Herbert Pattern Shop, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 555 (N.L.R.B. 1987)

HEBERT PATTERN SHOP
Hebert Pattern Shop , Inc. and United Steelworkers
of America , AFL-CIO-CLC. Cases 1-CA-
23549 and 1-CA-23594
31 August 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 16 March 1987 Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hebert Pattern Shop, Inc., Worcester,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In view of their agreement with the judge's other findings which estab-
lish the Respondent's knowledge of employee Patch's union activity,
Members Babson and Stephens find it unnecessary to pass on the judge's
alternative reliance on the "small plant doctrine "
Interest will be computed in accordance with our decision in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts ac-
crued prior to 1 January 1987 (the effective date of the 1986 amendment
to 26 U S C § 6621) shall be computed in accordance with Florida Steel
Corp, 231 NLRB 651 (1977)
2 In par 1(b) of the recommended Order, the judge uses the broad
cease-and-desist language "in any other manner" We have considered
this case in light of the standards set forth in Hic/mott Foods, 242 NLRB
1357 (1979), however, and have concluded that a broad remedial order is
inappropriate inasmuch as it has not been shown that the Respondent has
a proclivity to violate the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard for the employ-
ees' fundamental statutory rights Accordingly, we shall modify the rec-
ommended Order so as to use the narrow injunctive language "in any
like or related manner " We shall modify the notice to conform with par
1(b) as modified Further, we shall modify the recommended Order and
the notice to include an expunction remedy
555
2. Insert the following as paragraph 2(b) and re-
letter the former 2(b) and subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful discharges of James Patch and Michael
Manning and notify them in writing that this has
been done and that the discharges will not be used
against them in any way."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in United
Steelworkers of America, AFL-CIO-CLC, or any
other labor organization, by discriminating against
our employees regarding hire or tenure of employ-
ment or any other term or condition of employ-
ment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James Patch and Michael Man-
ning immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL remove from our files any reference to
the discharges of the above-named employees and
WE WILL notify them that we have removed from
our files any reference to their discharges and that
the discharges will not be used against them in any
way.
HEBERT PATTERN SHOP, INC.
Susan Cole, Esq., for the General Counsel
Robert Wethrauch, Esq, for the Respondent.
Alice Costello organizer, of Worcester, Massachusetts, for
the Charging Party.
285 NLRB No. 69
556 DECISIONS OF THE NATIONAL, LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. The
charge in Case 1-CA-23549 was filed on 7 February
1986 and amended on 23 April 1986 by United Steel-
workers of America, AFL-CIO-CLC (Union). The
charge in Case 1-CA-23594 was filed on 25 February
1986 by the Union. The consolidated complaint issued 24
April 1986 alleging that Hebert Pattern Shop, Inc. (Re-
spondent), violated Section 8(a)(1) and (3) of the Nation-
al Labor Relations Act by discriminatorily discharging
its employees, James Patch and Michael Manning.
These cases were tried before me on 29 and 30 May
1986 in Boston, Massachusetts. All parties were repre-
sented at the hearing and were afforded full opportunity
to be heard and to present evidence and argument. The
General Counsel and Respondent filed briefs. On the
entire record, and from my observation of the witnesses'
demeanor, and due consideration to the briefs, I make
the following
FINDINGS OF FACT'
Respondent at all relevant times, has operated a small
pattern shop and aluminum foundry in Worcester, Mas-
sachusetts. The pattern shop and main offices are located
on Grafton Street, the foundry on Southbridge Street, 6
miles distant.2 The foundry employs 8 or 10 production
employees, the pattern shop employs 2 patternmakers
and I bookkeeper. The business is co-owned by Norman
Hebert, its president, and Ken McBride, its executive
vice president and treasurer. Hebert maintains his office
at the Southbridge facility and handles the production
end of the business while McBride has his office on
Grafton Street and is ,generally in charge of administra-
tive matters.
Hebert spends at least 50 present of his time out on the
production floor, carrying castings to customers and
helping the rank-and-file employees melt, pour, and mold
aluminum castings, doing a little bit of everything. Along
with Hebert there is one supervisor, Richard Patch, who
supervises the employees directly. Discipline is in the
hands of McBride, Hebert, and Patch, who make deci-
sions on matters of discipline jointly after consultation
with one another. Most disciplining has had to do with
absenteeism, which has been the most important concern
of management over the past year due to the failure of
Respondent to meet its production schedule.
In 1985, despite management 's concern, the attendance
record of many employees was very poor. There was no
disciplinary system established to punish employees for
unexcused absences or tardiness, so Supervisor Patch
suggested to Hebert and McBride several times that
some disciplinary system be instituted to curb the exces-
i The complaint alleges and the answer admits that the Board has ju-
risdiction and that the Union is a labor organization within the meaning
of the Act
2 The foundry was moved from its Grafton address to its Southbridge
address in 1985, and since then, Respondent has been in the process of
moving the rest of its facilities there as well. By about the date of the
hearing the move was just about complete
sive absenteeism. Nothing, however, was done and ab-
senteeism continued to be a problem. Finally, in the fall
of 1985, his suggestion was accepted and it was agreed
that a disciplinary system would be established whereby
employees who were absent without excuse would suffer
a series of suspensions; then, if their absences continued,
they would be terminated.
In June 19853 Supervisor Patch asked McBride if he
would hire his son, Jim. McBride agreed and J. Patch
proved to be a good worker who put forth much effort.
Because Patch was aware that J. Patch had had attend-
ance problems at his previous place of employment, he
warned J. Patch that if he got the job with Respondent
he would have, to, come to work every day., Thereafter,
whenever J. Patch missed a day, Patch would yell at
him, and warn him that if he continued to miss work, he
would be fired.
In October, J. Patch was late or absent 17 workdays,
far in excess of any other production employee at the
Southbridge plant.4 In November the Respondent
clamped down on absenteeism. When three employees, J.
Patch, Mike Manning, and Eddie Ramos missed work or
were late on 1 November, and the same three, plus em-
ployee Stephen Hadala, were absent all day 11 Novem-
ber they were all suspended for 3 days, 12 through 14
November When -Patch suspended them, he also advised
them that continued absences could result in termination.
