , it appears that Capper refused to assist others
until Dr Paterson had released him to do so From this, it
appears that whatever complaints arose against Capper's
attitude and performance, were attributable not to any
fault of his, but rather to his diligent compliance with Dr
Paterson 's injunction Thus , is the Company's complaint
against Capper's attitude and performance revealed as
wholly pretextual In view of the foregoing , I find that the
Company violated Section 8(a)(3) and (1) of the Act by
discharging Richard Capper
C Paul Constantinoff
1 The facts 4
Paul Constantinoff, a company production employee
since July 8, 1971, attended and signed the minutes of the
4 My findings of fact regarding Constantinoff s layoff are based on his
testimony and that of Foreman David Blohm However where their tests
April 8 union meeting , where he received a union organiz-
ing committee button On April 9, Constantmoff wore his
union button at work He also wore the button on April 10,
the day on which the Company laid him off
Having heard Personnel Manager Neuhouser warn of a
possible layoff, Constantinoff was not surprised by its an-
nouncement in the Company lunchroom on April 10 What
surprised him was that he was among those to be laid off
He immediately questioned his foreman , David Blohm,
who replied that "the higher -ups" had decided that Con-
stantinoff was just a part-time employee and had laid him
off for that reason Constantinoff asserted that his friend
and fellow employee Randy Royal had offered to let Con-
stantinoff have his job Royal , who was present, explained
to Blohm that he was leaving for Florida in 2 or 3 weeks,
that he didn't need the job he held with the Company, and
that he was therefore willing to give his job to Constant)
noff Foreman Blohm replied that he had to check with
Mr Charnov The three then went to Personnel Manager
Neuhouser's office where Blohm in Neuhouser ' s presence,
telephoned Charnov and explained Royal's offer Charnov
told Blohm to take the matter up with Dr Paterson, who
would be in Neuhouser 's office in 5 or 10 minutes In a few
minutes Dr Paterson arrived in Neuhouser's office and
asked Constantinoff to wait outside In the ensuing discus-
sion with those in the office, Dr Paterson learned of Ran-
dy Royal's offer 5
When Dr Paterson came out of Neuhouser ' s office,
Constantinoff asked her why he was being laid off Pater-
son replied that he was "only part time help" because of his
full-time job at nearby Brazeway Aluminum At this, Con-
stantinoff explained that he had been laid off indefinitely
from Brazeway since September 28, 1974 , and was not sure
of reinstatement He then added "If I gave my resignation
would that make any difference as far as my employment
with [the Company ] was concerned " To this, Dr Paterson
replied "it would make no difference "
The circumstances in which Dr Paterson rejected
Constantinoff's effort to keep his job strongly suggest that
union considerations determined his fate Again , I find that
Foreman Hansen's knowledge of Constantinoff 's partici-
pation in the April 8 union meeting is attributable to other
members of management, including Dr Paterson In any
event , Constantmoff wore a union organizing committee
button while talking to Dr Paterson on April 10 Such
manifestations of union advocacy were quite likely to incur
her hostility For, I have already found that Dr Paterson
manifested hostility toward Richard Capper's union activi-
ty by coercively interrogating him about it, threatening him
mony conflicts I have credited Constantinoff who impressed me as the
more candid witness As shown below Foreman Blohm s reliability as a
witness was marred by his willingness to assist the Company in its pretex
tual defense
s Foreman Blohm testified to the effect that Dr Paterson was advised of
Royal s offer in this discussion In her testimony Dr Paterson denied re
ceiving any word of Royals offer on April 10 However in view of the
undisputed evidence of Blohm s conversation with Charnov it appears
more likely than not that Blohm or Neuhouser who also knew of the offer
would have mentioned it to Dr Paterson during this discussion in
Neuhouser s office I have therefore credited Blohm s testimony regarding
Dr Paterson s knowledge of Royal s offer
BROMINE DIVISION, DRUG RESEARCH INC
with discharge and then discharging him-all in violation
of the Act There is no reason to doubt that Dr Paterson
viewed Constantmoff's union button with similar hostility
Against this backdrop of union animus, Dr Paterson's re-
sponse to Constantinoff's offer to remove what appeared
to be the only bar to his reprieve from layoff strongly sup-
ports the contention that she was anxious to be rid of him
because of his apparent leading role in the Union's cam-
paign
The Company rests its defense on the reason given by
Dr Paterson and the further claim that Constantinoff was
incapable of performing any work outside of production
However, neither of these grounds is supported by the rec-
ord
The contention that Constantinoff s job at Brazeway
motivated the decision to deny him employment as a pro-
duction worker is refuted by Dr Paterson's own words
For after she voiced this excuse to Constantinoff on April
10, and he had offered to resign from Brazeway, she admit-
tedly replied that his resignation would make no differ-
ence
In any event, prior to April 10, the Brazeway job did not
incur the Company's displeasure Thus, from October 22,
1973, to September 28, 1974, when Brazeway laid him off,
Constantinoff worked full time for that employer, and an
average of about 32 hours per week for the Company Yet,
he heard no complaint from Dr Paterson nor from any
other company supervisor regarding the quality or quantity
of his work 6 On the contrary, Foreman Blohm and Dr
