Earl Fisher Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 9, 1964

148 N.L.R.B. 1587 (N.L.R.B. 1964)

EARL FISHER MANUFACTURING COMPANY 1587
them for a period of 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the date of the
receipt of this Decision what steps Respondents have taken to comply herewith.?
a In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read ' "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT discourage membership in or activity on behalf of Local 463,
International Union of Electrical, Radio and Machine Workers, AFL-CIO, or
any other labor organization, by discharging any of our employees, or in any
other manner discriminating against any of our employees in regard to hire,
tenure of employment , or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist any labor organization , to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
or all such activities.
WE WILL' offer Gerardo Vega immediate and full reinstatement to his former
or to a substantially equivalent position without prejudice to his seniority and
other rights and privileges, and make him whole for any loss of earnings he may
have suffered by reason of our discrimination against him.
HAROLD MILLER, HERBERT CHARLES AND MILTON CHARLES,
Co-Partners, d/b/a MILLER CHARLES AND COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify Gerardo Vega if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if
they have any question concerning this notice or compliance with its provisions.
Earl Fisher Manufacturing Company and United Rubber, Cork,
Linoleum & Plastic Workers of America , AFL-CIO. Case No.
9-CA-3076. October 9, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
148 NLRB No. 160.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel filed limited excep-
tions to the Trial Examiner's Decision and a supporting brief, and
the Respondent filed cross-exceptions, a supporting brief, and an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and, hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, Earl
Fisher Manufacturing Company, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE --- - -- ---
This case was heard at Columbus, Ohio, on April 22 and 23, 1964, pursuant to a
charge filed January 17, 1964, and a complaint issued March 20, 1964. The com-
plaint alleged that Respondent (herein sometimes called the Company) violated
Section 8(a)(1) and (3) of the Act by engaging in acts of interference, restraint, and
coercion; by discharging and refusing to reinstate an employee because she engaged
in concerted activities for the purpose of mutual aid or protection; and by discharging
and refusing to reinstate two other employees because of their union membership
or activities. Respondent in its answer denied the commission of the alleged -unfair
labor practices.
All parties appeared and were afforded full opportunity to be heard and to examine
and cross-examine witnesses. The parties waived oral argument and only Respondent
filed a brief.
Upon the entire record, Respondent's brief, and my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent, an Ohio corporation, with its principal office and plant at Reynolds-
burg, Ohio, is engaged in the manufacture, sale, and distribution of plastic products.
During the past year, a representative period, Respondent had a direct outflow in
interstate commerce of goods valued in excess of $50,000 shipped to Earl,Fisher
Plastics Company, a corporation engaged in the sale and distribution of plastic prod-
ucts, on a nonretail basis, in Ohio. The latter corporation had a direct outflow of
-products in interstate commerce valued in excess of $50,000 shipped from its place
of business to points outside Ohio. Respondent admits, and I find, that at all times
material herein, Respondent has been and is engaged in commerce within the mean-
ing of the Act. ,
EARL FISHER MANUFACTURING COMPANY 1589
The Charging Party, United Rubber , Cork, Linoleum & Plastic Workers of America,
AFL-CIO, is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICE
A. Interference, restraint, and coercion
1. The Union's organizational campaign
In June 1963 1 the Union inaugurated an organizational campaign at Respondent's
plant. On July 29, Newton D. Vermillion, its field representative, telephoned Earl
Fisher, Sr., the Company's president,2 stating that he had signed up a majority of the
Company's employees and requesting recognition. After some discussion, they met
in Fisher's office, where Vermillion renewed his request for recognition and offered
a check of the signatures on the cards by a disinterested person, such as a clergyman.
At Fisher's suggestion, Vermillion left with him the Union's collective agreements
with two other employers-Columbus Plastics and Yardley. Fisher indicated it
would be "economically unsound for our Company to operate" under such contract
and showed Vermillion a profit-and-loss statement. Vermillion then said, "I am not
here interested to negotiate with you ... I am only interested in finding out if you
will recognize our union ... and if not, I will file a petition ... for an election." 3
Unable to resolve the question of representation by agreement, the Unoon filed its
petition for an election on August 6. The election, conducted September 17, was lost
by the Union.4
2. The August speeches
In the first part of August-shortly after the Union filed its election petition-
Fisher addressed the employees on the first and second shifts in the pressroom.5 In
his speech, Fisher referred to the Union's majority claim , expressed surprise that the
employees wanted a union, spoke of the Company's growth and financial condition,
stated that "he didn't have any particular reason to be against the Union" and "if the
girls would wait awhile ... he might even form a union," and mentioned that if they
had any problem they could come to see him. Fisher devoted a good portion of his.
speech to a discussion of serious acts of sabotage which recently took place, including
damage to a mold and crippling of machines. He then remarked that the sabotage-
had been traced to employee Ernie Mitchell who had been discharged accordingly.&
Shortly thereafter Fisher again addressed the second shift employees in the lunch-
room. Fisher stated he had just learned that Ernie Mitchell, who had worked on the
second shift before his discharge, went about boasting that he had had illicit relations
with almost all girls on the second shift. He then said in an angry tone that he would
not tolerate any recurrence of such conduct and that "if this sort of thing continued
he might fire the whole second shift." Fisher reminded them that he had "gone
through this once before where I fired an entire third shift ... for going out and
leaving machines, drinking."
The foregoing findings are based on substantially undisputed testimony. There is,
however, sharp dispute as to whether Fisher in one of his two talks also included
some coercive remarks. Alice Elder (one of the employees whose discharge is here
in issue) testified that in his first speech Fisher also referred to Mitchell's union activi-
1 Unless otherwise indicated , all date references are to 1963.
2 Unless otherwise indicated , all references to Fisher are to the company president
rather than to Earl Fisher , Jr., his son ( also known as Tim ), who is assistant manager.
3 The foregoing findings are based on the composite and mutually corroborative testi-
mony of Vermillion and Fisher.
* I find no special significance in the fact that the Union filed no objections to the con-
duct of the election Under the Board 's practice only conduct after the petition for elec-
tion is filed may be considered as a basis for setting aside an election . Practically all
alleged unlawful employer conduct here took place after the petition was filed.
5 Respondent operated two shifts at that time . A third shift was operated between
August 17 and October 20. It was stipulated that when the Company operated 3 shifts,
it employed approximately 10 females and 1 male employee on each shift ; 10 additional
employees worked in the shipping and packing departments and in the sample room dur-
ing both shifts . When the Company operated 2 shifts, 10 to 12 girls worked on each shift,
the number of other employees remaining "constant."
6 Company Official Mack , who heard the speech , Indicated that although Fisher had notes
before him he "talked mainly" without reading the notes.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties (passing out cards ) ; that he said "this wasn 't Russia and no one was going to tell
-him how to run his business "; and that he then said , "You see what I done to Ernie
Mitchell. I will do that to anyone that I find out is connected with the Union."
