Evans Products Co.

National Labor Relations Board - Board Decisions

Oct 16, 1975

220 N.L.R.B. 1325 (N.L.R.B. 1975)

EVANS PRODUCTS CO. 1325
Evans Products Co. and William J. Zeller. Case
7-CA-11007
October 16, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
PENELLO
On May 9, 1975, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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 I in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order as modified herein.
ORDER
cal No. 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation of our employees by discharging or other-
wise discriminating in regard to their hire or ten-
ure or terms and conditions of employment
because of their union activities, sympathies, or
affiliation, except to the extent authorized by the
proviso of Section 8(a)(3) of the Act, as amend-
ed.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
WE WILL offer William J. Zeller full and im-
mediate reinstatement to his former job or, if it
no longer exists, to a substantially equivalent
one, without prejudice to his seniority or other
rights and privileges, and WE WILL make him
whole for any loss he suffered by reason of his
discharge on March 7, 1974, with interest at 6
percent per annum.
All our employees are free to become and remain
or to refrain from becoming or remaining members
of the above-named labor organization or any other
labor organization.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
herein and hereby orders that the Respondent, Evans
Products Co., Coldwater, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so modi-
fied:
1. Delete the words "like or related" in section
1(b) of the Order and substitute the word "other."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Decision is hereby corrected by: (I) in sec. 11, A, par . 10, in the
third sentence , substituting "Zeller" for "Houtz" the second time he is
named ; (2) in sec . II, B, 1, 1, par . substituting "September 20, 1973," for
"September 21, 1973."
2 In the absence of exceptions, we adopt , pro forma, the Administrative
Law Judge 's dismissal of the portions of the complaint alleging independent
violations of Sec . 8(a)(I) of the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Lo-
EVANS PRODUCTS CO.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: On
March 29, 1974, William J. Zeller filed a charge against
Evans Products Co. (Respondent), alleging that on March
7, 1974, Respondent discriminatorily discharged Zeller be-
cause of his union activities , in violation of Section 8(a)(1)
and (3) of the Act.' On April 26, 1974, the Regional Direc-
tor of the Board dismissed the charge insofar as it alleged a
violation of Section 8(a)(3). On May 23, 1974, the Regional
Director approved an informal settlement agreement
which provided a remedy for alleged coercive interrogation
by Respondent, the date of which is not disclosed. Thereaf-
ter, on appeal by Zeller, the General Counsel reversed the
Regional Director 's dismissal of the 8 (a)(3) allegation and
directed that a complaint be issued. Pursuant to such rever-
sal, the Regional Director on January 10, 1975, set aside
the prior settlement agreement and issued a complaint al-
leging the discriminatory discharge of Zeller on March 7,
1974, and five violations of Section 8(a)(1) alleged to have
occurred "sometime in October , 1973, the precise date
being unknown to" the Regional Director . Respondent's
answer , as amended at the outset of the hearing , denied the
substantive allegations of the complaint but raised no affir-
1 National Labor Relations Act, as amended (61 Stat . 136, P.L . 93-360, 29
USC § 151, et seq.).
220 NLRB No. 210
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mative defenses. However, at the hearing, after the General
Counsel rested, Respondent moved to dismiss the Section
8(a)(1) allegations as time-barred under Section 10(b).
Pursuant to due notice, a hearing was held before me in
Battle Creek, Michigan, on March 20, 1975. All parties
were represented and were afforded full opportunity to
present oral and written evidence and to examine and
cross-examine witnesses. The parties presented oral argu-
ment and a posthearing brief has been filed on behalf of
Respondent.
Upon the entire record, together with careful observa-
tion of the witnesses and consideration of Respondent's
brief, I make the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a Delaware corporation with its princi-
pal office and place of business in Coldwater, Michigan, is
engaged in the manufacture, sale, and distribution of diesel
engine radiator shutters and related products. During the
calendar year 1974, a representative period, Respondent, in
the course and conduct of its business purchased and
caused to be transported to its Coldwater, Michigan, plant
goods and materials valued in excess of $500,000, of which
goods and materials valued in excess of $100,000 were
transported directly from points outside Michigan. During
the same period Respondent sold and distributed products
valued in excess of $500,000, of which products valued in
excess of $100,000 were shipped from its Coldwater, Michi-
gan, plant to points outside Michigan. Respondent is now
and has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
B. Local No. 247, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(the Union), is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
William J . Zeller , the Charging Party, commenced work-
ing as a general machine operator and setup man for Re-
spondent in April 1972. Toward the end of 1972 employee
Duane Stanley initiated an organizing campaign for Team-
sters Local 34. Zeller signed a union card at that time.
However , the campaign seems to have ended unsuccessful-
ly.
Sometime around March 1973 Zeller got in touch with
the Local 34 representative again. This representative re-
ferred him to the business agent of Teamsters Local 299,
who in turn referred him to the agent for Local 247. Zeller
signed a union checkoff authorization on September Il,
1973, and at his request four other employees (Charles R.