Paterson testified that he was a good employee More im-
portant, on April 10 Neuhouser told Constantinoff that his
work was good Further, although aware of Constantinoff's
layoff from Brazeway, the Company recalled him to work
full time in late March, after he had recovered from inju-
ries suffered in an automobile accident in November 1974
In his testimony Blohm admitted that the Company re-
called Constantinoff because he was a good production
employee
I do not credit Blohm's testimony to the effect that be-
cause of his possible return to Brazeway, the Company
recalled Constantinoff in March for the limited purpose of
training a team of production employees There is no
showing that the Company expressed any such reservation
to Constantinoff either at the time of his recall or at any
time thereafter, including April 10 Indeed, Blohm testified
that he could not recall whether he or anyone else in man-
agement ever voiced this reason for Constantinoff's recall
Nor can he recall when he first told anyone of his under-
standing that Constantinoff was to be laid off after training
the crew Indeed, Blohm's claim first appeared in a remark
admittedly written by Blohm on a company termination
report about 11 days after the Union filed the original un-
fair labor practice charge herein, which covered
Constantinoff's layoff Dr Paterson, testified that she
could not remember any conversation regarding
Constantinoff's March 25 recall
6 Soon after Brazeway laid him off Constantmoff informed Blohm about
it and the latter agreed to put him on full time status
1281
In sum, the record shows that even when Constantinoff
was working full time at Brazeway, the Company was
pleased with his performance and was content to permit
him to continue his double employment It was only after
he appeared as a union advocate that the Company com-
plained about his Brazeway job from which by that time he
was laid off However, Constantinoff's employment history
and the Company's praise of his performance shows that
the complaint was wholly unwarranted Thus, examination
of the Company's asserted concern about Constantinoff's
possible recall to Brazeway reveal it as a pretext
The Company's concerns about Constantinoff's ability
to work are also pretextual That this reason was not men-
tioned to Constantinoff on April 10 suggests that it was an
afterthought Indeed, there is no evidence that the claimed
infirmities in his physical or mental health, though known
to Dr Paterson, were ever discussed with him during his
4-year association with the Company More important,
there is no showing that his work suffered Instead, even
Dr Paterson conceded that his work was well regarded
Thus, it again appears from the timing of the Company's
expressions of reservation about Constantmoff's ability
that they were evoked by his union organizing committee
button I find nothing to justify Dr Paterson s asserted
misgivings about his physical or mental condition Neither
Dr Paterson nor any other company witness provided any
clinical evidence regarding the state of his health, physical
or mental
Dr Paterson testified that she had learned at some point
about a "severe head injury' he had suffered as a child,
and that she investigated to see if "there was any problem
on his job " However, she conceded she found "nothing
sufficiently serious" to "prevent him from" performing his
production work Nowhere in her testimony is there any
assertion that she investigated Constantinoff's performance
or noted an infirmity in nis performance after his recall in
late March 1975 Finally, I find from Constantmoff's cred-
ited testimony that his plant accident and injury record
was made up of minor scrapes, chemical irritations and
burns, and obstructed vision caused by dust or particles in
his eyes requiring first aid There is no showing that
Constantinoff's experience in this regard was unusual
The final and decisive blow to Dr Paterson's effort was
the Company's willingness to employ Constantinoff as an
instructor to train new production employees less than 1
month before she refused him employment For, by doing
so, the Company showed its high regard for Con-
stantinoff's workmanship and ability to teach others
In face of this, I cannot accept Dr Paterson's claim that he
could not be trained to pack boxes or work in mainte-
nance, particularly when she did not provide him with an
opportunity to undergo such training
In sum, the Company has failed to substantiate its de-
fense I also find that the record sustains General Counsel's
contention that Constantinoff's layoff was motivated by
hostility toward his union activity Accordingly, I find the
Company violated Section 8(a)(3) and (1) of the Act when
it laid off Constantinoff on April 10
That the Company did not terminate or layoff employee
Norbach who was a known activist does not militate
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the inference of illegal motivation regarding Con-
stantinoff For, the discriminatory motive otherwise estab-
lished is not disproved by evidence that the employer did
not weed out all union adherents N L R B v Challenge
Cook Brothers of Ohio, Inc, 374 F 2d 147, 152 (CA 6,
1967) Perhaps the Company considered the termination or
layoff of a few union activists would suffice to persuade
the remaining employees to abandon the Union
D Doris L Biddix
I The facts 7
Doris L Biddix, a company packaging department em-
ployee, who had returned from layoff on March 24, re-
ceived a union button from employee Donald Blaker about
noon on April 9 She wore it at work that afternoon Her
foreman, Michael Hansen, saw the union button and asked
her if she intended to join the Union Biddix replied that
she would join if the rest of the employees did
On the following day, Personnel Manager Neuhouser
