H & K MFG. Co.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 247 (N.L.R.B. 1969)

H & K MFG. CO.
Herbert W. Thompson, d/b/a H & K Mfg . Co. and
Tool and Die Craftsmen , Affiliated With National
Federation of Independent Unions. Cases
20-CA-4868 and 20-RC-7966
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On August 26, 1969, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices. Thereafter,
Respondent filed exceptions to the Decision and a
supporting brief, and the General Counsel and
Charging Party filed briefs in support of the Trial
Examiner's Decision.
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 these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations 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
Recommended Order of the Trial Examiner, and
orders that the Respondent , Herbert W. Thompson,
d/b/a H & K Mfg. Co., Dublin, California, its
officers, agents, successors , and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
247
petition filed on January 30, 1968.'
The chief issues presented in the unfair labor practice
case may be summarized as follows:
1. Whether Respondent discharged Clyde E. Breeding
on February 16, 1968, and James Kleven on February 21,
1968, in violation of Section 8(a)(3) and (1) of the Act.
2. Whether Ray Watkins was laid off on February 6,
1968 in violation of Section 8(a)(3) and (1) of the Act.
3. Whether Respondent curtailed overtime on or about
February 19, 1968, in violation of Section 8(a)(3) and (1)
of the Act.
4. Whether Respondent threatened employees with
reprisals, and engaged in other coercive conduct in
derogation of employees' rights under Section 7 of the Act
in violation of Section 8(a)(1) of the Act.
The issues raised in the representation case and the
objections to the election filed on February 21, 1968, may
be summarized as follows:
1. Did Respondent interfere with the Board conducted
election of February 16, 1968?
2. Should the ballots cast by Ray Watkins, Clyde
Breeding, or John Mattice be opened and counted?
Briefs have been received from the Respondent and the
General Counsel while counsel for the Charging Party
argued orally on the record. Having carefully considered
the briefs, the oral argument, and the entire record2 in this
proceeding, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Herbert W. Thompson, Respondent herein, is the sole
proprietor of H & K Manufacturing Co., located at
Dublin, California, where he is engaged in the
manufacture of tools, jigs, fixtures, and prototypes. The
General Counsel alleged, Respondent admitted, and I
find, that Respondent, during the past year, has provided
goods and services valued in excess of $50,000 to
Lawrence Radiation Laboratory at Livermore, California,
and to Lenkurt Electric, Co., Inc., at San Carlos,
California, and that these enterprises have a substantial
impact on the national defense. Accordingly, I find that it
would effectuate the policies of the Act to assert
jurisdiction herein.' I find, therefore, that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Tool and Die Craftsmen , affiliated with National
Federation of Independent Unions, herein sometimes
called the Union or Charging Party , is a labor
organization within the meaning of Section 2 (5) of the
Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: These consolidated
cases were heard at San Francisco, California, May 28
and 29, 1969. Pursuant to a charge filed on February 19,
1968, amended on May 3, 1968, a complaint was issued
on May 22, 1968, in Case 20-CA-4868 and was
consolidated for hearing on objections and challenges on
May 22, 1968, with Case 20-RC-7966, arising from a
' A consolidated hearing was held before Trial Examiner Wallace E.
Royster on August 13 and 14, 1968 . Trial Examiner Royster passed away
prior to issuance of a decision herein . Upon Respondent's request for a
trial de novo, the above matters were assigned to me.
'The General Counsel 's unopposed motion to correct the transcript in
certain respects is herewith approved . It was stipulated that the testimony
of Alfred Deakin and John Mattice in the prior hearing was to be
incorporated in the record of the hearing before the undersigned.
'Ready Mixed Concrete & Materials , Inc, 122 NLRB 318.
180 NLRB No. 35
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings
Herbert W. Thompson, sometimes referred to herein as
Respondent or Thompson, testified that his employees
were categorized by the job classifications of tool and die
maker , tool room machinist , maintenance machinist,
general machinist, and helper. Thompson also testified
that he had an established policy whereby upon
employment employees were put on 30 days probation'
before they were eligible for holiday and vacation pay and
that thereafter regardless of ability he would lay off when
necessary in accordance with seniority in each job
classification. Upon all the evidence including the
demeanor of Thompson and the other witnesses, I find,
contrary to Respondent's contentions, that neither job
classifications nor a policy of layoff in accordance with
seniority in job classifications were in existence at any
time material herein. The credited testimony of Clyde E.
Breeding, Alfred Deakin,' Raymond Watkins, and James
M. Kleven, shows in convincing fashion that when hired
all employees were compensated at varying, agreed upon
wage rates as experienced all around tool and die
machinists, whose tasks varied from time to time in
accordance with the work at hand. It further appears that
Breeding, the working foreman , could be designated as the
most skilled while Watkins, Deakins, Kleven and Alton C.
Randall were highly skilled except that Randall and
Kleven were more frequently assigned repetitive or
production tasks. With regard to the policy concerning
probation and layoffs Thompson admitted this was not a
published policy. His testimony that the employees were
informed of this policy when hired is not credited.
Moreover Thompson personally signed the agreement for
Consent Election on February 5, 1968. This document sets
forth the appropriate unit as follows:
All employees of the Employer including tool and die
makers , tool and die machinists, apprentices , helpers,
leadmen and working foremen. Excluded: office clerical
employees, guards, and supervisors as defined in the
Act.
In his testimony, however, Thompson, quite in
contradiction, denied that he recognized the classification
of tool and die machinist. I view Thompson's insistence
that he had a scheme of job classifications including
toolroom machinists and general machinists as an
afterthought designed to bolster and rationalize his
defense.
B. The Discharges of Breeding. Watkins, and Kleven'
Breeding testified that he was employed by Respondent
in May 1965, with the exception of a 4 or 5 week period
commencing September 1967. Thereafter he continued in
Respondent's employment until discharged on February
16, 1968; that for the past 2 years of his employment he
'He also testified that the probationary period was 30-60 days
'Deakin passed away after testifying in the hearing before Trial
Examiner Royster.
'The complaint alleged that Archie Johnson was also discharged in
violation of Sec 8 (a)(3) and (I). At the hearing the General Counsel
moved to withdraw Johnson's name from the complaint because of
unavailability The undersigned Trial Examiner granted the General
Counsel's motion , with the approval of all parties , to delete pars VI(b)
and VII(c) from the complaint
was a working foreman.' Breeding and other of
Respondent's employees signed authorization cards for the
Union sometime in January and the Union filed a
representation petition on January 30, 1968.8 According to
Breeding, Thompson received notification of the filing of
the Union's petition from the Regional Office of the
Board on February 1. Thompson, on that day, talked with
Breeding on several occasions, he asked Breeding if he
knew anything about the notification from the Board.
Breeding replied that he did not. Later, Thompson,
shaking his finger, told Breeding, "If the Union gets in
here, I'm going to fire every son-of-a-bitch in the shop
within a year." Thompson then went on to explain how he
could get rid of all the employees within a year and have
another election to decertify it.' On another occasion
Thompson stated that he was sure Watkins and Kleven
were behind the union election. Again that day Thompson
spoke to Breeding in the office and said he was going to
discharge Watkins the next day; that Thompson was going
to lay him off for lack of work and, pointing a finger
toward Kleven, said, "That fat bastard is next."
Thompson also told Breeding that he did not want
anything about the election posted on the bulletin board at
that time. On the morning of February 2, Thompson told
Breeding that he was going to let Watkins go that
afternoon. Later that afternoon Breeding overheard
Thompson tell Watkins that he was being laid off for lack
of work, and that Watkins said, "Come on, Herb, there's
more to it than that." Thompson replied, "No, last to
come first to go."