Rinard , Sr., Duane Stanley , Allen Yuhl, and Craig Smoker)
signed similar authorizations on September 11 and 12. All
these employees signed at a tavern or restaurant . Zeller
testified that thereafter he signed up additional employees
but he no longer had available any authorizations signed
between September 12, 1973, and January 25, 1974. He
provided no details as to the missing authorizations-nei-
ther the identities of the employees signing nor the dates or
circumstances of their signing. On cross-examination, in
answer to leading questions, he stated that "from Septem-
ber [1973] to January [19741" he "was working on the out-
side, through the union hall, trying to learn procedure" and
was "not actively" soliciting authorizations.
Zeller testified as to conversations he had with Plant Su-
perintendent Donald Musselman and Plant Manager Ron-
ald Beld. Zeller testified that the first conversation, with
Musselman, and the second, with Beld, occurred in the
same week. On direct examination, Zeller testified that
these conversations occurred in "approximately October."
On cross-examination, however, he testified as follows:
Q. (By Mr. Nyhart) The conversation where he talked
to you about the union, could that have occurred 3
in September of 1973?
A. Possibly.
Q. Could that have occurred before September twen-
tieth , nineteen seventy-three?
A. I don't remember the date.
Q. Wasn't it shortly after those employees signed the
book?
A. It was after the employees signed the book.
Q. A few days after?
A. Yes, sir.
Q. Now we're talking about the signatures of Mr.-
obviously you and Mr. Rinard, Mr. Stanley, Mr.
Yuhl, and Mr. Smoker, is that correct?
A. Yes sir.
Q. So your best recollection is that this was a few days
after these employees signed those cards?
A. Yes, sir.
However, on direct examination Zeller also testified that in
their conversation Beld said that "he already knew that
[Zeller] had sixteen members already signed up."
Zeller testified that he was called into Musselman's of-
fice. The first thing Musselman mentioned was the Union.
According to Zeller, Musselman said that if the Union
came into the shop, Respondent would move the plant,
possibly to Tipton, Georgia. Musselman said he would
then be sorry for the older employees because they would
not have any jobs. Musselman added that he definitely did
not want Zeller to become involved in union activities.
Musselman then reminded Zeller that the Company had
been indulgent of Zeller's numerous absences, occasioned
primarily by family problems centering around his daugh-
ter, who apparently was a frequent runaway and had been
ill.
Musselman admitted that, as Zeller had testified, he had
called Zeller into his office and talked about the Union.
2 Although this is not specifically shown in the evidence, Zeller apparently
had two books-one of checkoff authorizations, the other of representation
authorizations or membership applications. Presumably the missing "au-
thorizations" were contained in the latter book, which Zeller no longer has.
3 Here, as in other quotations of testimony, obvious spelling and similar
minor errors in the transcript have been corrected.
EVANS PRODUCTS CO. 1327
Musselman testified that he had learned about Zeller's
union activity through information volunteered by other
employees. Musselman placed the date as "back in late
summer , September" 1973. He testified that he asked Zeller
why there was unrest among some of the employees and
why they needed a union. Zeller replied that the problem
was mainly wages. Musselman denied that he said any-
thing about the possibility of moving the plant to Georgia.
Musselman then testified that he also spoke to Zeller about
the latter's absenteeism.
Later in the same week Zeller was called into Beld's of-
fice . Beld said that he knew that Zeller was the "king man
behind this union affair" and already had 16 employees
signed for the Union. Beld was emphatic that he did not
want a union in the shop. Zeller replied that while Beld
might not want a union, possibly the employees did. Zeller
complained that Respondent's wage rates were low when
compared with those of other companies in the area, as
shown in a list Zeller had obtained from the mayor. Beld
replied, in effect, that Respondent was at the top of local
wage rates.
Beld placed his conversation with Zeller as within the
first or second week of September. He said he specifically
recalled that it was shortly after Labor Day. On cross-ex-
amination as to the date of the conversation, Beld referred
to the fact that he kept a calendar. However, when the
General Counsel requested that Beld be ordered to pro-
duce the calendar, he stated that it had been destroyed
sometime in 1974. The following colloquy then ensued:
Q. (By Mr. Niforos) When was the last time you
looked at it?
A. I was only indicating what I would often do.
JUDGE KLEIN: He just asked the question when did you
last look at it?
THE WITNESS: I don't recall. Some time ago. I threw it
way, I'm sure, in '74.
JUDGE KLEIN: Then how did you recall that this hap-
pened the first or second week of September in
nineteen seventy-three?
THE WITNESS: I didn't specifically look at the calendar
to determine that. But in noting those times, those
things on the calendar, as opposed to a daily walk
through the plant, I'm sure I would have made
notes, and it dust is more clearly in my mind.
JUDGE KLEIN: How, at this moment, do you recall that
it was the first or second week of September of nine-
teen seventy-three-was it?
THE WITNESS: I recall it occurred just after Labor Day.
Q. (By Mr. Niforos) It could also have been several
weeks after Labor Day?
A. As I say, I recall it was approximately right after
Labor Day.
