Forster Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1969

175 N.L.R.B. 185 (N.L.R.B. 1969)

FORSTER MANUFACTURING CO., INC 185
Forster Manufacturing Company, Inc. and Local
405, International Brotherhood of Pulp, Sulphite
and Paper Mill Workers , AFL-CIO. Case
1-CA-6386
April 1, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 18, 1968, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain alleged unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed an answering brief to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.
We agree with the Trial Examiner that the
Respondent did not engage in any independent
violation of Section 8(a)(1) of the Act, nor did it
violate Section 8(a)(3) in discharging employee
Gordon McBean 2 However, we do not agree with
the Trial Examiner that Respondent did not
discharge Cuvier Kittredge on June 5 in violation of
Section 8(a)(3) and (1) of the Act.
As more fully detailed in the Trial Examiner's
Decision, on September 22, 1967, the Union was
We hereby correct the Trial Examiner 's inadvertent error in in 8 of his
Decision and substitute June 4, 1968, for February 4, 1968, as the date on
which McBean ' s wife called Foreman Swain ' s home All dates herein are
1968, unless otherwise specified
'McBean testified that on April 25, the first day of the strike, supervisor
Swain had said to him "I see some of your friends are out there on the
line, and are you going outs" and that when he responded that he didn't
know Swain then said "Well, you know , if you go out this time we - 1
will have to turn around and hire somebody else to put on your job If we
do that, there ain't no sense in keeping you around " Swain testified that
he was unable to recall a conversation with McBean on the date in
question, but denied that he had threatened to hire someone to fill
McBean's place if he joined the picket line The Trial Examiner apparently
credited Swain ' s denial , but went on to observe that even if the statement
had been made , it would not, in his opinion, constitute a violation of the
Act The General Counsel excepted to the latter finding However, in view
of the fact that the Trial Examiner credited Swain's denial that he had
made the statement , we find it unncessary to pass upon the issue
certified as bargaining representative of
Respondent's production and maintenance
employees. Contract negotiations ensued between
the parties without agreement being reached.
Pursuant to vote by the unit employees, an
economic strike commenced on April 25. The
employees, in the belief that Respondent had
modified its position, returned to work on May 6
and 7 A new strike began on May 8 when
expectations did not materialize.
On May 24 Respondent advised each striking
employee by letter that:
... Commencing May 31, the jobs of those who
have failed to report to work will be considered as
open for replacement, the Company will consider
itself free to engage replacements on a permanent
basis, Group Insurance of such employees will be
discontinued and rights to Vacation Pay will be
governed strictly by the Company's published
manual pages ....
George Lambertson, an International
representative of the Union, met with the striking
employees on May 28 to discuss the Respondent's
letter. As a result of this meeting, he met with the
Respondent's representatives on May 29. He
testified that he was told by Respondent that
employees who returned to work by May 31 would
be reinstated and that those employees who "did not
come back, they could come back, but there was no
guarantee that their job would be there." That
evening Lambertson related to the striking
employees his conversation with Respondent. The
employees thereupon voted to continue the strike.
However, the employees met again on May 30 when
a majority voted to abandon the strike and return to
work. There is no indication of the number who
returned to work on May 31.
Cuvier Kittredge was employed by Respondent in
December 1965 and since that time has worked as a
hemple operator in Respondent's lathe room.
During this period Kittredge has been active in the
Union as an officer and trustee and a member of its
negotiating committee. Among the employees in the
lathe room who struck, Kittredge and Theodore
Knox were apparently the only ones who did not
return to work on May 31. There is some
explanation in the record for Knox's failure to
report on May 31, but none for Kittredge. On the
following day, June 1, Kittredge suffered a
recurrence of a malady (his lungs filled with liquid
and his legs swelled) which in the past caused him to
miss work.' On Monday, June 3, his condition not
having improved, he called Vernon Romanoski,
whom he considered to be his immediate supervisor,'
informed him of his condition, told him that he did
'Kittredge testified that he had missed work for a period of 12 weeks in
1967 because of the same ailment, that when he finally returned to work,
he was not required to furnish any medical certificate or slip showing the
reason for his absence
The Trial Examiner found it unnecessary to resolve Romanoski's
supervisory status, which appears to be in question Kittredge testified that
175 NLRB No. 29
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not know when he would return to work, but that he
"would be in touch." Romanoski testified that he
informed his supervisor Wayne Fletcher of
Kittredge's call and that Fletcher "acknowledged the
fact that the phone call was made." On June 5,
according to Kittredge's undisputed testimony,
Romanoski called him and told him that "there was
three notifications on the office desk for him to call
me and tell me that I had been discharged."
Romanoski substantially corroborated Kittredge,
testifying that Fletcher had had occasion to discuss
with him Respondent's letter of May 24, and told
him that "anybody that wasn't in to work May 31
was considered terminated and that included
Kittredge." Romanoski further testified that
Kittredge was not replaced until some time the
following week.
About a week after his last conversation with
Romanoski, Kittredge received a call from a fellow
worker, and member of the Union's negotiating
committee, who asked Kittredge to come to the
negotiating meeting between Respondent and the
Union at the local American Legion hall. Kittredge
did so, and as he sat in an anteroom, adjacent to the
room where negotiations were in progress where he
was able to hear and recognize the voices of some of
the negotiators, he heard Union representative
Lambertson ask about Kittredge's discharge.
Kittredge then heard Respondent's vice president
Hodgkins respond that Kittredge had not been
discharged, and that as soon as he came back in and
brought a doctor's slip he would be "okay."
As the result of the overheard conversation
Kittredge, on Friday, June 14, went to Dr. C. A.
Mitchell to find out if he could return to work and
obtain the suggested slip. Dr. Mitchell, however,
advised him not to go back but to see him again in
a week. When Kittredge returned on June 21 Dr.
Mitchell advised him that he should change his
employment but, if he would not do so, he might as
well return to work.
