Huron Copysette, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1977

232 N.L.R.B. 561 (N.L.R.B. 1977)

HURON COPYSETrE, INC.
Huron Copysette, Inc. and Coopers' International
Union of North America, AFL-CIO. Case 9-CA-
10329
September 29, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 13, 1977, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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,1 and
conclusions of the Administrative Law Judge, to
modify his remedy, 2 and to adopt his recommended
Order.
ORDER
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, as
modified below, and hereby orders that the Respon-
dent, Huron Copysette, Inc., Leitchfield, Kentucky,
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 Administrative Law Judge.
I 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
credibility unless the clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his finding.
We agree with the Administrative Law Judge's finding that John Pawley
is a supervisor within the meaning of the Act. In so doing, however. we rely
solely on the facts that Pawley in December 1975 effectively recommended
the hiring of an employee; he attended a management meeting at which
Respondent's supervisors were instructed as to their conduct during the
organizing campaign; he has taken part in the formal reprimand of
employees by writing up discipline reports, cosigning them as a witness and,
in the case of the Febraary 1976 repnmand of discrminatee Howell, signing
the discipline report in lieu of a foreman; and he is paid a salary. unlike the
employees who are paid an hourly wage.
2 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651, we shall apply the current 7-percent rate for periods prior to
August 25, 1977, in which the "adjusted pnme interest rate" as used by the
Internal Revenue Service in calculating interest on tax payments was at least
7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of you for
supporting Coopers' International Union of
North America, AFL-CIO, or any other union.
WE WILL NOT threaten to close the plant or to
provide less favorable working conditions if you
vote for a union.
WE WILL NOT coercively question you about
union support or union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the National Labor Relations Act.
WE WILL offer William Howell immediate and
full reinstatement to his former job or, if it no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and other
rights and privileges, and make him whole for any
loss of pay or benefit he may have suffered as a
result of our discrimination against him, plus
interest.
HURON COPYSETTE, INC.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Bowling Green, Kentucky, on October
21-22, 1976, and at Louisville, Kentucky, on November 4.
1976. The charge was filed on May 14, 1976,1 and the
complaint was issued on June 30.
After successfully defeating a union organizing drive in
1973, the Company again succeeded in doing so in 1975-
76, and thereafter discharged the union observer and a
union supporter. The primary issues are whether the
All dates are between August 1975 and June 1976 unless otherwise
stated.
232 NLRB No. 92
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent (a) coercively interrogated employees, threat-
ened plant closure and other reprisals, and engaged in
unlawful discrimination during the 1975-76 organizing
campaign, and (b) discriminatorily discharged the union
observer and supporter after the election, in violation of
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended.
Upon the entire record, 2 including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACr
I. JURISDICI!ION
The Company, a Michigan corporation, is engaged in the
manufacture of paper products at its plant in Leitchfield,
Kentucky, where it annually ships products valued in
excess of $50,000 directly to points outside the State. The
Company admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALL EGED UNFAIR LABOR PRACTICES
A. Threats and Interrogation
Upon the invitation of employee William Howell (who
later served as union observer at the January 29 election),
four company employees attended an informal union
meeting with Howell. two former employees, and a union
representative on October 23. Howell was a leading union
organizer during the 1975-76 campaign (following the
unsuccessful organizing campaign in 1973).
About 2 weeks after the first union meeting on October
23, as employee Truman Newton credibly testified,
Foreman Danny Blessitt asked Newton about the union
campaign and told him that, if the Union got in, "Old Dad
[General Manager Louis Sturdevant] will move the plant."
Then, "a few days, maybe a week" later, Blessitt again
asked Newton about the campaign and told Newton,
"He'd hate to be the one who started it because ... they
would be fired so fast they wouldn't know where they was
at." (Foreman Blessitt admitted talking to Newton about
the Union. He claimed, however, that, in the first
conversation, Newton asked him if Sturdevant would shut
the plant down if the Union came in, and he answered,
"Hell, anything is possible." Blessitt further claimed that,
in the next conversation, he merely asked Newton how the
Union was going and did not pursue the matter. When so
testifying, Blessitt impressed me as being less than candid.)
The Company contends that the "General Counsel has
failed to meet its burden of establishing that these alleged
conversations occurred on or after November 14, 1975" (6
months before the May 14 filing date). I agree. Although
Blessitt fixed the dates as "somewhere around" November
or December, Newton candidly testified that the conversa-
tions occurred about 2 or 3 weeks after the October 23
2 The General Counsel's unopposed motion to correct transcript, dated
December 21, 1976, is granted and received in evidence as G.C. Exh. 5.
meeting. Therefore, because of the 6-month limitation
provision in Section 10(b), I do not find that either
conversation constituted coercive interrogation or a threat.
I do, however, take this evidence of union animus into
consideration when determining the Company's motiva-
tion for the March 26 discharge of Howell. (I also find that
the early November interrogation of employee Outis
Meredith by Blessitt and Sturdevant is likewise not shown
to be within the 6-month limitation period.)
Union meetings were held in November, December, and
January. After the December meeting, Foreman Blessitt (in
the presence of Head Foreman Charles Walls) approached
material handler Meredith in the incinerator room. Blessitt
asked Meredith "how the Union was going," "did I go to
the meeting," "who all was there," and "what happened."
