Hesse Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1978

235 N.L.R.B. 90 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hesse Corporation and International Union (UAW)
and its Local 710. Case 17-CA-7554
March 14, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On November 23, 1977, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
WE WILL NOT lay off, discharge, or otherwise
discriminate against our employees because of
your union activities.
WE WILL NOT discourage membership in Inter-
national Union (UAW) and its Local 710, or any
other labor organization, by discriminating
against our employees in regard to your hire and
tenure of employment or any terms and condi-
tions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act, as amended.
WE WILL make whole the following employees
who were laid off on January 31, 1977, plus
interest:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Hesse Corpora-
tion, Kansas City, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the
attached notice is substituted for that of the Admin-
istrative Law Judge.
The 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
In the absence of exceptions thereto, we adopt, pro forma, the Adminis-
trative Law Judge's dismissal of the allegation that the Respondent violated
Sec. 8(aXI) of the Act concerning the Baxter-Ireland incident on January
27, 1977.
Robert Brackenbury
Jack Curtis
Ron Davidson
Amos Eastman
David Eaton
William Floyd
Rodney Hamilton
William Hearn
Dennis Kirby
Dennis Knabe
Walter Leatherman
James Martin, Jr.
Marvin Miller
Mike Pennington
Don Poe
Charles Riden
Eugene Ruckel
Greg Scholl
Wilber Sewell
Avery Spellmeyer
Daniel Stewart
Earl Willoughby
Stephen Winn
HESSE CORPORATION
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Administrative Judge: Based on charges
filed on March 14 and April 18, 1977, by International
Union (UAW) and its Local 710, herein called the Union, a
complaint was issued on May 6, 1977, against Hesse
Corporation, herein called the Company or Respondent,
alleging violations of Section 8(a)(1) and (3) of the
235 NLRB No. 16
90
HESSE CORPORATION
National Labor Relations Act, as amended. The Respon-
dent filed an answer to the complaint denying it had
engaged in the alleged matter. The Respondent and the
General Counsel filed briefs.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor,' I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Respondent is engaged in the manufacture of
beverage truck bodies at its facility located in Kansas City,
Missouri. In the course and conduct of its business
operations within the State of Missouri, the Respondent
annually purchases good and services valued in excess of
$50,000 directly from sources located outside the State of
Missouri, and the Respondent annually sells goods and
services valued in excess of $50,000 directly to customers
located outside the State of Missouri. The Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about January 31, 1977,
the Respondent, acting by and through its president, Mike
Ireland, told an employee, in response to his question
regarding the causation of a temporary layoff, that the
grievance filed by the Union on January 27, 1977, was the
"straw that broke the camel's back"; that on or about
January 31, 1977, the Respondent discriminatorily laid off
23 employees; that the Respondent failed and refused to
recall its employees David Eaton, Marvin Miller, and
Avery Spellmeyer until February 2, 3, and 7, 1977,
respectively; and that the Respondent failed and refused to
recall the remaining 20 employees involved until February
25, 1977.2
The Respondent is a corporation that is engaged in the
manufacture and sale of beverage truck bodies; Michael
Ireland has been president of the Respondent for several
years, and directly under Ireland is the Plant Manager
Tobe Tennyson. Both Ireland and Tennyson are admitted
to be supervisors and agents of the Respondent within the
meaning of Section 2(11) and (13) of the Act. The
production employees laid off on January 31, 1977, were
members of a collective-bargaining unit represented by the
Union, and at the time in question there was in force a
collective-bargaining agreement between the parties. In
I The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N. L.R.B v. Walton Manufacturing Company & Loganville Pants
Co., 369 U.S. 404 (1962). As to those witnesses testifying in contradiction of
the findings herein, their testimony has been discredited either as having
been in conflict with the testimony of credible witnesses or because it was in
and of itself incredible and unworthy of belief. All testimony has been
reviewed and weighed in the light of the entire record.
fact, there had been a collective-bargaining relationship
between the Company and the Union for many years. The
current contract provides for a procedure whereby the
parties may process grievances, and also provides for a
committee of employees and union business representa-
tives to handle grievances and negotiate with the Compa-
ny. This record further shows that William King is
employed by Respondent as a welder, and is the Union's
chief committeeman.