On Monday, June 24, Kittredge reported to the
plant. He found that his timecard was not in the
rack, sought out Romanoski and informed him of
this fact. Romanoski gave him a work slip, assigned
him to a machine, and said he would take care of
the timecard later. Fletcher, however, who met
Kittredge on his way to start working, told him that
he could not work until he brought in a doctor's
slip. When Kittredge told him that he had a slip
from Dr. Mitchell, Fletcher expressed some doubt
as to whether a slip from Dr. Mitchell would be
acceptable to Respondent but, apparently on
during many absences in the past he normally reported by telephone eithei
to the lathe room foreman Wayne Fletcher, or Romanoski , or the office
secretary He also testified that Romanoski regularly gave him work
assignments and had excused him from work early on many occasions
Romanoski did not claim that he was a supervisor but testified that he is
leadman in the lathe room Although we would be inclined to fin
Romanoski to be a supervisor , we do not find it necessary to pass on the
issue since we conclude that whatever action Romanoski took with respect
to Kittredge was at the direction of Foreman Fletcher
consulting with the front office, returned with the
information that Dr. Mitchell would be acceptable.
However, when he examined the slip Kittredge gave
him, his immediate response, according to
Kittredge, was "I don't think they will accept this
because it does not cover May 31." Again he
apparently sought advice on the matter; he returned
to say "That's right, they won't accept that "
The Trial Examiner found it unnecessary to
determine whether Kittredge had actually been
discharged on June 5, or the motivation therefor,
since in his view if there had been a discharge it was
"rescinded" by the agreement of the parties, and
even assuming that "the earlier purported discharge
was discriminatorily motivated, it was not
effectuated." As to the Respondent's refusal to
reinstate Kittredge on June 24, the Trial Examiner
concluded that the General Counsel had not
established that the Respondent's actions were
discriminatorily motivated.
Contrary to the Trial Examiner, we are of the
opinion, and we so find, that Kittredge was in fact
discharged on June 5.5 A discharge of an economic
striker is "effectuated" when he is told he is
discharged, and while the effects of such unlawful
conduct may be subsequently undone by a bona fide
offer of reinstatement, the discharge when it
occurred is none the less a violation of the Act.' It is
true, of course, that an employer whose employees
are engaged in an economic strike may, without
violating the Act, serve notice on his striking
employees that he will replace them unless they
return to work by a certain date.' He may replace
them in the event they fail to do so. Respondent's
letter of May 24 in fact warned the striking
employees of that very consequence.
There is no question, however, that on June 5 a
discharge was intended. Thus the evidence shows
that Romanoski, on instructions from foreman
Fletcher, informed Kittredge of his discharge, and
Respondent never offered the testimony of Fletcher
to dispute that fact. Certainly Kittredge believed it
for he apparently advised the Union thereof, and the
Union subsequently raised the matter at a
bargaining session. Romanoski gave no reason for
Kittredge's discharge other than his failure to report
for work on May 31. It is true that Respondent's
vice president, Hodgkins, denied that Kittredge had
been discharged when the matter was subsequently
raised during a bargaining session, but there is
nothing in the record to show that Hodgkins had
personal knowledge of Fletcher's actions on June 5.
Indeed, it is undisputed that when Kittredge finally
sought reinstatement, after his illness, of which
Respondent was advised, it was denied him because
'Although the complaint only alleged the June 24 denial of reinstatement
to Kittredge as a violation of the Act and not his discharge on June 5, it is
clear that the General Counsel considered the June 5 discharge as relevant
to the issue and that Kittredge 's discharge on June 5 was fully litigated
'Valley Die Cast Corp. 130 NLRB 508, 515, affd 303 F 2d 64 (C A 6),
Associated Wholesale Grocery of Dallas, Inc. 119 NLRB 41
'N L R B v Wooster Division of Borg- Warner Corp, 236 F 2d 898,
905-906
FORSTER MANUFACTURING CO., INC.
he had failed to return to work on May 31 and had
failed to excuse his absence. The interposition of the
same reason on June 24 for denying Kittredge
reinstatement strengthens our belief that Kittredge
was in fact discharged on June 5. A discharge of an
economic striker for such reason is a violation of
Section 8(a)(3) and (1) of the Act." As a discharged
economic striker Kittredge was entitled to
unconditional reinstatement on June 24 when he
first requested reinstatement.9
Even assuming the discharge of an economic
striker, which is a clear violation of the Act, may be
"rescinded," it cannot be done to the prejudice of
the discharged employee Hence, Respondent cannot
rely on the claim that Kittredge had been replaced
before his discharge on June 24.'° However, we
cannot accept the Respondent's contention, or the
Trial Examiner's finding, that in fact there had been
a rescission of Respondent's unlawful discharge of
Kittredge. Kittredge was not reinstated. Instead,
Respondent conditioned his reinstatement on
Kittredge's furnishing an excuse acceptable to the
Respondent for his failure to return to work on May
31, the day before the recurrence of his illness. The
imposition of such condition is inconsistent with a
claim that Respondent was in fact rescinding its
earlier action. We find, therefore, that by imposing
a condition to reinstatement which was clearly
violative of Kittredge rights as an economic striker,
and refusing to reinstate Kittredge on June 24, the
Respondent also violated Section 8(a)(3) and (1) of
the Act. It is immaterial that no showing of
discriminatory intent on the part of the Respondent
was made."
AMENDED CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Cuvier Kittredge on June 5,
1968, and by failing to reinstate him on June 24,
1968, Respondent has violated Section 8(a)(3) and
(1) of the Act.
4. Respondent has not, by discharging Gordon A.
McBean, on June 5, 1968, engaged in conduct
constituting unfair labor practices or violative of the
provisions of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
'Valley Die Cast Corp, supra , Association Wholesale Grocery of Dallas.
Inc , supra
'Valley Die Cast Corp , supra
"Valley Die Cast Corp, supra
"Titan Metal Mfg, Co. 135 NLRB 196, 214
The Remedy
187
Having found that the Respondent engaged in
certain unfair labor practices , we shall order that it
cease and desist therefrom and take certain
affirmative action to effectuate the policies of the
Act.
It will also be ordered that the Respondent offer
to Cuvier Kittredge immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges and make him whole
for any loss of earnings suffered by reason of the
discrimination against him , by payment of a sum of
money equal to that which he would normally have
earned as wages from June 24, 1968, the date on
which Kittredge was physically able to return to
work , to the date of the Respondent ' s offer of
reinstatement, less his net earnings during said
period ( Crossett Lumber Company , Inc., 8 NLRB
440) and in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum,
as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Forster Manufacturing Company, Inc., Waterville,
Maine, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or otherwise
discriminating against them in regard to their hire,
tenure of employment, or any other term or
condition of employment, because they engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist Local 405, International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
2. Take the following affirmative action to
effectuate the policies of the Act:
(a) Offer Cuvier Kittredge immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of pay which he may have suffered as a
result of the discrimination practiced against him, in
the manner set forth in the section of this Decision
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled "The Remedy."