Beld did not deny having said that he knew Zeller already
had 16 employees signed up for the Union.
Beld first testified that he called Zeller into the office to
discuss two matters: primarily Zeller's absenteeism and
secondarily the Union. When it was pointed out that, ac-
cording to Respondent's records, Zeller had not been ab-
sent between July 30 and September 21, Beld conceded
that his primary purpose in calling Zeller in was to discuss
the Union. Beld maintained that he was simply interested
in finding out what the problems were in the plant which
were leading the men to unionize. He said that his concern
in this regard was related to his "newness" at the plant.
However, he somewhat retreated from this view when it
was noted that he had been plant manager at Coldwater
for some 9 months at the time in question.
At a tavern after work on January 25, 1974,1 he obtained
employee H. W. Pope's signature to a union checkoff au-
thorization. On February 27, 1974, at an insurance compa-
ny banquet, unrelated to Respondent, he obtained the sig-
natures of three other employees.
On the afternoon of March 6, 1974, Zeller informed his
foreman, Lawrence Houtz, that he was suffering from flu
and diarrhea and wanted to leave early. According to Zel-
ler, Houtz commented on Zeller's not looking well and au-
thorized him leave. Houtz testified that initially he said
there was a great deal of work to be done and asked Houtz
to remain until the end of the shift, at 3:30 p.m. According
to Houtz, Zeller did resume work but about 20 minutes
later again complained of illness. At that point Houtz said:
"If you're sick, you're sick," whereupon, at 2:10 p.m., Zel-
ler left. Houtz testified that at the time he did not believe
Zeller was sick. Shortly thereafter Houtz and Musselman
dispatched Edward D. Leonard, Respondent's material
manager, to the Commercial Inn, a tavern about 1/2 mile
away from the plant, to see if Zeller was there.5 Leonard
found that Zeller was in the tavern drinking a beer and so
reported back to Musselman.6
Zeller lives some 18 miles away from the plant. His wife,
who works at a foundry in the vicinity of the Commercial
Inn, finishes work at 3 p.m. Since October or November of
1973, when Zeller went on the first shift with Respondent,
he and his wife have regularly driven to work together,
and, at the close of the day, they meet at Commercial Inn,
where they have a beer together, and then drive home.
Zeller testified that when he left work on March 6 he went
to the Commercial Inn to await his wife. While waiting, he
had a beer. Upon Mrs. Zeller's arrival they had one beer
together and then drove home.
When Zeller reported for work the next day, March 7,
his timecard was missing. Musselman then informed him
that he was being fired. The discharge report, signed by
Musselman, states the following reason : "BILL MISSED
TO MUCH TIME. HE WOULD TELL HIS FOREMAN
HE WAS SICK AND LEAVE DURING WORKING
HOURS GOING TO A TAVERN INSTEAD OF HOME
THIS HAPPEND 4 OR 5 TIMES IN LAST THREE
MONTHS."
On February 7, 1974, Zeller had left work at lunchtime
and had not returned. Employee Stanley had then been
4 At one point, counsel for the General Counsel inadvertently misstated
this date as September 25, 1973, and Zeller, the witness, did not correct it
The record is clear, however, that Pope signed in January 1974.
5 Leonard testified that Musselman had not specifically mentioned Zeller
but had merely told Leonard to see if any of Respondent's employees were
in the tavern Musselman testified that he instructed Leonard to see if Zel-
ler, specifically, was there
6 Leonard testified that Zeller was sitting at the bar with two other men
Zeller said he was sitting at a table. Although Respondent's counsel stresses
this conflict, I do not find it significant
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent to see if Zeller's car was at the Commercial Inn. Stan-
ley reported back that Zeller's car was at the tavern's park-
ing lot, but Stanley had not entered the tavern to see if
Zeller was there. Zeller testified that, having called in from
lunch, he had taken the afternoon off to pick his wife up at
her doctor's office. His attendance record shows 3-1/2
hours off for "Illness in Immediate Family." Musselman
testified that the reference to Zeller's "4 or 5" departures to
visit a tavern within 3 months was based on "scuttlebutt,"
which he had checked with Houtz. Houtz testified that he
complained to Musselman about such absences "probably
four or five times," but he could not date them.
According to Respondent's records, Zeller was frequent-
ly absent from the latter part of 1972 through February
1973.7
On January 19, 1973, Zeller, along with seven other em-
ployees, received a written warning, signed by Beld, con-
cerning his attendance. The evidence establishes that the
majority of Zeller's absences were occasioned by his
daughter's illness or disappearance. Other absences were
due to his or his wife's illness, with a small amount of time
lost through transportation difficulties.
His attendance improved considerably after February
1973 8 and he received no further written warnings.
Musselman testified that Respondent does have some
policy or procedure for progressive discipline for absentee-
ism, but Musselman does not know what it provides and
did not check it before discharging Zeller. Upon consider-
able questioning, Musselman recalled only one other em-
ployee who had ever been discharged for absenteeism.
