Hardware Engineering Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1957

117 N.L.R.B. 896 (N.L.R.B. 1957)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or either of them as the representative or representatives of its employees,
unless and until certified as such representatives in accordance with the pro-
visions of Section 9 of the National Labor Relations Act.
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN &
HELPERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) (Title)
GENERAL TRucK DRIVERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS, LOCAL 270
OF THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) (Title)
Dated By --------------------
---------------------------
for
- --------
No-.- --2-70-MURRAY W. MILnsa, Trustee Local
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
AFL-CIO.
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Hardware Engineering Company, Inc. and Lillian R. Lower.
Case No. 13-CA-19-10. March 29, 1957
DECISION AND ORDER
On September 28, 1956, Trial Examiner Arthur Leff issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed time-
ly exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three- member
panel [Chairman Leedom and Members Murdock and Rodgers].
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 Interme-
diate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Despondent , Hardware Engineering
117 NLRB No. 134.
HARDWARE ENGINEERING COMPANY, INC. 897
Company, Inc., Garrett, Indiana, its officers, agents, successors , and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Electrical,
Radio & Machine Workers, Local 903, AFL-CIO, or any other labor
organization of its employees, by discriminating in regard to their
hire or tenure of employment or any term or condition of employ-
ment.
(b) By threats of reprisal, promises of benefit, or in any other man-
ner interfering with, restraining, or coercing its employees in the ex-
ercise of their right to self-organization, to form, join, or assist the
aforesaid labor organization, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Lillian R. Lower immediate and full reinstatement to
her former or substantially equivalent position without prejudice to
her seniority or other rights and privileges, and make her whole in the
manner set forth in the section entitled "The Remedy" of the Inter-
mediate Report.
(b) Preserve and make available to the Board or its agents upon re-
quest, 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 back pay due under
the terms of this Order.
(c) Post at its plant at Garrett, Indiana, copies of the notice at-
tached to the Intermediate Report marked "Appendix A."' Copies
of such notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being duly signed by an authorized repre-
sentative of the Respondent, be posted immediately upon receipt there-
of, and be maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
I This notice is hereby amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
423784-57-vol. 117-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed on February 1, 1955, by Lillian E. Lower against
Hardware Engineering Company, Inc., herein called the Respondent, the General
Counsel issued a complaint alleging that the Respondent had engaged in unfair labor
practices within the meaning of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. The complaint alleged in substance that the Respondent (1)
violated Section 8 (a) (1) and (3) of the Act by terminating Lillian Lower on or
about January 11, 1955, because of her union activities, and (2) further violated
Section 8 (a) (1) on various specified occasions from October 1954 through January
1955 by threats of reprisal and promises of benefit. The Respondent filed an answer
denying all unfair labor practice allegations. Prior to the hearing, the General
Counsel filed a motion to amend the complaint by correcting certain inadvertent
typographical errors. The motion was granted. The Respondent moved to dis-
miss or strike the complaint's allegations of independent 8 (a) (1), upon the as-
serted ground that such allegations were not specified in the charge and related to
occurrences preceding the complaint by more than 6 months. The Respondent's
motion was denied. See N. L. R. B. v. Kohler Co, 220 F. 2d 3 (C. A. 7); Radio
Officers' Union v. N. L. R. B., 347 U. S. 17, footnote 30, and cases therein cited.
Pursuant to notice, a hearing was held between July 17 and 19, 1956, at Garrett,
Indiana, before Arthur Leff, the duly designated Trial Examiner. The General
Counsel and the Respondent were represented at the hearing by counsel. All parties
were afforded full opportunity to examine and cross-examine witnesses, to introduce
evidence bearing on the issues, to argue orally upon the record and to file proposed
findings and conclusions. After the close of the hearing the General Counsel and
the Respondent filed briefs which have been considered. The General Counsel also
filed a motion to correct the transcript of the record in certain specified respects.
The motion is granted.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Hardware Engineering Company, Inc., an Indiana corporation with its office and
plant at Garrett, Indiana, is a manufacturer of stampings and other products. In
each of the fiscal years ending October 1, 1953, and October 1, 1954, the Respondents
manufactured, and shipped from its plant at Garrett, Indiana, directly to points out-
side the State of Indiana, finished products valued in excess of $50,000. The Re-
spondent does not dispute that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio & Machine Workers, Local 903, AFL-CIO,
herein called the Union, is a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
• A. Background
On August 24, 1953, the Board, after an election , certified the Union as the
collective-bargaining representative of the Respondent's production and maintenance
employees. The election was decided by a closely divided vote. The original tally
of ballots showed 8 in favor of the Union and 8 opposed, with 1 ballot challenged.
The ballot challenged was that of Gladys Klausing, a group leader in the Respondent's
paint, assembly, and shipping department, who the Respondent, contrary to the
Union's position, contended was a supervisory employee. The Company's chal-
lenge was overruled by the Board. Klausing's ballot when counted was found to be
in favor of the Union, resulting in a bare majority for the Union.
Lillian Lower, who is alleged in the complaint to have been subsequently dis-
criminatorily discharged, was one of the employees particularly active on behalf of
the Union in the conduct of its organizational campaign that led to the election.
Lower's activity did not escape the notice of the Respondent's management officials.
HARDWARE ENGINEERING COMPANY, INC. 899
Thus, on one occasion, as appears from Lower's credited testimony, E. L. Herbols-
heimer-then the Respondent's president, now deceased-interrogated her about
her solicitation activity, and, later, Bruce Herbolsheimer-then vice president, now
president- warned her that she would be discharged if she passed out any more union
cards on company property. Like statements were made by management officials
to Klausing, though at that time the Respondent had no rule against union solicitation.
Klausing testified credibly, and it is found, that on the day E. L. Herbolsheimer in-
terrogated Lower, he also spoke to her on the same subject. Herbolsheimer, after ex-
pressing his belief that Lower had been passing out cards on company time, added
that "he did not want any more cards being passed out or he would have [Lower]
discharged, or anybody that had anything to do with passing [out] cards. . . ... 1
During the organizational campaign, the Respondent, while refraining from any
general declarations to its employees of its views concerning the Union, nevertheless
did not entirely conceal its opposition to union organization.2 Following the final
announcement of the results of the election, Bruce Herbolsheimer gave vent to his
anger directed toward those employees who had supported the Union. He told
Klausing, whose vote had proved decisive, that he would have her out of the plant
by Christmas, and that he would also have everyone else out who had anything to
do with the Union 3
The advent of the Union brought about a cleavage among the employees into two
camps, one consisting of those who supported the Union, the other of those who
opposed it. The division led to friction between the two factions. The Respondent
blamed the Union for this condition. This is disclosed in part by the following occur-
rence concerning which Klausing testified credibly and without contradiction- Not
long after the Union was certified, Lower complained to her that Alfred Fields, a
leader of the antiunion faction, had willfully pushed some boxes upon her. Klausing
brought the incident to the attention of Bruce Herbolsheimer. Herbolsheimer sum-
moned Lower and Fields to his office. He told Lower, though she was not at fault,
that the incident was a manifestation of the friction that had been caused by bringing
a union into the plant, and admonished her that he wanted peace and harmony in
the shop. After Lower and Fields were sent back to work, Bruce Herbolsheimer
reiterated to Klausing that it was the "union business" that was causing friction, and
added that he was going to get rid of everyone who had anything to do with the
Union if it was the last thing he ever did.
The credited testimony of Mary Ann Herendeen also bears on this subject. In
the latter part of 1953 ^(as well as during a later period to which reference will
be made in a subsequent subsection of this report) Herendeen, an employee in
the plant and a neighbor of Roger Herbolsheimer, the Respondent's secretary-
,treasurer, rode regularly to and from work with Roger Herbolsheimer and his wife,
Armella, who was employed in the plant as a production employee' As appears
'Bruce Herbolsheimer, when called by the Respondent as its witness, denied the testi-
mony of Lower and Klausing, stating that he had never said that Lower would be dis-
charged it she passed out cards Earlier, however, as an adverse witness called by the
General Counsel, Bruce Herbolsheimer conceded that during the organizational period he
had warned Lower about passing out cards on company property. His later denial is
not credited.