Meredith answered that the Union was going "pretty
good," that he did attend the meeting, that "a few people
was there, and nothing much happened." A few days later,
Blessitt approached Meredith near the baler, again men-
tioned the union meeting, and said, "Well, come on outside
and let's talk about it." There, behind the building, Blessitt
asked what happened at the union meeting, who all were
there, "and he named four employees and asked if they
were there." Meredith said he was not going to say because
he did not want to get anybody in trouble. Blessitt then
said "Sturdevant would close the doors if the Union come
in, and that if it come in they would put in horns for when
you go on breaks" and the plant "would have to be run by
the book." Later in December, Blessit walked by the baler
and asked Meredith "how many cards I was getting
signed." Meredith said "a few." (Blessitt testified that the
foremen were "heavily drilled" by Sturdevant on what they
could and could not say and ask during the union
campaign, but admitted, "I violated the rules that Mr.
Sturdevant set forth on the Union." However, after
pointing out that Meredith was a good friend, Blessitt
claimed that he merely recalled asking Meredith "at one
time how the Union was going. And later on I asked him
again how the Union was going." As previously indicated,
Blessitt appeared to be less than candid.) Contrary to the
Company's arguments, I find that the incinerator room
interrogation (to which Meredith gave mostly evasive
answers, in the presence of the head foreman), the next
interrogation (seeking specific information about four
employees attending the union meeting) and threats (of
plant closure and less favorable working conditions), and
the later interrogation (concerning the number of cards
signed) were coercive and violated Section 8(a)(1) of the
Act
There were about 30 employees on the day shift.
Meredith was one of the approximately 10 employees who
were wearing union fountain pens on that shift. On one
occasion in December, General Manager Sturdevant saw
Meredith's pen (bearing the Union's name), "asked where
was his pen, and where could he get one," and "said he was
going to file charges with the Labor Board against the
Union for not sending him a pen." Meredith commented
that Sturdevant could go to a union meeting if he wanted
one, and said that, if Meredith ever got another one,
562
HURON COPYSETrE, INC.
Sturdevant could have it. About 2 weeks later, Sturdevant
asked Meredith if the pen he was then wearing was
Sturdevant's, and Meredith answered, "You can have it if
you want it," giving it to Sturdevant. The General Counsel
argues that Sturdevant was "badgering" Meredith with
respect to his union pen, interfering with his right to carry
it. The Company contends that Sturdevant was merely
"kidding." I agree with the Company. Although, as
testified to by Meredith, Sturdevant was using an "angry"
tone of voice during the first conversation, I find that the
content of what was said indicated that both conversations
were merely jocular exchanges, which did not tend to
interfere with Meredith's union support.
About January 15 (2 weeks before the January 29
election), Quality Control Manager John Pawley got into a
discussion with a prounion employee, vertex helper
D'Anna Winn, when Winn's machine in the collator
department was down. Vertex helper Betty DuVall was
working with Winn, and overheard the conversation. As
credibly testified by DuVall (who impressed me as being an
honest, forthright witness), Winn asked Pawley what he
thought about a union. Pawley answered that he thought
anybody that is for a union is a "damn fool," and Winn
responded that she thought anybody that is against a union
is a "damn fool." Then Pawley stated, "If the Union goes
in, Mr. Sturdevant will close the plant down and move it
back to Michigan" and "I wouldn't work for a union
place." (Winn testified that Pawley "said that if the Union
went in there, Mr. Sturdevant would pack up the plant and
go back to Michigan, and he hoped that he did because he
wouldn't work for a company that had a union." Although
Pawley admitted giving his personal opinion "that anybody
that joins the Union is a damned fool," he claimed he told
Winn that "they've got too much at stake to move the
plant" when Winn asked if he expected them to move the
plant. I discredit this version of his statement.) Clearly,
Pawley's statement, that General Manager Sturdevant
would close the plant if the Union won the election, was
coercive if Pawley was acting or speaking on behalf of the
the Company. While acknowledging that Pawley occupied
"various positions throughout his employment," the Com-
pany contends that "he was not at any time material to this
cause, a supervisor as that term is defined in the Act, nor
was he considered as such by the employees." The General
Counsel contends that Pawley has served "in various
supervisory and managerial capacities, including that of
personnel manager."
Pawley testified that he was quality control manager
when the plant first started (in 1972). Since then (except for
the period from June 1974 until May 1975, when he was
working in production planning), he has remained in that
capacity, although serving also at times as personnel
manager and administrative assistant to the general
manager. He has interviewed applicants and, as late as
December (a month before the election), interviewed and
effectively recommended the hiring of an employee. About
five times in 1975 and twice in 1976, he took part in the
reprimand of employees: for example, witnessing the
reprimand of union observer Howell in February (a month
before his discharge), writing up the "Discipline Form,"
and signing it on behalf of the Company (in lieu of a
foreman). General Manager Sturdevant omitted Pawley's
name from a list of those present at a management meeting
held during the campaign. Sturdevant testifying that he
called in the assistant treasurer, plant superintendent.
assistant plant superintendent, general foreman. and
Foreman Blessitt on November I or 2 and told them to "go
out and do some listening and see what you can observe
and then report back to me if you hear anything or see
anything" concerning the union organizational drive.
Pawley, however, admitted being in one such meeting
when, he testified, Sturdevant "just told us to keep our
mouth shut. Do not say anything to anybody about it."
