Givaudan Corp.

National Labor Relations Board - Board Decisions

Sep 13, 1976

225 N.L.R.B. 1272 (N.L.R.B. 1976)

1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Givaudan Corporation and Patrick Carley and Peter
Clark and Trevor Griffiths . Cases 22-CA-6679, 22-
CA-6696, and 22-CA-6691
September 13, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On May 10, 1976, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order, as modified here-
in.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Gi-
vaudan Corporation, Clifton, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the
actions set forth in the said recommended Order, as
modified.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 We do not adopt the Administrative Law Judge's conclusion that Man-
ager Cotz' statements to Peter Clark on or about August 12 seeking to have
Clark withdraw his grievance against Foreman Moran constituted a threat
and, therefore, an additional violation of Sec 8(a)(1) of the Act These
statements were not alleged as an independent 8(a)(I) violation in the com-
plaint, nor were they fully litigated at the hearing Furthermore, a finding
that these statements violated Sec 8(a)(1) would not, in any event, affect the
remedy herein Thus, we do not decide whether, had unfair labor practices
based on Manager Cotz' statements to Clark been so alleged or litigated.
those statements would have violated Sec 8(a)(I)
We do, however, adopt the Administrative Law Judge's conclusion that
Manager Cotz' statements to Union Steward Robertson on October 30 or 31
constitute independent violations of Sec 8(a)(1) Even though they were not
specifically alleged in the complaint, an examination of the record shows
that these statements were fully litigated The proximity and similarity of
the statements on October 29, alleged in the complaint, and these October
30 or 31 statements dictate that they should be subject to the same analysis
Substitute the following for paragraph 2(b):
"(b) Make whole Carley, Clark, and Griffiths for
any loss of earnings suffered by reason of the dis-
crimination against them, by payment to each of
them the wages which they lost as a consequence of
their layoffs, less their net earnings in other employ-
ment since, if any, with backpay computed on a
quarterly basis plus interest at 6 percent per annum
as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), from date of discharge to date
of offer of reinstatement."
DECISION
STATEMENT OF THE CASE
CHARLES W SCHNEIDER, Administrative Law Judge: On
November 10, 17, and 19, 1975, respectively, Patrick Car-
ley, Trevor Griffiths, and Peter Clark filed charges against
Givaudan Corporation, the Respondent, alleging that the
Respondent had committed unfair labor practices within
the meaning of the National Labor Relations Act (29
U.S.C. 158). On January 16, 1976, the Regional Director of
Region 22 of the Board issued an order consolidating the
cases, and containing a complaint, subsequently amended,
and notice of hearing, alleging that the Respondent had
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act
The Respondent duly filed its answer denying the com-
mission of unfair labor practices.
Pursuant to notice a hearing was held before me in New-
ark, New Jersey, on March 10, 1976. All parties appeared
and were afforded full opportunity to participate and to
introduce and to meet material evidence Briefs were filed
by the General Counsel and the Respondent on April 14,
1976, and have been considered.
On the entire record in the case, the briefs, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is and has been at all times material herein a
corporation duly organized under, and existing by virtue
of, the laws of the State of New Jersey.
At all times material herein Respondent has maintained
its principal office and plant at 100 Delawanna Avenue,
Clifton, New Jersey, and is now, and at all times material
herein has been continuously, engaged at said plant in the
manufacture, sale, and distribution of fragrances, flavors,
aroma chemicals, and related products. Respondent's Clif-
ton plant is its only facility involved in this proceeding.
In the course and conduct of Respondent's business op-
erations during the preceding 12 months, said operations
being representative of its operations at all times material
herein, Respondent caused to be manufactured, sold, and
225 NLRB No. 177
GIVAUDAN CORPORATION 1273
distributed at said Clifton plant, products valued in excess
of $50,000, of which products valued in excess of $50,000
were shipped from said Clifton plant in interstate com-
merce directly to States of the United States other than the
State of New Jersey.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Oil, Chemical and Atomic Workers International Union
(OCAW) is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
contract layoffs are on the basis of seniority, last hired, first
fired. Laid-off employees also have "bumping" rights, that
is, an employee who is qualified for the job of another
employee not affected by the layoff may claim that job if
the claimant has more seniority than the incumbent.
Carley, Griffiths, and Clark were laid off October 31,
1975, pursuant to notice given on October 24, 1975.
