Grumman Allied Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1970

181 N.L.R.B. 1063 (N.L.R.B. 1970)

OLSON BODIES , INC. 1063
Olson Bodies, Inc., a subsidiary of Grumman Allied
Industries, Inc. and International Union , United
Automobile , Aerospace and Agricultural
Implement Workers of America (UAW).' Cases
3-CA-3326 and 3-CA-3326-2
April 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Olson Bodies, Inc.,
formerly Grumman Allied Industries, Inc., Athens,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, with the
qualification described below.'
'Substitute "Judgment" for "Decree" wherever it occurs in fn 34 of the
Trial Examiner's Recommended Order
TRIAL EXAMINER'S DECISION
On June 25, 1969, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
The General Counsel filed cross-exceptions and a
supporting memorandum. The Respondent filed a
brief in reply to the cross-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 made by the
Trial Examiner and finds that no prejudicial error
was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations4 of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
'Consistent with a request by the Union , the designation AFL-CIO has
been deleted from its name wherever it appears herein , and in the Trial
Examiner ' s Decision
'The Respondent has requested oral argument This request is hereby
denied as the record , the exceptions, and the briefs adequately present the
issues and the positions of the parties
'The Board Decision and Order referred to in fn . 14 on page 7 of the
Trial Examiner's Decision was enforced in its entirety by the Court Olson
Bodies, Inc. formerly Grumman Allied Industries , Inc, 420 F 2d 1187
(C A. 2)
'These findings and conclusions are based , in part , upon credibility
determinations of the Trial Examiner , to which the Respondent has
excepted, alleging that the Trial Examiner was biased and prejudiced
After a careful review of the record , we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all the
relevant evidence Accordingly , we find no basis for disturbing the Trial
Examiner's credibility findings in this case, and reject the charge of bias
and prejudice. Standard Dry Wall Products , Inc. 91 NLRB 544, enfd. 188
F.2d 362 (C.A 3)
STATEMENT OF THE CASE
SAMUEL Ross , Trial Examiner : On charges filed on
September 26 and November 16, 1967, and amended on
November 16, 1967, by International Union , United
Automobile , Aerospace and Agricultural Implement
Workers of America, AFL-CIO (herein called the Union
or UAW), the General Counsel of the National Labor
Relations Board issued a complaint on December 21,
1967, amended on December 29, 1967, and. February 14
and 15, 1968,' which alleges that Olson Bodies, Inc.2
(herein called the Company or the Respondent ), engaged
in unfair labor practices affecting commerce within the
meaning of Section 8 (a)(1), (3), and (5) and Section 2(6)
and (7 ) of the National Labor Relations Act, as amended.
In substance , the complaint as amended alleges that the
Respondent violated the Act by coercively interrogating
employees concerning their union activities , threatening
employees with plant closure and other reprisals, and
promising and granting wage increases and other benefits,
all to discourage its employees from adhering to the
Union ; by discharging 70 employees and refusing to
reemploy them because of their union membership and
activities; and by failing and refusing to bargain with the
Union, the certified collective-bargaining representative of
its employees in an appropriate unit . The Respondent filed
answers to the complaint and its amendments which deny
the substantive allegations and the commission of unfair
labor practices.
Pursuant to due notice , a hearing on the issues thus
joined was held before me at Albany , New York, on 27
hearing dates commencing on February 26, 1968, and
concluding on June 13, 1968 . Upon the entire record,' and
my observation of the witnesses and their demeanor, and
after due consideration of the briefs filed by the parties, I
make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a New York corporation whose
principal office is located at Garden City, Long Island,
New York, operates plants at Athens and West Athens,
,in addition , motions to further amend the complaint were granted
during the hearing in this case
'The name of the Respondent in the caption appears as amended at the
hearing
'The record includes several exhibits which were received by stipulation
of the parties after the hearing closed . After the hearing closed, the
Respondent also moved to correct numerous errors in the transcript of the
hearing . The General Counsel and Charging Party filed oppositions to said
motion By order dated March 17, 1969, 1 granted the Respondent's
motion in part, and the necessary corrections have been noted in the
original transcript
181 NLRB No. 166
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York, Sturgis, Michigan, and Sherman, Texas, at
which it manufactures forward control aluminum bodies
for route delivery trucks and related products. During the
past year, a representative period, the Respondent
manufactured and sold products valued in excess of
$50,000 which were shipped from its Athens and West
Athens, New York, plants directly to points and places
outside the State of New York, and purchased goods and
materials valued in excess of $50,000 which were shipped
to said plants from places outside the State of New York.
The Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and I further find that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues Presented for Determination
The complaint alleges that Respondent engaged in
numerous acts of interference, restraint, and coercion of
its employees to discourage their participation in union
activities and adherence to the Union. The testimony of
the General Counsel's witnesses in this regard was
substantially controverted by Respondent's officers and
supervisors. There is thus presented the usual problem of
making credibility determinations. In addition, this aspect
of the case also poses the question of whether the
allegedly illegal conduct occurred within or prior to the
6-month limitation period prescribed by Section 10(b) of
the Act
The complaint also alleges that notwithstanding the
Board's certification of the Union on April 14, 1967, as
the exclusive collective-bargaining representative of
Respondent's production and maintenance employees at
the Athens and West Athens plants, the Respondent, in
violation of Section 8(a)(5) and (1) of the Act, failed and
refused to bargain with the Union by (a) refusing on and
after April 28, 1967, to furnish the Union with requested
information regarding wages and employment conditions
of employees in the unit ; (b) unilaterally changing wage
rates and other benefits; and (c) terminating the
employment of 69 employees in the unit on September 22,
1967, all without notice to or consultation with the Union
In respect to this phase of the case, the Respondent
contends that the Board improperly certified the Union as
the representative of its employees, and that it has no
obligation to bargain with the Union.
The complaint further alleges that on August 4, 1967,
in violation of Section 8(a)(3) and (1) of the Act, the
Respondent discharged George Hildenbrand, Sr., and
refused thereafter to reinstate him, because of his union
membership and activities. The Respondent contends that
Hildenbrand, the acknowledged leading advocate of the
Union, quit on that date, but that if he did not do so, it
had just cause for discharging him for insubordination,
because he had refused to accept a transfer to another job
assignment. This phase of the case presents for
determinating the motivation of Respondent for the job
transfer which Hildenbrand refused to accept, and whether
or not the later refusal of Respondent to permit
Hildenbrand to return to work was motivated by unlawful
antiunion considerations.
On September 22, 1967, the Respondent permanently
terminated the employment of 69 of its 200 employees in
the production and maintenance unit at the Athens and
West Athens plants without any prior notice to them. The
complaint alleges and the General Counsel contends that
this massive discharge of employees violated Section
8(a)(3) and (1) of the Act because: (a) it was motivated by
antiunion and not economic considerations; and (b) the
selection of those who were thus terminated likewise was
motivated by antiunion considerations. The Respondent
contends that these terminations were motivated solely by
economic considerations, and that the selection of those to
be terminated and retained was based on considerations of
efficiency and ability, and not on union membership or
activities. In addition the Respondent professes lack of
knowledge of the union sympathies or adherence, or lack
thereof, of its employees.
B. Background
1. The Respondent's corporate and sales affiliates,
name changes, and growth
The Respondent, Olson Bodies, Inc., is a wholly owned
subsidiary of Grumman Allied Industries, Inc (herein
called Grumman Allied), which in turn is a subsidiary
formed in 1962 by Grumman Aircraft Engineering
Corporation (herein called Grumman Aircraft) to assume
the operation of all of the latter's nonaeronautical
activities.'
Grumman Aircraft commenced the manufacture of
aluminum truck bodies in 1949 at a single plant located at
Athens, New York, operated by its wholly owned
subsidiary Aerobilt Bodies, Inc. In 1955, another plant
(known thereafter as Plant 2) was added for truck body
manufacture at West Athens, New York, about 3 miles
from the original plant at Athens which then was
designated as Plant 1.5 In 1956, the production area of
Plant 2 was approximately doubled by the construction of
an extension to the original building In 1957, a warehouse
and office building was constructed by Respondent
adjacent to Plant 2, and in 1963, a paint shop extension
was added to the production building In 1963, the
Respondent also acquired two additional plants for the
production of aluminum truck bodies, at Sturgis,
Michigan, and Sherman, Texas, respectively.6 In 1967, the
Respondent also constructed a substantial addition to the
Sturgis plant.
On December 31, 1962, after the formation by
Grumman Aircraft of Grumman Allied, Aerobilt Bodies,
Inc. was merged with the latter corporation, and the
manufacture of aluminum truck bodies thereafter was
carried on under the name of Grumman Allied At the
time of said merger, for an undisclosed period before then,
and thereafter, all truck bodies made by Respondent were
sold to J.B E Olson Corporation, its exclusive sales agent,
and by the latter to operators of large fleets of trucks and
to franchised automobile dealers On November 6, 1964,
Grumman Allied acquired J.B E. Olson Corporation and
'These activities included the manufacture of aluminum truck bodies,
pleasure boats, cruisers , canoes, dinghies, and diesel marine engines
'In Plant 1, the Respondent, in addition to truck bodies, also
manufactured diesel marine engines, but the latter activity was
discontinued prior to the hearing in this case
Inc Sturgis plant also assembled aluminum canoes, but in 1967,
because the volume of truck orders at Sturgis increased , the canoe
operation was transferred to another plant of Grumman Allied at
Carmichaels, Pennsylvania.
OLSON BODIES , INC. 1065
the latter company thereafter functioned as a subsidiary of
Grumman Allied. On May 15, 1967, Wallace B.
Spielman, the president of J.B.E. Olson Corporation, also
was elected as president of Grumman Allied, and on July
1, 1967, based on his recommendation, all of the truck
body manufacturing operations of Grumman Allied were
transferred to a newly formed subsidiary, Olson Bodies,
Inc , because, the products were known in the industry as
Olson Bodies.
The commonly shared principal offices of Grumman
Allied, and its subsidiaries, Olson Bodies, Inc., and J.B.E.
Olson Corporation are located in Garden City, Long
Island , New York.'
2. Prior unsuccessful organizational efforts
Before the Union was certified by the Board on April
14, 1967, there had been a substantial number of attempts
by unions to achieve collective-bargaining representative
status for the Respondent's production and maintenance
employees at Athens and West Athens, all of which were
successfully resisted by the Company. The Board's
administrative records disclose that between 1951 and
1963, there were five representation proceedings filed by
unions for certification, that six elections were conducted
by the Board, and that the respective unions were defeated
at all of theme The last such election before that which
resulted in the Union's certification was conducted on
March 29, 1963.
3. UAW's organizational campaign and certification
- the Respondent's refusal to bargain with UAW
On September 8, 1966, the Union commenced its
second effort to organize the Respondent's production and
maintenance employees at the Athens Plants 1 and 2.
Between that date and September 26, 1966, 121 of the 225
employees in said unit signed authorization cards
designating the Union as their collective-bargaining
representative '
On September 27, 1966, the Union filed a petition for
certification as the representative of the employees in that
unit.'° A hearing on said petition was conducted on
October 28 and November 4, 16, and 17, 1966. The
Respondent contended that the appropriate unit should
include the Respondent's employees at its truck body
plants in Sturgis, Michigan , and Sherman, Texas, on the
ground, inter alia , that the operations of said plants are
integrated with those at the Athens Plants I and 2 " The
Respondent also urged that the employees at its newly
acquired Wormuth Brothers Foundry Division (located in
Athens, New York), which manufactures metal castings
primarily for lamp bases, but some for use in the truck
body business, should be included in the appropriate unit.
On January 16, 1967, the Regional Director issued his
Decision and Direction of Election, in which he found,
contrary to Respondent's contentions, that the appropriate
'The findings in the above section of this decision are based principally
on the uncontroverted testimony of,Robert F Loar, senior vice president
of Respondent See, also, Standard & Poor's Corporation Records and
Moody's Industrial Manual
'See Aerobilt Bodies, Inc, Case 2-RC-3613, 1951 petition by UAW,
Case 2-RC-8693, 1957 petition by the "AFL Boilermakers", Case
2-RC-9437, 1958 petition by "AFL Boilermakers"; Case 3-RC-2486, 1960
petition by Sheet Metal Workers International Association , AFL-CIO; and
Case 3-RC-2872, 1962 petition by International Union of Electrical
Workers, AFL-CIO
'See G C Exh. 44-1 to 44-121
unit was the production and maintenance employees at
Plants 1 and 2. On January 27, 1967, the Company
requested the Board to review the Director's unit
determination, and on February 9, 1967, the Board denied
the request On February 17, 1967, at the
Board-conducted election, the Union received 110 votes,
109 employees voted against the Union, and 1 ballot was
challenged. On February 24, 1967, the Company filed
timely objections to the conduct of the election. Thereafter
on April 14, 1967, the Regional Director issued his
Supplemental Decision and Certification of
Representative, sustaining the Board agent's challenge to
the ballot of William Davenport,12 overruling the
Company's objections to the election, and certifying the
Union as the exclusive collective-bargaining representative
of the employees in the unit previously found appropriate.
On April 27, 1967, the Respondent requested the Board to
review the Supplemental Decision of the Regional
Director, and on May 23, 1967, the Board denied the
request as raising no substantial issues warranting review
On April 28, 1967, after its certification, and again on
June 9, 1967, after the Board denied the Company's
request to review the Director's Decision and
Certification, the Union by letter requested Respondent to
meet and bargain regarding a collective-bargaining
agreement, and to furnish information regarding existing
wage rates and other employee fringe benefits. The
Respondent, in its replies to both letters, declined to
bargain or to furnish the requested information stating in
effect that the Board's certification of the Union was
erroneous and that it would "take the necessary steps
under the law to correct this error "
Accordingly, the Union filed a charge with the Board
on June 13, 1967, alleging that Respondent thereby had
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act by failing and refusing
to bargain with it." On July 27, 1967, the General
Counsel issued a complaint based on the Union's charge;
on August 22, 1967, the Respondent filed an answer to the
complaint; and on August 17, 1967, the General Counsel
moved for summary judgment in that case. The motion
was referred to Trial Examiner Charles W. Schneider who
on August 22, 1967, issued a notice to Respondent to
show cause why the motion should not be granted. On
September 21, 1967, the Respondent filed its opposition to
the motion, and on December 6, 1967, the Trial Examiner
issued his Decision finding that Respondent had refused to
bargain with the Union and thereby had engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act. On January 8, 1968, the Respondent filed
its exceptions to the Trial Examiner's Decision, and on
April 23, 1968, the Board issued its Decision and Order
affirming the Trial Examiner.' ° The Respondent
admittedly has not complied with the Board's Order, and
on December 11, 1968, the Board petitioned the Court of
Appeals for the Second Circuit for enforcement thereof.
That case is still pending.
"Grumman Allied Industries , Inc, Case 3-RC-4023
"G C. Exh 2-b
"Davenport ' s name was not on the eligibility list furnished by the
Company
"Case 3-CA-3245
"Olson Bodies , Inc. formerly Grumman Allied Industries , Inc, 170
NLRB No 34
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Respondent ' s opposition to the Union
The success of the Union in achieving certification as
the representative of Respondent's employees was
accomplished despite vigorous opposition by the Company
regarding which considerable testimony and documentary
evidence were adduced at the lengthy hearing in this case
Much of that testimony, substantially controverted by
Respondent, concerned alleged coercive and restraining
conduct to dissuade employees from supporting the Union
which occurred more than 6 months before the charge in
this case was filed and served. To the extent that this
testimony concerned conduct before March 27, 1967, it
cannot support findings of unfair labor practices by
Respondent in view of the limitation imposed by Section
10(b) of the Act.15 However, this conduct may and will be
considered hereinafter insofar as it sheds any light on the
Respondent's motivation for the nontime-barred
complaint allegations that first George Hildenbrand, Sr.,
and later 69 other employees were discharged because of
antiunion considerations.16
a The wage rate increases
On September 8, 1966, George Hildenbrand, Sr., an
employee of Respondent, contacted a representative of the
Union and received from him a supply of about 200 union
authorization cards. Hildenbrand promptly distributed the
cards among Respondent's employees for signature, and
as previously noted, between September 12 and 26, 1966,
121 of Respondent's 225 production and maintenance
employees at Athens signed the cards which Hildenbrand
then returned to the union representative.
On or about September 15 or 16, 1966, David
Simmons, the plant manager of Plants I and 2,
summoned Hildenbrand to his office and asked him how
"the Union business" "got started" When Hildenbrand
replied that it was due to low wages and poor fringe
benefits which the employees received, Simmons said that
he would have to notify Mr. Loar, Respondent's senior
vice president."
"The initial charge in this case was served upon Respondent on
September 27, 1967
"Cf Local Lodge No 1424, International Association of Machinists v
NLRB,362US 411
"The findings above are based on the testimony of Hildenbrand which I
credit in this regard Contrary to Hildenbrand , Simmons testified that this
conversation was initiated by Hildenbrand , that the Union was not
mentioned , and that he had no knowledge at that time that a union
organizational campaign was in progress I credit Simmons' version of this
conversation only to the extent it accords with Hildenbrand ' s above,
because I regard Simmons' testimony as generally unreliable for the
following reasons Simmons quite obviously was intelligent and articulate,
and comprehended both the nature and thrust of the questions propounded
to him Nevertheless , his responses , especially on cross-examination, were
frequently evasive and lacked candor and frankness whenever he regarded
a direct answer to the question as contrary to the Respondent 's interest In
addition , Simmons ignored repeated admonitions to answer questions
directly, to cease engaging in advocacy , and to leave the latter function to
Respondent 's eminently qualified and competent counsel Moreover, in the
light of the numerous prior efforts of Respondent ' s employees to achieve
self-organization , Simmons' reluctant admission that he knew of the
employees ' "unrest" and "uneasy feeling[s]," his quite apparent familiarity
with all the employees on a first name basis, and the pay raises and speech
by Respondent 's vice president which followed shortly after this
conversation , I am convinced that no credence can be placed in Simmons'
denial of knowledge that Respondent 's employees once again were engaged
in self-organizational efforts For all these reasons , and others which will
be noted , infra, I credit Simmons ' testimony only when it accords with
other credited testimony or constitutes an admission against the
After his conversation with Hildenbrand, Simmons
promptly called Vice President Loar at his Garden City,
Long Island, office, told Loar of his conversation with
Hildenbrand, and received Loar's promise to visit the
Athens plants soon. In addition, effective September 19,
1966, Simmons instituted a wage increase of 17 cents per
hour for Hildenbrand, and increases of from 5 to 20 cents
per hour for about half of the Athens employees
However, contrary to his prior uniform practice, Simmons
did not notify or discuss these wage increases with
Hildenbrand and the other employees whose pay was thus
affected before granting them 11
On September 20, Loar came up to Athens and, on the
following day, he met with Hildenbrand and Simmons for
over 3 hours in the Plant 1 office." Loar asked
Hildenbrand at this meeting "why did I [Hildenbrand]
implicate myself in the starting of this Union?"
