Hedison Manufacturing Company

National Labor Relations Board - Board Decisions

Mar 26, 1981

255 N.L.R.B. 339 (N.L.R.B. 1981)

HEDISON MANUFACTURING COMPANY 339
Hedison Manufacturing Company and Rhode Island
Workers Union, Local 76, Service Employees
International Union, AFL-CIO. Cases 1-CA-
14085 and 1-CA-14086
March 26, 1981
SUPPLEMENTAL DECISION AND
ORDER
On September 22, 1980, Administrative Law
Judge Benjamin Schlesinger issued the attached
Supplemental Decision in this proceeding. Thereaf-
ter, Respondent filed exceptions and a supporting
brief, and the General Counsel filed an exception
and a supporting brief, and a brief in support of the
Administrative Law Judge's Supplemental Deci-
sion.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings,' findings, 2 and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that Respondent, Hedison Manufac-
turing Company, Lincoln, Rhode Island, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I General Counsel excepts to the failure of the Administrative Law
Judge to grant General Counsel's motion to strike all of Respondent's
evidence. To the extent that the General Counsel's exception in this
regard constitutes a renewal of its motion to strike, that motion is hereby
denied as lacking in sufficient merit.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
At the outset of the instant hearing. Respondent objected to the pro-
ceeding and moved that the Administrative Law Judge disqualify himself
because of a preconceived and irremediable bias against the Respondent.
Respondent's motion was denied, and it excepts to that ruling. In this
same regard, Respondent also contends that the Administrative Law
Judge's findings, rulings, and interpretation of the evidence show bias and
prejudice on his part against Respondent. We find Respondent's allega-
tions of bias and prejudice to be totally without merit. Upon our full con-
sideration of the record and the Administrative Law Judge's Supplemen-
tal Decision, we perceive no evidence that he prejudged the case or dem-
onstrated any bias against Respondent in his analysis or discussion of the
evidence.
255 NLRB No. 54
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
On May 27, 1980, the National Labor Relations Board
issued a Decision and Order (249 NLRB 791), severing
Cases I-CA-14085 and 1-CA-14086, and ordering that
the proceedings be remanded to me and the record re-
opened for the purpose of permitting Respondent to
present testimony and other evidence concerning the al-
leged unlawful discharges of, with one exception,' the
entire central stores department- Supervisor Gary
McKiernan and employees James Ferreira, Glen Hutloff,
Thomas Lawton, and Russell Moison. The Board further
directed me to prepare and issue this Supplemental Deci-
sion setting forth, where required, a resolution of the
credibility of the witnesses who had thus far testified on
behalf of the General Counsel and the Charging Party as
to the matters encompassed within the scope of the
remand as well as of any witnesses who testified in the
supplemental proceedings ordered therein.
Pursuant to the remand, a hearing was held in Provi-
dence, Rhode Island, on July 14 and 15, 1980. All parties
were afforded the opportunity to present all witnesses
whom they desired, with the exception that Respond-
ent's chairman of the board, Harry D. "Hike" Hedison,
was not permitted to testify on behalf of the Respondent,
pursuant to the Board's Decision affirming my earlier
ruling. 2 The parties waived oral argument, and briefs
were filed by both the General Counsel and the Re-
spondent.
On the entire record in this case, including the testimo-
ny previously elicited by the parties and subject to the
severance in the prior proceeding, and including my ob-
servation of the demeanor of the witnesses, and after due
consideration of the briefs submitted, I make the follow-
ing:
1. FINDINGS OF FACT
A. Prior Proceedings
I have carefully reviewed that portion of my original
Decision 249 NLRB at 811-814, in which I found that
Respondent's discharges of its central stores epartment
employees and supervisor violated the Act. After review
of the evidence submitted by Respondent and the rebut-
tal evidence submitted by the General Counsel, I am per-
suaded that the principal reason alleged by Respondent
to support the discharges-that there was a slowdown in
the central stores department-is unworthy of belief.
I The only employee not terminated was Joe DeMarse, who testified
in the proceeding on behalf of the Respondent.