That had occurred over a year earlier and involved an em-
ployee who, according to Musselman, "worked when he
felt like working and would absent himself without even
calling in." Another employee had been discharged after
being absent without reporting in for 7 consecutive days.
There have been no other discharges related to absentee-
ism. Musselman conceded that Zeller always called in
when he was going to be absent.
It was established that Zeller regularly drank beer with
his lunch at the Commercial Inn. Houtz also testified that
he frequently smelled alcohol on Zeller's breath, even
sometimes when he arrived at work in the morning. How-
ever, Houtz conceded that, whatever the extent of Zeller's
drinking, it had never interfered with his work. Although
counsel adduced considerable evidence as to whether Zel-
ler consumed one or two beers at lunchtime, Respondent
does not contend that he was discharged for drinking as
such.
Musselman testified that he alone decided to fire Zeller,
while Beld was away on vacation. Musselman testified that
he did not wait for Beld's return because Musselman was
"responsible for production." Musselman said he had not
spoken with Beld by telephone and had informed Beld of
7 1972: October, three absences; November, three absences (one of them
unexcused); December, five absences; 1973: January, 4-5/8 days absent;
February, 8-1/2 days absent.
8 1973: March, 1-1/2 days; April, I day; May, 4 days; June, 2 days;
August , no absences (5 days vacation); September, about 1-3/4 days ab-
sent ; October, no absences; November, one-half day absent and one "tardy
by minutes"; December, about 3-1/2 days absent; 1974; January, about
1-1/2 days; February, about 2 days absent.
the discharge upon Beld's return from vacation. Beld, how-
ever, testified that he learned of Zeller's discharge "by
phone conversation." He specifically testified that while he
was on vacation he called the plant frequently and "each
time [he] called [he] would talk to each one of [his] staff
members," including Musselman, "on every occasion."
Beld denied having had knowledge of any union activi-
ties by Zeller in January and February 1974. Musselman
testified that he did not believe he had any such knowledge
when he discharged Zeller and that no employees had in-
formed him of such activities.
B. Discussion and Conclusions
1. Sections 8(a)(1) and 10(b)
After the conclusion of the General Counsel's case, Re-
spondent moved for dismissal of all the 8(a)(1) allegations
on the ground that they were time-barred under Section
10(b) of the Act. As previously stated, the charge was filed
on March 20, 1974, and served on Respondent by regis-
tered mail on March 21. Accordingly, the 6-month limita-
tions period under Section 10(b) commenced on September
21, 1973. The complaint alleged that the violations of Sec-
tion 8(a)(1) occurred "sometime in October," the exact
time being unknown to the Regional Director. Although
Respondent did not plead Section 10(b) as a defense in its
answer, it was adequately raised by a motion to dismiss at
the close of the General Counsel's case.
On direct examination Zeller testified that the relevant
conversations occurred in "approximately October." In ac-
quiescence to leading questions on cross-examination, he
conceded that they transpired within a few days after the
five named employees had executed authorizations, the last
of which had been signed on September 12. On this evi-
dence, the 8(a)(1) allegations would be barred under Sec-
tion 10(b). However, Zeller's adoption of the suggestion of
the Respondent's counsel is not entirely reliable. Through-
out, Zeller manifested a vague and faulty memory. He also
testified that in their conversation Beld said that he knew
that Zeller already had 16 employees signed up. Thus it
would appear that Zeller obtained eleven authorizations
between September 12 and sometime around the end of
that month, when he suspended active solicitation. But
there is no way of determining, on the basis of Zeller's
testimony, whether this activity occurred before or after
the September 21 cutoff date. If such additional authoriza-
tions were obtained by September 18, the conversation
with Beld could have been held on September 20, consis-
tent with his testimony on cross-examination.
Respondent's evidence is equally inconclusive. Beld tes-
tified that his conversation with Zeller took place in the
first or second week of September, shortly after Labor
Day. However, the evidence as a whole leaves no question
that the conversations occurred after Zeller and at least
five of his colleagues had signed authorizations, which hap-
pened on September 11 and 12. Since September 12 was a
Thursday and it was undisputed that Zeller's conversations
with Musselman and Beld were held a few days apart, but
within the same week, the earliest they could have occurred
was in the week beginning Monday, September 16, 2 weeks
EVANS PRODUCTS CO. 1329
after Labor Day. In an apparent attempt to give an appear-
ance of reliability, Beld referred to the fact that he main-
tained a calendar, implying that he had noted the conver-
sation therein. However, when faced with the necessity of
producing the calendar, he testified that it had been de-
stroyed sometime in 1974 and he then revealed that he
"didn't specifically look at the calendar to determine" the
date of the conversation.
Musselman was at least equally vague. He placed the
conversation as "late summer, September." When asked
the basis for his recollection, he said: "Because that's when
it was-when it was, I guess." He had made no notation at
the time.
