Hadley Adhesive & Chemical Co.

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 946 (N.L.R.B. 1973)

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hadley Adhesive & Chemical Company and Oil,
Chemical and Atomic Workers International Un-
ion, AFL-CIO. Case 9-CA-6876
April 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 20, 1972, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge'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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and,
briefs and has decided to affirm the rulings, findings
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
Unlike our dissenting colleague, we see no inherent
conflict in the several credibility resolutions made by
the Administrative Law Judge. With respect to the
alleged unlawful discharges of employees Graves and
Bradshaw, the credited evidence is as follows. In
early December 1971, employees Graves and Brad-
shaw initiated conversations with fellow employees
concerning the feasibility of union representation.
These conversations all took place in the plant
during employee break periods. When the employees
indicated an interest in union representation, em-
ployee Graves contacted Joe Roberts, president of
the Local Union, and arranged to have Roberts meet
with the employees at Graves' home on the evening
of December 13, 1971. The meeting was held as
scheduled and 17 of the 21 unit employees were in
attendance. During the meeting, Roberts, the union
representative, told the assembled employees that if
any questions arose, they were to contact Graves or
Bradshaw who would act as the Union's internal
organizers.
On the following morning, Graves was approxi-
mately 15 to 30 minutes late for work. Upon his
arrival at the plant, Graves sought out Plant
Manager Vinson and apologized for being late. At
this juncture, Vinson told Graves that he was fired
for missing too much work and for no other reason.
During this same discussion, Vinson told Graves that
he and Bradshaw were the "leaders of the pack" and
that Graves was trying to push Bradshaw out of first
place. Vinson further stated that when Bradshaw
arrived he would also let him go.
Bradshaw had earlier received permission to report
later than his usual time because he was experiencing
difficulties with his automobile. While Bradshaw was
still at his home, Graves dropped by and told
Bradshaw that he had been fired and that Vinson
planned to fire Bradshaw when he reported for work.
Graves also told Bradshaw that Vinson had accused
the two of them of being "leaders of the pack."
When Bradshaw arrived at the plant, he went
immediately to Plant Manager Vinson's office.
Vinson began the conversation by asking Bradshaw
what his problem was. When Bradshaw indicated
that he had no problem, Vinson said he guessed
Bradshaw knew he was going to be released.
Bradshaw then asked the reason he was being
released and Vinson replied that Bradshaw had
missed too much work. Bradshaw took issue with this
statement, but Vinson said he was releasing Brad-
shaw in any event and that "it's not on account of
last night." Vinson refused to explain what he meant
by the latter remark.
Obviously, the abrupt mid-week. discharge of both
union committeemen on the day following the first
formal organizational meeting must be deemed
highly suspect. However, there is no need to
speculate concerning Respondent's motive because
the statements made by Plant Manager Vinson
during the discharge conversations convincingly
establish the true reason for the discharge. From
Vinson's statement to Graves that he and Bradshaw
were the "leaders of the pack" and Vinson's
subsequent statement to Bradshaw that he was not
being discharged - "on account of last night," the
Administrative Law Judge inferred that Respondent
had knowledge of the union activities of Graves and
Bradshaw and that Respondent discharged them for
this reason. Indeed, it would seem to us that no other
inference would be possible. Yet, our dissenting
colleague argues that the inference that Respondent
had knowledge of the union activities of Graves and
Bradshaw at the , time of their discharge is not
properly drawn because it is in direct conflict with
other credited testimony; specifically, the testimony
of employee Kennedy. We see no such conflict.
Employee Kennedy testified concerning an incident
which occurred approximately 2 weeks after the
discharges. According to Kennedy's credited testi-
mony Plant Manager Vinson called employee Ken-
nedy into his office and asked if Kennedy knew
anything of the 'Union and if he had heard talk of a
union. Kennedy denied having any such knowledge.
Vinson then called Elmer Liliker, the shipping clerk,
into the office and in Kennedy's presence, Vinson
asked Liliker if he had heard anything of a union.
J
202 NLRB No. 138
HADLEY ADHESIVE & CHEMICAL CO. 947
Liliker responded that he had not, but he implicated
Kennedy by indicating that Kennedy had been at a
recent union meeting. Kennedy then confessed that
the employees had held a meeting a few days earlier
and told Vinson where it had been held. Vinson then
asked Kennedy to identify the employees that would
be in favor of the Union and those who would be
against. Kennedy did as requested and specifically
mentioned Bradshaw, Graves, and Pulley as being in
favor of the Union.