After Watkins left, Breeding, at Thompson's
instruction, posted the union election notice and then
conversed with Thompson in the office. They remained in
the office until sometime after 5 p.m., consuming four or
five drinks of alcoholic beverages provided by Thompson.
On the following day, Saturday, Thompson telephoned
Breeding at his home saying that he was compiling a list
of eligible voters and was including Henry Keough, a
casual part-time employee, that Thompson was going to
enter Keough for 4 hours work during the last pay period
to make him eligible to vote, that he had called Keough
and informed him that he wanted him to vote and that he
owed him for 4 hours of work.'°
On the following day, Sunday, Thompson again called
Breeding and told him that be was also including on the
eligibility list Thomas Wendt, a student who had been a
part-time casual employee, that Thompson had called
Wendt long distance and informed him that he was on the
voting list."
On Monday, February 5, when Breeding arrived at the
shop, Thompson called the employees together' I and spoke
to them about the forthcoming election, saying that he
was allowing them an hour overtime each day in lieu of
any insurance benefits and that the overtime would buy an
awful lot of insurance.
'It was stipulated by the parties that Breeding was not a supervisor
within the meaning of the Act. I so find
'Hereafter all dates will refer to the year 1968 unless otherwise specified
'Breeding did not testify as to the details
"Keough did not vote in the election . Keough admitted that Thompson
had solicited him to vote in the election but as he was a permanent
full-time employee of Pacific Gas and Electric Co (PG & E), Keough
decided the election was none of his affair Keough test ified that he talked
with Thompson and Breeding on Friday, February 2. Breeding denied this
while Thompson agreed with Keough 's version I credit Breeding.
"It is not clear whether Wendt voted in the election His name, however,
was added to the list of eligible voters G C Exhs 9 and 10.
"Employees Deakin and Johnson were not present as they commenced
H & K MFG. CO.
Later that day, Thompson spoke to Breeding and told
him that he had learned that four authorization cards had
been signed and said, "No need to ask who signed them."
Breeding stated, "as far as I was concerned it was a secret
election, and it didn't really make too much difference,
and I told him I didn't think it was right, him calling in
part-timers and putting them on the list to vote on it. And
I told him I was just about fed up with this screaming
mess. I don't want anything more to do with it." On
Tuesday, February 6, about 2 in the afternoon, Breeding
was told by Thompson that "he couldn't" have a foreman
that wasn't on his side." Breeding replied that he didn't
think that anything would arise that warranted choosing
sides. Before the conversation terminated, Thompson
repeated that he couldn't have a foreman that wasn't on
his side. Later that day, Mrs. Thompson approached
Breeding and asked him how he could do this to Herb.
Breeding replied that he didn't think he was doing
anything to him, that Thompson had brought most of it
on himself fighting with the employees most of the time
about insurance, not paying any hospitalization or
insurance and that he was working two men Saturday and
Sunday night at straight time. In the course of the
conversation with Mrs. Thompson, Breeding disclosed that
he had signed one of the authorization cards. Thereafter,
Breeding testified relations between Thompson and
himself were very cool and there was no discussion
between them, except concerning work whereas hitherto
Thompson and Breeding had been friendly.
On the day of the election, February 16, Breeding left
for lunch at his usual time at 12 noon, having completed
the work assigned to him. Breeding testified that as the
election was scheduled for that evening, he had decided to
go to the bank at noon; that thereafter he went to his
usual eating place where he had a sandwich and a beer.
By this time he was about 20 minutes late for work as he
usually took a half hour for lunch. While sitting and
eating his sandwich and drinking his beer, Thompson
walked in the door and told Breeding that he was drinking
on his time, that he was fired and to come to the shop and
pick up his check. Breeding said "You must be joking,
Herb. You know I have a sandwich and beer every day of
the week." Thompson replied, "Just come over and pick
up your check." When Breeding returned to the shop,
Thompson told him he was firing him for just cause and
to get his check and get out. Breeding replied, "You
might fire me but I'll be back here tonight to vote."
Thompson replied, "No you won't. I am firing you for
just cause and don't come through them doors."' 4 As Mrs.
Thompson was making out Breeding 's check, she asked
Breeding , half crying, how he could do this. Breeding
replied that he didn't think it was right to be fired,
particularly on the day of the election, that he had been
late returning from lunch on many occasions and had
never been reprimanded. Breeding confessed he was quite
upset and told Mrs. Thompson that "she better sharpen
up her pencil and start juggling the books, because I was
going to the Wage and Labor Section of the Government,
and I was going to file a complaint against him for
working them two men all them months overtime for
straight time." As Breeding was walking to his bench,
Mrs. Thompson went to Thompson and said something to
him. Thompson then followed Breeding and told Breeding,
work at 8 a . m , all other employees started at 7.30 a . m. in order to work t
hour overtime . Deakin and Johnson did not work overtime
"The tr. p 24, 1 24, reads "didn ' t." It is hereby corrected to read as
stated above
249
"I'll break your God-damn neck."'s
Breeding also testified that he was late frequently when
coming back to work after lunch; that he had never been
reprimanded for it, and that he customarily adjusted his
time by working late to make up the time he lost. On
cross-examination, Breeding denied that Thompson had
job classifications or categories, stating that Thompson
hired the men for what they were worth and that none of
the employees made the same amount of money and that
he was the highest paid employee. Breeding credibly
testified that when he was rehired in October 1967, after
having quit some time in September 1967, Thompson
made no condition with regard to dependability. That all
Thompson said was things would be the same as they
were before.16 On further cross-examination, it appeared
that there was an extremely important rush job in the
shop on which Breeding had worked on February 15 until
7:30 p.m. in order to finish a part which was rushed by
plane to its destination." Breeding had also worked on
another part of the same rush job on the morning of
February 16, but had completed his assigned task when he
went to lunch. Breeding credibly testified that he did not
know that he was to receive another assignment or that
the rush job was not complete at noon. Breeding admitted
that he had concealed from Thompson the fact that he
had signed a union authorization card and admitted that
Thompson had related things to him about the Union
which could be considered confidential.
Ray Watkins testified that he had worked for
Thompson over a period of 4-5 years, having been
discharged by Thompson on four or five occasions and
having quit Thompson on four or five other occasions;
that his last employment by Thompson had commenced
sometime in the latter part of January until the time of
his discharge on February 2, 1968. Watkins stated that on
the day he was terminated he was scheduled to leave early
because he was getting some medical treatment; that as he
was leaving Thompson told him he was being let go for
lack of work. Watkins replied that he was full of
"bullshit;" the he had a week's work coming up on which
he had started, that he had another job which he had set
aside and which was only partially finished and that to let
him go while keeping part-time help didn't make sense.
Thompson replied "that's it" and walked off. Watkins
further testified that Thompson knew he was a member of
the Union from a discussion he had with him several
months earlier and that he knew that Thompson had been
a member and favored the International Association of
Machinists. Watkins conceded that he had been in and out
of other job shops although he had been in the trade for
31 years, and that he had a drinking problem; that
customarily during his lunch hour he had a couple of
drinks and that Thompson was well acquainted with that
fact. On cross-examination, he denied that he was placed
in any job classification when he was hired saying "we just
talked money, I didn't know of the nomenclature - I
' 4Breedmg , as noted above, cast one of the challenged ballots.