Following their suspension, J. Patch missed 1 more
day in November and was late or absent on two occa-
sions in mid-December; Manning was late 1 day in No-
vember and late or absent 4 days in mid-December;
Ramos was late or absent 2 days in November and 8
days in December.' Other production employees, during
the'same period, were late or tardy on from 0 to 5 days.
Another meeting of management was held and it was de-
cided once again to suspend J. Patch, Manning, and
Ramos because they had again been absent or late since
their November suspensions. This time they were sus-
pended for 5 days, 30 December through 3 January
1986.6 Unlike the November, suspensions, which oc-
curred the day following their absences, the December
suspensions occurred a week or more after their last ab-
sences. No other -production employees were suspended
although at least one7 had more absences than J. Patch.
When Supervisor Patch told the three employees that
they were suspended, he also told them again that if they
continued to be absent from work they could get fired,
and that McBride was after Patch because of the time
the employees missed. McBride, during the previous
8 All dates are in 1985 unless otherwise noted
4 The patternmakers were considered skilled employees and enjoyed
special status , better wages, and superior working conditions at the Graf-
ton location Apparently, the new disciplinary system regarding absences
did not apply to them Frank Merrill, an employee with 12 to 15 years'
seniority, was also permitted some leeway as far as absences and tardiness
were concerned
5 Hadala left the employ of the Company shortly after his suspension
in November
6 Hereafter all dates are in 1986 unless otherwise noted
7 Gordon Pierce was absent 3 days during this period, while Patch was
absent only 2 days. Pierce's absences may or may not have been excused
HEBERT PATTERN SHOP 557
management meeting , told his supervisor to warn them
of this possibility.
On Saturday, 18 January, Patch was told by his wife
before he left for work that J. Patch's girlfriend had
called and said that J. Patch had a hangover. Patch then
went to work. J. Patch did not show up, nor did Eddie
Ramos, though both were scheduled to work that day.
Ramos did not call in.
About 9 a.m., on 18 January, Hebert arrived at the
foundry. Patch was already working. When Hebert
asked how things were going, Patch replied, "not too
good," explaining that J. Patch had not reported for
work. He told Hebert that J. Patch had received a $500
check the day before from his insurance company and
decided to take the boys out for some beer. He added
that apparently J. Patch was hung over and could not
come in. Patch told Hebert that he had called J. Patch's
place twice , but that his girlfriend could not wake him.
She told Patch that she would try to get him up and to
work because she, too, was afraid he would lose his job.
Patch acknowledged that the Company had production
problems; that it could not keep up as it was; and that J.
Patch 's and Ramos' absences were going to make the
problem that much worse. He said that the Company
would be going that much further in the hole and would.
wind up having to work more hours and more Saturdays
in order to catch up. Patch told Hebert that he expected
McBride to fire J. Patch and Ramos, but he did not want
to lie about it, and wondered what could be done.
Ten o'clock rolled around and neither J. Patch nor
Ramos had reported to work. Patch said that was it; that
McBride was going to fire him. He told Hebert that he
hated to lose J. Patch, now that they were getting some
production. Hebert acknowledged that Patch was prob-
ably right
After a break in the conversation, Hebert brought up
the subject once again . He told Patch that he was prob-
ably right, that both J. Patch and Ramos had already
been suspended and would probably be discharged.
Patch said, yes, that that was what he was afraid of. He
then added, however, that with all the problems they
had had with the bobcat" the day before, they probably
could not have worked the guys efficiently that day
anyway. Hebert agreed. Patch suggested that because of
the bobcat difficulties, perhaps they should excuse J.
Patch's and Ramos' absences. Hebert did not want to
lose J. Patch's services either, so it was agreed that nei-
ther would say anything about their absences, and if the
subject should come up they would say that the bucket-
loader was not working so they did not have to come in.
The truth of the matter was, however, that if they had
come to work that day there were a number of jobs that
they could have performed. As agreed, J. Patch and
Ramos' absences were not reported that day to McBride
On Monday, 20 January, when J. Patch reported to
work his father told him that he was lucky, that the
bobcat was broken, and that had he reported to work on
Saturday, he could not have worked anyway. He added
that J Patch was excused for that reason. Later that day,
McBride called Supervisor Patch and asked him who
was in the previous Saturday. Patch replied that Ramos
and J. Patch had been out, but that Hebert and he had
excused their absences because of problems with the
bobcat. McBride said nothing about the absences, but
only discussed with Patch the problems with the bobcat
and the necessity of having it repaired.
About this time in January McBride advised Supervi-
sor Patch that he had received reports that certain em-
ployees, including J. Patch, had been seen smoking pot
in Respondent's parking lot. McBride said that he did
not know if Patch was aware of it, but that he would not
tolerate the employees smoking pot on the premises,
either in the shop or in the parking lot, and he wanted it
stopped. McBride told Patch to speak to the employees
about it. As a result of the conversation between
McBride and Supervisor Patch, the latter spoke with the
employees, told them that the smoking of pot would not
be either condoned or tolerated, and that it would be a
dischargeable offense if anybody was caught
Shortly afterwards, a couple of employees, Steve
Clark and J. Patch, were seen smoking pot in the park-
ing lot . McBride discovered it and told Patch to call the
individuals into the office so that he, personally, could
talk to them and make sure that everybody knew that
smoking pot was a dischargeable offense. He told Super-
visor Patch to advise them that they could no longer
leave the building during lunch or breaks and to send
them in to see him so that he could explain to them why
they could no longer leave the building to go to lunch.
As ordered, Patch called the two employees separately
into the office where McBride was waiting to speak to
them in the supervisor's presence. Once inside, each was
told by McBride that he had been seen smoking pot in a
truck in the parking lot and that this was a dischargeable
offense. McBride added that they had already been told
this by Supervisor Patch, that he was telling them again,
and for that reason , there would be no more lunchbreaks
outside; that from then on everybody would have to take
his lunchbreak inside.9 J. Patch wanted to know if it was
lawful for the Company to keep him from going out to
lunch as long as he punched out McBride said it was.