announced an immediate layoff of some of the packaging
employees, including Biddix On May 5, Neuhouser tele-
phoned Biddix, declared that she was "all done working"
for the Company and explained that "it wasn't any fault of
his "
During her 5 years of employment, the Company had
laid off Biddix and other employees in the autumn and
recalled them in the spring However, the April 10 layoff
resulted from a reduction in the production of the chemical
compound constituting the Company's product
2 Analysis and conclusions
The General Counsel contends that the Company select-
ed Biddix for layoff because she had revealed her prounion
sentiment on April 9 The record shows that the Company
was likely to greet Biddix's union button with hostility I
have also found that on April 9, Foreman Hansen interro-
gated Biddix about her union sentiment and obtained a
prounion response These factors combined with the timing
of the announcement of her selection for layoff presented a
prima facie case showing that the Company had chosen her
because of her prounion sentiment
The Company seeks to explain its treatment of Biddix as
the result of her poor production record More specifically,
the Company asserts that it recognized Biddix's production
problem well before April 10 and that it was through error
that the Company reinstated her on March 24 However,
review of the record shows this defense to be without merit
Initially, doubt is cast on the Company's defense by the
absence of evidence showing that at the time of her layoff
on April 10, Neuhouser or any other company official told
Biddix poor production was the reason for her layoff Nor
was there any showing that prior to the hearing the Com-
pany explained to Biddix that her March 26 recall was a
7 My findings of fact regarding Biddix s layoff are based on her uncontra
dicted testimony
mistake These gaps in the evidence suggest that the
Company's explanation was an afterthought designed to
cloak the real reason for Biddix s layoff
Beyond doubt, the Company's records and Dr
Paterson's testimony reveal that Biddix's poor production
had been a longstanding problem This evidence shows
Biddix's production was second lowest among seven pack-
aging employees as early as March 1974 On July 1, 1974,
the Company refused to grant a wage increase to her, and
threatened to terminate her if she did not improve The
Company gave Biddix a raise on July 29, 1974, after she
succeeded in improving her production However, the
Company considered her "still a very slow packer " Fur-
ther the Company included Biddix in its general layoff at
the end of the summer of 1974 The Company began recall-
ing laid-off employees in October, but did not recall Biddix
until March 24 because of her poor production Yet, not-
withstanding her poor production, the Company reinstated
Biddix on March 24, following her inclusion in a late-sum-
mer 1974 general layoff
It is at this point that the Company s apparently solid
defense comes apart For, the Company claims in effect
that Biddix's performance was so bad that it never intend-
ed to recall her However, it does not appear that anything
was done about this mistake until April 10, 1 day after
Biddix showed up wearing a union button
Only Dr Paterson testified about the Company's atti
tude toward Biddix following her March 24 recall Accord-
ing to Dr Paterson, when she noticed Biddix working at
the plant on some unspecified day, she asked Foreman
Hansen why Biddix was back Further, according to Dr
Paterson, she warned Hansen that Biddix was a slow pack-
er, and advised him of his right" to make recommenda-
tions to the office to terminate a person However, there is
no evidence that Hansen made any such recommendation
prior to April 10, or that he considered her work to be
inadequate More important, there is no evidence that Pa-
terson either urged Hansen to recommend Biddix's termi-
nation, or that Paterson initiated any such action herself
prior to April 10
Thus, even if Biddix's recall was a mistake, the Company
tolerated her presence until April 10 However, aside from
Dr Paterson's conclusionary testimony that Biddix was re-
called by mistake, there is no evidence to support the
Company's claim I also noted that Dr Paterson's testimo-
ny was bare of any assertions that she told Foreman Han-
sen that Biddix's reinstatement was a mistake This gap in
her testimony and the Company's failure to raise this claim
prior to the hearing suggest that in fact there was no mis
take This suggestion coupled with my previously expressed
doubt about the reliability of Dr Paterson's testimony,
prevent me from crediting her assertion that the Company
in fact did not intend to recall Biddix after her 1974 layoff
In sum, the Company has failed to rebut the inference of
unlawful motivation which arises from the General
Counsel's prima facie case Accordingly, I find from the
record as a whole that a preponderance of the evidence
supports the claim that the Company violated Section
8(a)(3) and (1) of the Act when it selected Doris L Biddix
for layoff on April 10, and thereafter refused to recall her
because she was a union supporter
BROMINE DIVISION, DRUG RESEARCH, INC 1283
E Donald Blaker's Reprimand
1 The facts
Maintenance employee Donald Blaker began working
for the Company late in October 1974 His job was to per-
form repairs in the maintenance department and all over
the plant, as needed He attended the April 8 union meet-
ing, signed the minutes in Foreman Hansen's presence, and
received a union organizing committee button which he
wore to work on April 9 s
On the morning of April 10, Blaker's foreman, Robert
Richmond noticed that Blaker was not working on an as-
signed repair job in the maintenance department After
waiting 10 or 15 minutes, Richmond began searching the