The Respondent's president, Michael Ireland, maintains
in his office documents or charts titled "Employee Work
Evaluation Sheets." Such documents reflect the various
details concerning employment practices of each employee
including grievances filed by them, but these sheets are
generally maintained by Ireland for his own use. However,
in January 1977, employee Merle Curtis somehow received
a copy of his evaluating sheet, and recorded on his sheet
was a grievance he had filed at one time, and also some
related figures and subsequent actions taken in relation to
his grievance. After noting such entries, Curtis then
registered an objection with the Union's chief committee-
man, William King, informing him that such disclosures
had nothing to do with his ability to perform his job. King
agreed with Curtis, and on or about January 24, 1977,
Committeeman King approached Plant Manager Tobe
Tennyson and informed him that he objected to the
"grievance code" being on the work evaluation sheets and
asked that they be removed, but Tennyson responded that
the work sheets were Mike Ireland's records and King
would have to discuss the matter with him.
On January 27, 1977, King approached Ireland and
requested that he remove the "grievance code" category
from the employees' work status sheets. King also ex-
plained that in his opinion the number of grievances filed
by an employee did not affect the employee's work
performance. However, Ireland became angered by this
request, and King testified that Ireland finished his
remarks by stating: "those are my private papers, those are
my own personal sheets and not you, not Ed Steward
[International representative for the Union], not the Presi-
dent of the Union or the National Labor Relations Board
or the President of the United States is telling me how to
keep my books." King then stated, "You're mad, aren't
you." Ireland replied, "Yes, I'm very mad."
Later the same day, Committeeman King filed a griev-
ance requesting that the Company delete the grievance
code from the employees' work status sheets.3 The notation
in the upper right hand side of the grievance indicated that
King filed the grievance at 4 p.m., January 27, 1977, by
handing the grievance to his foreman, Don Allensworth
who then delivered the grievance to Tennyson. Manager
Tennyson stated that he gave the grievance to Ireland on
the morning of January 28, 1977.
2 The complaint further alleges that employees Billy Brawer. Kenneth
Kemp, and Augusta Madden were also unlawfully laid off on January 31,
1977, but, as this record reflects, Brawer was not laid off, and Kemp and
Madden did not lose any time. Therefore, these three employees are not
included within the list of discriminatees and there is no contention by any
of the parties otherwise.
3 See G.C. Exh. 2.
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following morning, January 28, 1977, King found
that the grievance had been answered by Mike Ireland and
was in his mail box at the plant. King testified that he
picked the grievance up either in the morning when he
came to work or during his 10 o'clock morning break. 4
King then replied to Ireland's answer on his lunch hour
(which is from 11:20 a.m. to 12 noon).5 King then gave the
grievance with his reply to Manager Tennyson between
12:30 and 1 p.m.
Later on during the afternoon of January 28, 1977, King
had a conversation with Manager Tennyson. On this
occasion King stated to Tennyson, "I understand that
Mike [Ireland] is very mad at me." Tennyson replied,
"Boy, I don't know where this is going to end. He is mad,
he is so mad he is up there now drawing up a 25-man layoff
list." King then asked, "You mean because he's mad at me
he's going to lay off 25 people?" Tennyson did not reply to
King's question.6 King then asked Tennyson to tell Ireland
that he wanted to talk to him because he (King) would
rather accept a layoff himself than have 25 employees laid
off. Tennyson replied that he would ask, and walked
towards Ireland's office. Shortly thereafter, Tennyson
returned and informed King that Ireland was too upset to
see him and would not see anyone the rest of the day.
Additional events on January 28, 1977, reveal that
between 3:30 and 4 p.m., Plant Manager Tennyson handed
King a list of 25 men to be laid off effective Monday,
January 31, 1977. Upon receiving this list, King then
immediately called the Union and spoke with Vice Presi-
dent David Minnis and informed him of the situation.
