Hahn, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1967

167 N.L.R.B. 486 (N.L.R.B. 1967)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hahn , Inc. and Oil , Chemical and Atomic Workers
International Union , AFL-CIO, Pekin Local 7-662
Hahn , Inc., Illinois Division and Oil , Chemical and
Atomic Workers International Union , Pekin Local
7-662, AFL-CIO. Cases 38-CA-256 and
38-RC-309
September 20, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
for Subregion 38 shall , pursuant to the Rules and
Regulations of the Board , within 10 days from the
date of this Decision , open and count the ballots of
Larry Watson , Wayne Woodruff, Leo Conover, and
Michael Swain , prepare and cause to be served
upon the parties a revised tally of ballots including
therein the count of such ballots, and issue the ap-
propriate certification.
I Delete from paragraph 2(b) of the Tnal Examiner's Recommended
Order that part thereof which reads "to be furnished" and substitute
therefor "on forms provided "
TRIAL EXAMINER'S DECISION
On May 31, 1967, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
consolidated proceeding, finding that Respondent
had engaged 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 further
recommended, in Case 38-RC-309, that the objec-
tions to the election and the challenges to ballots be
overruled; that the case be remanded to the Officer-
in-Charge for Subregion 38 to open and count the
challenged ballots and issue a revised tally of bal-
lots; and to take such action thereafter as is war-
ranted by the results disclosed by the revised tally.
Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof, and the General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Hahn, Inc., Pekin, Il-
linois, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer 's Recommended Order.I
It is further ordered that the objections to the
election conducted in Case 38-RC-309, and the
challenges to the ballots cast therein by Larry Wat-
son, Wayne Woodruff, Leo Conover, and Michael
Swain, be overruled, and that the Officer-in-Charge
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: In Case
38-CA-256 pursuant to a charge filed November 15,
1966, by Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, Pekin Local 7-662, hereinafter
referred to as the Union, the Officer-in-Charge of Subre-
gion 38 issued a complaint on behalf of the General
Counsel alleging that Respondent violated Section 8(a)(1)
and (3) of the Act by discharging Larry Watson and
Wayne Woodruff on November 14, 1966, and Leo
Conover and Michael Swain on November 15, 1966. The
complaint also alleges that Respondent independently
violated Section 8(a)(1) by other coercive conduct on or
about the same dates.' Respondent's answer denies the
commission of any unfair labor practices.
In Case 38-RC-309 pursuant to a petition filed
November 15, 1966, a stipulation for certification upon
consent election was entered into and an election was
conducted on December 21, 1966, which resulted in five
votes for the Union, six against, and four challenged bal-
lots. Thereafter, Respondent filed timely objections to the
conduct of the election. On January 13, 1967, the Re-
gional Director for Region 13 issued his report on objec-
tions and challenges, order authorizing consolidation of
cases, and direction of hearing. In it he found that the four
challenged ballots, which were sufficient to affect the
result of the election, were cast by the four individuals
whose discharges are the subject of the complaint in Case
38-CA-256 and that the resolution of the challenges was
dependent upon the outcome of that case. He also found
that substantial and material issues had been raised by the
objections which could best be resolved after a hearing.
Accordingly, he ordered that a hearing be held to resolve
the issues raised by the challenges and the objections and
that the representation case be consolidated with the un-
fair labor practice case by the Officer-in-Charge of
Subregion 38 for purposes of a single hearing. On January
16, the Officer-in-Charge issued an order consolidating
the cases for hearing before a Trial Examiner.
The consolidated proceeding was heard before Trial
Examiner David S. Davidson, in Peoria, Illinois, on
February 6 and 7, 1967. At the close of the hearing the
parties waived oral argument and were given leave to file
briefs which the General Counsel and Respondent filed.
At the hearing the General Counsel's motion to amend the complaint
by adding an additional allegation of violation of Section 8(a)(1) of the Act
was granted
167 NLRB No. 65
HAHN, INC
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Indiana corporation, maintains plants
at Pekin, Illinois, and Evansville, Indiana, where it is en-
gaged in the manufacture of agricultural equipment. Dur-
ing the 12-month period prior to the issuance of the com-
plaint, Respondent shipped products valued in excess of
$50,000 directly to points located outside the States
wherein its facilities are located and purchased and
received goods and materials valued in excess of $50,000
directly from points located outside the States wherein its
facilities are located. I find and Respondent admits that
Respondent is engaged in commerce within the meaning
of the Act and that assertion of jurisdiction is warranted.
11. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International
Union, AFL-CIO, Pekin Local 7-662, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Pekin Operations
On September 19, 1966, Respondent acquired the
manufacturing facilities of C & S Manufacturing Com-
pany, referred to hereinafter as C & S, in Pekin, Illinois.
Respondent continued to operate these facilities with no
substantial change in employees or products. Francis
(Bud) Chester who had been president and part owner of
C & S continued on with Respondent as general manager
of the Pekin facility. Jack Phillips, son-in-law of Francis
Chester, remained as shop superintendent in charge of all
but the shipping and receiving department at the plant.
Robert Chester, son of Francis Chester, continued to be
in charge of the shipping and receiving department.
Respondent concedes that Francis Chester and Jack Phil-
lips are supervisors, and I find, on the basis of the
evidence presented at the hearing, that Robert Chester is
also a supervisor within the meaning of the Act.2
Respondent's plant consists of two buildings separated
by an open driveway and parking area. The west building
is approximately 250-feet long and varies in width from
78 to 120 feet. At its south end it houses the press depart-
ment. The machine shop is next to the press department
and the north half of the building is a welding area.
2 In the past before Respondent acquired the Pekin plant one employee
was regularly assigned to the shipping and receiving department for about
6 months of the year and other employees were transferred to that depart-
ment as needed Since Respondent has taken over the facility , employees
have regularly worked in the shipping and receiving department and Fran-
cis Chester anticipated that they would continue to do so Robert Chester
carries the keys to Respondent 's east building , opens it every morning and
directs the work of the employees in this department Unlike the nonsu-
pervisory employees, Robert Chester is salaried and does not punch a
timeclock He was excluded from the stipulated list of employees eligible
to vote in the December 1966 election
' Francis Chester, Jack Phillips, and Robert Chester usually left the
plant to eat lunch together and probably were not in the plant at the time
487
Respondent's offices, in which Francis Chester's desk is
located, are in this building at the east end of the machine
shop area. The offices, which are separated from the plant
area by partitions, may be entered by doors leading to the
machine shop and to the parking area between the
buildings. Phillips' desk is in the machine shop area near
the office area. The east building is approximately 62 by
140 feet. It houses the tank area and the shipping depart-
ment where Robert Chester is located At the time of the
events herein Respondent employed approximately 19
employees.
B. Union Activity at the Pekin Plant
On or about September 16, 1966, the employees of C
& S discussed getting a union into the plant for about 20
minutes while eating in the plant during their lunch hour.3
That evening after work Conover contacted Harms, a
representative of the Union, and told him that the em-
ployees of C & S wanted a Union. Harms said he would
have to check to see if his union could take them in and
that he would let Conover know. By early November
Conover had heard nothing further from Harms, and on
November 4 Conover, accompanied by Swain, went to
Harms' office and again asked if the Union could take
Respondent's employees in.4 Harms made some
telephone calls and told Conover that he would have
authorization cards for the employees to sign available on
the following Wednesday, November 9. On November
9 Conover returned to Harms' office after work with
Swain and Woodruff. Harms gave blank union authoriza-
tion cards to Conover and Swain. He explained how they
were to be signed and asked them to bring the cards back
after they were signed. Conover told Harms that they
would try to return the cards the next evening.