plant for Blaker Upon learning that Blaker was "up in the
warehouse," Richmond went there He found Blaker talk-
ing to employee Richard Capper When Richmond asked
Blaker to explain his presence in the warehouse, Blaker
explained that he had gone to the restroom, was returning
to his work, but "wanted to talk to Dick about playing golf
on Sunday " When Richmond rebuked him for being in
the warehouse Blaker protested that there was no reason he
couldn't stop to talk to someone "for a few minutes " Rich-
mond pointed out that Blaker had been away from his
work for 25 or 30 minutes and that the Company `couldn't
have that sort of thing " That same day Richmond pre-
pared a written reprimand "for leaving your work area
without authorization to do so on this date " The repri-
mand also recited that Dr Paterson had previously warned
Blaker about such misconduct, and ended with a warning
that repetition would "lead to termination of your employ-
ment " Blaker refused to sign the letter 9
This was not the first warning I find from Richmond's
testimony that he had previously given two or three oral
warnings to Blaker for wasting time instead of doing his
assigned work As noted in the previous footnote, Blaker
conceded that prior to April 10, Dr Paterson had repri-
manded him about "going in the bathroom a lot" The
Company did not include Blaker in the April 10 layoff
However, the Company laid him off in mid-June after he
refused to do work other than pipefitting and welding
2 Analysis and conclusions
The General Counsel contends that the Company issued
the April 10 reprimand to Blaker because of his union ac-
tivity The Company argues that the reprimand was issued
8 My findings of fact regarding Blaker s employment and union activity
are based on his undisputed testimony
9 My findings as to the April 10 incident and the written reprimand are
based on a composite of the testimony of Blaker and Foreman Richmond
However where there was inconsistency or contradiction I have credited
Richmond who impressed me as having more respect for the proceeding
and his oath Blaker exhibited a flip attitude toward the Company s man
agement and his role as a witness he characterized an earlier verbal warning
he received from Dr Paterson as a bunch of balony [sic] about going in the
bathroom a lot In light of this remark and his antics at the hearing it is
likely that he was less than diligent about both his work on April 10 and his
recollection of the circumstances surrounding the reprimand
only for the reason stated on its face I find that the Gener-
al Counsel has failed to sustain his burden of showing that
Blaker suffered discriminatory treatment
There is much evidence to arouse suspicion of unlawful
motive I find the proof sufficient to establish the
Company's knowledge of Blaker's union activity and senti-
ment by the time Foreman Richmond began looking for
him on April 10 My previous findings that the Company
violated Section 8(a)(3) and (1) of the Act on April 10 and
11, provided ample evidence of its willingness to punish
employees because of their union activity
However, the General Counsel has not sustained his bur-
den of showing that the April 10 reprimand was either un-
warranted or marked a departure from the Company's
practice I note first that there was ground for the issuance
of the April 10 reprimand The misconduct complained of
in the reprimand did in fact occur Foreman Richmond
and Dr Paterson had previously admonished Blaker for
similar misconduct Further, there is no evidence of how
the Company treated other instances of such misconduct
before or since the Blaker incident Nor is there credible
evidence that the Company usually permitted employees to
leave assigned work areas without management authoriza-
tion Certainly, Blaker's union button did not entitle him to
such freedom In sum, the record does not provide the re-
quisite evidence to support findings that the Company
went out of its way to seize upon a pretext to punish Blak-
er, or that the Company exaggerated the seriousness of
Blaker's misconduct Nor is there any showing that, unlike
Blaker, other employees have wasted company time with-
out receiving punishment Accordingly, I shall recommend
dismissal of the allegations that, by the April 10 reprimand,
the Company violated Section 8(a)(3) and (1) of the Act
F Shirley McCarley
1 The facts 10
Packaging employee Shirley McCarley's employment
with the Company began on June 12, 1971 On November
7, 1974, Dr Serafin L Samson examined McCarley That
same day, he issued a note to the Company stating that
McCarley was pregnant, but could work "2 more months "
Soon after, McCarley complained of a rash to Mr Neu-
houser The Company sent her to its physician, Dr Charles
H Heffron Dr Heffron examined McCarley on Novem-
ber 22 and found a rash on her forearms and legs He sent
her to Dr M Brodie James, a dermatologist whose tests
showed that the Company's bromide product was responsi-
ble for her skin condition McCarley again visited Dr Hef-
fron on December 9 1974, and told him about the test
results Dr Heffron released McCarley to return to work
However, later that month, or in January, Dr Heffron no-
tified the Company of McCarley's condition and stated
that he `didn't think she ought to be around" the bromide
10 My findings of fact are based on the testimony of Shirley McCarley
Dr Charles H Heffron and a stipulation that January 11 1975 was Mc
Carley s last day of work for the Company Of the two McCarley had the
poorer memory regarding dates Therefore I have relied on Dr Heffron s
testimony wherever their testimony disagreed on the dates involved in the
Company s refusal to reinstate McCarley
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
product "any more" because of its harmful effect on her