"Thompson has a slightly different version Mrs Thompson did not
testify
"The evidence shows that Breeding had quit in September 1967 because
he was refused an increase and that at that time Thompson had a rush job
in the shop Respondent counsel apparently was trying to show that
Breeding had violated a condition of his reemployment by taking extra
time for lunch when another rush job was in the shop As I credit
Breeding , I do not find this to be the case
"The rush job, according to Thompson, was received from E G & G
about February 8 and involved fabrication of parts for a nuclear
experiment at Mercury , Nevada.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn't know of classification he puts me in." He further
denied that he knew any of the classifications that
Thompson had. He did not remember whether Thompson
had told him at the time of his layoff that as he was the
last one to get on the job, therefore the first to go.
Watkins also denied that when he was rehired in January
that he was told he was hired for a particular job or that
prospects of continued employment were not too good,
stating he always expects ups and downs in a job shop;
that while he was employed by Thompson during this
period, he worked on several jobs not any particular one;
that Thompson did not discuss with him whether business
was good or bad. Watkins insisted that when a person
starts a job in a shop he finishes the job and that at the
time of his layoff he had unfinished work.
James N. Kleven testified that he was employed by
Thompson on November 5, 1967, and continued to work
until his discharge on February 21, 1968; that he signed
an authorization card for the Union; that he was present
when Thompson addressed the employees on February 5;
and that Thompson said "Do you know that you're
working 9 hours a day and if the Union comes in and
makes it 8 hours a day - I hour a day, you could buy a
lot of insurance with that." Kleven stated that he
overheard Thompson say to Breeding on February 16,
"I'll break your God damn neck," and that Thompson
was angry and upset at the time; that after Breeding left,
Thompson told him and Randall, "I'll kill that
son-of-a-bitch," that on February 19, the Monday
following the election, he came to work as usual at 7:30
a.m. He received no assignment and had nothing to do
until 10:30 when Thompson came over to him and told
him that he wanted Kleven to quit. Kleven replied that if
he had his check he would take it and go. Thompson then
told Kleven that he had nothing for him to do and to sit
on the bench. Thompson also said I've had too much
trouble already; that he couldn't fire Kleven but wanted
him to quit. About 11:30 he gave Kleven a job which
lasted about an hour and a half and complained 10 or 15
minutes later that Kleven was taking too long on the job.
In the afternoon, Thompson had Kleven sweep the job
shop. All other employees in the shop continued to work
all that day. The following day, Kleven again had no
assigned tasks but swept the floor in the morning while all
the other employees were working. Thompson, during this
period likewise worked on a lathe most of the time. About
12 noon on Wednesday, Thompson gave Kleven his check
and told him he was fired, saying that his lawyer told him
it was all right to fire him. Kleven testified that during his
employment by Thompson, one of the jobs which took
much of his time was the fabrication of "shock blocks,"
which had to be optically clear from one end to the other
in parallel with a tolerance of 2/100's of a thousandth,
that some of the blocks had a slot in them which required
a tolerance of one 1/1000 of an inch; that he made a
special tool to cut the slot and that at times the material
would get hot in the center and expand so that the block
had to be remilled; that such a problem was common with
the lucite material; that he made about 500 of the blocks
and about 250 had slots; that he was complimented by the
inspector concerning the blocks, Thompson telling him
that the inspector liked the work "real well" and was
"real well pleased with the job." On cross-examination,
Kleven denied that he had any personal knowledge either
on February 19-21 that business was off , saying that there
was work for everybody except himself. Kleven also
denied that Thompson told him that because of the
inventory tax being due on March 1, a number of
customers did not want their jobs completed. He admitted
that Thompson also told him that he was too slow. On
cross-examination , Kleven admitted that Thompson told
him he had lost money, about $900, on the shock block
contract, that he had worked on a number of other jobs,
while in Respondent's employ; that he did the polishing on
the shock block job by hand; that he wasn't informed that
they lost money on the contract until just about the time
he was finished with it and after Thompson learned about
the Union petition; that it was at that time he told him it
was Kleven's fault because he was too slow; that prior to
then he had never been criticized for being slow He also
testified that Thompson came to his machine and looked
at the shock blocks once or twice a day while Kleven was
working on them and that Thompson said they were
coming out real good.
Alfred Deakin testified1s that he was hired in October
1967; that he became aware of union activity in January
of 1968; that Thompson spoke to him about the Union on
the same day or the day after Thompson received notice
from the Board that the Union had filed a representation
petition; that Thompson informed him that he received the
notice "that some of the men had put in an application
for the Union" and he blamed Ray Watkins and Jim
Kleven. Thompson added that if the Union came in he
would not be able to keep Deakin as he couldn't afford to
pay him the rate; that sometime afterward before the
election, Thompson again spoke to him and said that
Deakin was a key man, that it would be better for him if
the Union did not get in, that Thompson was fairly sure
of the votes of Mattice, Eric Matazat, and Randall, that
Thompson also thought that Breeding would vote against
the Union. During the week after the election Thompson
had another conversation with Deakin saying that he knew
that Deakin had voted for the Union as had Watkins,
Kleven and Breeding . Deakin testified to an occasion
when Breeding met him at the door with a glass of
alcoholic beverage in his hand about 4:30 p.m. as Deakin
was going home and invited him into the office for a
drink. Deakin declined." Deakin also testified that he
knew nothing about job classifications in the shop and
that he was not asked concerning his own job
classification ; that he does general machine work and that
all employees would be either tool and die craftsmen or
general machinists ; that Thompson told him that Watkins
was a good worker and that so was Breeding. On
cross-examination Deakin testified that he was 75 years of
age; that his rate of pay was $4.25 an hour; that he was
qualified as a tool and die maker but considers himself
working in the capacity of a machinist; that the equivalent
union rate is higher and that Thompson told him that if
the Union came in he would not be able to keep him after
the election; that work did fall off around the time of the
election because he was put on fill in jobs, jobs that are
done when there is nothing else to do and are laid aside
when work of a more pressing nature comes in. Deakin
further testified that Thompson told him that Breeding
and Watkins were involved in union activity and that he
was going to fire them. He denied that Thompson had
said to him there was no work for them or gave any other
reason for their discharge. Deakin also denied that at the
time of the termination of Watkins, Breeding and Kleven,
"Alfred Deakin 's testimony as mentioned above was received at the
prior hearing before Trial Examiner Royster and was stipulated into the
record of this hearing
"Breeding fixes this incident in his testimony as occurring on February
2
H & K MFG . CO. 251
Thompson made any sort of statement to him of any kind
as to why they were let go other than that they were let go
for union activity. Deakin stated that when he applied for
a job at Respondent's establishment he gave references
and mentioned the Gilro Tool and Machine Company as
the last place he had worked. He told Thompson that at
that time he would still have been there except that Gilro,
a member of the California Metal Trades Association,
had a contract with the Union which required an
employee to be automatically retired at a certain age; that
Deakin had reached that age and had to leave; that during
the conversation with Thompson prior to the election
Thompson said he did not understand why "I would vote
for the Union after they had kicked me out of the other
job." Deakin replied that they had not kicked him out
but that it was in the contract.
Allen Randall, a witness called in behalf of
Respondent, testified that he was a machinist with
experience from 1948 and had worked in a number of job
shops. He was employed by Respondent on November 27,
1967, at a rate of pay of $3.80 per hour, that he was
offered $4 per hour by Thompson but declined to work at
the higher rate because he had not worked at the trade for
2 1/2 years. He stated that his job classification was that
of general machinist.20 Randall testified that he had
performed the shock block operation on three occasions in
1968 after Kleven's discharge. That the orders consisted of
approximately 200 to 300 each time and that
approximately 100 of the shock blocks had slots; Randall
explained that he used techniques different than Kleven in
cutting the shock blocks and in polishing them. In the
cutting he used greater amounts of oil or coolant while in
the polishing he used a buffer. Both changes in the
technique of fabricating the shock blocks, according to
Randall and Thompson, shortened the length of time
necessary for the completion of a shock block to a
marked degree and resulted in fewer remillings.