From employee Kennedy's testimony, our dissent-
ing colleague concludes that Respondent must not
have been previously aware of the employee organi-
zational activities; else, he would not have been
making such inquiries of employee Kennedy. Such is
not necessarily, or even likely, the case, however.
Plant Manager Vinson's conversation with employee
Kennedy indicates that the goal was more to
intimidate than to interrogate and to find out the
extent of the Union's strength among the employees.
In any event, this interrogation was not inconsistent
with Respondent's having knowledge 'of union
activity some 2 weeks earlier as found by the
Administrative Law Judge.
Of course, we also agree with the Administrative
Law Judge that the reasons offered by Respondent to
justify the discharges of Graves and Bradshaw were
pretextual. In this connection, we would note that
these defenses seem to fall of their own weight. Thus,
at the time of their respective discharges, both
Graves and Bradshaw were given only one reason for
their discharges; namely, that they missed too much
work. Even when Bradshaw challenged the reason
given, Plant Manager Vinson stood by his statement.
The Respondent's reliance upon absenteeism as the
reason for the discharges has a certain surface
plausibility when the record of employee Graves is
considered. However, it is impossible to see how
absenteeism could serve as a justification for the
discharge of employee Bradshaw, especially when
Bradshaw had one of the best attendance records in
the plant and had never before been warned about
being absent or tardy. It is no doubt for this reason
that Respondent shifted its defense and now claims
that Bradshaw was discharged for insubordination
during his conversation with Plant Manager Vinson.
The simple answer to this argument is that the record
evidence shows that Plant Manager Vinson had
made the decision to discharge Bradshaw even
before Bradshaw's arrival at the plant that day.
Therefore, obviously, any insubordination which
occurred during their subsequent conversation could
not have had a bearing on the decision to discharge
Bradshaw.
Finally, we are unable to fathom how our dissent-
ing colleague can excuse the solicitation and adjust-
ment of grievances and granting . of additional
employee benefits on the ground that Respondent's
plant is a new operation. If such a concept were
carried to its logical conclusion, all new operations
could be insulated from a union's organizational
effort. Such is not the law as we understand it.
Respondent's solicitation of employee Pulley as to
his complaints and his suggestions for improving
working conditions and its conduct in acting upon
these complaints by granting new employee privi-
leges and increasing, the contributions to the employ-
ees' health plan, all during the course of an
organizational campaign, clearly constitutes conduct
which is violative of Section 8(a)(1) of the Act.' Also,
although the plant had been in operation only a few
months before the advent of the union activity, it is
interesting to note that Respondent's concern for its
employees and their working conditions did not
evidence itself until after the union meeting of
December 13 and the discharges of employees
Graves and Bradshaw.
As previously indicated, we believe the Administra-
tive Law Judge carefully considered the evidence
before him and for that reason, we have adopted his
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Hadley Adhesive &
Chemical Company, Fulton, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
MEMBER KENNEDY, dissenting in part:
While I agree with my colleagues that by interro-
gating its employees concerning their union member-
ship and sympathies Respondent violated Section
8(a)(1) of the Act, I dissent from their findings that,
by terminating employees Graves and Bradshaw,
Respondent violated Section 8(a)(3) and (1) of the
Act and that by unilaterally granting benefits to its
employees the Respondent violated Section 8(a)(I).
My colleagues accept the Administrative Law
Judge's inference that the Respondent had knowl-
edge of union activity at the time of the discharges
and his apparent conclusion that absenteeism was
merely a pretextual reason for the discharges.
However, while the inference of knowledge is based
on the testimony of Graves and Bradshaw, who were
Associated Mills, Inc., 190 NLRB No. 8.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited generally by the Judge, other credited
testimony is in direct conflict with such an inference.
In this regard, employee Kennedy, who also was
credited by the Judge, testified that approximately 2
weeks after the discharges Plant Manager Vinson
asked him if he knew anything about a union.
Kennedy's testimony and affidavit were confused as
to whether Vinson had received the Union's letter
demanding recognition at the time of this discussion;
his affidavit stated that the letter preceded the
questioning, but his testimony was that he did not
remember when Vinson received the letter in relation
to the discussion. Vinson testified definitely that he
had received the letter and had then called in
Kennedy to find out about the Union's demand. In
any event, the Judge credited Kennedy's account of
the questioning and found that Kennedy told Vinson
about the 'December 13 union meeting held at
Graves' home and that, upon further questioning by
Vinson, Kennedy identified the employees who had
attended and specifically mentioned Bradshaw and
Graves as being in favor of the Union. The only
reasonable inference which can be drawn from
Kennedy's testimony is that Vinson knew nothing of
any union activity. prior to receipt of the Union's
January 28 demand letter-or at least not until this
conversation which took place 2 weeks after Graves
and Bradshaw had been discharged. This credited
testimony, therefore, directly contradicts the infer-
ence drawn from other testimony credited by the
Judge that the Respondent knew of union activity
prior to the discharges.