Darlene Gerber and Paulene Hodge attributed similar remarks to Fisher. However,
Gerber could not recall at which meeting the remarks were uttered , and Hodge
acknowledged that she could not remember whether the threat was directed against
"anybody he found mixed up" with Mitchell "or" with the Union
Fisher denied that he made the foregoing remarks attributed to him by General
Counsel's three witnesses and his denial is supported by the testimony of several com-
pany witnesses . I credit Fisher 's version in this instance rather than that of General
Counsel's witnesses . Significantly , Kathryn Seevers , another union employee whose
discharge is here in issue and who provided the most detailed account of Fisher's
speeches of any of General Counsel 's witnesses , made no reference to the claimed
threats. It is not likely that Seevers , who impressed me as a determined and assertive
woman, would have failed to mention such serious threats if they had been uttered by
the top company official. Furthermore , Gerber impressed me as a biased witness
with extremely poor power of recollection ; 7 and Hodges equivocated on this point,
purportedly unable to say whether Fisher 's threats were directed "to anybody be
found mixed up" with Mitchell or the Union.8
I find that Fisher's two speeches to the employees in August were noncoercive and
within permissible bounds of employer communication to employees.
3. The September speeches
On Friday, September 13, preceding the September 17 election, Fisher held two
meetings , the earlier one with the first two shifts at the packing line and the later with
the third shift in the company office. After Joseph Mack, vice president in charge of
sales, made some introductory remarks, Fisher, with a prepared written speech in
front of him , explained that on advice of counsel he would read the speech in order
to avoid making "any slips." There is, however, sharp dispute on whether and to
what extent Fisher departed from the written text.
It is undisputed, and I find, that Fisher in his speech to all shifts addressed himself,
as witnesses testified and the text of his speech indicates , to the Union's promises in
its handbills on such matters as job security , seniority, wages, and insurance pension
plans. Fisher stressed that job security and benefits depended on the Company's
ability to operate at a profit, that nobody and no union can guarantee benefits, that
the Company always followed a system of seniority, and that the Company has had
under consideration insurance and pension plans which were difficult to obtain insur-
ance coverage upon because of the large number of female employees . The written
manuscript refers to other matters as well , including a statement that one plant,
Yardley, had laid off 300 people the previous year and that another, Welsh, had
suffered a shutdown of several weeks' duration,° while Respondent has had "steady
secure employment ." Under the heading "Layoff and recall rights," the text reads:
"We have laid off and recalled people by seniority . We aren 't planning any layoffs
and this depends on whether we have a union." Towards the end of the manuscript
the following statement appears:
We are against this Union because:
1. Joe Mack pointed out that the competitive nature of our business [sic] a
union at this time could cause a loss of business.
2. This is a bad Union with a long history of strikes , employee dissatisfaction.
Look at Yardley-look at Kilgore who went out of business because of this
Union.
3. The . officials of this Union live out -of-town and are too hard to reach.
Their interests are other places than in our fine community.
If they have between 100 ,000 and 200,000 workers in this state in this Union,
how are they going to find time to serve a little outfit such as ours since they all
live out of town. Their fantastic monthly income in the state of Ohio keeps
these Union officials in a luxury only experienced by rich millionaires like the
Fords and Firestones.
T Gerber worked for the Company for 9 months and left in December after two warning
notices.
,8 Magdalene Mary Knotts , another employee whose discharge is here in issue, testified
only briefly regarding Fisher's talks . Her testimony on this point is entirely inconclusive.
9 At the hearing Fisher identified these plants as union plants.
EARL FISHER MANUFACTURING COMPANY 1591
4. Don't disturb the good deal you already have.' Don't risk the threat of
strikes, shutdowns, and lay-offs for the security and protection of employment
we provide.
Ask some former Union workers why they are working here ... because they
were laid off or discharged.
Fisher testified that in addition to delivering his prepared speech to the employees
on the third shift, he invited them to ask questions.10 Company Vice President Mack
testified that a number of employees then asked questions and that there followed
"general discussions." Alice Elder asked Fisher why the Company did not pay its
employees on that late (71/2-hour) shift for a full 8-hour period as was customary at
other plastics plants; Fisher replied that he did not know the situation in other plants,
that he would look into the matter, and that he would see if this was "economically
possible for us." Kathryn Seevers asked about a wage raise; Fisher answered that he
has been advised by counsel not to give any raises during the pendency of the election
but that a raise for the "lead" or "quality-control" girls might be arranged if they are
assigned added duties.11
Several witnesses, including third-shift employees Knotts, Seevers, and Elder, testi-
fied that in the course of his talk to their shift, Fisher further remarked that if the
Union came in he would not recognize it and that when it was all over "he would
come out fighting." 12 All three were firm in their testimony that Fisher did not
confine his remarks to the prepared text. Fisher denied making the coercive remarks
and first insisted that, except for the first two headings in the speech ("History of
Company" and "Brink of some place to go") on which he admittedly spoke extempo-
raneously, he read the speech "verbatim." Later, however, he admitetd that he in-
jected a few words here and there 13 Furthermore, there is no dispute that Fisher, as
indicated, went beyond the prepared text in answering questions posed to him by the
third-shift employees. Company Vice President Mack, while generally supporting
Fisher's testimony that he made no outright threats of reprisals, such as closing of the
plant in the event the Union came in, was not specifically questioned and did not tes-
tify as to Fisher's remarks about not recognizing the Union. Bonnie Wallace, another
company witness, corroborated Fisher's testimony on this point only by way of an
answer to a leading question, but could not recall whether Fisher read his speech.
Based on my assessment of the probabilities in light of all the evidence, as well as
the demeanor of the witnesses, I cannot credit Fisher's testimony that he confined his
remarks to his prepared text to the extent that he testified. I credit the testimony of
General Counsel's witnesses that Fisher, departing from the text of his speech, made
the remark that he would not recognize the Union if it came into the plant and that
when "it," meaning the union campaign, was over, he would "come out fighting."
As pointed out in detail below, Mary Knotts, one of these witnesses, impressed me as
a credible witness and I credit her testimony as well as that of Elder and Seevers inso-
far as it squares with Knott's testimony.14 I am convinced that Fisher, while gener-
ally following the manuscript before him, interpolated the language attributed to him.
I find that although Fisher's speech to the employees on September 13 was essen-
tially within the permissible bounds of employer communication to employees, it
contained at least two statements which operated to restrain and coerce employees in
violation of Section 8(a)(1) of the Act: (1) the statement in the prepared text that
"We aren't planning any layoffs and this depends on whether we have a union"-in
the context of the total situation, an outright threat that their job security turned on
whether they rejected the Union in the forthcoming election ; and (2) his verbally
"Fisher could not recall any question period on the first and second shifts.