Respondent first leased the space in the building at the
Southbridge location in July 1985 for the purpose of
moving its entire facility there from the Grafton location
The landlord, however, ran into financial difficulty and
was unable to complete the renovations agreed on the
lease . Thus, he was neither able to construct the walls
for the pattern shop as quickly as agreed on nor was he
able to install the hot water heaters. Electrical contrac-
tors were busy and it was difficult to get them to get
things hooked up. Therefore, there was no heat, hot
water, shower, or even drinking water at Southbridge,
where the employees in the winter months worked in
temperatures below zero. In addition, employees were
forced at times to work with faulty equipment. J Patch
complained several times about these working conditions
a A piece of equipment used to move sand The previous day this piece
of equipment had problems with the hydraulic line, which controls the
bucket It was spewing oil all over the floor
9 J Patch denied being told why he was no longer being allowed to
leave the building to go to lunch I credit the testimony of Supervisor
Patch and McBride over that of J Patch
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
both to his father, the supervisor, and to Hebert.
McBride, in,,turn, unsuccessfully, harassed the landlord.
Back in August 1985 J. Patch had a work-related acci-
dent due to which he lost 8 days work. He did not re-
ceive his workmen's compensation check until the fol-
lowing January. In the meantime he complained to
McBride, to Hebert, and to his father about not receiving
the check. McBride told him on these occasions, which
were about once a week, that he had not yet filed the
paperwork. Sometimes J. Patch would ask his girlfriend
and his father to contact McBride and ask him about the
check. McBride admitted that J. Patch complained about
these working conditions and nagged him personally,
through his father and his girlfriend, about not receiving
his check. The record contains some indication that
McBride was annoyed at having to deal with the girl-
friends and wives over such matters.
For weeks and possibly months the employees suffered
the adverse working conditions in the foundry, com-
plaining to management about the cold and lack of
drinking water, hot water, and showers. To make mat-
ters worse they were now forbidden to leave the build-
ing to go to lunch Finally, on 22 January, about noon,
while the employees were having lunch in the break-
room and discussing how bad conditions were, J. Patch
brought up the subject of forming a union . There were
six employees participating in the discussion. Three of
them agreed with J. Patch that something had to be
done. Two of them were against union representation;
they were Frank Merrill, an older employee who appar-
ently enjoyed special status,1° and Roland Newton who
was vociferously antiunion and who loudly complained
about past wrongs that he had previously suffered at the
hands of a union.
After the noontime conversation J. Patch obtained
permission to use the telephone. He called his girlfriend
and requested that she contact the NLRB to find out
whether it was against the law for the Company to keep
employees from leaving the building to go to lunch. Ten
minutes later she called back and told him that McBride
was right, that the Company could keep its employees in
the building during lunchbreak. Patch then directed her
to pick a union out of the phone book, contact that
union, and find out what steps had to be taken to join.
About 2:15 p.m., during the employees' last break, J.
Patch's girlfriend called him and told him that she had
contacted the Steelworkers and that she had been told to
find out when the employees could meet with a union
representative. J. Patch told her that he would call her
back with the information and hung up the phone. He
talked to the other employees in the breakroom and it
was decided to meet with the union representatives the
following Saturday. J. Patch then called his girlfriend
back and told her to make arrangements. The meeting
was scheduled for Saturday at the union hall.
On 22 January, the same day that J. Patch was making
arrangements for a meeting with the Union, Ramos was
absent from work. He did, however, call in to report to
the secretary, that he would not be in. The secretary, in
10 Merrill was frequently absent from work but, unlike I Patch, Mike
Manning, and Eddie Ramos, was never disciplined for his absences
turn, advised Supervisor Patch that Ramos would not be
in because he was having troubles with his wife. Supervi-
sor Patch then told McBride that Ramos had not shown
up for work. He also told him Ramos' reason for not re-
porting, commenting that he thought it was a lousy
excuse. McBride agreed and told Patch to fire Ramos
the following day if he came in.
On Thursday, 23 January, when Ramos reported for
work, Supervisor Patch met him at the door and told
him that he was fired for excessive absenteeism. McBride
testified that he was determined to fire Ramos because
his suspensions in November and December apparently
had no positive effect on his attendance.
The union meeting took place as scheduled on 25 Jan-
uary. Present at the meeting were employees J. Patch,
Steve Clark, and Gordon Pierce. Also present were two
union representatives and J. Patch's girlfriend. After
some discussion about the need of the employees for a
union and about the organizing procedure, literature and
union cards were distributed with directions to get a ma-
jority of Respondent's employees to sign the cards. The
three employees present signed cards while there and re-
turned them to the union representatives. Patch stated
that he could get the other employees signed up and
would be back the following Monday with the signed
cards. Sunday, J. Patch told his father that he and some
of the other employees were thinking of joining the
Union.
On Monday, 27 January, before starting work and
during breaks, J. Patch and Steve Clark talked to the
other e>miployees about the Union and solicited them to
sign union cards. The solicitation took place in the
breakroom and in the restroom and locker area early in
the morning, where J. Patch spoke to three employees,
including Frank Merrill. Some card signing took place in
these areas used by rank-and-file employees and manage-
ment personnel alike. Everyone incuding Hebert has a
locker in the locker area and it is quite possible for some-
one in the locker area to hear conversations taking place
in the restroom area without been seen. A few pamphlets
were later seen lying around in the restroom according
to the testimony of employee Gordon Pierce.
Later in the day, on 27 January, J Patch went down
to the grinding room and spoke with Ramualdo Roman,
another employee. He told Roman that all the employees
were going to join a union and that he had a card for
Roman to sign. Roman does not understand or speak
English well, but J. Patch showed him some union litera-
ture anyway and explained that the signing of the card
was not a vote, but merely helped toward getting a ma-
jority of employees signed up so that they could hear a
union out Roman took a card out of his pocket with his
name and address on it. Patch copied this information
down on the union card and then had Roman sign it.
Roman started talking rather loudly in Spanish saying,
"surprise, surprise!" Patch just laughed. Meanwhile
Hebert was just three tables away. -
That day J. Patch had several conversations about the
Union with other employees. He spoke to employees in
the parking lot and in the breakroom. Either the same
day or during one of the next few days, J. Patch talked
HEBERT PATTERN SHOP
to one of the pattern makers,, Ray Smith, on the plant
floor at Southbridge Smith had come over from the
Grafton plant to fix a furnace J Patch asked him if the
pattern makers were in a union Smith said no, that
McBride would not hear of it J. Patch asked him how
he felt about having a union Smith shrugged his shoul-
ders and walked away. J. Patch did not pursue the
matter.
