Kent Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1974

212 N.L.R.B. 595 (N.L.R.B. 1974)

KENT CORPORATION 595
Kent Corporation and International Brotherhood of
Boilermakers , Iron Ship Builders, Blacksmiths,
Forgers and Helpers and John W . Sailors and Thom-
as E. Roberts. Cases 10-CA-10091, 10-CA-10272,
10-CA-10099, and 10-CA-10179
July 30, 1974'
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 27, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.' The General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor- Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs, and
affidavit and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
1. Respondent argues that improprieties in the Re-
gional Director's investigation violated constitutional
standards of fair play. It points to two incidents. The
first is the General Counsel's introduction as evidence
of slips of paper that Respondent had given to four
employees, which contained the Board's local office
address and telephone number. It states that it gave
this information to its employees, at the suggestion of
a Board agent, to clear up confusion in the unfair
labor practice charges naming or misnaming the al-
leged discriminatees. These slips, together with other
evidence, were relied on by the Administrative Law
Judge in finding that Respondent unlawfully solicited
four employees to withdraw the charges concerning
them and discharged three of them (Thomas, White,
and Nesmith) when they would not carry out its in-
struction. Respondent contends that, in view of the
'Respondent also filed an affidavit alleging bias of the Administrative
Law Judge, which we discuss in the body of this Decision and Order.
2 we correct these inadvertent errors in the Administrative Law Judge's
Decision . The "Statement of the Case" section refers to charges filed by the
Union . It should also reflect that charges were separately filed by employees
John Sailors and Thomas Roberts.
In sec. III, "Unfair Labor Practices ," B, "Discrimination Cases," we cor-
rect errors in the following, paragraphs discussing the named discnmmatees:
Eddie Thomas-in the fourth paragraph, first sentence, the case number
should read "10-CA-I0077 ." Calvin Wright-in the second paragraph, sec-
ond sentence , "Foreman Deaton" should read "Manager Deaton ." Charles
Archer-in the fourth paragraph, fifth sentence, the second word should read
"Morrison."
Board agent's suggestion in the matter, the use of
paper slips as probative evidence was entrapment.
There' is no merit to this argument. The record
shows that Respondent's officer (McGinnes, assis-
tant to President Oztekin) testified to talking to the
Board agent the first week of May 1973 about the
confusion in names in the unfair labor practice
charges. It also shows that Respondent gave the slips
to the employees 2 or 3 weeks earlier, between April
17-19. In view of the fact that Respondent' s illegal
conduct, passing out the slips and discharging those
who would not withdraw the charges, preceded its
alleged conversation with the Board agent, the claim
of entrapment is baseless.
The second incident in the investigation which Re-
spondent asserts was unfair to it was an alleged occur-
rence in the Board's local office, as testified to by
employee Miles Blackman. Blackman said that he
went to the Board's office to withdraw his name from
the unfair labor practice charge; that a Board employ-
ee in the office told Blackman he would remove his
name but Blackman was liable to lose his job; that
employee Sailors, who was also present, tried to dis-
suade Blackman; and that the Board agent told
Sailors to leave. Respondent states that the Adminis-
trative Law Judge prevented further examination of
witness Blackman, did not mention the incident in
his Decision, and that the threats by the Board agent
and employee Sailors taint the proceeding and de-
prived Respondent of a fair hearing.
The record shows that Respondent represented to
the Administrative Law Judge that the purpose of
Blackman's testimony was to show that Respondent's
subsequent actions, in giving employees the name and
address of the Board office and assuring employees
that they would not be fired if they withdrew their
names from the charge, were not coercive. While
counsel for the General Counsel objected to the line
of testimony on grounds that It was extraneous to the
issues, the Administrative Law Judge overrules the
objections, and, in fact, Respondent' s counsel contin-
ued his direct examination of the witness. The witness
gave further testimony on the subject in cross-exami-
nation by counsel for the General Counsel. Toward
the end of the direct examination, this colloquy oc-
curred between the Administrative Law Judge and
Respondent's counsel:
JUDGE WINKLER: Well, in any event, I think this
witness has given you all the information that
you need for purposes of this case.