(b) Notify Cuvier Kittredge if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security
payments records, timecards, personnel records and
reports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Waterville, Maine, copies
of the attached notice marked "Appendix."' 2 Copies
of said notice, on forms provided by the Regional
Director for Region 1, shall, after being duly signed
by the Respondent's representative, be posted by the
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 customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 1, in
writing, within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations not found herein.
"In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT discharge employees or otherwise
discriminate against them in regard to their hire, tenure
of employment, or any other term or condition of
employment, because they engage in concerted activities
for the purposes of collective bargaining or other
mutual aid or protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or
assist Local 405, International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer to Cuvier Kittredge immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole in
the manner provided in the Board's Decision for any
loss of pay he may have suffered as a result of our
discrimination against him.
WE WILL notify Cuvier Kittredge if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
above-named or any other labor organization.
Dated By
FORSTER
MANUFACTURING
COMPANY, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge and New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Waterville, Maine, on September 26,
1968, on the complaint of General Counsel, and the
answer of Forster Manufacturing Company, Inc., herein
referred to as Respondent.' The complaint alleges
violations of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. The parties
waived oral argument and briefs filed by the General
Counsel, Respondent and Charging Party have been
carefully considered. Decision on Respondent's Motion to
Dismiss, at the close of General Counsel's case-in-chief,
was reserved. It is disposed of in accordance with my
findings infra.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
It is undisputed that Respondent is a Maine
corporation, with its principal office and place of business
in the city of Wilton, Maine (herein referred to as the
Wilton plant), where it is engaged in the manufacture,
sale, and distribution of wood and plastic products.
Respondent annually, a representative period, has a direct
inflow of materials, including paint, laquer and plastic,
The charge herein was filed on June 27, amended on August 5, and
amended on August 13, all 1968 . A complaint issued on August 16, 1968.
All dates herein are 1968 , except where otherwise indicated.
FORSTER MANUFACTURING CO., INC.
transported in interstate commerce from States other than
the State of Maine, in an amount in excess of $50,000.
Respondent annually, a representative period, has a direct
outflow of wood products, transported in interstate
commerce to States other than the State of Maine, in
excess of the value of $50,000. The complaint alleges, the
answer admits, and I find that Respondent is engaged in
commerce, and activities affecting commerce, within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 405, International Brotherhood of Pulp, Sulphite
and Paper Mill Workers , AFL-CIO, herein referred to as
the Union , is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
The issues raised by the pleadings and litigated at the
hearing are: (1) whether Respondent engaged in conduct
constituting interference, restraint and coercion, in
derogation of the provisions of Section 8(a)(l) of the Act,
by (a) threats of discharge if employees remained
members of the Union or participated in union activities,
allegedly uttered by Foreman Swain on February 1, April
I and April 25, or (b) interrogation of employees
concerning their union activities, by Foreman Swain, on
April 1 or April 25, or (2) whether the discharge of
Gordon A. McBean, on June 3, or the discharge of Cuvier
A. Kittredge, on June 24, were, in either event,
discriminatorily motivated, thus violative of the provisions
of Section 8(a)(3) of the Act.
Respondent acknowledges the discharges of McBean
and Kittredge, and asserts they resulted from absenteeism,
were violative of a plant 2-day absentee rule, and were for
good cause. Respondent denies the commission of any
unfair labor practice.
Supervisory Personnel
The complaint alleges, the answer admits, and I find
that Stephan M. Swain and Wayne Fletcher, as foremen,
are agents of the Respondent and supervisors within the
meaning of Section 2(11) of the Act.
The complaint alleges, the answer denies, and I Find it
unnecessary to resolve whether Vernon Romanoski,2 an
alleged foreman, is, in fact, an agent of Respondent or a
supervisor within the meaning of Section 2(l) of the
Act.'
'Misspelled Romanski in the complaint.
'Romanoski appeared as a witness , called by General Counsel. His
duties, at the time of hearing , were those of a leadman-mechanic on the
second shift in the lathe room . He described his former duties as those of a
foreman set-up man , at which time he did select individuals for
assignments to various duties as machine operators . He, admittedly, has
been a member of the union negotiating team for an indefinite period of
time, and was a participant in the strike . His capacity , as a representative
of management , is of importance solely in relation to the receipt of a
telephone call from discharges Kittredge , on June 3 . Thus, for reasons set
forth infra, I find it unnecessary to resolve this basic question.
Background
189
The facts set forth under this subsection are undisputed.
George Lambertson, an International representative of
the Union, related that he aided in the organizing effort,
conducted at Respondent's plant during the summer of
1967. Pursuant to a consent election agreement, an
election on September 14, 1967, resulted in a tabulation
reflecting 306 eligible voters, of whom 142 voted in favor
of and 127 against the Union.' On September 22, 1967,
the Regional Director issued a Certification of
Representative, having found that the Union had been
selected as the collective-bargaining representative of the
production and maintenance employees. .
Lambertson related that contract negotiations, which
commenced in December, 1967, reached an impasse about
April 20, and, as a result, a strike vote ensued. A strike
commenced on Thursday, April 25, and ended on
Monday, May 6, predicated upon acceptance of
unspecified proposals which had been made by
Respondent. The following day, May 7, further
negotiations resulted in a new crisis, as a result a new
strike commenced on Wednesday, May 8, which continued
through Thursday, May 40.
On Friday, May 24, over the signature of C. M.
Morgan, vice president and acting general manager,
Respondent advised each of the unit employees,
inferentially at least each employee who was on strike, by
letter, that: The Company found it necessary to maintain
production levels; striking employees' jobs had been held
open, to permit return of the strikers when the strike was
called off; some replacements had been retained on a
temporary basis, with that understanding, to permit, inter
alia, adjustment upon return of strikers without loss of
benefits, including continuance of a group insurance
program; that employees were urged to return by May 31;
that as to those employees who failed to return
commencing May 31, the Company would seek
replacements on a permanent basis and the group
insurance of the employees who failed to return would be
discontinued; that vacation pay would be governed by
provisions contained in the company manual; that under
the group insurance policy conversion could be made by
employees whose insurance was discontinued, upon proper
application.