"The findings in the foregoing paragraph are based on the mutually corroborative and
credited testimony of Fisher, Mack, Elder, and Seevers.
12Elder added that Fisher said "he would close the doors" if the Union came in.
13 Some of the language in the prepared text appears to be in outline form, obviously re-
quiring added words to make it meaningful For example, item 7(a). In the text reads
"Grievance procedure-Open door" Fisher indicated he probably read this off as follows:
"Grievance procedure, open door, and we have always had an open door policy "
14 For reasons to be indicated, I have discredited much of Elder's' and Seevers' other
testimony on material issues (dealing with their discharges) and I would hesitate to
predicate findings upon their testimony unless uncontradicted or corroborated by credible
evidence or in conformity with the inherent probabilities of the situation. For reasons
hereafter indicated, I likewise make no findings on the basis of the testimony of employee
Wallace, a company witness whom I found untr'istworthy
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interpolated remark that the Company would not recognize the Union if it came into
the plant-a statement conveying a message of futility for no reason other than to
discourage union affiliation and activity.
4. Alleged interrogations and threats
a. Earl Fisher, Sr.
Company President Fisher testified that immediately after receiving Vermillion's
telephone call requesting recognition on July 29, he checked with supervisors and
"several of the old employees" and asked them "if they had heard of anything about
a union being formed in here, planning on it, and everything." Alice Elder testified
that she was among the employees questioned by Fisher, quoting Fisher as saying, "I
have been wondering if anyone has contacted you or talked to you on the telephone
about a union." Elder answered that no one did. Fisher admitted that Elder was
one of the employees he questioned.
Darlene Gerber testified that sometime in August Fisher approached her and
another employee in the lunchroom; that after talking about the weather, Fisher,
with a blank union card in his hand, told them that "he could find out if he had to
who signed those cards"; and that as he left, Fisher asked them "if we would tell him
if anybody talked to us about the union." Fisher denied this incident and conversa-
tion. I credit Fisher's denial. I have already indicated that Gerber impressed me as a
biased, unreliable witness. As between Gerber and Fisher, I credit Fisher.
b. Ralph Stebelton
Ralph Stebelton, a company foreman, testified that he was one of the supervisors
who Fisher instructed to see "what you can find out" about the Union after Fisher
received Vermillion's recognition request. He then told leadgirl Della Chapman
about the Union's telephone call and asked her "if she knew anything about it "
Chapman said she did not.
Employee Mary Knotts testified that around August 3 Stebelton approached her
at her press and asked her if she had been "contacted by the union." Knotts answered
that she was not. Stebelton then said that "some of the other girls had been contacted
by them, and they were trying to find out about it." Stebelton denied the conversation.
I credit Knotts' testimony rather than Stebelton's. I find that in compliance with
Fisher's instruction to Stebelton to find out about the Union Stebelton questioned
Knotts about the Union as related by Knotts.15
Employee Knotts also testified that shortly after Fisher delivered one of his
speeches, Stebelton asked what she thought of the speech. Knotts commented, "It
was a pretty good speech," whereupon Stebelton said that "Mr. Fisher meant every
word of it, that he was just bull headed enough to close the place down." Stebelton
denied the remarks attributed to him. Although, as already indicated (and detailed
more fully at a later point in this Decision), Knotts has generally impressed me as a
credible witness, I cannot predicate a finding of unlawful coercion on the basis of her
testimony as above recited. Knotts indicated that the conversation took place after
Fisher's first speech. I already found that Fisher made no such threat in that speech;
nor did Knotts attribute such threat to Fisher in testifying about the first speech. It
is not likely that Stebelton would have referred to a threat not uttered. It may, well be
that Knotts had in mind Fisher's speech to the second-shift employees several days
after the first speech in which Fisher did threaten to close the second shift. If so,
this threat, as already found, was uttered in a context related to Ernie Mitchell's
objectionable activities and not to any union activity.
. c. Steve Olsen
Mary Knotts testified that in early September, Steve Olsen-at that time her fore-
man on the third shift-asked her what she thought about the Union. When Knotts
said she had not yet made up her mind, Olsen said that if the Union got in, they would
all be "out of a job." Olsen denied he said this.
Knotts further testified that on the Friday night before the September 17 election,
she told Olsen she was going to be the Union's observer in the election. Olsen said,
"No, Mary, not you" and he went on to say that she "would put him in a bad spot."
Is Fisher did not deny instructing his foremen, to question employees in the manner, in-
dicated by Stebelton. He testified, however, that after the petition was filed (August 5),
on advice of counsel he instructed his supervisors not to talk to employees about union
activities, although be told them they could "listen and keep their eyes open."
EARL FISHER MANUFACTURING COMPANY 1593
Olsen then telephoned Plant Superintendent Boggs. Admitting that Knotts mentioned
she was going to be the Union's observer, Olsen testified that Knotts merely asked for
permission to leave an hour earlier on election day in older to attend to her duties
as observer; that he told her he would have to obtain the plant superintendent's ap-
proval; and that he thereupon "got [Boggs] out of bed and asked if she could be off
for that time." Olsen denied the remarks attributed to him by Knotts.
I credit the versions of the two incidents as recounted by Knotts rather than Olsen.
Olsen is a young man who until the middle of August was Foreman Stebelton's
assistant on the first shift. When the third shift was established he was made its
foreman. Olsen impressed me as an individual who as a loyal member of the
managerial hierarchy felt impelled to conform his testimony to what he regarded to be
in'the best interest of the Company. I cannot believe that Olsen, as he claimed, found
it necessary to telephone Boggs late at night and get him out of bed for the purpose of
securing an hour's leave for an employee 4 days later. It seems to me that a reason-
able explanation is that Olsen, with knowledge of the Company's strong opposition
to the Union, and perhaps anxious with youthful ardor to impress his employer, lost
no time in reporting his discovery of Knotts' close identification with the Union.
I conclude that Respondent interfered with, restrained, and coerced its employees in
the exercise of their self-organizational rights in violation of Section 8(a)(1) of the
Act by the following conduct:
1. Foreman Olsen's interrogation of employee Knotts in early September concern-
ing her attitude toward the Union, coupled with his threat that if the Union came into
the plant the employees would lose their jobs.
2. Olsen's further statement to Knotts in mid-September that she "would put him
in a bad spot" by serving as the Union's observer in the election.
3. Foreman Stebelton's question to Knotts (about August 3) as to whether she
had been contacted by the Union coupled with his remarks that other girls had been
and that the Company was trying to "find out about" these contracts.