MR. STELZENMULLER: I believe he has.
JUDGE WINKLER: Continue.
MR. STELZENMULLER: That's all my questions of
this witness.
212 NLRB No. 88
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record thus shows that the testimony was
received for the purpose it was offered, and
Respondent's counsel acknowledged that he had no
need to question the witness further on this.
2. Respondent argues that the Administrative Law
Judge was prejudiced against its case, as shown by
several events at the hearing, which deprived it of a
fair hearing. It contends that it was misled by the
Administrative Law Judge's statements both on and
off the record to the effect that, if Respondent pre-
sented a defense to the unlawful assistance evidence
introduced by the General Counsel, the Administra-
tive Law Judge would order disestablishment of the
Association 3 because he was satisfied that domina-
tion existed, although not alleged. Respondent states
that it therefore did not put on a defense as to unlaw-
ful assistance rather than have the Association dises-
tablished.
There is nothing in the Administrative Law Judge's
on-the-record remarks that could be interpreted to
preclude Respondent from contesting the General
Counsel's evidence as to unlawful assistance. The Ad-
ministrative Law Judge indicated only that if the evi-
dence showed unlawful domination in the
administration of the Association and if Respondent
litigated the issue, it would be consenting to try the
domination issue and a finding could result in dises-
tablishment of the Association. The Administrative
Law Judge referred to an off-the-record discussion,
and his statements on the record were apparently
made to show what the parties had talked about at
that time. Respondent's brief to the Administrative
Law Judge did not contend that the Administrative
Law Judge had made any different remarks off the
record on the point it now raises. It does not now set
forth any evidence which it had and did not present
at the hearing. Nor has it indicated which of the Ad-
ministrative Law Judge's findings would be refuted by
facts which it desired to present. We find no therit to
Respondent's contention that it was precluded from
presenting a full defense on the 8(a)(2) issue.
Respondent further argues that the Administrative
Law Judge decided the case on an incomplete record,
closing the record without notice to Respondent after
he had agreed to keep it open for additional docu-
ments which Respondent had requested from the
General Counsel. The documents requested are the
subject of a proceeding now pending on appeal to the
Court of Appeals for the Fifth Circuit. Kent Corpora-
tion v. N.L.R.B. (Civil Action No. 74-1710).
Respondent did not request delay in the hearing of
evidence on the complaint allegations, but, at the end
of the presentation of all the evidence, asked that the
record by kept open for the production of the docu-
ments previously requested. The Administrative Law
Judge asked why Respondent wanted the information
and Respondent 's counsel said it "may show some-
thing" about "rather peculiar occurrences in connec-
tion with the issuance of this charge and the
investigation of it. . . ." The record shows that the
Administrative Law Judge said "Okay" to this reply
to his question . It is not clear that the Administrative
Law Judge was agreeing to Respondent 's request.
However , in its brief to the Administrative Law
Judge , Respondent said only that it would submit the
documents , which it was seeking through court action,
as additional exhibits if it obtained them . We hold
that Respondent has not been prejudiced by the clos-
ing of the hearing . Sears Roebuck & Co., 473 F.2d 91
(C.A.D.C., 1972).
We have carefully considered the contentions ad-
vanced by Respondent in its brief and affidavit of bias
with respect to improper and prejudicial conduct by
the General Counsel and the Administrative Law
Judge , and we are mindful of the gravity of the allega-
tions. We are satisfied that they are totally without
merit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as ammended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Kent Corporation, Pinson
Valley, Jefferson County, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
3 The complaint and notice of hearing and order consolidating cases, is-
sued on August 22, 1973, was served on the Employees Association of Kent-
Supermatic The Administrative Law Judge gave the Association, through its
attorney, who appeared at the trial as an observer, an opportunity to inter-
vene, but the Association did not make a formal appearance
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: This is a
consolidated proceeding based upon charges and amended
charges filed by the Union on and after April 11, 1973, and
complaints issued by the General Counsel on June 20 and
August 22, 1973, alleging violations by Respondent of Sec-
tion 8(a)(1), (2), (3), and (4) of the Act. Respondent's an-
swers deny the alleged violations, and a hearing thereon
began on September 10, 1973, and ended on October 4,
1973. All parties, including the Association, were repre-
sented by counsel and were afforded full opportunity to
participate in the hearing.