Both Musselman and Beld testified that in the conversa-
tions they referred to Zeller's absenteeism. Respondent's
records reflect that, although Zeller had had many absenc-
es through February 1973, his attendance improved mark-
edly thereafter. With the exception of a 1-week vacation in
August, he had lost no time between July 31 and Septem-
ber 21, when he was absent for about one-half a day be-
cause of illness in his immediate family. Thereafter he lost
part days on September 24 and 25. It is questionable
whether Beld and Musselman would have spoken to Zeller
about his absences between September 12 and 21 when, so
far as the record discloses, his attendance had been perfect
for well over a month.
None of the witnesses was totally reliable. At the least,
all their memories were deficient. Thus, the brute fact is
that I am unable on the basis of the present record to de-
termine when the alleged conversations took place. Ac-
cordingly, the issue must be resolved solely on the basis of
the burden of proof.
Several courts of appeals have held that Section 10(b) of
the Act creates a statute of limitations rather than a juris-
dictional requirement. See, e .g., N. L. R. B. v. A. E. Nettleton
Co., et al., 241 F.2d 130, 133 (C.A. 2, 1957); Itasca Cotton
Manufacturing Company v. N.L.R.B., 179 F.2d 504 (C.A.
5); A. H. Belo Corporation (WFAA-TV) v. N.L.R.B., 411
F.2d 959, 966-967 (C.A. 5, 1969), cert. denied 396 U.S.
1007 (1970). Nettleton and Belo both hold that, since the
proviso of Section 10(b) is not jurisdictional , it is waived as
a defense if not affirmatively pleaded.
The Board has frequently held that Section 10(b) is a
"statute of limitations" rather than a rule of evidence ex-
cluding evidence of events occurring more than 6 months
before a charge. See, e .g., Local Lodge No. 1424, Interna-
tional Association of Machinists, AFL-CIO, and IAM
(Bryan Manufacturing Company), 119 NLRB 502, 505
(1957); General Teamsters, Packers, Food Processors and
Warehousemen Union Local No. 912, IBT (H. A. Rider &
Sons), 120 NLRB 1577, 1579 (1958). However, although
the Board cited Nettleton in the Bryan and Rider decisions,
it nonetheless has applied the 10(b) proviso sua sponte. See,
e.g., Patterson Menhaden Corp., d/b/a Gallant Man, et. al.,
161 NLRB 1310 (1966), enfd. 389 F.2d 701 (C.A. 5, 1968).
There appears to be no question that if Section 10(b)
creates merely a statute of limitations which is waived un-
less specifically pleaded, the burden of proof is on the re-
spondent to establish that the events alleged occurred more
than 6 months before the filing of the charge. Schenebeck v.
Sterling Drug, Inc., 423 F.2d 919, 925 (C.A. 8); Fruit &
Vegetable Packers and Warehousemen Local 760 v. Morley,
378 F.2d 738, 746 (C.A. 9). The Fifth Circuit has recently
expressly applied this principle to Section 10(b) of the Act.
N.L.R.B. v. Mueller Brass Co., 509 F.2d 704 (1975). In
Mueller the 10(b) cutoff date was September 9, 1972. The
General Counsel's witness testified that the relevant events
happened "around September or maybe October" and the
Board found that they occurred "in the `fall of 1972: " In
rejecting the respondent's 10(b) defense, the court said (509
F.2d at 708):
The Statute of Limitations is an affirmative defense
and, as such, must be proved by the party alleging
same . In the case at bar, the Company offered no evi-
dence in opposition to [the General Counsel 's witness']
testimony. The Company, therefore, has failed to es-
tablish that the conversation . . . occurred prior to
September 9, 1972.
So far as appears, in Mueller the 10(b) issue was not raised
before the Board and the Board did not pass on it. 208
NLRB 534 (1974).
In reversing the Board in Bryan, the Supreme Court did
not expressly pass on the question whether Section 10(b)
creates a jurisdictional bar or, on the other hand, estab-
lishes only a statute of limitations. Local Lodge 1424, Inter-
national Association of Machinists v. N.L.R.B., 362 U.S. 411
(1960). There has been some judicial controversy as to
whether the Supreme Court's Bryan opinion establishes
that Section 10(b) in effect is a jurisdictional requirement.
See the majority and dissenting opinions in Luther W. Shu-
mate, et al. v. N.L.R.B., 452 F.2d 717 (C.A. 4, 1971). The
history of the Shumate case may be instructive. Originally
the Board, apparently on its own motion, dismissed a com-
plaint as time-barred under Section 10(b) (International As-
sociation of Machinists and Aerospace Workers, AFL-CIO;
et al. (Union Carbide Corporation), 180 NLRB 875 (1970) ).
Thereafter, both the respondent and the charging parties
requested reconsideration of the dismissal and sought deci-
sion on the merits. In response, the Board reaffirmed its
original decision that the complaint was time-barred under
Section 10(b), 186 NLRB 890 (1970). In a 2-to-1 decision,
the Fourth Circuit in Shumate, supra, held that, on the
facts, the complaint was not time-barred. However, the
court also held, as an alternative basis of decision, that the
Board committed error in invoking Section 10(b) since the
respondents had not pleaded the defense and thus had
waived it. On the court's remand, the Board stated express-
ly that it was "respectfully reserving for future cases its
position that the complaint was time-barred under Section
10(b) of the Act." 196 NLRB 785 (1972). In subsequent
decisions the Board, apparently on its own motion, has
dismissed allegations on the basis of Section 10(b). See,
e.g., Hunter Saw Division of Asko, Inc., 202 NLRB 330, fn.