As for the discharges themselves, I am unable to
ascertain the basis for the Judge's apparent finding
that absenteeism was merely a pretextual reason for
discharging Graves. Between October 11 and his
discharge on December, 14, Graves was absent from
work on 5 days, of which only three absences were
excused. Following the second unexcused absence, in
late November, Vinson told him that future absen-
teeism, without excuse, would result in discharge. On
the morning of December 14, however, Graves was
late for work and had only an apology to offer.
Furthermore, the nature of Respondent's plant, in
which there is a small workforce of 24 employees and
where each employee is necessary to mix the custom
orders of adhesives on schedule, makes absenteeism
and tardiness particularly crippling problems. In
fact, Respondent had already discharged two em-
ployees for absenteeism in the short time it had been
in operation. Moreover, the importance of attend-
ance was further evidenced and was brought to the
attention of Graves, who had the worst attendance
record in the entire plant, by the warning given him
following his second unexcused absence. Thus,
Graves' absences-five in his first 2 months at
work-and his tardiness, whether excused or not,
were a hindrance to Respondent's successfully
mixing the custom orders on schedule and are, in my
opinion, clearly a justifiable basis for his discharge.
As to Bradshaw, Respondent does not argue that
absenteeism was the basis for his discharge; rather,
the reason given by Respondent was Bradshaw's
insubordination when he found out about Graves'
discharge. Vinson testified that Bradshaw at that
time came to his office and angrily demanded to
know :why Graves had been fired. When Vinson
asked the reason for his concern, Bradshaw spoke
loudly and answered, "Well, you work your ass off
around here and you don't get any appreciation for
it." Continuing to make angry remarks after Vinson
attempted to calm him, Bradshaw was warned by
Vinson that if he did not stop his manner of speaking
he would be disciplined. When Bradshaw replied that
he was not cursing Vinson and that he was looking
for another job anyway, Vinson discharged him.
While the Judge credited Bradshaw generally, and
therefore his version of the discharge discussion, the
testimony of employees Kennedy and Pulley,. wit-
nesses on behalf of the General Counsel, was also
credited by the Judge. They corroborated Vinson's
testimony by testifying that shortly after the dis-
charges Vinson had expressed to them his dislike for
firing Bradshaw but had said that he had had to
discharge him because Bradshaw wanted to "jump
all over" him for Graves' discharge, a situation he
could not ignore as plant manager. Moreover, on the
Friday following the discharges, Vinson called the
Mayor, a nearby judge, and several other contacts in
an attempt to locate another job for Bradshaw,
whom he considered to be a very good worker. Such
an effort by Vinson was surely an unlikely step in
behalf of a man allegedly terminated for union
activities, particularly in a small community. More-
over, Vinson made no effort to find another job for
Graves, whom he considered to be a poor and
unreliable worker.
In my opinion, in light of the inconsistencies
among several versions of testimony credited by the
Judge, the evidence fails to support a finding of
knowledge by Respondent of union activity prior to
the discharges of Graves and Bradshaw. Neither will
such evidence, because of these inconsistencies,
support a finding that absenteeism was a pretextual
reason for the discharges. Rather, the evidence
requires a finding that Graves' absenteeism and
tardiness were a justifiable basis for his discharge,
and credited testimony supports a finding that
Bradshaw's insubordination was the reason for his
dismissal.
Furthermore, I do not agree with the Judge's
finding, adopted by my colleagues, that, after Vinson
. HADLEY ADHESIVE & CHEMICAL CO. 949
solicited employee Pulley's comments or complaints
about his job or suggestions for improving working
conditions, the Respondent violated Section 8(a)(1)
by agreeing to help limit the work required of Pulley,
unilaterally granting a 10-minute break in the
afternoon, and increasing its contribution to the
employees' health plan. The Respondent's plant is a
new one, having opened in September 1971, just a
few months before these benefits were granted in
December and January, and Respondent was still
attempting to iron out problems as they arose. In
light of the fact that it was the established practice in
Respondent's other plants to periodically canvass
employees for suggested improvements in working
conditions, it was only natural for Respondent, in an
effort to correct unsatisfactory conditions at its new
plant, to solicit suggestions from its employees.