Clark was not originally selected for layoff, but was in-
cluded when he was bumped by another employee, Russo,
a millwright with greater seniority who had been scheduled
for layoff.
Previous to this case the Respondent had not been
charged with discrimination against employees in layoffs,
or with discrimination against employees because they had
filed grievances.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges, and the Respondent denies, that
Victor Cotz, the Respondent's manager of plant engineer-
ing, threatened employees with layoff if they filed griev-
ances under the contractual grievance procedure, and ad-
ditionally alleges that Carley, Clark, and Griffiths were laid
off on October 31, 1975, in retaliation for Clark and Grif-
fiths having filed grievances under the grievance proce-
dure. The Respondent contends that all three employees
were laid off legitimately pursuant to a plantwide reduc-
tion in force.
B The Facts
1. Summary
Specifically the General Counsel asserts that Griffiths
and Clark were laid off because they filed grievances, and
that Carley was caught in the layoff by reason of being
junior in seniority to Griffiths and Clark.
The Respondent employs approximately 685 employees,
of whom about 344 are represented by unions in three col-
lective-bargaining units: (1) production and maintenance
(315 employees), (2) clerks and technicians (20 employees),
and (3) operating engineers (9 employees). Units I and 2
are represented by the OCWA, unit 3 by the Operating
Engineers union. About 57 of the employees in unit 1 are
in the mechanical or maintenance department. Carley,
Griffiths, and Clark, the alleged discriminatees, were pipe-
fitters in the mechanical department. The Respondent has
had collective-bargaining contracts with the OCWA, or its
predecessor, for many years. The present contract for the
production and maintenance unit contains a grievance pro-
cedure.
Between July and mid-October 1975, the Respondent
laid off some 30 production workers for economic reasons
Up till late October, when Carley, Griffiths, and Clark
were laid off, none of the layoffs affected employees in the
mechanical department. The record does not disclose
whether layoffs were made in the other two collective-bar-
gaining units or among the unrepresented workers.
Carley, Griffiths, and Clark, in that order, were the three
most junior employees in the bargaining unit I Under the
2 The grievances of Griffiths and Clark
Between about August 12 and the date of his layoff,
Clark filed from four to six grievances (the exact number is
not clear from the record), all alleging harassment by his
foreman, William Moran, or by Victor Cotz, manager of
plant engineering and head of the mechanical department.
All of these grievances appear to have been denied or with-
drawn at some stage in the grievance procedure
After Clark had filed his second grievance against Fore-
man Moran, Plant Engineering Manager Cotz, according
to the undenied and credited testimony of Clark, sought to
persuade Clark to withdraw the grievance. As related by
Clark, Cotz said that because the plant had just gone
through a long strike he felt that Clark should withdraw the
grievance in order "to keep harmony in the plant." Clark
refused, whereupon Cotz said:
If you don't withdraw it, there will be trouble here.
Mr. Moran will get upset and I feel it would be in your
best interest and mine and Mr. Moran's that you with-
draw the grievance.
Nevertheless, Clark persisted in his refusal.
On the following morning, Manager Cotz called Clark
into his office and cited him for smoking in a smoking area
at an unauthorized time, 3 days previously. Clark there-
upon filed a grievance against Cotz, alleging that the cita-
tion was a reprisal for the prior grievance.
Thereafter Clark filed one or two other grievances
against Moran.
Griffiths filed one grievance. The Respondent's policy is
to replace worn, used, and broken tools. In early October
1975, Griffiths asked for the replacement of a rule because
the numbers had worn off. When replacement was refused,
Griffiths filed a grievance which was denied on the ground
that the job description of a pipefitter stated that he must
have his own tools. The value of the rule was approximate-
ly $1.50. In a conversation on October 30 and 31, more
fully related hereafter, Manager Cotz referred to this griev-
ance in explanation of the later layoffs, and as a witness
when asked his estimate of the grievance, he replied "not
much."
1 Carley was hired in February 1975, Griffiths in December 1974, and
Clark in October 1974
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carley filed no grievances during his employment by the
Respondent.
3. Carley's move from Brooklyn
Carley lived in Brooklyn, New York, at the time he was
hired by the Respondent and commuted to the Respon-
dent's plant at Clifton, New Jersey. Carley, a young man
with a pregnant wife and apparent financial problems, was
popular with his coworkers.
Carley found commuting from Brooklyn burdensome,
but after the layoffs in the production group in July he was
hesitant to move. He then asked Manager Cotz about the
possibility of layoff, telling Cotz his reason for the inquiry.