After obtaining several signatures on the union cards
on 27 January, J. Patch and Clark, after work, turned
these cards in at the union office. On 28 January the or-
ganizing continued More signatures were obtained and
these cards were turned in at the end of that day.I I Also
on 28 January, the Union sent a letter to McBride advis-
ing him that a majority of Respondent's employees had
designated the United Steelworkers of America as their
collective-bargaining representative and demanding rec-
ognition
The demand letter was received and signed for by
McBride on 30 January. McBride testified that he was
concerned and disappointed that his employees felt that
they needed a union . He showed the letter to Hebert and
they discussed what should be done next at lunch that
day It was decided that they should get a lawyer.
Hebert testified that prior to seeing the demand letter
he knew nothing about the union activity at the foundry.
He denied hearing any discussions about the Union and
testified that he had seen no union literature prior to
being shown the demand letter by McBride
Hebert testified that when McBride showed him the
demand letter, he could not believe it He testified that
up until the time of the hearing he had no idea who initi-
ated the union activity nor who had signed cards. Al-
though J. Patch testified that from the time the Company
found out about the Union the employees talked openly
about the Union everyday and argued for or against
unionization , the evidence is not at all clear as to precise-
ly when the Respondent became aware of the presence
of union activity among its employees McBride admitted
to seeing "buttons and what not " around the foundry
after 30 January.
The same day that McBride received the demand
letter, the Union filed a petition for certification of repre-
sentative with the Board. Notification of the filing was
received by Respondent at its Southbridge location and
signed for by Supervisor Patch on 3 February. Shortly
after receiving the Union's demand letter or a copy of
the petition, McBride sought the advice of an attorney
because, as he testified, "... the thing that we wanted
was to continue to run our business."
After receipt of the petition, McBride and Hebert dis-
cussed the NLRB election process between themselves.
Hebert testified that he was in a "down mood" and dis-
appointed about the employees becoming involved with
the Union. He testified to being concerned and hurt that
the employees could not understand that it was not the
fault of the Company that it was cold in the shop and
there was no hot water. Indeed, McBride had tried to
get the landlord to correct the situation. Despite his feel-
ings, however, Hebert did not discuss the Union or the
11 In all, 10 signed cards were turned in to the Union
559
employees' union activities with the employees because
he had been advised by Respondent's attorney about the
proscriptions of the Act.
Following his discharge on 23 January, Ramos filed a
claim with the Commonwealth of Massachusetts-Divi-
sion of Employment Security. An agent of that office
subsequently called McBride and advised him that
Ramos had told her that although he had been fired for
absenteeism, another employee of Respondent had also
been absent and had not been fired. The agent voiced
some concern that Ramos, a Puerto Rican, may have re-
ceived disparate treatment in that his discharge may have
been discriminatorily motivated. McBride asked the
agent for the name of the other employee to whom
Ramos had referred, but the agent did not know his
name.
According to the testimony of McBride and Hebert,
on 4 February, the day after Respondent received the
petition, the two owners of the Company again went to
lunch together, a not unusual occurrence Though the
petition for an NLRB election had been received just the
day before, and despite the fact that both McBride and
Hebert testified to being concerned and disappointed that
their employees were organizing, nevertheless, McBride
testified that neither the petition nor unionization was
discussed during the 4 February luncheon 12 Rather, ac-
cording to McBride, at lunch, on that day, he and
Hebert discussed the call from the employment security
division and the termination of Ramos a week and a half
earlier. Hebert supported this testimony.
According to the testimony of Hebert during the 4
February luncheon, McBride told him about the call
from employment security, the possibility of a charge of
racial discrimination based on disparate treatment, and
his intention to look into the matter . Hebert testified that
when he heard this he "put two and two together."
Knowing that Ramos' father -in-law, Romualdo Roman,
was still employed by Respondent and had been so em-
ployed for several months, Hebert figured that Roman
knew that J. Patch had been absent on 18 January, the
same day Ramos was out , and J Patch had not been
fired for it as had his son -in-law . Hebert reasoned that
though Roman, Ramos, and the employment security
people were advised of the apparent disparate treatment
of J. Patch and Ramos for their absences on 18 January
this was the reason that employment security called
McBride. Hebert testified that it was at this point during
the luncheon conversation that he told McBride that J.
Patch had been absent on 18 January and the reasons for
that absence. Apparently having great and sudden pangs
of conscience Hebert bared his soul and revealed all. As
he testified , "carrying a lie that far , to me, was too
much."
I find Hebert's testimony on this subject more likely
the product of a fertile imagination than of the mathe-
12 More specifically McBride successfully sidestepped the issue while
being cross-examined by counsel for the General Counsel In his testimo-
ny McBride implied that the only luncheon discussion that he had with
Hebert concerning the Union occurred on 30 January and that the only
matters discussed on 4 February were those described above in the text
of this decision
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
matical logic that he ascribed to it. There are a number
of reasons, I find Hebert's cockamamy scenario less than
convincing but, at this point, suffice it to say that the
record is replete with evidence that Ramos was fired on
23 January because of his absence on 22 January and that
his termination had absolutely nothing to do with his or
J. Patch's excused absence on 18 January.
According to McBride, when Hebert told him, at
lunch on 4 February, that J. Patch had been absent since
his suspension, it was the first time he had heard about it.
McBride testified that it was a "slip" on Hebert's part.
However, Supervisor Patch credibly testified that he told
McBride on 20 January that J. Patch and Ramos had
been absent the previous Saturday but had been excused.
I find, therefore, that McBride knew all along that J.
Patch had been absent on 18 January, and to the extent
that he claimed that he found out for the first time on 4
February about Patch's absence on 18 January, his testi-
mony is not credited.
McBride's version of his 4 February luncheon conver-
sation with Hebert differs markedly from that of the
latter. i s According to McBride, when he told Hebert
about the call from employment security, Hebert
"slipped" and told McBride that J. Patch had been out,
but he did not know when. McBride testified, contrary
to Hebert, that Hebert did not, at this time, tell McBride
the reason for J. Patch's absence nor, mention the fact
that he had been excused.