4. In the context of the foregoing and other illegal conduct found herein, Stebel-
ton's inquiry if employee Chapman had been contacted by the Union and Company
President Fisher's similar inquiry of employee Elder.'°
I find that Respondent did not violate Section 8(a)(1) by: (1) Fisher's alleged
inquiry and statement to Gerber and another employee in August-which was not
made; and (2) Stebelton's alleged statement to Knotts about closing the plant-which
if made referred to a threat of shutdown for reasons unrelated to union activity.17
5. The posted signs
It is undisputed that during the organizational campaign the Company posted
signs in the plant urging rejection of the Union. Employee Darlene Gerber testified
that she saw the signs in the lunchroom and over the lunchroom door, one with the
legend, "Vote no and we will go forward"; and another reading, "Vote no and we
promise you better wages, better working conditions, and hospitalization." Gerber
admitted that the words "we promise" were eliminated from the latter prior to the
election . Company President Fisher acknowledged that the Company posted signs.
He indicated, however,, that they were no more than pep slogans urging support of the
Company, in response to the Union's handbills. Fisher described one sign as read-
ing, "Vote no and go, go, go." He conceded that another sign which he prepared
16 In its brief , Respondent contends that its officials' and supervisors ' inquiries as to
whether employees had been contacted by the Union constituted nothing more than at-
tempts "to verify or at least get some indication of the claims of majority status of the
Union which had been just brought to Respondent 's attention . ." and that , therefore,
this conduct is protected under the Board 's Blue Flash Express ( 109 NLRB 591 ) doctrine.
In the first place , as shown at least by Olsen 's Interrogation of Knotts,, questioning was
not confined to such inquiry but was accompanied by an outright threat. ' Furthermore,
the questioning here was conducted without the safeguards set forth in Blue Flash, such
as disclosure of the employer ' s objective and also assurance that there would be no eco-
nomic reprisal . In addition, the employer in Blue Flash, as there stressed ,-at no time
resorted to threats or other illegal ' conduct, and he 'exhiliited no union animus . Finally,
unlike in Blue Flash, the Union here offered the employer the choice of an impartial card
check and an election by which-to determine its majority status and there was no piessing
.need to question employees. '
17 The complaint alleges certain conduct by company supervisors in addition to those
hereinbefore described 'as constituting violations of Section 8 ( a) (1). I find that General
Counsel failed to adduce any credible and probative evidence to support these additional
violations. . 1 '
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did indeed contain the words "we promise" in connection with certain enumerated
benefits, but that as this sign was being posted he was advised by counsel that it
might be "misconstrued" as' objectionable and the questionable words ("we promise")
were immediately deleted before the sign was actually posted.18
I credit Fisher's testimony. As already noted, Gerber was not a reliable witness.
Moreover, it is evident from testimony of employee Knotts, a credible witness, as
well as that of other employees called by Respondent, that if, a General Counsel
urges, Respondent in its signs promised the employees benefits if they voted against
the Union, the signs evidently failed to impress them, since they could not recall
such promises. Knotts frankly acknowledged that she could not remember seeing
any promisory signs.
I conclude that General Counsel failed to meet the burden of establishing that
Respondent, in violation of Section 8(a) (1) of the Act, unlawfully induced employees
to vote against the Union by promising them benefits in signs posted at its premises.
B. The discharge of Seevers and Elder
The complaint alleges that Respondent unlawfully discharged Alice Fern Elder
in violation of Section 8(a)(1) of the Act, because she engaged in protected con-
certed activities for the purpose of mutual aid or protection not connected with union
activity. It further alleges that.Kathryn Seevers was discriminatorily discharged in
violation of Section 8(a)(3) because of her union membership and activity. Re-
spondent asserts that both employees were discharged for cause-because of their
failure to report to management employee misconduct on the second shift (including
drinking while on duty and fraudulent punching of timecards) of which they had
knowledge. I now turn to the facts relevant to these issues.
1. Employment and union or concerted activities of Seevers and Elder
Seevers was hired by the Company on September 18, 1962, and Elder on May 27,
1963. At the time of her discharge Elder was a press operator and Seevers a "lead"
or "quality control" girl. Both had worked on the second shift (3 to 11:30 p.m.) for
several months prior to August 17, when they were transferred to the newly estab-
lished third shift (11 p.m. to 7 a.m.). When the third shift was abolished in the
middle of October, they were retransferred to the second shift. Elder's employment
was terminated on November 5 and Seevers' on November 8, 1963.
Seevers became a member of the Union in June 1962 at the request of Ernie
Mitchell. She testified that her union activity consisted of transmitting three union
cards to Mary Knotts and asking three girls if they were interested in the Union. She
did not ask any employee to sign a card. As already noted, Elder was one of the
girls Fisher approached immediately after receiving the Union's telephonic request for
recognition on July 29, and asked her if anyone had contacted her about a union.
Elder did not join the Union. Her alleged concerted activity consisted of asking
Fisher a question relating to the payment of 8-hour wages for a 7V2-hour night shift.
As already noted, Fisher, after completing his speech to the third shift on Septem-
ber 13, invited the employees to ask questions. Responding to the invitation, Elder
asked why the Company did not pay the night shift for a full 8-hour period like other
plastics plants.19 Fisher disavowed knowledge of the practice in other plants, but
promised to look into the matter, explaining that he would check on its economic
feasibility.20
2. The Company's discovery of improprieties on the second shift
Elder continued to work after the above-mentioned incident until November 5.
Meanwhile, early in October, Earl (Tim) Fisher, Jr.,21 Company President Fisher's
son and himself an officer of the Company, inadvertently came upon evidence of'tinie-
card falsification by second-shift employees. In the absence of his father (then on an
extended trip to Europe) and Plant Manager Boggs,(then on extended sick leave),
zs Fisher credibly testified that the signs disappeared or were stolen after they were
removed several days before the election.
"Elder indicated she "had been asked by some of the girls .. . and wondering myself
why" this was not the case.
w The foregoing is the only incident I can glean from the record involving protected
concerted activity by Elder. General Counsel neither presented oral argument• nor filed
a brief pointing out the activities upon which he relies.
21 Hereafter referred to as Tim, to distinguish him from Earl Fisher, Sr.
EARL FISHER MANUFACTURING COMPANY 1595
he took the matter up with Vice President Mack. On October 10, Tim Fisher and
Mack interviewed Sylvia Waller, one of the suspects, who confessed to punching
a timecard for an absent employee. She also provided details of widespread second-
shift timecard frauds as well as drinking, implicating other employees and Shift
Foreman Claredon Durenberger. Mack and Tim Fisher investigated the matter
further and decided "to clean house" because "just too many people [were] involved."
They immediately discharged the foreman and four of the approximately nine second-
shift employees specifically implicated. Mack and Tim Fisher testified that they
retained two "new" employees 22 expressly "exonerated" in the investigation and
found to have had no knowledge of the misconduct; that they retained Waller because
of her cooperation in the investigation and because they knew they "would need her
in the future as a witness" in the event of an unemployment compensation hearing; 23
and that they kept a fourth employee, Arlene Hodge, an old-time worker, because
she was not specifically implicated and was at the time running a promotional cam-
paign for one of Respondent's customers (Woolworth Company) and they were
"very far behind." The second shift was maintained on a skeleton crew basis until
around October 20 when the third shift was discontinued and its personnel trans-
ferred to the second shift.