Apparently Randall himself originated the changes in the
operation and Thompson approved. This testimony was
elicited in order to demonstrate that Kleven was slow and
was therefore justifiably discharged. While I agree that
Randall's technique showed ingenuity and made the
contract for shock blocks more profitable for Respondent
I am not persuaded, as will be discussed below, that it
demonstrates Kleven was justifiably discharged or that
Kleven was too slow. Randall further testified that after
the election, overtime commencing the week of February
19 was curtailed but restored about 2 1/2 weeks later.
Thompson informed the employees that orders had started
coming in and work had picked up. On cross- examination
Randall testified that his wages were increased to $4 per
hour on January 29 and that he got another raise on June
1.
John Mattice testified" that he has been employed by
Respondent for over 10 years; that for the past few years
he has been a permanent full-time employee of the Fine
Paper Box Company in San Leandro and works for
Respondent primarily as a maintenance machinist
evenings and weekends . The evidence shows that Mattice
was employed by Respondent a minimum of 20 hours per
week including January and February and was responsible
for practically all the maintenance of machines in
Respondent 's establishment . He was paid at the rate of $4
per hour and on occasion worked on the fabrication of
parts and did other production work. Mattice testified
"Randall did not say how or from whom or when he learned his job
classification . I do not give any weight to Randall 's testimony in this
that Thompson told him on the day before the Board
election that he was eligible to vote and to be there on
time to vote
Herbert W. Thompson, the owner of Respondent's
enterprise, testified that at the end of January he had
eight employees; that Mrs Thompson pays the bills,
makes out packing slips, does the invoices, keeps
timecards, makes out checks, including payroll checks and
signs them; that he, himself, is a journeyman tool and die
maker and works in the shop during the day, evenings,
most Saturdays and some Sundays; that during slack
times he works more than during busy times; that he
prepares bids for contracts and occasionally leaves the
shop to solicit business, that he was a member of the
International Association of Machinists for 12 years up to
about 4 1/2 years ago when he became an employer, that
a good deal of his business consists of the overflow from
other machine shops as a subcontractor when they cannot
keep up with their orders. Thompson presented a
document" which purported to reflect the gross sales for
the years 1967, 1968 and through April of 1969 His
testimony showed that the document did not truly
represent the gross sales for each particular month, rather
it showed the cash receipts for each particular month and
represented receipts for work performed" 30 to 60 days
earlier On occasions, like December 1967, some amounts
received were entered in the January 1968 totals.
Primarily the document was presented to show the
comparison between the months of September, October,
November 1967, totaling $77,789.76 with the following 3
months, December 1967, January 1968, and February
1968 which showed a total of $43,582.71. The intent was
to demonstrate a drop in business during the latter
3-month period. I reject the exhibit's probative value in
this regard because Thompson testified that in the summer
of 1967 continuing to Christmas 1967, there was a special
nonrecurrent order for cannery machinery from the Filper
Company. Accordingly, I make no finding whether
business conditions in February 1968 warranted layoff of
any employees. I believe the issue immaterial in the
posture of the case as found herein.
Thompson insisted that when he laid off Watkins, who
was hired on January 12 at $4.40 per hour, he was the
junior man in the shop in the job classification of tool
room machinist, that Watkins, although a drinking man,
does a good day's work for a day's pay; that he could be
relied upon; that any time Watkins wants to work and
Thompson has work available he will hire him; that he
has worked for him approximately 12 times; that when he
hired Watkins on January 12 he had called Watkins who
told him that he was desperate and needed work; that
Thompson told him he had some castings which would
take a couple of weeks and that if work picked up he
could have a job for a longer period and that Watkins
agreed to come in on that basis; that when Watkins
finished that job, he didn't have anything else for him;
that Watkins had finished it 2 or 3 days before he was
laid off on February 2; that the last job Watkins did was
a slice guage for Hexcel and that all that remained was to
assemble it; that Thompson himself did that in 4 hours on
the following Sunday; that the rush job for EG & G did
not come in until after Watkins was terminated.
regard because of my finding that there were no job classifications as such
at Respondent's shop
"Mattice's testimony in the prior hearing was stipulated into the record
of this hearing He also testified in the instant hearing Accordingly, the
testimony mentioned herein refers to both hearings
"Resp . Exh. 2.
"In some instances cost of material as well
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to Kleven, Thompson testified that he had
determined before Watkins was laid off that Kleven was
incompetent; that he hired Kleven when he had the
cannery machine work in November and which had to be
delivered before Christmas, that he recognized that Kleven
did not possess standards which Thompson required but
that he was in a bind to deliver the cannery equipment
and let him work, being aware of the fact that he was
slow but capable; that Kleven did his work well and that
when Christmas came along, he did not want to lay him
off just before Christmas; that as a result Kleven went
beyond the 30-day probationary period. At that time, he
put him on some shop jobs; that every job that Kleven did
was slow; that he kept after Kleven to speed up; that in
January he had made up his mind to lay off Kleven; that
Thompson, under his lay off policy, could not lay off
Kleven until he laid off Watkins because Kleven was the
senior employee of the two in the same job classification;
that he told Breeding, his foreman, on January 29;=' that
if no more work came in he would have to lay off
Watkins and Kleven and that this determination was
made before he received word from the Board that the
Union had filed a petition; that he did not receive the
notice from the Board until January 31.
Thompson further testified that he discussed his
seniority and lay off system with Breeding; that Breeding's
main job as foreman was to answer the phone when he
wasn 't there, to talk to anyone who came in, to take
charge of the men when Thompson was not in the shop;
that Thompson handed out the work most of the time but
on occasion Breeding did so in Thompson's absence; that
Breeding was a tool and die maker and was paid $4.60 per
hour in August 1967, was raised in October 1967 to $4.75
per hour which was his rate of pay when he was
terminated on February 16; that when he rehired Breeding
on September 15, 1967, after Breeding had quit in August
1967, Breeding had solicited employment from him
acknowledging that he had made a mistake when he quit
in August; that he told Breeding that when he had quit in
August, Breeding left him "high and dry" on a deadline
job; that at first he refused to take Breeding back but
upon Breeding 's promise that it would not happen again,
Thompson told him that inasmuch as he had not made
any other man foreman during Breeding 's absence, he
would take him back exactly the same as before at the
same pay, that Breeding would still be the foreman but if
Breeding ever let him down again it would be the last
time . Breeding assured him that he would not and under
these conditions Thompson reemployed Breeding.