Cotz told Carley that he didn' t see any layoffs in prospect
in the mechanical department at that time, but did not
know what would happen in the future. Thereafter, Carley
repeated his inquiry to Cotz at intervals. On one of those
occasions, about September 20, Carley approached Cotz
again about the move and stated that he had heard rumors
that there might be a layoff in the mechanical department.
Cotz asked him to hold up for a period of time. Carley
approached Cotz again after 1 or 2 weeks, at which time
Cotz, according to Carley's credited testimony, told Carley
to go ahead-that there would be no layoffs in the me-
chanical department.2 Carley thereupon secured an apart-
ment in Clifton, and on the weekend of October 25 and 26
he moved from Brooklyn.
4. The layoffs
Plant Engineering Manager Cotz is in charge of the me-
chanical department. His testimony is that about I week
before October 24, 1975, after discussions with his foremen
and with his superior, Charles Snyder, vice president of
manufacturing and plant manager, he recommended to
Snyder that there be three layoffs in the mechanical de-
partment-two pipefitters and one millwright. Snyder,
whose approval was required, asked Cotz whether such
layoffs would delay completion of a new fragrance center
the Respondent planned to open in April. Assured by Cotz
that they would not, Snyder approved the layoffs, and they
were ordered, effective October 31, 1975.
Manager Cotz further testified that he decided upon the
layoffs because the cutback in production employment re-
duced the need for maintenance personnel.
Accordingly, on Monday morning, October 27, 1975, the
three persons affected, Carley, Griffiths, and millwright
Russo, were notified. However, Russo, who had only 4 to 6
months seniority as a millwright, had formerly been a pipe-
fitter for about 5 years. As is customary in the plant, Russo
elected to exercise his bumping rights, thus displacing
Clark.
2 The findings above as to the conversations between Carley and Cotz are
either undenied or largely admitted by Cotz Cotz merely denied telling
Carley that he could move In the light of Carley's obvious caution about
the matter, I deem it unlikely that he would have moved unless he felt that
he had some assurance from Cotz In addition, in a later conversation with
Union Steward Robertson, Cotz admitted to Robertson that he had told
Carley that he could move from Brooklyn
After being advised on Monday morning of Russo's
election, Clark told Plant Manager Cotz and Chief Union
Steward Ray Gismondi that he knew that he was being laid
off because of his grievances, but that he didn't feel that
Carley and Griffiths should "suffer" for him. Clark then
proposed a "deal" to Cotz whereby Clark would waive his
seniority so that Carley or Griffiths could be kept on. Cotz
responded that any such deal would have to include Grif-
fiths. Cotz offered no objection to the basic proposal,
though it would result in fewer layoffs. Clark then saw
Griffiths and proposed to him that he and Griffiths waive
their seniority in order to permit Carley to remain. Upset
over his own layoff, Griffiths' response was initially nega-
tive, but he ultimately agreed to the proposal: " since I got
to go . . . let Pat keep his job." Later in the day Cotz,
Clark, Griffiths, and John Robertson, then shop steward in
the maintenance department, met and discussed Clark's
proposal. On this occasion, Cotz stated that Clark and
Griffiths would have to resign if the proposition were to be
effected. Clark and Griffiths responded that they would
not resign because they wished the benefits normally ac-
companying a layoff, such as medical insurance payments
and unemployment compensation, but were willing to
waive their seniority rights to save Carley's job. Cotz con-
tinued to insist on a resignation. When Clark and Griffiths
continued to refuse, Cotz said that he would speak to his
superiors about it.
Cotz then spoke to Industrial Relations Director Bremer
about the matter and asked Bremer whether Clark and
Griffiths could waive their seniority rights under the con-
tract. Bremer stated that there was no such provision in the
contract, but he ultimately agreed to the proposal.
In the interval beginning October 27 and ending October
31, Cotz had several conversations with various employees
regarding the layoffs as follows.
The conversation with Carley on October 27. Upon receiv-
ing his notice of layoff on Monday morning, October 27,
Carley sought out Cotz and asked Cotz, according to
Carley's version in an "angry," according to Cotz' version
in a "distraught," manner why he had been laid off right
after he had moved. Cotz answered "economic reasons"
and the conversation terminated. Later in the day, Carley
was advised by Clark of Clark's proposal and Griffiths'
agreement to it.