2 Thus, employee Noah Kline testified credibly and without contradiction that during
the campaign Bruce Herbolsheimer told him that he did not want a union in the plant
' About a week after the certification, the Respondent presented Klausing with the
choice of either accepting a demotion to some other job, or else acknowledging her status
as a supervisor outside the bargaining unit and foregoing further activity on behalf of
the Union in which, as other evidence discloses, it then believed her to be a leader. After
protest and some hesitation, Klausing agreed to continue in her former position and to
assume the status of a supervisor, though it involved no actual change in duties or in
her rate of pay About 4 months later Klausing was laid off She was told at the time
that the Respondent was shutting down its plant for a week and that it would send for
her when work picked up Though it appears that the Respondent has continued its
operations since, including the operations of the department in which Klausing worked,
Klausing was never recalled. On January 25, 1954, Klausing filed a charge with the
Regional Office of the Board, alleging that she was terminated in reprisal for her union
activities. Klausing's charge was dismissed by the Regional Director, and, on appeal,
the Regional Director's ruling was sustained by the General Counsel.
4 In the representation proceeding, the Union sought to exclude Armella Herbolsheimer
from voting eligibility on the ground that her status as the wife of an officer and stock-
holder allied her interests with that of management, but the Board overruled the Union's
contention. It found that, as Armella was not herself a stockholder and performed
regular production work, she was entitled to cast a ballot.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Herendeen 's testimony, during these car rides the Union was a frequent
topic of conversation between her and Armella Herbolsheimer in the presence of
Roger. Armella, like her brother-in -law, Bruce, blamed the Union for the "trouble
and fighting" in the plant, and made frequent reference to Lower and Klausing as
the persons who had caused the "trouble" by 'bringing in the Union. With specific
reference to Lower and Klausing, Armella stated that they would be gotten rid of
as soon as possible. Roger Herbolsheimer remained silent, making no effort to
contradict his wife's remarks even when they purported to declare management's
intention with regard to Lower and Klausing.'
On December 4, 1954, more than 3 months after its certification , the Union
succeeded in obtaining a collective -bargaining contract for a term of 1 year. The
contract included a voluntary union dues checkoff provision for union members
who requested it. Lower was one of the employees who authorized the deduction
of union dues from her pay . It appears that after the contract was signed the
Respondent dealt in good faith with the Union in the administration of the con-
tract. Except for the discharge of Klausing , which occurred on January 11, 1954,
and which the General Counsel suggests may have been inspired by antiunion
motivation although the discharge itself is not an issue in this case , the General
Counsel makes no claim that the Respondent engaged in antiunion declarations or
behavior from the time of the signing of the contract until the fall of 1954, when
the term of the contract was about to expire.
In the fall of 1954, employees Alfred Fields and Laura Gayheart , who worked
in the same department as Lower and who were most ,prominently identified with
the antiunion faction in the plant, circulated for employee signatures a petition in
opposition to the Union. On the strength of that petition , which they presented to
the Respondent , the Respondent filed a decertification petition with the Board. A
hearing on this petition was held on November 4, 1954. A decertification election
was held on December 8, 1954, resulting in a vote of 13 to 5 against the Union.
On January 6, 1955, the Board formally decertified the Union as collective-bar-
gaining representative.
The specific unfair labor practice allegations of the complaint-to a consideration
of which we turn in the subsequent subsections of this report-are abased entirely
upon events that occurred while the decertification proceeding was pending and
shortly thereafter . As for the background events already reported, the General
Counsel concedes, as indeed he must in view of the limitations proviso of Section
10 (b) of the Act, that such events may not now be considered as independently
5 Roger Ierbolsheimer did not dispute that Herendeen rode regularly with him and his
wife during that and a later period . But he testified he could not recall "specifically"
any conversation between his wife and Herendeen in which the Union was mentioned,
explaining that he "didn ' t pay any attention to it , whatever they were talking about."
Armella Herbolsheimer denied that Herendeen was a regular rider with the Roger
Herbolsheimers ; she testified that Herendeen had only ridden with them on "a few" occa-
sions, but was evasive and indefinite when asked to state what she meant by "a few " She
also denied making the statements that Herendeen attributed to her . Armella Herbols-
heimer impressed me as less than fully candid Her denial that Ierendeen rode regularly
with the Herbolsheimers is not only implicitly refuted by her husband 's testimony, it is
also expressly contradicted by a number of witnesses , whom the General Counsel called
on rebuttal , and whose testimony on that point was not seriously challenged by the
Respondent . Herendeen , a disinterested witness , impressed me as a person scarcely likely
to fabricate a story out of whole cloth , as Armella Herbolsheimer would have it believed.
Though Herendeen was not an articulate witness, she left me with the feeling of one
carefully seeking to report the highlights of her conversations with Mrs Herbolsheimer,
according to her best recollection and without added embellishment . I have no reason to
doubt her veracity , and I credit her testimony over Armella Herbolsheimer 's denial. As
for Roger Herbolsheimer 's disclaimer that he paid any heed to his wife 's conversations
with Herendeen though he was the third member of the car pool-there were no others-I
find his testimony implausible Perhaps he might have closed his mind to other items of
conversation between the two in which he had no interest , but I do not think it likely
that he would have done so when the conversations turned to his own business , or to the
Union's relations to that business , matters about which he must have had a very real
interest Roger Herbolsheimer may have been entirely truthful in saying that he could
not recall at the time of the hearing the specific conversations to which Herendeen referred.
But I am satisfied that he was aware of them at the time they occurred
The additional question-whether Armella Herbolsheimer 's statements in the circum-
stances of this case are chargeable to the Respondent-is reserved for consideration in a
subsequent subsection of this report.
HARDWARE ENGINEERING COMPANY, INC. 901
supporting unfair labor practice findings. He takes the position, however-and
properly so-that such events are nevertheless both relevant and admissible for the
purpose of appraising .the character and quality of the complained-of conduct oc-
curring within the 6-month period, more particularly, as showing that in such
alleged conduct the Respondent was guided by an antiunion motivation. See,
e. g., N. L. R. B. v. Luzerne Hide & Tallow Co., 188 F. 2d 439 (C. A. 3),
cert. denied 342 U. S. 868; N. L. R. B. v. Ozark Dam Constructors, 203 F. 2d
139, 145-6 (C. A. 8); Banner Die Fixture Company, 109 NLRB 1401. -
B. Events upon which the unfair labor practice allegations of the complaint
are predicated
To support his position that the Respondent, after the decertification petition was
filed, engaged in a campaign of illegal interference, restraint, and coercion designed
to destroy union organization in ,the plant, the General Counsel introduced evidence
concerning the following events:
1. Mary Herendeen testified: For some time after she was first employed by the
Respondent in the summer of 1953, she rode regularly to and from work with
her neighbor, Roger Herbolsheimer, the Respondent's secretary and -treasurer, and
his wife, Armella. She discontinued riding with them later in 1,953 when she joined
the Union. In 'the fall of 1954, at about the time the decertification petition was
filed, Armella Herbolsheimer sought her out and asked her to resume riding with
the Herbolsheimers. Thereafter, Herendeen rode with them regularly for the next
2 months or so until December 1954, when her employment was terminated.6
During the car trips the Union was made a frequent topic of discussion, particularly
so as the date of the decertification election neared. Armella Herbolsheimer freely
expressed her opposition and hostility to the Union. Her husband, on the other
hand, maintained silence on that subject. But he never expressed disapproval of
what his wife was saying nor attempted in any way to contradict her even when
she purported, as she often did, to declare the position of management. In her
comments -to Herendeen, Armella disclosed a particular hostility toward Lillian
Lower, whose name frequently cropped up in the discussions about the Union. She
referred to Lower as an "agitator," blamed Lower as the one largely responsible for
the "trouble" in the plant, and-in the hearing of Roger and without contradiction
from him-stated that Lower would be "gotten rid of . . . as soon as possible
after the Union was out." Armella Herbolsheimer also spoke of reprisal action
that would be taken against other union supporters. On one occasion in October,
shortly after employee Richard Livergood had been made a union steward in the
plant, Armella Herbolsheimer said of him that he was a "union agitator," that he had
"caused trouble" at another plant where he had worked; that his taking over the
union stewardship was the ibiggest mistake he had made in his life, and that "Dick
would lose the job he had when 'the Union was out." Of William Landers, another
steward and the Union's vice president,? Armella Herbolsheimer stated similarly
that he would ibe gotten rid of as soon as the Union was out. Her declarations
concerning Livergood and Landers, like those concerning Lower, were made in
the hearing of her husband and without objection from him.