Hildenbrand replied, "Somebody had to carry the ball so
it might as well be me"; and he told Loar that "we [the
employees] all felt we were underpaid," and that in view
of increased hospitalization costs, the Respondent's fringe
benefits were insufficient Loar then stated that as a
consequence of a recent 4- to 5-percent price increase
instituted by Respondent on its truck bodies it now had
"more leeway in dealing with the money problems," that
it was in the process of granting wage increases to its
employees, and that "maybe we can look into the increase
of fringe benefits also." Simmons then told Hildenbrand
for the first time that he would shortly receive an increase
of 17 cents per hour. Loar then reminisced with
Hildenbrand about previous unsuccessful union organizing
campaigns in which Hildenbrand had actively supported
the union which lost, and reminded Hildenbrand that in
these earlier campaigns, Hildenbrand "had been stabbed
in the back" by the employees, and that his health had
been impaired. Loar asked. Hilden brand in this context,
"Don't you think you should be thinking about your
health?" Hildenbrand's reply is not disclosed by the
record, but he did suggest at this meeting that Loar
"owed the men a speech "20
On the following day, September 22, 1966, all of the
Respondent's employees at Plants I and 2 were assembled
for a speech by Loar which lasted 3-1/2 hours. Loar made
no reference in this speech, either to the wage rate raises
assertedly already effected for half of the employees (but
not yet reflected in their paychecks), or to any intention of
Respondent to grant like increases to the remainder of its
Athens employees. According to Loar's testimony,
Respondent's interest
"Under the Respondent ' s system of wage payments, these increases
would not be reflected in the employees ' paychecks until 10 days after the
effective date
"Simmons summoned Hildenbrand from his job at Plant 2 and drove
him to this meeting
"The findings in this paragraph are based on the testimony of
Hildenbrand and Loar which is credited to the extent indicated above
Contrary to Hildenbrand , both Loar and Simmons testified that no
reference was made at this meeting to the Union, but only to "a lot of
unrest in the shop " I regard this testimony of Loar and Simmons as
unworthy of credence in the light of (a) Hildenbrand' s prior known union
activity to which Loar himself alluded when he admittedly told
Hildenbrand that his health had suffered "the last time you were mixed up
- speaking for the men", and (b) Loar's quite obvious attempt to dissuade
Hildenbrand from further pursuing his union activity, which is disclosed by
his question to Hildenbrand , "Don't you think you should be thinking
about your health?" I am persuaded by the foregoing and by Loar's speech
to the employees the following day, that not only Simmons , but also Loar,
knew that a union organizational campaign was then in progress at the
Athens plants
OLSON BODIES, INC. 1067
credited in this regard, he told the employees about
Respondent's products, its efforts to increase business at
the Athens plants, the ready accessibility to the employees
of Plant Manager Simmons for airing their differences
with the foremen or if "something [was] bothering" them,
and his like availability for hearing such grievances during
his visits to-the plant =i
As previously noted, the Union filed a petition with the
Board for certification as the representative of
Respondent's production and maintenance employees at
the Athens plants on September 27, 1966. One week later
on October 3, 1966, and again without prior notice to or
discussion with the employees affected, the Respondent
increased by 5 to 20 cents per hour the wage rates of all
but eight of the remaining Athens employees who had not
received a raise in pay 2 weeks earlier 13
b Interrogation of employees - Conveying the
impression of surveillance
After these pay raises were received by the employees
in their paychecks, Plant Manager Simmons summoned
each of them into his office, one at a time, assertedly for
the purpose of telling them about the raises they already
had received, and about any changes that the raise had
effected in their deduction for group life insurance. These
interviews, according to Simmons' testimony credited to
this extent, commenced in the latter part of September
1966, and continued until about the middle of December
1966, a period of about 2 1/2 months During these
interviews, Simmons asked employees. if they were
satisfied with their raise; if they felt they were being
treated fairly; if they had signed union cards; why they
had done so; and whether they wanted to get their cards
back. Simmons also told the employees that he had "ways
of finding out" who had signed union cards, that
employees who signed cards had made a mistake, and that
there would be no union because the Company would
fight it and would not contract with any union ='
"Several employees , including Hildenbrand , testified that during this
speech , Loar also said , during references to negotiations for a union
contract, that "it takes two to tango ," and other employees testified that
Loar also made statements in this speech indicating an intention by
Respondent not to agree to a contract with a union I do not credit this
testimony because I am persuaded by Loar's testimony , corroborated by
other employee witnesses of the General Counsel , that the subject of
negotiations with the Union was not discussed by Loar in this speech, but
in his preelection speech to employees on February 16, 1967, described
infra
"The findings in respect to the wage increases of September 19 and
October 3, 1966, are based, inter alia , on the Respondent's records of the
200 unit employees who worked for the Company on September 22, 1967,
the date when 69 of them were "permanent [1y]" terminated (G C Exh
20-1 to 20-200) These records also disclose that a substantial number of
these employees had received wage rate increases only 3 or 4 months
earlier, that the smaller rate increases were given to such employees, and
that of the eight who received no raise at this time , three were salaried
employees, one was an assistant foreman whose rate already was about the
highest in the plant , one was newly hired, and another had not yet been
hired Plant Manager Simmons conceded that practically all the unit
employees at the Athens plants ("99% of the people" ) received the wage
rate increases on either September 19 or October 3, 1966
"Obviously , Simmons' conversations with the employees were not
identical Except as otherwise indicated , the findings above are based on
the testimony of Edward E Boice, Cosmo L Riozzi, Jr , Alfred R
DeLuca, James L Palmateer , and Joseph Men, which is representative of
similar testimony by many other employees Riozzi erroneously testified
that his conversation with Simmons took place in June 1967, but I am
satisfied that he was confused as to the date, but that his substantive
testimony in all other respects is worthy of credence To the extent that in
In respect to these conversations with employees,
Simmons testified that he had "never asked any
employees whether or not they had signed union cards,"
and he also specifically denied all of the coercive
statements attributed to him by the employee witnesses
for the General Counsel. However, contrary to his
testimony that he "never" asked any employee if he had
signed a union card, Simmons, in later testimony,
admitted that he had so inquired of employee Boice. In
addition, Simmons denied that he knew in October 1966
(when he had a postraise discussion with employee Rabl),
that a union organizational campaign was in progress.
However, the record discloses that on September 27, 1966,
the Board mailed to Respondent's Athens plant a copy of
the Union's petition for certification in Case 3-RC-4323.
It is thus inconceivable that when Simmons, the plant
manager at Athens, spoke with Rabl in October 1966, he
would be unaware of the Union's petition. All of the
foregoing reinforces my credibility determination
previously made that Simmons' testimony is generally
unreliable.
c. Conclusions regarding the wage raises and
Simmons' interviews with employees
I am persuaded by the record that the Respondent's
motivation for both the wage raises in September and
October 1966, and for the postraise conversations by
Simmons with the employees, was to dissuade the latter
from supporting the Union My reasons for these
conclusions are as follows:
(1) The Respondent admittedly has no fixed policy
regarding when, or at what intervals, it grants pay raises
to its employees. Normally, either Simmons or the
foremen review the wage rates of all employees, but these
reviews do not always or even generally result in a raise."
There had been no increase in wages for all employees at
one time since Simmons became plant manager in
January 1964. In previous cases (almost "without
exception"), the employees whose wage rates were
increased were called into Simmons' office for discussion
of the subject before the raise was given. In contrast with
that practice, no prior notice, discussion, or review with
the employees occurred before the September-October
wage increases were instituted.
(2) Although (according to Simmons), these raises
already were being processed when Hildenbrand
complained to him on September 15 or 16, 1966, that he
and other employees had difficulty in making ends meet,
Simmons did not then apprise Hildenbrand of the
assertedly impending wage increases Simmons' failure
under these circumstances to tell Hildenbrand about these
raises strongly suggests that they had not yet been granted
and were not yet being processed.
(3) The later notice which Loar gave Hildenbrand that
he was about to receive a raise occurred in the context of
a quite obvious effort to dissuade Hildenbrand from
further pursuing union activities.
(4) In Loar's speech to the employees which clearly was
intended to persuade employees that they needed no union
but could effectively adjust their grievances directly with
either Simmons or himself, Loar significantly failed to
mention that a wage rate increase for most of the
these conversations some employees attributed to Simmons threats that if
the Union were successful he would quit his job or lay off employees, I do
not credit their testimony
'G. C Exh. 20-1 to 20-200
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees was being processed, an omission which, in
view of the nature of the speech, further suggests that the
wage increases had not yet been granted and were not yet
being processed. All of the foregoing and the timing of the
raises persuade me that the September and October 1966
wage increases were hastily conceived and granted after
knowledge of the union campaign to discourage support of
the Union by the employees
This conclusion is further supported by Simmons'
postraise separate and private discussions with the
employees about their increases . As previously noted,
Simmons initially testified that the purpose of these
private discussions was to explain the raise to the
employees and its effect on their deduction for group life
insurance . However, since most of the employees were
summoned for these discussions weeks and months after
their raises had been effected and reflected in their
paychecks, and since in any event the raise and deduction
from pay readily could have been explained by notice or
stub accompanying the paychecks, it is quite obvious that
other considerations must have motivated these private
interviews with employees. Eventually, Simmons conceded
that he called the employees in for discussion because he
"knew that there was [sic] problems," he knew that the
problem was "the Union situation," and he "wanted to
hear the gripes." In view of the foregoing, and Simmons'
own testimony that he asked employees during these
conversations if they were "satisfied" and felt that they
were being "treated fairly," it is quite apparent and found
that these discussions were intended by Simmons to
ascertain the effect of the wage increase on the Union's
support, as well as for discouraging such support."
d. Additional preelection conduct to discourage union
activity
After Loar's September 22, 1966, speech, and until the
Board election held on February 17, 1967, the Respondent
continued to discourage employee support of the Union by
the following conduct of its foremen:"
(1) Foreman Elvin Holden told employee John Brunner
that all of the employees were "crazy," and that he
thought "if the Union got in, the plant would shut their
[sic] doors." Holden also made a similar statement to
employee Wilbur R. Combs."
(2) Foreman Robert Peloke told employee John K.
Perry to "not lean towards the Union," and "to watch my
step - or there wouldn't be a job"; and he asked Perry
when and where the union meetings were being held
Peloke also asked employee S. Nelson Chadderdon what
he thought of the Union, and when Chadderdon said that
"Simmons testified that a purpose for these postraise discussions with
the employees also was to acquaint them with what the Company was
doing in respect to new truck models and prototypes , but I do not credit
this testimony as none of the conversations to which Simmons testified
contained any reference to these subjects.
"The findings below do not purport to represent all of the conduct of the
Respondent 's foremen concerning which testimony was adduced, but is
representative of such conduct Additional findings in respect to this
conduct which preceded the 10(b) period is regarded as supererogatory
"Except as to dates, in respect to which the employee witnesses quite
obviously were uncertain and confused , the findings above and those which
immediately follow are based on the credited testimony of the employees
specifically named in the text To a considerable extent , the testimony thus
credited was controverted by the Respondent 's foremen (Holden , Peloke,
and Jackson ), but their contrary testimony is not believed or credited
because it is regarded as generally unreliable by reason of demeanor,
evasions, and lack of candor
he "belonged to the Union," Peloke told him that "if the
Union did get in, he didn't know whether some of the
older men could stand the pace, because more would be
demanded of them [than what they were then doing]."
Peloke also called employee Anthony D. Sapunarich into
his office to discuss a wage raise, asked Sapunarich "how
the fellows in the router room felt about the Union," and
told him that "he thought after the Union got in the
Company would put locks on the doors "
(3) Foreman William Jackson told employee Phillip A.
Peters that if "the Union did get in to Aerobilt Bodies,
that the plant would close down " Jackson also made
similar statements to employees Wilbur R. Combs and
Joseph Meo.
e. Vice President Loar's preelection letter and speech
On February 10, 1967," during the week before the
Board election, the Respondent sent a letter signed by
"Bob Loar" and "Dave Simmons" to all its employees
urging them "to vote against the Union "_' In addition, on
February 16, the day before the Board election, Vice
President Loar made speeches to the Athens employees at
Plants 1 and 2 urging their rejection of the Union.
According to a number of employee witnesses for the
General Counsel, during these speeches, Loar said that "it
takes two to tango," and that the "employees' belly
buttons would be touching our backbones before he'd sign
a contract [with the Union] "70
f. Conclusions regarding the preelection conduct
In summary, it appears that during the Union's
organizational campaign which preceded the Board
election, the Respondent engaged in the following conduct
to discourage and dissuade its employees from supporting
the Union:
(1) Interrogation of the principal employee union
organizer regarding how and why he became implicated in
starting the Union, and promising and granting him a
wage rate increase in the context of an obvious effort to
dissuade him from further pursuit of his union activities
(2) Granting wage increases to practically all its
employees and promising to consider improvements in
"the fringe benefits also," to dissuade support of the
Union.
(3) Interviewing and interrogating all employees
separately in the private office of the plant manager,
regarding whether or not they were satisfied with their
recent raise and felt they had been treated fairly, whether,
or not they had signed union cards, why they had done so,
and whether they wanted to get their cards back
(4) Telling the employees in these interviews that
Respondent had "ways of finding out" who had signed
"All dates hereafter refer to 1967 unless otherwise noted
"G C Exh 10
''The quotes above are from the credited testimony of employee Paul
Kisselburg Loar admitted saying that "it takes two to tango," but he
testified that he was not thereby inferring that the Company would not
agree to or sign a contract with the Union , but merely meant that if
demands were made which the Company could not meet , agreement would
not be reached Loar also admitted using the expression that "belly buttons
would be touching backbones," but he denied that he was referring to
Respondent ' s employees , and testified that he was speaking about the
workers at General Electric Corporation who had been out on strike for a
long time I credit Kisselburg and the other General Counsel' s witnesses as
to what Loar said in this respect , and I regard Loar 's attempted
explanation of these statements unworthy of credence
OLSON BODIES, INC. 1069
union cards, and thus conveying to them the impression
that their union activities were being subjected to
surveillance.
(5) Threatening employees with plant closure and other
reprisals if the Union's campaign proved successful.
(6) Telling employees in effect that before it would
contract with the Union, they would have to engage in a
long strike during which their "belly buttons would be
touching [their] backbones."
It is well established that all of the conduct enumerated
above, but for the limitations imposed by Section 10(b) of
the Act, constituted interference, restraint, and coercion of
employees in the exercise of their statutory rights within
the meaning of Section 8(a)(1) of the Act.
C. Postelection Opposition to the Union
After the election which the Union won by the narrow
margin of one vote, Respondent's employees were solicited
on behalf of the Union to sign cards designated as
"Special Official Applications for Membership." One
hundred and eleven employees signed these applications,
most of them between March 6 and May 19.1'
The employees' signatures to these membership
applications were obtained by the Union's solicitors
despite the Respondent's oral and written notices and
exhortations to its employees that:
(1) Membership in the Union and the payment of dues
was unnecessary, and could be required only "if the
Company agreed to such a requirement in a contract with
the Union."32
(2) The Respondent did not "believe" in union-security
contracts which "imposed" union membership on
employees.33
(3) The Director's Decision and Certification of the
Union was "contrary to the facts and is being appealed to
the National Labor Relations Board."34
(4) The Board's denial of Respondent's request for
review would be appealed further "even beyond the
National Labor Relations Board," and that the employees
should "resist the pressures which are being put upon you
[to sign applications for Union membership]."33
No contention is, or could be, made by the General
Counsel that the Respondent by the foregoing conduct
engaged in unfair labor practices. These exhibits disclose
only and I find that the Respondent continued to oppose
the representation of its employees by the Union after the
Board's election and the Union's certification, a fact
which the Respondent freely admits.
D. The Refusal to Furnish Information to the Union
As previously noted, on April 28, after its certification,
and again on June 9, after the Board denied the
Company's request to review the Director's Decision and
"See G C Exh 45-1 to 45-I11 In addition to being applications for
membership in the Union , the cards authorized the Union to negotiate for
a contract containing union-security , and dues and assessment checkoff,
provisions
"See G C Exh 12, a notice signed by Plant Manager Simmons which
was posted by Respondent on its bulletin board on March II
"See G. C Exh 11, a letter sent to all employees which was signed by
Vice President "Bob Loar" and Plant Manager "Dave Simmons."
"See G. C Exh 12, a notice signed by Plant Manager Simmons which
was posted on the bulletin board on April 17
"See G C Exh. 16, a bulletin board notice signed by Sunmons, and G
C Exh 38, a letter to the employees signed by Loar and Simmons
Certification, the Union by letter requested Respondent,
inter alia, to furnish it with the names of the employees,
their classifications, dates of hire, wage rates, and
information regarding existing fringe benefits.36 In
response, the Respondent by letter declined to comply
with these requests on the ground that it regarded the
Union's certification as erroneous and intended to "take
necessary steps under the law to correct these errors."17 At
the hearing in this case, the parties stipulated that the
information requested by the Union has not been supplied
to it by the Respondent.
The complaint (paragraph XVII (c)) alleges that by this
refusal to furnish the requested information, the
Respondent has failed and refused to bargain with the
certified collective-bargaining representative and has
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(5) of the Act. The Respondent
did not and does not dispute the relevance of the
requested information to the bargaining process However,
it sought by an offer of proof3B to relitigate the same
issues and contentions which it had made and which the
Board had rejected in the prior representation case. The
offer of proof presented no newly discovered or previously
unavailable evidence, and accordingly, it was rejected at
the hearing in this case.19
Accordingly, since the Union, as the exclusive
bargaining representative of Respondent's employees, was
and is entitled to the information which it requested, and
the pendency of the Respondent's test of the Union's
certification did not suspend its duty to bargain under the
Act,4° it is found that the Respondent, by refusing to
supply the requested information, engaged in an unfair
labor practice within the meaning of Section 8(a)(5) of the
Act.
E. Post-Certification Wage Increases and Other
Benefits
On May 15, 1967, Wallace B. Spielman, who already
was president of Respondent's affiliate and exclusive truck
body sales agent, J.B.E. Olson Corporation , also was
elected president of the parent company Grumman Allied.
Upon Spielman's advent to his new position, the truck
body manufacturing operations of Grumman Allied were
promptly transferred to its newly formed, wholly owned
subsidiary Olson Bodies, Inc., and thereafter were
conducted under the latter name.
On June 5, Spielman visited the Respondent's Athens
plants and made a speech to all the employees. According
to a composite of the uncontroverted and credited
testimony of the General Counsel's employee witnesses,"
Spielman told the employees that "business looked good"
and that "there was a big backlog of orders on hand";
that he had "built up - the Olson sales division into what
it was today"; that there would be an " increase in
production at our plant" as well as "at the other plant";
that "we could do good running this business without any
outside interference"; and "if we would stick along with
11G. C. Exhs 3-a and 3-c
"G C Exhs 3-b and 3-d
"Resp Rejected Exh 79.
"Clement-Blythe Companies. 168 NLRB No 24, N L R B v. Tennessee
Packers, Inc, 379 F 2d 172, 179 (C A 6)
''Old King Cole. Inc v NLRB , 260 F 2d 530, 532 (C A 6)
"The findings which follow are based on the undenied credited testimony
of Dale Barkman, Ralph Valente , Edward Boice , John Brunner , William
Peters, and Joseph Thurston.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him - the employees of the Company would reap benefits
they never even dreamed of." Spielman also announced in
this speech that effective that same date, all hourly
employees would receive an increase of 10 cents per hour,
the Respondent would assume all of the cost of the
premiums for the existing group hospitalization insurance, 03
and the employees would reeeive five paid sick days per
annum (three for the remainder of 1967), which, if not
used for sickness, could be used as vacation days, or for
the receipt of additional pay. A notice to employees
regarding these increases in pay and fringe benefits was
posted on the Respondent's bulletin board that same
day. 63
The complaint alleges, inter alia (paragraph VI (b)),
that the Respondent violated Section 8(a)(1) of the Act by
granting these benefits to its employees "in order to
induce them to refrain from becoming or remaining
members of the Union, or giving any assistance or support
to it," and it further alleges (paragraph XVII (a)) that
since these benefits were instituted "unilaterally" without
notice to or bargaining with the Union, the Respondent
thereby engaged in further unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
The Respondent adduced no evidence regarding either
the necessity or its motivation for these increased benefits.