The conversation between Cotz and Carley on October 29:
On the late afternoon of October 28, Carley was advised by
Griffiths that the Respondent would not accept a waiver of
seniority but would accept resignations, but that he, Grif-
fiths, would not accept that. Carley thereupon went to see
Cotz in the latter's office on October 29. Carley told Cotz
that he understood that Cotz wanted resignations and
would not accept Clark's "deal." Carley further said that
he had at first believed that the layoff was for economic
reasons, but that he now knew it was otherwise. Carley's
testimony as to what then occurred is as follows:
He was kind of on guard, so I started talking more or
less the way I felt because I did have some bad feel-
ings.
Q. Just tell us what you said.
A. I asked why I had to pay with my job for Peter
GIVAUDAN CORPORATION 1275
Clark and Trevor Griffiths and he said he had no
choice but to go ahead on the matter of layoffs be-
cause Peter Clark had filed, I think it was, 80 man
hours of grievances.
He pulled his front drawer out and pulled out a
piece of paper and showed it to me. I said why do I
have to lose my job because of them. He said it's not
my fault, "But I can't work with these clowns. Two
weeks ago Trevor Griffiths filed a grievance on a silly
ruler that he wanted replaced and that was the straw
that broke the camel's back. Between these two guys
they are disrupting my shop, they are constantly get-
ting into hassles with my foreman and I can't tolerate
it. >f
I said, "You are taking the easy way out, why don't
you fire them and let them take it to arbitration" and
he informed me that Givaudan didn't have a policy of
firing. Therefore he had no choice. As a matter of fact,
he said to me, to my face, that it was a good business
decision and sometimes the good have to pay for the
bad. Exact words.
I then said, "You don't understand. I have boxes
sitting home that weren't even unpacked yet and I
moved here on your go ahead. These guys made an
offer to waive seniority and now you come back and
want resignations and they won't buy it. If they resign
they won't get their unemployment."
He said he'd work it out so they would. Then he
said, "If you get your union to put a little more pres-
sure on these guys and ask them to waive their recall
rights instead of resigning , then we can work a deal."
Then I left his office.
Cotz' version of what was said between him and Carley
does not substantially differ from Carley's testimony. Ac-
cording to Cotz, he spoke to Carley a number of times after
the notice of layoff, that Carley asked Cotz why Cotz was
"getting at them [Griffiths and Clark] through me," that
Cotz responded to the effect that it was an "economic con-
dition," and further that Cotz "indicated to [Carley] that I
was being pressured from above" by Snyder. Cotz did not
deny making the statements about Clark and Griffiths at-
tributed to him by Carley.
Carley's testimony as to the conversation is accepted.
Mottola's conversation with Cotz on October 29. On the
same day Local Union President Mottola had a conversa-
tion with Manager Cotz in Cotz' office regarding the lay-
offs. Mottola's testimony as to this conversation is as fol-
lows.
Mottola asked the reason for the layoffs in the mechani-
cal department, and Cotz responded that because of lay-
offs in production the workload in the mechanical depart-
ment did not warrant its present staff. When Mottola
disputed this and asserted that there was plenty of work,
Cotz stated that he had received instructions to cut down
on the mechanical department's work force: "upper man-
agement cannotjustify a layoff in the rest of the plant .. .
without a layoff in the machine shop." Pressed by Mottola
to identify the source of the instructions in order that Mot-
tola might pursue the matter further, Cotz declined to do
so, adding, according to Mottola, that if Mottola continued
to pursue it, "he would fight me all the way." In this con-
versation, Mottola testified, Cotz stated that Clark and
Griffiths were "ball busters," and that he was not retaining
them for that reason.3
Cotz admitted having a conversation with Mottola on
that date, but denied characterizing Clark and Griffiths as
"ball busters." He did not deny the remainder of Mottola's
testimony as to the conversation. Resolution of the conflict
is made later.
Robertson's conversation with Cotz on October 30 or 31:
On October 30 or 31, 1975, Union Steward Robertson, in
response to prodding from Carley, spoke to Manager Cotz
in the latter's office. Robertson's undenied testimony as to
this conversation is as follows:
A. I approached Mr. Cotz and I said "What is the
story on the layoff" and he said-I said "Because Mr
Carley is on my back. You told him to move from
Brooklyn."
He said "Yes, I know, I feel as bad about that as
you do." He said "But that's the way it is."