During the car rides (further from the testimony of Mary Herendeen) the subject
of wage raises was also discussed by Armella Herbolsheimer, prompted initially, it
appears, by Herendeen raising a question about her own chances of obtaining a raise.
In the presence of her husband, who still remained silent while his wife purported to
declare the Company's position, Armella Herbolsheimer stated that "we would like
to give raises to the deserving ones," but that "there could be no raises until after the
Union went out, because the Union would not allow it"; however, when the Union was
out, the Company "could keep who they pleased and give the raises as they pleased."
On a later occasion prior to the election, further according to Herendeen, Armella
Herbolsheimer approached her in the plant, this time outside the presence of Roger
Herbolsheimer, and, after saying something about the "fighting going on," continued:
I hope you girls will vote to put the Union out, as it is causing trouble and we just
didn't have that trouble before the union was in. We would like to give raises,
but no raises can be given according to the person's ability. It just has to be
9 According to Herendeen she was discharged at that time , according to the Respondent
she voluntarily quit This issue is unimportant
7 The Union represented other bargaining units besides the one at the Respondent's
plant Landers occupied the highest position in the Union among the Respondent's
employees
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
flat raises if we give any, and we can't give what we would like to and we can't
do what we would like so long as the Union is in . I hope you women will
vote . . . to have it thrown out.
Armella Herbolsheimer then added that if the Union remained in the conflicts would
continue and there would be no raises.
Concerning Herendeen's testimony, Roger Herbolsheimer testified, as he did with
respect to her account of the 1953 conversations, that he could not specifically recall
any conversations between his wife and Herendeen concerning the Union, because he
"didn't pay any attention to it, whatever they were talking about," and that he never
heard any conversation to the effect that there would be no raises until after the
Union went out. Armella Herbolsheimer, in addition to disputing, (contrary to the
credited testimony of other witnesses) that Herendeen rode with the Roger Herbols-
heimers, except rarely, denied that she had ever stated to Herendeen that Lower,
Landers, or any other employee would be discriminated against because of their
union activities. She did not, however, deny Herendeen's testimony concerning her
remarks about wage raises. On that subject she testified affirmatively that on one
occasion, which she fixed as in the summer of 1953, she did have a "conversation
with Mary Herendeen in the automobile to the effect that the Company could not give
any raises because of the Union, and could not give any raises until the Union was
out, or to some such effect." She explained while testifying, "Well I know that was.
the truth, because I had read the contract. I knew what was in the contract, and
we weren't able to give any raises at that time." 8 Actually, there was no contract in
existence in the summer of 1953, the contract not having been executed until Decem-
ber 1953. Moreover, there is nothing in the contract that imposes a restriction on
the granting of wage raises. With respect to wages and rates of pay the contract
simply provides for a 5-cent across-the-board increase effective during the week of
the signing of the contract, followed by a provision that "the parties will meet to
review all the job classifications with the purpose of eliminating any inequities that
may be agreed upon "
As indicated before, Mary Herendeen, a disinterested witness, left me with a greater
feeling of confidence in her veracity than did Armella Herbolsheimer whose testimony
in part was demonstrably inaccurate and who by her demeanor generally displayed
an aggressively partisan approach. To the extent that the testimony of the two is
in conflict, I credit Herendeen. While not questioning the truth of Roger Herbols-
heimer's testimony that he had no recollection at the time of the hearing of specific
conversations between his wife and Herendeen, I nevertheless think it implausible, for
reasons earlier indicated, that he was not aware of such conversations at the time they
occurred, and I find to the contrary.
2. Noah Kline, an employee at the time, testified credibly, and it is found, that
in the fall of 1954, he had a conversation with Bruce Herbolsheimer in which
Herbolsheimer declared his opposition to the Union, an attitude which Kline then
shared. In the course of that conversation, the subject of Lillian Lower's activity on
behalf of the Union came up, and Herbolsheimer then stated with reference to Lower
that "if he could, he would fire her." 9
3. Employee Floyd Foltz testified that about a month or two before the decertifica-
tion election, he asked Bruce Herbolsheimer what would happen if the Union stayed
in, and that Herbolsheimer replied, "Nothing, only the people that stayed by us will
be given work; as long as we can keep them going, we are going to try to keep them
employed." On cross-examination, Foltz testified that he understood Herbolsheimer
to mean that employees who supported the Company's position by voting against
the Union would not be discriminated against even if the Union won. Bruce Her-
bolsheimer's version of the conversation was entirely different. According to him,
8 The form of Armella Herbolsheimer's testimony is noteworthy. Even while testifying
she appears to have identified herself with management.
O Bruce Herbolsheimer, when called as an adverse witness by the General Counsel,
denied at first that he ever spoke to Kline about the Union, but later contradicted him-
self and in effect admitted that lie had had conversations with Kline in which the Union
was discussed When later called as a witness for the Respondent, after Kline had
testified, Herbolsheimer did not specifically advert to Kline's testimony, although he denied
generally making any statements to the effect that Lower would be discharged for union
activities. Herbolsheimer's overall testimony disclosed a tendency to cover up for the
Respondent. And, as later will more fully appear, his testimony in many material respects
was both contradictory and inconsistent with otherwise clearly established record facts
Kline, who has no interest in the case, was obviously a reluctant witness for the General
Counsel, and I have no reason to doubt his veracity I credit his testimony over that of
Bruce Herbolsheimer.
HARDWARE ENGINEERING COMPANY, INC. - 903
Foltz, because of rumors then circulating that the Company was going out of business,
inquired of him as to future of the Company. The answer he gave, according
to his version, was that although the Company could not guarantee work, it intended
to keep its existing work force employed as long as there was work to be done. I
find it unnecessary to resolve this conflict. The General Counsel called Foltz prin-
cipally to support the allegation of the complaint that the Respondent offered em-
ployees economic benefits conditioned upon their voting against the Union. But
even if Foltz's version is credited, I do not think his testimony, read as a whole, sup-
ports with sufficient clarity the finding urged by the General Counsel.
4. On January 11, 1955, 5 days after the Union was decertified, the Respondent
laid off Lillian Lower and Richard Livergood, both active union proponents, and has
not since recalled either of them.10 Lower and Livergood, who appear to have been
the only employees laid off at that time, were together notified of their layoff by
Foreman Frank Byanski. Livergood' s testimonial account of what was said to them
at the time is as follows:
Well, it was quitting time. We were all lined up at the clock prior to the quit-
ting bell, and Mr. Byanski came out of the front office, and he called Mrs. Lower
and I out of line. . . He said . stood there for several moments. He
didn't say anything. And then he told us .. . he said, "I am going to have to
do something now that I didn't like to do; and I want you two people to know that
it is none of my doing, but," he said, "It is them in there;" and he indicated
where the front office was.
Then he said, "I am going to have to let you two people go tonight."
And one of us . I think it was Lillian . . . said, "How come us? There
is people here with less seniority than we."
And he said, "Well," he says, "I want you to know that it is none of my doing,
but," he said, "They are doing it. It is none of my doing whatsoever."