As found above, there is no fixed policy regarding when,
or at what intervals, Respondent grants pay raises to its
employees. On the very same day that this wage raise and
increased fringe benefits were announced to its employees,
the Respondent notified the Union that it would not
bargain with it, and that it intended to take all necessary
steps to invalidate the Union's certification. Assuming,
arguendo, that the Respondent's attack on the Union's
certification is favorably decided for it by the court of
appeals, a new election undoubtedly would be required.
Viewed in the content of all the foregoing, and in the light
of Spielman's contemporaneous statement to the
employees that the business could be run without "outside
interference," an obvious reference to the Union, and that
benefits beyond the employees' dreams would ensue if
they "would stick along with him," it is quite apparent
and I find that the motivation for these increased wages
and fringe benefits was to dissuade employees from
supporting the Union. I therefore find and conclude that
by this wage and fringe benefits increase, the Respondent
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,
and thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1)."
Admittedly, these increased wages and benefits were
granted and instituted by Respondent without consultation
or negotiation with the Union, whose certification as the
exclusive collective- bargaining representative of the
employees involved had just been affirmed by the Board. I
therefore further find that by acting unilaterally in this
regard, concerning matters in respect to which the
Respondent was obligated to bargain with the Union, the
Company engaged in further unfair labor practices within
"The employees then were contributing about Si 80 per month to the
cost of such insurance
"G. C Exh 4
"See N L R B v Exchange Parts Co , 375 US 405, in which the
Supreme Court stated at 409:
The danger inherent in well-timed increases in benefits is the suggestion
of a fist inside the velvet glove Employees are not likely to miss the
inference that the source of benefits now conferred is also the source
from which future benefits must flow and which may dry up if it is not
obliged.
the meaning of Section 8(a)(5) and (1) of the Act.
F. Additional Interference , Restraint , and Coercion
The unfair labor practices found above are not by any
means all the conduct by which the Respondent sought to
dissuade employees from supporting the Union both
before and after the 10(b) limitation period. At an early
stage in the organizational campaign, more specifically on
November 17, 1966, the Union, by letter, apprised the
Respondent that 18 employees named therein were
members of "our In-Plant Organizing Committee " Upon
receipt of the letter, Plant Manager Simmons held a
meeting with all his foremen, and advised them of the
names of the union committeemen for the purpose of
observing whether "they were going to do any
campaigning during the working hours or anything."45
Thereafter, the Respondent's foremen particularly
watched George Hildenbrand, the chief supporter of the
Union, who also was one of the named committeemen.
Thus, according to the uncorroborated and credited
testimony of employee Paul Kisselburg, about a week
before the Board election, he observed Maintenance
Foreman William Jackson watching Hildenbrand for an
hour at a time, three or four times a day, for a period of
1 week 66
The surveillance of Hildenbrand by Respondent's
foremen continued after the election. In June or July
1967, John Brunner , another known advocate of the
Union and a union committeeman, visited Plant Manager
Simmons' office in the administration building for the
purpose of requesting a transfer from his job as leadman
of the stripping department . Because he had to wait to see
Simmons, Brunner did not return to the production plant
for about 2 hours, and then stopped briefly to go to the
men's room. Hildenbrand, whose job station was nearby,
commented to Brunner that his "talk with Dave
[Simmons]" had been long, and Hildenbrand chatted
briefly with - Brunner before he "walked into the
bathroom," and then returned to the stripping
department Brunner was then promptly notified by his
Assistant Foreman Hally that he was to go to Foreman
Fields' office, and the two of them went there together.
Upon their entry, the office door was locked (not by
Brunner ) and Fields asked Brunner what he and
Hildenbrand had talked about. Brunner replied that
Hildenbrand had asked him a question. Fields again asked
Brunner what they had talked about, and advised him that
he was giving Brunner "an official warning" for being in
areas where [he] had no concern " Brunner then got
"hot," and said, "Jim [Fields], why is it, when I go out
and talk to the Plant Manager, nothing is said to me,"
but when "I turned around and talked to another human
being and right away you lecture me out."
Admittedly, there is no plant rule which prohibits
employees from talking with each other, and the credible
testimony in the entire record clearly discloses that
conversation among employees about the Union not only
was a common occurrence, but was participated in by
practically all of Respondent's foremen Significantly,
Fields did not question Brunner nor reprimand him
because of his long absence from the job while he was in
Plant Manager Simmons' office. Moreover, the written
"The quotes are from the testimony on cross-examination of Foreman
Elvin C Holden, a witness for Respondent
"Jackson, although a witness for Respondent , failed either to deny that
he watched Hildenbrand , or to offer any explanation for doing so
OLSON BODIES , INC 1071
reprimand, which according to Fields, was placed by him
in Brunner's personnel file, was not produced by the
Respondent, either to corroborate Fields' version of this
incident or to impeach Brunner's testimony regarding it °7
In the light of the foregoing, the Respondent's
continuing and determined opposition to the Union, and
the known advocacy of the Union by both Brunner and
Hildenbrand, it is quite apparent that the interrogation of
Brunner in Fields' office behind a locked door regarding
the nature of Brunner's conversation with Hildenbrand
could serve no purpose other than, and was intended, to
restrain, coerce, and discourage Brunner from exercising
his guaranteed right to support the Union, and I therefore
find that by this conduct the Respondent further violated
Section 8(a)(1) of the Act
As noted above, after the Board election, the
Respondent by notices on the bulletin board and letters to
the employees apprised them that it was contesting the
validity of the Union's certification. As a consequence, the
question of whether the Union "was in" or "not in"
continued to be a subject of discussion at the Athens
plants between the employees and Respondent's foremen
after the Union's certification. I find that by the following
statements of Respondent's supervisors to its employees,
the Company engaged in further restraint and coercion in
violation of Section 8(a)(1) of the Act
(1) According to the credited testimony of employee
John H. Tappen, about "two or three weeks before we
were laid off" (September 22, 1967), he was told by
Foreman Robert Peloke, "if the Union continued the way
it was that all of us would be losing our jobs They would
close the plant down."
(2) Tappen also had frequent conversations about the
Union with Foreman Elvin C (Newt) Holden. According
to Tappen's credited testimony, "a couple of months or
so" before his September 22, 1967, termination, 4' he asked
Holden what he "thought of the Union trouble we was
[sic] having," and Holden replied, "if they [the Union] get
in here that's the end of your jobs "
(3) Employee Wilbur R. Combs also had frequent
conversations about the Union with Foreman Holden. The
last such conversation occurred about 3 or 4 months
before Combs' termination on September 22, 1967 On
this occasion, referring to the Company's expressed
intention to appeal the Union's allegedly erroneous
certification, Holden said, "the Union wasn't in yet," and
that the plant's doors would close "if the Union gets in "
"The findings above are based on Brunner 's credited testimony Fields
testified that this incident oc -urred on December 19 , 1966 (outside the
10(b) limitation period ), and not in June or July 1967, as Brunner testified
Fields also testified that he reprimanded Brunner on this occasion , because
he "defied" Fields by talking to Hildenbrand for 25 minutes with full
knowledge that Fields was watching them The failure to produce the
written reprimand , which could have shown both the date of the incident
and Fields ' report of the event , suggests the inference which is made that it
would not have corroborated Fields' testimony See 2 Wigmore, Evidence
Sees 285 (3d ed ) Moreover , Fields was a surly and evasive witness who
refused despite repeated admonitions (which included a threat to strike his
direct testimony ) to answer questions on cross-examination , apparently
because (as he put it ), " I said what I had to say [cn direct examination] "
Indeed , his conduct was such that it impelled Respondent's counsel after
the conclusion of Fields' testimony to apologize to the Trial Examiner for
his conduct For all these reasons , I regard Fields' testimony as unreliable
and credit it only when it accords with other credited testimony or
constitutes an admission against the Respondent 's interest
"Tappen admittedly was uncertain about the date of this (his last)
conversation about the Union with Holden, but since the 10(b) limitation
period excludes only conduct preceding March 27, 1967, i am satisfied that
this conversation is not tune-barred
(4) According to the credited testimony of John
Brunner, about a week after the Union was certified by
the Board as the representative of Respondent's employees
(April 14, 1967), Brunner encountered Plant Manager
Simmons near the timeclock, and asked Simmons, "How
do you think we're getting along?" Simmons replied, "Oh,
I've got to admit you're a long way along the line, but
you haven't won yet. We're still appealing this thing "
Simmons also said, "I presume you signed a card I hope
you don't regret it " I regard this statement as a thinly
veiled threat of reprisal and therefore coercive of
Brunner's right to support self-organization
(5) According to the credited testimony of employee
Vincent Vitale, after the Union was certified by the
Board, Simmons was questioning employees in the plant,
and asked Vitale, "What do you think about this Union
deal? Do you think the Union was [sic] ins" Vitale replied
that as far as he was concerned, the Union "was certified
by the Labor Board." Simmons responded, "It takes two
to make a contract."
The Respondent contends that this statement of
Simmons is not "sufficiently coercive to support an unfair
labor practice charge." I do not agree. The statement
clearly implies an intention by Respondent not to agree to
a contract with the Union, and thereby discourages,
restrains, and coerces employees from supporting the
Union °'
In addition to the restraining and coercive conduct of
Respondent found above, considerable testimony was
adduced by the General Counsel regarding other allegedly
coercive conduct and statements. I deem it unnecessary to
discuss and thereby further lengthen this Decision by a
recital of these alleged incidents for the following reasons:
(a) In many of these cases, the General Counsel's
witnesses could not definitively state or approximate when
the conduct or statements occurred or were made, and it
is thus not established that the alleged conduct took place
within the period of limitation imposed by Section 10(b)
of the Act (b) In other cases, I regard the testimony
regarding the alleged coercive conduct as unworthy of
belief.'" (c) Finally, insofar as the said incidents disclose
additional restraint and coercion of employees by the
Respondent, they are merely cumulative of the conduct
already so found and would require no additional remedy
than that which I shall make on the basis of the findings
above 'i
"Although the foremen named above and Simmons denied the
statements attributed to them by the credited employees , I am persuaded
by their demeanor and the entire record that these denials are unworthy of
credence
"Thus, Joseph Thurston testified that he was repeatedly told by Plant
Manager Simmons that he would get no raise in wages so long as he
actively supported the Union Thurston also testified that similar and other
coercive statements were made to him by Vice President Loar Both
Simmons and Loar denied making the statements attributed to them by
Thurston I do not credit Thurston 's testimony in this regard for the
following reasons. The method used by Respondent to dissuade employees
from supporting the Union was to give them wage increases , and not to
withhold them As found above, when the Union commenced its
organizational campaign in September 1966, the Respondent promptly
gave all its employees wage increases to discourage their support of the
Union, and repeated this tactic in June 1967, to underscore President
Spielman's statement that "outside [union ]" interference was unnecessary
for the employees to reap benefits Moreover , in August 1967, about
two-thirds of the Respondent 's employees, including many union adherents,
received additional wage increases All of the foregoing persuades me that
Thurston 's testimony in these respects is implausible and unreliable, and I
do not credit it
"For this latter reason, I also regard it unnecessary to consider or
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G The Discriminatory Job Transfer and Termination
of George Hildenbrand, Sr
George Hildenbrand, Sr , was hired by the Respondent
on January 24, 1955, and he thereafter worked
continuously for the Company until his termination on
August 4, 1967 During his more than 12 1/2 years of
employment by Respondent, Hildenbrand admittedly had
never requested ajob transfer to an easier job, nor refused
to accept a transfer when requested to do so In fact, he
had been transferred to many different jobs and had
worked in many different departments, including work on
the backs, roofs, and windshields of trucks, tieing down
truck bodies to chassis, stripping chassis, and in the crab
department, which is also known as final assembly
inspection work.
During the "6 or 7 years" immediately preceding his
termination, Hildenbrand received no job transfers, and
worked continuously in the crab department under the
supervision of Foreman James Fields The work in the
crab department, which was at the end of Respondent's
final assembly line, consisted of correcting errors in
fabrication or assembly which the inspection department
had noted, and in installing stiffeners to the side panels of
the truck by riveting The latter task required Hildenbrand
to mount a few steps on a small step ladder three or four
times a day to drive rivets on the outside of the truck
body, while another employee bucked the rivets from the
inside of the truck. There is no contention or testimony
that Hildenbrand's work or conduct prior to his
termination had been other than wholly satisfactory.
During the 6 or 7 years that Hildenbrand worked in the
crab department, he had diabetes for the control of which
he took daily injections of insulin. As a consequence of
this condition, Hildenbrand on occasion suffered "spells"
of weakness on the job when "the energy of working"
used up the sugar content of his system Hildenbrand was
always aware when these "spells" impended, and avoided
difficulty by promptly eating "something sweet in the
form of sugar or of a calorie content" to restore his
energy None of these "spells" had ever resulted in
Hildenbrand falling from either the ladder or the truck
bumpers on which he occasionally worked All of the
Respondent's officials, including Vice President Loar (who
previously was plant manager at Athens), Plant Manager
Simmons, and Foreman Fields, knew that Hildenbrand
was a diabetic and that he experienced occasional spells
during his employment in the crab department. They thus
obviously knew that he was subject to further spells, and
that his job occasionally required him to work a few steps
up on the small step ladder Notwithstanding that
knowledge, Hildenbrand was retained by Respondent in
his job in the crab department, was never asked to
transfer to another job on ground level, and performed his
work without incident.
As previously noted, Hildenbrand was the employee
who instigated, initiated, and supported the organizational
campaign which resulted in the Board's certification of the
Union as the collective-bargaining representative of
Respondent's production and maintenance employees at
Athens. He was a member of the Union's "In-Plant
determine whether the assistant foremen (who were part of the appropriate
bargaining unit ) were made agents of the Respondent by Vice President
Loar when he allegedly instructed them to stop the signing of union cards,
and whether the Respondent is responsible for the statements and conduct
in which the assistant foremen, in opposition to the Union 's organizational
campaign , thereafter engaged
Organizing Committee" and wore a union button in the
plant He also was a witness for the Union in the hearing
in the representation case and acted as the Union's
observer at the Board election which took place on
February 17, 1967. The record clearly discloses that
Hildenbrand was the leading proponent of the Union at
the Respondent's plant, and all of the Company's officials
who later were involved in Hildenbrand's' discharge
admitted that they were aware of that fact
On March 25, 1967, while Hildenbrand was working in
Respondent's plant, he was struck by a truck and suffered
a serious back injury which required him to be
hospitalized and incapacitated him from working for
about 8 weeks Hildenbrand returned to the plant on May
16 wearing a brace "with four steel ribs" which "covered
from the lower part of [his] body to the upper part of [his]
body " On his return, Hildenbrand presented to
Respondent a certificate from his doctor which stated.
"May return to light work." In the ensuing discussion
with his Foreman Fields regarding what work
Hildenbrand could do, Hildenbrand commented that his
regular assignment in the crab department "was the
easiest job in the plant," Fields "agreed with
[Hilden brand]," and he resumed work at his regular fob in
the crab department.52 Because his back brace interfered
with his ability to climb the ladder, Hildenbrand requested
that someone be assigned to climb the ladder when
riveting from the ladder on the outside of the truck body
was required, and that he would buck the rivets inside the
body This request was agreed to, and for the ensuing
period of a month or a month and one-half, an employee
was assigned to assist Hildenbrand when ladder work wa's
required by him However, about 4 or 5 weeks before his
termination on August 4, Hildenbrand, on his own
volition and without request by Respondent, resumed the
performance of all the work required by his job, including
the work on the ladder.53 Hildenbrand's Foremen Fields
and Pieruzzi50 admittedly knew that he had resumed his
ladder work, and interposed no objection to it
The Respondent has a regular coffeebreak for its
Athens employees at 9:45 a.m On July 27, shortly before
the designated coffeebreak time, Hildenbrand, sensing a
diabetic spell of weakness impending and seeking to allay
it, asked permission of Foreman Fields to have a
doughnut and a cup of coffee. Fields readily assented to
Hildenbrand's request and the latter "got his coffee and
bun" and "continued working " Later that day,
Co-Foreman Pieruzzi, who had been advised by Fields
that Hildenbrand had suffered a "dizzy spell," told
Hildenbrand that he was going "to speak to Mr
Simmons" about transferring Hildenbrand to "an easier
job," because of the latter's "health" and because he was
"an old man."55 Hildenbrand replied that he believed his
work was satisfactory, and that "until that time arises
that I can't do it [the work] any longer, I wish you would
leave that [a transfer] up to my discretion " Pieruzzi did
"Fields, a witness for the Respondent did not controvert Hildenbrand's
credited testimony regarding this conversation
"Hildenbrand credibly testified that he did so because Gritman, a
student temporary summer employee who was assigned to help him, "was
not acquainted with the riveting gun and driving rivets on the outside of
the truck ," and that Hildenbrand "had that much interest in [the] job to
see to it that it was done right," and that the truck was not damaged by
inexperienced riveting
"Pieruzzi was designated on July 10 as co-foreman of the final assembly
department at Plant 2, in which Hildenbrand worked Prior to that date,
Pteruzzi had been a foreman at Plant I
"Hildenbrand was then 62 years old
OLSON BODIES , INC. 1073
not reply. 36 Still later that same day, Pieruzzi told
Hildenbrand that he had spoken to Plant Manager
Simmons about changing his job, and Hildenbrand again
asked Pieruzzi to leave the matter of a transfer to his
discretion, and that he would let Pieruzzi know when he
felt he "wasn't capable of doing the work."