Minnis then called Ireland and informed him that he had
learned from King about the 25-man layoff effective
Monday, January 31, 1977; that he wanted to talk to
Ireland about it, and Minnis also told Ireland that King
was afraid the layoff was caused by the grievance King had
filed the day before. At this point, Ireland responded to the
effect that he knew the laws better than that, and that he
(Ireland) knew he could not lay people off because of a
grievance, but that this "was the straw that broke the
camel's back." Minnis concluded the conversation by
stating that he thought it was important that Ireland and
King try to get together and attempt to solve the problem.
Ireland responded that he did not want anything to do with
King, that he did not want to talk with him, and then
stated, "This time King has gone too far, he'd shit on his
own hand on this one." However, Minnis and Ireland
arranged to meet at 9:30 a.m., Monday, January 31, 1977,
in Ireland's office.
At the beginning of the meeting on Monday, January 31,
1977, Minnis requested that King be present at the
meeting, but Ireland replied that he did not want to talk
with King, that he was "very upset" and that King's
attitude definitely left something to be desired. Ireland
4 Ireland answered the grievance as follows:
The report you refer to is a personal working report of the President
of the Hesse Corporation. No one will tell the President of Hesse
Corporation what may or may not be in his working papers. Many
employees were interested in an evaluation of their status with the
Company. Because of this feeling the President allowed copies of his
papers to be circulated. The President will not allow his papers to be
circulated again.
then showed Minnis the grievance filed by (iing on
January 27, 1977, and his answer to it, as aforestated.
Minnis asked Ireland what he had meant by his comment
during their phone conversation on Friday afternoon that
King had "gone too far," and had "shit in his hand."
Ireland replied to this question by telling Minnis that all he
had meant was that King "had gone too far." Minnis next
asked Ireland if this was what had caused the layoff, and
Ireland replied, "It was just the straw that broke the
camel's back," but that the Company could "justify a lay-
off at any time," and that they had a "surplus of units."
Ireland then gave Minnis a brief history of the Company
and in so doing indicated that layoffs had been quite
frequent before he took over the management, but since he
had been with the Company it had been "quite some time"
since they had any layoffs. Minnis then told Ireland that
King had informed him that Ireland had made a statement
to employees in December 1976, (around Christmastime),
wherein he stated there would be no layoff and "it looked
like this time they had made it over the hump." Minnis also
told Ireland that the rumor on the plant floor was that the
grievance had caused the layoff. At this time King was
brought into the meeting, and he then asked Ireland if he
had made the statement to employee Russell Baxter that
the layoff was a result of the grievance. Ireland replied that
he was dedicated to working the work force year around
although he should have had a layoff in November or
December, 1976, but this grievance "was the straw that
broke the camel's back." King also asked Ireland if he had
made the statement that he (King) had "shit in his hat."
Ireland admitted he had made the statement, and then
King inquired what he had meant by the statement and
Ireland replied that it meant King should look into his hat
before he put it on. King further inquired of Ireland if he
had told the employees around Christmas time (1976) that
he "was dedicated to working employees the year around."
Ireland admitted he had made this statement. During this
meeting, King observed that Ireland had the grievance
lying on his desk and commented that Ireland had the
grievance in front of him. Ireland replied, "Yes, its going to
stay here so I can be reminded every day of this."
The General Counsel produced testimony through em-
ployee Russell Baxter revealing that on either Friday,
January 28, or Monday, January 31, 1977, he saw Ireland
at the plant and he then asked him if the grievance was the
reason for the layoff and Ireland replied, "If you'd been up
here behind my desk and something like that came up
.... " At this point in his reply Baxter interrupted Ireland
and said, "You mean that's like the straw that broke the
5 King replied as follows:
There is nothing special about the President of Hesse or anyone else
in matters such as this and our objections still stand. Answer not
accepted.
e Tennyson admitted that King did ask him on January 28, 1977, if the
grievance caused the layoff, but could not remember making any response
to this question.