Inferentially about May 28 or 29, the union
representative met with the striking employees and a
discussion of the Company's threatened action ensued.
The following day, the union representative met with
Respondent's representatives, verified the fact that if the
employees returned to work on May 31 everyone would
retain their job, that the insurance would be kept in force,
that vacations would be provided in accordance with the
terms of a pending new agreement. A further meeting
between the union representatives and unit employees
ensued, inferentially on May 30. As the result of a vote, at
the membership meeting, the strike was terminated and
most of the employees returned on Friday, May 31.
On June 5, the Union filed a charge alleging violations
of Section 8(a)(5), (3), and (1). Subsequently, on June 27,
having entered into a collective-bargaining agreement, the
parties advised the Regional Director of their desire to
withdraw the pending charges. While somewhat obscure,
the Regional Director either dismissed the charges without
prejudice, or permitted a withdrawal without prejudice. I
find the difference in terminology of no consequence. The
'I have taken official notice of Case I-RC-9717.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initial charge in the instant case was filed on the same
date.
The collective-bargaining agreement, entered into on
June 27, was made retroactive to June 1. It contains, inter
alia, a paragraph identified as No. 51, subsection (c)
thereof provides that if an employee is absent for 3
working days without good cause or fails to notify the
personnel manager of such good cause, that he is subject
to disciplinary action, including termination It is
undisputed that the previous rule provided equivalent
conditions on the basis of 2, as distinguished from 3,
working days.
Interference, Restraint, and Coercion
The allegations of the complaint are twofold, that (a)
Foreman Swain, on February 1, April 1, and April 25,
threatened employees with discharge, and (b), that on the
latter two dates, the same individual interrogated
employees concerning their union activities. The only
witness for General Counsel, relative to these activities, is
the alleged discriminatee Gordon A. McBean.s The
evidence relative to these events is considered seriatim, by
date
February I
It is undisputed that McBean commenced employment,
at Respondent's plant, about November 1964, as a
floorman and, inferentially, at all times was under the
supervision of Foreman Swain, who was in the finishing
department. A portion of McBean's duties were to obtain
paint, in cans, and distribute it to other employees.
McBean asserted that, in February, he was in the paint
shed when Swain approached and asked him what he was
doing. McBean inquired as to his meaning , and Swain
responded "Well you ain't doing the work, the stuff that I
have you - I want you to do. I also know that you are
working for the Union." McBean related that he
responded that he did not know and inquired as to what
gave Swain that idea. McBean asserted that Swain then
stated, "Well, we know your signing up names for the
Union, and you want to cut it out because if you don't,
we are going to fire you. This is not a union mill and it
will never be union."
Under cross-examination, McBean acknowledged that
Swain inquired if McBean was signing up membership for
the Union during worktime, but denied having admitted
so doing. McBean asserted he conducted this activity
during lunchtime and after working hours away from the
plant. McBean acknowledged that Swain advised him that
if he was doing this during worktime that he was to stop
McBean was then self-contradictory in asserting that he
could not recall Swain inquiring if he was engaging in this
activity during worktime.'
Swain, whom I find to be a credible witness, related
that McBean was not performing his job of delivering
paint to the production area, as a result, Swain went to
the paint shed and found McBean in a sitting position.
Swain then asked McBean to "be on the ball and get the
paint up there." Swain denied discussing the Union, or
threatening to fire McBean during this conversation. On
this conflict, I credit Swain.
'While the name appears as Gordan in the complaint , it appears as
Gordon in the record I assume the latter to be the correct spelling, and
the complaint is amended accordingly
'In view of the fact that the Union had been certified , as representative,
the prior September , it must be inferred that McBean was seeking
membership as distinguished from authorization cards
April 1
According to McBean , in early April, Swain called
McBean to Swain ' s desk "and he wanted to know what
the story was so forth there on the Union . And if I
remember correctly, it was talk of a strike that particular
time, and he asked me there if I was going out on it, and
I said I didn ' t know . I said, `I hadn ' t made up my mind
yet.' And he said , `Well,' he said , `you don ' t want to go
out If you do, we will have to dispose of you "'
Swain acknowledged having a conversation with
McBean, in early April, at Swain ' s desk Swain ' s version
was, "There had been several occasions I had noticed him
talking with employees excessively , and some of the other
employees had told me that he had been talking with them
about Union and saying that he was a shop steward. And
I asked him to spend more time working and less time
talking with these employees." Swain credibly denied
making any threat , particularly in reference to firing
McBean . On the content of the conversation, I credit
Swain.
April 25
McBean asserted his third conversation with Swain
occurred on the first day of the strike, which I have
found, supra, was April 25. McBean asserted that he had
come in off a truck and taken some forms upstairs
Thereupon, McBean related, Swain said, "I see some of
your friends are out there on the line, and are you going
out?" After McBean responded that he did not know, but
might, Swain said, "Well, you know, if you go out this
time, we are - I will have to turn around and hire
somebody else to put on your job. If we do that, there
ain't no sense in keeping you around."
Swain was unable to recall a conversation with McBean
on the first day of the strike, but denied threatening to
hire someone else to fill his job, and related that, part of
the time McBean was on strike , Swain did McBean's
work and the rest of the time he took someone off
another job to do it. It is undisputed that McBean's job
was not filled during the strike and that McBean did
return , at the end of the strike , on May 31, and was
returned to the same job.
Even were I to assume the accuracy of McBean's
recitation of this last conversation , I am unable to find
unlawful interrogation in an employer inquiring whether
an individual intended to join a picket line, already
established. Certainly an employer, without violating the
Act, can ascertain whether an employee is going to be
available for work or has other intentions, if the employer
goes no further. By the same token, there is nothing
unlawful in an employer advising an employee that the
employer will hire a replacement, as he has a right to do,
provided the employee engages in participation in an
economic strike. There is not a scintilla of evidence herein
that the strike was an unfair labor practice strike, nor is
such a contention raised.