Moreover, it is my view that the timing of the
benefits-the reduction of employee Pulley's work
and the break being granted shortly after Vinson's
discussion with Pulley in December and therefore
before the Respondent received the Union's January
28 letter demanding recognition, and the additional
health benefits being granted on March 9, about a
month and a half after the Union's letter, the Union
failing to contact the Respondent again during that
month and a half makes the finding of an 8(a)(1)
violation herein unjustified.
I would, therefore, reverse the Judge's findings that
Respondent violated Section 8(a)(3) and (1) by
discharging employees Graves and Bradshaw and
that Respondent violated Section 8(a)(1) by granting
benefits to its employees.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: This case
was tried in Hickman, Kentucky, on July 6, 1972. The
charge was filed by Oil, Chemical and Atomic Workers
International Union, AFL-CIO, herein called the Union,
on March 10, and the complaint was issued on April 26.
Briefly stated, the complaint alleges that the Respondent
discharged employees Danny Graves and Terry Bradshaw
on December 14, 1971, because of their membership in,
sympathies for and/or activities on behalf of the Union,
and in order to discourage membership in the Union. In
addition, the complaint alleged that the "Respondent
violated Section 8(a)(1) of the Act by interrogating
employees regarding their own union activities, as well as
the activities of other employees, promised benefits if
employees ceased their support for and activity on behalf
of the Union, solicited employees concerning their griev-
ances and complaints and adjusted them in an effort to
discourage union activities , and unilaterally granted
benefits to employees , including a 10-minute afternoon
break and an increase in Respondent 's contribution to the
employees' health insurance plan. In its answer,_ the
Respondent denied the commission of any unfair labor
practices.
At the conclusion of the testimony of Graves, counsel for
the Respondent requested permission to examine all
statements given by that witness to representatives of the
Board . Counsel for the General Counsel stated that no
affidavits had been taken from Graves. However, the
record shows that counsel for the General Counsel had
interviewed Graves on Thursday, June 29, and had made
notes thereof and that ,- on July 6, he met with Graves and
reviewed his-testimony . I examined the notes in camera and
then stated that it was my view that by reason of Section
102.118 of the Board 's Rules and Regulations, and a
memorandum by Chief Trial Examiner Bokat under date
of July 11, 1968, the notes taken by counsel for the General
Counsel were not, as provided in subsection (d) thereof, a
"substantially verbatim recital" and further that "it would
require the written consent of the General Counsel, since
the document in question and the person who prepared the
document are subject to the General Counsel 's supervision
and control." I therefore ruled that the notes taken by
counsel for the General Counsel were not producible.
Under date of July 18, counsel for the Respondent
requested that the statement taken by counsel for the
General Counsel be submitted under seal for the "purposes
of review should any reviewing authority deem it necessary
to examine the said notes ." This has been done . Following
the close of the hearing , and pursuant to prior arrange-
ment, the alleged union authorization cards of Bradshaw,
Graves, Boyd Roger Pulley, and James Kennedy, all dated
December 13, 1971, were sent to me for inclusion in the
record as my exhibits. I mailed them to counsel for the
Respondent who, under date of July 31, objected to their
inclusion in the record. Under date of August 3, counsel
for the General Counsel responded to counsel's objections.
These two documents are hereby made part of the record
as my exhibits 1(a) and 1(b). The four union application
cards are hereby received into evidence as my exhibits 2(a),
2(b), 2(c), and 2(d).
Upon the entire record in the case, including my
observation of the witnesses as they testified and consider-
ation of the briefs filed by counsel for the Respondent and
counsel for the General Counsel on July 31, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Missouri corporation , opened its
plant at Fulton, Kentucky, in September 1971; this is the
only facility involved in this proceeding. The principal
product produced is industrial adhesives , and' production
began in late September or early October as the several
areas of the plant were completed. The total complement
of employees rose from 2 in late September to some 20 in
late October, and eventually the full complement of 24
employees was reached. The products are manufactured by
the "batch" process to customer orders.