1 (1973).
The Board has read Bryan as "precluding" or "prohib-
iting" it from finding violations occurring more than 6
months before a charge. I.A.M. (Union Carbide Corp.), su-
pra, 180 NLRB at 877; Montgomery Ward & Co., Incorpo-
rated, 217 NLRB No. 43 (1975).
From the foregoing, I understand the Board 's basic posi-
tion to be that Section 10(b) imposes a restriction on the
Board's power and is thus a jurisdictional requirement
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than an affirmative defense which can be waived 9 If
that is a correct reading of Board decisions, the burden of
proof was on the General Counsel to establish that the
conversations took place less than 6 months before the
charge was filed, or after September 21, 1973
The foregoing considerations are reinforced by the histo-
ry of this matter It will be recalled that the Regional Di-
rector originally dismissed the 8(a)(3) charge and approved
an informal settlement of one independent 8(a)(1) viola-
tion, the alleged date of which is not revealed Presumably
the settlement agreement, approved by the Regional Direc-
tor on May 23, 1974, disposed of all prior violations by
Respondent See Jackson Building and Construction Trades
Council (Moore & McGehee Construction Co, Inc), 172
NLRB 1352 (1968) Zeller's appeal from the dismissal of
the 8(a)(3) allegation would hardly put Respondent on no-
tice that it might have to defend against allegations of pre-
settlement violations of Section 8(a)(1) The fact that the
charge did not specifically allege any independent viola-
tions of Section 8(a)(1) is not fatal to the inclusion of such
allegations in the complaint, even though they refer to
events occurring some 6 months before the alleged discrim-
ination See Benner Glass Co, 209 NLRB 686 (1974), Hotel
Conquistador, Inc, d/b/a Hotel Tropicana, 159 NLRB 1220,
1223-24 (1966) On the other hand, the Regional Director
in effect severed the 8(a)(3) and 8(a)(l) allegations, dismiss-
ing the former and approving a settlement of the latter It is
not entirely clear that reversal of his dismissal of the 8(a)(3)
allegation is sufficient reason for setting aside a fully exe-
cuted settlement covering an independent 8(a)(1) allega-
tion without any suggestion that the agreement has been
breached At least on an equitable basis, and bearing in
mind the purpose and effect of Section 10(b), one cannot
be entirely blind to the fact that it was not until the com-
plaint was issued in January 1975 that Respondent was put
on notice that it would be called upon to defend against
allegations of unfair labor practices committed in Septem-
ber or October of 1973 Cf Koppers Company, Inc, Forest
Products Division, 163 NLRB 517 (1967)10 It is not surpris-
mg that, as previously observed, neither Zeller nor
Respondent's representatives were able to recall the rele-
vant details with any precision
Accordingly, I shall recommend that the portions of the
complaint alleging independent violations of Section
8(a)(1) be dismissed However, it should immediately be
noted that evidence concerning such alleged time-barred
and/or settled violations is properly to be considered as
background evidence and as relevant to Respondent's
union animus in connection with the 8(aX3) allegation
Sieves Sash & Door Company v N L R B, 401 F 2d 676,
678 (C A 5, 1968), enfg in pertinent part 164 NLRB 468
(1967) Cf Paris Manufacturing Co, 149 NLRB 15, 21, fn
9 But see Chicago Roll Forming Corp 167 NLRB 961 971 (1967) enfd
418 F 2d 346 (C A 7 1969) where the Trial Examiner affirmed by the
Board said the proviso to Section 10(b) of the Act is a statute of limita
pons and is not jurisdictional It is an affirmative defense and if not timely
raised is waived
10 The practical effort of the proviso to Section 10(b) is that absent the
existence of a properly served charge on file a party is assured that on any
given day his liability under the Act is extinguished for any activities occur
ring more than 6 months prior thereto
8 (1964), enfd 52 LC ¶ 16,662 (CA 1, 1965), cited by Re-
spondent
2 Section 8(a)(3)
At the hearing and again in his brief, Respondent's
counsel has conceded that Respondent "does not want to
be unionized " But Respondent contends that "there is no
evidence of any threats or harassment directed at Zeller "
Zeller, however, testified that Musselman had threatened
that the plant would be moved away if the employees chose
to be represented by the Union Musselman denied having
made any such statement
As indicated above, neither witness was very impressive
Both had faulty memories Musselman's testimony was ex-
tremely vague on all significant matters For example, he
testified that he had spoken to Zeller about his absenteeism
"two or three, maybe four" times, but he could not say
even approximately when the first time was, except that it
was before August or September 1973 And Musselman
was obviously inclined somewhat to overstate For exam-
ple, when asked to give the substance of the reprimands,
Musselman replied that Zeller "seemed to have a particular
habit, now and then, of leaving right when we needed
him " However, the evidence as a whole shows only two
instances in which Zeller might have been accused of such
misconduct-one on February 7 and one on March 6,
1974 While Zeller's memory was somewhat selective in his
own favor, I gained the definite impression that he would
not fabricate evidence Thus, I credit his testimony con-
cerning Musselman's threat of plant removal in the event
of unionization