Contentions of the Parties and Concluding
Findings
General Counsel appears to contend, in his brief, that
there is evidence of a "hostile bargaining attitude" on the
part of Respondent which in part evidences antiunion
animus, as a premise for the alleged pretextual discharge
of McBean, considered infra, and that a further indication
of Respondent's attitude was the effort of Swain to impair
FORSTER MANUFACTURING CO., INC. 191
McBean's solicitation of union membership in "a
determined effort to stop the growth of union membership
in the plant through the use of interrogations and
threats " The simple answer is that there is not a scintilla
of evidence of bad-faith bargaining on the part of
Respondent in this record, nor any charge in the
complaint which would warrant consideration of such
evidence. It is thus not an appropriate subject for a
supporting brief, and can only be considered as an
indication of how patently weak the evidence is in support
of the allegations of conduct violative of Section 8(a)(1).
If, as General Counsel contends, Respondent engaged in
any widespread conduct unlawfully impinging upon the
rights guaranteed the employees under Section 7, it would
appear obvious that more than one individual, of a total
of between 200 and 300 employees, would have come
forward with some recitation of such conduct. The record,
relative to these allegations, is confined to the testimony
of McBean only
Charging Party, in its brief, would characterize the
alleged threats uttered by Swain as threats of discharge if
he engaged in protected activity. It is obvious from a
reasonable reading of McBean 's testimony that Swain, at
most, was taking exception to McBean's activities during
worktime The Supreme Court has held that worktime is
for work. It is beyond contention that an employer may
properly restrict employees from engaging in union
activities during worktime.'
Respondent accurately urges, in its brief, that there is
neither a claim nor showing, herein, that Respondent
refused to bargain collectively, and further notes that a
charge so alleging was withdrawn without prejudice.
Respondent also notes that the union representative,
Lambertson, concurred that the Respondent's letter to
employees, of May 24, was nothing more than a correct
statement of action Respondent could lawfully take, in the
event the employees continued existing strike action.
Respondent, accurately, attributes Swain's encounter with
McBean, as related by McBean, as being due to McBean's
failure to do the work assigned to him, and to take him to
task for engaging in union activities during worktime. I
am unable to find how this could possibly constitute a
threat of discharge, since the only threat related was
conditioned upon his failure to discontinue unprotected
activity.
On the basis of the credible evidence, as set forth, I
find Respondent has not engaged in conduct which
constitutes interference, restraint or coercion. Accordingly,
I will recommend dismissal of the allegations of
paragraph 8 of the complaint.
The Discharge of McBean
The recitation of McBean, whom I have found supra
commenced employment about November 1, 1964, that he
was active during the union campaign, in September,
1967, that he obtained authorization cards from between
20 and 30 employees, that he became a steward near the
end of 1967, and that he was a participant in the strikes of
April and May, are undisputed.
McBean acknowledged that he returned to work, with
other employees, on Friday, May 31, and was assigned to
his prior job. The same day, Foreman Swain inquired if
McBean would be at work on Monday, explaining that an
inventory would be taken on No 9 warehouse, on that
'See Peyton Packing Co , 49 NLRB 828, cited with approval in
Republic Aviation Corp v N L R B, 324 U.S. 793
Monday, and he wanted to be certain of McBean's
presence, as otherwise Swain planned to take the
inventory, by himself, over the weekend Swain was
assured, by McBean, that McBean would be present.
McBean asserted that at about 1 30 a.m , on Sunday,
June 2, he was notified that his father-in-law had been
taken ill, might have to go to a hospital, and was
requested to go to the father-in-law's home, which
McBean described as being in Mechanic Falls, a distance
of between 50 and 70 miles from McBean's home
McBean did not return to his home, in East Wilton, until
Tuesday evening, June 4 Meanwhile, McBean did not
contact Respondent's plant, directly or indirectly, and had
been absent 2 workdays '
McBean asserted that he went to the plant at
approximately 15 minutes before starting time, which was
7 a m , on Wednesday, June 5, and noted that his
timecard was not in the rack McBean's recitation was,
"In fact, I talked to some of the other workers, and I
waited around to see Steve [Swain]; and after I waited
there for quite a while, well, I didn't locate him, so, I
turned around and went home i' McBean asserted he left
the plant at 7 20 a.m., that Swain's normal reporting time
was also 7 a.m. McBean asserted, "I left the plant
because I was under the assumption that I had been
discharged where I had been threatened about it in the
past." McBean, on cross-examination, acknowledged the
reason he assumed he had been discharged was that his
card was not in the rack. Queried as to whether he went
to the office, McBean responded that the office did not
open until 8 o'clock, and acknowledged that he did not
wait for the office to open to check to find out whether he
was still employed. McBean also acknowledged there were
two other occasions, previously, when he had not found
his card in the rack, went to Swain's desk, and obtained
his card.
According to McBean, he went to Swain's home on the
evening of Wednesday, June 5, inquired of Swain as to
whether he had been discharged, and was advised by
Swain that he had been discharged at 8 o'clock Tuesday
morning, for failure to report his absence. McBean
asserted that he explained, to Swain, that he had been
called out of town, that he had to borrow money from his
father to make the trip, which he indicated was in the
amount of $2, for gasoline. McBean asserted he did not
have the essential 40 or 45 cents required for a
long-distance telephone call According to McBean, Swain
responded that he could have placed a collect call, or
written a postcard, and advised, "We didn't hear from
you so we had no alternative but to let you go " McBean
related that Swain concluded with, "We are going strictly
by company policy. Two days, and that 's it." McBean was
asked if the Union was mentioned and responded, "Well,
the only part was there that was there they wasn 't going
by Union policy or anything. They was going strictly
'I find of no consequence the assertion of McBean that McBean had his
wife call Foreman Swain ' s home , upon his return , at approximately 8 30
p.m on February 4, learning that Swain was not at home , and purportedly
leaving a message to the effect that McBean would report for work the
following morning I likewise find of no consequence Swain's assertion that
he first learned of this alleged telephone call from the Board investigator,
during the investigation of the charges herein, and more particularly that
McBean did not mention it during a conversation , set forth infra. which
occurred on Wednesday evening, June 5
'it is reasonable to infer , from the recitation of McBean, that McBean
never left the lobby where the timeclock is located, and never proceeded
upstairs to the second or third floor where his work station and that of
Swain is located McBean made no such assertion
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company. There was anything to do with the Union."