I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of. the Act. I further find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
Danny Graves, a young man who worked in the mixing
department from October II to December 14, 1971, was
instrumental in arranging a meeting with Joe Roberts,
president of the Local Union at the Carborundum
Company in Hickman. The incident that prompted this
activity on his part was that the Respondent fired a
maintenance man who had been assigned to perform a
production job which he refused to do. The employees
discussed this action by Respondent, which they felt to be
unjust, and Graves and his fellow employee, Terry
Bradshaw, agreed. to talk to the other employees to see how
they felt about affiliating with a union. They did discuss
the matter with their fellow workers, Graves speaking to
seven or eight of the employees, and Bradshaw contacting
five or six employees. These discussions occurred during
break periods and took place during the first part of
December. Receiving a favorable response from fellow
employees, Graves arranged a meeting with Roberts for
December 13, at his home. He advised three or four
employees of the meeting and asked them to spread the
word. The meeting was in fact held on December 13 and
was attended by approximately 17 out of the 21 employees
then employed. Roberts explained the Union to them and
all present signed union authorization cards. Roberts
advised the assembled employees that if any of them had
any future questions they were to contact Graves or
Bradshaw, who, in substance, would act as the Union's
internal organizers. The following morning, December 14,
Graves was late for work approximately 15 to 30 minutes.
When he went to speak with Billy Vinson, the plant
manager , Graves apologized for being late, and Vinson
responded that he was going to have to let Graves go.
According to Graves, Vinson stated, "Before we get into
anything, I ain't firing you for no other reason but just
besides you missed too much" work. During a discussion
of Graves' work record, Vinson told Graves that he and
Bradshaw were the "leaders of the pack" and that Graves
was trying to push Bradshaw out of first place. Vinson
further stated that when Bradshaw arrived he would let
him go.
After being terminated, Graves left the plant at approxi-
mately 8:15 to advise Bradshaw of what had happened.
Bradshaw had not come to work because his automobile
would not start due to a faulty starter. However, he had
advised Don Quick, the plant superintendent, at about
6:45 in the morning that he would be late because of the
starter problem. Quick, so Bradshaw testified, advised that
that would be all right and that he would inform the plant
manager.
Graves drove to Bradshaw's home and informed the
latter that he had been fired and that Vinson intended to
fire Bradshaw when the latter came in. Graves told
Bradshaw that Vinson • had accused the two of them of
being "leaders of the pack."
When Bradshaw arrived at the plant, he went into Plant
Manager Vinson's office. Vinson closed the door and
asked Bradshaw what his problem was. Bradshaw an-
swered that he did not have one, and Vinson told him that
he guessed he knew that he was going to be released.
Bradshaw asked what the reason was and Vinson replied
that Bradshaw had missed too much work. Bradshaw took
issue with this and then Vinson said that he was releasing
Bradshaw in any event and that "it's not on account of last
night" but would not explain what he meant by that
statement.
The next Friday Graves and Bradshaw went to the plant
for their final checks. Vinson inquired of Bradshaw
whether he had found a job yet and Bradshaw replied in
the negative. Vinson then called the mayor of Fulton,
Kentucky, and inquired if the mayor had a city job open
for which Bradshaw might qualify. Because there were no
city jobs open Vinson then called Judge Buck Benize and
asked if there were any jobs available. He also called a
number of places in an effort to find a suitable job for
Bradshaw.
Bradshaw had in fact missed a total of 1 1/2 days of
work before being discharged. One day was due to illness
and the half day was caused by his taking his wife and
baby to a doctor for treatment. A week or so after the
discharge of Bradshaw and Graves, employee Kennedy
was called into Vinson's office. Vinson asked whether
Kennedy knew anything of the Union and if he had heard
talk of a union. Initially, Kennedy denied having any
knowledge. While the conversation was proceeding, Vin-
son called in Elmer Liliker, the shipping clerk. Vinson
asked Liliker if he had heard anything of a union. Liliker
stated that he had not, but he implicated Kennedy by
stating, "Well, Mike, you can tell about it, you were there
at the meeting." Kennedy then told . Vinson that the
employees had held a meeting a few days earlier and where
it had been held. Vinson asked who was in attendance and
Kennedy gave him a list of the names of those at the
meeting. Vinson then asked Kennedy to identify the
employees that would be in favor of the Union and those
who would be against. Kennedy did so and specifically
mentioned Bradshaw, Graves, and Pulley as being in favor
of the Union. Kennedy also told Vinson the names of all
who had attended the union meeting the evening of
December 13. Vinson asked who was starting the union
matter and Kennedy replied that Bradshaw and Graves
were the main supporters and had started talk of the Union
and tried to get employees organized. During the meeting,,
which lasted approximately 2 hours, Vinson sent Kennedy
home to obtain a blank union authorization card as he
wanted to know the name of the Union. Kennedy did go
home to obtain the card. He was paid for the entire time
that he spent speaking to Vinson, as well as the time that he
spent in going to his home.