Notwithstanding Hildenbrand's request that he not be
transferred, on Friday, August 4, at 8.10 am , Foremen
Fields and Pieruzzi came over to Hildenbrand's bench and
Pieruzzi told Hildenbrand to go to work in the back
department. Hildenbrand asked Pieruzzi , "What is the
reason for this [transfer]." Pieruzzi admittedly replied, "I
don't have to give you a reason ."" Hildenbrand asked
Pieruzzi, "Does this mean I haven't got a job," and
Pieruzzi concededly replied, "That's right. If you don't go
down on the backs " Hildenbrand then proceeded to
separate his personal tools from those which belonged to
the Respondent, and Pieruzzi left the area briefly. He
returned to Hildenbrand's bench a few minutes later with
a replacement for Hildenbrand, Donald F. Herman, and
Hildenbrand angrily said, "Get that son-of-a-bitch out of
here until I get my tools packed."9e Pieruzzi complied
with Hildenbrand's request and the latter then completed
his packing, turned in the Respondent's tools to Tool Crib
"The findings and quotes above and hereinafter are from Hildenbrand's
credited testimony unless otherwise noted in the text That does not imply
that I regard all of Hddenbrand's testimony as credible Specifically, I do
not credit -Hidden brand's testimony in the following respects I regard his
testimony that he was not aware that Pieruzzi was his foreman as
implausible in view of their admitted conversations regarding a possible
transfer for Hildenbrand I regard Hildenbrand 's testimony that he did not
say, "I refuse to go" when Pieruzzi later transferred him to the back
department , as a quibble , since it is clear from his action that he in fact
refused to go, even if he did not say it I also regard his testimony that 80
to 85 percent of the Respondent 's employees signed union authorization
cards as erroneous , since the cards, all in evidence , disclose that the correct
percentage was about 54 percent Notwithstanding the foregoing, I am
persuaded by the entire record and Hildenbrand ' s demeanor , that unlike
the Respondent's witnesses to his attempted transfer and termination,
Hildenbrand 's testimony in most respects is reliable As Judge Learned
Hand aptly said in N L R B v Universal Camera Corp , 179 F 2d 749,
754 (C A 2), reversed on other grounds 340 U S 474
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it ; nothing is more common in all kinds
of judicial decisions than to believe some and not all
Pieruzzi's version of the conversation was that he asked Hildenbrand how
he felt, and that the latter replied that his back and knee bothered him,
and that he had difficulty going "up and down the ladder", and that
Pieruzzi then said, "I heard you had a dizzy spell on the ladder today,"
and that Hildenbrand replied , "Yes, I did " Pieruzzi further testified that
he then suggested that he might find Hddenbrand "another job on ground
level because you're going up and down the ladder and you might hurt
yourself and someone else " According to Pieruzzi, Hildenbrand then
thanked him for his thoughtfulness , and said that "until then [a transfer]
I'll do the best of my ability on this job" I do not credit Pieruzzi's version
of this conversation , because for demeanor and other reasons, I regard his
testimony as generally contrived , embellished , and unworthy of much
reliance For example , when Pieruzzi was asked on cross-examination
whether he was told by Fields that the dizzy spell occurred on the ladder,
he testified unresponsively that Fields "said he had a dizzy spell." When
asked again whether he was told by Fields that it occurred on the ladder,
Pieruzzi replied that he didn't remember but he was "pretty sure" that was
what Fields said. When then asked how he could be "pretty sure" if he. did
not remember , Pieruzzi finally testified that Fields told him it occurred on
the ladder . However, Fields, a later witness for Respondent, did not testify,
either that Hildenbrand told him that the "spell " occurred on the ladder or
that he so told Pieruzzi I regard Pieruzzi 's uncorroborated testimony in
this regard as unworthy of credence Moreover , in the light of
Hddenbrand ' s later refusal described infra to accept a transfer when
offered , I regard Pieruzzi's testimony that Hildenbrand indicated
appreciation and agreement to a transfer , as implausible and unworthy of
credence
Attendant George C Todd, picked up his personal tools
and timecard, and then left the production building "
The Respondent's admitted policy is that if an
employee is dissatisfied with a decision of his foreman, he
can appeal that decision to the plant manager Pursuant
to that policy, when Hildenbrand left the Respondent's
production plant, he put his tools in his car, and drove it
from the employees' parking lot to the administration
building, where he waited for Plant Manager Simmons'
arrival About 9 a.m , Simmons came and invited
Hildenbrand into his office Hildenbrand entered, "laid"
his timecard on Simmons' desk, and asked him why he
was being transferred to the backs.60 Although Simmons,
by his own testimony, had discussed Hildenbrand's
transfer with Pieruzzi and had authorized the transfer only
a week earlier, Simmons "acted as though he knew
nothing about it." Hildenbrand then explained what
"Pieruzzi ' s quoted reply was mentioned by Pieruzzi and Fields for the
first time during their cross-examination . On direct examination , both of
these foremen testified that Pieruzzi's response to Hildenbrand 's question
was, "Come on, George, I thought I was doing you a favor " However,
contrary to the reply in the text, Pieruzzi also testified on
cross-examination (but not on direct) that he told Hildenbrand why he was
"moving him to the back department on the morning of August 4," and
that the reason was, "we needed a man down on the backs" As noted
above, I regard Fields' testimony as unreliable and generally not worthy of
credence (see fn 47, supra ) The foregoing self-contradictory testimony of
Pieruzzi constitutes an additional reason for my like regard of the latter's
testimony (see fn 56, supra ) For these and other reasons including
demeanor , I credit Pieruzzi's testimony only when it accords with other
credited testimony, or when it constitutes an admission against the
Respondent 's interest.
"According to Pieruzzi, Hildenbrand also said , "or I'll smash him in the
face." Hildenbrand denied making the threat to strike Herman Fields
testified that he was about 25 feet away when Pieruzzi returned with
Herman and didn't hear what was said According to Loar and Simmons,
when each of them later separately investigated this incident, Herman and
Gritman both confirmed that they heard Hildenbrand say, "Get that
son-of-a-bitch out of here or I'll smash him in the face " Neither Herman,
who was still employed by Respondent, nor Gritman was called to
corroborate the testimony of Pieruzzi, Simmons, and Loar in this regard,
and no explanation was offered by the Respondent for the failure to do so
I infer from the foregoing , and from my lack of regard for the reliability
of their testimony generally, and especially for their pretextual reasons for
Hddenbrand's termination , that Gritman and Herman, if called , would not
have supported their testimony regarding the threat , and I do not credit it
See 2 Wigmore, Evidence Sec 285 (3d oil )
"According to Foremen Fields and William Gildersleeve , before
Hildenbrand left the production building on August 4, he visited the
foremen's office about 8 40 am, and asked Fields , "How about my
vacation pay " However, Fields' affidavit to the Board not only contains
no reference to this alleged visit by Hildenbrand to the foremen 's office,
but it also affirmatively states that after Pieruzzi took Hildenbrand's
replacement , Herman , out of the section, "As far as I know George
[Hildenbrand] just left He did not tell me he was leaving , I did not see
George again that day [Emphasis supplied ] In view of the above-quoted
contradiction of Fields' testimony by his affidavit , I do not believe either
Fields or Gildersleeve in this regard, and consider their testimony about
this alleged visit by Hildenbrand to the foremen's office as contrived and
fabricated
{"According to Simmons, as soon as Hildenbrand entered his office, he
"threw it this timecard ] on my desk " According to Vice President Loar,
when Simmons reported the incident to him later that same day, Simmons
told Loar ( in Simmons' words ) that Hildenbrand "slammed his timecard
on the desk" at the conclusion of his visit with Simmons and "walked
out " I regard both of these versions as contrived exaggerations to provide
legitimacy to the Respondent's termination of Hildenbrand Aside from the
obvious contradiction as to when Hildenbrand put his timecard on
Simmons' desk (when he entered and when he left Simmons' office), I
deem it impossible to believe that Hildenbrand , whose purpose in visiting
Simmons was to appeal to him for a countermanding of Pieruzz i's transfer
order , would either "throw" or "slam" his timecard on Simmons' desk
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"transpired outside [in the plant]" that morning. Even
then, although Simmons admittedly knew why Pieruzzi
was transferring Hildenbrand, Simmons did not attempt
to tell him why he was being transferred, but replied that
he would "have to get Mr. Pieruzzi in here and hear his
side of the story." Pieruzzi was called, and when he
arrived at Simmons' office, Hildenbrand was asked to
leave while they spoke privately. He waited outside for
about 15 minutes and then was called back in. Simmons
then asked Hildenbrand why he did not want "to go down
on the backs" and Hildenbrand, in reply, asked why he
"was being sent down on the backs " Both Simmons and
Pieruzzi in turn replied that it was because Hildenbrand
"was an old man and it was for the benefit of my
[Hildenbrand's] health." Hildenbrand replied that he
"didn't accept" that reason, and he heatedly asked
Pieruzzi "whether he was a medical authority on my
health " Pieruzzi did not answer. Hildenbrand said that he
wanted to consult with his doctor before he accepted the
transfer. Simmons then ended the meeting by telling
Hildenbrand, "You go home and think about it and call
me in the middle of the week," and Hildenbrand left."
It is undisputed that the job in the back department to
which Pieruzzi attempted to transfer Hildenbrand entails,
inter alia , lifting the backs when completed and placing
them in a rack The completed backs admittedly weigh
anywhere from 50 to 80 pounds, and generally are
handled by two men because of their weight and because
they generally are too cumbersome for one employee to
handle alone. As previously noted, Hildenbrand previously
had worked in the back department, and thus was familiar
with its requirements. However, Hildenbrand also had
suffered a back injury in the plant which had resulted in
his hospitalization, and from which he had returned to
work only 2 1/2 months earlier wearing a back brace
Although Hildenbrand admittedly told Simmons and
Pieruzzi on August 4 only that his refusal to transfer to
the backs was motivated by his disbelief and refusal to
"accept" the "health" reason assigned therefor, they knew
about his back injury and disability.
On Saturday, August 5, the day after his meeting with
Simmons, Hildenbrand visited his doctor and was advised
that he should do "absolutely no lifting." However, after
consulting with the Union's business representatives, he
nevertheless decided to accept the situation and return to
work. On Monday morning , August 7, Hildenbrand
returned to the plant for that purpose, but found his
timecard missing from the rack. He then told his Foreman
Fields, "I'm here to go to work." Fields replied, "I can't
let you go to work. You'll have to see Mr. Simmons."
Hildenbrand waited at the Administration Building for
Simmons who arrived at 9 a.m., and with Hildenbrand's
agreement, Simmons called in Respondent's Comptroller
Walter Krumm as a witness Simmons then said to
Hildenbrand, "I thought you were going to call me in the
middle of the week?" According to Simmons' testimony
credited to this extent, Hildenbrand replied that "he was
ready to go to work," and that his timecard was not in
the rack. Simmons answered that the timecard was not in
the rack because he had assumed from Hildenbrand's
actions on August 4 that he had quit Hildenbrand replied,
"I did not quit." Then, according to Hildenbrand's
"The findings and quotes above are based on Hildenbrand's credited
testimony . Both Simmons and Pieruzzi gave testimony regarding this
meeting which differed in substantial respects from Hddenbrand 's version,
but for the reasons previously stated , I consider Hildenbrand 's testimony
as more reliable than theirs which I regard as embellished , exaggerated,
contrived , and rehearsed , and which I do not credit
credited testimony, Simmons said that the matter was no
longer in his hands, that Vice President Loar "was
investigating the matter," and that Loar would contact
him. Hildenbrand then left 61
On or about August 16, Vice President Loar called
Hildenbrand, said that he was handling Hildenbrand's
case, and asked him "if I [Hildenbrand] could come over
and see him " Hildenbrand agreed and met Loar in
Simmons' office that same day. Loar admittedly told
Hildenbrand that he "would like to have Walter Krumm
to sit in as a witness," and Hildenbrand voiced no
objection Loar admittedly took notes of this interview.
According to Hildenbrand's credited testimony, Loar told
Hildenbrand that there were witnesses to the effect that he
"had quit the job " Hildenbrand denied that he quit or
that he had said that he was quitting. Then Hildenbrand,
in response to questions by Loar, told him of his
conversations with Pieruzzi about a job change, and that
because of his injury received in the plant, he had felt he
should consult his doctor before he changed his job. Loar
told Hildenbrand that "because of [his] many years of
service," he "was being given so much consideration in
this particular incident." Loar finally advised Hildenbrand
that he would be hearing from Simmons later, and the
interview ended.63
On August 18, Hildenbrand was requested by Simmons
to come to his office, did so, and was told by Simmons
that Loar had decided upon the basis of his investigation
that Hildenbrand had quit Simmons then gave
Hildenbrand his final paycheck, and said he was sorry and
that if there was anything he could do personally for
Hildenbrand for the latter to let him know. After a few
other like amenities, Hildenbrand left the office, and has
not since been recalled to work for Respondent.
Concluding Findings in Respect to Hildenbrand's
Transfer and Termination
The complaint alleges that Hildenbrand's transfer and
termination were motivated by antiunion considerations
The Respondent contends that Hildenbrand quit his
employment on August 4, but, that if he did not do so, it
had just cause to discharge him because of his
insubordinate and disruptive conduct on that date In
"Except to the extent indicated above which I regard as an admission,
Simmons' version of the August 7 meeting with Hddenbrand is not
credited
"According to Loar, during his investigation , one employee, John P
Surrano, told him that when Hddenbrand was checking out his tools at the
toolcrib, he told Surrar,o that he was quitting According to the
Respondent 's records , Surrano was still employed by Respondent at the
time of the hearing in this case . He nevertheless was not called by
Respondent to corroborate Loar's testimony in this regard, and no
explanation was offered for the failure to do so Moreover, notwithstanding
the importance which Loar admittedly ascribed to this allegedly "impartial
investigation ," he assertedly threw away the notes of his interview with
Hildenbrand , and took no notes of his interviews with the many employees
whom he professedly questioned in the plant Furthermore, although
Krumm attended the Hildenbrand interview as a witness at Loar's specific
request , and testified for Respondent, he was not asked to corroborate
Loar's version of this meeting I am persuaded by all of the foregoing that
Surrano, if called, would not have corroborated Loar's testimony of what
he assertedly told Loar (see 2, Wigmore Evidence Sec 285 (3d ed )), and
that to the extent that Loar's version of this interview does not accord with
Hildenbrand's, it is not worthy of credence I am, moreover , persuaded by
Loar's own account of his "investigation ," that far from being impartial he
sought only to obtain corroborative evidence that Hddenbrand had quit
and to support the reasons asserted by Respondent for Hildenbrand's
termination
OLSON BODIES, INC
resolving the issues thus presented, consideration will first
be directed to the asserted motivation for the job transfer
which precipitated Hildenbrand's termination
The first reason asserted by Respondent for
Hildenbrand's job transfer was that because of his "spell"
on July 27, the Respondent became concerned for his
safety since he could fall off the ladder during a "spell"
and injure himself This was later embellished by a
professed concern that since Hildenbrand worked close by
the washroom which employees use frequently, he might
also injure other employees if he fell from the ladder while
they were passing by his work station This sudden
solicitude and concern are not believed Hildenbrand was
a known diabetic for many years, and notwithstanding
that he had in the past suffered occasional spells of
weakness as a result of that condition, he had never fallen
or injured himself or anyone else during his many years
on the job in the crab department 66 Despite admitted
knowledge of all the foregoing, the Respondent had
retained Hildenbrand on this job, and had neither
questioned his physical ability to perform it, nor expressed
concern for his safety or that of others while he was
performing it Hildenbrand's work at this job evidently
was satisfactory or he would not have been retained at it
for so long There was nothing about the July 27 "spell"
which distinguished it from any of his prior feelings of
weakness The job required only occasional work on a
ladder, and there is no evidence that any of Hildenbrand's
weak "spells," including the last one on July 27, occurred
while he was working or mounted on a ladder 65
Moreover, contrary to the testimony of the Respondent's
witnesses, I am persuaded that the job on backs was not
an easier one than Hildenbrand's work in the crab
department, for when Hildenbrand returned to work after
his plant accident with a certificate from his doctor that
he could do only light work, Foreman Fields assigned him
to work there, not on backs Furthermore, it is quite
obvious that in view of Hildenbrand's back injury, the job
in the back department, which required lifting heavy backs
from the jig, would not be easier for him, even if so for
others
All of the foregoing persuades me that no credence
whatsoever can be given to the Respondent's assertion and
testimony that the decision to transfer Hildenbrand was
motivated by concern or solicitude for either his `health"
and "safety," or that of other employees I am moreover
convinced by the above that the assignment of this reason
for his transfer is a pretextual device employed by
Respondent to cloak its activities with a mantle of
ostensible legitimacy and to conceal the real motivation
therefor
The second reason asserted by Respondent for the
decision to transfer Hildenbrand on August 4 was an
alleged failure of employees in the back department to
show up for work on that date, and a resulting need for
Hildenbrand's services on backs Foremen Pieruzzi and
Fields so testified but their testimony in this regard is not
believed, not only because it was inconsistent and
contradictory, but also because it is regarded as unreliable
for the following additional reasons Vice President Loar,
in his affidavit to the Board executed after he investigated
the August 4 transfer incident, contradicted Pieruzzi's and
Fields' testimony that Hildenbrand was needed in the
•'In this regard Simmons testimony, that until Pieruzzi suggested it he
had never considered the possibility that Hildenbrand might fall and injure
himself or others is regarded as incredulous
"See fn 56 supra
1075
back department because of the failure of employees to
come to work that day In this regard, Loar's affidavit
deposed as follows
in order to put Hildenbrand on the back
department job, there was some shifting around of other
employees in order to accomodate him I don't know
exactly what shifting around was done Because of this
shifting there was a work need for Hildenbrand in the
back department [Emphasis supplied ]
Furthermore, although requested, the Respondent failed to
produce any records to support Pieruzzi's and Fields'
testimony that employees who regularly work in the back
department were absent that day 66 I conclude from the
foregoing that there is no credible basis for believing that
Hildenbrand was needed to work on backs because of the
absence of employees who perform that work regularly
Moreover, I am convinced by the record that even
assuming that a vacancy in the back department existed,
Hildenbrand would not normally have been selected to fill
this job, and his designation therefor obviously must have
been based on considerations other than the need for
someone to fill in on the backs In this regard, the
undisputed record discloses as follows The Respondent
employs a number of employees whom it concededly
transfers or "rotates" from job to job to meet whatever
contingencies that develop Conversely, the Respondent
also has employees who admittedly "are practically never
transferred and work at one job all the time "
Hildenbrand undisputedly had been in the latter category
for many years Notwithstanding, and although it is clear
that many employees, including those who "rotate"
frequently, possessed the minimal skills required to work
on the backs,6r the Respondent designated Hildenbrand
for the job It is thus evident that Hildenbrand's selection
to fill this asserted vacancy was not in accordance with
the Respondent's usual practice, and was, to say the least,
unusual Other than the "health" and "safety" reason
which I have discredited above, the Respondent has
offered no reason or explanation why Hildenbrand, rather
than the employees who frequently rotate, was assigned to
fill the asserted vacancy
I conclude from all the foregoing that the transfer of
Hildenbrand to the back department on August 4 was not
motivated by any need for his services on backs, and that
the assignment by Respondent of this discredited reason
for his transfer is merely another pretextual contrivance to
conceal its true motivation therefor
Pieruzzi admittedly had authority to transfer
Hildenbiand without prior authorization by Plant
Manager Simmons Despite that fact, he concededly
consulted with Simmons and received his authorization
before Hildenbrand's transfer was attempted When asked
why, in view of his authority to transfer Hildenbrand
without Simmons' imprimatur he nevertheless consulted
and obtained Simmons' consent to a transfer, Pieruzzi
evaded a direct answer and gave no reason I infer from
the foregoing that Hildenbrand's transfer emanated not
from Pieruzzi but from Plant Manager Simmons
"The Respondent asserted that it maintains no records from which this
could be ascertained but I regard this assertion as unworthy of belief in the
light of the voluminous and extensive records which the Respondent
demonstrated that it does maintain
"The work on the backs consists principally of operating a rivet gun and
riveting aluminum panels to previously cut and formed extrusions that
have been placed in a jig
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the light of my conclusion that the reasons asserted
by the Respondent for transferring Hildenbrand from a
job which he had performed satisfactorily for many years
are incredible and pretextual, it is obvious that other
considerations must have motivated the transfer In this
regard, the Court of Appeals for the Ninth Circuit stated
the following in a fairly recent decision 66
Actual motive, a state of mind, being the question, it is
seldom that direct evidence will be available that is not
also self-serving In such cases, the self-serving
declaration is not conclusive, the trier of fact may infer
motive from the total circumstances proved Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book Nor is the trier of fact here the trial
examiner required to be any more naif than is a
judge If he finds that the stated motive for a discharge
is false he certainly can infer that there is another
motive More than that he can infer that the motive is
one that the employer desires to conceal an unlawful
motive at least where as in this case the
surrounding facts tend to reinforce that inference
[Emphasis supplied ]
The Respondent's true motive is not too difficult to infer
from the record The Respondent was and is unalterably
opposed to the representation of its employees by any
union Hildenbrand was the known leading advocate of
the Union in Respondent's plant His job in the crab
department was located right by the washroom which the
Respondent's employees, practically all males, used His
proximity to the washroom provided both the employees
and Hildenbrand with the opportunity for at least brief
conversations or chats whenever the employees passed by
his work station 69 As found above, during the week
preceding the Board election, Respondent, through its
foreman, Jackson, had engaged in surveillance of
Hildenbrand at his work station for an hour at a time and
three or four tunes a day No explanation for this
surveillance was offered by Respondent Quite apparently
Hildenbrand was still being watched by the Respondent
shortly before his transfer, for as found above, in June or
July, when John Brunner , another leading union advocate,
chatted briefly with Hildenbrand on the former's way to
the washroom, he was called into Foreman Fields' office,
the door was locked behind him, and Fields asked
Brunner what he and Hildenbrand had talked about 76
Viewed in the light of the pretextual reasons asserted
for Hildenbrand's transfer, I am persuaded by the
foregoing that the real motivation for that action by the
Respondent was to remove Hildenbrand from a place of
work where he was so easily accessible to influence the
employees regarding their union sentiments Accordingly,
since his proposed transfer was thus motivated by
antiunion considerations, the Respondent discriminated
against Hildenbrand, notwithstanding that the job change
involved no reduction in pay "
"Shattuck Denn Mining Corporation v N L R B 362 F 2d 466 470
(C A 9)
"The Respondent as previously noted has no rule prohibiting
conversation by and between employees
"The record also discloses that William Weissman another known union
advocate who suffered from a kidney ailment which required him to use
the washroom frequently was reprimanded by Foreman Holden and by
Plant Manager Simmons for stopping to chat with Hddenbrand and other
union committeemen
"South Bay Daily Breeze 130 NLRB 61
As previously noted, Hildenbrand attempted to return
to work on August 7 and was not permitted to do so,
because, according to Plant Manager Simmons, the latter
had assumed from Hildenbrand's conduct on August 4
that he had quit, and because "I was carrying on an
investigation of the whole incident "72 Then, after first
Simmons, and then Vice President Loar, conducted
assertedly "impartial investigations" of what transpired on
August 4, Plant Manager Simmons notified Hildenbrand
on August 18 that it was the Respondent's decision that
he had "quit" on August 4 but that, in any event, his
conduct on that date was so disruptive and insubordinate
that it warranted his termination
I conclude for the reasons hereinafter stated that when
Hildenbrand was refused permission to return to work on
August 7, the Respondent already knew all the facts upon
which its decision to terminate Hildenbrand's employment
was based, the Respondent's investigations were conducted
to provide a deceptive aura of fairness and consideration
to Hildenbrand's termination which, although not
announced to him, actually had already been decided upon
and effected on August 4 before the so-called impartial
investigations were conducted, the reasons asserted for the
termination decision are pretextual and unworthy of
belief, and the same antiunion considerations which
motivated his discriminatory transfer, also motivated his
discharge
According to the Respondent's records, the reason for
Hildenbrand s termination was that he "Quit under
circumstances which would have constituted cause for
discharge "" The conduct of Hildenbrand which assertedly
justified the belief that he had "quit" on August 4, was
that he had packed and removed his personal tools from
the plant, that he had checked out the Company's tools to
its toolcrib, and that he had moved his car from the
employees' parking lot to the administration building
where Simmons' office was located The specific
`circumstances" which assertedly warranted
Hildenbrand's termination in any event, were that he
engaged in insubordinate and disruptive conduct by
refusing to accept his foreman's instruction to transfer to
the backs, by calling his replacement Donald Herman a
"son-of-a-bitch," and threatening to "smash him in the
face" unless he was removed from Hildenbrand's bench
while he packed his tools, and by rudely throwing his
timecard on Simmons' desk and refusing Simmons'
urgings that he accept the transfer to backs These
asserted reasons for the refusal to permit Hildenbrand to
return to work on August 7, and for his termination, will
be considered seriatim
1 The Respondent had no credibly reasonable basis for
believing that Hildenbrand had "quit" on August 4 He
had been a satisfactory employee of Respondent for
almost 13 years and had never before refused to accept a
transfer of jobs Despite his known diabetic condition and
more recent back injury, the Respondent had retained him
without transfer at his regular job in the crab department,
and he thus had ample reason to believe that his superiors
agreed with his own assessment that his job was the
easiest in the plant He was not one of the employees
whom the Respondent "rotated" to meet contingencies
which arose And, when Pieruzzi had suggested a possible
transfer, Hildenbrand had told Pieruzzi that he preferred
to stay where he was Under the circumstances,
"The quotes are from Simmons testimony
"The quotes are from the Respondents Termination Record of
George Hddenbrand C P Exh 2
OLSON BODIES, INC.