Shortly after dismissal of the implicated second-shift employees, Steve Olsen, the
third-shift foreman, reported to Tim Fisher that Alice Elder and Kathryn Seevers told
him they had known of the drinking and timecard falsifications on the second shift
and that this had been going on for a long time. After discussing the matter with
Olsen, Fisher and Mack considered discharging them "right at that time" but post-
poned decision in view of pressing production requirements, the existing personnel
shortage (presumably as a result of the second-shift "house-cleaning"), and the im-
pending return from Europe of Company President Fisher, who it was felt should
review the situation.24
3. Seevers' and Elder's knowledge of, and failure to report,
the improprieties on the second shift
There is a sharp testimonial conflict on whether Elder and Seevers admitted to
Olsen (and also to Foreman Stebelton, as he testified) knowledge of the second-
shift improprieties. As indicated, both employees had worked for several months,
on the second shift prior to their transfer to the third shift in the middle of October.
Olsen testified that "a couple of days" after the second-shift discharges he had two,
conversations in the pressroom with Seevers and Elder, in which each told him that
she knew of the drinking and fraudulent card punching; that both indicated this had
been "going on for quite some time" and, indeed, that Seevers remarked on why it
took so long to discover it; that when he asked Seevers, "Why didn't you say some-
thing," she "lust laughed"; and that one of,the'two even mentioned an incident that
took place while on the second shift in which she was left to run a press all by her-
self while the girl who regularly ran the machine left it only to return "smelling
alcohol all over her." Foreman Stebelton testified that on a subsequent occasion-
after the transfer of Seevers and Elder to the second shift in mid-October-both
employees also acknowledged to him that they knew "for quite some time" what had
been going on on the second shift. (According to Stebelton, the incident in ques-
tion took place in the lunchroom on a day he relieved Olsen, the then regular second-
shift foreman, in the presence of another employee, Bonnie Wallace.) Stebeltou
testified that when he asked them "wnyl2v asn't it reported," one of them said "it
was not money out of their pocket and th'y were wondering how long it would take
the Company to catch on." Wallace's testimony on this point is consistent with that
of Stebelton.
Seevers and Elder, denied that they at any time told Olsen or Stebelton that they
"knew" that drinking or fraudulent timecard punching was practiced on'the second
shift, and testified that they had only heard "rumors" and " gossip" to that effect and
that it was only these rumors they passed on to Olsen and Stebelton when questioned
about the matter. In their rebuttal testimony, both insisted that they had had-only
ad The record shows that one of these, June Shrill, was hired August 10, 1963 , the hir-
ing date of the other employee (Ison) was not established.
23 Such hearing was held on January 7, 1964.
u The findings in the foregoing paragraph are based on the testimony of Tim Fisher
who impressed me as an honest witness His testimony was corroborated by'Mack who,
in general , likewise struck me - as a credible witness.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one conversation with management representatives on this subject-in the press-
=room with Olsen and Stebelton present. They emphatically denied that the lunch-
room incident (about which Stebelton and Wallace testified) occurred at all 25
.Seevers admitted, however, that while on the second shift prior to August 17 she
saw Ernie Mitchell and four female employees go to the parking lot at various times
during working hours and that she did "smell alcohol on the breath of" one em-
ployee, Sylvia Waller.
I have previously indicated misgivings about the testimonial credibility of Olsen,
and have discredited some of the testimony of Elder (relating to one of Fisher's
speeches). I shall later explain why I also believe Wallace to be unreliable as a
witness. While I have some reservations about the reliability of Olsen's and Stebel-
ton's testimony concerning all details of the two incidents involved, I am firmly
convinced and find that both Seevers and Elder knew of the second-shift drinking
and fraudulent timecard punching. I further find that in their admitted discussion
of the matter with Olsen in the pressroom they informed Olsen that they had known
about these improprieties for a long time and, as already found (on the basis of
the credible testimony of Tim Fisher and Joseph Mack), that Olsen then reported
this information to other management officials. I cannot believe that Elder and
Seevers, particularly the latter who, as previously noted, is an assertive and voluble
female, would have failed to pass on, if not brag about, their knowledge of the
improprieties on the second shift.
4. The discharges
Company President Fisher returned from his European trip at the end of October
but because of illness did not go to the plant until November 4, when Tim Fisher
and Mack reported the second-shift improprieties and the discharges. Fisher was also
told that Elder and Seevers had admitted knowing about the situation but failed
to report it. Fisher was "a little unhappy" that the plant officials "did not clean
out the whole situation ," explaining he was once confronted with a similar problem
"and the best way was to eliminate it so it does not occur too frequently ... everyone
and anyone that happened to be involved in this." Fisher* directed Plant Manager
Boggs to discharge everybody involved in the matter.26
On November 5, on instructions received from Boggs , Foreman Olsen discharged
Elder and on November 8 he discharged Seevers.27
5. Conclusions respecting the discharge of Seevers and Elder
The record shows that Respondent strongly opposed unionization of the plant and,
indeed, resorted to interference, restraint, and coercion to discourage union activity.
These are , of course , relevant factors in assessing an employer 's motivation in a dis-
charge. But it is equally clear that evidence of such union hostility is not alone suf-
ficient on which to base a finding of discriminatory or otherwise unlawful discharge.
There must be evidence linking the discharge action to the antiunion or unlawful
motivation . "Standing alone, proof of a company 's general antiunion policy will
ordinarily not suffice to support a conclusion that a particular employee was dis-
criminatorily discharged absent direct or circumstantial evidence that the company
knew or had reason to suspect him of union membership ." N.L.R.B. v. Overnite
Transportation Co., 308 F. 2d 284, 297 (C.A. 4).
As to Seevers, the record shows that shgg^signed a union card but it is clear , accord-
ing to Seevers ' own testimony; that her d!ion activity was only minimal-consisting
merely of transmitting three. cards to employee Knotts and asking three girls about
their interest in the Union ; she did not solicit any union memberships . There is no
ze When first questioned about the matter on cross-examination during General Counsel's
presentation of the case -in-chief, Seevers was less positive of the locale of discussion, in-
dicating that "it may have been the lunchroom." Similarly, when early in the hearing
Elder was asked about the " conversationrwith Ralph Stebelton in the lunchroom" she did
not deny that it took place there and only disputed "knowledge" of the improprieties on
the second shift.
26 These findings are based on the composite, mutually corroborative and credited testi-
mony of Tim Fisher, Joseph Mack, and Company President Fisher. -
-n Olsen.testified be told, each one that, she was discharged "because she knew, what was
,going,,on ,on ,the,,second shift as far as the drinking•and punching,of timecards.and; she
did not report it" Elder testified Olsen only.said that sales were down andrthere would
be no new press until April-a statement denied by Olsen. Seevers did not deny Olsen's
testimony concerning the reason be gave for her discharge.