About a week or 10 days after the discharge of Graves
and Bradshaw, Pulley, the receiving clerk, was called into
Vinson's office. Vinson asked him if he had any comments
or complaints about his job and if he had any suggestions
how conditions could be improved. Pulley stated his job
was strenuous since, in addition to his primary job, he also
assisted the shipping clerk and daily drove a delivery truck
to Union City, Tennessee. Vinson agreed that Pulley's job
HADLEY ADHESIVE & CHEMICAL CO. 951
was strenuous and that he wanted him to act primarily as
receiving clerk and, if he had some time left, he could help
the, shipping clerk and that if Pulley did not have time to
drive the truck Vinson would get someone else to drive it.
Vinson also asked whether Pulley had heard any
complaints from other employees regarding eliminating
smoking in the shipping room. Pulley answered that other
employees were complaining and that the only other places
they could smoke were in the lunchroom during breaks
and in the restrooms. Pulley suggested that employees be
given a 10-minute break in the afternoon.
About a week or 10 days after this discussion between
Vinson and Pulley, the employees began receiving a 10-
minute break in the afternoon. The Respondent also
increased its contribution to the employees' health plan in
response to complaints and suggestions.
During the latter part of January 1972, Pulley was again
called into Vinson's office and so were other employees,
one at a time. Vinson's secretary, Sue Duke, was present.
Vinson read a letter which he said he had received from the
Union. Pulley's recollection was that the letter stated that
the Union was petitioning for an election. Vinson asked if
Pulley had any' questions and Pulley replied that, if he
thought a union would be beneficial to him he would vote
for it, but that if he thought it would not be beneficial he
would not vote for it. Vinson's secretary was writing down
everything that Pulley said and he testified that in
consequence he did not say very much.
B. The Termination of Graves and Bradshaw
The Testimony
Graves was hired on Saturday, October 8, and told to
report on Monday, October 11.
On his first day of work, Graves testified he overslept as
the alarm did not go off "or something" and therefore. was
30 minutes late. According to Graves, he was told on
Saturday that he would be hired on Monday if an
individual Vinson had previously hired did not show up.
Graves testified that about 7:30 on Monday morning
Vinson called him and asked him how quickly he could get
to the plant. He arrived a little after 8; starting time is 7:30.
According to Graves, Vinson stated that he and Bradshaw
were "the leaders of the pack" and that Bradshaw was the
principal leader and that Graves was "trying to push him
out of first place." Vinson testified that Graves stated he
had overslept and denied that employment of Graves was
conditional.
On November 1, Graves was absent the entire day and
did not present an excuse. Vinson pulled his timecard and
told Graves, the following day, that Graves or someone in
his behalf would have to telephone in and give the reason
for being absent. Graves was again absent on November 9;
however, apparently this absence was not assessed as a
penalty against him. On November 22, Graves was excused
by Vinson in order that he might enlist in the National
Guard. Graves, however, was also absent the following day
without permission and he did not call in to explain why he
would be absent. Vinson questioned him on November 24
and Graves stated that 2 days were required for him to
enlist in the National Guard. Vinson told him that future
absenteeism, without excuse, would result in discharge.
According to Graves, the 2 days he missed in late
November were one account of illness and he brought in a
doctor's excuse and also telephoned. The last day he
missed, December 9, was due to the fact that his
grandfather was ill and in the Mayfield Hospital and he
went there to see him because it was desired that the family
be present. He did call in before starting time.
Graves testified that he consulted a physician on the first
day of his illness, which he said involved an earache. He
testified that on the first day the doctor gave him some
medicine and the second day Graves went in to obtain a
doctor's excuse. He testified he gave the excuse to Manager
Vinson, who returned it to him. However, Graves, while
testifying, refused to sign an authorization permitting
counsel for the Respondent to inspect his medical records.
Counsel for the Respondent called as a witness Dr. Russell
Rudd; who brought his daybook with him which lists his
office calls and the medicine given patients, if that
amounts to "anything." According to Dr. Rudd's daybook,
it shows that Graves came to his office only on November
23, and he charged him $3 for the office call.