Thompson stated that he first learned that Breeding had
signed an authorization card on the evening of February
16 when his wife informed him of that fact; that
Respondent received the EG & G job about February 8
and it consisted of parts for a nuclear experiment in
Mercury, Nevada; that it consisted of three parts, one of
which Breeding finished on February 15 at which time
there was a plane waiting to take the finished part to
Nevada; that the main section of the job was to be
finished on February 16 by 6 p.m.; that another plane was
waiting on February 16 but because Breeding had been
terminated earlier that day, the remaining parts were not
delivered until completed by Mattice at 10:30 p.m. With
regard to the circumstances of Breeding's discharge
Thompson testified that about 12:35 p.m. on February 16,
he noticed that Breeding had not returned, that by 12.45
he started to wonder what happened and telephoned
Breeding's house; that he then decided to look for
Breeding and visited three bars in the vicinity. When he
got to the third one he saw Breeding's car outside; it was
then about 12:55 that Thompson walked to the door and
saw Breeding sitting at the bar with two glasses of beer in
front of him, one of which was half full. Thompson
walked over to Breeding and said, "When you get back to
the shop your check will be waiting for you." Thompson
stated that he terminated Breeding because he was in a
bar drinking when he was supposed to be at work and
that in making the discharge he did not take into
consideration the pending Board election; that when
Breeding came back to the office to pick up his check,
Mrs. Thompson came running to Thompson in tears and
said that Breeding was "threatening her and terrorizing
her to the extent she became hysterical."" Thompson then
said to Breeding, "You threaten her again, I'll break your
God damn neck." With regard to Deakin, Thompson
testified that after nis meeting with the employees on
February 5, Deakin came to work about 8 a.m.; that he
took him aside and said that there was a poster on the
board saying there was going to be a union election; that
he had called a meeting of the men earlier to tell them
there was nothing to hide; they could talk if they wanted
to; that Thompson didn't care; that he told Deakin that
because he was not at the meeting he was telling him
privately what this was about and that Deakin replied I
better look for another job. Upon Thompson inquiring the
reason , Deakin replied, "Well, the last place that I
worked the union forced me out of my job because I'm
over age." Thompson replied that he didn't know what
was going to happen but that Deakin didn't have to look
for a job now, that as long as he was running the shop
Deakin's job was good, but "if the Union wins the
election, and that's their policy, and I have to sign a
contract to that effect, there's nothing I can do."
Thompson then said that there was nothing to worry
about now. Thompson described an incident which
occurred a week before the election when Deakin was
assigned a job to build a drill and during which Deakin
spoiled some special ground steel by cutting it too short;
that Deakin felt rather despondent about this and told
Thompson he was going to quit and Thompson replied,
"You don't have to quit. I mean you're a key man. I
couldn' t get along without you, you know that."
Thompson continued that he had to pep up Deakin's
morale on occasion as he would have bad days because of
his age and make some stupid mistakes. Testifying with
regard to his talk to the employees on February 5 at 7:30
a.m., Thompson said that he told the men that they were
going to have a little talk, that they•had gone home the
previous Friday before the election poster had been placed
on the bulletin board and that he called their attention to
this poster; that there was going to be a union election;
that there was no need to whisper or hide around corners;
that he didn't care if they talked about it; that he didn't
think the men would gain anything; that the way he saw it
was that even though Thompson did not have a medical
plan because he was too small, he always paid overscale
and provided overtime in lieu of medical insurance; that if
they wished to buy insurance they had the "where-withall"
to do it; that they didn't have anything to gain from the
Union but that it was their decision to make; that he
"I do not credit this statement . Breeding testified that Thompson told
him on February 1, that Kleven was next. "Mrs. Thompson did not testify.
H & K MFG . CO. 253
didn't care. Thompson denied that he had offered Keough
any money or other remuneration in order to induce him
to vote in the union election. He admitted that he had
read the consent election agreement but did not read the
provisions with respect to eligibility of voters; that he
assumed the Board would make a determination as to
who was eligible to vote.
On cross-examination, Thompson testified that in a job
machine shop like Respondent's that one loses about 50
percent of the time on bids; that if the monetary loss or
gain goes beyond 15 percent on a job there is a serious
error with one's bidding; that the number of employees
listed on Respondent's Exhibit 2 was not quite accurate in
that at various times during 1967 he did have 10 to 12
employees; that at the time Kleven did the shock block
job he had bid on a shop rate of $10 per hour and that
subsequently at the time Randall fabricated the shock
blocks he had raised his bid and received the contract at a
rate of $11 and $12 per hour. With regard to Kleven,
Thompson testified that Kleven could do the work, was
qualified to do the work but could not do the work in the
time required in a job shop. Thompson admitted that
Kleven's timebook contained the notation, "terminated
2-21-68, lack of work, junior man in his category," that
Thompson did not add that he was incompetent because
Kleven was past his probationary period. Thompson
conceded that Watkins was a superior worker when
compared to Kleven but that he laid Watkins off first
because he was junior to Kleven and that in addition he
could always get Watkins back inasmuch as Watkins is
out of a job every month; that the only notice he gave
Kleven that he was to be terminated was on Monday,
February 19, when he told Kleven that he had no work for
him, showed Kleven that he had lost money on the shock
block job and suggested to Kleven that he should quit. He
acknowledged that he was afraid to fire Kleven and that
Kleven did not do very much work on his last 3 days of
employment, and that the other employees worked quite a
bit more than Kleven did during this period. Explaining
what some of the other men were doing, Thompson
concluded, "I didn't care if Kleven worked or not. He was
no good anyhow." In reply to the question, "So you just
have him sit there, essentially for 2 days" Thompson
replied, "He didn't quit , and I asked my attorney what I
should do about it, and it took 3 days to find out if I
should lay him off, so I did."
Thompson conceded that Breeding had finished his
assigned job on February 16 before Breeding went to
lunch but stated that he put another assignment on his
bench while Breeding was out to lunch and that Breeding
did not know about the new assignment . Thompson also
conceded that when he talked with Breeding about laying
off Watkins at the end of the week, he may have made
some remark about Kleven being next and that the
"statement sounds like something I might have said." 16
That he does not remember whether he gave Breeding any
reason for laying Kleven off but that Breeding knew that
Thompson regarded Kleven as being too slow, that when
he spoke to Breeding about laying Watkins off he
remarked that work was not coming in and that he was
going to have to lay Watkins off at the end of the week.
Thompson testified that he curtailed overtime on February
19 because work was slow and reinstated overtime about
10 days later because work had picked up. Thompson
"I credit Breeding 's version and that this conversation occurred on
February I.
admitted that when he went out with Breeding for lunch
on occasion they consumed hard liquor. Thompson denied
that he had at any time prior to the Board election
attempted to determine who was prounion and who was
against the Union, saying "I couldn't care less."
Thompson further testified that when he sent a correction
to the Board adding Wendt's name to the eligible list, he
noticed that Kleven was listed as general machinist when
he should have been listed as a toolroom machinist and he
had Mrs. Thompson change it. Thompson identified
General Counsel's Exhibit 10 as the list sent to the Board
agent for these corrections but conceded that General
Counsel's 10 did not include any correction of Kleven's
job classification.
C. Analysis and Conclusions
1. The legal principles involved
Where, as here, contradictory reasons for the discharge
of an employee are advanced, it is the responsibility of the
Trial Examiner, initially, to weigh the evidence and
resolve the factual conflict. The concurrent existence of an
otherwise valid reason for the discharge of an employee
does not preclude a factual determination that his
discharge was discriminatory if it appears from a
preponderance of evidence, and the reasonable inferences
to be drawn therefrom, that the discharge was in fact
motivated by the employer's opposition to the employee's
known union activities and/or sympathies.27
"Moreover, it matters not that for reasons apart from
the union activity an employee deserves summary
discharge if as a fact the reason was union activity."28
In determining this question it is well settled that if a
discharge is motivated wholly or even in part by the
employee's union activity, it is illegal despite the existence
of adequate cause for the discharge.29
Applying the foregoing principles to the discharges
involved herein inevitably leads to the conclusion that each
of the men,? Breeding , Kleven, and Watkins30 were illegally
terminated in violation of the Act.
'2. The discharge of Breeding
Respondent essentially defends the discharge of
Breeding on the ground that Breeding was discharged for
cause in that Breeding was drinking beer in a bar31 when
he should have been at work. At the hearing , Respondent
attempted to develop evidence that two other reasons
justified Breeding's discharge ; (a) the failure of Breeding
to appreciate the pressing nature of the work on hand and
(b) Breeding 's remarks to Mrs. Thompson when she was
making out his final pay check on February 16.
On the other hand the General Counsel and the
Charging Party contend that Breeding was discharged
because of his union activity and sympathies.