Thus, during the organizing campaign, the Company
regarded Pawley as part of management. Although he is
the only person working in quality control and does not
directly supervise anyone, I find that he has additional
authority in personnel matters, that he effectively recom-
mends the hiring of employees, and that at the lime he
made the threat concerning plant closure he possessed
supervisory authority and was regarded as a supervisor by
the employees. I therefore find that his threatening
statement was coercive and violated Section 8(a)(l) of the
Act. (In the absence of objections to the election, I do not
rule on whether the threats and interrogation interfered
with the employees' free choice.)
B. Alleged Discrimination
1. Against Outis Meredith
a. His cleanup assignments
Hired in May 1973, Meredith was a material handler
whose duty it was to empty the broke carts (discard
containers), burn broke carbon paper in the incinerator,
bale uncoated broke paper for recycling, cut cores, clean
up around the garbage and incinerator areas, haul trash to
the dump, and, when assigned, clean up outside the plant.
He was not particularly active in the organizing cam-
paign. He attended two of the four union meetings, signed
an authorization card, got two other cards signed, and
talked to "about five" other employees about the Union.
As previously found, the Company discussed the union
activity with him.
The complaint alleges that the Company assigned
Meredith "less desirable and more onerous work assign-
ments" because of his union support. Meredith testified
that, during December and January, General Foreman
Charles Walls sent him "out in ditches a lot of time [to]
pick up cans, board, and paper, and across the railroad
tracks and pick up about the same, and around the
building picking up paper." Meredith testified that this
caused him to get behind in emptying some of the broken
carts.
However, there is no showing that the Company was
discriminating against him when so assigning him these
cleanup duties. The Company gave him and other
employees such assignments when they were not busy, and
there is no showing that he was not idle when these
assignments were made to him during January and
February. Although it is undisputed that these cleanup
duties did cause him to fall behind in emptying some of the
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broke carts, there is no showing that he did not have
sufficient time to empty the carts before the end of the
shift. I therefore find that the General Counsel has failed to
prove that the Company discriminated against Meredith by
making these assignments to him.
b. His discharge
The timing of Meredith's April 12 discharge (shortly
after the March 26 discharge of the union observer,
William Howell) may appear suspect, but I find that the
General Counsel has failed to prove that the discharge was
discriminatorily motivated.
Meredith was a good employee until a short time before
the organizing campaign began. On September 10 his
immediate supervisor, General Manager Walls, reprimand-
ed him for spending too much time on his breaks. After this
reprimand, there were hard feelings between Meredith and
Walls. Walls repeatedly found Meredith idle and would
curse and order him to get to work.
Meredith was given an hour of overtime each morning to
allow him sufficient time to perform all his day-shift duties.
However, because of an apparent lack of proper motiva-
tion, particularly after the Union lost the January 29
election, he would sometimes get behind in emptying the
broke carts during the day, and be idle for the last 30
minutes or so of the shift, without ensuring that all of the
carts were left empty for the evening shift. Finally, on
March 10, General Foreman Walls reprimanded him
again, this time for standing around and interfering with
other employees. A few days later, in an effort to enhance
his motivation, the Company placed him under the
supervision of his good friend, Foreman Blessitt. There was
only temporary improvement.
On April 12, Meredith was on his way to the washroom
near quitting time when Foreman Walls called him into the
office and discharged him. He had been standing around
idle and there was a full broke cart which he was preparing
to leave without emptying (causing a disruption of the
work on the evening shift). Meredith did not deny that he
had been loafing. (Although Meredith generally impressed
me as being a credible witness, I do not credit some of his
testimony directly bearing on his discharge. I specifically
discredit his testimony that he had emptied the broke cart
only 15 minutes before. I also discredit his denial of the
testimony by Assistant Teasurer Larry Rappes-who
impressed me as being an honest witness-that, during
Meredith's unemployment compensation hearing, the
referee asked Meredith "if he had been goofing off on the
job" and that Meredith replied, "Yeah, I was goofing off.")
After weighing all of the testimony concerning Meredith,
I find that he was deliberately loafing on the job (as he
later admitted at the unemployment compensation hear-
ing), and that he was lawfully discharged for this reason-
and not because of his union activity-after his reprimand
and reassignment to a different supervisor a month earlier
had failed to motivate him to do a betterjob. (In so finding,
I do not rely on certain partisan testimony given at the
hearing. On the General Counsel's side, I specifically
discredit the claim by employee Winn that Meredith
"never" left broke carts over half full. On the Company's
side, I specifically discredit the testimony by collator
operator Gregory Pierce that "nine times out of ten"
during the fall, winter, and spring, Meredith would leave
the broke carts "full," and the testimony by collator
operator Elizabeth Cain that "since about January," the
broke carts "just wouldn't get emptied; they'd be full."
From their demeanor on the stand, both Pierce and Cain
impressed me as being most untrustworthy.)
Accordingly, I reject the allegation that the Company
discriminatorily discharged employee Outis Meredith in
violation of Section 8(aX3) and (1) of the Act.
2. Discharge of William Howell
a. Company motivation
Employee Howell initiated the 1975-76 union organiza-
tional drive and worked under the direct supervision of
Foreman Blessitt who, as found above, told another
employee early in the campaign that "He'd hate to be the
one who started" the union organizing because "they
would be fired so fast they wouldn't know where they was
at."
Howell initiated the drive by inviting six other employees
to the informal October 23 union meeting. Four of the six
employees attended the meeting with Howell, two former
employees, and a union representative. Within the next 2
weeks, Howell asked about 40 employees to sign union
authorization cards and succeeded in getting about 15
cards signed. (The Company admitted knowledge that
Howell was active in the union campaign, but not until
November 6, as discussed later.) Howell continued his
organizational efforts, attended all three union meetings of
employees, and, at the third meeting, sat at the head table
with the union representative. On January 29, he served as
union observer at the election. He was discharged less than
2 months later.