Hildenbrand had good reason to suspect the bona fides of
the "health" and "safety" reasons for which he assertedly
was being transferred and to resist and protest that action.
Under the Respondent's admitted policy, Hildenbrand had
the right to appeal Pieruzzi's transfer order to Plant
Manager Simmons, and he quite evidently exercised that
right when he drove his car over to Simmons' office and
waited for him there Admittedly, Hildenbrand never told
either his foreman, Simmons, or anyone else that he was
quitting 71 It is undisputed that he had been told by
Pieruzzi that unless he transferred to backs, he had no
job Simmons concededly knew that Pieruzzi had made
this statement to Hildenbrand. Simmons obviously also
knew, by virtue of his August 4 conversation with
Hildenbrand, that the latter was appealing Pieruzzi's
transfer order, and that he did not believe the pretextual
"health" and "safety" reasons which had been given him.
Under the circumstances, Hildenbrand's action of packing
and removing his personal tools, checking out the
Company's tools, and moving his car from the employees'
parking area to the administration building where
Simmons' office was located, was consistent for an
employee who had dust been told that he was 'fired, and
thus could not reasonably have been regarded only as
evidence that Hildenbrand had "resigned."75 Furthermore,
it is also quite evident that Simmons did not so regard
Hildenbrand's conduct, since despite his knowledge of
these events which had been related to him by Pier UZZ1,76
Simmons admittedly urged Hildenbrand to accept the
transfer to backs, and, as found above, when Hildenbrand
still refused "to accept" the patently implausible and
pretextual reasons for his transfer, Simmons told him to
"go home and think about it and call me in the middle of
the week." It is obvious from the foregoing and I find
that Simmons did not really believe that Hildenbrand had
"resigned" from the Company's employ, and that his
testimony to that effect is unworthy of belief
2 It is undisputed that Hildenbrand returned to
Respondent's plant on August 7 ready to go to work, but
that he was refused permission to do so by Simmons, inter
alia, for the reason discredited above that Simmons
believed that Hildenbrand quit. However, even assuming,
contrary to my credibility determination, that Simmons
thought Hildenbrand had quit on August 4, he obviously
was applying for reinstatement on August 7 He had
worked for Respondent for many years, and his work and
conduct prior to August 4 had been wholly satisfactory
The Respondent had no policy which prohibited the
reemployment of persons who had quit. To the contrary,
"See fn 63, supra
"The Respondent contends that since Pteruzzi had no authority to
discharge employees, Hildenbrand 's conduct described above cannot be
attributed to Pieruzzi' s statement that he was through if he did not
transfer However, since the Respondent admits that this lack of its
foremen's authority never was made known to the employees, I regard this
contention as specious and without merit
"Simmons testified that he did not learn about Hildenbrand' s removal of
his tools from the plant until later that day, but I do not credit his
testimony in this regard Both Pieruzzi and Fields had seen Hildenbrand
separate his tools from those of the Company before Hildenbrand went to
Simmons' office In addition , Fields had also seen Hildenbrand go down to
the toolcrib with the Company' s tools before he left the plant Moreover,
Pieruzzi had recited the events of that morning to Simmons while
Hildenbrand waited outside the office All of the foregoing, as well as my
lack of belief in Simmons' testimony generally, persuades me that
Simmons learned about Hildenbrand' s removal of his tools from the plant
while Hildenbrand was waiting to be called back into Simmons' office
1077
according to Simmons' admission, the Respondent had, in
the past, rehired a number of employees who quit, and, in
most cases, without investigation Indeed, according to the
Respondent's records, Alfred DeLuca, an employee of the
Respondent, who quit his job on September 23, 1966, for
"[an]other job," which, according to DeLuca, did not
"pan out," was rehired by the Company on September 26,
1966.77
It is thus quite obvious and I find that even assuming
that Simmons thought Hildenbrand had "quit" on August
4, this could not have been the real reason for refusing to
rehire him, and its assertion, as the basis for not
permitting him to return to work on August 7, is a quite
transparent pretext
3. When Simmons denied Hildenbrand permission to go
back to work on August 7, he told Hildenbrand that the
other reason for this refusal was that, "I was carrying on
an investigation concerning the whole incident."78
There was, however, no need for any investigation, for
Simmons already knew all the facts upon which the
Respondent now relies for its termination of
Hildenbrand's employment, and Hildenbrand concededly
had not disputed any of these facts Thus, according to
Simmons' own testimony, he had been told by Foreman
Pieruzzi on August 4 that, in accordance with Simmons'
previously granted authorization, Pieruzzi had asked
Hildenbrand to transfer to the backs and Hildenbrand had
refused to accede to the transfer; when Pieruzzi brought
Donald Herman over to the crab department to replace
Hildenbrand, the latter had said, "Get that son-of-a-bitch
out of here until I get my tools packed"; and he also
assertedly added, "or I'll smash him in the face."79
Simmons also testified that when he called Hildenbrand
back into his office, he repeated what Pieruzzi had told
him, and Hildenbrand had not disputed the accuracy of
his recital of the incident. Furthermore, according to
Simmons' own testimony, he also knew on Monday,
August 7, when Hildenbrand sought to return to work
that, on the previous Friday, Hildenbrand had separated
his tools from those of the Company, he had returned the
Company's tools to the toolcrib and removed his own
from the plant, and he had moved his car from the
employees' parking area to the administration building.
Since Simmons thus knew all the facts upon which the
Respondent now contends it was justified in regarding
Hildenbrand as having quit, and for terminating his
employment if he had not, it was obvious at the hearing
and is now that there was no need for any investigation.
4. Notwithstanding the lack of necessity therefor, first
Simmons, and then Loar, conducted investigations and, on
the conclusion of Loar's inquiries, Hildenbrand was
notified by Simmons on August 18 for the first time that
his employment by Respondent was terminated. Both
Simmons and Loar testified that until August 18
Hildenbrand was still employed ("on the roster") by the
Respondent, but the Company's records belies their
testimony, for it clearly discloses that Hildenbrand was
"G C Exh 20
"The quotes are from Simmons' own testimony
"See fn 58, supra
1078 DECISIONS Of N \ I IONAL LABOR RELATIONS BOAR D
terminated on August 4 and not August 1f4 " It is thus
fairly evident that the so-called imparti it investigations
not only were not necessary but also that they were
conducted after the decision to terminate Hildcnbrand had
been made and recorded Moreover Inc testimony of both
Loar and Simmons regarding the nature of their
investigations clearly discloses that they sought only to
adduce facts to support the Respondents already made
decision that Hildenbrand had quit undo circumstances
which would have constituted cause for discharge and no
effort was made to ascertain why this longtime
satisfactory employee who had never bcforc refused a
transfer, refused to take the job on backs on this occasion
All of the foregoing persuade me that the Respondent s
officials conducted these investigations for the purpose
only of providing a deceptive mantic of mature
consideration to the decision that had already been made
5 As found above even if Hildcnbrand had quit on
August 4 the Respondent s policy permitted his
reemployment on August 7 when he tried to go back to
work Obviously, therefore the failure tnd refusal to
reemploy Hildenbrand on August 7 could not have been
motivated by his quitting on August 4
The conduct which assertedly constituted cause for
[Hildcnbrand s] discharge, is likewise regarded as
pretextual and incredible reasons for the Respondent s
action Profanity including the use of the teim
son-of-a-bitch concededly is not uncommon in the
Respondents plant and no one had ever hccn fired for Its
use Significantly Hildcnbrand according to his
uncontroverted and credited testimony, had previously
been called the identical name by Donald Hcrman, and
although Foreman Fields came over hccausc of the
yelling and shouting which ensued, no disciplinary action
resulted "i Even if Hddenbrand had also said (contrary to
my credibility determination) or I Il smash him in
the face ' I am convinced that since no physical action
accompanied Hildenbrand s statement these were only
The Respondents termination record for Hddcnhr and (( P Exh 2)
reads as follows
OLSON BODIES INC
TERMINATION RECORD
NAME George Hildenbrand Clock Number 174
ADDRESS Termination Date Aug 4, 1967
Position Held Last Day Worked Aug 4 1967
REASON FOR TERMINATION
Quit under circumstances which would haic co ioitutc,d cause [or
discharge
Clearances
Company Property
(Tools Gear Etc )Signed Allen I Cowl
Welfare
Payroll
Advances
Insurance
Pension Eligible
(Use reverse side or
additional comments)
regard this record as a more reliable proof o, when the Respondent
made its decision to terminate Hildenbrand than the unreliable testimony
of the later date which I do not credit
words which were not regarded as serious by Respondent
or as rendering Hildcnbrand as unfit or unsuitable, for
continued employment The fact is that no employee of
Respondent has ever been discharged for threatening
another with a punch in the face Moreover, with full
knowledge of this asserted threat by Hildcnbrand
Simmons nevertheless admittedly urged him on August 4
to accept the transfer to backs Furthermore according to
the uncontroverted and credited testimony of Joseph Mco,
Ronald Dumary, and Charles Coons employee John
Surrano had a heated argument with Foreman Fields
during which Surrano grabbed Fields by the collar but he
was not disciplined therefor and the Respondent s records
disclose that Surrano is still employed by the Company I
am persuaded by the foregoing that no credence can be
placed on this asserted reason for refusing to permit
Hildenbrand to return to work on August 7, and that it is
merely another pretextual device of the Respondent to
conceal its true motivation for the refusal to employ
Hilden brand
The next reason asserted by Respondent for regarding
Hildcnbrand as insubordinate and for refusing to
reemploy him was that he threw his timecard on
Simmons desk However, as found above, I do not
believe the Respondents testimony in this regard,"r and
notwithstanding Hildenorand s conduct in respect to the
timecard, Simmons still asked Hildenbrand to accept the
job transfer I therefore regard this asserted reason for
refusing to employ Hildenbrand as another of
Respondent s pretexts
The final reason asserted by Respondent for refusing to
employ Hddenbrand was his refusal to accept the
discriminately motivated transfer to backs an allegedly
serious act of insubordination which could affect discipline
and production if tolerated This reason also does not
withstand close scrutiny Hddenbrand had ample reason to
react as he did to the quite apparent pretextual reasons
asserted for his transfer But even aside from the
justification for Hildenbrand s conduct it is obvious that
no credence can lx, placed on this asserted reason for the
refusal to employ Hildenbrand for on August 4 with full
knowledge of Hildenbrand's refusal to accept the transfer
Simmons admittedly asked Hildenbrand to reconsider his
refusal and accept the transicr and moreover as found
above, he gave Hildenbrand a few days to think it over I
regard this asserted reason for Hildenbrand s termination
as an afterthought by Respondent and not the real reason
for taking the equivocal position that he quit or he should
have been fired
In the light of the pretextual reasons asserted for
Hildenbrand s termination and the refusal to reemploy
him, the real reason is not difficult to infer 11 The
Respondent originally intended only to transfer
Hildcnbrand from his place of work near Inc toilet to a
job where he would not be easily accessible to employees
When Hildenbrand refused to transfer and appealed to
Simmons Simmons professed ignorance about the matter
(although he had authorized the transicr), and later urged
Hildenbrand to accept it for his `health' and safety
Finally, when Hddenbrand rejected these spurious reasons
as unacceptable, Simmons, still clearly intending only to
transfer Hildenbrand, suggested that he think it over a few
"The, Trial Examiner notes in this rega d that on his inspection of the
Respondents plant pursuant to the , agreement of all the parties he
observed that the Company permits its emp'oyees to prominently display
at their work hes photographs of women in the nude
"See In ra and the accompanying text
"Shattuck Dinn Mining Corporation v N L R B supra
t
F "(
OLSON BODIES, INC.
days. However, after Simmons discussed the incident with
Vice President Loar over the long distance telephone, a
change of heart evidently occurred for Hildenbrand was
terminated by Respondent that same day for the stated
equivocal and pretextual reason previously quoted. The
key to the motivation for this change of heart appears in
the reasons given by Simmons and Loar for their requests
that Krumm be present as a witness when they spoke to
Hildenbrand, and in Loar's explanation for the
unnecessary investigation. Thus, when Simmons was asked
why he "wanted" and "needed" Krumm as a witness to
his conversation with Hildenbrand on August 7 when the
latter sought to return to work, Simmons admitted that it
was because he knew "Mr. Hildenbrand was predominant
or one of the most predominant people regarding the
current Union and Company situation," and because he
"wasaware of the implications of this whole situation... ."
Similarly, Loar testified that he decided to investigate
the August 4 incident, notwithstanding that Simmons had
already done so, because, Inter alia, he knew that
"Hildenbrand was a leading advocate of the Union " I
regard these admissions as the key also to the
Respondent's motivation for all its conduct in respect to
Hildenbrand, and that it seized upon his refusal to accept
the antiunion motivated transfer as a convenient device to
rid itself completely of the Union's principal proponent."
Accordingly, I find that thereby the Respondent
discriminated against Hildenbrand and engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act."!
H. The Discriminatory Discharge of 69 Employees
On Friday, September 22, a few minutes before quitting
time, the Respondent's foremen delivered to 69 of the then
complement of 200 employees in the production and
maintenance unit at Athens, the following letter notifying
them of their "permanent" termination :86
OLSON BODIES, INC.
Athens Division
Athens, New York 12015
Telephone:
518-945-1000
September 22, 1967
Dear Mr. ,
Due to a variety of factors relating to business and
production conditions at the Athens. New York plant,
"As the Supreme Court said in N L R B v Walton Mfg Co, 369 U S
404, 408, quoting with approval from the opinion of Judge Learned Hand
in Dyer v McDougall, 201 F 2d 265, 269 (C A 2)
For the demeanor of a witness
may satisfy the tribunal , not only that the witness ' testimony is
not true, but that the truth is the opposite of his story , for the denial of
one, who has a motive to deny, may be uttered with such hesitation,
discomfort , arrogance or defiance, as to give assurance that he is
fabricating , and that, if he is, there is no alternative but to assume the
truth of what he denies
"In reaching this conclusion , I have given careful consideration to the
Respondent 's contention that Hildenbrand had been active in prior union
campaigns and had nevertheless not been subjected to discrimination, but I
regard this contention as without merit in the light of the record in this
case , and the change in the Respondent 's top management
"A few of the terminated employees who were absent on September 22
received their letter by mail on the following day
1079
we are compelled to have a permanent general
reduction in our work force. We regret that your
employment with the company is terminated at the end
of this business day.
A check for the weeks work plus adjustments for
unused vacation and sick-pay days will be mailed to you
next week. A letter explaining your insurance
conversion will follow.
If we can be of any assistance to you in securing other
employment please feel free to call upon us.
Sincerely,
OLSON BODIES,
INC.
D. W. Simmons
Division Manager
Of the 200 people employed in the unit at the time of this
reduction in force, 100 or precisely 50 percent of them had
signed the Union's "Special Official Applications for
Membership"" despite the Respondent's efforts to
dissuade them from signing . However, of the 69 who were
thus summarily terminated with no prior notice or
warning, 56 or 81 percent of them were union members."
Seniority, although one of the factors assertedly
considered by Respondent in the selection of employees
for termination, was not followed to any significant
extent, since 33 of the 69 employees who were terminated
would not have been discharged if seniority alone had
been the basis for selection, and 27 of these 33 had more
than 10 years of continuous service for the Respondent."
On the other hand, out of the 23 employees with the least
seniority in the plant (less than 4 years), there were 12
union members, of whom 11 were terminated on
September 22, and 11 who had not signed union
membership cards, but only 5 of these were discharged.