After lunch, according to McBride, he went back to
the office and looked at J. Patch's records. He did not
bother to check the records of any other employees"be-
cause, according to McBride, Hebert had only told him
about J. Patch's absence. On discovering that J. 'Patch
had been absent on 18 January, McBride testified, he
wanted to know why and called Supervisor Patch to
find out. It was Patch, not Hebert, according to
McBride, who told the latter that J. Patch had missed
work on 18 January because he had a hangover. Clearly,
Hebert and McBride's testimony does not jibe concern-
ing this issue.
It was on the morning of 5 February14 that McBride
called Supervisor Patch to check out the reasons for J.
Patch's absence on 18 January. According to McBride's
testimony, Patch volunteered the explanation that J.
Patch had received an insurance check on Friday, 17
January, cashed it, went out drinking, had too much to
drink, then could not get up to go to work the next day.
On the basis of this explanation, McBride testified, he in-
structed Patch to terminate his son for excessive ab-
sences. McBride's decision to terminate J. Patch was the
result of his two suspensions, followed by his "uncon-
donable" absence on 18 January. According to McBride
there was only one telephone call between Patch and
himself on February concerning this matter.
Patch's testimony concerning the events of 5 February
differs markedly from that of McBride. According to
Patch there were several conversations between
18 When there is contradictory testimony between McBride and
Hebert, I credit Hebert
14 At one point McBride mistakenly identified this conversation as
having occurred on 4 February
McBride and himself that day. In the first telephone con-
versations McBride told Patch that he had been talking
to Hebert at lunch and he had just 'found out that the
reason for J. Patch's absence on Saturday, 18 January
was that he had been drinking the night before and could
not get to work. Patch was dumbfounded. He stated,
"That's not true. Jimmy had an excused absence and I
told you about it." He told McBride that J. Patch's ab-
sence had been the only one since his suspension in De-
cember. He said, that he had excused the 18 January ab-
sence on the basis of the bobcat not working properly
and told McBride that Hebert had participated in the de-
cision to excuse J. Patch and Ramos.
After receiving McBride's call, Patch immediately
confronted Hebert stating, "Norman, what in the hell are
you doing to me? Ken thinks I'm lying." The two dis-
cussed J. Patch's absence on 18 January. Patch said to
Hebert, "I kind of confided in you in that, and we came
up with an excuse that that was going to be an excused
absence for the two of them." Hebert replied, "Oh my
God, I forgot all about that." Patch said, "Well, Ken
thinks I'm lying out my teeth" so Hebert offered, "Well,
I'll call Ken right up and straighten the whole thing
out."
Apparently Hebert did, in fact, call McBride. He told
McBride that Patch had been concerned on the morning
of 18 January that his son might lose his job, so he made
numerous unsuccessful attempts that morning to contact
J. Patch to get him to come to work. Hebert explained
to McBride how Patch had told him that he was con-
cerned that McBride would insist on firing J. Patch and
had asked him if there was something that could be done
about it. McBride testified that Hebert had told him that
Patch, on 18 January, had suggested some kind of con-
trived excuse to cover J. Patch's absence, and that
Hebert admitted that he had agreed with Patch to go
along with the excuse to the extent that he would not
say anything about it. Then, McBride testified, Hebert
slipped up and mentioned it on 4 February. This testimo-
ny is contrary to his earlier testimony to the effect that
on 4 February Hebert had only mentioned the fact that
J. Patch had been absent and had said nothing concern-
ing the reasons for his absence. It is also contrary to his
earlier testimony that he had learned from Patch, not
from Hebert, about the reasons for J. Patch's absence.
Later in the afternoon of 5 February, according to the
credited testimony of Patch, he received a second call
from McBride. McBride advised Patch that he had re-
ceived a call from Hebert, who had confirmed that both
Hebert and Patch had, in fact, excused J. Patch and
Ramos on 18 January. McBride said that he was not call-
ing Patch a liar , but then added that the excusing of J.
Patch and Ramos was after the fact; that they had been
scheduled to work that day and had not shown up; and
that Hebert and Patch had excused J. Patch and Ramos
only after they failed to show up. McBride stated that J.
Patch and Ramos should have been fired at the time and
that Patch would have to fire J. Patch that day, 5 Febru-
ary.15
15 When there are contradictions in the testimony of McBride and
Patch, I credit Patch
HEBERT PATTERN SHOP
In the late afternoon or early evening of 5 February,
after arriving home from work, Patch called his son He
stated that there were some things going on at the shop,
that he had to do some things that he did not want to
do. He then told Patch that he had to fire him because of
his absence back on 18 January He added that he did
not know why he had to fire his son for his 18 January
absence when employee Frank Merrill had missed work
that Saturday and Mike Manning had missed that
Monday and neither of them was getting fired.'s Patch
added that Frank Merrill had the worst record of the
whole shop and nothing ever happened to him; that he
"was never suspended or anything."
Patch then told J. Patch that he was also going to
have to call Romualdo Roman and fire him for breaking
a casting earlier in the day 17 He added that he knew
that J. Patch was trying to get a union in the place and
felt, in his own mind, that McBride was trying to get rid
of him and Roman He explained that it was all tied in
with the letter from the Union; that when McBride had
gotten the letter, "the shit hit the roof " He said that he
knew that McBride had J Patch and Roman pinpointed
as leaders of the Union because Roman's son-in-law,
Ramos, had been fired and because J Patch was just a
troublemaker. That day, Patch fired both his son and
Romualdo Roman.
After J. Patch's conversation with his father and his
termination on 5 February, he called the Union. On 7
February the Union filed a charge on his and Roman's
behalf. A copy of the charge was served on Respondent
on 10 February.
On 17 February, 10 days after the charge was filed by
the Union on Patch's and Roman's behalf, Mike Manning
was absent from work, cause unknown. On 21 February,
according to McBride's testimony, he learned that Man-
ning, like J Patch , had been absent since his last suspen-
sion . McBride testified that because he had previously
made such an issue of the fact that he had not received
all of the information on J Patch's absence, he deter-
mined to have Manning's records brought to him.18 The
records indicated that Manning had indeed been absent
on 20 January and 17 February. According to McBride,
on advice of counsel, relative to going on with business
as usual , presumably in the face of outstanding unfair
labor practice charges, he called Patch and told him to
terminate Manning because he was one of three employ-
16 The attendance records indicated that Merrill had unexplained ab-
sences on Wednesday and Thursday, 15 and 16 January , and Tuesday, 4
February while Manning had, as stated , been absent on Monday, 20 Janu-
ary
17 On 7 February the Union filed the charge in the instant case naming
J Patch and Romualdo Roman as discrimmatees On 23 April the Union
filed an amended charge from which Roman ' s name had been deleted
The complaint , which issued on 24 April, did not allege Roman as a dis-
crimmatee
The record is confused and incomplete concerning the basis on which
it was decided that Roman should be fired Clearly, he was suspected of
having deliberately destroyed a casting However , the record before me
seems to suggest that proof was lacking and that his arguing over the in-
cident may have had more to do with his termination than the broken
casting In any case , Roman was fired 5 February
11 Tr 139 Elsewhere , Tr 190, McBride testified that he did not exam-
ine Manning 's records
561
ees who had been suspended twice for absenteeism and
who was subsequently, nevertheless, absent again.