2 Notwithstanding the Board's prior ruling in this proceeding, General
Counsel moved at the opening of the hearing on remand for an order
prohibiting Respondent from presenting its witnesses. I denied the motion
on the ground that the Board's Decision constituted the law of the case
and I was bound to comply with Board law. In his brief, the General
Counsel moves to strike the testimony of witnesses called by Respondent,
on the ground that the proof elicited shows that one of the bases for the
Board's decision was an erroneous offer of proof made by Respondent's
counsel. See particularly fn. 10, infra. I deny the motion, which is more
properly made to the Board upon exceptions, if any to this Decision.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my original Decision, based solely on the testimony
of witnesses who appeared on behalf of the General
Counsel, I found that, although there was a backlog of
work in the central stores department, the two employ-
ees and one supervisor who remained employed in the
department after the discriminatory layoff of Lawton
and the transfer of Moison could not be expected to ac-
complish the same amount of work as had previously
been performed by four employees and one supervisor.
Further, I found that Respondent knew of the employ-
ees' activities in support of the Rhode Island Workers
Union, Local 76, Service Employees International
Union, AFL-CIO (herein called the Union), and fired
them for that reason and in order to discourage the
union activities of Respondent's other employees.
B. Respondent's Defense
Respondent's evidence of a slowdown, as allegedly
relied on by Louis Marinelli, Respondent's manufactur-
ing manager, and as initially verified by Supervisor
Donald Fontaine, who worked in the department for 1-
1/2 days on January 18 and 19, 1978,3 does not with-
stand scrutiny. Among the facts that Fontaine4 ascer-
tained were: (1) Hutloffs unusually slow method of
weighing pieces of jewelry; (2) excessive absenteeism
from the department; (3) talking while at work; and (4)
bringing soda and candy to the department after lunch. I
deal with these seriatim, noting that a typical slowdown
is a deliberate effort by employees to alter their work
habits so as to impede the ultimate production of their
employer's final product. The objections posited by Re-
spondent's management are less akin to techniques of
slowdown than they are mere disagreements with em-
ployees' work habits.
Nonetheless, the accusation against Hutloff that instead
of counting jewelry findings by two's, pushing them off
the work table into his hand, 5 he laid them out in rows
of two to a pile, has some indicia of a method to stretch
out work. However, Respondent's proof fails, because
this was the way Hutloff was taught to count findings.
Hutloff was still essentially an inexperienced employee,
and no one had ever told Hutloff that it was incorrect to
proceed in the way he was doing. There was no alter-
ation of his work habits. Merely because Fontaine may
have believed that that was not proper was contradicted
by the testimony of McKiernan, who stated that he
taught Hutloff to do exactly that, and the testimony of
Hutloff, who credibly testified that he was merely fol-
lowing directions.6
3 All dates hereinafter refer to the year 1978.
Fontaine, who supervised the central routing department, was asked
by Raymond Dansereau, then vice president in charge of manufacturing,
to work in the central stores department because of his suspicion that the
employees were engaged in a slowdown.
I To facilitate the counting of the small components of, for example,
earrings. Respondent used proportionate scales. At a ratio of 72:1, one
piece in one pan would equal the weight of 72 in the other pan. Thus,
two pieces would equal a gross.
^ Hutloff did not always count in the manner described. Rather, the
method complained of was utilized for the counting of particularly small
or difficult-to-handle findings or large quantities of findings, where errors
were more likely to occur or. in the event of an interruption of work,
where the count could quickly be resumed.
Even though Fontaine saw Hutloff counting findings
in the manner described, Fontaine, himself a supervisor,
never mentioned to Hutloff that there was another and
speedier way. Indeed, it appears that the method used by
Hutloff, although taking seconds more time, proved to
be a more accurate way of determining the count, in
order to insure against errors which became prevalent
immediately after the employees and supervisor were ter-
minated. 7
With respect to the other interposed objections, they
require briefer treatment, not only because I do not
credit them, but also because Marinelli did not seem to
rely on them very much. Conversations had always been
permitted in the department, and there was no proof that
the conversations either were about nonrelated business
matters or were conducted solely to impede the work
flow. That employees were absent "several times," for
about 10 or 15 minutes, does not constitute "excessive"
absenteeism, in view of Fontaine's admission that central
stores employees were frequently required to leave the
department to make deliveries of items to other depart-
ments. There was no proof submitted that employees
who left the department during January were engaged in
anything but business-related functions. Finally, Fon-
taine's testimony regarding the bringing of soda and
candy to the department was not only general, but failed
to show that this was not a practice permitted in the
past, that it delayed any work from being done, or that it
was engaged in for the purpose of slowing down produc-
tion.8
The above findings have been stated as if I fully be-
lieved Fontaine and that the reasons expressed by him
were the true reasons for his alleged recommendation to
Marinelli. In fact, I have grave difficulty in believing
Fontaine, whose testimony not only lacked specificity
but also contradicted in material respects testimony
which he gave 2 years before at a hearing on the entitle-
ment of the various employees to unemployment com-
pensation benefits. 9 Further, I generally discredit Marin-
elli, based on his utter lack of candor when he denied
outright any knowledge of a union campaign being con-
ducted in January. If I believed him, that would make
him, a higher-ranking supervisor, the only representative
of Respondent who had no idea that there was a union
campaign being conducted at Respondent's premises, de-
spite the fact that there had been open solicitation of
union support at the plant on a daily basis commencing
on January 10 and despite the fact that Marinelli attend-
ed a meeting on January 19 called by Respondent of pri-
7 I specifically discredit DeMarse's assertion that the pieces laid out by
Hutloff were neatly and precisely arranged, one on top of the other.