The next day, November 10, Conover and Swain
brought the cards to the plant with them. Each had previ-
ously signed a card at home, and at or about 7:35 in the
morning each signed the other's card as a witness at Jack
Phillips' desk in the machine shop. Conover then
retained both cards. At that time he also gave cards to
Woodruff and Watson. Woodruff and Watson took the
cards into the pressroom where each signed a card and
witnessed the other's card. Woodruff then returned both
cards to Conover.6
During the lunchbreak that day Conover gave em-
ployee Royal Hughes an authorization card while stand-
ing at Phillips' desk. Hughes signed the card. Conover
witnessed and retained it.' Also during the lunchbreak
Conover went to the welding department and handed
cards to employees Clarence Kirk, Robert Simer, Eddy
Lelm, Edward Aeshliman, and Ralph Barnes. None of
them signed at the time, and Conover left the cards with
of this discussion Unless otherwise indicated below , my findings are
based on uncontradicted testimony which I have credited.
" Between September 16 and November 4, there was little if any
discussion of the Union in the plant
5 Conover testified that Phillips had no regular arrival time at work,
coming some days at 7 30 and others as late as 7 55 According to
Conover, Phillips was not at his desk when the cards were signed, and he
did not know whether Phillips was in the plant at the time
6 Watson did not engage in any other union activity in the plant, and
talked only to Conover, Swain, and Woodruff about the Union
' Conover testified that Phillips was not present at the time and
probably had left the plant
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them. Later that afternoon Kirk came into the pressroom
and told Conover that if Conover would meet him a cou-
ple of blocks from the plant that evening he would have
his card signed and would give it to Conover. During the
afternoon Simer brought his card to the pressroom and
returned it to Conover with his name printed on it. After
work Conover met Kirk two blocks from the plant. Kirk
gave Conover his card with his name written on it but not
signed in the proper place.
After work Conover, Swain, Watson, and Woodruff
went to the union hall and gave the cards to Harms.8
Harms noted that the cards of Simer and Kirk were not
properly signed and he returned them to Conover to have
the deficiencies corrected.
The next day, Friday, November 11, at or about 11
a.m. at the back of the pressroom Conover asked em-
ployee Kenneth Brown if he wanted to sign an authoriza-
tion card.9 Brown replied that he wanted to join the
Union and asked Conover for an extra card for a fellow
employee. Conover gave him two cards and at or about 2
p.m. Brown returned to Conover both cards which pur-
ported to be signed and witnessed by Brown and Ron Bu-
ley, another employee.
During the lunch hour that day Conover took cards to
Simer and Kirk and asked them to sign them in the proper
places. During the lunchbreak Conover also spoke to
Barnes and Lelm in the tank department and asked them
if they would sign cards and turn them in. Both declined.
During the afternoon Kirk told Conover to meet him
again away from the plant after work to pick up Kirk's
card. After work Conover asked Swain to meet Kirk, and
Conover met Simer in the company parking lot. Simer
then signed his card and Conover witnessed it.10 Swain
waited outside the plant for about 15 minutes after work
until Kirk came out through the office door. Swain fol-
lowed Kirk two blocks from the plant where Kirk handed
Swain his card which he had previously signed. Swain
then joined Conover at the union hall where they turned
in the additional cards.
C. The Alleged Interrogation
1. The facts
Ralph Barnes ' testimony was offered in support of the
allegation of interrogation which was added to the com-
plaint by amendment at the hearing . Barnes, who was em-
ployed by Respondent at the time of the hearing , initially
testified that no representative of the Company spoke to
him about the Union and that he did not recall having a
discussion with Chester about the authorization cards.
Upon a claim of surprise by counsel for the General
Counsel he was permitted to put leading questions to
Barnes who then testified as follows:
Q. (By Mr. Pincus) Mr. Barnes about half an hour
to an hour ago you were discussing and talking about
this matter with me in the office," were you not?
A. Yes.
" Woodruff regularly rode to and from work with Conover Apart from
his signing a card in the plant and his trip to the union hall with Conover,
there is no evidence that he engaged in any other union activity
9 Conover testified that the Chesters and Phillips were not present dur-
ing this brief conversation Swain testified that he talked to Brown with
Conover and was present when Conover solicited others to sign. He
spoke in favor of the Union at the time, but did not independently
solicit employees to sign authorization cards
Q. Do you recall my asking if Bud Chester said
anything to you about Union cards or authorization
cards?
A. Now I don't remember if we had any
authorization cards or not.
Q. Who are you talking about?
A. Bud.
Q. I am not asking if he had any authorization
cards, but did he ever discuss or talk about those or
talk to you about them?
A. No sir.
Q. Do you ever recall Bud Chester asking you
who was passing out those cards?
MR. ALLEN: Objection Your Honor.
TRIAL EXAMINER: I will over rule the objection.
THE WITNESS: He asked me and I told him that I
didn't know who it was.
Q. (By Mr. Pincus) When was this?
A. That same afternoon.
Q. That same afternoon, of when?
A. Of that day.
Q. The day when Leo asked you to sign?
A. Yes.
Q. Before or after that day?12
A. It was after.
Q. What did you say?
A. I told him that I did not know who it was.
Barnes was not cross-examined by Respondent.
Francis Chester testified as follows:
Q. Now I think you are in the room, and were in
the room yesterday, when an employee, Ralph
Barnes, testified, and I direct your attention to on or
about the 10th or 11th day of November, 1966, and
I ask you whether you ever interrogated Mr. Barnes
concerning whether any employees at Hahn had
signed Union cards?
A. No, I did not.
Q. If you recall, did you have any conversation
with Mr. Barnes on either of those two days?
A. It would be hard to recall whether you went by
and said good morning or he had something to ask
relative to a job. I frequently visit with the fellows.
There was no other testimony concerning this incident.
Barnes' demeanor demonstrated obvious reluctance on
his part to give testimony adverse to his employer in his
employer's presence. While he changed his testimony
only after leading questions were put to him challenging
the accuracy of his initial testimony, both his testimony
and his demeanor demonstrated that it was not likely that
he would allow words to be put in his mouth by the
General Counsel contrary to the facts and his employer's
interests, and his answers in part went beyond the
questions asked. On the other hand Chester's denial did
not meet the testimony of Barnes that he was asked who
was passing out the cards. As I find elsewhere herein,
there is cause otherwise to doubt the testimony of
Chester. In these circumstances, I credit Barnes' reluc-
111 Conover testified that Phillips was in the plant at the time, and
neither Chester was present in the parking lot
11 The word officer which appears in the transcript at this point is an ob-
vious typographical error and is accordingly corrected
12 The inflection and timing with which this question was asked as well
as the context .makes it clear that the question was intended and un-
derstood to mean before or after Conover asked Barnes to sign a card on
that day
HAHN, INC.
tant testimony that during the afternoon of November 11,
after Conover asked him to sign a card for the Union,
Francis Chester asked Barnes who was passing out union
authorization cards and Barnes replied that he did not
know.