It is clear that Breeding, as Respondent ' s working
foreman, enjoyed Thompson ' s confidence and Thompson
made many statements to him under - the assumption that
Breeding was on "his side ." That this confidence was
"Bultoni Foods Corp.. 298 F 2d 169 (C A. 3)
"Edward G Budd Mfg, Co.. 138 F.2d 86 (C A. 3) cert. denied 321 U.S.
778
"Barberton Plastics Products. Inc.. 354 F.2kl 66 (C .A. '6); Reading do
Bates. Inc. 403 F.2d 9 (C A 5).
"Watkins was temporarily laid off not terminated
"1 credit Breeding that the bar served food
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misplaced is of no concern. Whether or not Breeding
encouraged Thompson's confidences is equally of no
concern. The crux of the matter is my conclusion that
Breeding 's testimony concerning his numerous
conversations with Thompson is worthy of credit and that
Thompson's denials are unworthy of credit. I make my
credibility resolutions and findings on the manner in which
Breeding and Thompson testified, the testimony of Deakin
and other witnesses, the logical course of events, as found
below, the various admissions by Thompson and
Thompson's illogical and contradictory statements in
numerous particulars.
It is plain that prior to February 1, when Thompson
received a communication from the Regional office of the
Board notifying Respondent that the Union had filed a
representation petition, there was no open discussion of
union organization and that Respondent had no
knowledge or suspicion that the Union was seeking to
organize its employees. Upon receipt of the Board
notification, Thompson thereafter reacted quite strongly.
In voicing his opposition to the Union to Breeding,
Thompson expressed strong resentment against Watkins
and Kleven whom he suspected of being the instigators of
the organizational drive. He told Breeding , "If the Union
gets in here, I'm going to fire every son-of-a-bitch in the
shop within a year." On the same day Thompson decided
to implement his announced plan and told Breeding that
he was going to lay off Watkins the next day, and,
pointing a finger at Kleven, said, "That fat bastard is
next."
On the same day, Thompson talked with Deakin and
again named Watkins and Kleven as the union instigators
He also told Deakin that if the Union came in he could
not keep him. That thereafter the forthcoming election
was a source of constant concern to Thompson is readily
apparent. Not only did he seek to enlarge the eligible list
of voters by placing Keough and Wendt on the voting list
but he also urged them as well as Mattice to vote.']
Additionally Thompson discussed with Breeding and
Deakin those employees whom he regarded favorable or
unfavorable to the Union. It is in this setting that
Breeding expressly told Thompson that he wanted no part
of Thompson's scheme to place part-time employees on
the list of eligible voters. Thompson, realizing that his
confidences to Breeding were unwarranted and that
Breeding was unsympathetic to his cause, told Breeding
that he "couldn't have a foreman that wasn't on his side."
Deakin's testimony is consistent with that of the credited
testimony of Breeding, and I credit Deakin's testimony in
the prior hearing even though I did not have the
opportunity to observe him while he was testifying From
February 6, when Breeding announced his opposition to
Thompson's plans, Thompson knew that Breeding at the
very least was sympatetic to the Union. I have no doubt
that Mrs. Thompson immediately told her husband of her
conversation with Breeding on February 6, when she
asked "how could you do this to Herb?" and received
Breeding 's reply that Thompson was doing it to himself
because he did not provide insurance benefits. Thereafter,
as Breeding testified, relations between Breeding and
Thompson were cool and conversation was confined
strictly to business.
" I do not infer that Thompson acted wrongfully in this regard. It is
mentioned to show that Thompson carefully canvassed the situation and
explored every avenue in an attempt to insure a vote favorable to
Respondent
I conclude that Breeding's lack of support continued to
nettle Thompson and caused him to seize upon Breeding's
tardiness on February 16, the day of the Board election,
as a pretext for Breeding's discharge. In my opinion, the
discharge, under all the circumstances, is not subject to
any other interpretation. As the working foreman,
Breeding obviously had privileges and had taken extended
lunch time on many occasions. Breeding had worked late
the night before and had on February 16 completed his
assigned task prior to going for lunch. I credit Breeding's
explanation that because of the election scheduled at 5
p.m. that evening, he decided to go to the bank first and
was delayed there; that after his visit to the bank he was
having his customary lunch consisting of a sandwich and a
beer. Thompson's own testimony indicates a motivation
and concern of matters other than the professed
completion of the rush job for E G. & G. Having assigned
another job to Breeding during Breeding's absence,
Thompson at 12:35, when Breeding was only five minutes
late, stated that he had become apprehensive of Breeding's
absence At 12.45, although he, himself, was engaged in
work on the E.G & G. job, Thompson felt impelled to
leave the shop unattended to search for Breeding and
upon discovering him in the bar immediately discharged
him. Clearly this sequence is unreasonable and illogical. If
Thompson was disturbed by Breeding's tardiness because
of the E.G. & G. job, he surely would not have abandoned
his own work or left the shop without supervision but
would have waited for Breeding's return and then
discharged him or he would have waited to the end of the
day when the E.G. & G. job would have been completed.
Thompson, as a result, put himself in a position that the
completion of the job was delayed until 10:30 p.m. when
Mattice finished the part that Breeding was to have done.1111
Thompson apparently was , well ' acquainted ' with
Breeding's lunch time habits as he looked for Breeding
only in bars although there were several restaurants in the
vicinity Moreover, drinking alcoholic beverages during
lunch by Breeding and other employees, like Watkins, was
well known to Thompson.
I conclude upon all the evidence that Breeding's
discharge was motivated by Thompsoh's resentment of
Breeding's union sympathies and to prevent Breeding from
casting a vote in the Board election scheduled for that
evening ." In fact Thompson told Breeding that he could
not vote in the election.
3. Watkins' layoff
The credited testimony recited above shows that Ray
Watkins was immediately suspected by Thompson to be
one of the employees who inspired the Union movement.
The evidence further shows that Thompson lost no time in
implementing his announced plan to rid himself of Union
adherents. As his first step he laid off Watkins on
February 2. 1 credit Watkins' testimony that sufficient
work had already been assigned to him to keep him busy
for at least another week. As Thompson testified that the
E.G. & G. order came in on February 8, it is apparent
that Watkins normally would not have been laid off for at
least two weeks, if then I am convinced that Watkins was
laid off without notice because Thompson regarded him as
a leader in the Union movement and not because Watkins
"Although I do entertain some doubt, I am assuming that Thompson's
testimony to this effect was accurate
"Thompson told Breeding he was discharging him for "cause," a
legalism he undoubtedly learned was a necessary factor
H&KMFG.CO.
was hired for a temporary job or that work had suddenly
slackened. Even if the latter were true, I believe that
Watkins would not have been let go on February 2, except
of his suspected Union adherence and Thompson's desire
to deprive the Union of a favorable vote in the
forthcoming election. I find, therefore, that Watkins' lay
off constituted a violation of Section 8(a)(3) and (1).
4. The discharge of Kleven
I have hitherto alluded to Respondent's asserted job
classification system together with its unpublished policy
with regard to lay offs. I have found above that neither
job classifications as such nor a definitive lay off policy
were actually in existence . The reasons advanced by
Thompson for the delay in the discharge of Kleven clearly
demonstrate that the job classifications and lay off policy
were contrived by Thompson as an afterthought in an
attempt to rationalize, explain away, and obscure the
discriminatory nature of Kleven's discharge.
With regard to job classifications the only document
submitted to the Board containing the names of employees
and their job classifications was the list of eligible voters."