Even Fontaine, whom I generally discredit, was unwilling to go so far.
8 Not one of the employees' faults (indeed, only Hutloffs name was
mentioned) was mentioned to the employees, except that, on the direction
of Dansereau, Hutloff was, on January 17, moved from one scale to an-
other, for excessive conversation. McKiernan was never told that his em-
ployees should not leave the department, nor bring candy and soda into
it, nor should count findings in a particular manner.
I Fontaine, for example, clearly remembered at the hearing that Hut-
loff, in counting, was neatly stacking chevrons in piles. Two years before,
he testified that he could not remember what Hutloff was counting. Fon-
taine was unable to explain how his memory had been so clearly re-
freshed
HEDISON MANUFACTURING COMPANY 341
marily Respondent's supervisors to exhort their opposi-
tion to the Union, threatening that Respondent would
"crush" the Union.
Marinelli's testimony was also at odds with previously
given testimony at the unemployment compensation
benefits hearing by Hike Hedison and Robert Graham,
two of Respondent's principal officers, both of whom
stated that Hedison made the decision to terminate the
employees involved herein after obtaining the advice of
Respondent's counsel.'° I find that the earlier sworn ad-
missions of Hedison and Graham are much more reliable
than Marinelli's present testimony.'' Further, I find the
prior testimony more probable in light of the following
facts: The Board has already held that, when the union
campaign became public on January 10 Respondent took
immediate action to discourage the employees' activities.
The massive layoff of 21 employees on January 13 was
met by the immediate filing by the Union of unfair labor
practice charges on January 16. Respondent knew full
well of the deep involvement of at least Hutloff, Lawton,
and Ferriera in its central stores department. Before
reaching the final decision to discharge them, it seems
only probable that Respondent would desire to consult
its legal counsel for his advice, as both Hedison and
Graham admitted in their prior testimony.
Another reason relied on by Marinelli to support the
discharges was that, at some point on January 31, Fon-
taine went to central stores to obtain a finding which
was missing from an order, so that the piece of jewelry
could be produced. Contrary to Fontaine's oral testimo-
ny, I credit instead his testimony at the unemployment
compensation benefits hearing to the effect that when he
asked for the item, he did not identify it by number. I
further credit Hutloff's testimony that when asked for
the additional item, he had no idea what Fontaine was
seeking. His response of "Let big Lou get it, he's the one
who fired McKiernan," although perhaps snide and rash
in the circumstances, was not such that it should have
constituted in Respondent's mind an act of insubordina-
tion. Rather, I find that Hutloff merely did not know
what piece it was that Fontaine was seeking; 2 that
McKiernan was normally the person who filled in orders
with missing parts; and that Marinelli (the "big Lou"),
having fired McKiernan, was the person whom Fontaine
should seek to obtain the missing part.
I would be remiss if I did not note that the employee
about whom Fontaine allegedly complained to Marinelli
was never even identified by Fontaine. Instead, Marinelli
took it upon himself, so he testified, to terminate the
whole department and not the one who was allegedly in-
subordinate or those whom he could pinpoint as being
'0 The latter two sworn statements are not only at odds with Marinel-
li's sworn testimony but also at odds with the offer of proof recited in the
Board's Hedison decision (249 NLRB at 798, fn. 19) and Respondent's
brief, which concedes: "It is unlikely that Marinelli would complete the
discharges without consultation with his superiors including both Mr.