The evidence reveals the Company's union animus.
About 2 years earlier at the beginning of the 1973
organizational drive, as Howell credibly testified, General
Manager Sturdevant called a meeting of employees and
warned that "as long as he was vice-president and general
manager he would see to it that no union ever came into
Huron Copysette," stated that "they had left Michigan to
get away from the Union," and (as recalled in his pretrial
affidavit) "said that he thought that it would be better for
company-employee relations not to have a union." (From
his demeanor on the stand, Howell impressed me through-
out as being an honest witness, endeavoring to give his best
recollection of what happened.)
As previously found, Foreman Blessitt told one employ-
ee during the 1975-76 campaign that "Old Dad [Sturde-
vant] will move the plant" if the Union would go in,
repeatedly engaged in coercive interrogation of another
employee, told the second employee that "Sturdevant
would close the doors" if the Union came in, and
threatened less favorable working conditions. Another
supervisor, Quality Control Manager Pawley, also told
employees that "If the Union goes in, Mr. Sturdevant will
close the plant down and move it back to Michigan."
After the Union lost the January 29 election, the
Company demonstrated that it was endeavoring to "build a
case" against Howell, who was an experienced rewinder
564
HURON COPYSETrE, INC.
operator, hired in July 1973. Failing twice to establish that
Howell was at fault in running bad paper on his machine,
the Company reprimanded him on February 26 and
suspended him on March 8 for other purported offenses,
under circumstances indicating a discriminatory motiva-
tion.
Sometime in February, Foreman Blessitt showed Howell
a roll tag bearing the capital letters, "BILL," and "told me
that I'd ran some bad paper." Howell, who signs his name,
"Bill," told Blessitt that was not his handwriting and that
Blessitt should check the worksheet (the rewinder report).
Blessitt did, later stated that another operator had run the
paper, and said that the operator "could" (but was not) get
"fired for this." The next time, the Company summoned
two employees to act as witnesses-until it learned again
that Howell was not the operator at fault. On this occasion,
as vertex helper DuVall credibly testified, the collator
operator reported some bad carbon (from the rewinder) to
Foreman Shelby Ford, who went with Foreman Blessitt
over to the collator. Ford commented, "This looks like
some of Bill Howell's work," and Blessitt said, "I guess so."
Ford immediately summoned two employees who worked
on the conveyor and had them look at the faulty carbon
paper. DuVall, however, then pointed out that the weight
ticket bore the initials "D.L." (for rewinder operator D.
Logsdon). Ford and Blessitt looked at the ticket and
walked off, without saying anything.
On February 26 (a month before Howell's discharge), the
Company reprimanded him for being idle, despite the fact
that he was awaiting repairs on his machine. Howell had
reported the breakdown (a bad switch and electric eye) to
his foreman and had been assisting the maintenance men
in making the repairs. The maintenance men left to get a
replacement part and, while awaiting their return, Howell
was standing behind the machine, talking with coater
operator Newton, who came over from his coater to talk
when the repairmen left. Howell had already cleaned up his
area and, as he credibly testified, there was nothing that he
should or could have been doing. He knew of no rule
against talking, and it is undisputed that his foreman had
previously seen him talking to employees during a machine
breakdown without reprimanding him. While awaiting the
maintenance men, Howell noticed General Manager
Sturdevant (who had previously stated that "as long as he
was vice-president and general manager he would see to it
that no union ever came into Huron Copysette") going
through the plant with a visitor and looking in Howell's
direction. Howell observed Sturdevant leave the visitor
and, without investigating to determine why the rewinder
was down, go to the plant superintendent who came and
told Howell, "If you don't have anything to do, clock out
and go home." Howell said that his machine was torn
down and that he was waiting for maintenance to return to
repair it. The superintendent merely responded, "Oh,"
turned and walked away. About 10 minutes later, the
Company called Howell and Newton into the office,
reprimanded them for "standing," and told them that they
would be "written up." Howell's writeup or "Discipline
Form," which was not shown him, was later prepared and
signed by Quality Control Manager Pawley. It falsely
accused Howell of not cleaning up around his machine in
violation of rule 15 ("Insubordination, or failing to follow
the working instructions of supervision"). The writeup also
stated that "by stopping and talking to Mr. Newton,"
Howell "interfered with Mr. Newton" in violation of rule
17 ("Threatening, intimidating, coercing or interfering with
fellow employees on premises"), even though Howell was
at his own machine and Newton was away from his.
(Although admitting on the stand that Newton "belonged
in another department," Sturdevant appeared to be giving
a mostly fabricated account of the incident: claiming that
he watched Howell and Newton "approximately five to ten
minutes," that they did not see him, and that they were still
"lying over a cylinder and shooting the breeze while the
maintenance men were working on the machine" for a total
of "approximately 15 or 20 minutes" by the time the plant
superintendent came. From his demeanor on the stand,
Sturdevant impressed me as being more interested in
protecting the Company's cause than giving a factual
account.) I find it clear that, by placing such false
accusations in Howell's personnel file within a month after
the election, the Company was endeavoring to "build a
case" against this union organizer.
On Monday, March 8, 11 days later, the Company
suspended Howell for not calling in daily when he was off
sick-despite the fact that there was no company rule
requiring such a daily call-in. (Rule 14 merely stated that
"Failure to report for duty without calling in for three
consecutive days will be considered an automatic quit,"
and it is undisputed that employee Newton had previously
been off sick for a week without having to call in daily.)
Howell's wife properly called in the first day, Wednesday,
March 3, and it is undisputed that Howell met and spoke to
General Manager Sturdevant that same day as Howell was
leaving the doctor's office. It is also undisputed that
Foreman Blessitt said nothing to Howell on Friday about
calling in when Howell went to the plant to pick up his
paycheck. Blessitt merely asked how Howell felt, and "I
told him I was still sick but I hoped to return to work on
Monday." (I note that the rewinder reports indicate that
the Company was not expecting Howell to return that
Friday, because another rewinder operator worked Ho-
well's entire 8-hour shift that day.) Nevertheless, when
Howell returned to work on Monday, Foreman Blessitt
called him to the office and suspended him 3 days (thereby
causing a loss of production that morning, inasmuch as the
March 8 day-shift rewinder report states that, from 8 a.m.
to noon, there was no operator). Although there was no
specific rule on daily call-ins after the first day of s;ckness,
Blessitt admitted that when Howell said that Monday
morning that he thought the one time "was all he should
call in," Blessitt told him "all you had to done" was to read
the manual book and "I have no other choice" but to give
him 3 days off. Under all the circumstances, I find that this
suspension was also discriminatorily motivated. (Although
the General Counsel contends that the actions taken by the
Company against Howell on February 26 and March 8
were for "unfounded" and "spurious" reasons, he did not
allege them to be separate violations of the Act.)
On March 26, following these two discriminatorily
motivated disciplinary actions, the Company called Howell
into the office and summarily discharged him. When he
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entered the office about 1:45 p.m., as Howell credibly
testified, Foreman Blessitt said, "Bill, I've got some bad
paper here that you've ran," and showed him about 10
sheets of carbon paper lying on the desk. As Howell had
done previously in February, he asked if Blessitt had the
worksheet on the paper. Blessitt admitted that he did not,
and Howell denied that he had run the paper. Then Blessitt
said, "Your production is down 20%, and I'm going to have
to let you go." (Blessitt-without any corroboration from
either Head Foreman Walls or Assistant Plant Superinten-
dent John Zauner, who were also present-claimed on the
stand that he showed Howell a stub roll, some bad splices,
and "to the best of my recollection, white wrinkles," and
claimed that "The exhibit had the name tag right in front
of it." However, the Company did not support this
testimony with any name tag or other evidence that this
was Howell's work. Again Blessitt impressed me as being
less than candid, and I discredit his version of what
happened.)
On the following Monday, March 29, as coater operator
Newton credibly testified, Newton was having trouble with
the coater, getting white wrinkles on one side of the carbon
paper. Foreman Blessitt told him to adjust it the best he
could and run it. Then, "In the same conversation I asked
[Blessitt] how come he fired Bill. And he said [Howell] run
some of that paper," with the white wrinkles. (This
undisputed testimony tends to corroborate Howell's testi-
mony that Blessitt showed him some sheets of bad carbon
paper, but does not reveal which rewinder operator ran the
faulty paper, without noticing the white wrinkles, before it
went to the collators and was cut into sheets.)
b. The Company's defenses
(1) Purported faulty work
Howell positively testified that, between the time of his
(September 12) reprimand and his March 26 discharge,
nobody complained to him about the quality of his work.
(Howell, who was poor at remembering dates, erroneously
recalled that the Friday, September 12, reprimand occurred
on Friday, November 14, the day after "my wife had left
on Thursday to attend a Cursillo meeting in Owensboro at
St. Stephens Cathedral.") That reprimand was for not
watching his rewinder closely enough to ensure a proper
margin on the carbon paper. During the preceding 2 weeks,
"the electric eye was not working properly, and it wouldn't
hold the paper true as it came through the machine." (This
was the only time Howell had ever been reprimanded since
being hired in July 1973, except for once striking a fellow
employee.)
As a defense, Foreman Blessitt claimed that he talked to
Howell "several times" about defective paper: at times
"scattered out I guess all through November, December,
January, February, March," and "quite often" in February
and March. During this time, Blessitt was personally
inspecting all of the rolls of paper which had to be "broke
out" (discarded) "so it would give me an idea of the
operator that run it and what my problems was." (The
jumbo rolls from the coater, which puts carbon on the
paper, are split on the rewinder into five smaller rolls,
before they go to the collator for the carbon paper to be
combined with the manifold paper, to be cut and made
into copysettes, nonreusable carbon sets.) Blessitt testified
that, when he came in in the mornings, he would find
stacked to the side the rewinder rolls which could not be
run on the collators during the preceding shifts because of
incorrect margins, white lines, ink spots, or bad splices. He
added that he would get some bad paper from all of the
rewinder operators because of their duties away from the
machine during running time. (While the rewinder is
running, the operator moves paper with a towmotor, stacks
paper, sharpens the slitter, sweeps up, eats lunch, etc.)
However, according to Blessitt, there at last, in January
and February, he would get these rolls of bad paper "every
other day," and "the majority of it" was Howell's paper.
If this claim were true, it would have been a simple
matter for the Company to prove it with documentary
evidence. As revealed by collator operator Cain, every time
a collator operator finds a bad roll of paper, the operator
fills out a transfer slip. This slip shows the lot number, size
and kind of paper, "what's wrong with the paper, why you
had to take it off' the collator, the operator's name and
shift, "a place for you to check if it's the rewinder'sfault or
the coating's fault, and then a place for the foreman to
sign." (Emphasis supplied.)
Furthermore, if Blessitt's claim were true that a majority
of the rolls of defective paper were run by Howell and if the
Company considered Howell at fault, undoubtedly the
Company would have reprimanded him for faulty work-
as it did in September when the electric eye on his No. I
rewinder was not working properly, requiring closer
attention.
In the absence of any reprimand, and instead of
introducing into evidence the transfer slips prepared at the
time, the Company introduced the testimony of two
employees, collator operators Cain and Pierce, who gave
discredited testimony concerning Meredith, as indicated
above. Cain testified that she ran a set (five rolls) of
Howell's paper maybe every other day, or five or six sets a
week, and claimed that throughout the lastyear of Howell's
employment, "Almost all the rolls that I would have [of
his] would have something wrong with them." (Relying on
Foreman Blessitt's testimony, the Company contends in its
brief that the problems with Howell's work "began to
surface around August," whereas Cain claimed that
Howell was no longer a good employee after the preceding
"February, March," or "Sometime in there.") Pierce
testified that he first experienced rolls of bad paper from
Howell during a week which was "maybe a month, or
maybe two months" before Howell's discharge. Pierce
(who worked on the evening shift, following Howell's day
shift) testified that, on one Friday, he called General
Manager Sturdevant over to his collator, showed Sturde-
vant a sheet of copysette from each of the five rolls on the
machine, and pointed out the margins on the carbon going
from wide to narrow. Sturdevant told him to pull off the
five rolls, which had a tag that "read Bill Howell."
(Sturdevant testified that this occurred in late February.)
However, Pierce did not stop after giving this apparently
factual account of the bad paper. He claimed that on each
of "at least" two or three earlier occasions that week, five
566
HURON COPYSETTE, INC.
rolls of Howell's paper had to be discarded, and that
nothing was done about it.
As previously indicated, both Cain and Pierce impress
me as being most untrustworthy witnesses. But even apart
from their demeanor on the stand, I find it implausible that
(as testified to by Cain) Howell ran bad paper for a whole
year (particularly inasmuch as Pierce did not experience
difficulty with paper bearing Howell's name until late
February), and that (as testified to by Pierce) 15 or 20 rolls
of Howell's paper had to be discarded that week.
Howell was not reprimanded for running the five rolls of
paper which collator operator Pierce showed General
Manager Sturdevant in late February (apparently near the
date of Howell's discriminatorily motivated February 26
reprimand discussed above). The evidence does not
disclose whether this was the same time when somebody
printed the name "BILL" on the roll tag and the rewinder
report showed that it was not Howell's paper, or whether
the foreman found that Howell was not at fault for some
other reason. (I find it most improbable that disciplinary
action would not have been taken against Howell if, as
Pierce claimed, Howell had run "at least" 15 or 20 rolls of
bad paper during that week-particularly in view of
Howell's reprimand for another purported reason near that
same time.)
The Company had three new employees in the coater
department. The rewinder operators were getting an
excessive amount of bad paper from the coater operators,
and there was an excessive amount of broke. (I note on
rewinder operator Logsdon's February 9 report the
remarks, "Bad Roll Carved out. 3 hr. Downtime. All the
rolls are Bad." He again complained about the paper on his
February II rewinder report, writing "Don't want No
More of Them.") Sometime during the first week of March
while Howell was off sick (probably on Friday, March 5,
the date of the writeups placed in the employees' files), the
Company held a meeting with the coater and rewinder
operators to find ways of cutting down on broke (such as
having the coater operator mark ink spots for the rewinder
operator).
Foreman Blessitt claimed that Howell was in this
meeting and that "It didn't seem to help him much; if
anything, it made him worse after the meeting." (When
questioned about when the meeting was held, whether
Howell was off sick at the time, and the date written on the
March 5 writeups, Blessitt claimed that the meeting was
held on Monday, March 1, and that he prepared and dated
the writeups 4 days later. I discredit this testimony, and
credit Howell's testimony that the meeting was held in his
absence.) I find that Blessitt's testimony about the meeting
not helping Howell much, and it making him worse, was
fabricated. I credit instead Howell's testimony that nobody
complained about the quality of his work before his
discharge.
(2) Quantity of work
As proof that Howell's production was low, the Compa-
ny introduced into evidence a summary of production on
the No. 1 rewinder. This exhibit (prepared for the hearing)
shows the total monthly production (pounds, hours run,
and pounds per hour) for Howell and six other rewinder
operators who were working on the No. I rewinder
between October and March. As an example, it shows that,
in February, Howell averaged, in round figures, 982
pounds an hour. Logsdon (hired November 1975) averaged
1,201 pounds an hour, Darrell Allen (hired December
1975) averaged 780 pounds an hour, and Eddie Webb
(hired February 1976) averaged 1,134 pounds an hour.
Also in October and November, when Kenneth Vinson
replaced Howell on the day shift for 4 weeks, Howell's
average production was 947 and 1,059 pounds an hour,
respectively, to Vinson's 1,149 and 1,120 pounds an hour.
However, a different picture is painted by the daily
rewinder reports from which the summary was made. They
show many breakdowns of the No. I rewinder and highly
fluctuating production rates when the machine was and
was not running properly (for example, Logsdon producing
5,275 pounds in 7 hours on February 2 and 11,750 pounds
in 7 hours on February 4, running the same size paper).
They show instances of low production on the day shift
when most of the repairs and "changeovers" (from one size
paper to another) are made. As an example, on February
24, Howell produced 5,520 pounds in 7 hours on the day
shift when the electric eye was repaired, and Logsdon
produced nearly twice as much, 10,916 pounds, in 7 hours
on the following evening shift after the machine was back
in order. Two days later, when there were a changeover
and switch and electric eye repairs made on the day shift,
Howell's production was 4,736 pounds in 5.25 hours, as
compared to Logsdon's production of 10,560 pounds in 7
hours on the following shift, after the machine was running
well again. I also note that, during the second week in
February, Howell was training Webb on the first shift and
that Webb's high production that month (1,134 pounds per
hour as compared to Howell's 982 pounds) included
Webb's production while being trained by Howell and his
production thereafter on the third (midnight) shift, when
there were no repairs or changeovers made.
The daily rewinder reports show that in October, while
Howell was on the No. I rewinder, the machine was down
repeatedly for repairs, including a 5-3/4-hour breakdown
("Brakes Hot") on October 21. Also, there were six
changeovers between October 13 and 25, usually resulting
in low production. (On October 9, Howell's last workday
on the machine before these frequent changeovers began,
the rewinder was running well and Howell had the very
high production of 17,175 pounds in 11 hours.) After
Vinson was assigned to operate the No. I rewinder on
October 27, there were repairs on the brakes and other
repairs (including repairs to the electric eye on November
10), but it happened that there was only one changeover
from October 27 through November 18, permitting more
continuous, faster running of the machine. (I note that
after Vinson's November 19 changeover, from one paper
size to another, he produced only 2,960 pounds in 4 hours.)
I bear these records in mind when evaluating the
testimony concerning Vinson's temporary assignment to
the No. I rewinder (from October 27 through November
22). Howell testified that he had been having trouble with
the electric eye at the time of his (September 12) reprimand
and that there were "other problems" with the machine
when Vinson was assigned to operate it on the day shift.
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(The daily rewinder reports show a "blowed tube" on
October 3 and 8, a clutch repair on October 8, and hot
brakes on October 20 and 21.) Howell testified that, when
he returned to the No. i rewinder (on November 24), he
was having no further problems with the machine. He
believed that both the brakes and electric eye had been
replaced. The daily reports show that his production was
high on November 24 and that there had been repairs on
both the electric eye and the brakes (including 2-1/2 hours
of brake repairs on November 17 and 2 hours on
November 20). 1 discredit Foreman Blessitt's testimony
that there had been "nothing in particular" wrong with the
machine, and that the brakes were not repaired. I also
discredit Vinson's testimony that he did not see anything
wrong with the No. I rewinder, and that the brake and
electric eye were not worked on. (He appeared on the stand
to be attempting to help the Company's cause.)
Howell testified that, when he was reassigned temporari-
ly to the No. 4 rewinder, Foreman Blessitt said, "I'd been
having trouble with my machine and he wanted to see if
Kenny Vinson could operate the machine better than I
did." Blessitt also explained that Vinson (who was suffering
from hemorrhoids-not a hernia, as Howell recalled) was
having difficulty operating the heavy shaft on the No. 4
rewinder "and asked me if I would change with him."
Howell positively testified that Blessitt did not criticize
Howell's work or say anything about giving Howell a
writeup. Blessitt, on the other hand, testified that he told
Howell that this was his "last chance"; and the Company
produced from its files a writeup which bears the
handwritten date, October 27, and states that Howell
"would have to make production on" the No. 4 rewinder
"or we would let him go." There was no proof that this
discipline form was actually written on October 27 (which
was during the 2 weeks in which Howell, following the
October 23 union meeting, solicited about 40 of the
employees to sign union authorization cards, and succeed-
ed in getting 15 signed). Blessitt testified that he occasion-
ally waits "a couple or three days" before writing such a
discipline form, and claimed that he prepared the March
coater department writeups 4 days afterwards. (As previ-
ously noted, the Company denies that it knew about
Howell's active campaigning until November 6-the date
General Manager Sturdevant gave an antiunion speech to
the employees-although Sturdevant testified that, on
November 1 or 2, he instructed members of management
to go out, listen, and report back on the union organizing.)
Having considered Blessitt's and Vinson's incorrect testi-
mony concerning the circumstances of the October 27
assignment, and having found Howell to be an honest
witness, I credit his account of what happened on October
27, discredit Blessitt's version and his claim that he then
warned Howell of being discharged, and infer that the
writeup was an afterthought, prepared after the Company
became aware of Howell's prominence in the organizing
campaign.
After 4 weeks, Foreman Blessitt reassigned Howell to the
No. I rewinder. Although Blessitt checks over the produc-
tion reports each morning, he at no time thereafter
criticized Howell's work until he discharged Howell on
March 26 (as Howell credibly testified, contrary to
Blessitt's claims). Working on the same shift with Howell,
Blessitt undoubtedly was aware of the repairs and change-
overs being made mostly on the day shift, and the reasons
for limited production at times on that shift when
compared to the other shifts. (It is undisputed that the
Company did not reprimand Howell for low production
during these months, as it surely would have done if-as
claimed by Blessitt-Howell's production was considered
too low and if Blessitt had "quite often" talked to him
about it.)
The daily rewinder reports show that, when Howell
returned from the 3-day discriminatorily-motivated sus-
pension on March 11, he had a total offive changeovers in
a period of 6 workdays, and repeated breakdowns. On
March 17, when he began a changeover at 3 p.m., the
"Electric Eye wouldn't Work," and the "End plate came
off Chuck on Unwind Shaft." On the following evening
shift, rewinder operator Logsdon similarly recorded the
"Electric Eye not working," that "Keep tearing valve stims
upon Back Chuck," and "Down altogether 2.5 hours with
Changeover." Production for both operators was low that
day and Logsdon produced two "bad rolls." (I reject the
contention made in the company brief that during this
period of time, between Howell's reassignment to the No. I
rewinder and his discharge, "there was nothing wrong nor
anything reported to be wrong with the machine."
Frequent repairs were necessary, including electric eye
repairs on December 5 and 22, January 7 and 16, February
5, 18, 24, and 26, and March 11 and 17. Although the
rewinder reports show that full production could some-
times be resumed after a changeover, on many occasions
there were electrical and/or mechanical problems experi-
enced when the rewinder was adjusted to a different paper
size, and there was low production for varying periods of
time after the changeover.)
Production was higher on March 25 and 26, the last 2
days of Howell's employment. In fact, about 1:30 p.m., on
March 26, Foreman Blessitt was at Howell's machine,
sharpening the slitter from another rewinder, and congrat-
ulated Howell for "running real good" that day. By then,
after working about 5-1/2 hours without any downtime,
Howell had already finished running four jumbo rolls
weighing 7,595 pounds, and was near completion of a fifth
1,410-pound roll-which was completed (but not unload-
ed) 10 or 15 minutes later when he was called into the
office and discharged. (Howell was in error in recalling that
he had completed his seventh roll that day, instead of his
fifth.)
c. Concluding findings
The General Counsel contends that Howell's discharge
was based on the Company's "desire to rid itself of the
Union's chief employee supporter, in accordance with
Foreman Blessitt's statement" to employee Newton,
shortly after Howell began organizing (that the Company
would fire "the one who started it ... so fast they
wouldn't know where they was at"). The Company, which
has made a major effort to justify the discharge of this
union election observer, contends that it had a "good faith,
legitimate business reason for imposing the discipline upon
Howell," and that it meted out the discipline "in complete
568
HURON COPYSEITE, INC.
disregard for any union connections Howell may have had
at one time."
The Company suddenly discharged Howell on March 26,
less than 2 months after its second defeat of the union
organizing efforts, and shortly after it began its endeavor to
"build a case" against Howell, by discriminatorily repri-
manding and suspending him for other purported offenses
(as previously found). Foreman Blessitt called Howell into
the office in the middle of the afternoon and accused him
of producing defective paper on the rewinder. When
Howell denied that this was his paper, Blessitt said that
Howell's production was down and "I'm going to have to
let you go."
At the hearing, the Company offered testimony not only
that the defective paper on March 26 was Howell's, but
also that he had run a "majority" of the defective paper for
months. However, the Company failed to substantiate
these claims by producing its own records, including the
"transfer slips" which were prepared by the collator
operators at the time, showing which operators had run the
paper (by recording the lot numbers) and who were
responsible for the defects. Moreover, the Company made
no effort to explain, if its testimony were true, why it had
failed for several months to reprimand Howell for running
bad paper on the rewinder.
The Company also offered testimony that Howell was
discharged for low production. Again it failed to explain, if
Howell was at fault in producing less on the day shift than
rewinder operators on other shifts, why it had gone for
months without reprimanding Howell for it. Moreover,
both at the hearing and in its brief, the Company ignored
the effect of the day-shift changeovers and repairs
(revealed by the rewinder reports in evidence) on the
average day-shift production as compared to the averages
on other shifts.
After weighing all of the evidence and making credibility
findings, and after considering all of the circumstances, the
General Counsel's strong case of union animus and
discriminatory motivation, and the unpersuasive defenses,
I find that the Company's real reason for discharging
Howell was to rid itself of this leading union organizer
before the Union began another effort to organize the
plant. I therefore find that the Company discriminatorily
discharged Howell in violation of Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
I. By discharging employee William Howell on March
26, 1976, because of his union activity, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. The General Counsel has failed to prove that the
Company unlawfully discharged or discriminated against
employee Outis Meredith.
3. By threatening plant closure and less favorable
working conditions if the employees voted for a union, and
I 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.
by coercively interrogating employees, the Company
violated Section 8(aX I) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged an
employee, I find it necessary to order it to offer him full
reinstatement, with backpay computed on a quarterly basis
plus interest at 6 percent per annum in accordance with F.
W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of proper offer of reinstatement.
Inasmuch as Respondent's unlawful conduct goes to the
very heart of the Act, I find it necessary to issue a broad
Order, requiring the Respondent to cease and desist from
infringing upon employee rights in any other manner.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3
The Respondent, Huron Copysette, Inc., Leitchfield,
Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging and otherwise discriminating against any
employee for supporting Coopers' International Union of
North America, AFL-CIO, or any other union.
(b) Threatening to close the plant or to provide less
favorable working conditions if the employees vote for a
union.
(c) Coercively interrogating any employee about union
support or union activity.
(d) 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 necessary to
effectuate the policies of the Act.
(a) Offer William Howell immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay or other benefits in the manner
set forth in the section of this Decision entitled "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 records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
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.
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Leitchfield, Kentucky, copies of
the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent 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. Reasonable steps shall be taken by the
4 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
Respondent to insure 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 Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
570