According to the credited testimony of Patch,19
McBride called him late in the afternoon of 21 February.
McBride told him that he had been reviewing the
records and had seen that Mike Manning had missed a
day He said that with all of the past discrimination prob-
lems that he had been having, and with the filing of the
"union charges by Jimmy," he had no other choice in
the matter, that the Company would have to discharge
Manning. Manning was fired later that day and was told
that the reason was absenteeism. On 25 February the
Union filed a charge on his behalf.
On 23 April the original charge was amended to delete
Roman's name On 24 April complaint issued naming J.
Patch and Michael Manning as discriminatees.
I CONCLUSIONS
A. J. Patch
The record reflects that J Patch initiated union activi-
ty, and that he did so on 22 January, when he brought
up the subject of unionization after having voiced dissat-
isfaction with working conditions over a period of time.
He did so because of the lack of heat, hot water, drink-
ing water, and other comforts in the foundry. He was
clearly unhappy about no longer being permitted to
leave the plant during lunch hour and during breaks. As
a result of these working conditions, he spoke with vari-
ous employees at the foundry at lunchtime about work-
ing conditions and suggested unionization Some of the
employees agreed with his position and some did not.
Nevertheless, he made arrangements to have the Union
contacted and to obtain union cards for fellow employ-
ees to sign. Thereafter, he scheduled a meeting at the
union hall with union representatives . He was accompa-
nied to this meeting by two fellow employees and he
signed a card and obtained blank union cards for the sig-
natures of other employees. The following Monday, 27
January, he solicited signatures on the union cards from
other employees while on the Respondent's premises. He
also distributed union literature some of which was left
lying around in areas frequented by members of manage-
ment.
Later in the day on 27 January, J. Patch asked Ro-
mualdo Roman to sign a union card, which he did, Patch
physically helping him to do so. Although J. Patch did
the soliciting, Roman made something of a scene, shout-
ing while Patch laughed. Hebert, half-owner and presi-
dent of the Company, was present at the time, just three
tables away.
That evening Patch and a fellow worker turned the
signed cards in at the Union's office The following day,
he successfully solicited additional signatures and turned
those union cards in as well
From the record it is clear that J. Patch was the insti-
gator of union activity as well as the Union's chief pro-
ponent. He was the individual most involved in the orga-
11 When there are discrepancies in the testimony of McBride and
Patch, Patch's version of events is credited
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nizing of Respondent's employees. I find also that his so-
licitation of Roman's signature on a union card was per-
sonally witnessed by Hebert, the latter' s denials notwith-
standing. Although Hebert was aware of J. Patch' s union
activity, he did not immediately advise McBride of it.
This may have been because the significance of the orga-
nizational activity did not immediately sink in or because
he wanted to protect J. Patch's job, as he had done
when he agreed with Patch not to tell McBride about
the reasons for J. Patch's absence on 18 January.
On 30 January, when McBride received the demand
for recognition and showed it to Hebert, both were con-
cerned and disappointed in their employees. Because
McBride and Hebert "wanted to continue to run their
business" rather than have it run by a union, McBride
obtained the advice of a labor lawyer. The attorney ad-
vised him about Board processes, about the election, and
about the proscriptions of the Act.
On 3 February Respondent received the petition and
cover letter from the Regional Director. The following
day, 4 February, McBride and Hebert went to lunch to-
gether and, despite McBride's testimony to the contrary,
most probably discussed the petition, the election, which
of Respondent's employees were prounion, and who was
responsible for organizing the Union. I reach this conclu-
sion on the basis of the timing of the luncheon discus-
sion, i.e., the day after the petition was received; the ad-
mitted concern and disappointment of the owners when
faced with the fact their employees had chosen to seek
union representation ; the incredible denial that they
would not discuss the petition and forthcoming election
at all at this time; and the events that quickly followed
on the heels of the receipt of the petition and the lunch-
eon meeting . Perhaps the call from employment security
was also discussed at this meeting , but I am certain, for
reasons stated below, that it had nothing to do with
events that followed.
In my opinion it is more than probable that the lunch-
eon meeting was called for the specific purpose of dis-
cussing the petition, the forthcoming election, and the
strategy to be' used to win that election. To use Hebert's
own language , used in a somewhat different context,
when they began discussing which of the employees
were prounion , it jarred his memory and he "put two
and two together." He, recalled seeing J. Patch solicit
Roman's signature on a union card and told McBride
about it. McBride and Hebert determined to rid the
Company of two union votes. However, they were both
aware of the proscriptions of the Act and knew that
some pretext would be needed to hide their true motiva-
tion . It was for this reason that Hebert brought up J.
Patch's, absence on 18 January and the reason for that
absence. It was decided that the excused nature of that
absence should be revoked and that he should be termi-
nated . And so he was. It did not take much longer to
find a reason for getting rid of Roman.20
20 Romualdo Roman was not alleged as a discrimmatee in the com-
plaint I therefore make no finding as to the motivation behind his dis-
charge.