And I said, "Well, I mean, that's kind of tough on
both me and Carley. You tell him one minute to move
and the next minute he is laid off."
He said "Look,-" and Mr. Cotz has a way of talk-
ing shoulder to shoulder with employees and he said
"Look, the maintenance department, the way it is, no-
body outside of it knows what is going on. If I say I'm
busy, I'm busy. But when that grievance for the ruler
from Mr. Griffiths came in-" and he gave the thumb
sign to building 100 where the bosses are and he said
"that's the straw that broke the camel's back. How the
hell-" or something-"how can you justify being ful-
ly employed down in the shop when we have Mr.
Clark spending X amount of hours on grievances."
Q. Did he say X amount of hours or did he use a
number?
A He did, but I'd be plucking it out of the sky. It
was either on a weekly basis or over a period of time,
but as I said before, it sounded a lot at the time, but
I'd only be guessing if I said the number.
Q. All right, he said X number of hours.
A. That was more or less the end of it. He said-
and I'm repeating myself again-" "When they saw
the hours spent, they said that's it." He gave, more or
less, a wave of his hand and he said "That's it. How
can I justify his being fully employed when X amount
of hours have been spent by Clark on grievances" and
the conversation just came to an abrupt end, and I
tucked my tail between my legs and went out.
Manager Cotz did not deny having this conversation
with Robertson. Robertson's testimony as to the conversa-
tion is credited.
7 Mottola gave the following definition of "ball busters "
People who go around agitating , not responsible people in the perfor-
mance of theirjob They are not performing theirjob , they are harrass-
mg [sic] the Company
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The final meeting
On the morning of Friday, October 31, 1975, a meeting
was held attended by Industrial Relations Director Brem-
er, Personnel Manager Martin, Manager Cotz, Local
Union President Mottola, Clark, and Griffiths. At this
meeting the Respondent presented a written document for
signature by Griffiths and Clark. The document recited
that Griffiths and Clark waived their recall rights for a
12-month period on the understanding that the Respon-
dent would offer recall to Carley, and on the further under-
standing that if the Respondent had a need for pipefitters
during the period, other than those then employed, the
waiver would be "null and void." At the suggestion of the
Union a further paragraph was added to the following af-
fect:
I further affirm that it is not my intention or desire
to grieve or arbitrate or take any legal action against
the Company or the Union with reference to this lay-
off.
After securing legal advice Clark refused to sign the doc-
ument, and Griffiths did likewise. Apparently their basic
objection was that the document constituted a waiver of
their right to dispute the legitimacy of the layoffs
No agreement having been worked out, the layoffs of
Carley, Griffiths, and Clark became effective that day.
They have not been recalled.
C Conclusions
The General Counsel contends that, whatever the need
for a layoff in the mechanical department, the foregoing
facts establish that the motivation for the selection of the
pipefitters and the millwright for the layoff was the griev-
ance filed by Clark and Griffiths.
In this setting the testimony of Carley, Mottola, and
Robertson as to statements assertedly made by Cotz dis-
closing such a motivation becomes substantially decisive of
the issue
The testimony of Mottola to the effect that in their con-
versation of Wednesday, October 29, Cotz stated that he
had made the layoff under instructions from above is un-
denied. In addition, Cotz admittedly made the same state-
ment to Carley However , it is clear from Cotz' own testi-
mony that the decision to make the layoffs and in what
classifications was Cotz', and that his superior, Snyder, was
consulted only because the action required Snyder's ap-
proval, and not to secure Snyder's decision. As we have
seen , before approving the layoff, Snyder required assur-
ances that it would not delay completion of the fragrance
center . Thus, Cotz' suggestions to Carley and Mottola that
his superiors demanded the layoffs did not reflect the facts.
Cotz' testimony is that he decided on the layoffs because
the decline in the production force left less maintenance
work to be done. He denied that the filing of grievances by
Griffiths and Clark played any part in his decision. How-
ever, that testimony cannot be reconciled with a number of
established facts
In the first place, in his conversation with Carley and
Robertson, in which they questioned the layoffs, Cotz attri-
buted them precisely to the grievance filings, intimating
that knowledge of them on the part of upper-echelon man-
agement made it impossible for him to resist demands for a
layoff in the mechanical department. Then there is
Mottola's testimony, denied by Cotz, to the effect that in
their conversation of October 29 Cotz described Griffiths
and Clark as "ball busters," a characterization having a
meaning reminiscent of the complaints Cotz voiced to Car-
ley and Robertson about Griffiths and Clark. In the light
of my appraisal, I credit Mottola's testimony in that re-
gard.