skin
The Company permitted McCarley to work after De-
cember 9, 1974, but put her on a leave of absence on Janu-
ary 11, as Dr Samson had recommended Richard Neu-
houser, who had approved the leave of absence, assured
her of a job when she returned from having her baby
During her maternity leave, McCarley signed a union
authorization card 11 However, she did not attend the
Union's April 8 meeting, or otherwise participate in union
activity
On May 2, approximately 7 weeks after she gave birth,
McCarley presented herself for reemployment at the
Company's plant Personnel Manager Neuhouser told her
that a doctor's release slip was required before she could
retu*n to work
Later that same day, McCarley brought a release slip
from Dr Samson to Neuhouser, who told her to call him
on the following day about ajob opening When McCarley
telephoned Neuhouser on May 2, he told her that the Com-
pany was terminating her because of the rash she had suf-
fered during her pregnancy When she asked whose deci-
sion this was, Neuhouser replied "Dr Paterson "
On May 4, Shirley McCarley, accompanied by her hus-
band visited Neuhouser Mrs McCarley expressed surprise
at being suddenly terminated because of her rash, Neu-
houser replied that she was "a real good packer" but that
he could do nothing about her situation When Mr Mc-
Carley asked if the Union would improve her chances of
reemployment, Neuhouser said he didn't know "for sure "
The discussion ended and the McCarleys departed The
Company has not offered reemployment to Mrs McCar-
ley
2 Analysis and conclusions
The General Counsel contends that the Company violat
ed Section 8(a)(3) and (1) of the Act by refusing to rein-
state Shirley McCarley after her maternity leave "because
of her actual or suspected" support for the Union The
Company denied that contention urging McCarley's skin
condition as the only motive shown for its refusal to rein-
state her I find merit in the Company's contention
The long delay in the Company's reaction to Dr
Heffron's report and Neuhouser's fumbling response to
McCarley's request for reinstatement evoke the thought of
pretext However, an essential element is missing from the
General Counsel's case For there is no showing that the
Company knew or suspected McCarley of having signed a
union card or that she was prounion when it refused to
reinstate her on May 3 The only union activity attribut-
able to McCarley was her execution of a union authoriza-
tion card, which she did at her own home, without compa-
I have not credited Patricia Pratt s testimony that in early April she told
Foreman Hansen that she was giving a union card to her sister Shirley
McCarley Pratt appeared uneasy while testifying about the asserted conver
sation Her testimony was further weakened by the fact that it came after a
leading question which had been preceded by her repeated testimony that
she couldn t recall the substance of her discussion with Hansen In assessing
this testimony I have also considered Pratt s close family relationship with
McCarley
ny knowledge Further, there is no showing that the Com-
pany singled McCarley out for interrogation or otherwise
sought to learn of her attitude toward the Union Thus, the
evidence does not support the General Counsel's conten-
tion that her actual or suspected union activity motivated
the Company's refusal to reinstate her
Moreover, the records show that the Company had good
reason to deny reinstatement to McCarley in May For, in
December or January, Dr Heffron had warned that her
skin s reaction to the Company's product made it advisable
to remove McCarley from the plant
In sum, the General Counsel has failed to show unlawful
motivation I shall therefore recommend dismissal of the
allegation that the Company's refusal to reinstate McCar-
ley volated Section 8(a)(3) and (1) of the Act
G Alleged Coercive Interrogation
1 The facts 12
On June 1, a few company employees were discussing
their views for and against the Union, in contemplation of
the representation election scheduled for June 13 Dr Pa-
terson, who was present at the inception of the discussion
asked the employees why they thought they wanted a
union In response to this question, employee Patricia Ann
Pratt answered that she wanted higher wages Dr
Paterson's response to this was to the effect that if the
Company could not afford higher wages, it would not raise
wages, with or without a union
2 Analysis and conclusions
Contrary to the General Counsel's contention I find that
Dr Paterson's question did not infringe on the employees'
Section 7 rights First, I note the question was not accom-
panied by a threat of reprisal or other attempt to interfere
with the employees' union activity Further, the question
was not designed to identify union supporters Instead, it
was a rhetorical question aimed at provoking a discussion
in which Dr Paterson could find opportunity to lawfully
express, as she did, her view that a union was not the an-
swer to the employees' quest for higher wages According-
ly, I find no merit in the allegation that Dr Paterson's
question violated Section 8(a)(1) of the Act, and shall rec-
ommend its dismissal
H Francisco Rincon
1 Facts
Production employee Francisco Rincon began working
for the Company on December 4, 1974 Rincon attended
the April 8 union meeting and signed the minutes of the
meeting, two lines below the signature of Foreman Han-
sen Each workday, at the company plant, from April 9
until his discharge on June 9, Rmcon constantly wore a
12
My findings of fact regarding this incident are based on the testimony
of employees Eileen Rickard and Patricia Pratt However where their tests
mony differed I have credited Rickard who impressed me as the more
candid of the two
BROMINE DIVISION, DRUG RESEARCH, INC