Additionally, the admitted fact that Beld and Mussel-
man each called Zeller to the office to discuss the Union in
itself shows Respondent's union animus The record as a
whole thus establishes Respondent's union animus suffi-
ciently for a finding of a violation of Section 8(aX3)
Respondent next contends that its representatives had
no knowledge of the union activities which shortly preced-
ed the discharge There is no question that Respondent
knew that Zeller was the instigator of the campaign in the
fall of 1973 While Zeller did testify, in answer to leading
questions on cross-examination, that he had not actively
solicited union authorizations in the late months of 1973,
there is no evidence suggesting that Respondent had any
reason for concluding that the campaign had been aban-
doned Zeller's original solicitations had been made off the
premises, yet his activities had become known to Respon-
dent Since other employees had volunteered information
to Respondent's representatives in the fall, it is probable
that they continued to keep the information current Mus-
selman testified that he had been hearing "scuttlebutt"
about Zeller in 1974
On direct examination, Musselman, who claimed to have
been solely responsible for Zeller's discharge, testified
Q Were you aware of any union activity [by] Mr Zel-
ler during nineteen seventy-four9
EVANS PRODUCTS CO 1331
A I don' t believe so
On recross-examination, he testified that he had received
no "follow-up information" on Zeller's union activities in
January and February 1974 On direct examination Beld
testified
Q After September 1973, were you aware of any fur-
ther activity, signing union cards, or any union ac-
tivity on his behalf'?
A No
These conclusory denials, however, are not entitled to
much weight, particularly where, as has been found here,
the witnesses ' other testimony is not entirely reliable Cf
Chauffeurs, Teamsters and Helpers Local 633 of New Hamp-
shire v N L R B, 509 F 2d 490 (C A D C, 1974), Shattuck
Denn Mining Corporation (Iron King Branch) v N L R B,
362 F 2d 466, 470 (C A 9, 1966), NLRB v Edward P
Tepper, d/b/a Shoenberg Farms, 297 F 2d 280, 284 (C A
10, 1961)
Accordingly, on all the evidence, I find that Respondent
was aware of Zeller's union activities at the time of his
discharge
But union animus and knowledge of an employee's
union activities are insufficient by themselves to establish
that his discharge was unlawful The question remains
whether the discharge was dictated in part at least by those
union activities
It is undisputed that Zeller was a satisfactory worker
Houtz testified that Zeller was very competent "when he
was in shape to do so " In explanation of that comment,
Houtz said "He was sick so much He wanted to go
home " But the evidence establishes only one occasion on
which Zeller "wanted to go home" because of illness That
was on March 6, the event precipitating his discharge The
only other early departure specified by Houtz was that on
February 7, which Respondent's records and Zeller' s testi-
mony establish was related to Mrs Zeller's illness Houtz
intimated, without expressly saying, that Zeller's not being
"in shape to" work competently might be related to his
dunking But then he conceded that Zeller's drinking had
never prevented his working
At the hearing Respondent's representatives overplayed
their concern about Zeller's absenteeism For example,
concerning his conversation with Zeller in September or
October of 1973, Beld testified in part as follows "there
were a couple of things that we wanted-I wanted to talk
about, one being the situation with Bill's daughter, and the
amount of time that he had missed And I wanted to know
if the thing was being resolved and whether or not he was
going to, very shortly thereafter, begin to work a forty hour
week " But, as noted, in August and the first 3 weeks of
September Zeller had lost no time (except for a 5-day va-
cation), toward the end of September he lost less than 2
days and none at all in October
Also noteworthy is the conflict between Beld and Mus-
selman as to when Beld learned of the discharge Beld testi-
fied that he learned about it in a telephone conversation
with Musselman while Beld was on vacation in Florida
Musselman, however, testified that he did not speak with
Beld during the period and informed him of the discharge
upon his subsequent return
Since both Beld and Musselman testified that they had
spoken to Zeller in the fall about his absenteeism, it is
difficult to credit Musselman's testimony that he and Beld
had never discussed Zeller between themselves And, in
view of the apparent fact that only two employees had ever
previously been discharged for absenteeism, it seems most
unlikely that Musselman would have invoked the extreme
penalty of discharge without some prior consultation or
specific understanding with Plant Manager Beld This is
particularly true since Zeller, unlike the earlier miscreants,
had never failed to call in and his attendance record had
shown considerable improvement during the period imme-
diately preceding the discharge Cf Mikami Brothers, 188
NLRB 522, 524-525 (1971), Gould, Inc, 216 NLRB No
183 (1975) It was not until after Zeller started the union
organizing campaign that Respondent undertook to check
up on him See Lafayette Radio Electronics Corporation, 216
NLRB No 167 (1975) And Zeller's discharge was appar-
ently in contravention of a policy or procedure calling for a
suspension before discharge Musselman gave no reason