EARL FISHER MANUFACTURING COMPANY 1597
evidence that any management official or supervisor observed or was made aware of
her union sympathies. While Seevers was one of the employees Fisher asked if she had
been contacted by the Union after he received the union request for recognition on
July 29, this does not mean that the question was put to her because Fisher suspected
she was a unionist. There is no evidence that Respondent had any knowledge of any
union activity, let alone -Seevers' particular activity, before he received the July 29
union request. It is significant that Seevers continued to work for the Company for
over 3 months after this incident and was even promoted to a lead or quality control
position and given a wage raise. Under all circumstances, since I cannot infer that
Respondent knew of Seevers' union membership and activities I must conclude that
General Counsel failed to establish that her discharge was discriminatorily motivated.
As to Elder, it is admitted that she was not a member of the Union and engaged in
no activities on its behalf. As noted, General Counsel contends she was discharged
in violation of Section 8 (a)( I) for engaging in protected concerted activities unre-
lated to union activity. The single activity upon which General Counsel presumably
relies is Elder's action in asking Fisher a question about why Respondent did not pay
its employees on the third (71h-hour) night shift for a full 8-hour period, as was
customary at some other plastics plants. By Elder's admission, Fisher did not react
in anger at this question but, on the contrary, promised to look into the matter. Elder
continued to work at the plant for almost 2 months without repercussions. So did
Seevers who asked about a wage raise and subsequently received one. Clearly, there
is no evidence that Respondent resented Elder's concerted activity. If anything, it is
apparent from the entire pattern of its conduct that it welcomed and encouraged direct
dealings with employees on wages and working conditions as a means of excluding the
Union. I find that General Counsel has failed to establish any connection, direct or
circumstantial, between Elder's protected concerted activity and her discharge.
The only aspect of the case of Elder and Seevers that has given me pause is the
nature of the reason Respondent advanced for these discharges. There is no question
that gross misconduct-drinking and timecard falsification-was rampant on the
second shift But this is not dispositive of the issue here since Elder and Seevers ad-
mittedly did not engage in this misconduct. According to Respondent, these two
employees were discharged only because they knew of the misconduct (both had
worked on the second shift prior to their transfer to the third shift on August 17) and
failed to report it. Apart from the question whether Elder and Seevers were under a
duty to make such report, the fact is that Respondent retained one of the chief culprits
(Sylvia Waller) and three other employees who worked on that shift. True, Re-
spondent explained Waller's retention on the ground that she cooperated in the in-
vestigation, and.the retention of the other three employees on the ground that they
(Shull and Ison) were either new employeess or essential to production (Arlene Hodge)
and, moreover, none was implicated or shown to have had knowledge of the im-
proprieties. I have some misgivings about Respondent's claim that Hodge, an old-
time employee, and even the so-called new employees (who were on the shift at
least 2 months), were entirely unaware of the widespread misconduct. Be that as it
may, the fact is as I have found, Elder and Seevers did have such knowledge and the
worst that can be said about Respondent's action is that it was unjustifiable or harsh.
Accordingly, I must here apply the well-established principle that in the absence of
discrimination the Board may not substitute. its judgment for that of the employer in
the selection and discharge of employees. "In considering the propriety of these dis-
charges the question is not whether they were merited or unmerited, just or unjust,
nor whether as disciplinary measures they were mild or drastic. These are matters
to be determined by the management . .. .' N.L.R.B. v. Montgomery Ward &
Co., 157 F. 2d 486, 490 (C.A. 8).28
Accordingly, and particularly because of the absence of proof linking the dis-
charges to antiunion or unlawful motivation,( I conclude that the preponderance of
evidence does not support the allegations of the complaint that the discharges of Elder
and Seevers were violative of Section 8 (a) (1) and (3) of the Act.
C. The discharge of Knotts
General Counsel contends that Mary Knotts was discriminatorily discharged be-
cause of her union membership and activity. Respondent contends that she was
discharged for failing to report to work for 3 consecutive days after expiration of a
leave of absence.
29 See also , N.L.R.B. v. Condenser Corporation of America, 128 F. 2d 67 , 75 (C.A. 3).
(An "employee may be discharged . . for a good reason, a poor reason, or no ieason at
all, so long as the terms of the statute are not violated"), N.L.R.B. v. Transport Clear-
ings, Inc., 311 F. 2d 519, 523 (C.A. 5).
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Employment and union activities of Knotts
Knotts began to work for the Company on February 19, 1963, on the second shift
and was soon transferred to the first shift, where she worked (except in April on the
second shift) until August 17. She was then transferred to the third shift until she
went on sick leave. There is no claim that Knotts' work and conduct on the job were
in any way unsatisfactory.
Knotts signed a union card in July 1963. She was the Union's only observer in
the Board election conducted on September 17. As already found, several days
before the election Knotts disclosed her status of union observer to her then foreman,
Steve Olsen, in asking him for an hour's leave on election day to attend to her election
duties. Olsen remarked, "No, Mary, not you" and he went on to say that she "would
put him in a bad spot." Olsen reported the incident to Plant Manager Boggs that
same night . Prior to then-in the beginning of September-Olsen had questioned
Knotts about her attitude toward the Union. When Knotts indicated she lad not yet
made up her mind, Olsen said they would all be "out of a job" if the Union came in.
Knotts had also been the target of questioning by Stebelton. Early in August Stebel-
ton (her then foreman ) asked her at her press if she had been contacted by the Union.
When she said no, Stebelton said that others had and that "they were trying to find
out about it."
2. Knotts' separation after expiration of her original sick leave
Sometime before September 27, Knotts asked Foreman Olsen for a leave of absence
to undergo surgery. Olsen handed her a written authorization for 1 month's leave,
but when Knotts said, as Olsen testified, that "she needed a minimum of six weeks,"
Knotts was authorized 6-week leave. Knotts testified without contradiction that when
she "signed for my six weeks' leave" she remarked that she "might need" still more
time and that Olson told her that if she did she should "come in'and tell him."
Knotts' leave, which commenced on September 29, was due to expire on Sunday,
November 10. On November 4 Knotts returned to the plant and spoke to Olsen.
There is sharp conflict as to whether Knotts was authorized additional sick leave
at that time.
Knotts testified that she went to the plant that night, around 7:30 o'clock, to re-
quest 2 additional weeks' leave; that she old Olsen she had just returned from the
doctor, who instructed her not to return to work for 2 additional weeks; and that
Olsen then said it was "okay." Kathryn Seevers, who worked that night and testified
that she and Olsen greeted Knotts on entering the plant, corroborated Knotts' testi-
mony. Olsen acknowledged that he saw Knotts in the plant before the expiration of
her leave, but fixed the time as "approximately two weeks before her leave of absence
was up." 29 He also acknowledged that Knotts "said that she had lust come from the
doctor [and] that she had not been released" by him, but insisted that apart from
exchanging greetings nothing further was said in the "two or three" minutes they
spoke and, more specifically, that Knotts did not request and he did not grant an
extension of leave.30 He also denied that Seevers was present. He admitted that he
reported to his supervisor, Boggs, Knotts' visit to the plant.