Though McBride testified 'that he was anxious to
prove to employment security that Ramos was not treat-
ed disparately because he was Puerto Rican and that this
was the reason he checked J. Patch's record, I find his
explanation not worthy of credit. If McBride wanted to
show that his treatment of Ramos was no different than
his treatment of other employees, he most certainly
would have checked the absentee records of all employ-
ees, This, he admitted, he did not do. Had he done so, he
would have found that Mike Manning had been absent
on 20 January for unknown cause, that Gordon Pierce
had been absent on 23 January for unknown cause and,
most importantly, that Romualdo Roman, Ramos' father-
in-law and of course, a Puerto Rican, had been absent on
13, 15, and 16 January for unknown causes. None of
these employees had been terminated for these unexcused
absences. If McBride wanted to prove that Ramos' ter-
mination was not based on racial discrimination, all he
would have to do was to tell employment security that
Roman, a Puerto Rican, had been absent three times and
was still employed. But rather than do the obvious,
McBride seized on J. Patch's 3-week-old excused absence
as a pretext to get rid of him. His interest in terminating
J. Patch, for reasons stated, clearly had nothing to do
with racial discrimination but rather with his union activ-
ity, which he learned about right after receiving the peti-
tion, apparently from Hebert.
Contrary to McBride's testimony, I find that he did
not learn from Patch the reasons for his son's absence on
18 January. After all, Patch and Hebert had agreed not
to reveal these reasons and Patch was anxious to protect
his son's job. I find, rather, that Hebert had kept his
word to Patch not to reveal to McBride the fact that J.
Patch was out on 18 January because he had a hangover
that day. However, after Respondent received the peti-
tion, and it became necessary for the two owners to find
some way of getting rid of the union sympathizers,
Hebert decided not only to tell McBride about J. Patch's
and Romualdo Roman's union activity, but to tell him
also about the reason for J. Patch's absence on 18 Janu-
ary in order to have a pretext for firing him.
When Patch called his son on 5 February to tell him
that he was fired, Patch voiced his doubts about the
truth of the reasons given by McBride for J. Patch's ter-
mination. Patch's doubts were based on the same consid-
erations discussed here. But over and above these consid-
erations Patch voiced his belief that McBride was trying
to get rid of J. Patch and Roman for reasons connected
with the Union. His statements to the effect that when
McBride had gotten the letter from the Union "the shit
hit the roof' and that McBride had J. Patch and Ro-
mualdo pinpointed as leaders of the Union, convinces me
that Patch, as a member of management, knew more
than he admitted at trial. As a member of management,
Patch had certain loyalties to the Respondent and other
loyalties to his son. Patch was in the unenviable position
of having to save his own job, which depended on his
loyalty to his employer, while trying to save his son's
job, which depended on telling the whole truth. When J.
Patch testified that his father told him that when
McBride had gotten the letter from the Union, "the shit
HEBERT PATTERN SHOP
hit the roof," no one followed up this testimony to find
out what was meant by the statement Patch did not
deny making the statement nor was he asked to explain
what he meant. I conclude that J. Patch's testimony re-
garding his father's telephone call to him on 5 February
was accurate, that Patch knew more about the reasons
for the termination of J Patch and Romualdo Roman
than he testified to; and that his statements concerning
the reasons for these terminations, i.e., union activity, are
probative of ulterior motivation
The firing of both Romualdo Roman and J. Patch on 5
February not only supports Patch's observation that they
had been pinpointed as the leaders of the Union and ter-
minated for that reason, but also tends to undermine
McBride's explanation concerning why he sought to in-
vestigate the reason for J. Patch's absence on 18 January
Thus, McBride testified that employment security ad-
vised him that there was some concern about racial dis-
crimination being involved in the decision to terminate
Ramos. In order to make certain that there was no basis
for a charge of disparate treatment, McBride testified, he
checked into J. Patch's absentee record. McBride's con-
cern about being suspected of racial discrimination sud-
denly dissolved on 5 February when, along with J.
Patch, he decided to fire Romualdo Roman, the only
other Puerto Rican in the unit
I find Respondent's defense and its witnesses' testimo-
ny are so shot through with inconsistencies that they are
unworthy of belief I therefore find, in accordance with
the allegations contained in the complaint, that a prima
facie case has been presented by the General Counsel
concerning to the termination of J Patch.
First, Respondent was aware that its employee had en-
gaged in union activities. Both McBride and Hebert were
aware of this fact from several sources, particularly from
the receipt on 30 January of the union's letter demanding
recognition and from the receipt on 3 February of the
Board's notice that a petition had been filed.
Second, there is evidence from J Patch's credited tes-
timony that Hebert was close by when J Patch solicited
Roman's signature on a union card and was thus aware
of J Patch's leading role in the organizing of Respond-
ent's employees. Indeed, J. Patch initiated the union ac-
tivity by presenting the idea to the other employees He
then followed up by obtaining union cards and soliciting
signatures from other employees on company property
after which he returned the signed cards to the Union.
He was clearly the chief union activist among Respond-
ent's employees.
Even if Hebert had not witnessed J. Patch solicit
Roman's signatures on the union card, I would have in-
ferred company knowledge through the application of
the small plant doctrine. For indeed there were only
about 8 or 10 employees working at the plant, a proper
number to come within the purview of this doctrine;21
the plant itself was smal122 and open,23 J Patch's union
21 Class Watch Strap Co, 267 NLRB 276 (1983)
22 Florida Cities Water Co, 247 NLRB 755 (1980)
22 Health Care Logistics, 273 NLRB 822, modified 784 F 2d 232 (6th
Or 1986)
563
activity was open rather than secretive,24 Hebert
worked out on the floor, frequently shoulder-to-shoulder
with Respondent's employees;25 the timing of J. Patch's
discharge was suspect, following by 1 day the luncheon
meeting between McBride and Hebert and the receipt of
the Union's petition;26 and the Respondent's reasons for
the termination of J Patch clearly were pretextious in
nature 27 The elements necessary for application of the
small plant doctrine are present in this case
The General Counsel has submitted a prima facie case
J Patch was the most active union adherent He openly
solicited signatures on union cards from fellow employ-
ees. The General Counsel offered direct and inferential
evidence to show that Respondent was aware of Patch's
union activity Both McBride and Hebert testified that
they were against the Union coming into the plant to
represent their employees. The timing of Patch's termi-
nation supports the General Counsel's theory that he was
fired because of his union activity
Unlike the case presented by the General Counsel, Re-
spondent's proffered reasons for discharging J. Patch,
and the circumstances surrounding his discharge are
more than suspect. Thus, McBride's testimony that the
day after he received a copy of the petition he met with
Hebert but never discussed the petition is incredible in
light of his admitted desire to keep the union out His
testimony that he decided to check out only J. Patch's
absentee record when faced with a possible charge of
racial discrimination regarding the termination of Ramos
is likewise incredible. His decision to revoke J Patch's
excused absence was a singularly unusual occurrence.