In the second place, routine maintenance as a result of
machinery in use is only one of three facets of the work of
the mechanical department. In addition the department en-
gages in preventive maintenance, and also carries out fill-in
projects. And as head of the mechanical department Cotz
appears to have been left with a large degree of discretion
to determine what the needs of the department are and
what its staff should be. Thus, we find him telling Union
Steward Robertson that "nobody outside [the department]
knows what is going on. If I say I'm busy, I'm busy." He
then clearly suggested to Robertson that the embarrass-
ment of the grievances made it untenable for him not to
initiate layoffs in the mechanical department.
That the filing of grievances by Clark was a matter of
concern to Cotz is further evident from the incident about
2 months prior to the layoff when Cotz sought to persuade
Clark to withdraw a grievance against Foreman Moran,
and when Clark refused, Cotz cited him on the following
morning for a rule violation 3 days before. In the light of
the circumstances, Cotz' statement to Clark on that occa-
sion that it would be "in your best interest" to withdraw
the grievance must be interpreted as a threat.
The conclusion seems inescapable from these facts that
Cotz' motivation for seeking to be rid of Clark and Grif-
fiths was their filing of grievances. I so find. From that it
would seem to follow, though perhaps unnecessary for dis-
position, that Cotz' decision to make the layoffs in the me-
chanical department, or alternatively his decision to select
the pipefitters and the millwrights as the classifications for
layoffs, were for the purpose of getting rid of what Cotz
deemed their embarrassing presence. While it is true that
the initial layoff called for a reduction of only two pipefit-
ters, which would have meant the loss of only Carley and
Griffiths among the pipefitters, and Clark was included
only because he was bumped by Russo, Cotz could readily
have anticipated the latter development. As a witness, Cotz
admitted the likelihood that Russo would exercise his
bumping rights, but testified that he did not know where
Russo might bump. On the record evidence, Cotz' qualifi-
cation seems implausible. There is no showing that Russo
was qualified for any other position in the plant. Russo had
been a pipefitter for about 5 years and had transferred to
the millwright fob only 4 to 6 months before the layoff. In
these circumstances, given the custom in the plant, it would
seem almost a certainty that Russo would elect to bump
Clark. If there is speculation involved in attempting to fol-
low Cotz' probable course of reasoning, it is speculation
required by the nature of the defense.
The Respondent points to collateral factors which it as-
serts militate against such conclusions. Thus, the Respon-
GIVAUDAN CORPORATION 1277
dent points to the long history of collective-bargaining re-
lations, the total number of grievances filed in the mechan-
ical department, the fact that grievance negotiations are
often characterized by vigorous and heated exchanges, and
that the Respondent has not heretofore been charged with
unfair labor practices of this nature. Admittedly, those fac-
tors are relevant and have been weighed. However, when
balanced against the evidence indicative of discriminatory
motivation, they are overborne.
Nor is there substance to the defense that the layoff in
production operations required reductions in the mechani-
cal department. We have seen that routine maintenance
directly caused by production is only one of three sources
of work in the mechanical department. Moreover, as Cotz
told Robertson about the department: ". . . nobody out-
side of it knows what is going on. If I say I'm busy, I'm
busy." In addition, Foreman Moran told Carley 2 weeks
before the layoff that there was "a lot of work in prospect"
in the mechanical department. Mottola's testimony, not
denied, is to the effect that he told Cotz the same thing,
and that when Mottola sought to learn from Cotz who of
his superiors had ordered the layoff, Cotz refused to dis-
close their identity and warned Mottola not to pursue the
matter further. It is thus apparent that, viewed as of that
time, Cotz need not have made the layoffs had he chosen
not to, and the fact that legitimate justification may have
existed is thus not controlling In many cases of discrimina-
tory discharges or terminations, legitimate grounds for the
action may exist. The inquiry is, are those the grounds
which were acted upon')
In connection with the question of the availability of
work in the mechanical department, it will be noted that,
with the departure of Griffiths and Clark assured, Cotz was
willing to reduce the layoffs from three to two in order to
retain Carley. As he testified: "We'd make work for him."
Whatever Cotz' motives for trying to save Carley-human-
itarian, personal, or otherwise-his willingness to retain
Carley indicates that layoffs in the mechanical department
were not inexorably required.