Foreman Swain credibly related that he advised
McBean, on May 31, that he wanted McBean to take an
inventory on Monday, and inquired "if I could count on
him being there on Monday," asserting that otherwise he
intended to take the inventory himself. He was assured by
McBean that he would be present on Monday. Swain
related that he did not receive any advice, relative to the
absence of McBean, on Monday or Tuesday. Swain, who
asserted that he was at work at 7 a.m. on Wednesday, and
acknowledged that it had been reported to him that
McBean had been in the lobby that morning.
Swain acknowledged having the conversation related by
McBean, relative to McBean's activities on Monday and
Tuesday, during a conversation on Wednesday evening.
Swain asserted that he advised McBean that McBean
could have gotten word to him somehow, and that
McBean had let him down on the inventory. Swain also
advised McBean that Swain had been advised, by an
individual identified as Lynnwood Meador, inferentially
another employee, on Monday, that McBean had gone to
work somewhere else. According to Swain, McBean
acknowledged that he was working at Metcalf Lumber,
during the Wednesday conversation. While this recitation
is undisputed, I find it unnecessary to resolve its accuracy.
Swain acknowledged advising McBean that he had been
discharged. Swain asserted that it was his decision to
terminate McBean.10
While Swain was uncertain as to precisely when he had
McBean 's card pulled, I find that it had been pulled prior
to the start of work on Wednesday morning. Swain
credibly related that he wanted to talk to McBean to
ascertain why he had not reported for work. Swain
credibly asserted he had not at that time arrived at a firm
decision to fire McBean, however, when McBean did not
appear at work on the third day Swain decided to
effectuate the discharge."
It is undisputed that on September 9, 1963, Respondent
issued a Rule book which included a heading "Loss of
Tenure," and that paragraph 3 thereof provides: "Absent
2 working days without notice to management and
without satisfactory proof furnished upon the employee's
"I find of no consequence a conflict in the testimony of David
Hodgkins, vice president of Respondent , as compared to that of Foreman
Swain. Hodgkins , in essence , asserted that timecards would not be pulled
from the timeclock until Respondent found out the reason why the
employee had not reported, and that in some instances this might be 3 or 4
weeks later. Hodgkins asserted these inquiries were made either through
the foreman or the personnel officer. Swain, acknowledging that there is a
use of warning slips , asserted it is not "necessarily" company policy to give
a written warning prior to a discharge . While acknowledging that
sometimes warnings are used Swain asserted that he did not have to give a
written warning prior to discharge , explaining that he did use written
warnings for a violation or conduct which in his view did not warrant
discharge.
Swain's explanation that he had McBean 's card pulled because he
wanted to talk to McBean before McBean went to work , I find not
inconsistent with his assertion that he went to personnel and effectuated
McBean's discharge on Wednesday afternoon.
"While Swain' s assertion immediately thereafter that his decision to
discharge was based on the failure to report during a 2-day period, I do
not find this possible inconsistency sufficient to impair Swain's credibility.
Having reviewed his pretrial statement , Swain acknowledged advising
the Board investigator that at the time Swain caused McBean 's card to be
pulled it was Swain's intent to give McBean verbal warning . I find credible
Swain 's explanation thereafter, as to the reason he found the conduct and
explanation of McBean unsatisfactory , in Swain ' s words, "I figured that a
man in 3 days can get word to the Company as to why he hasn't come in
if he cares about his job ." Swain described McBean's explanation as a
"lame excuse"
return to work of inability to report." It is undisputed
that in September 1963 a "Manual of Rules of Conduct
and Safety Regulations were distributed, including, on
page 1, "An employee must notify his supervisors prior to
his scheduled shift concerning absence from work.
Absence from work for 2 consecutive days without prior
notification or two or more separated absences without
prior notification will be cause for dismissal."
Vice President Hodgkins credibly related that he caused
a survey to be made of the number of terminations
Respondent had effectuated for violation of the 2-day rule
in the period between January 1 and June 27, 1968, and
:
asserted that there had been 32 such discharges."
Contentions of the Parties and Concluding Findings
General Counsel, in his brief, asserts that Respondent
was engaged in a "determined effort" to discharge
McBean', and that an employee who had committed such
a "minor infraction" of company rules would normally
not be summarily discharged, particularly when he offered
a "plausible excuse." General Counsel then asserts that
the hard bargaining of Respondent, and the resultant two
strikes, "are not without evidentiary value in establishing
the anti-Union motive behind the discharge of Gordon
McBean." In addition, General Counsel would rely on
unlawful interrogation and threats, which I have found are
not established.
The essence of Charging Party' s argument , in its brief,
is an attack on the lack of specificity in the rules, relative
to the time , method, and individual, to whom notice of
absence must be given, and the inconsistency between the
Company's policy of giving employees an opportunity to
explain an absence, as related by Hodgkins, and the
asserted failure of Swain to do so in this instance , prior to
discharge.
I find no merit in the contentions of General Counsel
and Charging Party. Respondent , in its brief, correctly
cites well-established Board policy, which has received
court approval in numerous cases. I find it unnecessary to
set forth the supporting citations. Included are the
following propositions: Membership in the Union does not
immunize employees against discharge, for
nondiscriminatory reasons; the burden of proving a
discriminatory discharge is that of General Counsel, who
must show by substantial evidence that the discharge was
discriminatorily motivated; suspicion that an employee
might have been discharged for union activity, based
solely on the fact of the discharge, and evidence of
employer hostility to the Union, is not sufficient to prove
discrimination.
The only facts which it can be said the credible
evidence in the record establishes are that McBean, after
advice from Foreman Swain that McBean should be
present on Monday, to take a needed inventory, absented
himself, without notice, direct or indirect, and thus
violated Respondent's long-standing 2-day rule relative to
absenteeism . On Wednesday, failing to find his timecard
in the rack, McBean made no effort to proceed to the
work station of Foreman Swain, nor did he await the
opening of the office at 8 a.m. to ascertain his status,
rather he voluntarily left the plant, and, inferentially,
accepted work elsewhere.