Concerning Bradshaw's termination, Plant Manager
Vinson testified that, shortly after Graves had been
discharged, Bradshaw came to Vinson's office and in a
loud and angry voice demanded to know why Graves had
been discharged. Vinson, so he testified, asked, "How does
this concern you?" Bradshaw answered, "Well, you work
your ass off around here and you don't get any apprecia-
tion for it." Vinson added that he told Bradshaw to calm
down but that Bradshaw continued making angry remarks,
whereupon Vinson twice warned him that if he did not stop
his manner of speaking he would have to discipline him.
Bradshaw, according to Vinson, replied, "Well, I'm not
cursing you" and added that he intended to quit in any
event. Vinson then told Bradshaw he' was discharged.
Employees Kennedy and Pulley testified that Bradshaw
had told them that he (Bradshaw) stated that he thought he
had been discharged because he had been at the union
meeting on December 13. According to Kennedy, Vinson
stated that he disliked firing Bradshaw and that Bradshaw
had said that he wanted to "jump all over" Vinson for
firing Graves. When Bradshaw came to the plant at the
end of the week to obtain his final paycheck, Vinson
explained that it had already been mailed and he testified
that Bradshaw apologized for losing his temper and asked
for his job back. Vinson said `that he could not give it to
him. However, Vinson telephoned a number of other
places in an attempt to assist Bradshaw in obtaining a job
because he regarded Bradshaw as a good worker.
Vinson testified that he did not know of the union
meeting on December 13 or any other union activity on the
part Bradshaw and Graves. It is his testimony that the first
knowledge he had of any union interest was on January 28
when the Respondent received a recognitional demand
from Hugh Owen, the Union's International representa-
tive. It was after receiving this letter that Vinson called in
Kennedy to question him about union talk, as related
above.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. CONCLUSIONS
In his brief, counsel for the Respondent asserts there
were procedural errors in the handling of this proceeding.
First, he argues that it was a breach of procedure when the
Regional Office failed to secure an affidavit from Graves
while he was on active duty at Fort Polk, Louisiana, for
something in excess of 4 months. Counsel for the General
Counsel interviewed Graves shortly before the hearing.
The Respondent's counsel further argues that because
Graves, Bradshaw, Owen, and Roberts, about the middle
of January, discussed their testimony, they "unquestiona-
bly revised their testimony for the sake of conformity," and
that, accordingly, their testimony is "inherently unreliable
as it is tainted and lacks corroboration from any independ-
ent source." Counsel further argues that any refusal to
make available the notes taken by counsel for the General
Counsel was "reversible error," since I examined the notes
in question and stated that they conformed to the
testimony given. He concludes that the notes should be
made available, and Graves should be presented for
further cross-examination, or his testimony stricken. For
reasons previously indicated at the outset of my Decision, I
do not agree with these contentions.' -
Counsel further contends that the testimony of Graves is
further shown to be unreliable because he testified that he
had been ill on 2 successive days in late November and was
treated by Dr. Rudd on the first day of his illness. He
further points out that Graves declined to furnish any
documentary evidence to support his claim and he also
calls attention to the fact that Dr. Rudd testified that
Graves visited him only on November 23. 1 observed
Graves. closely while he was testifying and I have studied
the evidence with care, and I am unable to agree with the
contention of the Respondent's counsel that Graves "is not
worthy of credence unless he is corroborated by credible
evidence from independent sources."
With respect to Bradshaw, counsel asserts that he
"exerted his influence upon Kennedy and Pulley to change
their testimony to enhance his own cause." There is no
basis in the record for this assertion, and I reject it.
Counsel points out that Bradshaw's pretrial affidavit shows
that Vinson attempted to secure another job for him the
same day he was fired, whereas in his testimony he related
that this attempt took place 5 days later. He also points out
that in his testimony Bradshaw claimed that Vinson
terminated him because he had a poor attendance record,
although no mention of this appears in his affidavit.
Counsel further points out that in his affidavit Bradshaw
stated that the union meeting was held on Friday,
December 17, and not the day before his discharge.
However, International Representative Owen, who attend-
ed this meeting, positively testified that the meeting
occurred on December 13 and that records which he had
turned over to his successor as president, shortly before the
hearing, so showed. I find that the meeting took place on
December 13. '
In support of his contention that the testimony of Graves
and Bradshaw should not be credited, Respondent's
counsel points to the testimony of employee Kennedy.