Thompson, at the hearing, apparently aware that he had
listed Kleven as a general machinist on the eligibility list,36
was impelled to counteract this evidence. Thompson,
thereupon, attempted to show that Kleven, being senior to
Watkins in the same job classification, was entitled to be
retained while Watkins under this so-called policy had to
be let go. On the other hand, Thompson testified that
after Kleven's discharge he assigned to Randall, who had
less seniority than Kleven, the fabrication of shock blocks,
a job on which Kleven had spent a substantial part of his
time while in Respondent's employ. Thompson
emphasized that Randall performed that job more
efficiently and at a profit for Respondent while Kleven's
performance on that job resulted in a monetary loss to
Respondent.
It would seem, therefore, that Kleven and Randall"
could more logically be placed in the same job category
and the differential in their rate of pay could be accounted
for by reason of Randall 's absence from the trade for 2
1 /2 years prior to his employment by Respondent. Yet
Randall, also classed as a general machinist on the
eligibility list, was retained even though he had less
seniority than Kleven.
Thompson on several occasions during his testimony
conceded that Kleven did good work and was a capable
man, nevertheless , his resentment of Kleven surfaced
during cross-examination , when he was asked why he
permitted one man [Kleven on February 19, 20, 21] to
have nothing to do while the other men were fairly
consistently employed, Thompson replied, "I didn't care if
Kleven worked or not. He was no good, anyhow."
Thompson's testimony that he permitted Kleven to pass
his probationary period because he did not want to let a
man go before Christmas has a hollow ring and is not
credited. In explaining his layoff policy, Thompson
testified that it was based on a 30- or 60-day probationary
period. Under such a flexible policy, Kleven, therefore,
could have been discharged after Christmas or at any time
"G.C. Exh. 9,
"Thompson finally acknowledged that G .C. Exh. 10 did not change
Kleven 's job classification although earlier he had testified otherwise.
"The testimony showed Randall was customarily assigned to production
or repetitive tasks. Thompson admitted the fabrication of shock blocks was
a production or repetitive operation which did not require superior skills
255
prior to the expiration of 60 days of his employment.
Crediting Kleven's testimony, I find that Thompson did
not inform Kleven that he worked too slowly or that he
lost money on the shock block job performed by Kleven38
until after Thompson received notification of the union
representation petition.
I believe it is unnecessary to burden this decision with
further discussion of the inconsistencies and contradictions
in Thompson's testimony. Clearly, the motivation for
Kleven's discharge was manifested by Thompson's
conversations with Breeding above and his talks with
'Deakin where, in all instances, he blamed Watkins and
Kleven for bringing in the Union and listed Kleven as a
union sympathizer, whose vote would be and was cast for
the Union. In view of Thompson's determined efforts,
including his unfair labor practices, to muster a majority
of eligible voters who might vote against the Union, I am
convinced that Thompson discharged Kleven, in reprisal
for Kleven's suspected Union sympathy and adherence."
Business reasons may not be used as a pretext for a
discriminatory discharge .40
Moreover, the gamesmanship practiced by Thompson
on February 19, 20, and 21, ostensibly on the advice of
legal counsel, tends to demonstrate that Thompson was
attempting to create a situation whereby Kleven would
voluntarily quit, while at the same time establishing a
colorable pretext for Kleven's discharge.
In view of the foregoing, I find that Respondent
discharged Kleven on February 21 in violation of Section
8(a)(3) and (1) of the Act.
In summary, I conclude that Thompson believed that
Watkins and Kleven instigated the union organizing
campaign which led to the filing of the representation
petition and discharged them for that reason. Even if
economic conditions warranted some lay offs, and I find
the evidence insufficient to support such a conclusion, I
would be impelled to find the discharges were
discriminatory. This is not a case where the evidence
supports no other conclusion than that the lay offs of
Watkins and Kleven were because of economic conditions,
or in the case of Kleven for being too slow.,, In short an
employer may not use a pretext dredged up from the
bottom of the barrel to cover up - when the real reason
is protected activity.42
"1 credit Kleven ' s testimony that he made 500-600 shock blocks,
200-250 of which had slots. Records produced by Respondent and
designated as G C Exh. 5 (d)(e) and (f) show delivery of only 200. Under
these circumstances, it would appear there may be other records which
may disprove Thompson ' s contention that he lost money on the job
General Counsel ' s 5(f) shows a delivery of 50 on February 9, 5(d) a
delivery of 50 on February 13, and 5(e) shows a delivery of 100 on
February 19. 1 assume that deliveries were made soon after fabrication, it
would seem therefore that Kleven was not slow from February I to
February 19 as G .C Exh. 5(h) shows that Kleven put in 93 hours of work
during February , not all of which was on shock blocks, to which all of this
time was credited . Thompson and Kleven both testified that Kleven was
assigned other jobs and worked on the E G & G. order which had shop
priority from February 8 to 16.
"Of added significance in this regard is Deakin ' s testimony that
Thompson told him after the election that he knew Kleven voted for the
Union and that Watkins and Kleven were discharged because they
instigated the ugion petition.
"Overnite Transportation Co.. 308 F.2d 284 (C A 4).
'Materials Transportation Company and Cement Trucking Company,
412 F.2d 1074 (C.A 5).
"Rubber Rolls. Inc., 388 F 2d 71 (C A 3)
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Thompson's Speech of February 5 and The
Curtailment of Overtime
I do not find a violation of the Act in Thompson's
speech of February 5. Thompson, on that day, told the
employees that he had been permitting them to work one
hour overtime daily in lieu of insurance benefits which
they might secure through a union agreement and that the
pay for the one hour overtime would buy a lot of
insurance I do not infer from this statement a threat to
curtail overtime as a reprisal for selection of the Union It
seems to me to constitute a legitimate area for discussion
during an organizational campaign as it merely calls
attention to the employer's benefits in contrast to what
they could get under a union contract. Accordingly I will
dismiss this aspect of the complaint.
The General Counsel contends that Respondent cut off
the customary overtime of one hour per day from
February 19 to February 28 in order to implement
Thompson's alleged threat of February 5
I have previously found that Respondent's evidence of
economic justification for the lay offs of Watkins and
Kleven could not be sustained. In making this finding I
stated that Respondent's evidence of a slow down was
unpersuasive in the face of convincing evidence that union
animus was a motivating force. With regard to the
curtailment of overtime, however, the evidence of the
General Counsel falls short of proving that Respondent
was motivated other than by economic justification .44
Overtime was stopped for a little over one week after the
election and at a time when the results of the election
were uncertain, thus the employees could not have been
influenced in their vote. The General Counsel also failed
to refute Respondent's meager and undocumented
testimony that work had slowed down at that time Under
these circumstances, while the matter is in doubt, I find
that the General Counsel has not sustained his burden of
proof on this issue . Accordingly, I will dismiss the
allegation in this regard
E. The 8(a)(1) Allegations
Upon the credited testimony of Breeding and Deakins,
I find that Respondent independently violated Section
8(a)(l) of the Act when Thompson.
1. Told Breeding on February 1, 1968, that if the
employees went union he would discharge them.
2. Told Breeding on February 1, 1968, that he would
fire Watkins and Kleven because they instigated the union
representation petition
3. Told Breeding on February 6 that he couldn't have a
foreman who was not on his side." As Breeding was not a
supervisor within the meaning of the Act, he was entitled
to all Section 7 rights like any other statutory employee.
Thompson's statement, therefore, constitutes a serious
impediment to and interference with Breeding's exercise of
his Section 7 rights.
4. Told Deakin on February 1 and again on February 6
that he would not be unable to keep him on the payroll if
the Union became the collective bargaining representative
of Respondent's employees. I find that these conversations
"I have, as noted above , found the speech not to constitute a threat
"Materials Transportation Company and Cement Trucks Company,
supra
"Although this statement was not alleged as a violation in the
Complaint I find it was fully litigated
were designed by Thompson to coerce Deakin into voting
against the Union.