I credit Knotts' version of the incident rather than Olsen's. I have already indicated
(in connection with the resolution of other testimonial conflict between Knotts and
Olsen) that Olsen was less than a forthright witness and was anxious to avoid testify-
ing adversely to Respondent's interests. On the other hand, Knotts' deportment and
demeanor on the witness stand impressed me favorably, since she appeared to be an
essentially honest witness; striving to recall events to the best of her ability 31 More-
c° Olsen was in obvious error At the unemployment compensation hearing, held Janu-
ary 7, 1964, he testified that the incident took place on November 4, as testified by Knotts,
or about a week before the leave was scheduled to expire.
3 At the unemployment compensation hearing Olsen was less definitive. He there testi-
fied that he did not "remember" agreeing to an extension of her sick leave
3' This is not to say that Knotts was convincing on every matter upon which she testi-
fied I have already alluded to the testimony of Knotts on one incident (an alleged threat
by Foreman Stebelton) on the basis of which I could not make a finding of unlawful co-
ercion. Knotts' testimony on another matter-the extent of misconduct on the_ second
.shift (to be sure, a collateral matter insofar as her own case is concerned) -was likewise
not entirely reliable I am persuaded, however, that Knotts' misinterpretation of-Stebel-
ton's remarks and her failure to recall all the details on all of the incidents she testified
did not adversely affect her testimony on the matter here In issue-her sick leave, as to
which she testified In a convincing and straightforward, manner. In this connection,
EARL FISHER MANUFACTURING COMPANY 1599
over, Knotts' account of the incident strikes me as inherently probable. Why should
Knotts have made a trip to the plant (within a week before her leave expired), sought
out her foreman, and admittedly have told him that she had not yet been released
-by her physician, if it were not to seek an extension of her sick leave to recover from
surgery? And why should Olsen have reported her visit to his superior ( Boggs), if
she came to the plant only to pass the time of day or exchange pleasantries? Olsen
did not dispute Knotts' testimony about his having invited her to "come in and tell
him" if she needed more than the 6-week leave she signed for. The reasonable infer-
ence is that Knotts' visit was for this purpose and was prompted by this invitation.
The record establishes and Respondent suggests no other purpose. In short, Knotts'
version of the incident has the right of truth compelling me to credit it.32
On November 14, Knotts received a letter from Respondent stating she was
"fired" because she had failed to report to work for 3 consecutive days following
"expiration" of her sick leave. In the meantime , on Monday, November 11, the first
day Knotts' original 6-week leave had expired, Respondent placed a "warning" slip
in her personnel file, signed by Olsen, reciting to the file that she "did not report for
work following the six (6) weeks leave of absence starting 9/29/63." A similar
"notice" was put in her file the next day, November 12, and still again (this time
called a "separation report") on November 13. However, none of these "notices" was
mailed to her and she had no knowledge thereof until after she was discharged.33
Immediately after receipt of the letter of termination on November 14, Knotts,
according to her uncontradicted testimony, telephoned Olsen. Olsen refused to talk
to her and referred her to Office Manager Price. Knotts called Price and explained
her prior request for 2 additional weeks' leave from Olsen. Price said that "that
didn't make a bit of difference"; that she was "still fired"; and that Olsen "had nothing
to do with it."
3. Conclusions respecting Knotts' discharge
Unlike the discharges of Elder and Seevers, the evidence respecting Knotts' dis-
charge fully demonstrates a connection between her protected activities and Re-
spondent's unlawful motivation. Knotts not only signed a union card but was the
Union's sole observer in the Board election. When her foreman (Olsen) learned
of her union role, he openly resented it because, as he told Knotts, this "would put
him on the spot ." Knotts was the target of other coercive conduct by Olsen and
Stebelton, the former having questioned her about her union attitude and the latter
about her union activity. Olsen in his questioning additionally warned her that all of
them would be "out of a job" if the Union came in.
Furthermore, in Knotts' case, unlike Elder' s and Seevers', the reason assigned for
the discharge was not just unimpressive or "poor" (N.L.R.B. v. Condenser Corpora-
tion of America, 128 F. 2d 67, 75 (C.A. 3)) but false and concocted.34 The credited
evidence shows that 1 week before her originally authorized leave "expired" and
before she was released by her physician,-she asked and Foreman Olsen verbally gave
Judge Learned Hand's oft-quoted remark in N L R.B. v. Universal Camera Corp, 179 F. 2d
749, 754 (C A 2), bears repetition: "It is no reason for refusing to-accept everything that
a witness says, because you do not believe -all of It, nothing is more common in all kinds
of judicial decisions than to believe -some and not all "
32 In an attempt to demonstrate the implausability of Knotts' tsetimony Respondent ad-
duced evidence (primarily through employee Bonnie Wallace) to the effect that Knotts had
said "on more than one occasion" during the 3-week period before she took leave (i e , be-
fore September 29) that "she was quitting because she was going to have surgery"
(Wallace's testimony). I credit Knotts' denial that she said so. The inherent im-
probability of Wallace's testimony is established by the pattern of Knotts' conduct. Thus,
the plain fact is that Knotts took leave and did not quit Furthermore, Knotts retained
interest in her job by acting as union observer in the election at the very time she allegedly
made these statements ' To say that Wallace displayed a penchant for exaggeration in
testifying on this and other issues in this proceeding is a gross understatement. Seeing
and hearing her, I regard Wallace's testimony as generally unreliable and credit it only
when in conformity with the credible testimony of other witnesses
sa The "notice" (or a copy thereof) was attached each time to Knotts' timecard. Olsen
testified that the "warning" procedure was that customarily followed -by the Company.
He apparently drew no distinction between a "warning" to a file and a warning to a
person. -
34 The falsity of a reason assigned for a discharge is itself evidence of discriminatory
motivation. N.L R B. v. Kalof Pulp & Paper Corporation, et at., 290 F. 2d 447, 451
(CA. 9) ; N.L.R B. v. C. W. Radcliffe, et at., d/b/a Homedale Tractor & Equipment Com-
pany, 211 F 2d 309, 314 (CA. 9).