While Kennedy's pretrial affidavit' placed his conversation
with Vinson some weeks after the discharge and shortly
after the Union demanded recognition on January 28,
Kennedy testified that he was in error concerning the
receipt of the letter and was so advised in a conference by
Bradshaw, Graves, and Pulley. On cross-examination,
Kennedy testified that he did not recall when Vinson
mentioned the receipt of the Union's demand for recogni-
tion. According to Kennedy, Vinson stated that the reason
he discharged Bradshaw was because of the latter's
insubordination, and that he (Vinson) knew nothing about
the first union meeting.
Upon careful consideration of the record, I come to the
conclusion that Graves and Bradshaw are to be believed.
Both of them , obviously unsophisticated witnesses, im-
pressed me as sincerely endeavoring to tell the truth. I do
not believe that they fabricated their testimony in the detail
in which it was given. While Kennedy may have been
somewhat confused, this is understandable in view of the
fact that in substantial part his testimony was based upon
what Bradshaw and Graves had told him rather than his
own recollection. I reject the suggestion made by counsel
for the Respondent in his brief that Kennedy "admitted
that his affidavit was so drafted as to falsely create the
impression that the discharges were followed-by unlawful
interrogation unjustified by any recognitional demand."
Upon all the evidence, I conclude and find that Graves
and Bradshaw were terminated because of their union
activity. In addition, I find that the Respondent unlawfully
questioned employees regarding their own union activities
as well as the activities of other employees, promised
benefits if they ceased their support of and activities on
behalf of the Union, solicited employees concerning their
grievances and complaints, adjusting them in an effort to
discourage union activity, and unilaterally granted employ-
ees benefits, including a 10-minute afternoon break and an
increase in the Respondent's contribution to the employ-
ees' health insurance plan. By these activities, the Respon-
dent violated Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. By interrogating its employees concerning their
membership in, activities on behalf of, and sympathies in
and for the Union , the Respondent interfered with,
restrained , and coerced its employees in violation of
Section 8(a)(1) of the Act.
2. By granting its employees wage increases and other
benefits in an effort to induce them to refrain from
becoming or remaining members of the Union or giving it
assistance or support , the Respondent interfered with,
restrained , and coerced its employees in the exercise of
their rights under Section 7 of the Act and thereby violated
Section 8(a)(1) of the Act.
3. By terminating Danny Graves and Terry Bradshaw
I Ra-Rich Mfg. Corp., 121 NLRB 700, and N.L.R.B. v. Seafarers, 374,
F.2d 974 (C.A. 9, 1967), cited by counsel , are clearly distinguishable.
HADLEY ADHESIVE & CHEMICAL CO. 953
on December 14, 1971, the Respondent violated Section
8(a)(3) and (1) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from any
other invasions of the Section 7 rights of its employees, and
to take certain affirmative action.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER2
Respondent, Hadley Adhesive & Chemical Company,
Fulton, Kentucky, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any employee about union
support or union activities.
(b) Offering or granting its employees wage increases or
other benefits in order to induce them to refrain from
becoming or remaining members of the Union or any other
labor organization or giving such organization any assist-
ance or support.
(c) Discharging or otherwise discriminating against any
employee for supporting Oil, Chemical and Atomic
Workers International Union, AFL-CIO, or any other
union, or for engaging in concerted protected activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Danny Graves and Terry Bradshaw
immediate and full reinstatement to their former jobs or, if
their jobs no longer exists, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for loss of
earnings in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) 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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Fulton, Kentucky, copies of the
attached notice marked "Appendix." 3 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained 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 the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.4
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 9, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by discharging the
employees listed below for supporting a union, and by
otherwise interfering with our employees' right to join and
support a union:
WE WILL offer full reinstatement to Danny Graves
and Terry Bradshaw with backpay, plus 6-percent
interest.
WE WILL NOT discharge any of you for supporting
Oil, Chemical and Atomic Workers International
Union; AFL-CIO, or any other union, or for engaging
in concerted activity protected by Section 7 of the
National Labor Relations Act, as amended.
WE WILL NOT coerce or question you or threaten you
concerning union support or activities.
WE .WILL NOT unlawfully interfere with your union
or protected concerted activities.
HADLEY ADHESIVE &
CHEMICAL COMPANY
(Employer)
Dated By
(Representative ) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Selective Service Act and the Universal Military Training or covered by any other material. Any questions concern-
and Service Act. ing this notice or compliance with its provisions may be
This is an official notice and must not be defaced by directed to the Board's Office , Federal Office Building,
anyone. Room 2407 , 550 Main Street , Cincinnati, Ohio 45202,
This notice must remain posted for 60 consecutive days Telephone 513-684-3621.
from the date of posting and must not be altered , defaced,