She said, "Was it on account of the Union?"
And he nodded his head in the affirmative and pointed toward the office .. .
the front office with his thumb.
Lillian asked him about getting the separation report. She thought she would
have to have a separation report to draw compensation.
He said he would try to get her one. Then she asked about references . . .
well first she asked how long it would be . . . how long that he thought we
would be laid off. And he said he didn't.know.
He said, "I think you people better look for another job, because I don't
think you will ever be called back."
And then she asked for a separation report, and she asked for references
and he told her that as far as he was concerned he would refer either one of
us to anyone for a job, but he didn't know . . . he couldn't speak for manage-
ment, because he didn't think they would give it to us.
So near as I can recall at the present time, that is about the gist of the
conversation.
Lillian Lower's testimony as to this incident corroborates that of Livergood in
material respects, with this addition: Her account shows that before she inquired
of Byanski as to whether her union activity did not lie at the root of the action taken,
Byanski stated that he was laying them both off because of lack of work. Byanski
was not called as a witness. Livergood's and Lower's testimony of what occurred
at the time stands on the record undenied, and is credited."
Effective the week after the release of Lower and Livergood, the Respondent
granted a wage increase (5 cents to some and 10 cents to others) to all employees
but three. One of them (De Paolo) had been recently hired and another (Gerald
Smith) was hired during the very week in which the Respondent laid off Livergood
and Lower, assertedly for lack of work. The third employee who failed to get a
raise was William Landers, the Union's vice president and 1 of its 3 stewards at
the plant.1' Of the still active union supporters then left in the Respondent's
ii The complaint alleges that Lower was discriminatorily discharged No similar allega-
tion is made with regard to Livergood, but, according to the General Counsel, only because
Livergood did not file a charge.
u At the time of the hearing, Byanski was no longer in the Respondent's employ. It
appears , however, that he had left the Company, in the words of Bruce IIerbolsheimer,
"under agreeable circumstances," and that his whereabouts were then known to the
Respondent . The Respondent admittedly made no effort to subpena him as a witness.
12 Less than a month later, Landers was discharged, according to the Respondent's
records, for tardiness and absenteeism occurring mainly during 1954
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employ, the only one who received a raise was Georgia Quinonez, a member of
the Union's bargaining committee and the Union's observer at the election.13
C. Conclusions regarding interference , restraint, and coercion
Apart from Lower's alleged discriminatory discharge-an issue separately con-
sidered in the succeeding subsection of this report-the General Counsel asserts
that the Respondent independently violated Section 8 (a) (1) of the Act by, (1)
the threats of reprisal regarding Lower, Livergood, and Landers made during
the predecertification period by Armella Herbolsheimer to Herendeen in the presence
of and with the tacit acquiescence of Roger Herbolsheimer; 14 (2) the statements
made by Armella Herbolsheimer to Herendeen implying that raises would be given
employees if the Union was voted out; (3) Byanski's indication to Livergood and
Lower on January 11, 1955, that they were being separated because of their union
membership or activities; and (4) Bruce Herbolsheimer's assurances to Floyd
Foltz in December 1954, regarding his continued employment, which, the General
Counsel would have it, was made dependent upon his voting against the Union.
The last item may be quickly disposed of. As indicated above, Foltz' testimony,
though believed, when read as a whole does not unequivocally support the finding
the General Counsel would base on it. It is at least as reasonably open to the
construction that the company president was assuring Foltz that employees who
voted against the Union would not suffer discrimination even if the Union won.
Under that construction the remarks attributed by Foltz to Bruce Herbolsheimer may
not be regarded as coercive.
The remaining items stand in a different posture. Armella Herbolsheimer's re-
marks to Herendeen to the effect that the Company planned to get rid of Lower, Liver-
good, and Landers, made in a context implying that this would be because of their
union activities, were clearly coercive within the meaning of Section 8 (a) (1), if
properly chargeable to the Respondent. The same is true of Byanski's indication to
Lower and Livergood at the time of their layoff, that the Company's action was
related to their union activities-and this is so whether or not the reason so indicated
was in truth the reason for their separation at the time. Armella Herbolsheimer's re-
marks to Herendeen, implying that no raises would be given employees as long as
the Union remained in, but that employees could expect wage increases if the Union
was voted out, clearly contained a promise of benefit conditioned upon the ouster of
the Union, and-again if these remarks are chargeable to the Respondent-were
equally violative of Section 8 (a) (1).
The Respondent does not dispute the validity of the propositions just stated if the
foundation testimony is credited, as it has been above. But the Respondent argues
earnestly that neither Armella Herbolsheimer's nor Byanski's remarks may be
attributed to it, because, it says, Armella Herbolsheimer was not herself a supervisory
employee or management official but a member of the voting unit, so found by the
Board, and Byanski, though a supervisor, was not shown by higher management
to have been authorized to state or admit that the layoff of the two employees
was union -connected , his declaration to that effect in response to Lower's inquiry,
according to the Respondent , having been no more than an expression of personal
opinion not binding in it. On the facts of this case, I am unable to agree.
13 Record testimony reflects that 4 of the 5 employees who voted against union de-
certification were Lower, Livergood, Jacqueline Smith, and Landers, all of whom testified
as to their vote. The record does not disclose the name of the fifth, though it is a fair
assumption that it was Quinonez As noted, Lower and Livergood were terminated about
a week after the decertification, and Landers about a month later. Jacqueline Smith,
who left on maternity leave shortly before the election, never was recalled to work,. nor
did she ask to be. The facts recited here are mentioned largely because of the emphasis
the Respondent places on its retention of Quinonez as a fact claimed to show the absence
of discriminatory motivation in the discharge of Lower.
14 Although contending that President Bruce Herbolsheimer's statement to employee
Kline in the fall of 1954, to the effect that Lower was working hard for the Union and
he would fire her if he could, was likewise violative of Section 8 (a) (1), the General
Counsel in his brief asks that no independent finding of 8 (a) (1) be supported on that
incident, as it was not specifically alleged in the complaint. The General Counsel urges,
nevertheless, that it be considered as bearing on the motivation for Lower's discharge,
and also as reflecting that Armella Herbolsheimer's statements to Herendeen concerning
Lower, not only purported to, but in fact did, comport with the views of management
at that time
HARDWARE ENGINEERING COMPANY, INC. 905
With regard to Armella Herbolsheimer , it is quite true, as the Respondent con-
tends, that her relationship to Roger Herbolsheimer does not alone constitute a suffi-
cient basis upon which to hold the Respondent liable for her statements . 15 Yet,
Armella's relationship to Roger is a factor that may not be completely ignored.
For where such relationship exists, that factor coupled with other circumstances,
which in the case of strangers might not be enough to prove agency , may tend
to establish agency in the case of husband and wife.15 In this case , of course, there
is more than just the family relationship . In making her remarks to Herendeen,
Armella Herbolsheimer did not purport to speak simply as an employee expressing
her individual views and predictions . Rather , she represented herself as voicing
the attitude and plans of management . And Roger Herbolsheimer , who, as found
above, was then present ( except on one occasion ) though aware of the coercive
impact of what his wife was saying , chose to remain silent , without making any
effort to contradict her or to repudiate her assumed authority to declare the position
of management . His silence in these circumstances reasonably justified Herendeen
in identifying Armella Herbolsheimer as a spokesman in fact for management and
in regarding what she said as carrying the approval and authority of management.
And the fact that Armella was the wife of a tacitly acquiescing officer reinforced
the inference Herendeen might reasonably draw that Armella's comments on what
the Company planned stemmed from reliable and authoritative sources. By thus
making it appear that Armella was in fact authorized to express management's
views, and tacitly ratifying what she said , the Respondent , through Bruce Herbols-
heimer, must , under well settled principles of law, be viewed to have constituted
Armella Herbolsheimer as its agent , and must be held accountable for her conduct.17
What has just been said is similarly true with regard to the promises of benefit,
though the finding to that effect rests in part upon a statement made by Armella
Herbolsheimer on one occasion outside the presence of her husband. The statements
on that occasion took place after the conversations in the car in which Roger Herbols-
heimer had already reasonably led Herendeen to believe that what his wife purported
to declare on behalf of management was in fact being said with management's
authorization . It related , moreover, to the same subject-wages and union activity-
as to which , as already found, Roger Herbolsheimer had by that time conferred ap-
parent authority upon his wife to speak for management . Under these circum-
stances , the rule is applicable that "acquiescence by the principal in a series of acts
by the agent indicates authorization to perform similar acts in the future ." 1, Re-
statement of Agency, section 43 ^(2). See also, N . L. R. B. v. Mississippi Products,
Inc., 213 F. 2d 670 (C. A. 5).
On the facts here, I am unable to hold with the Respondent that to find Armella
Herbolsheimer an agent in this case would be to repudiate the Board 's holding in the
representation proceeding that Armella Herbolsheimer was a production, and not a
managerial or supervisory , employee. Unlike the representation case, the issue here
is not whether Armella Herbolsheimer , by reason of her relationship to highly placed
company officials , was a management representative per se The finding of agency
in this case does not rest on that relationship alone-that is considered here only
as a buttressing factor-but upon a specific factual situation showing that the Re-
spondent held out Armella Herbolsheimer as having apparent authority to speak for
it on the subject of its relationship with the Union. The Respondent was free to
make anyone its agent for that purpose-even a stranger 18-and the fact that the
same person may be an employee in another context is not in itself a defense. The
Respondent makes the added argument that for Roger Herbolsheimer to have at-
tempted to silence his wife, an eligible voter, from expressing her views concerning
the Union , would have been for him to have interfered with his wife's exercise of her
own statutory employee rights , thereby subjecting the Respondent to a possible un-
fair labor practice charge. With this, also, I cannot agree . The vice in the Re-
spondent's conduct was not that it allowed Armella to express her personal opinion
as an employee , but that it acquiesced in her assumed authority to act as a spokes-
man for management in making declarations coercive as to employees . It was not
>v See, e g, Blue Mountain Hills, 56 NLRB 1666; Clearfield Cheese Co , 106 NLRB 417.
16 I, Restatement of Agency, section 22b
17 See, e g, N L R B v Taylor - Colquitt, 140 F 2d 92 , 93 (C A. 4 ) ; Service Metal
Industries , 96 NLRB 10 , 18, enfd. 201 F. 2d 48 ( C A 6) , L & H Shirt Co., 84 NLRB 248,
252, 273-274 and authorities there cited; Colonial Shirt Corporation, 96 NLRB 711, 714;
E B. Law and Son, 92 NLRB 826 , 828-829, enfd 192 F 2d 236 ( C A 10) , Rupp
Equipment Coanpairrj , 112 NLRB 1315 , 1317 Colonial Fashions , Incorporated, 110
NLRB 1197 , 1198-1199 See also , I, Restatement of Agency, sections 43c and 94.
181, Restatement of Agency , section 94 (b).
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary for the Respondent to go so far as to curb Armella from speaking al-
together on the subject of the Union. The circumstances were such, however, as to
impose a duty upon it, if it would free itself from liability for her statements, at least
effectively to disavow and repudiate her assumed authority to speak for management.
As for Byanski, it is not controlling that the specific conduct on his part found to
be violative of Section 8 (a) (1) may not have been expressly authorized or sub-
sequently ratified by higher management. Under Section 2 (13) of the Act, an
employer's responsibility for the acts of an agent is not necessarily controlled bythat
consideration. At the time in question, Byanski was an admitted supervisory em-
ployee for whose acts and conduct an employer is normally responsible. In effect-
ing the termination of Lower and Livergood, he was acting upon the instructions
of the Respondent and within the area of his delegated authority. What he then
said or indicated to those employees about their layoff was directly related to the
action he had been authorized to take. The employees had no reason to suppose
that in responding to Lower's inquiry as to the real reason for the action, Byanski was
merely expressing in the capacity of a friend of Lower-as the Respondent would have
it-his own personal surmise of what motivated the Respondent, unrelated to
anything he had learned in his official capacity. They had every reason to sup-
pose the contrary.
Whether or not Byanski declared the truth is, of course, not controlling in the
issue of whether Section 8 (a) (1) was violated, for it is not the truth of such a
declaration but its coercive impact upon employees that is material , and Byanski's
graphic declaration was clearly coercive in character. However, on the issue of
whether Lower was discriminatorily discharged, it is important to determine whether
Byanski's declaration may properly be considered as evidence of its truth. The Re-
spondent concedes that if Byanski was acting within the scope of his authority, his
statement may in law be regarded as an admission by the Respondent, constituting
evidence of the truth of its content. But the Respondent disputes that such authority
maybe found on the facts of the record. I disagree. Here we do not have a situation,
such as in N. L. R. B. v. Tex-O-Kan Flour Mills Co., 122 F. 2d 433, 439 (C. A. 5),
upon which the Respondent relies, where a foreman expressed to an employee that he
thought the discharge of another employee, with whose discharge he had nothing to
do, was because of a union. In this case the record shows that Byanski, who was
admittedly authorized to lay off Lower, had previously conferred with higher manage-
ment officials about the action he was to take and the reason for it. His statement ex-
plaining that action, made at the time the action was undertaken, may not therefore
be disregarded as simply a hearsay expression of personal opinion. The explanatory
statement, no less than the action to which it directly related, must be viewed as
falling within the delegated scope of Byanski's authority. The testimony of what
he said and did is therefore admissible as showing conduct imputable to the Respond-
ent, competent not only as evidence of coercion, but as evidence, in the nature of
an admission, bearing on the true reason motivating the Respondent's layoff ac-
tion. 19
It is concluded and found that by reason of the threats of reprisal and promises
of benefit adverted to above, the Respondent interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed by Section 7 of the Act, and
thereby violated Section 8 (a) (1).
D. The discriminatory discharge of Lillian Lower
Lillian Lower was employed by the Respondent on March 2, 1951, starting as a
drill press operator. About 3 months later, she was transferred to the painting,
assembly, and shipping department, where she remained until her separation from
the Respondent's employ on January 11, 1955. The employees in that department
then engaged in work involving the finishing, final assembly, and shipping of ad-
justable chairs manufactured by the Respondent for the account of one of its principal
customers, Adjusto Equipment Company. The work operations consisted mainly
of washing and cleaning parts, painting and lacquering them, drilling holes for
fittings, final assembly, and packing, labeling, and shipping. During the period of
her employment, Lower performed at one time or another substantially all the
work operations in the department, except for certain labeling work and heavy
loading and unloading work. The employees in the department had no separate job
'a See Drico Industrial Corporation , 115 NLRB 931 , and cases there cited See also,
N. L. R. B. v. Todd Co., Inc, 173 F . 2d 705, 708 (C. A 2).
HARDWARE ENGINEERING COMPANY, INC. 907
classifications and, though usually regularly assigned to certain specific work, were
often called upon to work or help out on other operations as occasion required.
At the beginning, Lower principally did washing and cleaning work, an unskilled
-operation. Later, and during the last several years of her employment, she was
assigned primarily to drilling and final assembly work, a more skilled operation.