badge proclaiming his membership in the Union's organiz-
ing committee On May 28 or 29, the Company granted his
request to be transferred from the first shift to the second
shift which began at 3 30 p in The Company granted this
change to permit Rincon, who was on probation for com-
mission of assault and battery against his father-in-law, to
serve weekend confinement at the county jail At the time
of the transfer, Foreman David Blohm praised Rincon say-
ing that he was a good worker who would help get produc-
tion out on the second shift Neuhouser also considered
Rincon "a good, hard worker "
On the evening of June 5, as Rincon and his fellow em-
ployees were preparing to resume work following a break,
employee Betty Hemphill asked him a question and, at the
same time tapped him playfully in the midsection with the
back of her gloved hand In return, Rincon, while answer-
ing her question punched her in the abdomen After a brief
exchange of epithets, the two employees resumed work
A further brief flurry of argument provoked Betty
Hemphill to complain to her shift supervisor, Foreman Mi-
chael Hansen, who immediately called Rincon to him and
sought an explanation Hemphill announced her intention
to quit Hansen asked her not to quit, adding that if she
was hurt, the Company would take her to the doctor
Hemphill assured Hansen that she was "okay "
Hansen took Hemphill to a plant office where he called
Supervisor David Blohm Soon, Blohm arrived at the office
and asked Hemphill, Rincon, and Hansen for detailed ac-
counts of the incident Blohm then permitted Hemphill to
go home
On Friday, the following workday, Personnel Manager
Neuhouser investigated the Hemphill-Rincon encounter
He received conflicting accounts of Rincon's response to
Betty Hemphill's tap Rincon and employee Dan Kinney
said it was a "tap " Hemphill and employee Earl Stevens
claimed that Rincon's responding blow had been "hard "
Betty Hemphill also remarked that she thought she was
pregnant Mr Hemphill warned that if his wife, Betty lost a
baby as a result of Rincon's misdeed, "you can believe
we're going to do something about it " Mrs Hemphill in-
sisted that she did not want Rincon discharged Mr Hemp-
hill suggested a 2-week layoff Neuhouser credibly testified
that on that same Friday morning, Foreman Hansen and
Blohm,13 told him that Rincon's misdeed did not warrant
discharge
On the same morning, Dr Paterson learned of the
Hemphill incident She also learned that Rincon was on
probation for committing assault and battery She talked to
Blohm and Hansen about the previous evening's incident
She also consulted with an attorney who warned of compa-
ny liability for the current injuries Rincon might have
caused to Hemphill, and for future injuries which he might
cause in similar encounters at the plant Following this
consultation, Dr Paterson talked to Mr Charnov and an-
13
Blohm first testified Oat he recommended Rincon s transfer to the day
shift Later he testified that on June 9 he made a written recommendation
that Rincon be terminated However the only written recommendation he
made on June 9 was that Rincon can no longer work in the production
area Thus Blohm s testimony regarding this recommendation has no pro
bative value
1285
other member of management, Lloyd Opfordman The
three agreed that Rincon would be discharged
When Rincon went to Neuhouser's office on Monday,
June 9, Neuhouser told him that he was fired "because of
hitting Betty Hemphill " Neuhouser also gave Rincon a
written termination notice which gave the same reason for
the Company's decision
The Company's doctor examined Hemphill on June 12,
and reported that she was not pregnant and had suffered
no visible trauma 14
2 Analysis and conclusions
The General Counsel argues that the Company termi-
nated Rincon, a known leader in the union drive, to per-
suade the remaining employees to abandon the Union The
Company defends its action as a precaution against future
liability I find merit in the Company's defense
I am not convinced that a preponderance of the evidence
established the alleged unlawful motive First, I find evi-
dence that by early June the Company was more restrained
in its effort to thwart the Union's campaign Thus, on June
1, when confronted with proumon employees, Dr Paterson
engaged in a lawful presentation of her antiunion senti-
ment This display was in sharp contrast to the coercive
interrogation and unlawful threat which marked her April
9 confrontation with employee Capper regarding his union
activity
The Company's treatment of Rincon in late May also
evidenced a reluctance to engage in further unlawful con-
duct against union activists For, instead of seizing upon
Rincon's request for a change of shift as a pretext for lay-
ing him off, the Company granted his request, notwith-
standing he was wearing a union organizing committee
badge Further, there is no showing that any member of the
Company's management singled Rincon out for interroga-
tion regarding his union activity or sentiment Nor did the
Company threaten Rincon with discharge because of his
union activity
In addition, I am not persuaded that the reason offered
by the Company was pretextual, or only partially involved
in the decision to discharge Rincon Here, the Company
has not shifted about in presenting its defense The single
reason given to Rincon on June 9 was reiterated by Dr
Paterson at the hearing and was repeated in the Company's
documentation of Rincon's discharge Further, it was rea-
sonable ground for discharge Unlike the Hemphills and
the foremen, who recommended lesser punishment than
discharge, Dr Paterson had her attorney's advice that
14 My findings of fact are based upon the testimony of Rincon Betty
Hemphill Richard D Neuhouser Dr Paterson and Dr Heffron However