"I find of no consequence Hodgkins ' acknowledgement that there had
been three exceptions made, inferentially by reason of explanations which
Respondent found satisfactory.
FORSTER MANUFACTURING CO., INC.
Accordingly, for the reasons set forth, I am unable to
find substantial credible evidence of probative value which
would support a finding either that the discharge of
McBean was discriminatorily motivated, or that it was
effectuated by reason of a mixed motive, including a
discriminatory motive. I will recommend dismissal, for
failure of proof, of those allegations of the complaint
which relate to the discharge of McBean."
The Discharge of Kittredge
Cuvier Kittredge was employed by Respondent, as a
hemple operator, commencing in December 1965. It is
undisputed that Kittredge received his work assignments,
prior to May 31, for an indefinite period, from
Romanoski. When the strike ended, on May 30, unlike
many other employees, Kittredge did not report for work
on Friday, May 31. However, Kittredge asserted that on
Monday, June 3, his lungs were filling with liquid and his
legs were swollen On that day he called Romanoski,
advising that he didn't know when he would be in, but he
would be in touch ' ° Romanoski corroborated Kittredge
relative to this telephone call.
Kittredge related that on Wednesday, June 5,
Romanoski called him and advised Kittredge that
Romanoski had been instructed to call and tell him he
had been discharged. Romanoski corroborated Kittredge,
explaining that Foreman Fletcher had instructed him that
anyone who did not report on May 31, in accordance with
Respondent's letter, of May 24, was to be discharged, and
that this included Kittredge.15
Approximately 1 week later, inferentially about
Wednesday, June 12, Kittredge went to the American
Legion Hall, where a negotiating meeting was scheduled
between Respondent and the Union. While Kittredge did
not attend the meeting, he asserted he was in an adjacent
room and could overhear, and recognize, the voices of
some individuals, and heard Lambertson, International
Representative, ask Campbell, Respondent's attorney, and
Hodgkins about Kittredge's discharge According to
Kittredge, the company representatives denied knowledge,
and Hodgkins asserted that when Kittredge returned, if he
brought a doctor's slip, everything would be "okay."
Kittredge, who had not sought medical aid during this
absence, went to Dr. Mitchell, on Friday, June 14.
Kittredge, asserting he felt better and thought he would
try to go back to work soon, related that the doctor
advised that he should refrain from work and return to
the doctor in 1 week, which he did. On approximately
June 21, the doctor advised him that he should change his
employment, but if he was returning to Respondent's
plant he might as well do so.
"Hicks & Sons, Inc, 14l NLRB 1272, Campbell & McLean , Inc, 118
NLRB 967
"One reason I have found it unnecessary to resolve the question of
whether Romanoski is a foreman is the undisputed assertion of Kittredge,
that during many absences , he would normally report , by telephone, to
Foreman Fletcher , Romanski, or the office secretary, Eleanor Nadeau, to
report his absence
"According to Romanoskf, Fletcher advised that he was discharging
another employee , Theodore Knox, for the same reason However, when
Romanoski advised Fletcher that Knox's wife had advised Romanoski that
Knox ' s failure to report was due to car trouble, Fletcher rescinded the
decision to discharge Knox
In light of later events , I find of no consequence Romanoski 's assertion
that Kittredge 's replacement was not hired until approximately 1 week
after this asserted discharge of Kittredge
193
Kittredge reported for work on Monday, June 24. He
advised Romanoski that his timecard was not in the rack
Romanoski gave him a work slip and advised that
Romanoski would take care of the card later. Kittredge
went to his machine and was approached by Foreman
Fletcher, who advised Kittredge that he could not go to
work until he brought in a doctor's slip According to
Kittredge, when he advised Fletcher he had a slip from
Dr. Mitchell, Fletcher responded, "I don't think they will
accept him," but Fletcher said he would check on this
Fletcher returned, asserted they would accept Dr.
Mitchell, and was given Dr Mitchell's statement, by
Kittredge. Fletcher examined the slip and advised
Kittredge, "I don't think they will accept that because it
does not cover May 31 " A few moments later, Fletcher
returned and advised the slip would not be accepted.
Kittredge called Romanoski into the conversation.
Romanoski inquired of Fletcher what should be done and
Fletcher responded that he did not know, "It was out of
his hands." Kittredge then remarked that Kittredge
"guessed we would let the Labor Board decide the
question." Asked if he had been told to leave the plant,
Kittredge responded "No. Just said I couldn't go to work
without a doctor' s slip."'°
It is undisputed that Kittredge was active during the
union organizing campaign, in September, 1967, that he
attended approximately 20 union meetings, was elected a
temporary trustee, and was a member of the negotiating
committee."
Kittredge related that he had had a circulatory
difficulty which became acute in May 1967, that he was in
the hospital for approximately 1 week, commencing
approximately May 30, 1967, and remained absent from
work for a period of approximately 12 weeks, ending on
August 27 or 28. When he returned he was not required to
present a doctor's slip. Since that time he has been absent
from work, due to illness, inferentially on a number of
occasions, and was never requested to present a doctor's
certificate, although on each occasion he did report his
illness . Kittredge, on cross-examination, acknowledged
that the Company did have a Blue Cross or other plan
which covered medical and hospital benefits, as a result of
which these bills were paid for him.1s Thus, Respondent
contends it had knowledge of the fact of illness.
The statement which Kittredge submitted to
Respondent, on June 24, is signed by C.A. Mitchell, is
dated June 21, and, under remarks, contains. "Advised on
June 14, '68, to refrain from working for 1 week."