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 2 weeks' additional leave to recover from surgery. - Despite this , Olsen placed in
her personnel file three "warning" slips on 3 successive days after her original leave
"expired." However, none of these was sent to Knotts , who knew nothing about
them. Nor did the Company make any attempt to learn (not even by a single tele-
phone call) why Knotts-an otherwise satisfactory employee , on an extended sick
leave, and to Respondent 's knowledge not yet released by her physician-had failed
to report for work. Instead, Respondent without further ado sent a formal letter
telling her she was "fired." 35
Under all the circumstances-particularly Respondent's deep -seated opposition to
the Union, Knotts' known union role, and the falsity of the reason advanced for the
discharge-I find that Respondent was disturbed by something other than Knotts'
failure to report on precisely the date she was allegedly due back-especially since it
is conceded she did in fact notify Olsen that she was still in postsurgical convalescence
under doctor's care. I am compelled to infer that Respondent was more interested
in creating a paper record of unexcused absences of a leading unionist-to lay a
foundation to justify her discharge-than to discipline an offending employee. I con-
clude that Respondent manufactured and seized upon Knotts' allegedly unexcused
"absences" as a pretext to cloak its real reason for her discharge , namely, her union
membership and activities . I find and conclude that the discharge of Knotts was in
violation of Section 8 (a) (3) and (1) of the Act. -
III. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend the customary cease-and -desist order and the affirmative relief
conventionally ordered in cases of this nature designed to effectuate the' policies of
the Act. The affirmative relief will include a requirement that Respondent offer
Magdalene Mary Knotts immediate and full reinstatement to her former or sub-
stantially equivalent position (The Case National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to her seniority
or other rights or privileges , and that Respondent make her whole for any loss of
pay she may have suffered as a result of the discrimination against her , by payment
to her of a sum of money equal to that which she normally would have earned from
the date of the discrimination (November 14, 1963), to the date of-a proper offer
of reinstatement , less her net earnings (Crossett Lumber Company, 8 NLRB 440,
497-498) during said period , the payment to be computed on a quarterly basis in
the manner established in F. W. Woolworth Company, 90 NLRB 289 , with interest
as directed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By coercively questioning employees about union matters, by creating an at-
mosphere of futility so as to discourage union activity , and by threatening employees
with reprisals in the event the plant became unionized , Respondent has interfered
with, restrained , and coerced employees in the exercise of rights guaranteed in Section
7, in violation of Section 8 (a) (1), of the Act.
2. By discharging Magdalene Mary Knotts on November 24, 1963, because of her
union membership and activities , Respondent has discriminated in regard to the hire
and tenure of her employment , in violation of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. Respondent has not violated Section 8 (a) (1) of the Act by discharging Alice
Fern Elder on November 5, 1963, and by thereafter failing and refusing to reinstate
her.
5. Respondent has not violated Section 8 (a) (3) and (1) of the Act by discharg-
ing Kathryn Seevers on November 8, 1963 , and by thereafter failing and refusing to
reinstate her.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in this proceeding , I recommend that the Respondent, Earl Fisher
Manufacturing Company, its agents , officers , successors, and assigns , shall:
It should be noted that in the case of Elder and Seevers, Respondent did attempt to
learn the facts before effecting the discharges.
EARL FISHER MANUFACTURING COMPANY 1601
1. Cease and desist from:
(a) Coercively questioning employees about union matters, threatening employees
with reprisals in the event the plant is organized , and in any other manner interfering
with , restraining , or coercing employees in the exercise of their rights under Section 7
of the Act.
(b) Discouraging membership in United Rubber, Cork, Linoleum & Plastic Work-
ers of America , AFL-CIO, or any other labor organization , by discharging or re-
fusing to reinstate any of its employees or otherwise discriminating against them in
regard to their hire or tenure of employment or any term or condition of employment.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer Magdalene Mary Knotts immediate and full reinstatement to her former
or a substantially equivalent position , without prejudice to her seniority or other
rights or privileges , and make her whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board and its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts due under the terms of this Recommended Order.
(c) Post at its place of business , copies of the attached notice marked "Appen-
dix " 36 Copies of said notice, to be furnished by the Regional Director for Region 9,
shall, after being duly signed by Respondent 's representative , be posted by it imme-
diately upon receipt thereof , and be maintained by it for at least 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
said notices are not altered , defaced, or covered by any other material.
(d) Notify said Regional Director , in writing , within 20 days from the receipt of
this Decision , what steps Respondent has taken to comply herewith.37
It is further recommended that the complaint be dismissed in all other respects.
"In the event that this- Recommended Order shall be adopted by the Board, the words
"a Decision' and ' Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in-the notice. In the further event that-the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
i7In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Real-
tions Act, as amended; we hereby notify our employees that:
WE WILL NOT coercively question our employees about their union activities.
Nor will we in speeches or otherwise give them the impression that it is futile
for them to join a union. Nor will we threaten them with any reprisal in the
event the plant is unionized.
WE WILL NOT discourage membership in United Rubber, Cork, Linoleum &
Plastic Workers of America, AFL-CIO, or any 'other labor organization, by
discharging or by failing and refusing to reinstate any of our employees, or by
otherwise discriminating in regard to, their. hire or tenure of employment, or
any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights under the National Labor Relations
Act.
WE WILL offer Magdalene Mary Knotts immediate and full reinstatement to
her former or substantially equivalent position, without prejudice to her senior-
ity or other rights and privileges, and make her whole for any loss of pay suf-
fered as a result of the discrimination against her.
760-577-65-vol. 148-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees are free to become or remain , or to refrain from becoming or
remaining , members of United Rubber, Cork, Linoleum & Plastic Workers of Amer-
ica, AFL-CIO, or any other labor organization.
EARL FISHER MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-If Magdalene Mary Knotts should currently be serving in the Armed
Forces of the United States, we will notify her of her rights to full reinstatement
upon application after discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948, as
amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions, they may communicate with the Regional
Office, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
Mayfair Midwest, Inc. and Aluminum Workers International
Union , AFL-CIO. Case No. 25-CA-1799. October 9, 1964
DECISION AND ORDER
On May 6, 1964, Trial Examiner Wellington A. Gillis issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in and was not engaging in unfair labor prac-
tices and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent filed cross-
exceptions to the General Counsel's exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a
three-member panel [Chairman McCullock and Members Leedom
and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-exceptions, the briefs,
and the entire record in this proceeding, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations with the fol-
lowing exceptions and additions?
'The Respondent filed a motion to strike and/or dismiss General Counsel's exceptions
to Trial Examiner's Decision as not being in compliance with Section 102.46(a) and (b)
of the Board's Rules and Regulations, Series 8, as amended. Section 102.46(b) permits
the Board to disregard any exception which fails to comply with requirements set forth in
that section. As, in our opinion, the General Counsel's exceptions and supporting brief
adequately comply with the applicable rules, the Respondent's motion is hereby denied.
The General Counsel has excepted to the credibility findings made by the Trial Exam-
iner. It is the Board's established policy, however, not to overrule a Trial Examiner's
resolutions with respect to credibility unless , as is not the case here, the clear preponder-
148 NLRB No. 155.