Graham and Hike Hedison."
'" The General Counsel also argues that Marinelli should not be be-
lieved because he did not testify at the unemployment hearing, "a fact
which is understandable (only) if the discharge decisions were really
made by Hedison and not by Marinelli." I agree.
12 Fontaine admitted that there are so many variables in clips. one
could not ind the proper one without an identifying number.
responsible for the alleged slowdown. This included
Lawton, returned from layoff to the job for only I day
(January 30), and Moison, transferred back to central
stores only a few days before, and absent on January
30-facts which certainly detract from Respondent's ar-
gument that the employees were terminated for a slow-
down, in which Lawton and Moison could not have par-
ticipated, and for insubordination, which involved only
Hutloff, at best.
Further, Marinelli's explanation of how he tried to
help McKiernan overcome his complaints of shortage of
manpower was utterly lacking in candor, especially his
testimony that he transferred a casting employee, Wayne
Scott, to the central stores department in order to help
out, but McKiernan rejected him despite the fact that he
had worked there before. All parties agree that Respond-
ent never employed a "Wayne Scott," but Respondent
attempts to explain Marinelli's testimony by arguing that
the name of that individual was first raised (by leading
question) by Respondent's counsel,13 and Marinelli
merely adopted that suggestion, when he actually meant
"Scott Bryant." I would be more sympathetic to this
claim if Marinelli had not also identified "Wayne Scott"
as being a black, whereas from my own observation
when Scott Bryant testified Bryant was clearly white.
I further discredit Marinelli because he stated that
after he had been told of the "big Lou" incident on Janu-
ary 31, he talked with Hedison, who was surprised and
angered by the fact that the employees were engaged in
a slowdown. Why Hedison should have been surprised is
unexplained, especially in light of McKiernan's testimony
that Hedison accused McKiernan of permitting a slow-
down the day before, January 30. Indeed, it appears that
sometime before January 18, Dansereau suspected that
there was a slowdown, and that prompted his request of
Fontaine (according to Fontaine) 4 to work in central
stores. Fontaine reported his findings to Marinelli on
January 19. Hedison, in the presence of Marinelli,
brought to DeMarse's attention Hutloff's method of
weighing findings about January 24 and asked DeMarse
whether he thought it was time consuming. DeMarse
said yes. It was the same day that Hedison asked
McKiernan what the problem was and specifically noted
that McKiernan should get more help. Thus, if I am to
believe Marinelli's testimony that Hedison was "sur-
prised," I would have to disregard the testimony of
many of Respondent's other witnesses or, as an alterna-
tive, find that all of them were misstating the truth. That
alternative makes more sense, and I so hold, because of
the mutual and internal inconsistencies and contradic-
tions of their testimony. s
I have no doubt that there was some backlog in the
work of the central stores department. Indeed, all parties
concede that fact. According to Marinelli, the backlog
began no later than about January 10, when the Union
3 Certain errors in the transcript are hereby noted and corrected.
14 McKiernan testified that Dansereau had stated that Hike Hedison
had put Fontaine into the department.
'1 Specifically. I find improbable the fact that Fontaine discovered the
slowdown in mid-January, yet Marinelli arranged for the transfer of
Moison and recall of Lawton without other corrective action.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first began to openly solicit the support of Respondent's
employees. Some of Respondent's witnesses testified that
it started to increase from that time. Assuming that is ac-
curate (some of the General Counsel's witnesses testified
that there was a backlog even before then), it is not sur-
prising that the backlog should grow or, at least, remain,
because Lawton was discriminatorily laid off on January
13 and Moison was transferred on the day before, and
McKiernan had only two employees working with
him. ' 6
The extent of the backlog was also a subject of some
dispute, Respondent's witnesses generally describing it as
much greater than that testified to by witnesses called by
the General Counsel. Employee Larry King, called by
Respondent, sided more with the General Counsel's wit-
nesses, and I find it likely that the amount of work on
the floor accorded with his recollections. ' The amount,
however, is not wholly to be the point. Rather, it was
Marinelli's position that the backlog should have been
cleared up more quickly than it was and the basis of his
judgment that there was a slowdown (which at one point
he characterized as "deliberate" and, at another point,
testified that he did not know the cause of it) was a com-
parison with an earlier period when it was busier and the
department had the same number of employees. No
showing was made, however, that it was busier at any
earlier time; and the evidence demonstrates that the de-
partment had been depleted because of Moison's and
Lawton's absence. 8
I thus find that the backlog was not caused by any
slowdown on the part of the alleged discriminatees.' 9
Although Marinelli appeared to be conciliatory in his
testimony that he attempted to help McKiernan as much
as possible to fill in with extra help so that the job could
effectively be accomplished, his assistance was no more
than a facade. The transfer of Moison and the rehiring of
Lawton was effective only within several days of
McKiernan's discharge. Indeed on the day that McKier-
nan was discharged, Moison was sick, and Lawton had
just reported for work. Respondent can hardly contend
that it exercised good faith in permitting McKiernan suf-
ficient manpower to accomplish a full clean up of the
backlogged work.