"While Romanoski appeared as a witness he was not questioned relative
to this incident In view of Respondent 's failure to call Fletcher , or explain
his absence , I find this recitation of Kittredge, as to the events of June 24,
credible
"I find of no consequence a recitation by Kittredge that, in March 1968,
he overheard a conversation, during negotiations , between Lambertson,
International Representative , and Richard Pierce, formerly a vice president
of Respondent, whose separation from Respondent is undisputed, but the
time of his separation is obscure
Kittredge asserted that Lambertson inquired as to why Kittredge had not
reached a specified rate and that Pierce and David Hodgkins responded
that they did not know but would check and report back [ Hodgkins is
identified by Kittredge as a son of the owner , who may or may not be the
David Hodgkins who testified herein I Inferentially thereafter , Pierce
asserted that Kittredge' s production was extremely low, as a result of
which his pay scale would never be any higher, and they were considering
transferring him to a different department Kittredge asserted that he
worked on a bonus incentive system and had never been advised that his
work output was deficient
"It is obscure whether this covers only the 12-week absence or other
absences
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kittredge, who acknowledged it was not until June 10 that
he learned he had to have a doctor's certificate for the
period of his absence, was asked if he had not been sick
enough prior to the 14th to go to a doctor, and responded,
"I didn't figure I had." Kittredge acknowledged that it
was not until Saturday, June 1, that his lungs commenced
to fill with fluid and his legs became swollen the following
day He asserted that his physical condition on June 2 was
the same as when he saw the doctor on June 14 Kittredge
acknowledged he had no health reason for failing to
report on May 31
Contentions of the Parties and Concluding Findings
General Counsel, in his brief, describes Respondent's
position, relative to the discharge of Kittredge, as
"untenable " Acknowledging that Respondent asserted
that Kittredge was discharged for failure to supply
documentary evidence, from a physician, covering his
absence from May 31 to June 24, General Counsel asserts
Romanoski's recitation about the telephone call of June 3
is unrefuted. General Counsel's argument is misconceived.
Respondent, on May 24, by letter, advised all employees
that they would be replaced if they did not report for
work on May 31. The most that can be said of
Respondent's conduct, on June 10, is that it affored an
opportunity for Kittredge to requalify, conditioned on his
ability to prove his incapacity, as of May 31, by medical
verification. It was patent he could not do so, for the
simple reason stated by him that no medical impairment
precluded his reporting on May 31. Meantime, he had
been replaced
General Counsel urges that the actual motive for the
discharge of Kittredge was solely the failure of Kittredge
to report on May 31 and asserts the conversation between
Fletcher and Romanoski, testified to by Romanoski, is
"conclusive proof' that Kittredge was discharged [on June
5] for failure to return on May 31. General Counsel then
asserts, "Although this discharge in violation of Section
8(a)(3) was apparently cured by the agreement between
the Union and management, that Kittredge would be
reinstated upon the presentation of a doctor's slip, it
nonetheless clearly establishes the actual motive behind
the Company's peculiar and disparate treatment of
Kittredge in requiring him and no one else to produce a
doctor's certificate covering the entire period of his
absence." I find it unnecessary to consider motivation for
a purported discharge on June 5, which everyone agrees
was rescinded. Even were I to assume, as General Counsel
asserts, that the earlier purported discharge was
discriminatorily motivated, it was not effectuated.
This case then turns on whether Respondent's
requirement of proof of Kittredge's alleged illness can be
found to be discriminatorily motivated During the
hearing, Respondent's counsel asserted it is not the
Company's contention that the rules require a doctor's
slip in every case. "This was a condition upon which we
agreed to reinstate Kittredge, and it was well understood
if he presented this certificate we'd take him back. We are
not claiming that everybody has to bring in a doctor's
certificate. That is not the policy of the Company."
Respondent, in its brief, correctly states the law The
question for decision by the Board is not whether valid
reasons for the discharge were shown to exist, but,
whether these reasons were in fact merely a pretext My
observations, supra, under the Concluding Findings
relative to McBean, have equal application here. There is
not a scintilla of evidence in this record of misconduct, by
Respondent, constituting unfair labor practices, or
conduct in derogation of the Act. The timing of the
discharge, and its close relationship to the period of strike,
and Kittredge's activities on behalf of the Union, can
properly be said to raise a grave doubt or suspicion that
Respondent seized upon an opportunity to rid itself of a
union advocate. Suspicion alone, the Board has said, with
Supreme Court approval, is not enough.
Charging Party describes Respondent's conduct as a
"charade," outlining the same points made by General
Counsel, relative to the purported discharge of Kittredge
on June 5, and its acknowledged retraction thereafter
Charging Party asserts that Kittredge was never advised
that the medical certificate had to cover May 31, that
Kittredge had never previously been required to produce a
certificate, and, finally, "If a certificate was as important
as the Company urges it would have given him an
opportunity to obtain a certificate, thus meeting its
demands." The defect in this argument is that Kittredge
acknowledged he was not ill on May 31, that there is no
substantiation, other than the representations of Kittredge,
that he was, in fact, ill, prior to his first visit to the doctor
on June 14 'y Many, perhaps including the writer and the
Board, may have the view that the Company's insistence
on proof of illness was unduly harsh. If so, it is of no
consequence herein The sole question is whether the
evidence reasonably establishes discriminatory motivation,
underlying this discharge
Respondent throughout the period with which we are
herein concerned has employed between 200 and 300
employees. Not one, with the possible exception of
Kittredge, has come forth with any credible evidence
which would support a finding of antiunion animus on the
part of Respondent. Respondent, as a matter of right,
could voice its objection to the Union, or to the selection
of the Union by its employees, provided, only, that it did
not encompass within its antiunion pronouncements any
promises or threats, a condition to which Respondent has
adhered General Counsel's assertions that Respondent's
hard bargaining is indicative of animus must fall by the
wayside It is undisputed that the Union and Respondent
did enter into a collective-bargaining agreement on or
about June 27, within 3 days of the discharge in question.
Accordingly, for the reasons set forth, finding no
evidence of substantial probative value which would
support a finding of discriminatory motivation, I will
recommend dismissal of those portions of the complaint
related to the discharge of Kittredge.
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 405, International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act
3 Respondent has not, by discharging Gordon A.
McBean, on June 5, 1968, or Cuvier A. Kittredge, on
June 24, 1968, engaged in conduct constituting unfair
labor practices or violative of the provisions of Section
"While it is reasonable to infer , from the testimony of Romanoski, that
Kittredge had been replaced shortly pnor to June 14, this fact is of no
consequence herein
FORSTER MANUFACTURING CO, INC. 195
8(a)(3) of (1) of the Act
4. Respondent has not engaged in conduct constituting
interference, restraint or coercion, within the meaning of
Section 8(a) (1) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and
conclusions of law, I find and conclude that a
preponderance of the evidence in the record does not
support the allegations of the complaint that Respondent
has engaged in unfair labor practices Accordingly, it is
hereby ordered that the complaint be, and it hereby is,
dismissed.