1. Postdischarge developments
Since the massive reduction in force, none of the 69
terminated employees has either been reinstated, offered
reinstatement, or considered for reemployment. However,
the following has been the history of accretion and work
availability in the production and maintenance unit since
September 22:
a. In February 1968, the Respondent discontinued the
use of its own employees to guard its plant and contracted
with "the Pinkerton people" to supply a guard force. Of
the five guards then employed by Respondent, three were
transferred to production and maintenance jobs and two
retired. Admittedly, the Respondent did not then either
consider the reemployment of any of the terminated
employees for the production and maintenance jobs to
which the three guards were assigned or even compare the
"Compare G C Exh 45-1 to 45-111 with G C Exh 20-I to 20-200
"The numbers and percentages of union members stated above, and
which will be used infra, are based on the applications for union
membership cards in evidence which were signed by employees after the
Board certified the Union , since these more recent cards, and not the
earlier union authorization cards signed in the fall of 1966 , are the most
reliable evidence of the identity of the union supporters at the time of the
massive discharge There were 27 employees who signed the earlier
authorization cards who did not later sign the union membership
applications when they were solicited It may be noted that of these 27, 25
were not discharged , and only 2 were terminated
"Included in this group of 27 employees with great seniority were 2
employees (union members) who had been with the Company since 1949
when it first began its truck body business, and 2 more (also union
members ) who had worked continuously for Respondent since 1950
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relative ability of the three guards with those of the
terminated employees who had worked at the jobs to
which the guards were assigned In fact, one of these
guards who was assigned to the painting department had
no prior experience in painting
b Since Easter 1968, "over 50%" of the retained
production and maintenance employees have regularly and
continuously worked "6 to 8 hours overtime each week,"
and before that, maintenance employees worked overtime
when "emergency" situations occurred However, no
effort was made to recall any of the terminated employees
for the additional work thus required
c The Respondent regularly hires senior high school
and college age sons and relatives of its employees to
work during their summer vacations These young men
perform production and maintenance work for full
40-hour weeks until they return to school in the fall
According to Plant Manager Simmons, the purpose of
this summer hiring is "to fill in for those people
[employees] who would be taking vacations during the
summer," and to "help the sons of the employees " In
June 1968, without inquiring as to whether any of the 69
terminated employees might need the like "help" of
summer employment, the Respondent hired three sons of
employees for production and maintenance work, and it
admittedly planned to hire a total of "about a dozen"
such sons However, there is no intention by Respondent
to offer this work to any of the terminated employees
2 Contentions of the parties
The General Counsel and the Union contend that there
was no lack of work or other economic justification for
this unprecedented and summary termination of 69
employees, and that this massive reduction in force was
motivated by antiunion considerations Alternatively they
contend that even assuming that the reduction in force
was motivated by economic considerations, the selection
of this high and disproportionate number of union
members for termination, many with the greatest seniority
in Respondent's plant, was motivated by union animus
The Respondent, on the other hand, contends that the
decision to reduce its production and maintenance force at
Athens was motivated solely by economic considerations,
and that its admitted opposition to the Union had nothing
to do either with its decision to reduce the force, or with
the selection of the employees to be terminated
Moreover, the Respondent contends that aside from the
employees named in the Union's letter as members of the
In-Plant Organizing Committee, it had no knowledge of
which employees were union adherents
These conflicting contentions will now be considered in
the light of the record
3 Analysis of the testimony
a The Respondent freely admits that it was opposed to
the representation of its employees by the Union
Moreover, as found above, the Respondent had engaged
in numerous unfair labor practices to dissuade its
employees from supporting the Union
b At the time of the discharge of the 69 employees, the
Respondent was in the process of pursuing its undisputed
legal right to contest the validity of the Union's
certification by the Board as the collective-bargain ing
representative of its employees If successful in that
contest, a rerun Board election among the remaining
employees would undoubtedly follow, and in the light of
the disproportionately high number of union members
who were included in the 69 who were discharged, the
likely result would be the Union's defeat at the second
election And, even if the Respondent did not succeed in
setting aside the Union's certification, it would then be
required to bargsin with a union whose strength at the
bargaining table had been seriously undermined by the
termination of so many of its members 10
c Prior to the large scale reduction in force on
September 22, the Respondent had not laid off any
employees since before 1962 " This security of
employment was, in fact, one of the arguments which the
Respondent had utilized to dissuade employees from
voting for the Union at the Board election Thus, in its
preelection letter to employees dated February 10 signed
by Vice President Loar and Plant Manager Simmons,"
the Respondent had stated as follows
Since 1962 we have been most fortunate in having
full employment with no lay-offs even during the
difficult period of the yearly chassis changeover
d Before the discharge of the 69 employees, the
Respondent's production and maintenance unit force was
at its lowest ebb for many years At the time of the
election in February (1967), there were 225 employees in
the unit A year before that, according to Vice President
Loar, the number of such employees had been about 240
However at the time of the massive terminations on
September 22, the complement of the production and
maintenance unit had dwindled to 200 solely by attrition
e The sudden termination of 69 employees on
September 22 clearly was not based on any lack of work
for them to perform As of September 1, the Respondent
had a backlog of orders for 443 truck bodies " The
average production of truck bodies at the Athens plant for
the first 8 months of 1967 had been 182 per month "
There was thus enough work for the Athens employees to
keep them fully occupied for 24 months, even assuming
that no new orders for production at Athens were received
thereafter
f This massive discharge of employees also could not
reasonably have been based on the relation of backlog to
number of employees Thus, the Respondent's records
disclose that on January 1, 1966, when the Respondent
employed about 240 production and maintenance
employees, the backlog of orders for truck bodies was
457, whereas on September 22, 1967, the number of such
employees was 200 and the backlog was 443
g In addition, only 3 months before the mass
terminations, the Respondent's president had forecast
increasing business and earnings prospects to the Athens
employees Thus, as found above on the uncontroverted
testimony of employees," President Spielman had told
employees in a speech on June 5 (after the certification of
the Union), that "business looked good," that "there was
a big backlog of orders on hand," that there would be an
"increase in production at our plant" as well as "at the
"Only 44 of the 131 employees who were rehired were union members
"Neither the extent of any prior layoffs nor their duration are disclosed
by the record The only specific testimony of prior work cutbacks is that in
1959 the Respondent resorted to a 4-day week during the model
changeover period
"G C Exh 10
"Resp Exh 19 a
"See Resp Exh 14-a
"See fn 41 supra
OLSON BODIES, INC.
other plant," that "we could do good running this business
without any outside [union] interference," and that "if we
would stick along with him - the employees of the
Company would reap benefits they never even dreamed
of."
h. It is, moreover, difficult to reconcile this reduction in
force with the increased pay and other benefits which
Respondent gave its employees shortly before it
discharged 69 of them without notice. Just 3 1/2 months
before the terminations, President Spielman had
announced in his June 5 speech an immediate increase in
pay of 10 cents per hour for all Respondent's employees,
and the additional benefits of 5 days of paid sick leave
and the assumption by the Company of the entire cost of
their group hospitalization insurance. In addition, on
August 21 and 28, just 1 month before the discharges in
issue, the Respondent had given another increase in pay of
from 10 to -15 cents per hour to 137 of its 200 employees,
and among the employees so rewarded were 31 of those
who were discharged a month later It may be noted in
this regard that these August increases were given at the
very time when, according to Respondent's president and
vice president, they were conducting the discussions which
professedly resulted in Spielman's decision to effectuate
the massive reduction in force of September 22.
i. I am moreover persuaded by the record that contrary
to. its contention, the Respondent had substantially
accurate knowledge regarding the identity of its employees
who supported the Union and who opposed it. In this
regard, the record shows as follows-
The Respondent's plant is located in a small rural town
whose total population in 1965 was 1,754.96 In connection
with the Union's preelection campaign, Vice President
Loar admittedly had asked his supervisors to advise him
who among the employees could be relied on to vote
against the Union Among the employees who worked in
the Respondent's production and maintenance unit were
the sons of four of its foremen, and the father of at least
one foreman. Thereafter, as found above, Plant Manager
Simmons and some of the foremen engaged in extensive
interrogation of employees as to whether they had signed
union authorization cards, what they thought about
President Spielman's speech, and similar questions
calculated to disclose their support of or opposition to the
Union In connection with his interrogations, Simmons
told employees that he had "ways of finding out" who
signed union cards The interrogation of employees by
Simmons and foremen as to how they felt about the
Union also was engaged in after the election. When the
Union notified the Respondent by letter that 18 named
employees were members of the "In-Plant Organizing
Committee," Simmons held a meeting with his foremen
and apprised them of the names of the committeemen,
and thereafter, as found above, the union adherents, and
especially George Hildenbrand, the chief union proponent,
were closely watched by the foremen both before and after
the Board election The Respondent thus clearly knew
which of its employees were talking to Hildenbrand. The
Respondent also obviously knew that after the election,
the Union solicited membership applications from its
employees, for it engaged in an active campaign to
dissuade the employees from signing the applications.
Finally, Plant Manager Simmons' testimony regarding his
selection of employees for retention or discharge on
September 22 clearly disclosed not only his familiarity
with all the employees on a first-name basis, but also an
intimate knowledge of their health and family problems,
neurotic tendencies, personalities, foibles, interests, outside
1081
occupations, work competence, and versatility.
All of the foregoing persuade me that he also had
substantially accurate knowledge of which employees were
union adherents, and which were not
Conclusions
I conclude from all the foregoing that the General
Counsel has established a strong prima facie case that this
massive, unprecedented termination of 69 employees, 56
of whom were union members, was motivated by illegal,
antiunion considerations.
1. The Alleged Economic Motivation for the
Reduction in Force at Athens
According to Respondent's President Spielman who
ordered the reduction in force, Vice President Loar who
participated in the discussions with Spielman which led to
this decision, and Spielman's self-serving memorandum to
Loar dated August 25," this drastic, unprecedented
termination of Athens' employees was motivated solely for
economic reasons, each of which will now be considered.
1. The asserted comparative lack of productivity and
overstaffing of the Athens plant
According to Loar and Spielman, in June, shortly after
Spielman became president of Grumman Allied
Industries, Inc, he expressed concern that the Athens
plant was overstaffed. Spielman's asserted reason for this
opinion was, "it seemed to me as though we had a great
deal more men [at Athens] than were necessary for the
volume [of truck bodies] that were produced there . . . in
comparison with the Sturgis operation and the Sherman
operation . " which used fewer employees. I regard this
asserted first ground for the September reduction in force
as specious for the following reasons.
a. It is not referred to in Spielman's August 25
memorandum to Loar which purportedly listed all his
reasons why a reduction in force was required, and thus,
appears to be an afterthought on the part of the
Respondent
b. The number of truck bodies produced each month at
the three plants obviously is neither a proper criterion for
assessing the comparative productivity of the Athens
workers, nor a true indicia of the proper staffing of the
Athens plant, for a number of reasons. In the first place,
it presupposes that all of the truck bodies produced are
identical, and that with the same number of workers the
same number of truck bodies should result This is not the
case, however. The Respondent manufactures four
different models of truck bodies," and it mounts them on
different chassis made by three different car
manufacturers." In each of the plants with no significant
staffing changes, the number of truck bodies produced
each month varies substantially.' The Respondent admits
that these differences in the monthly production of truck
"Rand and McNally, Standard Highway Mileage Guide
"See Resp Exh 27
"Kubside, Kurbvan, Olsonette, and Kargo King
"Ford, Chevrolet, and Dodge
'Thus, in the first 6 months of 1967, preceding the reduction in,force, the
Athens plant produced as many as 220 in May and as few as 170 in
February , the Sturgis plant produced as many as 200 truck bodies in
March, and as few as 155 in April, and the Sherman plant made as many
as 101 in March and 85 in January The summer months were omitted
from these comparisons because of employee vacations
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bodies at the same plant are the result of a number of
factors, including the following: "There are various kinds
and sizes of trucks"; "some of them are more difficult to
build than others"; some are "higher, wider jobs", and
some of the truck bodies require painting, while others are
"bare aluminum jobs" which take less time Absenteeism,
holidays, and vacations are also factors, according to
Loar. In view of these known reasons for the differences
in the monthly truck body production at the same plants,
it is obvious to me that no intelligent corporate executive
(and I so regard both Loar and Spielman) would or could
base plant productivity on a comparison of the number of
truck bodies produced and workers employed at the three
plants and conclude therefrom that one of them was
overstaffed.
There are additional reasons for my disbelief in this
asserted reason for the reduction in force at Athens. The
Respondent's employment and production exhibits in
evidence disclose that as of May 31, the Athens plant
employed 213 production and maintenance employees, the
Sturgis plant had 162 such employees, and the Sherman
plant employed 78. These exhibits also disclose that
during the first 5 months of 1967, Athens produced 100
more truck bodies than Sturgis, and 515 more than
Sherman I Moreover, in addition to its truck body
production, the Athens plant also makes subassemblies
and truck body parts for the Sturgis and Sherman plants
which are used by those plants in the production of truck
bodies This obviously also reduced the amount of work
which Sturgis and Sherman had to perform in making
their truck bodies During the first 5 months of 1967, the
dollar value of such subassemblies and parts which Athens
made for use by Sturgis and Sherman was $71,214 In
addition, only the Athens plant makes replacement parts
for the users of the Respondent's truck bodies, and during
the first 5 months of 1967, its sales of such parts totalled
$89,692.' Together, these two items represent the
equivalent of an additional 91 truck bodies made by
Athens during the first 5 months of 1967.1 Furthermore,
the Athens layout department (part of its production and
maintenance unit) admittedly makes about 95 percent of
all the jigs, templates, router boards, and dies which are
used for production by Sturgis and Sherman, only the
Athens plant makes prototypes of new truck body models
for future sales promotion, and Athens also repairs truck
bodies of the Respondent's customers which have been
involved in accidents.
In the light of the foregoing, it is quite apparent to me
that the Athens plant could not possibly be compared with
either Sturgis or Sherman on the basis of the number of
employees versus the number of truck bodies produced,
and since I regard both Spielman and Loar who knew
these facts as men who made rational decisions based on
good judgment, I regard their asserted conversations
regarding the comparative lack of productivity and
'The exact figures were 979 for Athens, 879 for Sturgis, and 464 for
Sherman I use this particular 5-month period for comparison because
Spielman and Loar testi fied that they started to discuss the Athens plant
alleged lack of productivity in June, and this was the comparative
employment and production picture at that time
'Vice President Loar testified that the Sturgis and Sherman plants also
make replacement parts for their customers, but the income and expense
exhibits oP these two plants in evidence disclose no such sales and belie his
testimony in this regard Compare Resp Exh 20-a to 20-h with Resp
Exh 21 and 22
'This figure is based on the average price of $1,773 which the
Respondent received for the 979 truck bodies made by Athens from
January through May 1967
overstaffing of the Athens plant as unworthy of credence.
I conclude therefrom that the assignment of this specious
ground for the Athens reduction in force is a pretext to
conceal the true motivation therefor.
2. The poor business prospects of the Athens plant
This pessimistic assessment of Athens' prospects was
reached by Spielman and Loar for the following asserted
reasons:
a The backlog of orders for truck bodies to be made at
Athens had been diminishing since March 1966
b. A survey of future business prospects for Athens had
been made at Spielman's request by the Respondent's
sales manager and his written report forecast orders for
only 150 truck bodies per month for Athens in 1968
c. The Respondent's largest customer, United Parcel
Service, had terminated its Philadelphia operation because
of labor difficulties, and had dispersed the 400 trucks used
in the abandoned area throughout the northeast which the
Athens plant services. This, in effect, eliminated United
Parcel's "need for some 400 units that would have been
Athens' production " In addition, although United Parcel
had ordered 1,350 truck bodies in 1966 (450 for each of
Respondent's three plants), in 1967 it had ordered only
300, 150 for Sturgis, 150 for Sherman, and none for
Athens. Moreover, no further business was expected from
United Parcel for Athens during the remainder of 1967
and the first 6 months of 1968.
d. The Respondent had discontinued the manufacture of
marine engines at Athens and it was phasing out the
production of the Kargo King truck body model because
they were not "profitable "
e Although the Respondent had commenced making
unmounted truck bodies at Athens for the Canadian
market in August or September 1966, the Canadian sales
"had not built up as fast as we thought it would."
f. Further prospects for new business for the Athens
plant were poor because all freight charges for delivery of
the chassis to Respondent's plants and of the completed
trucks to their final destination are paid by Respondent's
customers; they alone control the selection of the plant at
which their truck bodies will be built, and the location of
the Athens plant limits its prospects for new business to
customers in the northeast only
These asserted reasons for the poor business prospects
of the Athens plant will be considered seriatim
a. The diminishing backlog
In support of this reason for assessing Athens' future
business prospects as "bleak," the Respondent prepared
and introduced into evidence a compilation of its backlog
of truck body orders as of the first day of each month in
1966, 1967, and the first 3 months in 1968 ' This exhibit
disclosed that the backlog as of January 1, 1966, was 457
truck bodies, that it swelled in February and March 1 to a
high of 1,219 on the latter date, and thereafter, with
minor exceptions, it diminished continuously until it was
back down to 498 truck bodies on August 1, 1967.
Although at first blush these statistics appear to furnish
impressive support for this asserted reason for
Respondent's concern and its resulting decision to reduce
the Athens work force, closer analysis reveals the lack of
merit of that first impression.
'Resp Exh 19-a
OLSON BODIES, INC.
In January 1966, the Respondent for the first time in 3
years increased the prices for its truck bodies by about 4
percent, effective as of February 18, 1966, and it
announced to its customers that orders received prior to
that date would be honored at the lower old prices
provided that the chassis "are delivered to our plants
within 90 days from February 18 "6 This admittedly
resulted, according to Vice President Loar, "in a great
influx of orders being received prior to the February 18
date, and subsequently a great influx of chassis were
received prior to the ninety days after February 18th."
Obviously therefore the high backlog figures for February
I and March 1, 1966, are not representative of the orders
which the Respondent normally has for Athens'
production,7 and it included orders which would have been
received later, but were accelerated to take advantage of
the old prices. Under the circumstances, the subsequent
gradual decrease of the backlog is neither surprising nor
indicative that Athens' future backlogs would be less than
that which preceded the price increase It is moreover
quite significant that in early August when Loar assertedly
expressed concern about the decreasing backlog, it then
was greater (498), and the Respondent employed fewer
workers (200), than it did on January 1, 1966, when the
backlog was 457, and the number of employees was about
225
All of the foregoing persuade me that the diminishing
backlog was not a relevant consideration, and reasonably
could not by itself have motivated the hurried reduction in
force on September 22, especially since, on the basis of
the average production at Athens, there still remained
work for 2 1/2 months for the entire Athens staff, even if
no new orders were received.
b. The survey of prospective orders for Athens
As a result of Loar's professed concern about the
diminishing backlog, President Spielman testified that he
"discussed the entire sales picture" with Ed Cronin, the
sales manager of J.B.E. Olson Corporation [Respondent's
sales affiliate], and that he also talked with the regional
sales managers in the Boston, New York, and
Baltimore-Washington sales areas According to
Spielman, he received from them a projection for 1968 of
sales of about 1,800 units The Respondent did not call as
witnesses either Cronin or any of the three regional sales
managers with whom Spielman assertedly conferred, and
there is no evidence or testimony as to the method by
which the figure of 1,800 units for 1968 was forecast.8
Moreover, although Spielman assertedly received "a
written report of the [sales] projections for 1968," and the
production of the report was requested by the General
Counsel, it was not produced nor offered in evidence by
the Respondent No explanation was offered, either for
the failure to call the sales manager and the regional sales
managers or for the failure to produce the written report
of the sales projections for 1968. I infer from the failure
to call these witnesses and to produce the report that if
called and produced their testimony and content would
not have supported Spielman's testimony of "the bleak
picture" for 1968, and I therefore place no credence in his
testimony of the poor sales forecast for 1968 9
'Resp Exh 12
'The Respondent offered no backlog figures for the years preceding'
1966, and it is not possible , therefore , to make an accurate assessment of
what the normal backlog was before the price increase
This also resulted in an inability to cross-examine them regarding the
c The forecast of poor United Parcel Service
business for Athens
1083
As noted above, the forecast of poor United Parcel
Service business was premised on Spielman's testimony
that this largest customer of Respondent had discontinued
its Philadelphia operation because of labor troubles, and
had dispersed 400 trucks used in that operation
throughout the northeast, which eliminated its "need for
some 400 units that would have been Athens' production."