Hebert and Patch had never before been reversed on any
of their decisions regarding whether or not to excuse an
absence, and this variance from past practice is evidence
of discriminatory motivation.28 Similarly, J Patch's
reason for being absent some weeks before, i.e, a hang-
over, could not have been as objectionable to McBride's
sensibilities as he implied inasmuch as management freely
admitted that another employee, Frank Merrill, frequent-
ly missed days due to alcoholic problems Such disparate
treatment of union activists as opposed to the treatment
of other rank-and-file employees, especially where a
Board election is imminent and antiunion animus has
been demonstrated, has been found, under established
Board law, to be inferential of discriminatory motiva-
tion,29 and I so find in these circumstances
The General Counsel has made a strong prima facie
showing that J. Patch' s union activities were a motivat-
ing factor in Respondent's decision to discharge him. For
reasons set forth above, I find that Respondent has failed
to show that J. Patch would have been discharged even
in the absence of his union activity. Accordingly, I con-
clude that Respondent discharged J Patch because of his
24 Ibid Pay 'N Save Foods, 257 NLRB 1228 fn 1 (1981)
15 Judy Hornby Designs, 279 NLRB 1271 (1986)
26 Mister Fox Tire Co, 271 NLRB 960 (1984)
27 Ibid Pay 'N Save Foods, above, Sands Motel, 280 NLRB 132 (1986),
Syracuse Dy-Dee Diaper Service, 251 NLRB 963 fn I (1980)
28 Class Watch Strap Co, above
29 Brigadier Industries, 267 NLRB 559 (1983)
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union activities, in violation of Section 8(a)(1) and (3) of
the Act 30
B Michael Manning
As noted in an earlier section of this decision, Mike
Manning was one of the employees suspended in No-
vember and December 1985 and in early January 1986.
He was also absent on 20 January but the record con-
tains no evidence that Manning was disciplined for his
absence or was warned about it at the time.
On 5 February J Patch was fired for engaging in
union activity, but the pretextual reason given to him by
Respondents was excessive absenteeism, in particular, his
absence on 18 January. The unfair labor practice charge
was filed on behalf of J Patch and Romualdo Roman on
7 February and a copy of the charge was served on Re-
spondent on 10 February.
On 17 February Manning was again absent from work.
This absence and Manning's 20 January absence, accord-
ing to McBride, came to his attention on 21 February.
Aware of the outstanding unfair labor practice charge,
McBride called his attorney to ask him for advice. After
being told to carry on business as usual, McBride called
Patch later that day He told Patch that he had been re-
viewing the records and had seen that Manning had
missed a day. He said that with all the past discrimina-
tion problems that he had been having, and with the
filing of the "union charges by Jimmy," he had no
choice in the matter; that the Company would have to
discharge him. Manning was fired later that day with ab-
senteeism given as the reason.
I have found that J. Patch was not fired for absentee-
ism but because of his union activity I have found that
Respondent used absenteeism as a pretext when it fired J.
Patch. It follows that when Manning was absent on 20
January nothing was done about it because McBride was
not as concerned lately about absenteeism as he pro-
fessed to be Indeed, employee Gordon Pierce had one
unexcused31 absence in January and six in February;
Frank Merrill had two in January and three in February;
and Romualdo Roman had three in January, and there is
no evidence that any of these employees were counseled
about excessive absences, much less disciplined It was
not until after Respondent received a copy of the charge
on 10 February that McBride recognized that his pretex-
tual defense to the charge involving J Patch would be
untenable unless he terminated Manning as he had J
Patch. In my opinion, McBride ordered the termination
of Manning as part of an effort to camouflage his dis-
criminatory discharge of J Patch The discharge of
Manning was undertaken in an attempt to validate or
vindicate the discharge of Patch and as such was in vio-
lation of the Act 32
10 Wright Line, 251 NLRB 1083 (1980), enfd 662 F2d 899 (1st Car
1981)
" Listed as for " unknown cause" in the Respondent ' s attendance
records
12 Armcor Industries, 217 NLRB 358 (1975), L C Cassidy & Son, 272
NLRB 123 (1984)
Inasmuch as I have found that the General Counsel
has presented a prima facie case concerning the discrimi-
natory discharge of Manning, just as in the case of J
Patch's discharge, and have found as well that Respond-
ent's proffered reasons for the discharge of Manning
were pretextual, I consequently find that Respondent
would not have discharged Manning in the absence of its
earlier discriminatorily motivated discharge of J. Patch
The discharge of Manning was therefore, in violation of
Section 8(a)(1) and (3) of the Act.33
11 THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its operation described above,
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.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act, I will recommend that it be ordered to cease
and desist therefrom and to take appropriate and affirma-
tive action designed to effectuate the policies of the Act.
In particular, as I have found that employees James
Patch and Michael Manning were discriminatorily dis-
charged, I will recommend that Respondent be required
to offer them full and immediate reinstatement with
backpay and interest to be computed in the manner pre-
scribed in F W. Woolworth Co, 90 NLRB 289 (1950),
and Florida Steel Corp, 231 NLRB 651 (1977).34
CONCLUSIONS OF LAW
I Hebert Pattern Shop , Inc. is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act.
2 United Steelworkers of Amercia , AFL-CIO-CLC is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By terminating the employment of J. Patch and Mi-
chael Manning to discourage membership in the Union,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed35
33 Wright Line, above, NLRB v Transportation Management Corp, 462
U S 393 (1983), Roure Bertrand Dupont, Inc, 271 NLRB 443 (1984),
Centre Property Management, 277 NLRB 1376 (1985)
34 See, generally, Isir Plumbing Co, 138 NLRB 716 (1962)
35 If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
HEBERT PATTERN SHOP 565
ORDER
The Respondent, Hebert Pattern Shop, Inc., Worches-
ter, Massachusetts, its officers, agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee in regard to his hire or tenure of employ-
ment or any term or condition of employment in order
to discourage membership in United Steelworkers of
America, AFL-CIO-CLC or any other labor organiza-
tion.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer J. Patch and Michael Manning immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them , in the manner
set forth in the remedy section of the decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant in Worcester, Massachusetts,
copies of the attached notice marked "Appendix."36
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
36 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "