Heath International, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1972

196 N.L.R.B. 318 (N.L.R.B. 1972)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heath International , Inc. and Local 614, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Cases 7-CA-8337 and
7-RC-10272
April 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND KENNEDY
On April 27, 1971, Trial Examiner James V. Con-
stantine issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had not engaged in
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety. He further recommended that the challenges
to ballots cast in Case 7-RC-10272 be sustained and
that these ballots not be opened and counted in ascer-
taining the results of the election. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's
Decision, and a supporting brief. The Respondent
filed cross-exceptions to certain portions of the Deci-
sion, a supporting brief, and a brief in opposition to
the General Counsel's exceptions.
Thereafter, on August 18, 1971, the National Labor
Relations Board issued its Order Reopening the Rec-
ord and Remanding Proceeding to Regional Director
in which the Board found merit in the General
Counsel's exceptions to the Trial Examiner's failure to
find that the evidence warrants an inference that the
layoffs were motivated by considerations relating to
the employees' participation in union activities. Con-
sequently, the Board was of the view the Respondent
should have been permitted to introduce additional
evidence relevant to its defense against the allega-
tions. Accordingly, the Board directed that a further
hearing be held for the purpose of permitting Respon-
dent to introduce certain evidence relevant to its de-
fense which was excluded at the hearing, and that
upon the conclusion of the reopened hearing the Trial
Examiner prepare a Trial Examiner's Supplemental
Decision. Pursuant to a notice issued by the Regional
Director, a further hearing was held where all parties
appeared and were afforded full opportunity to lit-
igate the subject of the remand.
On November 12, 1971, the Trial Examiner issued
his Supplemental Decision finding that Respondent's
conduct in laying off the employees violated Section
8(a)(1) and (3) of the Act and recommending that
their challenged ballots be overruled and that such
ballots be opened and counted. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's
Supplemental Decision and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Decision and Supplemental Deci-
sion, which are attached hereto, the exceptions and
briefs, and the entire record in this proceeding and
hereby adopts the findings, conclusions, and rec-
ommendations in the Trial Examiner's Supplemental
Decision for reasons stated herein.
The complaint alleged that employees Gary Fred-
erick, Henry Kolasinski, Jr., and Dennis Parrot were
laid off because of their activities on behalf of the
Union, in violation of Section 8(a)(3) and (1) of the
Act.
The credited evidence at the first hearing shows
that union activity commenced among Respondent's
parts department employees in September 19701 Her-
bert Horning, Respondent's sales division operations
manager, testified that sometime before the layoffs,
probably during September, he heard the employees
were "talking about the union and talking about hav-
ing meetings and so forth." On one occasion during
that month, employee Raska, in the presence of Su-
pervisor Don Koehn stated to Frederick, "I hear that
you and Dennis [Parrot] have got the union coming
in." Thereupon, Frederick told Koehn that Raska was
starting union rumors. Koehn replied, "yes, we al-
ready know about it in the office."
On about October 13, Parrot informed Frederick
that he (Parrot) and Kolasinski were attending a un-
ion organizing meeting on the following day and in-
vited Frederick to attend. Frederick did so and at the
meeting all three signed union authorization cards.
On Friday, October 23, the day after Respondent's
regular payday, Frederick and Kolasinski were called
into the office and informed by Parts Manager Micoff
that they and Parrot were being laid off. Frederick
inquired "why particularly us three," and pointed out
that "we are above [in seniority] other people who had
been there only some thirty days." When he again
asked why the three had been chosen, Micoff replied,
according to Frederick's credited testimony, "because
of a reduction in forces; your work records are not
involved. It would be so much easier if they were
involved." The record reveals, however, that some-
time thereafter personnel from other departments
were transferred into the parts department to perform
the work of the laid-off employees.
On the following day, the trio met with Horning.
Parrot, for the group asked, "why us three ... were
Dates are 1970 unless stated otherwise
196 NLRB No. 42
HEATH INTERNATIONAL, INC. 319
laid off." Horning stated it was "due to a cut back,"
and added that he understood their work records were
involved. When Frederick protested that he and Ko-
lasinski were "the two top pickers, and its in black and
white," Horning stated he "didn't care whether it was
in black and white or not." As the meeting terminat-
ed, Horning asked, "Let me ask you three fellows this
question. Do you consider yourselves instigators?"
In his original decision, the Trial Examiner recom-
mended that the complaint be dismissed. In so doing,
he relied, in large part, on the absence of direct evi-
dence that Respondent displayed union animus and
the minimal amount of union activity.
We did not agree . Unlike the Trial Examiner we
viewed the evidence, when considered in totality, as
presenting a prima facie case to support the allegations
of the complaint.
It is well established that direct evidence of discrim-
inatory motivation is not necessary to support a find-
ing of discrimination. Such intent may be inferred
from the record as a whole. The record herein, fairly
construed, permits such a finding. Thus Koehn's
statement to Frederick and Horning's admission of
knowledge of union activity, in view of the small num-
ber of employees in the unit,' warrant a finding that
Respondent was aware of the laid-off employees' ac-
tivities. Nor could we agree with the Trial Examiner
that Horning's question to these employees on the day
after their termination, if they considered themselves
"instigators ," is insufficient to warrant a finding that
union considerations were involved in the decision to
lay off these employees. Thus, the record reveals the
question was posed during a conversation in which
Horning had, in effect, stated that even good work
records by the employees would not save their jobs.
Additionally, when Frederick mentioned the subject
of seniority, Horning merely stated he would investi-
gate the matter. The record shows that although sen-
iority is not determinative, it is a factor to be
considered in layoffs. In our view, it is inconceivable
that someone in high management like Horning
would, after a corporate decision to lay off certain
employees, still have to investigate the matter of sen-
iority. In such circumstances, use of the term "instiga-
tors" could only mean that Respondent not only was
aware that the employees were "instigators" for the
Union, but also that Respondent entertained hostility
with respect to such union activity.
Against this background, the additional factors sur-
rounding the layoffs take on added significance.
Thus, the record reveals that during the time in ques-
tion Respondent employed 15 individuals in the parts
department, 3 of whom were temporary employees.
Nevertheless, the three employees chosen for layoff
2 There were 12 to 15 employees in the unit.
were higher in seniority than the other regular em-
ployees in the unit. And, they were replaced shortly
thereafter by employees from other departments. Fur-
ther evidencing discrimination is the fact that the lay-
offs occurred not only shortly after the employees
attended a union meeting, but during the peak season
in the parts department.
We also consider of significance the fact that the
layoffs occurred the day after a payday. In this con-
nection the evidence shows that Parrot was on vaca-
tion at the time in question and was informed by
telegram. In our view, the haste with which Respon-
dent acted is strongly indicative of a discriminatory
motive.
On these facts, we are satisfied that the record es-
tablishes a prima facie case of unlawful discrimination
against Frederick, Parrot, and Kolasinski which im-
posed upon the Respondent the duty of going forward
with evidence giving an adequate explanation for the
layoffs. In this regard, at the initial hearing, Respon-
dent came forward with evidence of economic reasons
for the layoffs. The Trial Examiner, however, did not
consider the economic evidence presented' and ex-
cluded certain additional evidence regarding the fi-
nancial reasons for a corporate cutback, the
departmental layoffs, and testimony regarding a pro-
posed new billing system which, according to Respon-
dent, once established, would have in any event
required a reduction in forces. The Trial Examiner
also excluded evidence bearing on the job perfor-
mance of the three employees, which, according to
Respondent, occasioned their selection for layoff.
At the reopened hearing, Respondent presented ad-
ditional evidence to support its contention that eco-
nomic considerations justified a personnel reduction.
It also sought to show that Frederick, Parrot, and
Kolasinski were selected for layoff because of poor
department and work habits.
In his Supplemental Decision, the Trial Examiner
found that a decline in business justified a reduction
in the overall work force. Nevertheless, he concluded
that the reasons asserted for the selection of these
particular employees did not withstand scrutiny and
that they, in fact, had been selected because of their
union activities. We agree.
According to Respondent, some of the factors lead-
ing to Frederick's layoff were his tardiness, absences,
poor production, and unfavorable comparison with
the other employees in general. Frederick's conduct,
however, took place over a long period of time and
according to the credited testimony he never drew a
warning from Respondent. Furthermore, Frederick
3 The Trial Examiner found that in view of his "disposition of the case it
becomes unnecessary to determine whether Respondent's defense that the
layoffs were dictated by economic considerations is meritorious . Hence I do
not reach the question of whether its defense is well taken "
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credibly testified that when he was late or absent he
was excused by management. Frederick also credibly
testified that shortly before his discharge his work
performance was praised by his foreman.
Regarding Kolasinski, Respondent contended that
he also was a poor worker and that Foreman Koehn
at one point recommended his dismissal because of
his shortcomings. Additionally, Respondent showed
that Kolasinski was once suspended from work for
theft of company property.
Kolasinski, however, according to his credited testi-
mony, was never warned about his shortcomings, and
nothing ever came of Koehn's recommendation that
he be fired. Regarding the theft, the Trial Examiner
viewed Respondent's reinstatement of Kolasinski af-
ter his suspension as condonation.
Respondent attributed to Parrot basically the same
poor work habits as he attributed to Kolasinski and
Frederick. Additionally, Respondent related that ear-
lier Parrot was prosecuted for a crime and that he had
not been suspended, laid off, or discharged because of
a request to that effect by the police. Regarding the
former, the Trial Examiner found that Parrot had
never been warned that his work habits might cost
him his job. Regarding the latter, he found that the
police did not exercise any coercion, duress, or undue
influence to have Respondent keep Parrot in its em-
ploy-
For these reasons, and the fact that the credited
evidence shows that at the time of layoff their work
records were not involved, we agree with the Trial
Examiner's conclusions that the explanations asserted
for the layoffs are pretextual and played no part in the
selection of these employees. Accordingly, as we are
of the view that the evidence introduced by Respon-
dent at both hearings fell short of dissipating the unfa-
vorable inferences to be drawn from the General
Counsel's evidence, the Trial Examiner correctly
found that Respondent's discriminatory selection of
Henry Kolasinski, Jr., Dennis Parrot, and Gary Fred-
erick for layoff violated Section 8(a)(1) and (3) of the
Act. As we agree with the Trial Examiner's finding
that these employees were unlawfully laid off, we fur-
ther agree that the challenges to the ballots cast by
them in Case 7-RC-10272 should be overruled and
their ballots be opened and counted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner's Supplemental Decision
and hereby orders that Respondent, Heath Interna-
tional, Inc., Richmond, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
It is hereby directed that in Case 7-RC-10272 the
Regional Director for Region 7 shall, pursuant to the
Rules and Regulations of the Board, within 10 days
of this Direction open and count the ballots of Gary
Frederick, Henry Kolasinski and Dennis Parrot, and
thereafter prepare and cause to be served on the par-
ties a revised tally of ballots, including therein the
count of said ballots.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is a consol-
idated case consisting of an unfair labor practice case and
a representation case. In the unfair labor practice case, 7-
CA-8337 , a charge was filed on November 20, 1970, against
Heath International, Inc., herein called Respondent or the
Company, by Local 614, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, herein referred to as Local 614. Upon such charge
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7 (Detroit,
Michigan), issued a complaint on January 12, 1971, in sub-
stance alleging that Respondent committed unfair labor
practices violating Section 8(a)(1) and (3), affecting com-
merce as defined in Section 2(6) and (7), of the National
Labor Relations Act, herein called the Act. Respondent has
answered admitting some facts but denying that it commit-
ted any of the unfair labor practices alleged in the com-
plaint.
In the representation case, 7-RC-10272, Local 614 filed
with the Board a petition to be certified as the representative
of the Company's employees in a specified unit. At the
election held thereafter on January 4, 1971, the ballots of
Gary Frederick, Henry Kolasinski, Jr., and Dennis Parrot
were challenged on the ground that they were laid off prior
to the eligibility date and that they had no reasonable ex-
pectanty of being recalled. On January 12, 1971, the Re-
gional Director directed a hearing on the challenges to said
ballots and also ordered that the complaint case be consol-
idated with the challenges in the representation case for
purposes of hearing, ruling, and decision by a Trial Examin-
er. Said Regional Director further ordered that, following
such decision by the Trial Examiner, the representation case
"be transferred to an [sic] continued before the Board in
Washington, D.C."
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me, at Detroit, Michigan, on
March 3 and 4, 1971. All parties were represented at and
participated in the trial, and had full opportunity to adduce
evidence , examine and cross-examine witnesses , file briefs,
and present oral argument. The General Counsel argued
orally briefly. A brief has been received from the Respon-
dent.
Upon the entire record in this consolidated case, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACr
I AS TO JURISDICTION
Respondent, a Delaware corporation, is engaged at Rich-
mond, Michigan, in selling and distributing recreational
vehicles and parts. During the fiscal year ending March 30,
HEATH INTERNATIONAL, INC. 321
1970, Respondent sold and distributed products valued in
excess of $500,000, of which products valued in excess of
$50,000 were shipped directly to points outside the State of
Michigan . I find that Respondent is an employer within the
meaning of Section 2(2), and is en aged in commerce within
the meaning of Section 2(6) and of the Act , and that it
will effectuate the purposes of the Act to assert jurisdiction
over this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
Local 614 is, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III THE ISSUES
A. In the unfair labor practice case the issue is whether
Respondent unlawfully laid off employees Gary Frederick,
Henry Kolasinski, Jr., and Dennis Parrot for engaging in
activities on behalf of and sympathies for Local 614.
B. In the representation case the issue is whether employ-
ees Gary Frederick, Henry Kolasinski, Jr., and Dennis Par-
rot were unlawfully laid off so that, notwithstanding their
termination prior to the election, they remained employees
and, consequently, their ballots should be counted in de-
termining the outcome of the election.
IV. THE UNFAIR LABOR PRACTICES
It is desirable at this point to mention a ruling made at
the trial because in my opinion it involves an important
question of procedure on which the Board should expressly
pass. Evidence from both the General Counsel and the Re-
spondent at the trial disclosed that the employees in ques-
tion were informed that they were laid off because of a
decline in business. However, at the trial for the first time
Respondent sought to show that other reasons, none of
which was ever mentioned to the employees, also entered
into the decisions to lay them off. Such evidence was exclud-
ed upon the General Counsel's objection. This was because
such uncommunicated considerations or judgments influ-
encing Respondent's action could not be controverted by
the General Counsel in the absence of knowledge thereof at
least by the time the pleadings in the case had been complet-
ed. Cf. N.L.R.B. v. Pacific Gamble Robinson Co., 438 F.2d
112 (C.A. 9); Westchester Plastics v. N.L.R.B., 401 F.2d 903,
908 (C.A. 9); Miami Rivet Co., 147 NLRB 470, 483-484.
A. General Counsel's Evidence
Respondent's warehouse located at Richmond, Michi-
gan, is the only facility involved in this case.
1. James Micoff's testimony
According to James Micoff, Sr., Respondent's parts man-
ager, Gary Frederick, Henry Kolasinski, Jr., and Dennis
Parrot were "laid off indefinitely" as employees in said
warehouse. Micoff participated in the decision to dismiss
them and "it was [his] election" that these particular three
were selected for this purpose. However, Micoff conferred
with Operations Manager Herbert Horning before making
a decision. Horning had previously directed Micoff to lay
off three employees. The layoff occurred on October 23,
1970. Prior thereto 15 individuals were employed in the
warehouse parts department, three of whom were tempo-
rary employees. Since then Respondent has employed 12
regular employees in said department. See attachment to
General Counsel's Exhibit 2.
Respondent's employees are paid on a Thursday . October
23, 1970, was a Friday . However, Micoff did not inform
these three employees that they would be laid off until said
October 23 , at or about 3 p.m., when he spoke to Kolasinski
and Frederick . At the time Parrot was on vacation, so that
he was notified of his layoff by telegram on that date.
In laying off Kolasmski and Frederick , Micoff told them
that "due to a reduction in personnel they were being indefi-
nitely laid off," and that "it was a reduction in sales' which
necessitated such action . Micoff further testified that "noth-
ing else was said" by him at this "exit interview"; he did not
tell them they were subject to recall.
According to Micoff said layoffs were dictated by "a
cutback in orders from our dealers ." Micoff first learned of
such cutback about October 20 , 1970 . Nevertheless, "there
was some overtime" in the warehouse "as of the 24th of
October , 1970,"1 and business was such in October that
warehouse employees were encouraged to shorten their
lunch hour by a half hour and come in an hour before the
regular starting time of 8 a .m. in the morning in order to
increase production . In addition , warehouse employees of-
ten worked on Saturdays and also after the quitting time of
4:30 p .m. following October 23 . See General Counsel's Ex-
hibit 7 for the hours worked by parts department employees
between October 25, 1970 , and February 25, 1971.
Micoff further testified that the snowmobile industry, in
which Respondent is engaged , experiences its busiest season
from late October to the following February. He also men-
tioned that after October 23 the parts department (where the
three above laid-off employees worked) took on three new
employees , who were transferred from other divisions of
Respondent , to perform the work of said three laid-off em-
ployees . Such transfers, in his opinion, are "a common oc-
currence" to retain "specially trained personnel" who would
otherwise be laid off . He characterized the transaction as a
"loan" of such employees to the parts department.
Although business conditions caused Respondent to lay
off three employees , Micoff selected the three in question
for the following reasons, none of which was communicated
to said employees when they were laid off:
(a) Kolasinski's adaptability, quality and quantity of
work , knowledge of job functions, and dependability were
"not ggood." He was "not a good employee." However, Mi-
coff did not check off such an item as "incompetence" when
he signed Respondent 's records (a "Termination of Em-
ployment" document) as to why Kolasinski was terminated,
but rather Micoff marked "personnel reduction" as the rea-
son for such layoff . See General Counsel 's Exhibit 3. How-
ever, in this same document Micoff appraised Kolasinski as
an employee, rating him "poor" in some respects and "fair"
in others.
(b) Frederick's "Termination of Employment" record is
identical to that of Kolasinski . See General Counsel's Ex-
hibit 4 . However , his "Employment Records" merely notes
that he was "laid off." See Respondent's Exhibit 1.
(c) Parrot's "Termination of Employment " record is also
identical to that of Kolasinski . See General Counsel's Ex-
hibit 5.
Nevertheless , although Micoff picked these three to be
laid off they held higher seniority than the other nine regular
employees in the parts department . Seniority is a factor and
it is considered, but it is not determinative. Micoff did not
know that said three engaged in union activity; in fact,
according to him , he was not aware of union activity at the
warehouse until about December 1970.
1 All dates referred to hereafter are for the year 1970 except as otherwise
indicated
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Robert Defibaugh 's testimony
Defibaugh , an employee in Respondent 's warehouse
parts department , averred that in October 1970 said depart-
ment was working overtime , "but not steady overtime."
However , he further declared that since then he was work-
in more overtime than before . He also corroborated Mi-
cof as to working an extra half hour at lunch , an additional
hour before the 8 a.m. start in gg time , working on Saturdays,
and working after the usual 4 : 30 p.m. quitting time.
Further , Defibaugh asserted that the busy season extends
from October to the end of the following February, and that
during the said season in 1969 no layoffs were effected in
his department . In addition , according to Defibaugh, Fred-
erick, Parrot , and Kolasinski discussed the Union with him
before they were laid off . Although Defibaugh attended
union meetings , he was unable to say whether said three
employees were present thereat . If material , Defibaugh also
testified that he received a bonus for 1969, being told the
reason therefor was "we had a good year."
3. The testimony of Gary Frederick
Frederick, employed by Respondent since September
1969, is one of the parts department employees laid off on
October 23, a Friday. At or about 4:30 p.m. on that day he
and employee Kolasinski were called into the office and
were informed by Micoff, the parts manager, that, "due to
a reduction in forces," they and Parrot were being "indefi-
nitely laid off." Frederick had not previously been warned
of this. When Frederick inquired "why particularly us
three," Micoff replied that he "didn't really know." This
caused Frederick to point out that "we were above [in sen-
iority] other people who had been there only some thirty
days."
Continuing this conversation, Kolasinski and Frederick
asked if there were any chance of being called back, to
which Micoff answered, "there was always that chance."
When Frederick repeated his question as to why the three
of them were let go, Micoff again answered, "because of a
reduction in forces; your work records are not involved. It
would be so much easier if they were involved."
The next day, October 24, Frederick, Parrot, and Kola-
sinski together went to Respondent's office, where they
spoke to Herbert Horning, its operations manager. Upon
Parrot's asking Homing `why us three ... were laid off,"
the latter insisted "it was due to a cut back ," and stated that
he "was going to show the figures." Nevertheless he never
exhibited the figures to them.
Continuing, Homing emphasized that "all he knew was
that three people had to go, and he didn't care who," and
added that he "understood [their] work records were in-
volved." Although Frederick protested that he and Kolasin-
ski "are the two top pickers, and it's in black and white,"
Homing replied that he "didn't care whether it was in black
and white or not." Then, when Frederick "brought up the
subject of seniority," Homing promised to "conduct an
investigation in the matter." But they "never heard any
more from him" thereafter.
As they left Homing asked them, "Let me ask you three
fellows this question. to you consider yourselves instiga-
tors? ... Would you take a transfer into another division?"
Although they replied in the affirmative that they would
accept a transfer, they "never heard anything from that
either." Actually, Frederick, Parrot, and Kolasinski had
been "the strongest opponents of the Union" during its
prior organizing campaign at Respondent's warehouse
some time before this. Local 614 failed in that campaign and
lost a Board-conducted election.
On the following Saturday, October 31, Frederick alone
called on Horning. The latter remarked that in spite of the
fact that he "was conducting an investigation" he had Uot
learned anything as yet, but `it was still possible that [they]
might be called back."
rederick's union activity is summarized in this and the
next paragraph below. On October 13 Parrot called Freder-
ick, stating that the former and Kolasinski were going to a
Local 614 organizing meeting the next day and invited
Frederick to attend. Frederick went to it, where he met the
other two. While there all three signed union cards.
In September, shortly before the above union meeting,
employee John Raska , Parrot's cousin, remarked to Freder-
ick, in the presence of Don Koehn, Frederick's supervisor,
that "I hear that you and Dennis [Parrot] have got the union
coming in." Thereupon Frederick told Koehn that Raska
was "starting union rumors" and that someone should talk
to Raska. At this Koehn answered, "Yes, we already know
about it in the office."
In 1969 Frederick was told by Homing that Frederick
would receive a raise in pay and also a bonus because Re-
spondent "had a good year," and that the amount of the
bonus "was due to seniority." But Homing added that "If
the union had won, he would not be able to give you this
bonus."
In the summer of 1970 Frederick asked Micoff whether
Respondent planned on laying off employees in the parts
department. Micoff replied, "This Company will never have
a layoff. We will have you fellows dusting shelves before we
will lay you off." On another occasion, when Frederick
asked Supervisor Koehn the same question, the latter re-
plied that even if a layoff became necessary Frederick
should not worry about it because Frederick was "too high
on the seniority list." On still another occasion Koehn told
Frederick that the latter should not worry about losing his
job because Koehn had praised Frederick "too many times
to kick you in the teeth."
Finally, Frederick testified that the busy season extends
from the end of October to the end of the succeeding Feb-
ruary, that prior to his layoff he not only was working
steadily but had in October just started to work overtime,
and that after he, Kolasinski, and Parrot were laid off they
were "replaced by three other people."
4. Dennis Parrot's testimony
Parrot was an employee of Respondent, working in ship-
ping in its warehouse parts department from about Septem-
ber 4, 1969, to October 23, 1970. Althouduring the week
ending October 25 he was on vacation, Parrot entered the
warehouse on Thursday, October 22, to receive his pay-
check. At this time his foreman directed him to "be in on
Monday," and Parrot agreed. Prior to his layoff Parrot en-
gaged in some overtime in October on weekdays and "not
too frequently" on Saturdays.
Nevertheless, about 5:30 p.m. on October 23, Parrot
learned from his parents that he had been laid off. The next
day Parrot, accompanied by Frederick and Kolasinski,
went to Respondent's office, where they spoke to Herbert
Horning, its operations manager. Parrot's account of what
the parties said at this meeting substantially corresponds to
that recounted by Frederick, supra. It need not be reiterated
here.
A week later Parrot, accompanied by Frederick and Ko-
lasinski, called on Horning and inquired if Horning "had
found out anything." Horning replied that "some of the
HEATH INTERNATIONAL , INC. 323
things [the three] told him were true and some were not and
he ... was still looking into it." But they never heard from
Horning after that.
Parrot's union activities may be abridged as follows. With
Frederick and Kolasinski he attended a meeting of Local
614 on October 14 or 15 which had been arranged by Parrot
and Kolasinski with officials of that union . Such arrange-
ments started in mid -September . At the meeting all three
signed union cards.
On one occasion Parrot 's foreman , Scheible , directed him
to train another employee , Ted Zembol , who was hired
about mid-September . But Zembol was not laid off on Oc-
tober 23 . Parrot claims that he also , with the assistance of
another employee, Regan , "broke in" said foreman. This
evidence was offered to show that Parrot was a valuable
employee.
5. The testimony of Henry Kolasinski, Jr.
Kolasinski entered Respondent's employ in June 1969 in
the recreational sales division of the arts department. Early
in October 1970 he communicatedpwith Local 614 about
organizing said department and, as a result , a union meeting
was set up for employees thereof . Together with employees
Frederick and Parrot , Kolasinski attended that meeting
"somewhere between the 14th and the 17th of October."
Respondent's "season" each year lasts from October to
the next February . In 1969 Kolasinski not only worked
overtime during the winter but also received a bonus "based
on seniority ." rn addition he received a raise of 25 cents an
hour on April 1 , 1970. In October 1970 overtime "was just
startin ."
On October 23, Parts Manager Micoff told Kolasinski
and employee Frederick , who came together to Micoff's
office pursuant to a call , that said two employees were laid
off indefinite ly "as of five o'clock that day ." They were
apprised by Micoff that such action was necessitated "due
to a cutback in personnel , a corporate cutback ." No other
reason was advanced for such layoffs.
Refusing to accept this ground as the cause of their layoff
Kolasinski told Micoff that the former "felt there was some-
thing else behind it other than just ... a corporate cutback."
Nevertheless Micoff persisted in his claim that no other
factors were involved . Insisting , in response to a question
from Kolasinski, that the work records of the employees
were not involved , Micoff volunteered the option that if
such records had entered into the decision "it would have
been much easier to select three people ." Continuing, Mi-
coff assured them "there was a chance" they would be
called back to work . However , they were never recalled.
The next day Kolasinski , accompanied by employees
Frederick and Parrot , discussed their layoffs with Opera-
tions Manager Herbert Horning . At first "it seemedpthat
[Horning] really didn't know " what prompted the layoffs,
but after some questioning by the three employees he an-
swered that "it was a corporate cutback , and there was three
people to be laid off , and he didn 't know who and didn't
care ." However , Horning promised "to look into things."
According to Kolasinski these layoffs were the only ones
effected during the period he was employed by Respondent.
About a week after October 24 Kolasinski , together with
Frederick and Parrot , again visited Horning . This time
Horning announced that , after "checking into it ," he dis-
covered that "some of the things [the three] told him at the
first meeting were true , and some of them weren 't." Further,
Horning asked them whether they would accept a transfer
to another division . Although all three replied in the affirm-
ative , Horning never offered them such a transfer.
B. Respondent 's Evidence
1. Gary Priestap 's testimony
Priestap is Respondent 's director of finance and assistant
secretary . According to him Respondent operates on a fiscal
year commencing on April I and the budget for the ensuing
fiscal period is prepared in March of each year . Such budg-
ets are based on estimated sales for the coming year report-
ed by each of Respondent 's four operating divisions. In the
fiscal year ending March 31 , 1970, Respondent sold approx-
imately 18 ,000 snowmobiles . This was "a very sizeable in-
crease over the year before."
In October 1970, at a meeting with Messrs . Grubb and
Heath , Respondent's operating officers , Priestap reviewed
each operating division and ascertained that the recreation-
al sales division (which includes the parts department) "was
doing very poorly against their original budget ," and was
expected `to fall in excess of three million dollars under [its]
anticipated sales ." At this meeting it was determined to
make cutbacks in said division 's work force.
In fact, as Priestap pointed, sales had so declined in 1970
that Respondent omitted its customary company -sponsored
employee Christmas party , held every year for the last 20
years , in 1970 as part of its general cost -reduction program.
In addition , as part of said program , three salesmen in the
recreational sales division "either quit or were terminated"
and were not replaced. See Respondent 's Exhibit 2 for the
number of employees on its payroll in the recreational sales
division in 1969 and 1970.
By the fall of 1970 further cuts in the work force of the
recreational sales division became imperative. So on Octo-
ber 23 three employees employed therein were laid off in-
definitely . See Respondent s Exhibit 3 showing increased
sales but a lower " product margin" in fiscal 1971 as com-
pared with fiscal 1970. Respondent 's recreational division's
sales amount to 87 to 90 percent of its entire sales.
Finally, Priestap testified that he first became aware of
union activity by Local 614 at Respondent's plant about the
first week of November 1970.
2. Herbert Horning's testimony
Horning is operations manager of Respondent 's recre-
ational sales division. In October 1970 Burt Swanson,
Homing's superior, notified Horning that, because of a re-
duction in business , "costs should be reviewed and ... they
should be reduced wherever possible." Thereafter Homing,
upon "review[ing] the various departments as to personnel, '
recommended personnel reductions in the departments in
the recreational sales division and also "attempted to" cut
down overtime.
Following his talk with Swanson , Horning stoke to Mi-
coff, Respondent's parts manager, "suggesting ' to Micoff
that the ratter 's "department be reduced by three employ-
ees." Later , when Micoff told Horning that the former had
designated Frederick , Parrot , and Kolasinski to be laid off,
Horning concurred in this selection. Notwithstanding this,
Horning also testified that on October 24 he received a
written request to hire three new secretarial employees in
the recreational sales division . After October 23, 1970,
Horning effected transfers of personnel from other depart-
ments into the parts department.
Then in the late fall of1970 Horning "implemented a new
procedure in the parts department" by adopting "a different
method of picking and a different method of handling the
parts," in accordance with the decision to utilize these dif-
ferent methods made in the previous August.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 24 Horning talked to Frederick , Parrot, and
Kolasinski at their request . Upon their asking him why they
were laid off, he informed them that "because of our new
system , and because of the fact there were inefficiencies
down there , and because the work wasn 't being done, and
because of the cost-reduction program , that because of their
performance they were the ones that were being laid off."
Horning " s ecified [to them] as to their performance ...
about slowdowns , about throwing of things around down
there , about idleness , standing around , this type of thing."
When the three "defended themselves as being the best
parts pickers down there and producing the most work,"
Horning retorted that "according to my observations and
according to other people 's records this was not so." He also
added that their layoff was indefinite and that they did not
have much chance of being recalled.
In this same conversation the three made some com-
plaints to Horning concerning their foreman . Horning
promised to look into this. Finally , referring to said conver-sation , he testified that "he did not recall [using] that
particular ,hrase ," i.e., asking the three "Are you fellows
instigators as they left . But he did ask them if they would
accept a transfer . Although they replied they would, he was
unable to accomplish this , notwithstanding that he tried.
Horning insists that he was not aware before October 23
that Frederick , Parrot , and Kolasinski "were engaged in or
involved in union activities ." However, although prior to
that date , and probably in September , he heard of union
activity at the plant, none of the foregoing three persons was
mentioned in connection with it . When he adverted to such
activity in a talk with another supervisor , the latter replied
that he had heard "them" (probably employees ) "talking
about the union and talking about having meetings and so
forth."
3. The testimony of James Micoff, Sr.
In addition to appearing as a witness for the General
Counsel, Micoff testified for the Respondent in essence as
follows. In substance he denied that he mentioned the possi-
bility of layoffs prior to October 23, 1970, that he ever
mentioned "seniority vis-a-vis" layoffs, and that he had
knowledge of union activity, whether by the three laid off
employees or anyone else at the plant, prior to October 23.
Further, he first learned of union activity there in December
1970, and he discussed such activity with Horning in De-
cember 1970.
Micoff also identified a cartoon which he attributed to
Gary Frederick. See Respondent's Exhibit 5. However, in
rebuttal Frederick denied he drew this exhibit. Its materiali-
ty is not readily apparent.
4. Donald Koehn's testimony
Koehn is a supervisor in Respondent's parts department.
He insists that at no time prior to October 23 did he talk to
Frederick, Parrot, or Kolasinski about union activity or
Frederick's job security. In fact he had no knowledge of
such activity prior to October 23. In addition he denies that
he overheard any of said three persons talking "with regard
to union activity." However, he admits that he learned of
union activity in the parts department about early Novem-
ber 1970 from John Raska.
V CONCLUDING FINDINGS AND DISCUSSION
At the outset it is pertinent to emphasize that the burden
of proof rests upon the General Counsel to establish by a
fair preponderance of the evidence the unfair labor prac-
tices alleged in the complaint, and that no onus is imposed
upon Respondent to explain why it laid off the three em-
ployees in question. Citation of authority upon this branch
of the law would be supererogatory. Even if Respondent's
evidence regarding said layoffs is not credited, such rejec-
tion of said evidence will not aid in establishing the General
Counsel's case, for discrediting of evidence does not consti-
tute affirmative evidence necessary to carry the burden of
proof placed upon a party. N.L.R.B. v. Joseph Antell, Inc.,
58 F.2d 880, 983 (C.A. 1); Council of Bagel and Bialy Bak-
eries, 175 NLRB No. 148, C.I. N.L.R.B. v. Murray Ohio Mfg.
Co., 326 F.2d 509, 513 (C.A. 6).
Upon carefully analyzing the entire record in this case I
am persuaded, and therefore find, that the General Counsel
has failed to prove by a fair preponderance of the evidence
that Frederick, Parrot, and Kolasinski were laid off for
reasons proscribed by Section 8(a)(3) of the Act. According-
ly, I shall recommend that the complaint be dismissed. In
arriving at this ultimate finding I have credited the General
Counsel's evidence and have not credited Respondent's evi-
dence to the extent that it clashes with the General
Counsel's.
While the foregoing ultimate finding that Respondent has
not committed the unfair labor practices asserted in the
complaint is based on the entire record, it is also derived
from the following subsidiary findings which I hereby find
as facts.
1. Initially, I find that Respondent prior to October 23,
1970, had knowledge of the union membership and activity
of these three employees. Since there were but 12 to 15
persons in the unit involved it is reasonable to impute
knowledge of union activity therein to the employer. Ang-
well Curtain Company, Inc. v. N.L.R.B., 192 Fp2d 899, 903
(C.A. 7). In addition, I credit Frederick that Supervisor
Koehn told Frederick that Koehn and "the office" knew
that Frederick and Parrot "have got the union coming in.,,
Koehn's denial thereof is not credited. Finally, I find that
Operations Manager Horning, on his own testimony, knew
of union activity about September 1970.
It is true that both Micoff and Horning testified that
neither was aware of the union activity of any of these three
employees when they were laid off on October 23. Never-
theless, I do not credit them because (a) it is reasonable to
infer , and I do, that under the Angwell Curtain doctrine,
supra, they became aware of such union activity, and (b)
Koehn's statement to Frederick, recited above, indicates
that Respondent's supervisors became cognizant of such
activity.
In this connection I find, crediting the General Counsel's
evidence, that on October 24, the day after they were laid
off, the three employees involved herein were asked by
Horning whether they were "instigators." But I find this
word is too indefinite and conjectural to ascribe to Horning
knowledge of their union activity prior to October 23. Nor
does the use of this word connote union animus, and I so
find. McCormick Longmeadow Stone Co., Inc., 155 NLRB
577, 579, 590, and R & R Screen Engraving, Inc., 151 NLRB
1580, 1584, seem distinguishable.
On this issue , however, the small plant rule does not
attribute to Respondent cognition of union activity occur-
ring away from its plant. See N. L.. R.B. v. Joseph Antell, Inc.,
358 F.2d 880, 883 (C.A. 1). Nor is there independent evi-
dence of such knowledge herein. Hence I find that the rec-
ord is barren of evidence that Respondent was aware that
the three here involved attended a union meeting on Octo-
ber 14 about 6 miles away from its plant. Cf. The American
League of Professional Baseball Clubs, 189 NLRB No. 85. It
HEATH INTERNATIONAL, INC. 325
may be mentioned that Defibaugh, a witness for the Gener-
al Counsel who went to that meeting, was unable to say
whether the three involved were also present. While I find
that they attended it, crediting them, I further find that
Respondent had no knowledge thereof.
2. The union activity of Frederick, Parrot, and Kolasinski
is negligible. It is true, and I find, that the three discussed
the Union and that such discussion resulted in a call to a
union official; that such official arranged for a union meet-
ing for Respondent's parts department employees; that the
above three attended that meeting and signed cards there;
and that said three talked union to one employee. But the
record is devoid of evidence that said three solicited a single
employee to join the Union or otherwise engaged in conduct
which may be characterized as action furthering the organi-
zational efforts of the Union. Indeed, but for said union
meeting, at which a few cards were signed, the record is
silent as to whether Local 614 participated in or promoted
any organizational campaign among Respondent's employ-
ees prior to October 23, 1970. This is not a case where an
active organizational campaign was promoted at
Respondent's plant.
Of course I recognize that a layoff may be discriminatory,
and therefore unlawful under Section 8(a)(3) of the Act,
notwithstanding that the employee's union activity was
minimal . But when such activity is slight, as in the instant
case, it is difficult to infer that the employer is seeking, by
laying off employees who later are discovered to be nonac-
tive union adherents, to undermine a union organizational
effort. I do not draw such inference on the record unfolded
before me. See N.L.R.B. v. Longhorn Transfer Service, Inc.,
346 F.2d 1003, 1006 (C.A. 5), where the court observed that
"obviously the discharge of a leading union advocate is a
most effective method of undermining a union organiza-
tional effort." Cf. J. P. Stevens & Co., 181 NLRB No. 97,
enfd. 442 F.2d 595 (C.A. 4). Hence I find that since the
union activity of these three employees was meager it is
reasonable to conclude, and therefore to find, that such
activity was neither a factor, nor entered into the decision,
leading to their layoff.
Nor am I unmindful that "Direct evidence of a purpose
to discriminate is rarely obtained, especially as employers
acquire some sophistication about the rights of their em-
ployees under the Act.... " Corrie Corporation v. N.L.R.B.,
375 F.2d 149, 152 (C.A. 4). "Nowadays it is usually a case of
more subtlety.... " N.L.R.B. v. Neuhoff Bros., 375 F.2d
372, 374 (C.A. 5). Nevertheless I find that such doctrines,
without more, are insufficient to warrant a finding that the
three here laid off were discriminated against for their insig-
nificant union activity.
Further, it is axiomatic that union connections or activity,
without more, is not a shield against a lawful layoff. Klate
Holt Co., 161 NLRB 1606, 1612. Nor does union member-
ship alone perforce insulate an employee from being laid off
for legitimate, nondiscriminatory reasons. Mitchell Trans -
port, inc., 152 NLRB 122, 123, 358 F.2d 281 (C.A. 7);
N.L.R.B. v. Bangor . Plastics, Inc., 392 F.2d 772, 776-777
(C.A. 6). Hence I fnd that the General Counsel has not
sustained his burden of demonstrating that the layoffs here
under consideration were unlawful merely by showing that
the employees affected thereby were engaged in union activ-
ity and signed union cards.
3. Respondent did not display union hostility. Since the
actual motive for the layoffs is the crucial inquiry, the Gen-
eral Counsel must show that such layoffs were generated by
union animus. By failing to establish such animosity the
General Counsel has fallen short of carrying his burden of
proving that the layoffs were unlawful.
On this issue I credit the General Counsel's evidence and
do not credit Respondent's insofar as it is not compatible
therewith. Thus, I find that on October 24, as the three
laid-off employees left after seeing Horning, Respondent's
operations manager, the latter asked them if they consid-
ered themselves instigators. But I explicitly find that the use
of the word "instigators" hardly rises to the stature of union
hostility. Hence I find that the use of this word, so indefinite
in its connotation, is insufficient to compel or even warrant
a finding that antiunion considerations lurked behind the
decision to layoff these three employees.
In this same conversation Horning also asked the three
whether they would take a transfer to another of
Respondent's divisions. Patently this desire to help the three
former employees does not disclose hostility to unions, for
if Horning desired to discourage membership in Local 614
by laying off these three, he manifestly wouldnot have been
so solicitous of them as to seek to continue their employ-
ment in another division. While it is true that Horning did
not succeed in finding other employment for them, this does
not undermine the conclusion that his attempt to retain
them fails to manifest union antipathy.
The only other piece of evidence resembling union
aversion by Respondent is Homing's statement to employee
Frederick, accompanying the latter's receipt of a bonus in
1969, that "If the union had won [the recent election] we
would not be able to give you this bonus." Reasonably
construed, this statement correctly summarizes the law that
when a union represents a majority of employees in an
appropriate unit an employer may not unilaterally grant a
bonus to employees without first negotiating thereon with
the union. I find it does not contain a threat of reprisals.
Consequently, I conclude that this accurate restatement of
the law, which the employer lawfully could utter without
encountering liability under the Act, does not amount to
union antagonism. Cf. Wright Manufacturing Company, 106
NLRB 1234, 1235. In any event, even assuming said decla-
ration by Horning may be found to represent antiunion
feelings, it is not the type usually associated with an
employer's campaign to defeat a union. Cf. Credit Bureau,
Inc., 189 NLRB No. 76, TXD. Further, its pronouncement
in 1969 is too remote to require a finding that it continued
unabated to October 23, 1970, when the three employees
were laid off.
I recognize that an antiunion motive need not be the only
reason behind a layoff and that if it is a substantial reason,
notwithstanding that other, and lawful, reasons may exist,
the layoff will nevertheless be found to transgress the Act.
N.L.R.B. v. Lexington Chair Co., 361 F.2d 283,295 (C.A. 4).
But I am unable to find, on the record unfolded before me,
that the General Counsel has sustained the burden of prov-
ing that antiunion sentiments entered into the decision to
layoff these three employees.
4. Notwithstanding that I have found that the General
Counsel has not succeeded in establishing that the layoffs
were inspired by discriminatory factors, I have nevertheless
not overlooked certain evidence often relied on by the
Board in concluding that in some instances a discharge of
an employee is unlawful. Thus the employees here involved
were laidoff without prior warning, somewhat abruptly,
and not long after they attended a union meeting. It has
been held that abruptness, manner, and timing of a dis-
charge shed light upon whether a termination is for cause
or whether the asserted cause is advanced as a pretext to
disguise union hostility which prompted the dismissal.
E. Anthony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27
(C.A.D.C.); N.L.R.B. v. Montgomery Ward & Co., Inc. 242
F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apart from the fact that said cited cases stress that the
significant ingredients there mentioned developed during
an active or vigorous union drive , they also accentuate the
fact that they were attended by independent acts displaying
union animus or actually contravening Section 8(a)(1) of the
Act. However , neither a strongly marked union organiza-
tional campaign nor an open employer resistance or opposi-
tion to unions are revealed by the record in the instant case.
Hence I am convinced , and find , that the cases cited above,
although pertinent, do not dictate a finding that the layoffs
herein were unlawfully motivated. Nor do I draw such an
inference of unlawful motivation , principally because I find
that the evidence in this case reveals a union campaign of
minimal activity and an employer not only singularly free
of open union antagonism but also one who did not resort
to Section 8(a)(1) violations to combat the union's drive.
Finally it is true , and I find , that the three employees laid
off were replaced by three others from another division.
While this fact cannot be disregarded , it does not suffice, in
my opinion , to expose a discriminatory intent behind the
layoffs . This is because I accept Respondent 's explanation
that the three replacements Were valuable and trained em-
ployees from another division who were about to be laid off
but whom Respondent desired to retain in order not to lose
their services when needed again in their regular division.
Accordingly , I shall recommend that the complaint in this
case be dismissed . In view of this disposition of the case it
becomes unnecessary to determine whether Respondent's
defense that the layoffs were dictated by economic consid-
erations is meritorious . Hence I do not reach the question
of whether its defense is well taken.
5. Finally , I find that the layoffs in controversy were
permanent and that the three employees affected thereby
had no reasonable prospect of being recalled within the
foreseeable future . This finding is not vitiated by the fact,
which I find , that Respondent (a) informed said employees,
in response to questions , that "there was always a chance"
of their being recalled , and (b) that it sought, without suc-
cess, to transfer them to another division . While said atti-
tude by Respondent tends to suggest that it would reemploy
these three if occasion arose , it does not indicate that they
were being retained as employees . It follows , and I find, that
the evidence points to the conclusion that the layoffs were
permanent.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Local 614 is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
tion 2(2), and is engaged in commerce as defined in Section
2(6) and (7), of the Act.
3. Respondent has not committed any of the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this case , and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:2
ORDER
It is ordered that the complaint be, and it hereby is,
dismissed in its entirety.
REPORT ON CHALLENGED BALLOTS
As set forth above, the Regional Director's Notice of
Hearing on Challenged Ballots provides, among other
things, that the Trial Examiner shall determine the issue of
the eligibility of Gary Frederick, Henry Kolasinski, Jr., and
Dennis Parrot to vote in the election held on January 4,
1971, in Case 7-RC-10272.
On the basis of the findings heretofore made in this con-
solidated case, and the entire record, I find that Gary Fred-
erick, Henry Kolasinski, Jr., and Dennis Parrot were
lawfully laid off on October 23, 1970, and that thereafter no
reasonable expectancy existed that they would be recalled
or reemployed by Respondent. Accordingly, I recommend
that the challenges to their eligibility to vote in the election
be sustained and that their ballots should not be counted in
ascertaining the result of the election.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations , the findings, conclusions, recommendations,
and recommended Order herein shall, as provided in Sec. 102.48 of said
Rules and Regulations, be adopted by the Board and become its findings,
conclusions, and Order, and all objections thereto shall be deemed waived
for all purposes
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This case was orig-
inally tried before me on March 3 and 4, 1971. Thereafter,
upon conflicting evidence and conflicting inferences, I
found for the Respondent as a fact, drawing such inferences
as were favorable to Respondent. While f recognized that
the evidence and inferences were sufficient to warrant a
finding for either party, analysis of the record convinced
me, and I found, that Respondent should prevail. In addi-
tion, I excluded certain evidence offered by Respondent
justifying its layoff of three employees on the ground that
said employees were not notified of the facts underlying
such justification at their respective terminations.
Upon exceptions submitted by the General Counsel the
Board stated, contrary to my conclusion, that the evidence
warranted a finding for either party, that "the Trial Examin-
er found that the evidence was insufficient to establish dis-
criminatory motivation" and, consequently, "the Trial
Examiner committed error" thereby. The Board also ruled,
upon the Respondent's exceptions, that excluding the
Respondent's foregoing evidence also constituted error. Ac-
cordingly, a new trial was ordered limited to "receiving the
excluded evidence and all other evidence that is relevant
thereafter."
Pursuant to such remand a further hearing was held be-
fore me on September 23, 1971. Such hearing was conduct-
ed after due notice thereof was served on the parties. The
General Counsel and the Respondent were represented at
and participated in the trial, and had full opportunity to
adduce evidence, examine and cross-examine witnesses, file
briefs, and present oral argument. At the close of the trial
the General Counsel argued orally. A brief has been re-
ceived from the Respondent.
Upon the entire record in this consolidated case, includ-
ing the record in the first trial, and from my observation of
the witnesses, I make the following:
HEATH INTERNATIONAL, INC. 327
FINDINGS OF FACT
At the outset , it is imperative to construe the ruling of the
Board that "the Trial Examiner found that the evidence was
insufficient to establish discriminatory'motivation." It is
true that I found as a fact that the three layoffs were not
prompted by discriminatory motives, but I did so upon an
examination of the entire record . However, it is desirable to
emphasize that I was aware that a finding was permissible
for either party, as a matter of fact, and that I was persuad-
ed, as a matter of fact, that Respondent was entitled to a
finding in its favor. At no time did I rule that the record,
as a matter of law , demonstrated that the General Counsel
had failed to establish a prima facie case.
Since I found as a fact that Respondent had effectively
overcome the General Counsel's prima facie case, the
Board's reversal of this finding in favor of Respondent must
be construed to mean that the General Counsel should have
prevailed at the original trial unless Respondent 's defenses
required a contrary result . It follows that I must now, by
direction of the Board, find for the General Counsel unless
the additional evidence adduced by the Respondent at the
remanded hearing is sufficient to call for a contrary result.
Accordingly, I proceed to examine Respondent's additional
evidence.
The issue is whether Respondent has presented defenses
which overcome the Board s ruling that otherwise the Gen-
eral Counsel must prevail.
I THE RESPONDENTS ADDITIONAL EVIDENCE INTRODUCED
AT THE SECOND TRIAL
Gary Priestap , Respondent's director of finance , testified
in substance as follows:
Respondent 's business decreased (in part demonstrated
by documents introduced in evidence through him), thus
necessitating layoffs . These documents are Respondent's
Exhibits 6, 7, 8, 9 , and 10 . In fact , the bank loan to Respon-
dent compelled such layoffs . See Respondent's Exhibit 7.
(However , this evidence is cumulative, as I had already
received , in my initial Decision , evidence that the layoffs in
question were dictated by economic considerations.) In ad-
dition , Respondent resorted to other cost reducing devices,
such as (a) eliminating the 1970 Christmas party for employ-
ees at a saving of $6,000, (b) laying off other employees than
the three involved in this proceeding, and (c ) skipping the
payment of a bonus to employees in March 1971, all be-
cause of economic necessity.
Herbert Horning, Respondent's operations manager, also
testified . A summary of his testimony ensues . It was decided
to lay off three employees in the parts department , which is
part of the recreational sales division , because improve-
ments accomplished in the method of processing orders
made it possible to fill them faster . Another reason for
cutting down the number of such employees is that prebill-
ing procedures rendered less employee help necessary to
handle sales of parts . Yet although . such sales increased
since August 1970, less employees were needed.
Still another reason for reducing this employee force is
"we had too many men in the parts department , and the
parts department was running inefficiently ." In fact since
ctober 1970, i .e., since the layoffs in question, the parts
department has been operating more efficiently . Since more
output per man resulted , fewer personnel were needed. See
Respondent 's Exhibit 11. Finally , in selecting whom to lay
off Homing picked the least skilled persons in the "least
skilled department" which he supervised , and that the three
whom he let go could be described as such.
Other factors also entered into the decision as to whom
to lay off when a reduction in force became necessary. One
of these is tardiness (See Resp. Exh. 12) and another is
attendance (See Resp. Exh. 13). In these respects other em-
ployees had better records. Still another is Kolasinski, Par-
rot, and Frederick were observed by Horning "standing
around the most, doing the least " Finally Homing charac-
terized these three employees as "the least valuable of our
employees" in the department.
Still another witness for Respondent is Donald Koehn,
the foreman and supervisor of its parts department, who
testified substantially as follows:
Koehn observed both Frederick and Kolasinski while
they worked. In Koehn's opinion, these two employees "did
not compare to the other employees." Amplifying this,
Koehn described them as "standing around more [than the
other employees] and ... throwing things [such as] ... small
parts. Screws and nuts. That sort of thing ... paper bags."
In addition, these two employees picked, i.e., filled, less
orders of customers than others in the department.
A week or two before these two employees were laid off
Koehn recommended to Jim Micoff, Respondent's parts
mana^er, that they be terminated when he, Koehn, found
them 'just standing there" at a time when a great number
of orders had to be picked. Micoff answered that he would
check into it. However, Koehn on cross-examination also
admitted that, "in a certain way," he told these two that they
picked more than "the other people, and their efficiency was
the highest." Nevertheless, Koehn insisted that he com-
plimented all employees and omitted none from his praise.
Finally, Koehn testified that he "often" apprised these two
employees that their work habits were unsatisfactory.
According to Henry Scheible, Respondent's shipping and
receiving foreman, a conspectus of whose testimony fol-
lows, Parrott's work performance was "primarily under
average" and unacceptable. Thus Scheible "would have to
remind him on occasion that he would have to go back to
work or would have to continue work and stop talking with
the other people in the departments." In addition Scheible
had to remind Parrott about coming to work on time "or at
least calling in when he wasn't going to be in."
Further, Parrott's job in part required him to weigh and
ship packages, according to Scheible. Yet "on several occa-
sions ' Respondent "received [Parrott's] cartons back from
United Parcel, which were overweight." Finally, Scheible
testified that he notified Parrott that "constant tardiness,
constant being late would reflect on the Company's posi-
tion."
Respondent's final witness, James Micoff, its parts man-
ager, testified that in the latter part of 1969 he suspended
Kolasinski "for stealing merchandise from the Company."
However, a week or two later Micoff reinstated Kolasinski.
Micoff also testified that about September 1970 the police
once informed him "in regards to an indecent exposure
situation" attributed to Parrott. In this connection, the po-
lice advised Micoff that if Respondent retained Parrott in
its emplo this would create a favorable position with
[Parrott's] parole officer when it came u for teal." Accord-
ingly, Respondent "continued to keep Parrott] in our em-
ploy," although Micoff did discuss this incident with
Parrott.
II GENERAL COUNSEL'S REBUTTAL EVIDENCE INTRODUCED
AT THE SECOND TRIAL
Henry Kolasinski, Jr., one of the three employees alleged
to have been discriminatorily laid off, in substance testified
as follows: In the first place, Kolasinski was "late to work"
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and absent but 2 or 3 days "during the last year of [his]
tenure ... at Heath International . In the second place,
Kolasinski was "never warned that [he] would be laid off,
suspended , or discharged while employed by Respondent."
However , on cross-examination , he admitted that for a peri-
od of 2 or 3 days in the summer of 1969 he was "suspended
... for stealing from the Company."
Dennis Parrott , another of the three alleged discrimina-
tees , also testified . A brief analysis of his testimony follows:
Admitting that he was arrested for indecent exposure in
June , 1970, he explained that this resulted when , while driv-
ing in Romeo , Michigan , he sto ped by the roadside to
respond to a demand of nature . " Somebody got [his] license
number," but Parrott did not deliberately expose himself;
and, further , he believed that no one was in the immediate
vicinity on that occasion . Although the next morning he
discussed this incident with his supervisor , Parrott was not
fired , suspended , or laid off for such conduct.
Continuing, Parrott asserted that at no time while em-
ployed by Respondent was he warned that either his work
or attendance habits exposed him to the risk of being laid
off, suspended , or discharged . Further, he insisted that dur-
ing his last year of employment by Respondent he was late
for work and also absent no more than six or seven times.
However , he was never disciplined therefor , and only once
did he fail to "report to management" that he would be
absent or tardy. On this occasion he went to court and had
to leave at 7 a.m. Finally , he stated that he "stood around
and did nothing during working hours ... not any more than
anybody else" in his department.
The third of the three alleged discriminatees is Gary
Frederick . A summary of his testimony follows : Frederick
insists that at no time was he ever warned that his work
habits or attendance record would cause him to be laid off,
terminated , or suspended . Rather, his supervisor and fore-
man, Koehn , on two or three occasions , the last of which
took place about a week before Frederick was laid off, told
Frederick that the latter was "doing a good job ... was
ahead of the other pickers ," and "not to get a big head
. and just to keep it up." In addition, Frederick admits
he reported late to work probably five times and was absent
about four or five times . }Iowever, on all of these occasions
he was excused by management.
III CONCLUDING FINDINGS AND DISCUSSION
As noted above , when evidence at a trial is such that a
jury may find for either the plaintiff or defendant , the court
should submit the case to the jury with appropriate instruc-
tions . One of said instructions is that the jury may find for
either party . And if the jury finds forte defendant, an
appellate court will not upset such finding (assuming proper
instructions to the jury by the teal court) simply because the
jury- was warranted in finding for the plaintiff.
These same principles apply, to nonjury cases where the
trier of facts (whether a judge or a Trial Examiner ) is war-
ranted , on conflicting evidence , in finding for either party.
In such instances the appellate body (whether a court or the
Board) should not reverse a finding for one party because
the evidence warranted a finding for the other party.
But in the instant case the Board ruled that, in its ud gg
-ment, on conflicting evidence at the first hearing , I should
have found for the General Counsel unless certain defenses
were established . The case was remanded to me by the
Board to receive evidence relating to , and to consider and
appraise , said defenses . I am of the opinion , and find, that
Respondent has failed to establish that its additional evi-
dence, adduced at the second hearing, constitutes a defense
to the finding ordered heretofore by the Board in favor of
the General Counsel. Accordingly, I find that the discharges
of the three employees herein involved were discriminatory
and therefore violated Section 8(a)(3) and (1) of the Act.
This ultimate finding is based on the entire record in this
case, consisting of the record in the prior as well as the
instant hearing, and the Board's rulings in its order re-
opening and remanding, and the following subsidiary find-
ings which I hereby find as facts.
A. Findings Common to All Discriminatees
As recited above, Respondent's business decreased, thus
dictating a reduction in force. Also, other expense-saving
practices were adopted, as narrated by Gary Priestap. While
I credit this evidence, I find that it is cumulative, as it merely
fortifies or amplifies evidence received by me at the first
trial. But I find that the three were discriminatorily selected
to be laid off because of their union activity. Similarly, I find
that Horning's testimony as to economic justification is in-
sufficient to overcome the Board's prior ruling that the lay-
offs were prompted by discriminatory motives. This is
because I am convinced, and find, that the three employees
laid off were chosen for such termination because of their
union activity.
Horning and others also testified as to the individual
faults of the three which also contributed to the decision to
lay them off. These faults are discussed below in connection
with evidence peculiar to each of three employees.
B. The Termination of Gary Frederick
According to Hornm , some ingredients leading to
Frederick's layoff were (1) Frederick's tardiness and ab-
sences, and (2) along with Kolasinski and Parrot, Frederick
"stood around the most, doing the least." And Koehn, the
foreman, contended that Frederick "did not compare to the
other employees," (3) "stood around" more than the other
employees, and (4) threw "small things" around.
While I credit the foregoing testimony on behalf of Re-
spondent, to the extent that it describes Frederick's quali-
ties, I nevertheless find that these faults were reanimated as
pretexts and that they were not the real reasons behind
Frederick's layoff. This finding is based on the entire record
and the following facts, which I hereby find. In so finding,
I credit Gary's testimony thereon.
1. At no time was Frederick ever reprimanded, warned,
or put on notice that his work habits or attendance record
exposed him to the risk of being disciplined therefor or of
being laid off, discharged, or suspended. Failure to warn has
probative value on the question of whether the conduct in
question truly entered into the decision to terminate an
employee. Talon, Inc., 170 NLRB 355, fn. 1.; Dunclick, Inc.,
159 NLRB 10, 11, fn. 1. Courts have sustained this principle.
E. Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27
(C.A.D.C.); N.L.R.B. V. Melrose Co., 351 F.2d 693, 699
(C.A. 8)
2. Since such conduct occurred over an appreciable
length of time prior to Frederick's layoff, I find that Re-
spndent overlooked or condoned it. Hence I find that
Frederick's deportment and work habits were revived as
pretexts and did not, in themselves, contribute to his termi-
nation. Therefore, I find that such condonation prevailed
even though Koehn recommended that Frederick be dis-
HEATH INTERNATIONAL, INC. 329
charged. This is because the failure to discharge under the
circumstances constitutes condonation , and I so find.
3. Further, I find, crediting Frederick, that he was ex-
cused by management on those occasions when he was
absent or came in late to work. Patently laying off an em-
ployee for such absences or tardiness after he had been
excused therefor indicates that they were not the real rea-
sons activating his termination , and I so find.
4. Finally, I find, crediting Frederick, that Koehn, his
foreman , praised the former s work performance shortly
before laying off Frederick. While this does not necessarily
clash with Koehn's appraisal, which I credit, that Frederick
had bad work habits, it does demonstrate that Koehn did
not regard such work habits as serious enough to cause
Frederick to be laid off.
that such deficiencies in Parrott's performance are pretexts
and are not the true reason for his layoff.
Finally Micoff testified credibly that Parrott was prose-
cuted for a crime and at the request of the police Micoff did
not suspend, layoff, or discharge Parrott. But I expressly
find that the police did not exercise coercion, duress, or
undue influence against Micoff to convince him to retain
Parrott in Respondent's employ. Accordingly, I find that
Parrott was not laid off for this incident, that it is not the
actual reason behind his layoff, and that it is being ad-
vanced as a pretext. Hence I find that it does not amount
to a defense in this proceeding.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
C. The Termination of Henry Kolasinski
Horning , whom I credit , described Kolasinski as (1) one
of those ` standing around the most , doing the least," and
(2) being tardy and absent . And Kolasinski 's foreman,
Koehn , evaluated the former as (1) "not comparing to other
employees ," (2) throwing things around , and (3 ) standing
around more than the other employees . In fact Koehn rec-
ommended that Kolasinski be discharged for such short-
comings . But nothing was done about such
recommendation . In addition, Micoff suspended Kolasinski
for stealing merchandise from the Respondent . Neverthe-
less Kolasinski was reinstated shortly thereafter.
The foregoing testimony of Horning , Micoff , and Koehn
is credited . But I find that these derlictions of Kolasinski
were condoned or overlooked , so that I further find that
none of them proximately caused his being laid off. Al-
though purloining of company property is reprehensible
and manifestly provides a solid ground for dismissing Kola-
sinski , I find that his said behavior was condoned when he
was permitted to return to work following such action on his
part. Thus I find that , as in the case of his other faults,
Kolasinski's theft was not a substantial or motivating cause
for his termination.
Then , again, I find , crediting Kolasinski , that he was
never warned or notified that his foregoing deficiencies
would result in disciplinary action being taken against him.
This failure to warn persuades me, and , I find , that his
foregoing failings were not the true reason for Kolasinski's
termination.
D. The Termination of Dennis Parrott
Respondent's operations manager , Herbert Horning, in-
sisted that Parrott's tardiness , absences , and standing
around "doing the least" in part caused the latter to be
unsatisfactory. Additionally, Parrott's foreman, Henry
Scheible, testified to the same effect and also that Parrott s
performance was "primarily under average ." However, I
find that these defections, although they occurred, were
condoned or overlooked because they were engaged in for
a considerable period of time without disciplinary action
being taken. Hence I find that these reasons are pretexts and
do not reflect the true reason behind Parrott's layoff.
But Scheible also testified credibly that he called to
Parrott's attention that "constant tardiness, constant being
late would reflect on the Company's position." This, I find,
does not amount to a warning that Parrott risked being
terminated or suspended by his absences and tardiness. No
other evidence is discernible in the record which may be
reasonably construed as such a warning. Accordingly, I find
that the failure to warn, under the circumstances, denotes
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I of my original decision, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it -be ordered to
cease and desist therefrom and that it take specific action,
as set forth below, designed to effectuate the policies of the
Act.
In view of the finding that Respondent unlawfully dis-
charged Frederick, Kolasinski, and Parrott, it will be recom-
mended that Respondent be ordered to offer each
immediate and full reinstatement to his former position or,
if such is not available, one which is substantially equivalent
thereto, without prejudice to the seniority and other rights
and privileges of each. It will be further recommended that
each be made whole for any loss of earnings suffered by
reason of his termination.
In making Frederick, Kolasinski, and Parrott whole Re-
spondent shall pay to each a sum of money equal to that
which each would have earned as wages from the date he
was terminated to the date of reinstatement or a proper
offer of reinstatement, as the case may be, less his net earn-
ings, during such period. Such backpay, if any, is to be
computed on a quarterly basis in the manner established by
F. W. Woolworth Company, 90 NLRB 289, with interest
thereon at 6 percent calculated according to the formula set
forth in Isis Plumbing & Heating Co., 139 NLRB 716. It will
also be recommended that Respondent preserve and make
available to the Board or its agents, upon reasonable re-
quest, all pertinent records and data necessary to aid in
analyzing and determining whatever backpay may be due.
Finally, it will be recommended that Respondent post ap-
propriate notices.
The discriminatory terminations go "to the very heart of
the Act." N.L.R.B. v. Entwistle M g. Co. 120 F.2d 532, 536
(C.A. 4). Accordingly, the Board s order should be broad
enough to prevent further infraction of the Act in any man-
ner; and I shall so recommend. Cf. R & R Screen Engraving,
Inc., 151 NLRB 1579, 1587.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
ADDITIONAL CONCLUSIONS OF LAW
1. By discriminating in regard to the tenure of employ-
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of Gary Frederick, Henry Kolasinski, Jr., and Dennis
Parrott, thereby discouraging membership in Local 614, a
labor organization , Respondent has en aged in unfair labor
practices condemned by Section 8(a)(3 and (1) of the Act.
2. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
Upon the foregoing finding of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended: I
ORDER
Respondent , its officers , agents,
shall:
1. Cease and desist from:
successors , and assigns,
(a) Discouraging membership in Local 614, or any other
labor organization, by laying off employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Offer Gary Frederick, Henry Kolasinski, Jr., and
Dennis Parrott each immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent one, without prejudice to the seniority and other
rights and privileges previously enjoyed by each, and make
Supplemental Decision in this consolidated case, and the
entire record, I find that Gary Frederick, Henry Kolasinski,
Jr., and Dennis Parrott were unlawfully laid off on October
23, 1970, and that they remained eligible to vote in the
ensuing election. Accordingly, I recommend that the chal-
lenges to their eligibility to vote in the election should be
overruled and that their ballots should be counted in ascer-
taining the result of the election.
and Order, and all objections thereto shall be deemed waived for all pur-
poses
2 In the event the Board 's order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
3 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read- "Notify
the Regional Director for Region 7, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
each whole for any loss of pay he may have suffered by We hereby notify our employees that:
reason of Respondent's discrimination against him, with WE WILL NOT discourage membership in Local 614,
interest at the rate of 6 percent, as provided in the section
above entitled "The Remedy."
(b) Notify immediately said Frederick, Kolasinski, and
Parrott, if presently serving in the Armed Forces of the
United States, each of his right to reinstatement, upon appli-
cation after discharge from the Armed Forces in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act, as amended.
(c) Preserve and, upon reasonable request, make available
to the Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to ascertain the amount, if any, of backpay due under the
terms of this recommended Order.
(d) Post at its plant at Richmond, Michigan, copies of the
noticed marked "Appendix."2 Copies of said notice, to be
furnished by the Regional Director for Region 7, after being
signed by a duly authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily displayed. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.3
Supplemental Report on Challenged Ballots
The original Report on Challenged Ballots is hereby re-
voked. Substituted therefor is the following:
On the basis of the findings made in the Trial Examiner's
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations , the findings , conclusions , recommendations, and
recommended Order herein shall, as provided in Sec. 102 48 of the Rules and
Regulations , be adopted by the Board and become its findings , conclusions,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, or any other
labor organization, by laying off employees or other-
wise discriminating in any manner in respect to their
tenure of employment or any term or condition of em-
plent.
Z WILL NOT in any other manner interfere with, re-
strain , or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the National Labor
Relations Act.
WE WILL offer Gary Frederick, Henry Kolasinski, Jr.,
and Dennis Parrott, each immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent one, without
prejudice to the seniority and other rights and privi-
Ileges enjoyed by each, and make each whole for any
loss of pay he may have suffered by reason of his layoff,
with interest thereon at the rate of 6 percent.
WE WILL notify said Gary Frederick, Henry Kolasin-
ski, Jr., and Dennis Parrott, if presently serving in the
Armed Forces of the United States, of his right to
reinstatement upon application in accordance with the
Selective Service Act and the Military Training and
Service Act of 1948, as amended, after discharge from
the Armed Forces.
All our employees are free to become , remain , or refuse
to become or remain members of said Local 614, or any
other labor organization.
HEATH INTERNATIONAL, INC
(Employer)
Dated By
(Representative ) (Title)
HEATH INTERNATIONAL, INC. 331
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone . its provisions may be directed to the Board's Office, 500
This notice must remain posted for 60 consecutive days Book Building, 1249 Washington Boulevard, Detroit, Mich-
from the date of posting and must not be altered , defaced, igan 48226, Telephone 313-226-3200.
or covered by any other material.