for rejecting Zeller's suggestion that he be suspended for a
few days
The situation here presented is similar to that in Mueller
Brass Co, supra, 208 NLRB 534, where the Board found
that an employer had discriminatorily suspended an em-
ployee even though the employee untruthfully reported
that he had visited a doctor in connection with an illness
for which he had been absent It is true that the court
reversed the Board's findings Supra, 509 F 2d 704 Howev-
er, it is not at all clear that the court's decision would have
been the same if, as is the fact in the present case, the
employee had been discharged rather than merely suspend-
ed for a short time'[ Suspension serves a disciplinary func-
tion without totally removing an employee who is spear-
heading an organizational drive In making this
observation, I am not undertaking to pass on Respondent's
judgment as to disciplinary measures But the choice of
discharge rather than some lesser form of discipline is one
of the congeries of facts supporting the inference that Re-
spondent was not motivated solely by disciplinary consid-
erations
As negativing discriminatory motivation, Respondent
observes that employee Stanley initiated a union organiz-
ing campaign in 1972 and is still employed by Respondent
But Stanley's prior campaign apparently was very short-
lived and unsuccessful Zeller's, on the other hand, was
continuing and apparently gaining some momentum short-
ly before his discharge Additionally, there is no evidence
that Respondent had any pretextual grounds for discharg-
ing Stanley And, finally, it is well established that an
employer's failure to discharge all union activists does not
negate discrimination in connection with others N L R B
v W C Nabors, d/b/a W C Nabors Company, 196 F 2d
865 (C A 5), cert denied 344 U S 865, N L R B v Puerto
11 In any event the Boards decision rather than the courts reversal is
binding on me
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rico Telephone Company, 357 F 2d 919 (C A 1, 1966)
It is true that Respondent had reasonable ground for
disciplining Zeller However, the discharge was unlawful if
his union activities played any part in Respondent's deci-
sion See , e g, N L R B v Adam Loos Boiler Works Co,
435 F 2d 707 (C A 6, 1970), N L R B v Tennessee Packers,
Inc, Frosty Morn Div, 390 F 2d 782, 784 (C A 6, 1968),
Winchester Spinning Corporation v N L R B, 402 F 2d 299,
304 (C A 4, 1968), N L R B v Hanes Hosiery Division,
Hanes Corporation, 413 F 2d 457, 458 (C A 4, 1969),
N L R B v Southeastern Stages, Inc, 423 F 2d 878 (C A 5,
1970) On the entire record, I find that a preponderance of
the evidence establishes that Zeller's having gone to the
Commercial Inn to await his wife after he left work about
an hour and a half early on March 6, 1974, was seized
upon by Respondent as a pretextual basis for his discharge
Singer Company v N L R B, 429 F 2d 172, 179 (C A 8,
1970), A P Green Fire Brick Company v N L R B, 326
F 2d 910, 916 (C A 8, 1964)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of the Act
2 It has not been shown that Respondent committed
any violations of Section 8(a)(1) of the Act within the 6
months immediately preceding the service of the charge on
Respondent
3 By discharging William J Zeller on March 7, 1974,
and not thereafter offenng him reinstatement , Respondent
has discnmmated in regard to hire and tenure of employ-
ment to discourage membership in a labor organization,
and thereby has committed and is committing unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act
THE REMEDY
Having found that William J Zeller was discriminatorily
discharged, I shall recommend that Respondent be re-
quired to offer him full and immediate reinstatement, with
backpay to be computed in accordance with F W Wool-
worth Company, 90 NLRB 289 (1950), with 6 percent per
annum interest in accordance with Isis Plumbing & Heating
Co, 138 NLRB 716 (1962) In addition, I shall recommend
a cease-and-desist order and notice-posting requirement, in
accordance with usual Board practice
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER 12
Respondent, Evans Products Company, Coldwater,
Michigan, its officers, agents, successors, and assigns,
shall
I Cease and desist from
(a) Discharging employees or otherwise discriminating
in any manner with respect to their tenure of employment,
or any term or condition of employment, because they
have engaged in concerted activity or activity on behalf of
Local No 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the right
to self-organization, to form labor organizations, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Offer William J Zeller immediate and full reinstate-
ment to his former position (or, if such position no longer
exists, to a substantially equivalent position), without prej-
udice to his seniority or other rights and privileges, and
make him whole for any loss of earnings in the manner set
forth in the section herein entitled "The Remedy "
(b) Post at its plant in Coldwater, Michigan, copies of
the attached notice marked "Appendix " 13 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted Reasonable steps shall be taken by Re-
spondent to assure that said notices are not altered, de-
faced, or covered by any other material
(c) Notify the Regional Director for Region 7, in writ-
ing, within 20 days of this Order, what steps Respondent
has taken to comply herewith
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
13 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board