where there was a conflict between Rincon and Hemphill regarding their
encounter I credited Hemphill who testified in a more detailed manner and
unlike Rincon had no interest in the proceeding It also appeared likely that
as she felt the blow she was apt to know whether it was a fist or flat hand
which struck her
While testifying about her role in Rincon s discharge Dr Paterson gave
full and forthright testimony in a relaxed manner Because of this improved
demeanor and the plausibility of her testimony regarding her reaction to
the Rincon Hemphill incident I have credited her testimony regarding her
role in Rincon s discharge
Employee Earl Stevens testimony regarding this incident was so bur
dened with uncertainty as to have no probative value
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rincon's continued employment might prove costly to the
Company Dr Paterson's view of Rincon's misdeed went
beyond the immediate possibility that Betty Hemphill's ap-
parent pregnancy had been impaired or that Rincon had
interfered with production on the night of June 5 Dr Pa-
terson had been warned that Rincon's propensity for phys-
ical violence was a threat to the Company's financial
health The answer to this threat was his immediate dis-
charge
Finally, there was no showing that Rincon's discharge
was an unusual departure from the Company's treatment
of similar misconduct Instead, I was confronted with Dr
Paterson's undisputed testimony that no similar Company
plant incident had ever been brought to her attention prior
to the Rincon-Hemphill encounter Thus, there could be
no showing that Rincon received different treatment from
that which the Company inflicted on other employees
guilty of similar misdeeds
In sum, I find that the General Counsel has failed to
sustain his burden of proof Accordingly, I shall recom-
mend dismissal of the allegation that the Company dis-
charged Francisco Rincon because he supported the
Union, and thereby violated Section 8(a)(3) and (1) of the
Act
IV THE CHALLENGED BALLOTS IN CASE 7-RC-12981
The ballots of Doris Biddix, Paul Constantinoff, Richard
Capper, Karen Kieswetter, Roy Libbey, Shirley McCarley,
Linda Burgess, Timothy Schreck, Catherine Sterling, and
Francisco Rincon were challenged at the Board-held repre
sentation election on June 13, 1975 The Board agent chal-
lenged Biddix, Constantinoff, Capper, Kieswetter, Libbey,
and McCarley because their names did not appear on the
election eligibility list submitted by the Company The
Company challenged Rincon's ballot on the ground that he
had been discharged prior to the election date and was
therefore not an employee The Company also challenged
the ballots cast by Burgess, Schreck, and Sterling on the
ground that they were temporary employees not included
in the appropriate collective-bargaining unit
I have found that the Company unlawfully laid off em
ployees Doris Biddix and Paul Constantinoff on April 10
and unlawfully discharged employee Richard Capper on
April 11 Therefore, the three continued to be company
employees on June 13, the date of the election and thus
were eligible to vote on that date It follows that the names
of Dons Biddix, Paul Constantinoff, and Richard Capper
should have appeared on the eligibility list I shall therefore
recommend that the challenges to their ballots be over-
ruled
I have also found that the Company lawfully denied
reemployment to Shirley McCarley on May 3, and that
Francisco Rincon's discharge on June 9 was lawful It fol-
lows that as neither McCarley nor Rincon were company
employees on the day of the election, neither was eligible to
vote I shall therefore recommend that the challenges to
their ballots be sustained
At the hearing, I accepted the parties' stipulation that
Timothy Schreck was a temporary employee, ineligible to
vote Accordingly, I shall recommend that the challenge to
Schreck's ballot be sustained
I now turn to consideration of the challenges addressed
to Linda Burgess, Catherine Sterling, Karen Kieswetter,
and Roy Libbey
A Linda Burgess and Catherine Sterling
The Company's production is seasonal The high pro-
duction season usually begins in March and ends around
August 1 At times, the peak extends through August By
autumn, the Company has usually laid off the bulk of its
production and packaging employees In January, the
Company usually begins recalling laid-off employees and
hiring temporary employees The Company hires between
15 and 25 temporary seasonal employees There is no evi-
dence that the Company recalls any of these employees the
following year The Company's starting wage rates apply
to both permanent and temporary employees However, it
appears that the Company grants fringe benefits only to
permanent employees
The Company's records 15 show that the Company first
hired plant employee Burgess on August 7, 1973, and ter-
minated her on January 19, 1974 The Company then re-
hired Burgess on April 10 and terminated her on Septem-
ber 13, 1974 Finally, the Company again hired Burgess on
March 26 and laid her off on August 1, 1975
The facts regarding Catherine Sterling follow a similar
pattern The Company's records show that it first hired
Sterling on April 16, 1974, and terminated her on or about
July 14, 1974 The Company accepted her employment ap-
plication and rehired Sterling on July 23, 1974 Sterling
quit on August 7, 1974 Then, on March 26, 1975, the Com-
pany hired Sterling on her own application Finally, the
Company terminated her on August 1, 1975, at the end of
the year's high production season
Temporary seasonal employees are eligible to vote,
where it appears they have a reasonable expectation of ob-
taining a substantial period of employment from year to
year along with the employer's regular employees and the
