Fiber Materials, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1977

228 N.L.R.B. 933 (N.L.R.B. 1977)

FIBER MATERIALS 933
Fiber Materials, Inc. and Textile Workers Union of
America, AFL-CIO, CLC and Employees Depart-
mental Representative Group , Party in Interest.
Case 1-CA-11287
March 21, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On January 7, 1977, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision and a brief in reply to the
General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor' Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
commerce and jurisdictional allegations and the superviso-
ry status of certain persons alleged in the complaint. It
denied that there is any such thing as the Employees
Departmental Representative Group. Respondent admit-
ted that it discharged Bruce McMullen and laid off James
Bean, Dennis Bishop, and David Collard on the dates
alleged in the complaint.
Based on the evidence produced, the sequence of events,
and my evaluation of the credibility of the witnesses, I have
concluded that General Counsel has not proven the
allegations in the complaint and will dismiss it in toto.
The parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Biddeford, Maine, on June 17, 18,
and 23, 1976. General Counsel and Respondent have filed
briefs which have been carefully considered.
On the entire record in this case, including the exhibits
and testimony and on my evaluation of the reliability of the
witnesses based on the evidence, sequence of events, and
their demeanor, I make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Respondent is a Massachusetts corporation with its
principal office and place of business in Biddeford, Maine,
where it is engaged in research and development and the
manufacture, sale, and distribution of various types of
insulating materials. Respondent also operated a plant in
Graniteville, Massachusetts, until its destruction by fire on
December 14. During the past year, Respondent received
directly from points outside the State of Maine at its
Biddeford plant raw materials and supplies valued in excess
of $50,000 and during the same period sold and shipped
finished products valued in excess of $50,000 directly to
points outside the State of Maine.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Respondent admits, and I find, that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
JOHN M. DYER, Administrative Law Judge: Textile
Workers Union of America, AFL-CIO, CLC, herein called
the Union or Charging Party, filed the original charge on
December 12, 1975,1 and amended charges on January 9
and February 4, alleging that Fiber Materials, Inc., herein
called Respondent or the Company, violated Section
8(a)(l), (2), and (3) of the Act.
On February 10, the Regional Director issued a com-
plaint and notice of hearing which alleges that Respondent
violated Section 8(a)(1), (2), and (3) of the Act by
discharging or laying off four individuals, supporting a so-
called Employees Departmental Representative Group,
and by engaging in eight individual instances of 8(a)(1)
conduct of threats and impressions of surveillance.
Respondent's timely answer, as amended at the hearing
in this matter, denied any Act violations and admitted the
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
The Company was founded and incorporated by its
president, Walter Lachman, on March 19, 1969. The first
plant was established in Graniteville, Massachusetts, where
there was a machine shop and a weaving installation, which
in December 1975 employed about 50 persons. On Decem-
ber 14, the shop burned down and some 7 to 10 employees
were transferred to Biddeford to repair burned equipment
and the remainder, mostly weaving department employees,
were laid off. This second plant was later reestablished in
Lowell, Massachusetts.
Seventy percent of the Company's business consists of
contracts with various government agencies for research
I Unless specifically stated otherwise, the events herein took place during
the latter part of 1975 and the early part of 1976.
228 NLRB No. 112
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and development work in insulating materials, mainly for
nose tips and cones of space reentry vehicles for nuclear
warhead protection . The weaving operation weaves carbon
fibers in various directions or dimensions , and the multidi-
mensioned fabrics may be reinforced with carbon in
producing these tips or cones. The Company is also
working with aluminum and carbon mixtures to produce
reinforced metals . In another direction, it is developing
insulated fiberboard to withstand great heat and hopes to
develop and promote its use for installations such as
furnaces.
At the Biddeford location, Respondent is completing a
new research and development lab for high temperature
testing of materials . This facility is under division manager
Louis Landers . The Company's weaving division has the
largest number of employees . Vice President Paul Jahn,
who was formerly located in Graniteville , is the manager of
the carbon textiles group , and James Crawford, Jr., is the
manager of the woven products group. Roger Pepper is
manager of the new products group which includes the
chemical and mechanical labs and is the division which is
engaged in research for new products . The carbon products
division is under Larry McAllister and Jack Cook is the
energy manager. The Company has a chief financial officer,
Kenneth Black, and Vice President E. N. Hagge appears to
be in operational control of the Company under President
Lachman.
In October 1974, the Company had a total of 148
employees at both plants. The employee complement grew
to 177 in May 1975 and jumped to 208 in June and went to
240 in October. Employment went down in November to
234 and further down to 186 in December, to 179 in
January, and to 169 in February. It came back up and
leveled off at 181 as of June 12.
The actual reduction of employee complement does not
show up immediately in Respondent's records since the
Company holds back I week's pay and gives employees
their accrued vacation pay when they are laid off, so that
somebody laid off in November might still show on the
payroll in December.
Company records show that in December 44 employees
were laid off for economic reasons . Included in this number
are most of the Graniteville employees who were laid off
when the plant burned down . If that plant had not been
demolished, the number of employees laid off at Biddeford
might have increased so that Respondent could get down to
the level finally established. Additional economic layoffs
were five in January and one each in February and May.
Other people left the Company's employ voluntarily or
were discharged . The total figures, including economic
layoffs, are 52 in December, 9 in January, and 11 in
February.