She continued during this period, however, to do washing and cleaning work, to act
-as a spray painter's helper (also unskilled work) at times, particularly during the
absence of the regular spray painter, to do the spray painting and lacquering work
herself, and to assist in packing and shipping work. Immediately preceding her
separation, the department had five employees regularly assigned to it-Alfred
Fields, whose main work was packing and shipping, but who, on occasion, also
performed some of the assembly operations; Laura Gayheart, whose principal work
was spray painting; Jewel Handshoe, who was most usually assigned to the unskilled
work of assisting the spray painter; May Rolf, who did the unskilled washing and
,drilling work; and Lillian Lower, who worked mainly but not exclusively on drilling
and assembly. Lower, Rolf, and Handshoe were all paid $1.10 an hour, Laura
Gayheart received 5 cents more, and Fields 35 cents more. Of the five in the de-
partment, Lower was senior in point of service.20 Yet, she was the only one laid
off in the department on January 11, 1955, although the Respondent normally ob-
served the practice and policy of laying off employees in accordance with their
seniority when the skills and ability of competing employees to perform work were
equal.21 About a month after Lower's layoff-on February 12, 1955, to be exact-
the Respondent laid off Rolf and Handshoe for lack of work. Handshoe was there-
after recalled in April and Rolf in June.22 Lower has never been recalled. There
is some evidence indicating that after Lower's layoff, employees attached to other
departments were assigned on occasions to the painting, assembly, and shipping
department to help out with work in that department. The record reflects, how-
ever, that no new employees were thereafter hired to perform the precise work that
Lower had been doing, although numerous employees have since been hired to per-
form other work in other departments.
Of the five employees stationed in Lower's department immediately before her
layoff, Lower was the only one who was a member of the Union and the only one
who had signed a union dues checkoff authorization. Reference has already been
made to Lower's activities on behalf of the Union during the Union's original organi-
zational campaign, to the Respondent's knowledge of such activities, and to Bruce
Herbolsheimer's expressed determination after the election to get rid eventually of
,everyone in the plant who had anything to do with the Union. In the period pre-
-ceding the decertification election, Lower was one of several union members who
visited the homes of fellow employees to urge them to support the Union in the
election.23 The Respondent's antagonism to Lower's activity is disclosed by findings
earlier made, particularly Roger Herbolsheimer's comment to employee Kline in the
course of a conversation touching on Lower's union activity that he would fire Lower
if he could, and Armella Herbolsheimer's remarks to Herendeen, made with the
tacit acquiescence and approval of Roger Herbolsheimer, indicating an intention to
get rid of Lower, as well as other "union agitators," once the Union was defeated
in the election.
As has been found above, the Respondent did get rid of Lower 5 days after the
Union was decertified. The official reason given by Byanski was that Lower, along
with Livergood, was being laid off for lack of work. However, Byanski did not
deny-on the contrary, he nodded his affirmance to-Lower's accusation that the
real reason was one related to union activity. At the same time, Byanski made it
quite clear that there was little likelihood that Lower and Livergood would ever be
called back, thus disclosing, it is found, that the action taken, though styled a lay-
off, was in fact a discharge.
20 Gayheart's seniority date was April 3, 1951 • Fields', July 5, 1951: Rolf's, August 24,
1953 . and Handshoe's, November 22. 1953
31 At the hearing, the Respondent made no claim that Lower had less skill and ability
than Rolf and Handshoe It did claim however. that Lower was less skilled and able
than Gayheait and Fields in the particular work they were doing, a claim which it
substantiated to now satisfaction
22 Handshoe. after her recall worked for a period of 2 weeks and then was again laid
off for lack of work Rolf. following her recall worked until September 10, 1955, before
ibeing again laid off for lack of work
13 Quinonez and Landers were others who actively campaigned for the Union in that way.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notwithstanding Byanski's declaration, which the Respondent says was un-
authorized, the Respondent now disputes that Lower's separation had anything to do
with the Union or with her activities on its behalf. It insists that she was simply
a casualty of a legitimate economic layoff necessitated by bona fide economic con-
siderations. With that, the General Counsel joins issue. He questions the Re-
spondent's assertion that there was business need at that time for a layoff in the
department where Lower was employed. And he says that even if he is wrong in
this, Lower would not have been selected for layoff at that particular time were it
not for unlawfully discriminatory motives.
We consider first the question of whether there was economic justification for a
layoff at that particular time.
In a sworn statement, verified by Bruce Herbolsheimer on February 8, 1955, the
Respondent submitted to the Board's Regional Office the following explanation for
the layoff:
Since December 15, approximately, the backlog of orders for this chair started
to dwindle and at that same time new methods and machinery were installed
which forced us to reduce the overall employment in this assembly department.
About the middle of January our customer whom we manufacture this chair for
requested that we start to take inventory on their parts since our contract with
them calls for them to furnish all materials from the lock washers to the carton.
Due to this inventory which required a lot of heavy lifting and work not suit-
able for a woman, we further had no need for Mrs. Lower's services.
Bruce Herbolsheimer's testimony,at the hearing followed only in part the explana-
tion he had given the Regional Office. Thus, Herbolsheimer adhered to his earlier
sworn statement that a dwindling of Adjusto work accounted in part for the layoff
decision But Herbolsheimer at the hearing attempted to buttress that explanation by
asserting that prior to the layoff the Adjusto Company, through its representative,
Robert Johnson, had affirmatively recommended that such action be taken in order to
reduce operating costs in the department. At another point of his testimony Her-
bolsheimer added to this another and somewhat inconsistent reason, that the Re-
spondent had been informed prior to the layoff that Adjusto was about to discontinue
its account with the Respondent. In the respects just noted, however, Herbols-
heimer's testimony was effectively repudiated by disinterested witnesses called by
the General Counsel. Johnson testified convincingly that it was not his function to
make, and that he never in fact made, any such recommendation to the Respondent.
Rex Dawson, Adjusto's president, testified credibly that although he did speak to the
Respondent about canceling the account, that matter was not first broached until
more than a month after Lower's separation.
Thus, too, Herbolsheimer adhered to his earlier sworn statement that new methods
and machinery contributed to the reduction-in-force decision. But Herbolsheimer's
elaboration of this proved less than convincing Herbolsheimer specifically identified
the new equipment as consisting of, first, a drill jig, used in the work performed by
Lower, that marked out drilling positions which formerly had to be determined by
hand measurement, and, secondly, a stapling machine that expedited the packing op-
eration performed by Fields. Other testimony by credible and disinterested wit-
nesses, including Johnson, clearly establishes, however, that Herbolsheimer's refer-
ence to the innovation of drill jigs was a product of his imagination, that such jigs
had, in fact, been used in assembling operations in the department for years past.
There is no dispute that a new stapling machine was introduced at that time, but the
impact of that introduction appears to have been exaggerated by Herbolsheimer, for
the record shows that it effected a savings, at most, of approximately 1 man-hour a
day in packing.
As for the second major reason given in Bruce Herbolsheimer's prehearing sworn
statement-the taking of an inventory-Herbolsheimer himself virtually conceded
at the hearing that the assignment of that reason was spurious. When asked, as an
adverse witness called by the General Counsel, to state the Respondent's reasons for
the layoff, Herbolsheimer did not, at first, advert to the inventory taking. Later,
when his attention was directed to this matter, Herbolsheimer expressed uncertainty
as to whether any inventory was taken in January. He further conceded that the
taking of the inventory of Adjusto parts was performed by Adjusto employees, and
also that Lower, on past inventory takings, had not been required to participate in it.
HARDWARE ENGINEERING COMPANY, INC. 909
Finally; after some evasion, Herbolsheimer unequivocally admitted that the taking of
the- inventory had nothing to do, with the Respondent's decision to lay off Lower.24
The fact that the Respondent thus chose to support its position in part upon reasons
that turned out to be unfounded; exaggerated, or spurious, serves to render suspect
the legitimacy of its claim that a reduction in force in the department was then re-
quired for lawful business reasons. But the fact remains that the Respondent's rec-
ords do show that about this time there was a falling off of shipments for the Ad-
justo account.25 Though there is evidence indicating that the decline during this
period was simply a, normally seasonal one, it is, not for me to say that the Respond-
ent was not justified in reducing the complement of its employees for that reason,
simply because it may not have done so. in the past or because it then had a reason-
able expectation that the volume of work would again pick up. Moreover, I regard
it as significant that the Respondent did not replace Lower after she was let go, and
found it possible thereafter to operate the department with a reduced complement
of regular employees Under all circumstances, 1 am unprepared to find, as urged
by the General Counsel, that no layoff was necessary on January 11, 1955, and that
none would have occurred except for discriminatory motivation.
That carries us, then, to the next question: Accepting the Respondent's assertion
that a reduction of force was required for 'legitimate business reasons at that time,
was its choice of Lower as the person to be laid off nevertheless motivated by dis-
criminatory considerations?
To support its contention that the selection of Lower was entirely unrelated to her
union activity, the Respondent advanced' a variety of shifting and, in some instances,
inconsistent explanations. Thus:
1. As noted above, Bruce Herbolsheimer-who, according to his testimony, made
the decision to lay off Lower-prior to the hearing gave the Board a sworn statement
in which Lower's selection was explained solely on the ground that she was unable
to perform heavy lifting incidental to inventory taking. But Herbolsheimer aban-
doned that reason at the hearing, confessing that it had nothing to do with the selec-
tion of Lower.
2'. While testifying as an adverse witness for the General Counsel, Bruce Her-
bolsheimer, at several points of his testimony, stated or suggested that the selection
of Lower was based upon a recommendation made by Robert Johnson, an efficiency
expert employed by Adjusto. In that respect his testimony was variable for, while
he indicated at certain points that Johnson had named Lower specifically, at another
he indicated that Johnson suggested the employee whose job it was to assemble
chairs, and at still others, that Johnson merely recommended that some employee
in the department be laid off, without identifying anyone in particular. However,
Johnson, a disinterested witness, testified positively that he never made any such
recommendation. Thereafter, the "recommendation" ceased to play a part in the
Respondent's defense.
3. Later, as an adverse witness, Bruce Herbolsheimer added as a further con-
sideration for the Respondent's selection of Lower, despite her seniority and the
admitted policy of the Company to follow seniority where skill and ability were
equal, the past work record of Lower. Herbolsheimer made no claim that Lower
was less able or skilled in the performance of work in the department than were
Rolf and Handshoe, although he did assert that she was less skilled or able than
Gayheart or Fields. The past work record to which he referred, it turned out,
had nothing to do with her job performance, but related to minor altercations that
had occurred in- the past between her and' other employees, such as an argument
24 Following is Herbolsheimer's final testimony on that point
TRIAL EXAMINER: What connection did it (the inventory taking] have to her
layoff's
The WITNESS • Possibly none, other than the fact that they might have used other
help
t x r m s x e
TRIAL EXAMINER Do I understand you correctly to say that possibly the taking
of the inventory had no connection with a decision to lay off Mrs. Lower' Is
that right I
The WITNESS No, there is no connection with that
25 The Respondent's records reflect that the dollar volume in December 1954 was $5 075 ;
in January 1955, $4,171, in February, $3,281 , in March, $3,818; in April, $3,727, in
May, $4,625; in June, $5,339; in July, $5,319, in August, $6,043; in September, $1,601
Thereafter, the account was discontinued.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with one employee who had accused Lower of leaving a toilet door open, and
an argument Lower once had with Fields when she had accused him of pushing
boxes on her.
Herbolsheimer's testimony on this subject was generally vague, evasive, and even
contradictory. All the incidents to which he referred, when he did become specific,
occurred months and even years before the layoff, seem in the main to have been
trivial in nature, and never appear to have been made an object for specific reprimand,
except on the occasion in 1953 when Herbolsheimer told Lower, after she had
accused Fields of pushing boxes on her, that he wanted peace and harmony restored
to the department. Finally, after many pages of confusing testimony on this point,
Herbolsheimer, who had himself introduced Lower's "past work record" as a con-
sideration leading to her selection, changed course and testified that this had nothing
to do with the determination to lay off Lower 26
4. After abandoning, at least temporarily, the position just discussed, Bruce
Herbolsheimer sought to explain Lower's selection on an entirely different basis.
Lower's particular job, he testified, became unnecessary because new equipment,
specifically a stapling machine, had been introduced into the department and the
departmental operations were generally rearranged. Consideration was given to
transferring Lower, as the senior employee, to one of the other jobs in the depart-
ment. But Lower was not as qualified as Fields and Gayheart for the particular
work they were doing. With regard to Rolf and Handshoe who, as found above,
performed admittedly unskilled work that Lower had done in the past, Herbolsheimer
explained that it was then known that their jobs would continue for but a short
period and that
It is the policy of the company where those people have specific jobs, to let
them continue in the event that we know that eventually there is going to
be a layoff, instead of breaking somebody else in the job and letting them
complete the job.
The Respondent then knew, Herbolsheimer testified further, that the jobs of Rolf
and Handshoe would be short-lived, because Dawson, the president of Adjusto,
had already notified the Respondent that he was "either going to buy the plant out,
or he was going to move out."
This last explanation-and the one now almost entirely relied upon by the
Respondent in its brief-leaves much to be desired. The record is clear that the
work Lower had been doing did not become unnecessary; it still had to be done.
The introduction of the stapling machine was unrelated to the drilling and assembling
operation to which Lower was principally assigned; it simply expedited the packing
operation. Lower worked in a department in which no job was particularly skilled,
in which some jobs were wholly unskilled. Lower, along with at least some of
the others, knew how to perform every job, and had been expected in the past to
fill in whenever and wherever needed. It may well be that the introduction of time-
saving improvements in the department, coupled with a falling off of work, made
it advisable for the Respondent to redistribute work assignments so as to allow the
department to get along with one employee less. And it is not for me to say that
in the exercise of business judgement it was wrong for the Respondent to assign
to Fields, who was left with more free time, some of the work Lower had been
doing. But this did not require the Respondent to depart from its normal seniority
policy, for the Respondent at the same time could just as easily have distributed
to Lower some of the work previously performed by Rolf or Handshoe, for example,
in which she was equally skilled and experienced. Indeed, if the real motivating con-
sideration was one of department efficiency, it would have been more logical for
the Respondent to have retained Lower rather than Handshoe or Rolf, for Lower
was fully experienced in the work they were doing and, in addition, she, unlike
them, was experienced in the drilling operations. If, in fact, the Respondent had
a policy of not breaking in senior employees for jobs being performed by junior
Herbolsheimer testified :
The WITNESS' Maybe I am trying to point out her past work record. That had
nothing to do with Mrs. Lower's layoff.
TRIAL EXAMINER : If it had nothing to do with it, why are you mentioning it in
the proceeding?
The WITNESS : I thought it was brought up.
TRIAL EXAMINER : Well, the only one that brought it up was you, originally.
What I want to know: Did that influence your determination?
The WITNESS : No, it did not.
HARDWARE ENGINEERING COMPANY, INC. 911
employees whom it expected soon to lay off, that policy clearly had no application
to this situation. For, as has been repeatedly noted, Lower was already fully ex-
perienced in the job operations of Rolf and Handshoe, let alone Gayheart, and
would have needed no breaking in. Nor do I find convincing Herbolsheimer's
testimony that he knew at that time that Rolf and Handshoe would soon be laid
off. Herbolsheimer says he knew this because of advice he had received from
Adjusto that it was about to withdraw its account. But, as has already been found,
Herbolsheimer's testimony in that respect was flatly contradicted at the hearing
by the credited testimony of Adjusto's president, Dawson. The fact that Handshoe
and Rolf were subsequently laid off-though, unlike Lower, later recalled-proves
little. More than a month elapsed between Lower's layoff and theirs. Considering
particularly Herbolsheimer's belated presentation of this position, after others had
been advanced and withdrawn, the circumstances more reasonably suggest that
Herbolsheimer evolved this explanation by a process of hindsight reasoning to a
conclusion of what might have been.27
5. Nor did Bruce Herbolsheimer stop with the explanation last discussed. Later
in the hearing, after that explanation had been subjected to some attack, Herbols-
heimer reverted to the explanation that Lower's "past work record" (i. e., com-
plaints by employees, all of whom, it turned out, were members of the antiunion
faction) was an important consideration in his decision to lay off Lower. In
doing so, Herbolsheimer ignored completely that he had already once unequivocally
disavowed that as a reason for his action. But the contradiction is one that cannot
here be ignored in assessing his credibility or the validity of the reason given.28
6. Still later in the hearing, during his third trip to the witness stand, Herbolsheimer
came forward with a seemingly brandnew explanation, that Lower, during her em-
ployment, had violated certain company rules-a rule against fighting on company
premises, a rule against using abusive language to fellow employees, and a rule
against restricting production. The alleged violations of such rules were based upon
testimony concerning employee complaints, all dating back a considerable period of
time. They were substantially the same complaints to which Herbolsheimer had
previously referred while advancing the position that Lower was chosen because
of her "past work record." But earlier in his testimony he, himself, had disavowed
that as a reason for the layoff. Moreover, though the alleged rules violations, if
they occurred, were dischargeable offenses under company policy, admittedly no
disciplinary action had ever been taken against Lower, or even considered, on that
account. And Herbolsheimer's assurances at the hearing, that the Respondent
would have no objection to the recall of Lower if it had "work suitable for her,"
is scarcely consistent with a conclusion that the Respondent considered her an
unfit employee for that or any other reason.29
For the reasons indicated above, I am unpersuaded that the Respondent's decision
to select Lower, out of seniority, was substantially activated by any of the varied
considerations which Bruce Herbolsheimer advanced at one time or another. More-
over, the very fact that Herbolsheimer found it thus necessary repeatedly to shift
ground not only tends to discredit each of the contradictory reasons advanced, but
also serves to indicate that the Respondent must have been intent upon covering up
an unlawful reason, thereby itself adding support to an inference that the true
reason was a discriminatory one.30
Of course, disbelief of the reasons advanced by the Respondent does not itself
make out a violation. The burden is on the General Counsel to establish dis-
criminatory motive, not on the Respondent to disprove it. But here, the General
Counsel has more than amply met that burden. The record, to highlight the more
significant considerations, clearly establishes the following: Lower, the senior em-
ployee in the department, was alone selected for layoff, though her skill and ability
were equal or greater than that of at least two other employees in the department.
Her selection represented a departure from the Respondent's admitted policy of
following seniority where skill and ability were equal. The Respondent has failed
satisfactorily to explain that departure on a lawful basis. On the other hand, it
In this connection, I regard it as most significant that Herbolsheimer's sworn state-
ment to the Board, dated February 8, 1955, which preceded the layoff of Rolf and
Handshoe, made no reference to the explanation that has just been considered
28 Significantly, the Respondent in its brief places no reliance on this explanation, but
leans most heavily on the fourth explanation discussed above.
29 The Respondent's brief makes no reference to the alleged rules violations as a con-
sideration entering into the layoff decision
30 See N. L R. B. v. International Furniture Co., 199 F. 2d 648, 650 (C. A. 5).
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears that Lower was known to the Respondent as the Union 's only supporter in
the department . The Respondent was opposed to the Union , and resented Lower's
activities on its behalf . Not long before the layoff, the president of the Respondent
and the wife of another officer, with the tacit acquiescence of her husband, had
expressed a desire and intent to get rid of Lower because of her union activities.
Armella Herbolsheimer had predicted that Lower would be discharged soon after
the Union was decertified . The action against Lower was in fact taken within 5
days after decertification . These circumstances are in themselves sufficient to spell
out a solid inference of discrimination . But in this case there is even more-in
the form of direct evidence rarely attainable in cases of this kind . Uncontradicted
testimony shows that at the time of her separation , Byanski, the supervisor who
effected the separation , in effect admitted to Lower that she was being discharged
because of her union activities . Just as the circumstantial evidence supports the
truth of Byanski 's declaration , so, too, does Byanski 's declaration confirm the validity
of the inference of discrimination that the record otherwise supports.31
On the record as a whole , I reject as not credible the Respondent 's assertion
that Lower was selected for layoff for nondiscriminatory reasons. I find that she
was, in fact , discharged on January 11, 1955, and conclude .that she would not have
been separated at that time but for her union activities . I further find and conclude
that by discharging Lillian Lower on January 11, 1955, and thereafter refusing to
reinstate her, the Respondent discriminated in regard to her hire and tenure of
employment , thereby discouraging membership in the Union , and interfering with,
restraining , and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section 1, above, have
a close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that the Respondent be ordered to cease and desist therefrom, and
take certain affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of Lillian R. Lower, I shall recommend that the Respondent
offer her immediate and full reinstatement to her former or substantially equivalent
position 32 without prejudice to her seniority or other rights and privileges, and make
her whole for any loss of pay suffered as a result of the discrimination against her, by
payment to her of a sum of money equal to the amount she would have earned from
the date of her discriminatory discharge to the date of the offer of reinstatement less
net earnings 33 to be computed on a quarterly basis in the manner established by the
Board in F . W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in any one
particular quarter shall have no effect upon the back -pay liability for any other such
31 In reaching this conclusion . I have not overlooked two factors particularly stressed
by the Respondent at oral argument and in its brief One is that Georgia Quinonez,
who activities on behalf of the Union were at least as great as Lower ' s, was retained in
the Respondent 's employ While this is a relevant consideration , I deem it Insufficient in
the light of all the record circumstances to offset the other convincing evidence pointing
to discrimination in Lower ' s case See N L R B v W. C Nabors Company, 196 F 2d
272, 276 (C A 5), cert denied 344 U S 865 The other factor is that Lower , in apply-
ing for unemployment compensation shortly after her discharge , stated' as the reason for her
unemployment , "Lack of work " An employee applying for unemployment compensation
is scarcely to be blamed for stating the official reason given hei for her unemployment,
whether or not she believes that to be a pretext Certainly that fact cannot now operate
as an estoppel against her present claim of discrimination The determination of whether
or not there was discrimination in fact to one to be made by the Board, not the employee
See Reliance Clay Products Company . 105 NLRB 13 5, 151.
32 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB 827
33 Crossett Lumber Company , 8 NLRB 440 , 447-498 , Republic Steel Corporation v
N L R B , 311U 8 7
HARDWARE ENGINEERING 'COMPANY, INC. '913
period:' It will also be'recommended that the Respondent" preserve and make avail-
able to the Board upon request; payroll and other records to facilitate the checking
of back pay due. '
As the unfair labor-practices committed by the Respondent were of a character strik-
ing-at-the-roots of employees' rights safeguarded by the Act, and disclose a propensity
on the part of the Respondent to continue, although not necessarily by the same means,
to defeat self-organization of its employees, it will also be recommended that the
Respondent cease and desist from infringing in any manner upon the employee rights
'guaranteed in Section 7 of the Act. _ -
Upon the basis of the foregoing findings of fact, and upon the -entire record in'the
case, I make the following: - "
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio & 'Machine Workers, Local 903,
AFL-CIO, is a•labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and'tenure of employment of Lillian R.
Lower, thereby discouraging membership in the Union, the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed by Section .7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES .
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that: _
WE WILL NOT discourage membership in International Union of Electrical,
Radio & Machine Workers, Local 903 -AFL-CIO, or any other labor organiza-
tion, by discriminating in regard to the hire or tenure of employment or any
term or condition of employment of any of our employees.
-WE WILL NOT by threats of reprisal, promises of benefit, or in any other
manner, interfere with, restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations, to join the aforesaid labor
organization or any labor organization, to bargain collectively through representa-
tives of their own'choosing, and to engage in 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 right may be affected by an
agreement requiring membership in a labor organization as -a condition of
employment, as authorized in Section 8 (a) (3) of the Act
WE WILL offer Lillian R. Lower immediate and full reinstatement to her
former or a substantially sirmlar-position without' prejudice to her seniority and
other rights and privileges and make her whole for any loss of pay suffered as a
result of the discrimination against her.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except as that right may be affected by an
agreement requiring membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to
the hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any labor
organization.
HARDWARE ENGINEERING COMPANY, INC.,
Employer.
Dated------------------- By--------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
423784-57--vol. 117-59