2. Conclusions
While all interrogation concerning employee union ac-
tivity is not per se unlawful, it is clear that the questioning
of Barnes exceeded permissible bounds. The inquiry by
Plant Manager Chester was not directed at ascertaining
the Union's strength for any legitimate purpose, but was
aimed at discovering the identity of the solicitor of
authorization cards. Chester was admittedly opposed to
the Union. Although there is no direct evidence that his
opposition had as yet been communicated to the em-
ployees, it is clear that Barnes was sufficiently inhibited,
that he answered untruthfully in denying that he knew
who was passing out the cards. I find that the interroga-
tion of Barnes was coercive and violated Section 8(a)(1)
of the Act. 13
D. The Alleged Implied Promise of a Pay Increase
1. The facts
Conover testified that on Monday, November 14, he
had a conversation with Jack Phillips at or about II a.m.
in the front of the pressroom.
According to Conover, Phillips said:
Leo, I want to talk to you. The company is trying to
get a general raise. The reason is I cannot have a lead
man working at the same pay as the rest of the men
working for the lead man and what they're getting.
Clarence Kirk is the lead welder and Elzy Haines: s
lead machinist and a couple of you fellows, it looks
like, seem to have a way of getting what you want
without waiting for a general raise.
Conover testified that he asked what Phillips meant and
Phillips walked away without telling him. Phillips denied
that he made an implied promise to any employee on that
day that Respondent would increase wage rates of em-
ployees if they did not designate the Union as their bar-
gaining representative. Phillips also denied that he
discussed the subject of a pay increase with any employee
around that time.
As I find elsewhere that Phillips' testimony left sub-
stantial doubt as to its accuracy, I do not credit Phillips'
denial that he discussed wage increases with any em-
ployee at this time and I find that Conover in his
testimony repeated to the best of his recollection what
Phillips said to him at the time.
2. Conclusions
Phillips' statement to Conover was either intentionally
cryptic or inarticulately put, and it is clear from
Conover's question which followed it that Conover did
not fully understand what Phillips was seeking to tell him.
Although Phillips did not give any further explanation,
however, his remarks were not entirely meaningless.
Thus, he may have meant that there -would be a general
increase with leadmen getting more than others, that
13 See Blue Flash Express, Inc., 109 NLRB 591; N.L.R.B v Bonnie
Bourne, dlbla Bourne Co., 332 F.2d 47 (C A. 2).
489
there would be a general increase preceded by a special
increase for the leadmen, or that the Company was trying
to get a general increase for all employees but that the
leadmen would get an increase without waiting until it
was determined whether other employees would get an
increase. Whatever Phillips meant, however, it is clear
that he intended to convey to Conover that increases
were being considered and particularly for the leadman
who it looked like would get what they wanted. There is
no evidence that similar information had previously been
conveyed to the leadmen or other employees before the
advent of the Union. Phillips' statement was made to the
leader of the union organizing effort at a time when Phil-
lips admittedly had heard rumors about the Union and
after Francis Chester had sought to learn the identity of
the employee who was distributing the authorization
cards. In these circumstances it may be fairly inferred
that Phillips' remarks to Conover were intended to hold
out to Conover the prospect of a future increase in wages
in order to persuade him that a Union was not needed to
obtain increased benefits for the employees, and thus to
dissuade him from persisting in his efforts to organize the
employees in the plant. Moreover, from the fact that Phil-
lips did not specify when the increases would be
forthcoming and refused to clarify the confusing nature of
his statement, as well as his statement that a couple of the
employees had a way of getting what they wanted without
waiting for a general increase, I infer that Phillips in-
tended to convey to Conover that the union activity of the
employees had prompted Respondent to consider in-
creases at this time and that the Respondent's intention
would be made more definite if the union activities were
abandoned. In these circumstances I find that Phillips'
statements to Conover set forth above violated Section
8(a)(1) of the Act.14
E. The Alleged Threat To Close the Plant
1. The facts
At noon on November 14, several of the employees
were in the machine shop near the office area of the plant
getting ready to eat lunch. Robert Chester and Clarence
Kirk walked into the area coming from around the corner
of the office headed toward the entrance to the office.
They were talking to each other. Conover, Swain, and
Woodruff testified that as Chester and Kirk passed the
timeclock, Chester said to Kirk in a loud voice that if the
Union got into the plant his father would close the doors,
and Kirk replied that it looked like the Union would come
in whether they wanted it or not. Chester continued into
the office and Kirk stopped at the soft drink machine next
to the office door.
Robert Chester testified as follows:
Q. Do you recall a conversation with Clarence
Kirk on or about November 14, 1966 at 12:00 noon?
A. I imagine, we usually say something around
noon to each other with regard to what I do not
know.
Q. Would you relate as best you remember what
you said and what Mr. Kirk said, if anything?
A. I haven't any idea what was said. I don't
imagine it would relate to this.
Q. Do you recall making any statement to Mr.
14 See Gorbea, Perez & Morell, S en C., 133 NLRB 362, enfd . in per-
tinent part 300 F 2d 886 (C A 1).
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kirk, that your father would close the plant if the
union came in)
A. N o.
Q. Do you recall Mr. Kirk making a statement to
you that it looks like the union is here already?
A. No.
On cross-examination Chester testified that he usually
ate lunch with his father and walked to the office to loin
his father for lunch by the route described by Conover,
Swain, and Woodruff in their testimony. Chester denied
that any employees mentioned the subject of the Union
to him on November 14. He testified that he might have
heard the subject of the Union mentioned in passing at
the plant during the week before the election, but denied
that he had any conversation with any employee about it
Neither Kirk, who was employed at the time of the
hearing as welding leadman, nor the janitor, who Swain
testified was present at the time, was called to testify
about this incident . All the witnesses who testified con-
cerning this incident had identifiable interests in the out-
come of this proceeding, and I cannot say that the interest
of the three dischargees were any more likely to color
their testimony than those of Robert Chester While there
are minor variations in the words attributed to Chester by
the three alleged discriminatees , there is no essential in-
consistency in their testimony, and the variations which
appear are of the kind commonly encountered in the
testimony of witnesses quoting a conversation. I have
concluded that their testimony as to this incident is not
fabricated and is to be credited over the less than firm
denials of Chester.
2. Conclusions
Chester's statement to Kirk within earshot of several
other employees was a clear threat to close the plant if the
employees brought the Union into the plant. Accordingly,
I conclude that Respondent thereby violated Section
8(a)(1) of the Act.
F. The Discharges
1. The facts
a. The work records of the dischargees
Conover started work in March 1966 at the rate of
$2.28 an hour. After 30 days he received an increase of
10 cents an hour Shortly after he was transferred to the
pressroom he received a further unsolicited increase to
15 Conover testified without contradiction that Phillips told him at the
time that he thought Conover had a more level head than Giddens and
would be better than Giddens in the job Phillips testified that before
Conover became leadman , he had conversations with Conover about Gid-
dens' faults as leadman which made him "have a lot of faith" in Conover
Phillips also conceded that Conover did a fairly good job as an employee
up to the time that he became leadman
'S Phillips testified that new employees were usually started at $2 28 an
hour but that he would start an employee with some experience at $2 48
an hour
" Swain so testified Conover testified that around this time he heard
Swain tell Phillips that he would soon have his 30 days in and ask Phillips
if he would have to look for another job According to Conover, Phillips
replied , "You are doing a swell job and you don't have to look any
further " Phillips testified that he did not discuss with Swain what would
happen when his probationary period was up and that no employee had
ever asked about the probationary period In view of my general impres-
$2.48 an hour. Conover testified without contradiction
that before receiving this increase Phillips told him that
he was trying to get Conover a raise and was very well
satisfied with his work.
In October Richard Giddens quit his job. Phillips asked
Conover if he would like to take over Giddens' job as
leadman and setup man in the pressroom. Phillips told
Conover to try it for a while and see if it worked out.
There was no discussion between them as to what would
happen if it did not work out.15 Conover remained in this
job until his discharge on November 15, 1966.
Swain started working for Respondent on October 24,
1966, as a press operator and assistant setup man. His
starting rate was $2.48 an hour. Although hired at a rate
above the bottom starting rate, it is clear that Swain was
considered a probationary employee. 16 As the normal
probationary period according to Chester was 30 days, it
is also clear that Swain's probationary period would not
have expired until November 22, 1966, after the date of
his discharge.
On or about November 7, while Swain was at work at
a punch press, Phillips came by and asked him how many
pieces he was punching an hour . After hearing Swain's
reply, Phillips told him to keep up the good work A few
days later while Conover was at his machine Swain called
Phillips over He told Phillips his probationary period
was about up and asked if he still had a job. Phillips
replied that he had ajob as long as he wanted it and urged
him to keep up the good work "The next day, while
working at the magnetic grinder at the back of the
machine shop Swain told Francis Chester he was going to
be retained, and Chester confirmed the fact, stating that
they were one happy family and never got excited unless
they got rushed. 's
Watson had worked for C & S from March through
May 1966, starting at the rate of $2.28 an hour. He
received a raise to $2.38 an hour after 30 days and
another raise to $2.48 at the end of 60 days. He left C &
S in May to take another job. Thereafter Respondent
rehired Watson, and he started to work on October 10,
1966,19 at the rate of $2.48 an hour.
During his employment at C & S Watson worked in the
press department as a press operator After he was hired
by Respondent he worked about half the time in the press
department and half in the shipping and receiving depart-
ment During the last several weeks of his employment by
Respondent he worked in the press department doing es-
sentially the same kind of work he had done during his
earlier period of employment with C & S.
Although Phillips and Chester testified that Watson
sion of Phillips as a witness, as well as the uncontradicted testimony of
Swain concerning his conversation with Chester the following day next
set forth below, which was a sequel to Swain 's conversation with Phillips,
I credit Swain 's corroborated testimony as to this incident
18 Chester , who testified , did not contradict Swain's testimony concern-
ing this conversation
1 On cross-examination Watson was asked if he was certain that he did
not start work for Respondent on October 17 and he replied that he was
certain he started on October 10 His examination at that time would in-
dicate that in his sworn statement given to the General Counsel during
the investigation of the case, he had stated that he was first employed on
October 17, but the statement was not introduced and its contents were
not otherwise put in the record Although Respondent must clearly have
had records to establish the date of Watson's hire, no further effort was
made to impeach Watson's testimony as to the date he started work for
Respondent Accordingly , I have credited his testimony that he started
work for Respondent October 10, 1966
HAHN, INC. 491
was a probationary employee at the time of his discharge
on November 14, even assuming that he was required to
serve a new probationary period upon rehire, his proba-
tionary period normally would have expired on
November 8, 1966, and there is no showing that it was
extended.
Woodruff was employed by Respondent on October
13, 1966,20 at the rate of $2.38 an hour. Woodruff worked
at several jobs around the plant during his brief period of
employment and had been working in the pressroom for
about 2 weeks at the time of his discharge. It appears that
Woodruffs probationary period would have normally ex-
pired on or about November 12, 1966.
b The events of November 14 and 15
On the morning of November 14, Conover set up a
gusset die in the 300-ton press in the pressroom for
Woodruff to run.'' Sometime during the afternoon while
Woodruff was running the press the die broke.22
Woodruff called Conover to the machine who in turn
called Phillips.
Phillips came and looked at the die while it was still in
the press. According to Phillips, he expressed annoyance
and commented that the die had either gotten lose or had
not been set up properly. Conover testified that nothing
was said to indicate that he was at fault. Phillips left
without checking to see whether the die was bolted tightly
to the press. Conover and Woodruff then began to
remove the die from the press. 23
Phillips returned to what he had been doing when the
die broke. According to Phillips sometime later during the
afternoon he spoke to Francis Chester. Phillips testified
that he told Chester that the die was broken and he
recommended that Woodruff and Watson should be
discharged with which Chester agreed. In response to
questioning by the Trial Examiner, Phillips testified as
follows:
Q. Now, I think you have gone over this, but
there is something not too clear in my mind. Will you
tell me just once more what you said to Mr. Chester
and he said to you in this conversation?
A. In regards to the two men, I went in and told
Mr. Chester we have a busted die. He said "Oh, for
crying out loud. What is the matter in there?" I said,
it could have been avoided if it was watched. I Just
about have had it with them . I cannot stand it no
more and I am going to let them go.
Q. Did you tell him who was operating the press?
1 Yes, he asked who it was and I said Junior
Woodruff.
Q How did Watson come into it?
A. Well, Larry, this Press Department was such
a confused mess, we were getting bad parts, and we
were getting scrap , and it was just not ticking in
there. This is a week or two. I can see it and he can-
not see it. It is not that big a plant that you cannot
pick out the men who are not producing or have no
interest in the job. There was times, two or three
weeks ago, with Junior. I was over by the big rack
putting things up, and I turned around and he has his
hands in his pockets. You have to take the boy by the
hand to tell him what to do. There was no interest.
Q. Did you talk to Mr. Chester in this fashion?
A. I don't think I went into just details because he
knew- he was aware of the men.
Q. At the time you were talking about Woodruff
and Watson, did you talk about Mr Swayne and Mr.
Conover at all?
A. No, I said probably was that the press depart-
ment is going to the dogs, something like that- no,
I cannot recall. I did say Leo should have checked it.
Why he didn't, I don't know He should check a
press out to see if the bolts are coming loose He
should help the operator out and explain in regard to
the men being on the job.
Francis Chester testified that he spoke to Phillips about
Watson and Woodruff in the early part of the afternoon
on November 14, before the die was broken. Chester
testified:
It is pretty hard to relate what was said because I
was rather busy and I knew that he was concerned
and, as you know there was an accident and he
discussed the fact that he was not getting the quality
and proper amount of work from these fellows and I
don't know if he asked me if they should be removed
from the payroll or told me he was going to remove
them from the payroll and I agreed with him. I don't
remember the exact words.24
Chester could not recall what he and Phillips said about
Woodruff and Watson "but it was the lack of their ability
and that sort of thing." He could not recall whether Phil-
lips stated any specifics.
At quitting time, Phillips called Woodruff and Watson
together and told them he would have to let them go
because their work was not satisfactory. Phillips testified
that he told Woodruff that the Company could not
tolerate the breaking of the die and told Watson that he
was standing around too much and not getting his work
out.
Watson and Woodruff testified Phillips told them that
he hated to let them go but there was too much scrap
being run and too many dies broken and they needed
more experienced men in the department. 25 Watson
20 On cross -examination Woodruff was asked if he was not employed
on October 14, 1966 He replied that he could have been and was not cer-
tain The date he started work was not further clarified
21 While setting it up , Conover discussed with Francis Cheste, a bow in
the base of the die , and Chester suggested that Conover put blocks under
the die and run it
22 According to Conover earlier in the day Woodruff complained to him
that he was having difficulty pushing the matenal into the die to be
stamped Conover testified that he checked the die at the time He saw
that it was not making a clean cut and was leaving a burr on the strip of
metal from which the parts were stamped The burr caught on the back
panel of the press as the metal strip was pushed through to be stamped
Conover testified that Phillips came to the press and forced the material
through He then told Woodruff to put some weight behind the metal and
to continue to run it Phillips denied talking to Conover about the die be-
fore it broke , but he did not testify as to checking the die or talking to
Woodruff Francis Chester testified that he heard the operator had dif-
ficulty pushing the material through the press but he could not remember
when he heard it
29 According to Conover the bolts holding the die in place were tight at
the time of removal
24 Although Chester's reference to an accident is unexplained , it is clear
from his testimony otherwise that according to Chester this conversation
occurred before Phillips reported the breakage of the die to him
25 Woodruff testified that Phillips also told Woodruff he had thought he
could use him when he was working in the shipping and receiving depart-
ment but he did not work out
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked for his check and was told he would have to return
to get it. 6 Woodruff and Watson said nothing further.
After discharging Watson and Woodruff, Phillips again
spoke to Francis Chester. According to him at that time
Chester said:
... we might as well just clean out the press depart-
ment for they are not making any money this way.
We don't have skilled help. When Leo and Mike
come in tomorrow, we better let them go
Later Phillips testified that in this conversation he said to
Chester that it was a shame that the die had been broken
because it could have been avoided to which Chester
responded
. I know it, but the only way we are going to get
rid of it is to get rid of Leo and Mike because it was
he that set it up.
Phillips also testified:
Q. Whose idea was it to fire Swayne and Leo?
A. It was more or less mine and Bud's. We are
running that place to a certain degree.
Q. Wasn't it Bud Chester who said after the deci-
sion was made to fire Wayne Woodruff and Larry
Watson, wasn't it Bud Chester who said since we are
getting rid of these two, we might as well get rid of
the other two, also, isn't that the way it was put?
A. I don't know how it was put.
Q. Isn't that the way you testified five months
ago?
A. We talked it over.
According to Chester, Phillips came to him a second
time after the decision had been made to discharge Wat-
son and Woodruff. He testified that Phillips then advised
him that the die was broken. According to Chester, he
asked how it had happened and Phillips replied that he did
not know but it was pretty well broken up. Chester
testified that he asked Phillips if Conover had checked
the die after setting it up and was keeping it oiled and
tight, and Phillips replied that he did not know. Chester
testified that he told Phillips that he had reached the point
where he just could not go on anymore and suggested that
Phillips discharge Conover and Swain Chester conceded
that he had no knowledge that Swain had anything to do
with the die.
At some point Chester went to inspect the die. When
he inspected it, part of the die was still in the press and
part of it had been removed. Chester did not check the
bolts of the portion that was still in the press. On his
direct examination Chester testified that he inspected the
die before he and Phillips decided to discharge Conover
and Swain. On cross-examination, however, Chester
testified that he could not recall whether he decided to
discharge Conover and Swain before or after he went out
to check the die and could not remember whether he
knew the condition of the die at the time the decision was
made to discharge them.
The following morning when Conover and Swain re-
ported for work Phillips stopped them before they could
punch in. Conover testified that the following conversa-
tion ensued-
We turned to face him and Jack Phillips said "This
kind of goes against the grain, but I am going to have
26 Watson returned on November 16 to get his check and at that time he
asked Phillips to tell him the real reason why they were fired Watson
testified that Phillips replied that it was because of the broken die and
because he needed more experienced help Phillips also told him that they
were going to close the press department down because they were not
to let you go. Mr. Chester feels there is too much
breakage and too much waste and we can't live with
things like this." Mr. Swain said "when can we pick
up our checks?" He said, "Wednesday at noon "
Mike Swain said, "it is not on account of the waste
and breakage but it is on account of this Union thing,
isn't it?" He said, "yes, it is a bit, but I have got to
watch what I say too, fellows." I told Jack Phillips,
"it is because of our work on this Union and there is
no hard feelings between us and I want you to un-
derstand that." And he said he realized that. And I
said that we had nine signed cards turned into the of-
fice, and he said "who signed the cards, will you tell
me?" and I said "No, I will not, but there are no hard
feelings between us and whenever you want to come
down and bring your children, bring your boys down
and they can ride the ponies and feel free to do so."
About that time, Mike Swain came back and we left
the plant.
Conover testified further that he first raised the matter of
the authorization cards, saying to Phillips.
. Jack you think you will keep a Union from com-
ing in but firing us will not keep it from coming in.
There are nine cards signed and turned into the
Union office.
Swain testified that as he and Conover went to punch
in on the morning of November 15 the following conver-
sation ensued:
Mr. Phillips said, "I got to talk to you before you
punch in. I don't like to do it, the big boss wants to
clean out the press room. There is too much broken
dies and scrap." I said, "it is not my work is it, Jack.
It wouldn't have anything to do with the Union,
would it?" He said, "it might, I don't have all the say
here." I asked him when I could pick up my check
and he said Wednesday about 12:30 and I walked
away
Swain testified that after he walked away, however, he
overheard Conover invite Phillips to bring his boys to
ride the ponies and thereafter they left the plant.
Phillips testified as follows as to this conversation:
Q Would you relate what you said to them or
what they said to you, if anything?
A. Well, I called Leo and Mike over and I told
them that I am going to have to let you go; we have
had too much trouble in there and we are not getting
parts out of there like we should and the breaking
of these dies and the punches, it is costing the
company too much money and I had talked with
Bud and we made our minds up to let you go.
We just can't live with it any more.
Q. What did they say?
A. Well, Leo smiled and said, "I have another job
I am going to."27
Q. What did Mike Swayne say?
A. He did not say much. He just nodded his head.
Q Was this the extent of the conversation?
A. Well, Mr. Leo Conover said something about
the union and asked if it happened to have something
to do with it and I said no. I have nothing to do with
getting enough production out of it Watson asked Phillips if the'real
reason for his discharge was the Union Phillips replied that it was not
27 Conover testified that he believed Swain said he had another job and
was going to quit anyway Swain did not mention this and was not specifi-
cally questioned about it
HAHN, INC.
that, which I do not. I don't care one way or the
other. And he said, "I have nine people signed up,
anyway," and they walked out and that was the end
of it.
Q. Did you say anything in response to his state-
ment that he had nine people signed up?
A. I said "Nine? Who?" And he said, "It doesn't
matter."
Q. He would not tell you who they were?
A. No.
Q. Did you know who they were?
A. No, I didn't care about that.
Later Phillips was asked:
Q. At the time you discharged Conover and
Swayne was the subject of a Union raised?
A. At this time, I talked to them?
Q. Yes.
A. The only discussion of it was in the morning
like I said.
Q. Did the subject of a Union come up?
A. The only way was through Leo.
Q. What did he say?
A. I vaguely remember, and I don't know exactly,
but he said he was going to get a job someplace. He
didn't seem too broken up about losing his job. He
said the Union had something to do about it, didn't it,
Jack, and that's how it came up.
Q. What about Swayne?
A. I don't recall this.
Q. He may have discussed the Union?
A. I cannot tell you.
Q. What did he say?
A. I said I have nothing to say. He said I have got
nine men signed up.
2. Conclusions
Although there is no direct evidence that Respondent
had knowledge of the identity of the active union support-
ers, it is clear that Respondent had knowledge that there
was union activity in the plant. Despite denials of
knowledge by Francis and Robert Chester, Phillips con-
ceded that he had heard rumors about the union activity
at the time of the discharges.28
In addition, from the small size of the plant and the em-
ployee complement, the fact that some but not all of the
solicitation occurred during working hours in the plant,
and the total circumstances of this case, one may
reasonably infer that the union activity came to Respond-
ent's attention . Indeed , in the light of the interrogation
by Francis Chester aimed at ascertaining the identity of
the union solicitors, the threat by Robert Chester, and the
statement to Conover by Phillips concerning the
prospects of wage increases, it is clear that all three had
knowledge of the union activity in the plant before the
discharges occurred.
I find this evidence also sufficient to support the in-
ference that Francis Chester had reason to believe that
Conover was the leader of the union activity and that it
was centered in the pressroom of which the four
discharges constituted the entire complement. While
28 Phillips' testimony as to his knowledge of the union activities was not
a model of directness Before ultimately conceding that he had heard ru-
mors that a union was coming into the shop , Phillips evasively answered
a series of questions concerning his knowledge.
11 Don Swart Trucking Co., Inc, 154 N LRB 1345.
493
Conover did not testify to any instance when he was ob-
served soliciting support for the Union in the plant, he en-
gaged in such solicitation openly in the plant, and Swain
was present and spoke to some employees in support of
the Union. He and Swain witnessed each other's card at
Phillips' desk, and Conover handed cards to Watson and
Woodruff at the same location. Finally, any doubt is
removed by the conclusions which follow with respect to
the reasons assigned by Respondent for the discharges
and the discharge interview between Phillips, Conover,
and Swain.29
The evidence also supports the General Counsel's con-
tention that the reasons advanced by Respondent to ex-
plain the discharges are pretextous. In the first place, the
conflict in the testimony of Phillips and Francis Chester
as to the sequence of events which preceded the
discharge and the reason discussed among them at the
time warrants a strong inference that the reasons for the
discharge were not those claimed by Respondent. As the
Board stated in Standard Electric Co., Inc., 162 NLRB
1045:
... it would seem that disciplinary action, when
predicated on bona fide grounds, would produce har-
monious explanations....
Here the explanations were not harmonious, and the
testimony of both Phillips and Chester was marked by
vagueness, confusion, and at times evasiveness. Con-
sidering the fact that the challenge to the dischargees was
not belated and did not come at a time when Chester and
Phillips might have encountered honest difficulty in re-
calling the events'30 I can only infer that neither was
forthright or candid in disclosing the internal conversa-
tions and considerations that entered the determination
to discharge all four employees.
Apart from this factor, however, assessing on its merits
the evidence relating to the various reasons asserted for
the discharges, there is further reason to view the
discharges as pretextuous. According to Phillips and
Chester, they decided to discharge first Woodruff and
Watson, and then Conover and Swain because there was
too much scrap being run and too many dies being broken
and they decided that they might just as well clean out the
press department because they did not have skilled help.
In addition to the testimony of Phillips and Chester to
support these reasons for dissatisfaction with the press-
room employees, Respondent presented the testimony of
William Hale of the Mount Hawley Manufacturing Com-
pany for whom Respondent fabricated boiler parts.
Hale testified that during the months of October,
November, and December his company received a
number of defective parts from Respondent which came
out of the press department and about which he com-
plained to Francis Chester on a number of occasions.
However, Hale also conceded that it was difficult for him
to place dates, and was unable to specify any parts that
were defective other than parts received by him after the
discharges occurred, some of which he believed were
fabricated in 1967. Hale testified that he had problems
with parts received from Respondent throughout 1966,
but that the problem was more prevalent during the last
part of the year and continued about the same in 1967.
so The charge in Case 38-CA-256 was filed on November 15, 1966,
the day that Swain and Conover were discharged and the day after Wat-
son and Woodruffwere discharged . The registry receipt shows that a copy
was delivered to Respondent on November 16, 1966. The charge specifi-
cally alleged that the four discharges were discriminatory.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, the conclusion to be drawn from Hale's testimony
at best is that despite Respondent's stated reason for
discharging the pressroom employees because they were
not sufficiently skilled, Respondent's problems with
production either became or remained more acute after
the discharges and the replacements performed worse or
no better than those who were discharged. In view of
Hale's admitted difficulty in placing dates and the lack of
any specific testimony by Hale to show that his problems
with parts produced by Respondent became more acute
prior to the discharges, I cannot conclude from his
testimony that the dischargees were responsible for the
deterioration in the quality of the parts he received.
The testimony concerning the identity of the replace-
ments confirms that they brought no skills to the press-
room superior to those of the dischargees. Thus, Phillips
testified that Conover was replaced by Kenneth Brown
who had previously worked off and on in the pressroom
when C & S operated the plant. Other replacements in-
cluded an employee named Ronald Buley who was trans-
ferred from tank testing to the pressroom, apparently
without any prior pressroom experience,31 and a newly
hired employee named Lacey, who according to Phillips
had some prior experience. When asked who else was
hired for the pressroom after the discharges, Phillips
replied, "Oh, I don't know, you tell me." Chester testified
that as far as he knew, the employees hired for the press-
room had no prior experience. Thus, although the press
department continued in operation, there is no evidence
that Respondent made any effort to hire employees who
were more skilled or better qualified than those who were
discharged, and the evidence supplied by Hale which was
uncontradicted establishes that the shipments of defec-
tive parts of which Hale complained occurred after the
replacements were hired at a higher rate than that ex-
perienced before the fall of 1966.32
Although Chester and Phillips also testified that they
were having excessive problems due to poor work and
breakage of dies, they were unable to furnish any of the
specifics which should have been readily available to
them.33 When asked for specifics Chester could identify
only a group of side panels which were fabricated im-
properly and almost entirely scrap. However, he could
not recall when these panels were made and could not say
whether he had talked to Conover about it. He could not
remember whether izsponsibility for the error was deter-
mined or whether any reprimand was given. Nor did he
not know what caused the error.
Although Chester testified that he had discussed these
problems with Phillips before November 14 and had told
Phillips that they either had to make parts correctly or he
would discontinue making them, he could not remember
whether he had ever discussed the situation with the em-
ployees in the press department. He testified that he in-
31 Buley was ultimately discharged several weeks later after being given
a choice between taking time off to work on his car and staying on the job
32 Indeed , it would appear that whether or not Conover was a good
-adman, his record as a press operator , on the basis of which he was made
leadman on a trial basis, was superior to that of any of the employees
brought into the pressroom as press operators after the discharges and
that Respondent 's stated concern would at most have warranted returning
him to the job of press operator which he had previously held at the same
rate of pay that he received as leadman
33 Again I note in this connection that Respondent was put on notice 2
days after the discharges occurred that it might be called upon to defend
its actions . In these circumstances I find the inability of Phillips and
Chester to detail instances which necessarily occurred during the preced-
structed Phillips to straighten out the press department
but could not remember whether he told Phillips to tell
the employees he would discontinue making the parts if
there was no improvement.
Phillips was only slightly less general than Chester, and
testified that on some occasions he spoke to Conover
about parts that were sheared or punched wrong34 and
told Conover "to be more careful and be more cautious
and watch it more carefully." He testified that while
Conover was leadman they had both good and bad work
and that he both praised and criticized Conover and the
other employees for their work. However, that the
dischargees were never warned that improvement was
mandatory is clear from the following excerpt from
Chester's testimony:
Q. Had he [Phillips] reprimanded Mr. Woodruff
and Mr. Watson for their work prior to November
14?
A. I don't understand the word "reprimand."
Q. Had he spoken to them and told them they
were not doing good work or a good job?
A. It hasn't been my policy ever to ridicule a man.
I believe both of these fellows, at one time or
another, have been, oh, maybe showing some im-
provement.
The dischargees conceded that there were some dies
broken and some scrap run, but they disclaimed responsi-
bility for any unusual or excessive amounts, and the
evidence indicates that scrap and die breakage were en-
countered in the shop before Conover became leadman
and before the other dischargees were employed. Lacking
any specific evidence to show that the incidence was
materially greater during the month preceding the
discharges than at any time before or after, I credit the
testimony of the dischargees as to the quality of their
work, and I do not credit the unsupported generalizations
of Phillips and Chester as to the scrap and die breakage in
the plant. I conclude that these were not the true reasons
for clearing out the press department. I also conclude
from the above that the discharges were not motivated by
a desire to obtain more skilled help for the press depart-
ment.
The evidence also establishes that the cause for the
discharges did not flow from the performance of the
dischargees as individuals. Two of them, Swain and Wat-
son, of course, had no part in the breaking of the die,
which according to Phillips triggered the discharges, and
if Chester's version of the sequence of events were
adopted, there is simply no reason shown in the record for
precipitously selecting Watson for discharge at the close
of the first workday in the week. Although the claim is
made that Watson was a probationary employee, the only
affirmative evidence in the record, which I have credited,
establishes that Watson's normal probationary period
mg 5-week period fatal to their conclusionary testimony. Whether or not
Respondent kept records as to scrap , a matter which Phillips' testimony
left in some confusion , if the problem were sufficiently aggravated to
cause Respondent to discharge all the employees on the press department,
Phillips and Chester should have had knowledge independent of any
records of the quantity and nature of the scrap . Since the number of dies
involved was undoubtedly less than the quantities of materials and parts
passing through the shop, specific significant breakage of dies should have
been even more readily ascertainable
34 When asked if he had any specific recollection as to any specific jobs,
Phillips replied , "We had a few jobs that were scrapped and some broken
punches, broken dies."
HAHN, INC.
would have ended the week before his discharge. There
is no evidence to suggest that his probationary period was
extended or that it was indicated to him before his
discharge that he might not be retained.35 Particularly in
the light of the fact that Watson had previously worked 3
months for C & S, had received wage increases at the end
of each of the first 2 months of his employment, and was
rehired by Respondent at the rate at which he left C & S,
I find that the precipitate nature of his discharge more
than 30 days after his rehire absent any triggering incident
with which he was connected warrants a strong inference
that his individual performance furnished no cause for his
precipitate discharge.
In Swain's case, it is clear that he was a probationary
employee at the time of his discharge. However, as I have
found above, about a week before his discharge Swain
had been told that his work was satisfactory and that he
would be retained at the end of his probationary period.
The precipitate reversal as to Swain, in the circum-
stances, with no apparent cause in his conduct,36 also
warrants an inference that Swain's work furnished no
cause for his discharge.
As for Woodruff and Conover, who respectively
operated and set up the press in which the die broke, and
who according to Phillips were both held responsible for
it, the evidence also indicates that the breakage of the die
even as to them served only as a pretext. Whether or not
either or both were responsible for the breakage of the
die, it is conceded that no investigation was made to
determine the cause of or responsibility for the breakage
of the die before the decision to discharge them was
made.. Thus, although Phillips testified that he told
Conover and Woodruff that the die was either loose or
improperly set up, he did not check to see whether the die
was loose after it broke, and according to Chester, he told
Chester he did not know why the die had broken and had
not checked to see whether Conover had properly main-
tained it.37 Likewise although Chester expressed the
opinion that the die broke because the bolts holding it in
place had loosened, he did not check the bolts on the por-
tion of the die still in the press when he inspected it, and
Chester testified that he could not recall whether or not
he had inspected the die when he decided that Conover
and Swain should be discharged. Apart from the evidence
as to the breakage of the die, there is no other specific
evidence that the work of Conover or Woodruff was defi-
cient, and as to Conover the evidence is to the contrary.
In the light of the above, I have concluded that the
reasons assigned or suggested as cause for the discharges
were pretextous and that the inference is warranted that
the true cause of the discharges was the union activity of
the employees. Chester conceded that he was opposed to
the organization of the employees, and the discharges
33 Although Phillips testified generally that Watson stood around too
much and did not get his work done, no specific evidence was offered in
support of this testimony When asked how Watson came to be selected
for discharge with Woodruff, Phillips replied in generalities and then re-
lated an incident involving (Junior) Woodruff and not Watson I find that
Phillips ' generalized testimony is entitled to no weight in these circum-
stances In any event, if Watson's performance were unsatisfactory, it was
evidently not viewed as sufficient to cause his termination at the end of his
normal probationary period
36 Although Phillips testified that Swain's work had initially been all
right and then slacked off, no specifics were revealed to show on what this
conclusion was based, and again I give this testimony no credit
37 It is disputed in the record whether Conover's duties included
checking dies to make certain they were tight after presses were put in
495
were closely preceded in time by the commencement of
the organizing efforts at the shop and the conduct found
above to have violated Section 8(a)(1) of the Act. The
discharges included the instigator of the organizing cam-
paign, the employee who assisted him in soliciting the
others, and eliminated all the employees in the depart-
ment in which the organizing drive originated.
In addition, there is the matter of Phillips' discharge in-
terview with Conover and Swain According to Conover,
when asked whether they were being discharged because
of the Union, Phillips replied "yes, it is a bit, but I have
got to watch what I say too, fellows." According to
Swain, Phillips' reply was a more guarded statement that
the discharges might have something to do with the
Union and that he did not have the sole voice in the
matter. According to Phillips, he replied that the
discharges had nothing to do with the Union, and that he
did not care one or the other about the Union. It is not
disputed that immediately after raising the question as to
whether the discharges were caused by the Union,
Conover volunteered that nine employees signed
authorization cards, Phillips asked who had signed, and
Conover refused to tell him.38
I conclude that Swain's version is the most accurate of
the three. In Phillips' version, his reply was accompanied
by declarations of nonconcern over the union activities
which are not persuasive in the light of his question as to
the identity of the card signers, Respondent's admitted
opposition to the Union, and the violations of Section
8(a)(1) found herein. On cross-examination the vagueness
which accompanied much of Phillips' testimony entered
Phillips' answers to questions concerning the discussion
of the Union with Conover and Swain at this time. While
it is not entirely implausible that Conover would have
volunteered that nine employees had signed cards after
Phillips denied that the Union had anything to do with the
discharges and that he was not concerned about the
Union, it is certainly more plausible that Conover's state-
ment about the card signers followed some indication that
the Union was involved in the discharges, particularly in
view of Phillips' admitted question as to the identity of
the signers. Accordingly, I do not credit Phillips.39
As between Conover and Swain, I conclude that
Swain's quotation of Phillips' critical statement is more
accurate than Conover's. One in Conover's position
might well have inferred an admission from the evasive
reply attributed to Phillips by Swain, and it is more likely
that Conover's recollection would be colored by such an
inference than it is that one in Swain's position would
tend to recall the statement in terms weaker than those
actually used.
The question remains whether Swain's version sup-
ports an inference that the discharges wore discriminato-
operation However, although both Phillips and Chester were asked what
instructions were given to Conover, who had been on the job as leadman
for only a little over a month Phillips' response was so vague as to be in-
comprehensible and Chester who could not recall any specific conversa-
tion with Conover did not specify this duty among those which he be-
lieved habit would have caused him to mention
38 According to Phillips he did not know the identity of the employees
who had signed and did not care
39 In this connection, I do not consider it significant that when asked by
Watson on November 16 whether the real reason for his discharge was
the Union, Phillips replied negatively, particularly in view of the fact
Respondent received notice of the unfair labor practice charges on the
same day
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ry. Phillips, in this case, was not a mere conduit relaying
to Conover and Swain a decision to discharge made by
others. He was second in command in a small plant and
related by marriage as well as interest to Francis Chester.
He had in fact participated in the discussion with Chester
which resulted in the decision to discharge the two em-
ployees, and he was in a position to deny that the union
activities were involved in the decision, unless there was
reason for Phillips to believe otherwise. In these circum-
stances, I find that Phillips' evasive and equivocal reply
to Conover and Swain lends further support to the in-
ference that their discharges were caused by the union ac-
tivities.
In the light of the above, I conclude that the discharges
of Conover, Swain, Woodruff, and Watson violated Sec-
tion 8(a)(1) and (3) of the Act.
IV. THE OBJECTIONS AND CHALLENGES
In its objections to the representation election, Re-
spondent alleged that the Union engaged in a campaign of
intimidation, coercion, and threats among Respondent's
employees and made material misrepresentations involv-
ing campaign trickery designed to mislead Respondent's
employees. The Regional Director made no findings with
respect to the objections, finding that they could best be
on the basis of evidence developed at a hearing. At the
hearing Respondent introduced no evidence in support of
the objections. Accordingly, I will recommend that the
objections be overruled.
The four challenged ballots were those of Conover,
Swain, Watson, and Woodruff. As the Regional Director
found in his report, their eligibility turns solely upon the
determination of the issue raised in the complaint
proceeding as to their discharges. As I have found that
their discharges violated Section 8(a)(1) and (3) of the Act
and will recommend their reinstatement, I will also
recommend that the challenges to their ballots be over-
ruled, that their ballots be opened and counted, and that
an appropriate certification be issued depending upon the
outcome of the election.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, 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 obstruct-
ing commerce and the free flow thereof.
VI. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (3 ) of the Act, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discriminated against
employees by discharging Larry Watson, Wayne
Woodruff, Leo Conover, and Michael Swain on
November 14 and 15, 1966, 1 shall recommend that
Respondent be ordered to offer them immediate and full
reipstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges , and to make them whole for any loss
of earnings they may have suffered by reason of the dis-
crimination against them , by payment to each of them of
a sum of money equal to the amount he normally would
have earned as wages from the date of his discharge to the
date of the offer of reinstatement, less his net earnings, to
which shall be added interest at the rate of 6 percent per
annum, in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact and the en-
tire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent , Hahn , Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Oil, Chemical and Atomic Workers International
Union , AFL-CIO, Pekin Local 7-662 is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By interrogating employees with respect to the
union activities of their fellow employees, announcing its
intention to grant wage increases , and threatening em-
ployees with reprisal because of their union activities and
by discriminating in regard to the hire and tenure of em-
ployment of Larry Watson , Wayne Woodruff, Leo
Conover, and Michael Swain, thereby discouraging mem-
bership in the Union , as found above , the Respondent has
engaged in and is engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1)
and (3 ) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and pursuant to Section 10(c) of the
Act, I hereby recommend that Respondent , Hahn, Inc.,
Pekin , Illinois, its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Discouraging membership in Oil, Chemical and
Atomic Workers International Union, AFL-CIO, Pekin
Local 7-662, or any other labor organization , by dis-
criminating in regard to the hire and tenure of employees
or any term or condition of their employment.
(b) Coercively interrogating employees with respect
to employee union activities.
(c) Announcing its intention to grant wage increases
for the purpose of interfering with employee union activi-
ties.
(d) Threatening employees that its plant will be closed
if the employees choose to be represented by a union for
purposes of collective bargaining.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-organization, to form labor organizations , to join or
assist Oil , Chemical and Atomic Workers International
Union , AFL-CIO, Pekin Local 7-662, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in any other
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection or to refrain from
any or all such activities, except to the extent that such
rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employ,
ment in accordance with Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which is
HAHN, INC.
necessary to effectuate the policies of the Act:
(a) Offer Larry Watson, Wayne Woodruff, Leo
Conover, and Michael Swain immediate and full rein-
statement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges previously enjoyed and make them whole
for any loss they may have suffered by reason of the dis-
crimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify the above-named employees 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.
(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 other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Pekin, Illinois, place of business, copies
of the attached notice marked "Appendix. "411 Copies of
said notice, to be furnished by the Officer-in-Charge of
Subregion 38, after being duty signed by the Respond-
ent's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify said Officer-in-Charge, in writing, within 2
days from the receipt of this Decision, what step
Respondent has taken to comply herewith."
1 FURTHER RECOMMEND that the objections to the elec-
tion conducted in Case 38-RC-309 and the challenges to
the ballots cast therein by Larry Watson, Wayne
Woodruff, Leo Conover, and Michael Swain be overruled
and that the case be remanded to Officer-in-Charge for
Subregion 38 to open and count the challenged ballots,
issue a revised tally of ballots, and take such action
thereafter as is warranted by the results disclosed by the
revised tally
40 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Tnal 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 Ap-
peals 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 said Officer-in-Charge,
in writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
497
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL offer Larry Watson, Wayne Woodruff,
Leo Conover, and Michael Swain reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and we will make them whole for any
loss they may have suffered as a result of their
discharge.
WE WILL NOT discourage membership in Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, Pekin Local 7-662, or any other labor
organization by discriminatorily discharging and
refusing to reinstate any of our employees or by dis-
criminating in any other manner in regard to their
hire or tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT coercively interrogate our em-
ployees with respect to union activities.
WE WILL NOT announce our intention to grant
wage increases for the purpose of interfering with the
union activities of our employees.
WE WILL NOT threaten our employees that the
plant will be closed if they choose to be represented
by a union for purposes of collective bargaining.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights to self-organization, to form labor or-
ganizations, to join or assist Oil, Chemical and
Atomic Workers International Union, AFL-CIO,
Pekin Local 7-662, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment in accordance with Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon appli-
cation 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
HAHN, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Subregional Office, Citizens
Building, 4th Floor, 225 Main Street, Peoria, Illinois
61602, Telephone 309-673-9061.