92
HESSE CORPORATION
camel's back?," and Ireland answered, "Yes, you could say
that." '
The Respondent points out and argues that there is no
"element of surprise" involved over the matter in question
since King had discussed the grievance with management
before filing it; that the filing of grievances is not an
unusual happening as there were about 39 grievances filed
in 1976; that the layoff decision was not finalized by
management until about 10 a.m. on January 28, 1977, and
there is no showing that at this time Ireland knew of King's
counter reply or was even aware of the grievance. There is
further argument that the Company also had substantial
economic reasons for the temporary layoff - customer
orders were down due to anticipated governmental policies
(saccharin ban), and because summer periods are the main
seasonal demand months for beverage truck bodies; that
the layoff in question was consistent with the past layoff
practices (six major layoffs) based on decreased customer
orders; that the plant inventory on the day in question
revealed that the Company had on hand 158 finished units
in stock - highest ever; that the shear machine which cuts
quarter inch material broke down and was out of operation
from December 15, 1976, through February 10, 1977; and
that during the period immediately preceding the layoff,
there was also a decrease in per man productivity.
Final Conclusions
The complaint specifically alleges that the Respondent,
acting through Ireland, told an employee (Russell Baxter)
who was not laid off that the grievance filed by the Union
on January 27, 1977, was the "straw that broke the camel's
back." However, on this particular occasion when Baxter
and Ireland were talking, Baxter interrupted Ireland and
he, himself (Baxter), then supplied the words or phrase
quoted above, and Ireland merely made some affirmative
response. From the fact and circumstances as I have
outlined herein, there is no question that at least on two
prior occasions Ireland had used the phrase, and possibly
employee Baxter had heard numerous references to it, but
on the specific occasion involving Baxter, he himself
admittedly used the phrase or words in question, and
therefore, as to this particular incident, such remarks
cannot be attributed to Ireland even though Ireland was
confused as to who had used the phrase. In accordance
with the above, this allegation is hereby dismissed.
Turning now to the allegation that on January 31, 1977,
the Respondent laid off 23 production employees, it should
be pointed out and noted that at least on two occasions,
Ireland specifically stated that the grievance filed by King
"was the straw that broke the camel's back." During
conversations with the vice president of the Union, Dave
Minnis, on the afternoon of January 28, 1977, Minnis told
Ireland that King was afraid the layoff was caused by his
displeasure over the grievance filed by King, and Ireland
then responded that the grievance was "the straw that
broke the camel's back." Moreover, on Monday, January
31, 1977, when Minnis and Ireland met to discuss the
layoff, Minnis asked if Ireland's displeasure with King in
T Ireland admitted having a conversation with Baxter on January 31,
1977, and that either one of them could have used the phrase as to "the
filing the grievance had caused the layoff, Ireland again
answered, "It was the straw that broke the camel's back."
I am in agreement with the General Counsel, and this
record duly reflects, that Mike Ireland considered the
employees' work status sheets as his personal papers, and
was infuriated at King's specific request made on January
27, 1977, that the Company delete certain material from
these sheets. Ireland responded to King's request by stating
that the reports were his private papers and no one else
would tell him how to keep his own book. Nevertheless,
King filed the grievance concerning the matter at 4 p.m.,
on January 27, 1977. The next day, January 28, 1977, King
asked Plant Manager Tennyson if Ireland was mad at him.
Tennyson replied that Ireland was "very mad" and was
drawing up a layoff list. King then said, "You mean that
because he's mad at me he's going to lay off 25 people,"
and at this time Tennyson did not deny King's assessment
of the situation, as previously detailed herein. Moreover,
the extent to which Ireland was provoked by King's action
in filing the grievance is also revealed by Ireland's frequent
reference to King's "going too far this time," "shit in his
own hand on this one," reference to King's "bad attitude,"
and by Ireland's repeated assertion to Union Representa-
tive Minnis that he did not want to see or talk to King.
Further, the fact that Ireland viewed this grievance as a
personal insult is also illustrated by Ireland's statement at
the January 31, 1977, meeting, when King noted that the
grievance was on Ireland's desk, and Ireland then replied,
"Yes, and it's going to stay there so I can be reminded
everyday of this." Although Ireland testified that griev-
ances are always a source of irritation, the record here
clearly shows that this grievance was particularly so.
As pointed out, in late December 1976, around Christ-
mastime, Ireland told the employees that he was dedicated
to working the employees the year around without layoff.
However, Ireland testified in the hearing before me that a
layoff had been in his mind since the end of November
1976, and he "made work" to carry through the holidays.
Ireland stated that he also evaluated the productivity level
when he received the production report on the morning of
January 28, 1977, and found that the productivity level had
dropped below the figures he needed and, as a result,
determined that there must be an immediate layoff. Ireland
also testified that after reviewing such productivity figures
he then had a "very warm discussion" with Plant Manager
Tennyson since it was Tennyson's responsibility to keep
productivity high.
Ireland further testified that he charted the productivity
level daily and at the end of each week. On the basis of this
testimony and related circumstances, the General Counsel
argues as follows: "If the productivity level of employees
had in fact been dropping severely during the month of
January, it is difficult to understand why Ireland did not
notice the decline prior to the morning of January 28, at
which point, according to Ireland, the productivity was so
low that he had no choice but to lay employees off. Why
did Ireland not talk to employees at some point in January
and tell them that if their productivity improved they could
prevent a layoff?. Why did Ireland not discuss the problem
straw breaking the camel's back," and testified that he had never used such
a phrase before.
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with his Plant Manager Tennyson, who had the responsi-
bility of keeping employee productivity high, before Janu-
ary 28, when Tennyson could attempt to prevent produc-
tivity from slipping so low that a layoff was necessary? It is
submitted that the reason that Ireland failed to discuss the
productivity problem with anyone before the point of no
return on January 28 [1977] is that there was no productivi-
ty problem in January, but rather there was a grievance
problem that arose on January 27, at 4:00 p.m."
One of the economic factors named by Ireland as
contributing to his decision to lay off employees on
January 31, 1977, was a slackening off of orders to build
beverage truck bodies. However, as pointed out, the firm
orders were higher at the end of January 1977 (82 units)
than they were at the beginning of January 1977 (70 units
as of January 7). It is also noted that the Respondent's
most recent layoff prior to January 1977 was in August
1976. In this period, the figures indicated that firm orders
for the month of June 1976 averaged 60 orders; for July
1976 the average was 56; and orders for the first 3 weeks of
August 1976 averaged 37. As noted, the Respondent
withstood a much longer period of "soft orders" before it
called a layoff in August 1976 than it withstood in January
1977. It is clear that orders had not dropped to anything
approaching the level to which they had dropped preceding
the Respondent's August 1976 layoff.8
The Respondent also claims that the inventories of stock
truck bodies the Respondent had built without specific
orders for them were high in January 1977, and this factor
also contributed to the decision to lay off employees on
January 31, 1977. However, as further outlined, Ireland
had told King and others that the number of stock bodies
being produced did not indicate the likelihood of a layoff.
The Respondent also claims a high number of unsold and
unpaid for units in the Respondent's yard on January 31,
1977, thereby creating a cash flow problem that necessi-
tated a layoff. 9 But Respondent's records show a drop in
finished body inventory from 158 bodies on January 31,
1977, to 139 bodies on February 7, 1977.
It is also noted that the factors cited by the Company
necessitating the layoff - large inventory, broken shear
machine, the number of finished units, and the strike at
Ford Motor Company - had all been in existence or in the
making for some time, yet, the credited testimony in this
record reveals that Mike Ireland and Plant Manager
Tennyson never seriously discussed the possibility of a
layoff until the grievance was filed on January 28, 1977,
and, as pointed out, there never was such a discussion at
any earlier date because the Respondent's policy, as duly
reflected in this record, was to work the employees year
round, and build up additional stock bodies at times when
specific orders were filled. However, Ireland's policy
concerning layoffs changed the morning of January 28,
1977, when he received the grievance filed by King.
Moreover, there can be no serious contention that Ireland
did not know of the grievance until after making his
decision on the layoff. First of all, Plant Manager Tenny-
son knew of King's concern over the matter in question as
of January 24, 1977. Then, on January 27, 1977, King
encountered Ireland and specifically asked that the griev-
ance code be removed from the work status sheets, as
aforestated, and, on the afternoon of January 27, 1977, the
grievance was reduced to writing and officially filed by
delivery of it to Foreman Allensworth and then to
Tennyson. Certainly, it is a reasonable conclusion that at
this point the grievance came within the knowledge of
everyone in management at the plant, and since Ireland
was constantly in daily touch with all aspects of the
business, and had encountered King shortly beforehand,
he himself must have been fully aware of the grievance as
of January 27, 1977. However, even assuming, arguendo,
that Ireland had no knowledge of the grievance until the
morning of January 28, 1977, there is still the circumstan-
tial evidence and positive indicators that he knew of it
before making his decision on the layoff as King picked up
the grievance at his mailbox at or about 10 a.m., and by
this time Ireland had written his answer on the grievance.
The Respondent suggests in its argument that, at the time
in question, Ireland did not know of King's reply to the
grievance, but, irregardless of this argument, this record is
clear that Ireland knew all about the initial grievance and
the fact that it had been filed on January 27, 1977, so that
further discussions on this point and other ramifications
are unnecessary and needless.
This record duly establishes that the January 31, 1977,
layoff by Respondent of 23 of its production employees
was motivated by the grievance filed by the Union. In the
final analysis, this record clearly shows that the grievance
precipitated and triggered Ireland's decision to lay off these
employees on the date in question.
THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action set forth below designed to
effectuate the polices of the Act.
It will be recommended that the Respondent make whole
the employees named below for any loss of pay they may
have suffered by reason of the Respondent's discrimination
against them, by paying to each of these employees a sum
of money equal to the amount that they normally would
have earned as wages from January 31, 1977, to the date
when they were recalled or reinstated, less net earnings
during said period:
Robert Brackenbury
Jack Curtis
Ron Davidson
Amos Eastman
David Eaton
William Floyd
Rodney Hamilton
William Hearn
Dennis Kirby
Dennis Knabe
Walter Leatherman
James Martin, Jr.
Marvin Miller
Mike Pennington
Don Poe
Charles Riden
Eugene Ruckel
Greg Scholl
Wilber Sewell
Avery Spellmeyer
Daniel Stewart
Earl Willoughby
Stephen Winn
s See Resp. Exh. I.
94
9 See Resp. Exh. 3.
HESSE CORPORATION
The amount of backpay due shall be computed accord-
ing to the Board's policy set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950). Payroll and other records
in possession of the Respondent are to be made available
to the Board, or its agents, to assist in such computation
and in determining the right to reinstatement. Interest on
backpay shall be computed in accordance with Florida
Steel Corporation, 231 NLRB 651 (1977).'°
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminatorily laying off the employees in-
volved herein, the Respondent has engaged in and is
engaging 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.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER " 1
The Respondent, Hesse Corporation, Kansas City, Mis-
souri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise discriminating
against employees because of their union activities.
'O See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1l 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 be
deemed waived for all purposes.
(b) Discouraging membership in the Union, or any other
labor organization, by discriminating against its employees
in regard to their hire and tenure of employment or any
terms and conditions of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Make whole the employees named in The Remedy for
any loss of earnings they may have suffered by reason of
Respondent's unlawful conduct as outlined in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.12
(c) Post at its place of business copies of the attached
notice marked "Appendix."' 3 Copies of said notice, on
forms provided by the Regional Director for Region 17,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
12 All the correct recall dates of the employees involved are duly
reflected in earlier sections of this Decision.
13 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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