Respondent contends, however, that after the four em-
ployees were terminated, new employees were able to
clean up the entire backlog within 3 or 4 days thereafter.
No proof was submitted, however, to demonstrate that
B" DeMarse testified that the backlog remained about the same, with
slight variations, since the layoff of Lawton, meaning that the fewer
number of employees was at least able to distribute, weigh, and shelve as
much material as was coming in the department. Marinelli's complaint
was that the situation did not improve.
t1 It appears that not all the work on the floor was unfinished and un-
sorted. At least many of the shelves of finished goods were filled, and
there was nothing that could be done with other finished goods except to
leave them on the floor.
1' In addition, there was uncontradicted testimony, which I credit.
that Bryant and Fontaine, while temporarily helping out in the depart-
ment in January, mixed pieces of an order which caused the regular em-
ployees to pick out by hand the incorrect findings, thus causing further
delay.
9 This conclusion is bolstered by an adverse inference I have drawn
from the failure of Harry D. Hedison to comply with a lawfully issued
subpena and the failure of Respondent to call Graham and Dansereau to
support the testimony adduced at the hearing.
the new employees did any more work than the dis-
charged employees; nor was there any proof submitted
as to the quantity of work that either group did. For all
that appears in the record, it may have been that there
was less incoming work for the new employees to pro-
cess, whereas the incoming work of the discharged em-
ployees far surpassed that which came into the central
stores department in early February. 20
In addition, employee LePere testified that other em-
ployees and supervisors contributed to the clearing away
of the backlog. Further, as an employee in the central
routing department, she obtained many of the orders
filled by the central stores department and found numer-
ous errors in the work that was being processed by cen-
tral stores. How much time was lost by the inaccurate
filling of orders was not shown, but it was not denied
that there were such inaccuracies. I do not wish to in-
volve myself with Respondent's choice of speed versus
accuracy in the processing of orders, but it seems that
Respondent was really not concerned with either. It was
more devoted to the ridding of the shop of union adher-
ents; and I conclude that, but for the union activities of
the four employees, no terminations would have taken
place. 2
As a result, I reject the Respondent's defenses, discred-
it its witnesses, credit the witnesses called by General
Counsel, and adhere to my original Decision.22 I contin-
ue to specifically adhere to my conclusion that McKier-
nan was terminated in order to establish the predicate for
the discharge of the employees who remained in the cen-
tral stores department and that, otherwise, Respondent
could not have relied on McKiernan's favorable testimo-
ny in the event that a charge of unfair labor practices
were filed by the Union, as could have reasonably been
expected and did ultimately occur.
If there had, in fact, been a slowdown, McKiernan
would have been the logical target for permitting the
slowdown to take place. In that case, had McKiernan
not been terminated, there might be less justification for
Respondent's actions. Indeed, it knew that McKiernan
could not be relied on to follow, blindly, Respondent's
instructions and might well be instrumental in giving tes-
20 Respondent concedes as much in its brief, stating that the reduction
of the backlog was "at best, equivocal. We recognize that the flow of
incoming work, the nature of jobs to be filled, size of pieces, and many
other variables may contribute to the speed with which the backlog
could be cleared up." Respondent did not produce any records which
might have supported its contentions.
2" DeMarse, the only employee who was not fired, was the only em-
ployee in the department who did not support the Union, was invited to
Respondent's antiunion meeting on January 19, and became the depart-
ment's supervisor in mid or late March. Marinelli assumed, without inves-
tigation, that LeMarse was doing all he could to clean up the backlog.
Marinelli made no similar assumptions about the work of any of the other
employees.