regular seasonal employees recalled by the employer See
Knapp-Sherrill Company, 196 NLRB 1072, 1075 (1972)
Here, I find from the respective employment histories of
Burgess and Sterling that each had a reasonable expecta-
tion of obtaining substantial employment at the
Company's plant from year to year, in the production and
maintenance work force Therefore, I find Burgess and
Sterling were eligible to vote at the June 13 election, and
recommend that the challenge to their respective ballots be
overruled
B Karen Kieswetter
Undisputed evidence shows the Company hired Karen
Kieswetter, a student at a nearby college, on May 5, 1975
There is no evidence as to her classification when hired On
about June 8, 1975, the Company changed her status to
15 My findings of fact regarding Burgess and Sterling are based on Dr
Paterson s testimony reciting the Company s records
BROMINE DIVISION, DRUG RESEARCH
"part-time permanent " The Company hired Kieswetter as
part of its program of hiring college students
Typically, the Company employs college students as
helpers but freely transfers them fromjob tojob as needed
The Company sets the students' working hours to accom-
modate their academic programs However, it appears that
the students, uniformly and regularly, work 6 hours per
day during each school week It appears that Kiewsetter's
employment followed this pattern I find therefore that
Kieswetter was a regular part-time employee eligible to
vote on June 13 and recommend that the challenge to her
ballot be overruled
C Roy Libbey 16
The Company hired Roy Libbey on May 1, as "tempo-
rary groundskeeper " Libbey told Dr Paterson that he was
looking for permanent employment However, he did not
disclose that he was on layoff status from another employ-
er Dr Paterson advised Libbey at the time he was hired
that the Company did not have a permanent job opening,
on May 6 Dr Paterson made the following notation on
Libbey's employment record "Summer, temporary, on call
during this period, depended on whether miscellaneous
production fobs "
During the week ending May 10, the Company em-
ployed Libbey in plant production That week he worked
21 hours in production at the plant Thereafter, until the
week ending June 14, he worked in production, at the
Company's plant, between 24 to 40 hours each week Dur-
ing this period, he spent the rest of his working time at a
nearby company laboratory not included in the unit On
August 11, Libbey left the Company to return to his undis-
closed former employment
Dr Paterson's May 6 notation on Libbey's employment
record suggests that the Company considered him a tempo-
rary employee Further, there was no showing that the
justed its records to reflect any change inCompany ever ad
Libbey s status I Finally, Libbey's departure from the
Company's employ on August 11 to return to his former
job from which he had apparently been laid off, suggests
that he may have considered his employment with the
Company as temporary However, notwithstanding the un
certainty surrounding his status, as Libbey was employed
as a production employee both on the eligibility date and
on the date of the election, I find he was eligible to vote
Lloyd A Fry Roofing Company, 121 NLRB 1433, 1437
(1958) I therefore overrule the challenge to his ballot and
recommend that Libbey's ballot be opened and counted
16 My findings of fact regarding Libbey are based on Dr Paterson s on
disputed testimony
Although Dr Paterson testified that on or about May 10 the
Company s production manager had asked if he could have Libbey as a
full time permanent employee her testimony does not show that the Com
pany granted this request
INC 1287
CONCLUSIONS OF LAW
Upon the foregoing findings of fact and the entire rec-
ord, I make the following conclusions of law
1 Bromine Division, Drug Research, Inc, is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, (UAW),
is a labor organization within the meaning of Section 2(5)
of the Act
3 By interrogating employees concerning their union
activities and prounion sentiment and by threatening em-
ployees with discharge because of their union activity and
prounion sentiment, the Company has interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices violative of Section 8(a)(1) of the
Act
4 By discharging employee Richard Capper, and laying
off employees Doris Biddix and Paul Constantinoff, the
Company engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
6 The Company has not violated Section 8(a)(3) and (1)
of the Act by discriminating against Donald Blaker, Shir-
ley McCarley, or Francisco Rincon
7 The Company has not otherwise violated the Act
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of interference, re-
straint, coercion, and unlawful discharges, in violation of
Section 8(a)(1) and (3) of the Act This will require the
Company to cease and desist from the unfair labor practic
es found, to offer reinstatement with backpay to Richard
Capper, Doris Biddix, and Paul Constantinoff, and to post
a notice to that effect In accordance with the usual re-
quirements, reinstatement shall be to the three employees'
respective former positions or substantially equivalent po-
sitions, without prejudice to their seniority and other rights
and privileges Each of the three discriminatees shall be
made whole for any loss of earnings each may have suf-
fered by reason of the discrimination against him or her, by
payment to each of a sum of money equal to that which he
or she normally would have earned from the date of the
initial discrimination to the date he or she is offered rein-
statement by the Company, less net earnings, if any, during
such period, to be computed in the manner prescribed in
F W Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co 138 NLRB 716 (1962)
[Recommended Order omitted from publication ]