As for its economic problems, the Company stated that it
had been promised a large contract by the Air Force which
was due to start in October, but that contract did not come
through because of government funding problems due to
congressional delays on budgets . The cash flow became
tight because the Company had borrowed rather heavily.
At the end of October or early in November, Lachman
asked Black for a breakdown of what each division thought
was absolutely necessary in order to keep going and asked
that the division managers come up with their own budgets.
Lachman was only at the Biddeford plant 3 days in
November because he was traveling , seeking to secure
contracts.
According to Lachman and Black 's uncontradicted
testimony , Black sought to see Lachman through Novem-
ber because of the financial problems but was unable to
reach him until December 1 . At that time, Black advised
Lachman to lay off 50 people immediately because the
Company was going to suffer heavy financial losses due to
the low number of contracts. Because of the amount of time
and money invested in the training of people, and still
hoping to get contracts , Lachman decided to lay off week
by week, rather than immediately, and allow the profits to
go down gradually in order to keep trained people on the
payroll as long as possible because they were valuable, not
only to his Company, but would be to his competitors if
they were able to pick them up. Lachman stated that his
Company is the only one in the world that can make a
number of the products they produce , and competitors
would like to have the insight that some of the employees
could take to them if they were laid off. Lachman ordered a
gradual layoff and instructed Black to have it accomplished
by the department heads examining their departments as to
how many employees they could afford to cut back. Some
of the burden was taken off of the layoffs when the
Graniteville plant burned down.
In the summer, Respondent's personnel department was
working with Respondent's attorneys in preparing a book-
let on the fringe benefit programs Respondent had in
profit-sharing and hospitalization and insurance benefits.
After some considerable time, the plans and documents
were approved and a booklet was put together and
distributed to the employees around December 4. Thereaf-
ter, a number of questions were asked of supervisors and of
the personnel department concerning the benefits and
plans, including what benefits pregnant employees had.
Since there were a number of questions , the Director of
Personnel, Stephanie Smith, instructed training instructor
Paul Burnham to get a group of employees together and
hold a meeting to see what the problems were and to
provide answers . In the past , when planning a company
picnic or other company meetings or activities , Respondent
would have the supervisors pick employees to represent
their sections at meetings or serve as committee members,
and an effort was made to spread these duties around. As in
most situations, volunteers were welcomed. Smith testified
that she told Burnham to follow this procedure. A meeting
was held in early December at which a number of questions
were asked about the booklet and fringe benefits and about
some matters not in the booklet . Burnham made a list of the
questions which he could not answer and told the employ-
ees he would get answers for them at a later meeting.
Burnham reported to Smith who tried to get the answers
and had Burnham set another meeting. Some of the same
employees were at the second meeting, as well as some
individuals who asked to go . At this late December
meeting, Smith provided answers to a number of questions
and explained the booklet and fringe policies to the
employees.
FIBER MATERIALS 935
General Counsel alleged that Respondent violated Sec-
tion 8(a)(2) and (1) by selecting the employees to attend
these meetings which he termed grievance meetings and
alleged that the employees constituted an 8(a)(2) organiza-
tion since they represented other employees and the
meetings dealt with working conditions and fringe benefits
of the employees. General Counsel's brief urges that
Respondent knew of union organizational attempts as of
November 10 and that these meetings were an effort to
undermine the Union . General Counsel ignores the evi-
dence that the fringe benefit booklet and its provisions were
discussed in these two meetings and that the meetings were
called because of questions regarding these fringe benefit
policies. As will be shown below, the allegation regarding
organizational activities as of November 10 is erroneous
and the alleged violation is not found. The method chosen
by Respondent to gather and disseminate information was
the same as Respondent used in the past to establish
various committees.
There is no evidence that any organization to negotiate or
conduct grievance meetings was set up by Respondent, and
no one had knowledge of the organization named in the
caption of this case as a party in interest . No formal
organization existed and the informal group which met was
not present to negotiate or present grievances , but merely to
raise questions where Respondent's fringe benefit policies
were not made clear by its booklet. The fact that an
employer discusses its fringe benefit policies with employ-
ees or groups of employees does not establish that those
employees are acting as a labor organization.
Therefore, there being a lack of any evidence to establish
that Respondent established an 8(aX2) organization, I find
and conclude that the 8(axl) and (2) allegations pertaining
to this matter have not been established , and I will dismiss
the 8(a)(1) and (2) complaint allegations concerning Section
8(a)(2).
Dennis Bishop, who was employed by the Company for
15 months as a chemical technician, testified that in August
he and another employee became interested in the Union
and talked about it but decided to postpone doing anything
until after the personnel wage reviews took place. He said
they talked seriously about the Union in early November
but that the other employee was assigned to other duties
and said he could not continue with the Union . Bishop
called Textile Workers Union Business Agent Alexander
Anastosoff and said he had spoken with the technicians and
they were interested in a union . A meeting was arranged for
the night of November 25, at which, according to Bishop,
were employees John Thompson, Dave Guillerault, Jim
Bean, Leon Gruver, Tom Vigue, Bruce McMullen, himself,
and one other employee. Bishop testified that I or 2 days
later he told a friend of his, Supervisor Tom Zack, about his
union involvement and that Zack told him to be careful.
In the first week of December , two notices were posted at
the plant stating that a meeting was being held for all
hourly paid employees at 41 Franklin Street in Biddeford,
with the topic being "equal opportunities and treatment"
and "Abolishment of inequities for all." The notices
concluded "The law gives you the right to listen, speak and
vote without reprisal." Although the word union is not in
the notices, it seems apparent that they would be taken by
most as a notice of a union meeting . The fact that this
notice was posted was brought to Lachman's attention by
Personnel Director Smith who removed one of them from
the wall and, at Lachman's instructions, replaced it.
The union meeting was held on the night of December 4
with some 11 or 12 employees attending. According to
Bishop, there were some new people and some of the older
ones, including James Soulle, Ray LaJoie, Nelson Roy, Al
Levitt, Dave Collard, Jim Bean, John Thompson, Bob
Etzler, McMullen, and himself. Bishop stated that at this
meeting, he signed a union card and some of the others may
have done so too. On the following morning, Collard,
LaJoie, LeMay, Norman Facteau, and himself were in the
parking lot in front of the building handing out union cards,
mainly to the women weavers, trying to convince them to
take the cards in confidence , take them home, and sign and
return them . Bishop stated that Jim Gilman , who he says is
a supervisor in charge of shipping and receiving , observed
them passing out union cards. David Collard said that it
was possible that Gilman saw Facteau and himself while
they were in front of the plant on December 5 passing out
union cards since Gilman walked by about 15 feet away.
Collard said he did not recall passing out a card as Gilman
walked by and acknowledged that the cards were small and
were in his hands which were held together , and that it was
possible that no one could see that he had union cards.
LaJoie testified that he was passing out union cards and
that Gilman came by while they were passing the cards out,
but does not believe that one was handed to Gilman.
Gilman testified that on that day at the bottom of the hill,
he saw some four or five employees standing there,
including Facteau, Collard, and Dube, and thought it
strange because everybody else was walking up the hill. He
did not see what they were doing. Gilman testified that he
was handed a card , but did not recall whether it was in the
morning or in the evening , and threw it away without telling
anybody about getting the card.
Anastasoff testified that he and Bean stapled authoriza-
tion cards to self-addressed return, postage-free envelopes
and he was there as the shift was coming out in the evening
with Bean, Collard, Etzler, and several others. Anastasoff
said that as the shift came out, Gilman passed by and he
handed him a card, and Bean told him that the person was
a member of management.
Anastasoff was not sure of the time but thought it was
around 3:30 p.m. or so. The shift actually ends at 4:30 p.m.
There was further testimony that Gilman customarily
leaves about a half hour after the shift ends and would not
ordinarily have left until 5 p.m. It is possible he left after
4:30 p.m. and may have been handed a card by Anastasoff.
B. The Alleged Unfair Labor Practices
1. The discharge of Bruce McMullen
McMullen was employed by the Company approximate-
ly 5 months before his discharge on November 26.
McMullen was a heat-treat technician , who testified he
became aware of union activity around the plant through
James Bean around November 10, and that he expressed
his prounion sentiments to other employees . There is no
testimony that he ever expressed any prounion sentiments
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a supervisor or that a supervisor heard him say anything
about a union.
McMullen testified that on November 10 he overheard a
conversation between Supervisor Kimball and employee
Robert Doyon while they were standing near the carboniz-
ers, some 10 feet away. He said that Doyon asked Kimball
if he understood that the employees were pushing for a
union and Kimball replied "Well, they can forget about it
because Mr. Lachman would sooner fire everybody in the
plant and start fresh because he has done it before at
Graniteville."
Kimball testified that he never had any such conversation
with Doyon and did not make such a statement. Further,
Kimball said that from his knowledge of the noise in the
area of the graphitizers (carbonizers), it would be hard to
believe that anyone could hear a conversation 10 feet away
since the decibel range is very high because of the noise
produced by the turbines which supply power and air to
these high heat furnaces . Kimball is a staff engineer and a
supervisor.
Neither General Counsel nor Respondent called Doyon
to testify concerning this supposed conversation.
During rebuttal , former machinist John Thompson
testified that he had worked in the machine shop area,
which is reasonably close to the carbonizer machines.
Thompson said that the machinery was not extremely loud
and that you could hear the conversation of people who
were within 2 feet of you.
McMullen testified that he attended the November 25
union meeting and signed a union card and that on the
following morning, Doyon, who was his nonsupervisory
leadman, asked him about the meeting and who was there,
etc., but said he did not tell Doyon anything. He then
described several conversations between himself and Doy-
on as to whether the floor around the machinery should be
washed and when, with Doyon telling him that supervisor
Kimball wanted the floor washed then . He went to see
Kimball and told Kimball that he was disturbed about
washing the floors because Respondent had a night janitor
who should wash them and he understood the janitor was
making more money than he did , and did not see why he
should have to wash the floors. David Theis, the manager of
the department, was in Kimball 's office at the time and
asked McMullen if he was refusing to wash the floors.
McMullen said he was not refusing, but did not see why he
should have to do so when a janitor was making more than
he was. McMullen said that Theis told him they would go
down and talk to the personnel director about it. When they
walked in the office, Theis told Ms. Smith that McMullen
was terminated and to draw up his papers . There is no
dispute but that McMullen used some rough language there
in the personnel department, but Theis testified he did not
use any vulgar language and "kept his cool."
During cross-examination, McMullen used a series of
different words to avoid the idea that he refused to wash the
floors and claimed that he only wanted a reasonable
explanation because he thought he was being paid less than
the janitor for doing this work . He said it was never
adequately explained to him , and he was merely arguing
about doing the floors but not refusing to do them.
No matter what words he used, it comes down to the
point that, in the office with Theis and Kimball, McMullen
was refusing to wash the floors as he had been directed to
do by Kimball. In his affidavit, McMullen confirmed that
he, as well as leadman Doyon , had washed the floors
previously on a number of occasions. McMullen admitted
that, when he went into the office, he told Kimball that he
was mad, that Doyon was giving him a runaround , and that
the janitor was making more than he was . He admitted that
he told Kimball that he did not want to wash the floors, but
quibbled as to whether he said he would not wash them.
The General Counsel sought to use McMullen's testimo-
ny concerning his conversation with Doyon on November
26, as some evidence of company knowledge of McMullen's
union activities, but there is no agency relationship or
supervisory status of Doyon shown in this proceeding and
there is no evidence that Respondent knew or assumed that
McMullen had anything to do with the Union at the time of
his discharge.
Division Manager Theis testified to the poor work record
of McMullen as to absenteeism and tardiness and that
Kimball complained about it on a number of occasions and
sought Theis' approval to discharge McMullen on a
previous occasion. Theis rejected Kimball's recommenda-
tion saying he wanted to give McMullen another chance
but sent him to Personnel Manager Smith for a stiff
warning on his tardiness and absenteeism record . Addition-
ally, Respondent produced testimony that McMullen's
work record was sloppy insofar as maintaining the ma-
chines with the proper mix or amount of inert gases, which
control the atmosphere in the carbonizing machines. There
was further testimony that on one occasion President
Lachman went through the area and saw McMullen
reading a magazine while he was supposed to be working.
McMullen was told on that occasion that in addition to
monitoring gauges (which McMullen testified was his only
duties), that there were other things for him to do, and that
he had been left a list of things to do when he was not
monitoring the gauges and that he was not performing his
work properly.
Placing it all in context, it appears that Theis and Kimball
on November 26 were presented with the picture of an
employee with a poor work record who had been told he
would be discharged unless he improved, coming into the
supervisor's office and complaining about doing work
which he had been performing up to that time and telling
the supervisors that he was not going to perform it because
he was being paid less than the janitor, which was a wrong
assumption on his part. There was no evidence of any
knowledge by Theis or Kimball of any prounion sentiments
or activities by McMullen or that they were antiunion.
McMullen was a somewhat belligerent witness , and it is
clear that the discharge did not have any tones of
antiunionism in it but was a discharge for cause.
Further, I do not credit McMullen's testimony concern-
ing the supposed conversation of Kimball and Doyon on
November 10. It is clear from the testimony and from the
rebuttal testimony offered by the General Counsel that
McMullen would not have been able to hear the conversa-
tion of two individuals standing by the carbonizers when,
FIBER MATERIALS
according to his testimony, he was 10 feet from them. I
credit Kimball that the incident did not occur.
Lachman, after learning of the union activity in the plant,
gave strict, specific instructions to supervisors not to discuss
the Union with any employees or have anything to say
about it. The bulk of the testimony indicates that these
orders were followed. It is true that these instructions were
given after the time of this alleged 8(a)(1) incident, but I am
convinced that the incident did not occur based on the
individuals concerned in this matter and on the dissembling
manner in which McMullen testified. While neither side
called Doyon to testify, it is still incumbent on the General
Counsel to establish violations by convincing proof.
I conclude and fmd that the 8(a)(1) allegation of
paragraph 8(a) of the complaint has not been established,
and I will dismiss it. I further conclude and fmd that there
being an absence of any proven knowledge by Respondent
of any prounion sentiments or activities by McMullen and
there not being any proven antiunion proclivities by
Respondent, and it appearing that McMullen's discharge
was for cause, that the 8(a)(5) allegation as to McMullen
has not been established, and I will dismiss it.
2. The discharge of James Bean
James Bean, a master machinist, was employed at the
Biddeford plant from March 17 until his termination on
December 2. There is no question of Bean's competence or
ability as a machinist. Respondent maintains that the
position he occupied at Biddeford was a luxury it could not
afford when it did not receive promised contracts and in
essence was duplicative of its machine shop operations at
Graniteville. Originally the position was set up for machin-
ing of soft insulation products as an adjunct to the
production in Theis' process and fabrication development
department. Theis testified that Bean and Thompson were
hired to work on low density fiber forms and graph-foil
products in the carbon products division. As Bean testified,
he did get into other machining and worked on some hard
carbon carbon products.
Respondent's Vice President Hagge in April 1975 issued
a memo to all division heads, stating that machine shop
work was to be performed at Graniteville and that the
machine tools in the operating divisions, which would have
included Theis' department, were only for direct produc-
tion of the division's product as an "integral process in the
production." This memo was followed up after Bean's
termination by another memo on December 12 from Hagge
to all division managers, again reiterating that all machin-
ing work was to be done at Graniteville except for that
which was specifically authorized as production processing
support.
Theis testified that, in order to justify keeping both Bean
and Thompson at work, he went outside the terms of the
April memorandum and got additional work for the
machine shop at Biddeford so that Bean and Thompson
could be kept busy since he hoped that the product demand
would increase to the point which would justify keeping
both Bean and Thompson. There was no question but that
they had master machinists in the much better equipped
machine shop at Graniteville, where all types of machining
were performed.
937
After Lachman was presented with the figures and the
recommendations for immediate terminations by Black on
December 1, the first cut he made was to terminate Bean,
since he felt the position was a duplication of the machinery
operations at Graniteville. He retained Thompson, who was
less experienced, because he felt that the level of work to be
done at Biddeford with the limited machinery could be
performed by Thompson who was a lower paid employee.
There is no evidence that Lachman, who made the
decision to terminate Bean by abolishing his position, had
any knowledge of any prounion activities by Bean or knew
of any concerted activities by Bean. The layoff notice stated
that Bean's particular job function had been abolished, and
he was given letters of recommendation from the personnel
department, stating that he was an outstanding employee
with an excellent work record who displayed exceptional
ability and cooperation.
General Counsel claims Bean was discharged in violation
of the Act, because of Bean's concerted activities with
Thompson in meeting with Supervisors Theis and McAllis-
ter on December 1, and because of Bean's activities on
behalf of the Union.
Bean testified that he became interested in the Union
early during his employment with Respondent and that in
early November he talked to another employee about the
Union; and, finding they were both interested, they polled
the hourly employees in their building as to their interest in
a union. Additionally, Bean states they talked to Tom
Caffarella about the Union during the summer and fall.
While the complaint alleges that Caffarella is a supervisor,
it was stipulated during the proceeding that Caffarella was
an engineer and there is no evidence which establishes that
Caffarella was a supervisor.
According to Bean , he attended the union meeting on
November 25, with about seven other employees and, on
the following day, he talked about the Union in the
presence of Gary Strempeck. While Strempeck was referred
to by Bean or General Counsel as a supervisor, the evidence
established only that Strempeck, like Caffarella, was an
engineer who acted as a leadman in passing on orders to
technicians and did not possess genuine supervisory pow-
ers. The ratio of supervisors to employees also helps
establish the leadman, nonsupervisory positions of engi-
neers.
On December 1, pursuant to Bean's request, he and
Thompson met with Supervisors Theis and McAllister in
McAllister's office. Bean testified that they spoke about the
raise plans and policies, health insurance and insurance, the
profit-sharing plan, and wanted to know why it all was not
down on paper, as there was confusion among the employ-
ees as to what their benefits were. Bean said the conversa-
tion lasted between an hour and 15 minutes and an hour
and a half. He said they also discussed the relationships
between the employees and management.
While it was claimed that this action constituted concert-
ed activity, there was a statement made by Bean at one
point that he was not speaking for anyone other than
himself, and neither he nor Thompson had obtained
authority from the other employees to represent them in
this meeting. He testified that they were there to discuss the
situations in the plant which they thought needed discus-
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion, and that the message he sought to get across to Theis
and McAllister was that if things did not improve, he was
going to quit.
The General Counsel argued that this meeting consti-
tuted concerted activities which were then reported to
Lachman who thereupon decided to discharge Bean. There
was no testimony to support the assumption of a report to
Lachman and indeed testimony was adduced that no such
report was made. Thompson was not discharged but later
resigned . Theis testified that he considered the meeting an
ordinary meeting of employees and management and did
not report it to anyone above him but, in fact , left for a trip
on December 2, and was gone for some 2 weeks.
Concerning the meeting, Theis said that Bean and
Thompson talked to him about the pension plan, insurance,
and wage review systems on December 1; and, although he
tried to answer their questions, he did not have all the
information, and they asked him whether Mr. McAllister
would be willing to discuss the topics with them . He said he
was sure he would and arranged a meeting at which they
discussed pension plans , profit sharing, when these plans
would be set to paper, their wage review system, and that
employees wanted to see the review sheet before it was sent
in. McAllister said he would try to get more information for
them in regard to their questions . Theis was out of town for
2 weeks beginning on December 2, and did not tell
Lachman or anybody else of the meetings held with Bean
and Thompson, since these were ordinary meetings such as
he had held with other employees, and did not feel it was
anything out of the ordinary.
McAllister corroborated Theis' testimony about the
substance of the meeting with Bean and Thompson and
that it was a normal, ordinary meeting which he had no
reason to report to anyone and did not do so . He stated that
on December 2, he got a call from Personnel Director Smith
who said that because of the economic conditions of the
plant, they were eliminating the job of master machinist
and Bean would be laid off. McAllister testified that he
called in Bean at the end of the day, told him of the
decision , took him to the personnel office, and offered to
give him a letter of recommendation . He said he later gave
Bean a favorable recommendation over the phone for
another company and that he was unaware of any union
activity by Bean at the time.
McAllister as head of the carbon products division is
Theis' boss . He corroborated Theis that sales for the
division's products had not materialized in anticipated
demands and that they began taking other jobs to keep
their machine shop busy and that this was against the intent
of the April memo . He said that the elimination of the job
was no surprise to him and he had been busy scrounging
other work to keep the men on , in the hope that sales would
increase and they would be able to use them to their full
potential.
There is no evidence Theis, McAllister, or Lachman
knew of, or suspected, Bean's union sentiments or activity.
There is no evidence that the conversations between Theis,
McAllister, Bean, and Thompson were considered as
anything out of the ordinary or were considered activities
that irritated Respondent to the point that it decided to
terminate Bean.
It is clear from the economic posture of the Company as
demonstrated by the testimony, figures, and graph charts
that Respondent was in an economic bind and that the
elimination of the job, which was a duplicate in one sense of
the work of the machine shop operations in Graniteville,
was a legitimate move made by Respondent in trimming its
costs . This was a first step of many Respondent made in
trimming its amount of personnel.
The testimony on which General Counsel relies to
establish an 8(a)(3) or an 8(axl) discharge is insufficient to
do so . There is no evidence that Caffarella was a supervisor
or an agent or that he in any way relayed any prounion
sentiments of Bean to anyone else in the Company.
Accordingly, I fmd and conclude that the 8 (a)(3) and (1)
allegations regarding Bean's termination are not substanti-
ated and will dismiss them.
3. Three 8(axl) allegations concerning Caffarella
The complaint alleged in paragraphs 8(b), (c), and (d)
three 8(axl) violations by Thomas Caffarella whom the
complaint calls a supervisor . It was alleged that he created
an impression of surveillance by telling employees that an
employee had been fired for going to the union meeting and
also by informing employees that Respondent had a list of
union sympathizers . It was also alleged that he intimidated
employees by instructing them not to argue or they would
be termed troublemakers and fired like employee Bean.
General Counsel produced no evidence in regard to the
allegation concerning the first impression of surveillance in
paragraph 8(b).
It was stipulated that Caffarella is an engineer and there
was no evidence adduced to show conclusively that
Caffarella was a supervisor. Cafl'arella had no authority to
hire, fire, or effectively recommend such actions and any
recommendations he made for pay raises for technicians to
persons over him were independently investigated by
Supervisor Theis. Caffarella , at the most , was a conduit of
orders for employees he worked with, and, as an engineer,
he would have more insight into what needed to be done.
He assisted technical employees and acted as a lead person.
The lack of supervisory authority and the absence of any
agency authority by Caffarella is sufficient grounds for
dismissing complaint paragraphs 8(b), (c), and (d); and I
conclude and fmd that these 8(a)(l) allegations are not
established and must be dismissed.
Assuming arguendo that Caffarella was a supervisor,
General Counsel based allegation 8(c) on Robert Etzler's
testimony . Etzler testified that when he was hired, Person-
nel Director Smith introduced him to Caffarella saying
Caffarella was to be his boss . Smith denied this testimony,
and Caffarella, who had left Respondent months before the
hearing, was not a witness . Etzler stated that on November
26, with Couver, he asked Caffarella if he could fmd out
whether there was a list of the people who attended the
union meeting since he had been told that somebody had
turned in their names . He said that Caffarella came back
and said that he looked over a secretary's shoulder and had
seen a list with Etzler's name but that Couver's name was
not on the list.
FIBER MATERIALS
Even if we were to credit Caffarella is a supervisor, this
testimony would not establish that there was a list of union
names.
Etzler said that during the first week of December he
heard supervisors and engineers being called to McAllis-
ter's office and asked Caffarella what it was all about. He
said that Caffarella replied they were being told not to have
anything to do with or say about union activities.
John Thompson, in addition to confirming the conversa-
tions he and Bean had with Theis and McAllister in
McAllister's office, said that on December 16, after he had
an argument with Couver, Caffarella told him to cool it and
stay out of arguments or he would be termed a troublemak-
er like Bean . This statement , if it occurred as Thompson
testified, would have happened 2 weeks after Bean's
discharge and a few days after Respondent received the
charge concerning Bean . Caffarella had left Respondent's
employ several months prior to the hearing, and the
statement at best is ambiguous and does not clearly refer to
union activities.
As stated above, there is no proof of agency or superviso-
ry status of Caffarella; and, secondly, these allegations are
not clearly violative in their context, and I will dismiss the
allegations in 8(b), (c), and (d) of the complaint.
4. Two 8(a)(1) allegations concerning Horst
Gigerenzer
Raymond Lajoie testified that on December 16 the head
of his department, Dr. Roger Pepper, had called the
employees together and informed them of the fire at the
Graniteville plant and that they had lost a contract and the
financial situation was grave . Pepper said they would
probably have to lay off two employees in this department.
After the meeting, Supervisor Gigerenzer called Lajoie
aside and said he had been informed that Lajoie was an
agitator or instigator and that unless he changed his
attitude he would not be working there anymore, and that
Lajoie had seen some past examples. Lajoie said he
mentioned Jim Bean , and Gigerenzer agreed and hoped
Lajoie got the message because they did not want to lose
him.
Gigerenzer testified that his lab engineer, Strempeck, had
been getting upset with Lajoie for about 2 weeks because
Lajoie was not following Strempeck's directions concerning
equipment and tests and was not cooperating. He said that
Strempeck had complained to him and he had observed
Lajoie's uncooperative attitude . Because of the small size of
the staff and the confined area and the necessity to get
along, he called Lajoie aside after the meeting with Dr.
Pepper. He told Lajoie to stop instigating problems and be
more cooperative, but said nothing concerning the Union.
There is nothing in Lajoie's testimony concerning the
Union except for the common connotation given the word
instigator. Gigerenzer is a naturalized citizen and speaks
with a decided accent and it is possible, if not probable, that
his choice of words was made without knowing the special
connotation given to "instigator" in union organizational
situations.
Lajoie admitted that he did not get along with Gigerenzer
and that they had a personality conflict and that he did not
agree with the policies Gigerenzer set out and he left
939
Respondent voluntarily. I credit Gigerenzer that he said or
intended nothing about the Union in his remark to Lajoie.
It is probable that Lajoie, being involved with the union
organizational efforts, was suspicious of anything said by a
supervisor and interpreted Gigerenzer 's statement in a
manner not meant. I do not find that Respondent violated
Section 8(axl) of the Act by the statement of Gigerenzer to
Lajoie.
During the hearing , the complaint was amended to allege
that Supervisor Gigerenzer violated Section 8(a)(1) of the
Act by telling employees not to talk about the Union or that
disciplinary action would be taken against them . Employee
David Collard testified that during the first week of
December Gigerenzer came into the room where he, Lajoie,
and Strempeck were working and told them to stop their
bitching and not to talk about the Union or raises anymore
or disciplinary action would be taken. In his affidavit, given
less than a month after the conversation , Collard stated that
Gigerenzer told the three of them that he was tired of their
bitching and that disciplinary action might be taken if they
kept on. Significantly, the word union was not mentioned in
the affidavit and General Counsel admitted that the word
first appeared during the hearing in this matter in a
conversation with Collard and he thereafter moved to
amend the complaint.
Gigerenzer specifically denied making any remark about
the Union in his statement to the employees but said he did
tell them to quit their bitching. This testimony in effect
corroborates his testimony concerning the conversation
with Lajoie, that he was having personnel problems in the
lab with Strempeck and Lajoie, that technicians Lajoie and
Collard were giving engineer Strempeck a bit of a hard
time, and that Strempeck had complained that it was
difficult to get anything done efficiently because they were
always arguing with him about the way to do it. Gigerenzer
said he finally got sick of the problems and told them that
business was getting bad, that they should be interested in
getting the job done, and the jobs were difficult and they
had limited facilities, and the only way to do it was for them
to stop bitching and moaning about the work and get the
job done. Gigerenzer specifically denied saying anything
about a union in that conversation.
The word "union" seems to be an afterthought on
Collard's part, since it was not included in the affidavit and
apparently popped up at the time of the hearing following
Collard's layoff.
I credit Gigerenzer that this statement had to do with lab
personnel problems and attempting to get the personnel to
work better together and had nothing to do with any union
activities of these employees.
I therefore dismiss complaint allegation 8(e) and the
amended allegation which should be 8(h).
5. An 8(axl) allegation concerning Supervisor
Theis
The complaint alleges that, on December 17, Supervisor
Theis created an impression of surveillance by informing
employees that President Lachman had inquired from him
as to whether certain employees were troublemakers.
John Thompson said that on Wednesday in mid-Decem-
ber, following Theis' return from his trip, he told Theis he
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had placed a poster on the bulletin board informing
employees that there would be a meeting and told him
about a problem he had had with Couver where apparently
there had been an argument between them. He stated that
they discussed Bean's termination and Theis said he was
upset that Bean was let go . Thompson asked Theis if he had
ever been called to the front office in regard to Bean's or his
character or actions and that Theis replied that on a
Monday, before he had left for his trip, he was called to the
office and questioned as to whether Bean and Thompson
were troublemakers, and asked the front office for clarifica-
tion as to what they meant by troublemakers. Nothing else
was adduced on this testimony nor was it established who
in the front office had allegedly asked Theis such a
question.
Theis specifically denied ever making such a statement to
Thompson. Theis stated that the only problem he knew of
was the problem of people borrowing tools and there being
some dissension over the tools not being returned, which
gave rise to irritation among employees.
I will dismiss complaint allegation 8(f) since the evidence
establishes no direct tie-in, either to the Union or Lachman
as the complaint alleges, and I credit Theis that he made no
such statement. I believe that if anything was said about
troublemakers, it was in a completely different context.
6. The layoffs of Bishop and Collard
General Counsel does not question the economic necessi-
ty for layoffs which the Company established by its
evidence. In regard to the layoffs of Bishop and Collard,
General Counsel asserts that they were improperly picked
for layoff because of their union membership or activities
and not for the reasons advanced by Respondent. General
Counsel stresses they had more seniority than the retained
employees in the department while acknowledging that
Respondent stated that in questions of economic layoff, it
took into account the employee rating system, performance
records, seniority, and the employee's experience and skill.
Collard and Bishop worked in the Company's new
product division, which is under Dr. Roger Pepper. On
December 2, Kenneth Black met with Dr. Pepper and gave
him a short financial analysis of the division, pointing out
that the cost of the division ran about $2,000 a week while it
was bringing in about $1,000 a week, and that staff
reductions would be needed to bring the division in line
because of the Company's bad financial picture . Between
December 2 and 8, Dr. Pepper learned the Company had
not received the $800,000 Air Force contract, and Dr.
Pepper met with the division employees and said the
Company needed their full support because it was not in
good financial shape. He told them that the division's
income was below its expenditures and that it was probable
that they would have to release two employees. In his next
meeting with Black, Pepper insisted that he could not
release three technicians and an engineer as Black recom-
mended because it would disrupt the research capabilities
of the department and essentially the Company counted on
developing new products to grow. Pepper said he would
release two technicians and ask Lachman for an additional
overhead support to make up the difference between their
intake and outgo. As recited above, Dr. Pepper repeated
this message when he told the division employees of the loss
of the Graniteville plant. He also testified that despite some
important engineering breakthroughs, sales of the new
products had not met their expectations and, as of the time
of the hearing, had not met his earlier anticipation.
During the latter part of December, Pepper finalized his
report and request to Lachman, stating that he would let
two technicians go but asking for overhead support for the
new products division to enable it to maintain its research
capability in its efforts to develop new products.
The new products division had two laboratories, a
chemical process laboratory under Supervisor Thomas
Zack with engineer Nelson and technicians Bishop, Lenox,
and Facteau. Facteau had previously worked for the
Company and had been a mechanical laboratory techni-
cian in the new products division.
The mechanical laboratory was under Supervisor Horst
Gigerenzer with engineer Gary Strempeck and technicians
Collard and Lajoie. Lajoie quit around December 19.
On December 29, Pepper met with Gigerenzer and Zack
and explained that he was planning to let Collard and
Bishop go. He testified that Gigerenzer objected to letting
Collard go, stating that Collard was a competent, hard
working man and was the only technician left in his lab.
Zack objected to letting Bishop go, but neither Zack nor
Gigerenzer offered him any alternatives.
Pepper testified that he decided to layoff Bishop rather
than Lenox because Lenox had 3 years of college work
towards a bachelor's degree in chemical engineering and
was more familiar with the laboratory work and understood
a number of the processes involved in the research being
done. Bishop had a diploma in marine science, which was
not particularly related to the work. Both of them had been
employed at the same time and because of the greater
capability of Lenox and Lenox's higher performance
ratings, he decided to keep Lenox over Bishop.
Dr. Pepper stated he decided to retain Facteau rather
than Collard because Facteau had been trained in both the
chemical and mechanical laboratories had had some
training at the Maine Vocational Technical Institute in
heating and ventilating which he considered related to work
because Facteau had an understanding of gas flows.
Collard had a high school degree. Because of Facteau's
ability to operate in both areas and his greater capability,
he decided to keep him although he had less seniority than
Collard.
Pepper explained to Collard and Bishop why he had
chosen them for layoff and he said they seemed to
understand his reasons. He told them that the decision to
lay them off had been the hardest decision that he had to
make and offered to give them excellent references. The
Company attempted to help them get other work and gave
them good references. Neither Collard nor Bishop ques-
tioned Pepper's integrity.
Dr. Pepper testified that he had no knowledge of any
interest by Bishop or Collard in a union. Indeed, from the
testimony, all of the technicians had signed union cards
prior to the layoffs and Facteau had passed out union
cards.
Dr. Pepper's reasons for his layoff selections appear to
be in conformance with Respondent's layoff policy and
FIBER MATERIALS 941
meet what would appear to be a normal method of making
a selection based on the exigencies of the laboratories at
that time. It is entirely possible that much deeper cuts might
have been made throughout the Biddeford plant if the
Graniteville plant had not burned down in the interim.
C. Analysis
General Counsel produced a number of facts which,
when seen from a myopic viewpoint, would appear to make
some of Respondent's actions questionable and perhaps
violative. However, when all of the facts are viewed in
context, it appears clear that Respondent was faced with a
number of problems and reached decisions which were
entirely consonant with the facts then before it. General
Counsel's assumptions of supervisory status of some
employees in asserting knowledge of union activities and
8(a)(l) violations were not based on facts. Similarly, the
8(aX2) allegation was based on a paucity of any firm
evidence. Respondent was not replying to a union cam-
paign when it held the two meetings, but was attempting to
answer its employees' questions in regard to the fringe
benefit plans it had described in a recently distributed
pamphlet. Not everything can be anticipated in issuing such
a booklet. In order to get everything cleared at once, and
rather than having isolated questions dribble in, Respon-
dent's personnel manager, Stephanie Smith, had a nonsu-
pervisory employee set up a meeting of employees to secure
the questions and give some answers. When the questions
came in broader scope than the employee had been able to
prepare himself for, the questions were researched by
Stephanie Smith and a second meeting was held, at which
answers were given to a number of the questions. This
setting-up of meetings of employees does not make such
meetings or the employees who attend them a labor
organization de facto. There was no organization such as
was named in the complaint. Therefore, there being no
8(a)(2) organization and no actions which violated Section
8(aX2) in this regard, those allegations must be dismissed.
2 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,
•onclusions, and the recommended Order herein shall, as provided in Sec.
The financial plight in which Respondent found itself is
one which a number of companies in this area had
experienced due to contract problems and government
budget and spending problems in this period of inflation.
The decision to discharge McMullen clearly was based on
nothing more than McMullen's refusal to do his job coming
on top of a poor work record. McMullen was somewhat
truculent in his testimony and exhibited an evasiveness and
dogmatic approach to things in the use of words that made
it clear that Respondent was well within its rights for
discharging him for the reasons it gave.
The selections of Bishop and Collard for layoff were
strictly on an economic basis and the justifications for it
were amply provided by Respondent. The fact that a
number, if not most, of the male employees at the plant,
including all the technicians in the two laboratories, had
signed union cards, makes it harder to perceive why
General Counsel asserts that antiunion motivation went
into the selection of these two for layoff. President
Lachman's message to the supervisors not to interfere with
any organizational efforts of the employees and not even to
say anything to the employees about unionization efforts
was clear, both to the supervisors and was known to some
of the employees who testified.
Bean's layoff by abolishment of his job was a sound,
economic move in the circumstances and was based on
company policy concerning machinery operations.
Accordingly, having found that Respondent did not
violate Section 8(axl), (2), and (3), as alleged in the
complaint, I hereby dismiss the complaint in its entirety.
Upon the basis of the foregoing findings and conclusions,
I hereby issue the following recommended:
ORDER2
The complaint and charges in this matter are hereby
dismissed in their entirety on the basis that the allegations
of the complaint have not been proven.
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.