In addition it may be noted that, even if it be assumed
that layoffs were necessary in the mechanical department,
it does not follow that they had to be made among the
pipefitters. The mechanical department was then made up
of a number of crafts, 57 employees in all, of whom only 16
are pipefitters. While Cotz testified that the pipefitters
comprised the largest craft group, numbering 16, he made
no attempt to explain why it was necessary to confine the
discharges solely to the pipefitters and millwrights. The Re-
spondent is not, of course, under an obligation to establish
the legitimacy of its conduct The burden of proof is on the
General Counsel to establish the contrary. However, once
a defense is asserted, its probity and weight are subject to
examination and evaluation.
The circumstance that Cotz ultimately withdrew his in-
sistence that Griffiths and Clark resign, and agreed to
Clark's seniority waiver proposal, does not reflect an ab-
sence of discrimination. For the disposition to which Cotz
agreed would still have resulted in the layoff of Griffiths
and Clark. Since this was the disposition which Cotz de-
sired, his acquiescence to it can scarcely be said to reflect
nondiscriminatory motivation. I recognize that Clark's pro-
posal could have raised legitimate question in the
Respondent's mind as to its legality under the contract.
However, I am persuaded that such doubts were not the
factors which impelled Cotz to insist, initially, on the resig-
nations of Clark and Griffiths.
The right to file grievances, concertedly or under a col-
lective-bargaining contract, is an activity protected by the
Act, and laying off employees for filing them is unlawful.
H. O. Seiffert Company, 199 NLRB 960, 966-67 (1972).
Since the layoff of Carley was an essential element in ac-
hieving the discrimination against Griffiths and Clark, the
action against Carley was also discriminatory and an un-
fair labor practice. Arnoldware, Inc., 129 NLRB 228, 229
(1960); Englewood Lumber Company, 130 NLRB 394, 395
(1961); Ambrose Distributing Company, 150 NLRB 1642,
1646 (1965). It is consequently found that by laying off
Patrick Carley, Peter Clark, and Trevor Griffiths, the Re-
spondent discriminated in their conditions and tenure of
employment, thus discouraging membership in a labor or-
ganization and interfering with, restraining, and coercing
employees in the exercise of their rights under Section 7 of
the Act. It is further found that conduct violated Section
8(a)(1) and (3) of the Act
It is further found that Manager Cotz' statements to Pe-
ter Clark in seeking to have Clark withdraw his grievance
against Foreman Moran constituted a threat A similar
finding is made with respect to Cotz' statements to Carley
on Wednesday, October 29, to Union President Mottola on
the same date, and to Union Steward Robertson about Oc-
tober 30 or 31, all to the effect that the filing of grievances
by Clark and Griffiths were a cause of their layoffs All
those incidents constituted additional violations of Section
8(a)(1).
Upon the foregoing findings and conclusions, and the
entire record in the case, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER4
Respondent Givaudan Corporation, Clifton, New Jer-
sey, its officers, agents, successors, and assigns, shall:
I Cease and desist from:
(a) Laying off or otherwise penalizing or discriminating
against employees because they file grievances.
(b) Threatening employees for such reason.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Patrick Carley, Peter Clark, and Trevor Grif-
fiths immediate and full reinstatement to their former posi-
tions or, if such positions no longer exist to, substantially
4 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority or
other rights and privileges.
(b) Make whole Carley, Clark, and Griffiths for any loss
of earnings suffered by reason of the discrimination against
them, by payment to each of them the wages which they
lost as a consequence of their layoffs, less their net earnings
in other employment since, if any.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due and the right of
reinstatement under the terms of this Order.
(d) Post at its place of business in Clifton, New Jersey,
copies of the attached notice marked "Appendix " 5 Copies
of that notice, on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
representative, shall be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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 cov-
ered by any other material.
5 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
(e) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides presented evidence, the
National Labor Relations Board has found that we have
violated the National Labor Relations Act as amended,
and has ordered us to post this notice. We intend to abide
by the following:
WE WILL NOT lay off, threaten, or otherwise discrimi-
nate against employees because they have filed griev-
ances.
WE WILL NOT in any way interfere with, restrain, or
coerce employees in the exercise of any of their rights
under the National Labor Relations Act
WE WILL offer reinstatement with backpay to Patrick
Carley, Peter Clark, and Trevor Griffiths.
GIVAUDAN CORPORATION