I regard this testimony as hearsay and unworthy of any
probative value
According to Loar, the discontinuance of United
Parcel's Philadelphia operation occurred in July or August
1967, and its duration obviously was not capable of
prediction. On cross-examination, Spielman and Loar
displayed a lack of personal knowledge of the nature of
United Parcel's labor difficulties, the expected duration of
the shutdown of United Parcel's Philadelphia operation,
whether that shutdown affected such nearby areas as
Camden, New Jersey, just across the river from
Philadelphia, and even whether the trucks were diverted at
all No one from United Parcel was called to testify.
There is thus no probative testimony by anyone with
personal knowledge that the 400 units used in Philadelphia
were diverted to the northeast, to the nearby southeast,
which (according to Spielman) is better served by the
Sturgis plant, or whether they were diverted at all Much
emphasis was placed by Spielman on the fact that in 1966,
1,350 units were ordered by United Parcel, 450 from each
of Respondent's three plants, and only 300 in 1967, 150
each for Sturgis and Sherman, and none for Athens. It is
fairly obvious that the large number of 1966 orders, like
the great increase in Respondent's backlog described
previously, resulted from the price increase in 1966 with
its deferred effective date. In this regard, Spielman
admitted that the average orders from United Parcel were
between 400 and 600 units a year, and thus, the lower
1967 purchases obviously resulted from the accelerated
orders of the preceding year. The Respondent offered no
correspondence or testimony from United Parcel to
support Spielman's hearsay testimony and conclusions
regarding Athens' 1968 prospects for United Parcel
business, and in the light of the other specious reasons
asserted for his decision to reduce the Athens force, I do
not regard his uncorroborated testimony in this regard as
worthy of reliance
d. The discontinuance of the manufacture of marine
engines and Kargo King truck bodies
Additional reasons which the Respondent asserted for
its forecast of the "bleak picture" for business at the
Athens plant was that the marine engine operation at
Plant I in Athens had proved unprofitable and had been
liquidated, and that the Kargo King truck body model had
not met with customer acceptance and its production was
then in the process of being phased out. I am unpersuaded
that these factors could reasonably have motivated the
drastic and massive reduction in force for the following
reasons:
Only a handful of employees (seven or eight) were
working on the production of marine engines when this
accuracy or veracity of the asserted forecast
'See 2 Wigmore, Evidence Sec 285 (3d ed
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation was discontinued in May.'" The Respondent, at
the time of the reduction in force had just completed
making prototypes of a series of new models of truck
bodies to replace the unpopular Kargo Kings, and it
planned to offer these new models to its customers. The
name assigned to this new model series was Kurb Master,
and in his annual report to the Respondent's stockholders
for 1967," Speilman said in this regard:
[T]he truck body divisions will introduce a new series
for 1968 designated as "Kurb Master" which will
feature new styling and exceptional service accessibility.
These new models are expected to be received with
much enthusiasm by Olson's many users.
Indeed, the Respondent has always introduced new models
of trucks as the popularity of current models waned, and
in addition to the Kurb Master, it had just completed a
prototype and will introduce a line of milk trucks known
as the Flat Face Cowl Milk Truck Originally, the only
model which Respondent made was the Kurbside, and
when its favor with customers diminished, Kurbvans, and
then Olsonettes and Kargo Kings, were introduced All of
the foregoing persuade me that no credence can be placed
on the assertion that this unprecedented reduction in force
was motivated in part by the discontinuance of the
manufacture of marine engines and Kargo King truck
bodies.
e. The sales in Canada of unmounted truck bodies
In August 1966, the Respondent decided to enter the
Canadian market for truck bodies and commenced
making unmounted bodies in Athens which are sold by its
affiliate J.B.E Olson of Canada, Ltd , through General
Motors Products of Canada, Ltd., located in Oshawa,
Canada According to Loar, one of the reasons for
forecasting poor business prospects for Athens was that
"Canada had not built up as fast as we thought it would
. .." No statistical data was introduced by the Respondent
regarding the number of truck bodies sold to Canada, and
there is neither probative testimony nor documentary
evidence as to what the volume of Canadian sales was or
was expected to be. Moreover , contrary to Loar's
testimony , in the Respondent ' s 1967 Annual Report to
stockholders, Spielman advised that , "Excellent progress
in the sale of the Company ' s truck bodies has been made
in Canada . . and we are convinced that this aspect of
the Company ' s business will become significant in coming
years." In the light of the foregoing , I place no credence
in this asserted reason for the poor business prospects of
the Athens plant.
f The contention that business prospects for Athens
were poor because of its location
With minor exceptions , the Respondent's customers
have to pay all the freight charges for the delivery of the
chassis to the Company's plants and for the delivery of
the completed trucks from these plants to final
destination . President Spielman credibly testified without
contradiction that because the chassis manufacturers are
located in the Detroit , Michigan , area, in most cases, with
the exception of customers located on the northeastern
seaboard (north of Virginia ), the freight charges are less if
the truck body is made at Sturgis, Michigan , or Sherman,
Texas (depending on the location of the particular
customer), than if made at Athens. Moreover, according
to Spielman and Loar, the customers alone, and not the
Respondent, control the choice of the plant where the
chassis will be sent and the truck body made For all these
reasons, Spielman and Loar regarded the prospect of
business for Athens as poor because its location limited its
selection to customers in the northeastern United States
alone Ergo, a reduction in force for the Athens plant was
required.
This contention depends for acceptance upon the
premise that the customer controls the designation of the
plant at which his truck body will be made. I find,
however, that, in fact, the Respondent controls where the
truck bodies will be manufactured. My reasons for this
conclusion are as follows-
As previously noted, in the earlier representation
proceeding involving the Respondent and the Union, the
Company contended that the appropriate unit should
include all of the production and maintenance employees
at the Respondent's three truck body plants on the
ground, inter alia, that their operations were integrated."
In its appeal to the Board from the Regional Director's
adverse determination that the Athens plant was the
appropriate unit, the Respondent argued as follows:"
Most of the Employer's sales are made to so-called
"fleet accounts" - large national companies (R. case
Tr. 540). Because the Employer has relatively few
customers, who often depend upon the Employer to
supply them with the bulk of their requirements for
truck bodies, the Employer's operations, of necessity,
must be closely integrated and supervised so as to
coordinate with its customers' requirements. The
strategic locations of the plants are designed to provide
quick and efficient delivery to customers. Thus, if an
order is received calling for delivery in the South,
normal procedure would dictate that production be
carried on at the plant in Sherman, Texas However, by
making some of the operations of the various plants
parallel, the Employer has developed the essential wide
flexibility to meet the demands of particular situations.
Thus, for example, if the Sherman plant is operating at
full capacity or, if for some other reason, it is unable to
meet the delivery deadline, the truck bodies will be
produced at one of the Employer's other plants (R case
Tr. 542-4). The reason for this interchangeability is to
enable the Employer to provide better service to its
customers and to avoid losing business to its
competitors. When the truck bodies are produced at a
plant other than the one that would normally perform
the work, the Employer is usually not able to pass the
increased freight costs on to the purchaser Jr 542).
Thus, the Employer's policy of maintaining
interchangeability and interdependency among the
plants is designed solely to provide better service for its
customers. [Emphasis supplied.]
The Company further urged at page 7 of its Request for
Review of the Director's Decision.
In addition, the work orders for each of the truck body
plants are prepared at [Athens] Plant No 2 and
subsequently forwarded to the plant designated by Mr
Loar to perform the work [Emphasis supplied.]
These arguments were based on the testimony in the
representation hearing by Respondent's Comptroller
"Those who did not quit or transfer to other of Respondent's plants
were assigned to making truck bodies
"See Resp Exh 26
"The Union had not attempted to organize the Sturgis and Sherman
plants
"G C Exh 2-b, pp 4-5
OLSON BODIES, INC. 1085
Walter Krumm and Vice President Loar that although,
normally, truck bodies will be produced by Respondent at
the plant in the area of the customer where his freight
charges would be least, the decision of where they would
be produced was made by Loar based on Respondent's
delivery schedules, plant capacity, and the customer's
needs for delivery In this regard, Loar testified as follows-"
In the light of the foregoing , it is quite obvious and I
find , contrary to the testimony of Spielman and Loar,
that the Respondent , and not its customers , determines
and controls the selection of the plant at which the truck
bodies are built. A fortiori, I find that this premise for the
assertedly poor future business prospects of the Athens
PLANT HAS NO MERIT OR VALIDITY?
We are right now, for instance in this past summer,
we have a national account, United Parcel Service who
wanted trucks. The chassis were at our Michigan plant,
they need the trucks in a hurry We have the capability
of our Athens Plant We delivered the chassis and
produced the trucks here [Athens].
Loar further testified as follows (R case tr., pp. 542-544):
Q. And, I take [it] for the same reason that if there
is an order in the northwest, there would be an attempt
to schedule and deliver the truck body on the chassis
out of Sturgis, Michigan, is that correct?
A Yes. Insofar as the demand of the delivery
schedule at - that the purchaser was putting on them.
It may be a desirable thing for you to want to build -
to have the body consigned originally into the Michigan
Plant and build the body on it there But it does
not necessarily apply that you would make it there.
a s r :
Q In other words, there are situations where it is
necessary or desirable to build a truck in an area other
than the one which might advantageously, strictly from
a cost standpoint, service that account9
A. That's right
Q. And is that a recurring situation?
A. Yes, it is.
Still later, Loar testified, at page 555 of the R case
transcript, that all the shopwork orders for all the three
plants are prepared at Athens from the purchase order
received from the "Sales Department" in New York, and
he testified in this regard as follows:
That shop order is prepared at Athens and this shop
work order then, if it is a truck which the sales office,
or the - by knowing the problem of the customer - in
other words, what we need to do to give him the
service, the decision is made and this is irrespective of,
say, if the chassis is in Michigan But our whole shop
flow and schedule is desirable to build this truck at
Athens to give him delivery. This decision is then made
. .15 [Emphasis supplied ]
Moreover, compilations of Respondent's invoices for a
number of States which were prepared by the General
Counsel and received in evidence by stipulation of the
parties16 disclose that the Respondent has built and still
builds truck bodies at plants which are unrelated to the
lowest freight charges for its customers, and that there is
no consistent pattern from which it is possible to
determine that a truck body destined for a particular
location will be made at the plant nearest to it. In fact,
President Spielman offered to "concede that there were
plenty of orders delivered out of all the respective plants
notwithstanding the locations [destinations] "
"R case it , pp 541-542 -
"Reliance on representation case testimony in hearings involving the
same parties was expressly approved in Paramount Cap Manufacturing
Company v NLRB B. 260 F 2d 109, 113 (C A 8)
'•G C Exh 25 through 37
g. Concluding findings in respect to the asserted
economic motivation for the reduction in force
The Respondent finally contends that its economic
motivation for the reduction in force is clearly established
by the fact that it has been able to operate the Athens
plant since the massive terminations without hiring
additional workers I regard this contention as without
merit, in the light of the availability to Respondent of its
other two plants for the production of truck bodies, and
by reason of the Respondent's backlog and production
statistics which disclose that, before the Board election in
February and the Union's certification in April, the
Athens plant was designated for the greater percentage of
its production, and that since then the bulk of the new
business has been sent by Respondent principally to the
Sturgis plant and less proportionately to Athens."
I conclude from all the foregoing that the Respondent
has failed to establish any economic necessity for the
unprecedented and drastic reduction in force of 69
employees on September 22.
Accordingly, in the light of the Respondent's
substantially accurate knowledge of the identity of its
prounion employees, its undisputed hostility to the
representation of the employees by the Union, the
numerous unfair labor practices in which it engaged to
discourage support of the Union, its disportionate
selection for termination of 56 union members out of 69
terminated (81 percent) in a plant of 200 where union
membership was precisely 50 percent, its failure to
thereafter offer reemployment to any of the discharged
senior and experienced employees, notwithstanding that it
thereafter utilized for production work inexperienced plant
guards and students on vacation, and provided overtime
work for the retained employees, and in view of the
specious and incredible reasons assigned for the reduction
in force," I find that this massive termination was
motivated by antiunion considerations, and that the
Respondent thereby discriminated against its employees to
discourage support of the Union and engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
Moreover, I conclude that the Respondent also
discriminated against the 13 nonunion employees who
were included in the September 22 reduction in force, for
"The Respondent claims that this result emanates from the elimination
on February 18, 1966 , of a $50 surcharge which it previously made on
truck bodies produced at Sturgis and Sherman , and by its lack of control
over the designation of the plant at which the body will be built I have
already stated my reasons for concluding that the Respondent controls the
selection of the plant at which it builds truck bodies. I regard the
elimination of the surcharge argument as similarly lacking in validity, for
the Respondent's backlog and production figures disclose that,
notwithstanding its removal of the surcharge on trucks made at Sturgis
and Sherman , in most of the months which followed, more new orders
were assigned to Athens for production For example, before the election,
out of 896 new orders received in September 1966, 405 were assigned to
Athens, 238 to Sturgis , and 253 to Sherman
"Shattuck Denn Mining Corporation v N L R B, 362 F 2d 466, 470
(C A 9)
0
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Board stated in Arnoldware, Inc 19
As Respondent's objective in effecting the closedown
was illegal, it is immaterial that in carrying out this
objective, some of the victims of Respondent's
discrimination may not have been union employees or
that Respondent had no knowledge of their union
membership and activities Discrimination in regard to
hire or tenure of employment of a group of employees,
including nonunion employees of the group or union
members not known by the employer to be union
members, tends to discourage union membership and
activities no less than discrimination against known
union members alone All victims of discrimination are
in such cases entitled to the same relief under the Act
as are known union members.
In addition, since this reduction in force was instituted
and executed without notice to or bargaining with the
Union which was the exclusive representative of all the
employees involved, the Respondent thereby also engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
J. The Discriminatory Selection of Union Members
for Discharge
I am moreover persuaded, even assuming arguendo that
a reduction of the Athens force was required by economic
considerations, that the selection of employees for
termination was motivated by antiunion considerations.
Thus, on the basis of pure chance and no other factors,
the mathematical probability that as many as 56 union
members would be selected in a layoff of 69 in a plant of
200 employees where 100 were union members is about
one chance in a billion ." It is well established that when
an employer who actively opposes union organization lays
off or reduces his force by terminating a high and
disproportionate number of union members, an inference
is warranted that antiunion discrimination motivated his
selection." Although that inference fits the instant case, I
do not base my conclusion on the mathematical
improbability of the number of union members selected
for termination alone, but also on the implausible
testimony of Plant Manager Simmons regarding the
methods by which he assertedly made the selections for
termination and retention, the incredible results of that
selective process, which included the termination of some
employees with the greatest seniority in the plant while
relatively new employees were retained, and the
termination of employees assertedly because of their
physical and health disabilities, while others with sunilar
infirmities were kept According to Simmons, he was
instructed on September 7 by Loar to reduce his staff
from 200 to 120, a number which Loar regarded as
sufficient (with overtime) to produce 1,800 trucks per
annum. Simmons then proceeded to select for retention "a
permanent, flexible, versatile effective work force."
"129 NLRB 228, 229
"See Gerald J Lieberman and Donald B Owen, "The Hypergeometric
Probability Distribution " (Stanford University Press, 1965 ), pp 3, 16-22,
William Feller , "An Introduction to Probability Theory and its
Applications" (2d ed John Wiley & Sons, 1961), Volume 1 , Chapter 7,
William C Guenther, "Concepts of Statistical Inference " (McGraw-Hill,
1965), pp 48-50
"F W Woolworth Company v N L R B. 121 F 2d 658, 661 (C A 2),
N L R B v Sandy Hill Iron & Brass Works, 165 F.2d 660, 663 (C A 2),
N L R B v Dinion Coil Company, Inc, 201 F 2d 484, 486 (C A 2)
1. Seniority
In making his selections, Simmons testified that "length
of service was very definitely a factor in my [Simmons']
consideration." However, he admittedly consulted no
personnel files, nor any other records to determine either
relative seniority or any other factor on which he
assertedly based his termination decisions." As noted
previously, Simmons' selections for termination included
27 employees with more than 10 years of service, at least
4 of whom (all union members) had worked for the
Respondent more than 17 years. Conversely, his selections
for retention included 12 with 4 or fewer years of seniority
and I with less than 1 year. Moreover 33 of the 69
employees who were terminated would not have been if
selection for retention and layoff had been based on
seniority alone. In view of the foregoing it is fairly
apparent that, contrary to Simmons' testimony, seniority
considerations played no significant part in the selections
for retention and layoff.
2 Simmons' failure to consult either foremen or
records in connection with the selection for retention
and discharge
As previously noted, the Respondent had 200
employees before the reduction in force. Twenty-one of
the two hundred worked in Plant I at Athens, and the
remainder at Plant 2 in West Athens, 3 miles away.
Simmons' office is located in an administration building
adjacent to Plant 2, and his time, for the most part, is
spent in places other than the production areas Z' The
employees involved work under the immediate supervision
of seven foremen No formal or other system of rating
employees' performance or production is maintained.
Admittedly, Simmons does not grant any merit increases
to an employee without first consulting his foreman.
However, when he made his selections for retention and
termination, and notwithstanding that some of his
decisions for discharge assertedly were based on slow or
poor production, Simmons did not consult with his
foremen for their views on the relative competence of the
employees they supervised.70 Moreover, although some of
his selections for discharge assertedly were based on slow
production, habitual tardiness, absenteeism, accident
proneness, and health or physical infirmities, Simmons did
not examine any of the Respondent's personnel records to
"It is significant that Simmons had been employed by Respondent only
since May 1963, and that 160 of the 200 employees of Respondent on
September 22, were then already working for the Company Moreover, his
answer to questions regarding the seniority of various employees not only
clearly disclosed a lack of definite information regarding their length of
service, but according to the Respondent's records in evidence , were also
not correct
"According to his own testimony, Simmons spends only about an hour
and a half per day in the "manufacturing area" of Plant 2, and about 15
minutes per day in Plant I
"Simmons' explanation for not consulting with his foremen was that he
did not have time to do so, and because he wanted to maintain the secrecy
of the impending reduction in force I do not credit either explanation for
the following reasons - The lack of time explanation is quite obviously not
credible in the light of the 2-week period which elapsed between September
7, when Simmons was instructed to reduce his staff , and September 21,
when he submitted the final list of 131 names selected for retention, and 69
for discharge , to Vice President Loar for approval Moreover, since
Simmons admittedly always consulted with his foremen before granting
merit increases , he obviously could have requested the foremen for their
views regarding the relative merits on their employees without revealing
that the purpose of the inquiry was a contemplated reduction in force
OLSON BODIES , INC. 1087
ascertain comparative wage rates, attendance, lateness,
accidents, and injuries.25 Obviously, the foremen and the
records were better sources for determining the relative
merit and competence of Respondent's employees than
Simmons' own evaluations of 200 employees based on the
minimal time he spent in the plant Simmons' failure to
consult these superior sources of knowledge of employee
merit, and his implausible explanations for not doing so,
suggests that criteria other than merit motivated his
selections
3. Simmons' implausible method of selection for the
reductiop in force
of an asserted, but not believed, comparative lack of
versatility, while nonunion employees, with the lowest
seniority in the plant (2 and 3 years) and with whom the
senior employees were not compared, were retained. Since
the failure of Simmons to make the widest possible
comparisons clearly facilitated the arrival at these
incongruous results, and since the method used by
Simmons obviously was inconsistent with his asserted
objective of retaining the best possible work force, I am
persuaded that it was utilized to cloak and conceal the
intended termination of a high and disproportionate
number of known union members.