22 found support for the conclusion that there was no slowdown
from the fact that the discharged central stores employees voluntarily
worked overtime in January. 249 NLRB at 812. At the hearing on
remand, there was testimony that, at least on January 26, they did not
work overtime. Upon my review of the entire record, and although this
point was not raised in Respondent's briefs, filed either in the earlier
hearing or in this one, I find that there is no record support for that find-
ing. Accordingly, I specifically do not rely on it, but note that, in any
event, there was no practice that employees were required to work over-
time.
HEDISON MANUFACTURING COMPANY 343
timony favorable to the central stores employees. On the
other hand, by terminating McKiernan with the employ-
ees, Respondent had the chance of supporting all the dis-
charges on the same theory and arguing that McKiernan,
because of inadequate supervision, was permitting the
slowdown to exist.
The General Counsel requests that I find, contrary to
my original Decision, that McKiernan was terminated
because he did not comply with Respondent's instruc-
tions to engage in unfair labor practices. I decline to do
so. The fact that McKiernan may have voiced objections
to the layoff of Lawton and encouraged Respondent's
recall of him and retransfer of Moison is not the equiva-
lent of a refusal to comply with Respondent's requests to
engage in unfair labor practices. 23 The fact that he was
of a view different from the overall plan to "crush" the
Union, in that he made proposals which would have ob-
structed Respondent's illegal goals, does not support the
complaint.
Of importance here is an incident testified to by Hut-
loff, omitted in my original Decision, but one which be-
comes more important in view of Fontaine's testimony
that he was transferred to the central stores department
to investigate whether there was a slowdown. Hutloff
testified, undenied by Fontaine, to Fontaine's insertion of
several figures in one of Hutloffs job entries to make it
appear as if Hutloff had made a substantial error. Upon
complaint of Hutloff, McKiernan intervened, thus put-
ting another obstacle in Respondent's plan, which I
imply was to set up and terminate Hutloff well before
January 31.
However, it seems to me that there is nothing in the
record which McKiernan was requested to do, and did
not follow through. He was not asked to commit an
unfair labor practice, which McKiernan knew to be an
illegal act, and he did not refuse to do so. However, Re-
spondent could clearly understand from the comments
that he made, and the actions which he took, that
McKiernan was his own man and that he would not
serve as protection for Respondent's desire to rid the
central stores department of union adherents.
In that sense, McKiernan's discharge was the neces-
sary conduit to clear the way for the discharge of the
four employees. Perhaps, as the General Counsel appar-
ently concedes, my difference with his position is one of
mere semantics, such as the situation where a supervisor,
who has previously shown his opposition to illegal con-
duct, is discharged in order to further a pretextual dis-
charge. Fairview Nursing Home, 202 NLRB 318, 324,
enfd. 486 F.2d 1400 (5th Cir. 1973), rehearing en bane
23 The General Counsel has cited no case in support of his position.
The closest factual situation I have found is in Inter-City Advertising Com-
pany of Charlotte. N. C.. Inc.. et al., 89 NLRB 1103, 1106-1107 (1950).
enfd. as modified 190 F.2d 420 (4th Cir. 1951). There, however, the
Board panel (Member Reynolds dissenting) found that a demand had
been made on a supervisor to engage in violations of the Act. Other cases
presented no similar issue, because the question of whether there was a
demand, which was present in each of them, was not at issue. Vail Manu-
facturing Company, 61 NLRB 181 (1945), enfd 158 F.2d 664 (7th Cir.
1947); General Engineering Inc.. 131 NLRB 648 (1961), enforcement
denied in relevant part 311 F.2d 57 (9th Cir 1962); Jackson Tile Manufac-
turing Company, 122 NLRB 764 (1958); Miami Coca Cola Bottling Compa-
ny doing business as Key West Coca Cola Bottling Company. 140 NLRB
1359 (1963).
denied 491 F.2d 1272 (5th Cir. 1974), cert. denied 419
U.S. 827 (1974). In any event, the facts found herein do
not fall strictly within the Board's 8(a)(1) violations for
firing a supervisor because he would not engage in unfair
labor practices. Rather, McKiernan's discharge is more
akin to the facts of Pioneer Drilling Co., Inc., 162 NLRB
918 (1967), enfd. in pertinent part 391 F.2d 961 (10th Cir.
1978),24 on which I continue to rely.2 5
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I
above, occurring in connection with the operations of
Respondent, described in section I of my earlier Deci-
sion, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes, burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Rhode Island Workers Union, Local 76, Service
Employees International Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By discharging Supervisor Gary McKiernan on Jan-
uary 30, 1978, as a cover for discharging employees for
their union activities, Respondent has engaged in, and is
engaging, in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
4. By discharging James Ferreira, Glen Hutloff,
Thomas Lawton, and Russell Moison on January 31,
1978, and thereafter by refusing to reinstate them, for en-
gaging in union activities and for joining and assisting
the Union, Respondent has engaged in, and is engaging,
in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and to take appro-
priate affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent, on January 30, 1978,
discharged Gary McKiernan and that Respondent, on
January 31, 1978, discharged James Ferreira, Glen Hut-
loff, Thomas Lawton, and Russell Moison, I shall recom-
24 The General Counsel correctly notes that my failure to agree upon
one of the theories posited by him does not alter the proposed remedy.
25 Since my original Decision was rendered, the Board has considered
numerous complaints involving supervisory discharges. Despite Member
Truesdale's footnote in the Board's Decision herein, 249 NLRB 791, 796.
fn. 20, and his numerous dissenting opinions, Pioneer and the cases cited
in my earlier Decision still represent Board law: and I do not understand
Member Truesdale's stated position to call for a result different from the
one I have reached herein. See, for example, Downslope Industries Inc..
and Geenbrier Industries. Inc., 246 NLRB 948 (1979); Nevis Industries.
Inc.. d/b/a Fresno Townehouse. 246 NLRB 1053 (1979); DR W Corporation
d/hia Brothers Three Cahinets, 248 NLRB 828 (1980)
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that Respondent be ordered to offer full and imme-
diate reinstatement to each of them to their former posi-
tions or, if such positions are no longer available, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges and make each of
them whole for any loss of earnings or any monetary
loss that they may have suffered from the dates of the
discharges as a result of Respondent's unlawful conduct,
less interim earnings, if any. The amount of backpay
shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), together with in-
terest thereon as computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). 26
Because of the character of the unfair labor practices
found herein, and earlier by the Board, the recommend-
ed Order provides that Respondent cease and desist
from, in any other manner, interfering with, restraining,
and coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER2 7
The Respondent, Hedison Manufacturing Co., Lincoln,
Rhode Island, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership of its employees in or
support of the Union, or any other labor organization, by
discharging any of its employees or discriminating in any
manner in respect to their hire and tenure of employment
or any term or condition of employment, in violation of
Section 8(a)(3) of the Act.
(b) Discharging supervisors as a means of covering up
the discharges of employees for their union activities.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Gary McKiernan, James Ferreira, Glen
Hutloff, Thomas Lawton, and Russell Moison full and
immediate reinstatement to their former positions or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make each employee whole in
the manner provided above in the section entitled "The
Remedy" for any loss of pay he may have suffered from
the date of his unlawful discharge, until the date of such
offer of reinstatement.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
26 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
27 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes.
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at Respondent's places of business at Lincoln,
Rhode Island, and Providence, Rhode Island, copies of
the attached notice marked "Appendix." 28 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's repre-
sentatives, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 con-
secutive days thereafter, in conspicuous places, including
Respondent's bulletin boards and any other places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
2s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of our supervisors
or management personnel to cover up for our dis-
crimination against you for engaging in union activ-
ities.
WE WILL NOT discourage our employees from
being members of the Rhode Island Workers Union,
Local 76, Service Employees International Union,
AFL-CIO, or of any labor organization, by dis-
charging them or by otherwise discriminating
against them with respect to their hire, tenure, or
terms and conditions of their employment by us.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join the above-named or any labor
organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
concerted activities for the purpose of mutual aid
and protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities.
Employees are free to join the Union without fear
or reprisals for so doing.
WE WILL offer Supervisor Gary McKiernan and
employees James Ferreira, Glen Hutloff, Thomas
Lawton, and Russell Moison full reinstatement to
HEDISON MANUFACTURING COMPANY 345
their former positions or, if those positions no
longer exist, to substantially equivalent positions,
without loss of seniority or other rights or privi-
leges; and WE WILL make each of them whole for
any backpay lost as a result of our discrimination
against them, with interest.
HEDISON MANUFACTURING CO.
I