IV. CHALLENGES AND OBJECTIONS TO THE ELECTION
CASE 20-RC-7966
I recommend that the challenges to the ballots of
Mattice, Watkins and Breeding be overruled.
I find Mattice to be a regular part-time employee who
had a community of interest with the employees in the
appropriate unit. He worked regularly at Respondent's
shop approximately 20 hours per week for several years
and during the eligibility period. The fact that he is a
full-time permanent employee elsewhere does not
disqualify him under current Board holdings.
As I have found above that Breeding and Watkins were
discriminatorily discharged, they, therefore, continued to
be Respondent's employees at the time of the Board
election of February 16 and they were entitled to cast a
ballot. In view of the foregoing, I recommend that the
ballots of Mattice, Breeding and Watkins be opened and
counted and if the supplemental tally shows that the
Union has obtained a majority of the valid votes cast that
it be certified as the collective bargaining representative in
the unit agreed upon by the parties in the consent election
agreement.
In the event that the supplemental tally shows that the
Union has failed to receive a majority of the valid votes
cast, I recommend that the Regional Director for Region
20 set aside the election and hold a new election at a time
he deems appropriate.
Clearly the unfair labor practices of the employer which
I have found herein grossly interfered with the conduct of
the election. It would, therefore, be unjust to permit the
employer to reap the benefit of these unfair labor
practices in the event the supplemental tally shows that
the Union has failed to achieve a majority. On the other
hand the Union is entitled to certification in the event that
it has achieved a majority despite the employer's
interference.
It is further recommended that Case 20-RC-7966, the
representation matter herein, be severed from Case
20-CA-4868, so that the Regional Director may proceed
under the terms of the Agreement for Consent Election in
that case.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in Section
III, above, occurring in connection with the operations of
the Respondent described in Section 1, above, have a
close, intimate, and substantial relation 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.
Upon the foregoing findings of fact and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the discriminatory discharge of Clyde Breeding
on February 16, 1968, and James Kleven on February 21,
1968, and the discriminatory lay off of Ray Watkins on
February 2, 1968, Respondent engaged in violations of
H & K MFG. CO.
Section 8(a)(3) and (I) of the Act.
4. By threatening employees with discharge because
they assisted, sympathized with, or because they adhered
to the Union or because they favored the selection of the
Union as their collective bargaining representative,
Respondent engaged in violations of Section 8(a)(1) of the
Act.
5. By engaging in the conduct described above during
the period after the filing of the representation petition to
the date and time of the election, Respondent unlawfully
and substantially affected the results of the Board election
conducted on February 16, 1968.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. All allegations of the complaint not specifically
found herein to constitute unfair labor practices are
hereby dismissed.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
by threatening, coercing, intimidating its employees and
interfering with its employees rights under Section 7 of the
Act, I shall recommend an order that it cease and desist
from such conduct.
Having found that Respondent, by discharging Clyde
Breeding on February 16, 1968, and James Kleven on
February 21, 1968, and by laying off Ray Watkins'° on
February 2, 1968, unlawfully discriminated against them,
I shall recommend that Respondent make them whole for
any loss of pay that they may have suffered by reason of
the discrimination against them, by payment to them of a
sum of money that they would have normally earned from
the date of their discharge until the date of their
reinstatement , less net earnings for the interim period.
Backpay is to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, with 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.
Having found that John Mattice, Ray Watkins and
Clyde Breeding were employees eligible to vote in the
Board-conducted election on February 16, 1968, in Case
20-RC-7966, I recommend to the Regional Director of the
Region 20 that the challenges to their ballots be overruled
and their ballots counted and that a new tally of ballots
including their votes be issued.
Having found above that Respondent, by certain
conduct described above during the crucial time
commencing with the filing of the petition to the date of
the election, substantially and effectively interfered with
his employees' rights to a free and untrammeled election,
I recommend to the Regional Director of the Region 20
of the Board, that if the Union obtains a majority as a
result of the inclusion of the ballots of Mattice, Watkins
and Breeding , that it be certified as the
collective- bargaining representative of the employees in
the appropriate unit agreed to by the parties in the current
election agreement. In the event that the Union fails to
"There is some inconclusive evidence that Watkins was offered
reinstatement on March 19 , 1968. 1 leave that question open for the
compliance stage.
257
obtain a majority , it is recommended that the election in
Case 20-RC-7966 be set aside and a new election be
conducted at an appropriate time to be determined by the
Regional Director.
It is further recommended that Case 20-CA-4868 be
severed from Case 20-RC-7966
I find the unfair labor practices found herein strike at
the very roots of employees ' rights which the Act is
designed to protect . Accordingly I shall recommend a
broad cease and desist order.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case, I
recommend that Respondent, Herbert W. Thompson,
d/b/a H & K Manufacturing Company, its officers,
agents, successors, and assigns, shall-
I. Cease and desist from.
(a) Telling its employees that it will discharge them if
they assist, sympathize with, and/or adhere to the Union,
or if the Union is selected as their collective-bargaining
representative.
(b) Discouraging membership in Tool and Die
Craftsmen, affiliated with National Federation of
Independent Unions or in any other labor organization by
discharging or in any other manner unlawfully
discriminating against any of its employees in regard to
hire or tenure of employment or any term or condition of
employment.
(c) In any manner interfering with, restraining, or
coercing its employees in their right to self-organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act
(a) Offer to reinstate Clyde Breeding and James Kleven
to their former or substantially equivalent positions
without prejudice to their seniority or other rights and
privileges, and make them whole in the manner described
in "The Remedy" section of this Decision for any loss of
earnings suffered by them by reason of the discrimination
against them.
(b) Make Ray Watkins whole for any loss of earnings
suffered by him by reason of his discriminatory lay off.41
(c) Notify Clyde Breeding and James Kleven 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) Preserve and, upon request, make available to the
Board or its agents for examination and copying all
payroll records, social security payment records, timecards
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Decision.
(e) Post at its shop at Dublin, California, copies of the
attached notice marked "Appendix."18 Copies of said
notice on forms provided by the Regional Director for
Region 20, shall, after being duly signed by the
Company's representative, be posted by the Company
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
'1t was my understanding that Watkins was recalled prior to the
hearing
"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
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith."
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 20, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
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, I hereby notify my employees
that:
I WILL NOT threaten to discharge you or discharge
you or lay you off because you help, sympathize with,
or desire representation by Tool and Die Craftsmen,
affiliated with National Federation of Independent
Unions, or any other union.
I WILL NOT in any other way interfere with, restrain
or coerce you in the exercise of your rights to organize;
to form , join, or assist a labor organization ; to bargain
collectively through a bargaining agent chosen by you;
to engage in other group activities for the purpose of
collective bargaining or other mutual aid or protection;
or to refrain from any such activities (except to the
extent that the right to refrain may be limited by the
lawful enforcement of a lawful union-security clause
requirement).
I WILL immediately offer to reinstate Clyde Breeding
and James Kleven to their former or substantially
equivalent jobs without any change in their seniority or
other privileges and I will pay them any money lost as
a result of their discriminatory discharge with interest
at 6 percent.
I WILL pay Ray Watkins any money he lost as result
of his discriminatory lay off with interest at 6 percent.
I WILL notify Clyde Breeding and James Kleven 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.
Dated By
HERBERT W. THOMPSON
D B/A H & K MFG. Co.
(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, Region 20,
13050 Federal Building, 450 Golden Gate Avenue, Box
36047, San Francisco, California 94102, Telephone
556-0335.