A majority of the jobs in the Respondent's Athens
plant admittedly do not require any training or much skill.
It is significant in this regard that the Respondent
frequently transfers employees from job to job to meet
contingencies which arise, and that it annually hires high
school and college students during their summer vacations
from school to perform production work, notwithstanding
that such students have no prior training.
There are six different departments in the production
and maintenance unit at Athens, namely, small parts
fabrication, sub assembly, final assembly, painting,
shipping and receiving, and maintenance. Each of these
departments is supervised by a foreman, with the single
exception of final assembly which has two co-foremen A
substantial number of jobs in small parts fabrication, sub
assembly, and even in final assembly, involves the same or
similar operations which admittedly do not require "any
great degree of skill." These jobs include drilling holes
with a hand drill at spots previously designated by a
template, and bucking rivets with a rivet gun through
previously drilled holes. Other jobs require the operation
of relatively simple machines, such as drill presses and
saws, with the help of jigs and templates to make the
work even more simple and automatic One would assume
from the foregoing that if a selection for a reduction in
force was being made for the purpose only of retaining, as
asserted, "a permanent, flexible, versatile, effective work
force," that each employee in the plant would be
compared with every other in the plant, so that only the
very best would be retained regardless of the department
or job function in which he was then working. Simmons'
method of comparison was quite the opposite Ile not only
did not make his comparisons on a plantwide basis, but he
also did not do so by established departments. Instead, he
assertedly broke down each of the departments into
smaller subgroups by job function, or the type of
machines which the employees operated, and then, with a
few minor exceptions and two major ones, he assertedly
compared the employees who then were working in each
of the 40 subgroups which he thus evolved only with the
other employees in that particular subgroup.2e
The anomalous result of this limited method of
comparison was that union employees with as much as 19
years of service with Respondent were terminated because
"Simmons' only explanation for not doing so was that he did not have
time , but I regard this explanation as incredible for the reasons set forth in
the preceding footnote
"See Resp Exh 30-a to 30-g , and Resp Exh 31 through 70
There were two major exceptions to this method of comparing
employees All of the employees who worked at wiring truck bodies were
retained , although this necessitated transferring five of them to other jobs
In addition , the 21 employees who then worked at Plant I were compared
with their counterparts in Plant 2, and all but 3 of them were retained It
may be noted in this regard that there were 14 noncard signers at Plant 1,
and only I of these was terminated
4. The implausible reasons asserted by Simmons for
many of his selections for termination
I am further persuaded that antiunion discrimination
motivated Simmons' selection for termination by the
implausible and discredited reasons assigned for many of
his selections. A few examples are set forth below.
a. Thomas P. Hayes, a union member, had operated
the Respondent's steel shear for 12 1/2 years and was the
highest paid employee (not excluding the leadman), in the
artificial subgroup of employees designated "steel" with
whom Simmons compared him. Hayes received a merit
increase of 10 cents per hour just 1 month before he was
terminated, and he admittedly was a fast worker who
liked his work and did it well. Simmons testified that he
would have "liked" to retain this employee but because of
his "nervous energy" and fast pace, he could not transfer
him to other work, and the amount of steel shear work
was diminishing However, Simmons retained Conrad
Kollar (not a union member) who worked in this
subgroup, notwithstanding that his seniority with the
Company was less than 4 years and his rate of pay was
less than Hayes'.
b. John H. Tappen had the sixth greatest length of
service of the Respondent's 200 employees and had
worked for the Company since January 24, 1949, a period
of almost 19 years. He had worked for the Respondent at
"everything in the plant," including building truck bodies,
maintenance work, and repairing machinery He had built
a portable machine for Respondent which punches holes
in steel and aluminum and a hydraulic machine to bend
door posts on the truck bodies According to Simmons, he
was a "terrific mechanic" with an outstanding knowledge
of "hydraulics" and "steam pressures," "a very good
man, both as a worker and as a person," and also "a
personal friend of mine [Simmons]." Simmons testified
that although "it killed" him, and he "would have done
everything in [his] power [not] to have done so," he was
constrained to terminate Tappen because "he had had a
heart attack as a result of which he was unable to
manipulate heavy equipment," and this rendered him a
poor "production worker." On cross-examination,
however, it was disclosed by Respondent's personnel
records that Tappen's last "heart attack" had occured 11
years earlier, on September 14, 1956, and thus he had
been a "production worker" for a long time
notwithstanding his prior heart attack Moreover, Paul
Salvino, a nonunion employee who worked in the same
"gang punch" subgroup part time, and in the "steel"
subgroup with Hayes part time, was retained,
notwithstanding that the Respondent's records showed
that as of April 23, 1965, he was "under treatment for
heart disease," and that "he has swelling of legs if he
stands too long and should avoid this if possible." In
addition, the Respondent did not include Leroy A. White
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the reduction in force, although he also had suffered an
attack of "coronary insufficiency" in July 1965 It is
significant in this regard that, of the 10 employees with
the greatest seniority in the Respondent's plant, Tappen
was I of only 2 who had signed union membership cards,
and only Tappen and the other union member (James L.
Palmateer) were terminated in the reduction in force while
all 8 who did not sign union cards were retained.21
c James Palmateer, a union member, had worked for
Respondent for over 19 years, but was included in the
reduction in force, allegedly because he was a slow
worker, his quality was bad, his attendance was poor, he
"had a beautiful gift of gab" and "should have been a
salesman," because he left the plant once for an entire
afternoon without punching out his timecard, and on other
occasions he clocked out at his own convenience. No
attendance records were produced by Respondent to
corroborate Simmons' testimony regarding Palmateer's
poor attendance record, and I do not believe his
uncorroborated testimony in this regard. The incident
about leaving the plant without clocking out occurred in
1964 or 1965, and had never been repeated. Another
employee (Carlton Borfitz ) who committed the same
offense on January 19, 1967, was not included in the
reduction in force Other employees admittedly left the
plant at their own convenience and were still employed by
Respondent. In the light of the many long years of this
employee's retention by Respondent, I do not believe and
do not credit Simmons' testimony regarding Palmateer's
poor quality and slow work.
d Roman Rabl, a union member, had worked for
Respondent for 15 years, and for 5 years had been a
leadman in side door installations. He lost his leadman
status in the summer of 1967, because, according to his
uncontroverted and credited testimony, Simmons decided
that none was required for the staff of four men who did
this work. He was selected for termination, according to
Simmons, because he was the slowest of this group, but I
do not believe Simmons in this regard, in the light of his 5
years as leadman of the group Significantly, two other
nonunion members of this group, and many employees in
other subgroups, with relatively few years of service were
retained. 11
e. George Valentine was first hired by Respondent on
September 22, 1948, left on May 25, 1951, for another
job, was rehired on February 16, 1953, and had worked
for the Company ever since, a total employment period of
17 years.29 According to Valentine's uncontradicted and
credited testimony, he worked at many different jobs in
the Respondent's plant, including rear assemblies,
stripping, installing side and rear doors, and making cab
assemblies and door pockets. For the last 5 years of his
"While he was testifying about Tappen ' s selection for termination,
Simmons obviously was upset , broke down in tears, and asked and was
granted a short recess to regain his composure It was quite evident that
Simmons truly regarded Tappen highly as a dear friend , and that he would
not have been selected for termination if, as Simmons testified , it was "in
his power" to have retained him Obviously , if Simmons alone was making
the selections , it would have been within his "power" to retain Tappen, for
Tappen had worked for II years after his last heart attack in 1956, and
Salvino and White were retained despite recent heart attacks I conclude
from the foregoing and from the fact that Loar went over the list of
Simmons' selections for retention and termination before they became
final, that in Tappen's case at least, if not also in others , the decision to
terminate was made by Loar and not Simmons , and that if it was up to
the latter , Tappen would not have been included in the reduction in force
"William E Kenney , a nonunion employee who was not reduced in
force, had only 2 years of service with Respondent
employment by Respondent, Valentine had worked in the
layout department which makes templates, router boards,
and jigs according to blueprint specifications Of the six
employees in the layout department, Valentine's seniority
was the greatest, but only he was selected for termination,
assertedly because, according to Simmons, he was the
"slowest" of the six, "his versatility of doing functions in
this department was the least," he was "disinterested in
the work" and "wasted time," and the five others in this
subgroup had previous experience in other departments. I
regard all these reasons for the termination of this
long-term employee as unworthy of belief and do not
credit any of them for the following reasons: Layout work
admittedly requires greater skill, training, and precision
than production work, since the jigs, templates, and router
boards which are made are used by production workers
for the precise location of holes for drilling, curves and
angles for cutting metal, and other similar purposes No
records of employees' production are maintained by
Respondent, and Simmons' assessment that Valentine was
slow assertedly was based on his own observation, a
source I regard as unreliable. Admittedly, there is no
standard of the number of pieces that an employee should
make in this type of work, and indeed there could not be
any, since templates and jigs, by their very nature, vary in
size and complexity, and a fortiori, in the time required to
make them. Simmons' conclusions that Valentine was
"disinterested in the work," that "he was wasting time,"
and that he was slow assertedly were based on a report
made to him a month earlier by Valentine's Foreman Don
Shelley. The latter, although still employed by
Respondent,'" was not called to corroborate Simmons in
this regard, and no explanation was offered for the failure
to do so I infer therefrom, and from my lack of regard
for the reliability of Simmons' testimony generally, that if
called, Shelley would not have corroborated Simmons in
these respects Contrary to Simmons' testimony, Valentine
credibly testified that he was never told by anyone "from
management," that he was slow, and that in connection
with his last merit raise," he was told by Simmons that he
"had been doing good work," and that "we [the
Company] consider you a perfectionist When you do a
job, you do a good job." Finally, although Simmons
professed knowledge of the previous experience in
production work of the other employees in this subgroup,
when he was asked on cross-examination whether
Valentine also had worked in other departments, Simmons
replied, "So, he says " Simmons was then asked the
following questions and gave the following answers:
TRIAL EXAMINER. You mean you don't believe him9
THE WITNESS: No sir, I don't know it for a fact.
TRIAL ExAMINER: You could easily find out, couldn't
you?
THE WITNESS: If I had a reason to find out, yes.
TRIAL ExAMINER: Did you have a reason to find out
when you were laying off people or didn't you have a
reason to find out when you were laying off people9
THE WITNESS: I would say that I certainly had a
reason to find out, yes.
TRIAL EXAMINER: You made no attempt to find out?
THE WITNESS. I did not.
"According to the Respondent's rate card for Valentine , his adjusted
seniority date is June 13, 1950
'"See Resp Exh 30-e
"According to the Respondent 's records, this occurred on October 3,
1966 Valentine admittedly was uncertain of the date this occurred
OLSON BODIES , INC. 1089
In the light of all the foregoing, I am persuaded that no
credible nondiscriminatory reason existed for the
termination of this senior employee with years of
experience in many of the Respondent's other
departments, while others, considerably his junior in both
tenure and experience, were retained.
f. In general, the reasons assigned by Simmons for the
selection of employees for termination were such that, if
true, they would have warranted their discharge long
before the reduction in force. Since I regard Simmons'
testimony as generally unreliable, I conclude from the
long retention of these employees that little or no credence
can be placed on this subjective uncorroborated testimony.
It may be noted in this regard that, of the 13 nonunion
employees selected by Simmons for termination, one
(Wayne Boyer), the son of a foreman, was leaving in any
event to enter the Armed Forces, a second (William J.
Jackson), the father of another foreman, had announced
his planned retirement in December 1967, and a third
(Michael John Fandozzi) was a manager of a professional
baseball club who was on leave of absence at the time of
the reduction in force, and was a "temporary employee"
according to his pay rate card in evidence Thus, a more
accurate assessment of the ratio of union to nonunion
employees selected for termination would be 56 union and
10 nonunion (85%), in a plant where union membership
was 50 percent.
I find and conclude from all the foregoing that even
assuming arguendo that the reduction in force of
September 22 was inspired by economic considerations,
antiunion discrimination motivated the selections for
termination, and that the Respondent thereby engaged in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having further found that the Respondent
discriminated against George Hildenbrand and the 69
employees listed in Appendix B attached hereto by
terminating their employment and thereafter refusing to
reinstate them because of antiunion considerations, I will
recommend that the Respondent be ordered to offer them
immediate reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the
discrimination by the payment to each of them of a sum
of money equal to the amount he normally would have
earned from the date of his termination to the date of-his
reinstatement, less his net earnings during said period,
with backpay computed on a quarterly basis in the
manner established by the Board '=
In view of the nature and extent of the unfair labor
practices committed, the commission of other unfair labor
practices reasonably may be anticipated." I will therefore
recommend that the Respondent be ordered to cease and
desist from "in any other manner" infringing upon rights
guaranteed to employees by Section 7 of the Act, in
addition to those rights found to have been violated
herein
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this recommended remedy.
Upon the basis of the foregoing findings of fact and
upon the entire record in,the case, I make the following:
CONCLUSIONS OF LAW
1. Olson Bodies, Inc., a subsidiary of Grumman Allied
Industries, Inc., is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees employed at
the Respondent's Athens, New York truck body
manufacturing plants exclusive of office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
4. At all times since April 14, 1967, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, has been the
exclusive representative of the employees in the aforesaid
unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By refusing on May 8, 1967, and thereafter to
furnish information requested by the above-named Union
regarding the names, wage rates, classifications, and other
relevant information concerning the employees in the
aforesaid appropriate unit, by unilaterally and without
notice to or bargaining with the Union, changing the wage
rates and other fringe benefits of said employees on June
5, 1967; and by unilaterally terminating 69 employees on
September 22, 1967, without notice to, or consultation or
bargaining with the Union as the exclusive representative
of the employees in the said appropriate unit; the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6 By discriminating against George Hildenbrand and
the 69 employees listed in Appendix B attached hereto, by
terminating their employment and thereafter refusing to
reinstate them because of antiunion considerations, the
Respondent has engaged in and is engaging in unfair labor
"F W Woolworth Company, 90 NLRB 289; backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716
"N L R B v Entwistle Co, 120 F 2d 532, 536 (C A 4)
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8(a)(3) of the Act.
7. By the foregoing conduct, by coercively interrogating
employees regarding their union membership, activities,
and sympathies, by engaging in close surveillance of the
Union's committeemen and creating the impression that
the union activities of its employees were being subjected
to surveillance, and by threatening employees with
discharge, plant closure, and other reprisals to discourage
support of the Union, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Respondent, Olson Bodies, Inc., a
subsidiary of Grumman Allied Industries, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding their
union membership, activities, and sympathies.
(b) Engaging in surveillance of the union activities of its
employees or in conduct which gives the impression of
such surveillance.
(c) Threatening employees with discharge, plant closure,
or other reprisals to discourage union membership or
support.
(d) Discouraging membership in and activities on behalf
of International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization of its
employees, by discharging or refusing to reinstate any
employees, or in any other manner discriminating in
regard to hire or tenure of employment or any term or
condition of employment
(e) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, or other terms and
conditions of employment, with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, as the
exclusive representative of the employees in the following
appropriate unit:
All production and maintenance employees employed at
the Respondent's Athens, New York truck, body
manufacturing plants exclusive of office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer George Htldenbrand and the 69 additional
employees listed in Appendix B attached hereto immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority, or
other rights and privileges enjoyed, and make them whole
for any loss of pay they may have suffered as a result of
the discrimination against them in the manner provided in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Notify George Hildenbrand and the other 69
employees listed in Appendix B, if presently serving in the
Armed Forces of the United States of their 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
(d) Bargain collectively with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, as the
exclusive representative of all the employees in the
appropriate unit described above, before instituting any
changes in their rates of pay, wages, hours of
employment, and other terms and conditions of
employment.
(e) Post at its truck body plants located at Athens and
West Athens, New York, copies of the attached notice
marked "Appendix A."30 Copies of said notice, on forms
provided by the Regional Director for Region 3, after
being duly signed by Respondent's representative, shall be
posted by it 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.
(f) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 95
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 3, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT coercively interrogate our employees
regarding their union membership, activities, or
OLSON BODIES, INC.
sympathies
WE WILL NOT engage in surveillance of the union
activities of our employees or in conduct which gives
the impression of such surveillance
WE WILL NOT threaten our employees with discharge,
closing of our plant, or with any other reprisal to
discourage their union membership or support.
WE WILL NOT discourage membership in or activities
on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization,
by discharging or refusing to reinstate any of our
employees, or in any other manner discriminating
against our employees in regard to their hire or tenure
of employment or any term or condition of
employment
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL bargain collectively with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, as the
exclusive representative of all our employees in the
appropriate unit described below, before instituting any
changes in their rates of pay, wages, hours of
employment, and other terms and conditions of
employment. The appropriate unit is
All production and maintenance employees employed at
our Athens, New York, truck body manufacturing
plants exclusive of office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
WE WILL offer George Hildenbrand and the 69
employees whom we terminated on September 22, 1967,
whose names are on Appendix B attached hereto
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them.
WE WILL notify George Hildenbrand and the
employees listed on Appendix B if presently serving in
the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
1091
Training and Service Act, as amended, after discharge
from the Armed Forces.
Dated By
OLSON BODIES, INC., A
SUBSIDIARY OF GRUMMAN
ALLIED INDUSTRIES, 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, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 716-842-3100
APPENDIX B
Bardenhagen, Edward
Barkman, Dale Ed.
Bernhard, John
Bird , Thomas P
Boice, Edward E.
Boyer, Wayne H.
Brennan , Thomas F , Jr.
Brunner , John M.
Brunner, Robert J.
Bruno, Pasquale N.
Buhrke, Werner E.
Bush , Ralph, Jr.
Chadderdon, S. Nelson
Combs, Wilbur R.
Coons, Charles W.
Darling, John B
DeLuca, Alfred R.
DeMarco, Louis J
DiPerna, Cosmo D.
Dumary, Ronald H
Esposito, Louis J
Fandozzi, Michael J
Fink, Larence F.
Fyfe, William N.
Gerrain, Frank J
Hayes, Thomas P
Higgins, Edward
Hosford, Ernest E.
Houghtaling , Frank E.
Jackson, William J.
Kadlick, Aldrich P.
Keesler, Leonard P.
Kisselburg , Charles W, Jr
Kisselburg, Paul L
Kudlack, Lawrence
Lindh, Ake
Mallon, Edward H
Meo, Joseph
Moore, Ralph F
O'Bryon, Raymond H,
Sr.
Palmateer, James L
Perry, John K.
Peters, Philip A
Peters, William K
Poole, Alwyn
Poole, James E
Rabl, Roman
Rion, Amos J
Riozzi, Cosmo L., Jr
Robinson, Dewey
Sapunarich, Anthony D.
Schnur, Anthony E.
Seaburgh, Earl
Self, Heermance
Stacey, William G., Jr.
Stenger, Lawrence J.
Tappen, John H
Taranto, George Z.
Thurston, Joseph F.
Todd, George C.
Valente, Ralph R
Van Kuren, James L.,
Sr
Vitale, Vincent A.
Wasson, George L.
Weisman, William
Wolfe, Joseph T.
Wolfe, William J.
Wood, Milton E
Valentine, George L.