KENT CORPORATION
e
Upon the entire record in the case, including my observa-
tion of the demeanor of witnesses, and upon consideration
of briefs, I make the following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
Kent Corporation is an Alabama corporation engaged in
the manufacture and sale of steel shelving and grocery
checkout counters at Pinson Valley, Jefferson County, Ala-
bama. Respondent's yearly interstate shipments exceed
$50,000, and I find, as all parties agree, that it is engaged in
commerce within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers & Helpers (herein called the
Boilermakers or Union) and Employees Association of
Kent-Supermatic (herein called the Association) are labor
organizations within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues involved here are whether Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharging 15
employees,' and Section 8(a)(4), as well, as to 5 of these
employees;2 Section 8(a)(2) and (1) by assisting and sup-
porting the Association; and Section 8(a)(1) by other speci-
fied conduct.
The Association was organized in 1969 or 1970 as an
unaffiliated labor organization with membership limited to
Respondent's employees, and at material times herein it was
the recognized bargaining representative under contract
with Respondent. (This contract expires by its terms on
March 1, 1974.) Employees evinced an interest in the Boiler-
makers in 1973,3 and about March 13 of that year the Boil-
ermakers began an organizing campaign by openly
handbilling and distributing union leaflets and designation
cards outside the entrance to Respondent's plant. This
handbillmg continued until May 17. On March 22, 1973, the
Boilermakers filed a representation petition with the Board
(Case 10-RC-9556). A decision and direction of election
issued on April 18, and an election was held on May 17, with
Boilermakers and the Association on the ballot. Of approxi-
mately 87 eligible votes, 26 ballots were cast for Boilermak-
ers, 25 for the Association, and 26 ballots were challenged.
The Association and Respondent filed objections to con-
duct of the election, and these objections were unresolved
as of the hearing in this unfair labor practice case.
The General Counsel contends that Respondent under-
took a two-pronged campaign to defeat the Boilermakers'
organizational efforts and to assure its own control over the
Association. The 8(a)(2) allegations of the complaint are
1 The complaint was dismissed at the hearing respecting Robert Hallman's
discharge
2 Edward Blakiey , Mary Nell Dyer, Mary Lee England, Wayne Neely, and
Beverly Nesmith.
3 All dates herein are in 1973 unless otherwise stated.
597
addressed to assistance and interference with, but not domi-
nation of, the Association. The alleged cases of discharge
and other discrimination as well as other independent acts
of interference, restraint, and coercion are alleged by the
General Counsel as further ingredients of Respondent's ef-
forts to keep the Association in and the Boilermakers out.
A. Association Elections
An election to select new officers for the Association was
held in the plant cafeteria on March 2. Calvin Wright was
elected as president, Ricky Morgan as vice president, Mazel
Finney as recording secretary (or secretary-treasurer), and
Robert Hallman as a member of the board of directors.
Shortly thereafter, some of the newly elected officers were
summoned to a meeting with Company President M. A.
Oztekin. Oztekin told them, according to Wright's credible
testimony, that the election was "illegal" and that another
election would have to be held because Morgan was too
young to hold office 4 and because Hallman had not been
in the Association long enough. Company Vice President
Turner Duke contemporaneously called employees Sam
Mitchell, C. A. Smith, and Charles Archer into his office,
these three being among the past year's association officers.
Duke told these employees, according to Archer's credible
testimony, that some employees who were not qualified to
vote had cast ballots in the March 2 election and that the
election was therefore "irregular." Duke further told them
that Respondent would continue recognizing the old offi-
cers until a new election was held and that they should
meanwhile devise a method to avoid "irregularities" in an-
other election. Duke left the office and the three employees
discussed the matter. Duke returned and then invited the
employees to Oztekin's office where Oztekin was being vis-
ited by a state legislator, Bobby Timmons. Oztekin an-
nounced that "we're having a new election" because of
"voting irregularities," and he asked Timmons to give the
employees " a few pointers." Timmons then said that voting
by unqualified voters "automatically" made the election
results "null and void." Everyone present discussed the situ-
ation and the employees agreed with Archer' s suggestion
that a checkoff list of association members be used in any
future election.
Meanwhile, there were rumors in the plant that another
election would be held, and a second election was held on
March 9. A few days before March 9, according to Charles
Archer's credible testimony, Plant Superintendent Melburn
Gardner 5 told Archer there would be a new election and
that "you old hands should get together and decide who you
want into office." Archer indicated his 'disinterest in such
discussion with Gardner. About this same time, Archer was
approached by DeWayne Deaton, manager of the electro-
coating division. Deaton referred to the upcoming second
election, according to Archer's credible testimony, and sug-
gested that Archer "run for President of the Association"
and that he, Deaton, would "see that you'll get it." Archer
would have no part of it.
The Association's bylaws do prescribe a minimum age of 21 for its
officers
5 Gardner's testimony leaves much to be desired as far as credibility and
trustworthiness is concerned on this and all other issues
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright and Finney were again elected at the second asso-
ciation election held in the plant cafeteria on March 9, and
this time Donald Moore was elected vice president. Charles
Archer credibly testified that during the election Superin-
tendent Gardner and Company Vice President Jerry Alba-
no stood outside the door to the cafeteria and had an
employee roster in hand, and they checked off the names as
each employee entered the cafeteria to attend the election
meeting.
Wright met only once with management representatives
in his capacity as association president. This occasion in-
volved an inquiry by Wright of Superintendent Gardner
why one Foster was not on the Association's membership
list. Gardner took Wright to Vice President Duke's office,
President Oztekin being present at the time. Wright men-
tioned the Foster matter to Oztekin and, according to
Wright's credible testimony,6 Oztekin "got warm " As dis-
cussed hereinafter, Wright was "laid off" on March 23 and
the General Counsel also contends that Respondent did not
properly recall him Moore resigned the vice presidency
about a week after the March 9 election, and Respondent
discharged him on March 23.
On or about March 24, Association Recording Secretary
Finney was called at home by E. T. Simrell. Simrell was
then a company vice president and its secretary-treasurer.
Finney credibly testified that Simrell told her that Wright
was no longer with the Company and Moore had resigned
his office and that "all this falls on your shoulders." Simrell
"advise[d]" Finney "to call a meeting and elect officers to
fill the vacancies" and that the names of new officers had
to be turned in to the Company at once. Finney replied that
the employees still recognized Wright as their President and
that she did not know whether she could arrange a meeting.?
Within a few clays Sam Mitchell (a former president of the
Association), and later two other employees, suggested that
Finney call an Association meeting to elect new officers
Finney replied that Wright was still the president and that
the Association's toard had not determined he was not.
Wright, meanwhile, had appointed Travis Mitchell to re-
place the resigned Moore as vice president.
A meeting to conduct a third election of association offi-
cers was held on March 31. This meeting was not called by
any association officer It was held, rather, pursuant to a
notice on a company bulletin board. The notice was from
"The Management" to "Hourly Employees," and it an-
nounced, in part, that an election meeting would be held in
the plant cafeteria on March 31 at 4 p.m. to fill vacancies
in association offices. About 18 of the approximately 65
association members attended this March 31 meeting and
Sam Mitchell presided although, as indicated, he was not an
officer of the Association. The floor was opened for nomi-
nations and an election was conducted by a show of Lands.
Approximately nine employees actually participated in the
voting. Mitchell received five votes and became association
president. John Goodwin was elected vice president and
6 Wright was a wholly trustworthy witness
7 While recalling having several phone conversations with Finney concern-
ing association checkoff lists, Simrell denied discussing association elections
with her Finney's version of the conversation is completely credible, in my
George Praytor a board member
In the company conference room the following week
President Oztekin congratulated Mitchell, Goodwin, Pray-
tor, and Finney on the election and said the Company rec-
ognized each of them as association officers. Finney
declared she did not recognize either Mitchell or Goodwin
as such. Sometime during this period Finney rejected the
applications of David Gardner and Violet McCay for mem-
bership in the Association, Gardner is the son of Superin-
tendent Gardner and McCay is an office employee. Finney
was called to the office and Oztekin asked her about these
applications in the presence of Company Vice President
Duke and other management representatives Oztekin told
Finney that Gardner and McCay could file a charge against
Finney for "discriminating" against them.
B. Discrimination Cases
The Respondent correctly states that an employer "has
the right to discharge an employee for any reason, whether
it is just or not, as long as the discharge is not in retaliation
for union activities or support . . . . The Board cannot
substitute its judgment for that of employer as to what
constitutes reasonable grounds for discharge. The question
of proper discipline of an employee is a matter left to the
discretion of the employer." N.L.R.B v Ogle Protection
Service, Inc., 375 F.2d 497, 505 (C.A. 6, 1967), cert. denied
389 U.S. 8433. The General Counsel asserts, in effect, that
President Oztekin is a strict disciplinarian and therefore
brooks no opposition to his allegedly anti-Boilermakers
stance. The Respondent also asserts that Oztekin is a strict
disciplinarian and contends, in effect, that the individual
cases of discrimination must therefore be evaluated "in
terms of hiw own personal makeup" 8 and his right to run
in effect, as "tight a ship" as he desires. Each party there-
fore asserts the personality of various Respondent repre-
sentatives is relevant to their respective approaches to this
case. While there might have been what I deem a semanti-
cal-though unintentional-awkwardness in phrasing the
contention on one or two occasions, no party in my opin-
ion has engaged in racism or aspersion of nationlality of
any sort. I consider, moreover, that it is a responsibility of
an attorney not to inflame the emotions or exploit the mis-
understandings of a client or a witness at least so far as a
hearing is concerned. Counsel for the Respondent urges
that this proceeding be dismissed on the ground that Re-
spondent has been deprived of constitutional rights. A fair
reading of this record affords no basis for such contention,
and I shall not discuss this matter further except the avun-
cular advice that all parties treat each other fairly, at least
at hearing as well as in briefs.
I shall now take up the individual cases of discrimination.
I have considered each discharge situation on the basis of
its own facts and in the context, as well, of the entirety of
this case, and keeping in mind the chronology of events
relating both to the Association and to the Boilermakers
campaign and the processing of the aforementioned repre-
sentation case. The record in the case is fairly large and this
Decision is long and on occasion I have omitted details
opinion, based on their testimony and my demeanor observations 8 Hemingway Transport, Inc, 200 NLRB 245, TXD (1972)
KENT CORPORATION 599
when it seems fair and prudent to do so. All parties should
be aware, however, that this Decision is based on the entire
record in the case.
Wayne Neely was hired on March 8, 1973, and laid off on
March 23. The complaint alleges that Respondent unlawful-
ly discharged Neely on or about June 8. Respondent was
notified on April 13 that the Boilermakers had filed an
unfair labor practice charge (Case 10-CA-10091) on April
11 and that such charge alleged in effect that Neely and
other employees were unlawfully laid off on March 23 and
on various other dates. Respondent mailed Neely a recall
letter dated April 17, giving him 3 days within receipt to
notify Respondent of his intentions to return; the letter also
stated that unless Respondent heard from Neely Respon-
dent would offer thejob to others on a seniority basis. Neely
had meanwhile moved his residence without notifying Re-
spondent and he did not receive the recall letter until on or
about April 27. Neely went to Respondent a day or two
later, but was informed that the job had been given to
someone else.
Early in June Respondent placed a newspaper advertise-
ment for journeyman machine operators. Neely saw the
advertisement and went to the company office seeking em-
ployment although he was not qualified for the mentioned
job classification. He spoke to Vice President Duke and
President Oztekin on this occasion and, after being told that
Respondent had no job for him because it was hiring only
in the mentioned category, Neely mentioned something to
the effect that Respondent had said it would rehire on a
seniority basis. At this point, according to Neely's credible
testimony, Oztekm lost his temper and said "what in the
hell's the matter with you; are you stupid or something."
Neely thereupon left.
The next day, Duke called Neely and said Respondent
had a job for him. Neely went to the plant and Duke in-
formed Neely he would be required to fill out a new applica-
tion form and he could only return as a "new" employee.
Neely completed the application and one of the questions
on the form required the applicant to identify any union
affiliation. Neely answered "no" affiliation.9
Neely accordingly resumed employment in the shipping
department on Monday, June 4. A day or so later, according
to Neely's credible testimony denied by Superintendent Or-
soy,10 Orsoy approached Neely with a "piece of paper"
which he asked Neely to sign but would not show him.
Orsoy told Neely that the "paper" stated that Neely had no
9 Neely had signed a Boilermakers authorization card, but did not under-
stand this to mean "affiliation." Indeed, his testimony shows that he did not
know the meaning of the word
Respondent claims it has since deleted this question from its questionnaire.
'()The Boilermakers began open handbilling at Respondent's plant en-
trance on March 13 and continued such activity until May 17 Vice President
Duke testified to Respondent's awareness of this organizational drive and
that he sent a letter to the Boilermakers dated March 14 stating that "your
solicitation of our employees has been brought to my attention " Orsoy, the
plant superintendent on the night shift, testified-and I am fully satisfied
that he deliberately misstated-that he did not learn of the Boilermakers
activities until May 2, when the Board election notice was posted. This is a
very intelligent witness I am satisfied on the basis of his entire testimony and
demeanor and on the testimony and demeanor of all other witnesses and
upon consideration of all other evidence that this witness is not entitled to
be believed in matters of evidentiary conflict
grievance against Respondent and that Neely wanted to
"drop" the aforementioned April 11 charge filed with the
Labor Board. Neely told Orsoy it wouldn't be "right" for
him to sign the paper and he refused to do so. Orsoy dis-
charged Neely at the end of the week.
Respondent claims that it discharged Neely for "disobe-
dience, insubordination" and it also claims he was a "slow,
poor" worker and talked "loud and incessantly" on the job
(Resp. Br. 138-139). As to the insubordination claim, it
appears that during the few days of his employment after
he refused Orsoy's request to sign the "paper," Orsoy
"jumped all over" Neely, according to Neely's testimony,
for wearing a regular shirt with the sleeves cut off and told
Neely not to wear such sleeveless shirts. (It is recalled that
Neely was working in the shipping department.) Neely told
Orsoy he had once seen a woman employee wearing, a shirt
with rolled-up sleeves and he also mentioned something
about his "Constitutional rights." Neely wore the same
sleeveless shirt the next day and Orsoy told Neely that he
had already warned him about such shirts. On Friday Orsoy
called Neely into the office and fired him. Respondent ad-
duced the testimony of one Steve Staley " on the "loud and
incessant" talking charge, and it also adduced a memoran-
dum purportedly written by Orsoy to Albano on June 5
recommending. that Neely be replaced "as soon as possible"
for talking and not being "productive," and for "poor work
attitude" and lack of "interest." The record also contains
two memoranda, each dated June 8, from Orsoy to Albano,
requesting Neely's termination for "talking" and not being
"productive." 12
President Oztekin owns Respondent, and Vice President
Duke testified that Oztekin "knows just about everything
that goes on" and that as to "practically all discharges, he
knows exactly what's going on at the time." Respondent was
strongly anti-Boilermakers, so far as this record establishes,
and the record documents the widespread efforts and
lengths to which Respondent went to implement this ani-
mus. An employer is entitled to be antiunion or to be anti-
particular union in his feelings and beliefs and an employer
is also entitled to insist on any mode of dress or uniform for
his employees and even to require shipping room employees
to wear formal attire if he desires. The question, however,
as to Neely's discharge is whether that is the real reason for
the discharge. It will appear in the discussion of some other
discharge cases here that Respondent recalled employees
and then got rid of them a few days later and that it mean-
while set out to establish a pretext for such termination.
Later on, too, we discuss the situations of other employees
who also refused Respondent's request to withdraw from
unfair labor practice cases pending against Respondent.
I am satisfied, and find, that Respondent discharged Nee-
ly for his refusal to sign the "paper" tendered to him by
Orsoy, and not because he wore sleeveless shirts or for any
other reason asserted by Respondent.
Eddie Thomas began working for Respondent in June
1972, and left after several months to enter college that fall.
Vice President Albano told Thomas at the time that he was
i I consider Staley an untrustworthy witness and not entitled to belief.
iz These memoranda, being substantially hearsay, do not establish the
truth of their contents. This was the limitation placed on exhibits when
received in evidence.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a "good worker" and that Albano could arrange to have
Thomas return for summer employment during succeeding
college years. Thomas shortly dropped out of college, and
Duke and Albano rehired him on a permanent basis in
February 1973. Thomas and other employees were laid off
on or about March 23 and, with Thomas' knowledge, an
unfair labor practice charge was filed by the Boilermakers
on April 3 alleging these layoffs to be unlawful.13
Thomas was recalled to work on or about April 18 (he
was previously employed in fabrication on the day shift; he
was recalled as a night janitor), and 2 days later he was
terminated. There is a surface ambiguity as to whether it
was a discharge or a layoff. Respondent's answer admits, as
the complaint alleges, that Thomas was discharged and Su-
perintendent Orsoy identified Respondent's termination
slip as a "discharge" which he testified he signed after con-
sultation with Vice President Albano and Foreman Arthur
Pugh. The slip recommends Thomas' rehire, however, and
also mentions layoff for steel shortage and states that
Thomas was a 90-day probationary employee.
Thomas was employed as a night janitor after his recall,
as stated above, and Pugh testified that Thomas "couldn't
handle the job," and Pugh stated in explanation that on one
occasion Thomas picked up an electric drill in a sweeper he
was operating and that on another occasion he got an elec-
tric cord wound up in the sweeper.
On April 18, the day Thomas was recalled to work, Fore-
man Arthur Pugh 14 gave Thomas a slip of paper, included
in the record herein as GC 15, containing Thomas' name,
Case 10-CA-10077, and the Regional Office address and
telephone number in Birmingham. Pugh told Thomas, ac-
cording to Thomas' credible testimony, to advise the Labor
Board's Regional Office, by either a visit or telephone, that
he was withdrawing his charge in the aforementioned case.
Thomas refused to do so, whereupon Pugh told Thomas to
go home and think it over and to let Pugh know the next
night. Thomas informed Pugh the following night that he
had not withdrawn his charge whereupon Pugh went into
Superintendent Orsoy's office. At the end of the shift that
night Thomas was summoned to Orsoy's office, and Orsoy
read Thomas his termination slip referring to a steel short-
age and saying he was being laid off.
Pugh admitted that he wrote out GC 15 and gave it to
Thomas and that he wrote out and gave similar pieces of
paper to other employees, including Beverly Nesmith. Pugh
testified that he heard employees discussing the location of
Federal Building, where the Board's local office is located,
and that one Miles Blackman told him in effect, that a
charge had been filed as to him but that he (Blackman) had
no complaint against the Company and that he didn't know
the Labor Board's local address or what to do about it.15
13 Case 10-CA-10077 This charge was later withdrawn
14 Pugh is another management representative who testified that the first
time he heard of the Boilermakers was on May 3. when the election notice
was posted (See In 10, supra, as to Orsoy, In 17, infra, as to Morrison, In
23, infra, as to Deaton, In 29, infra, as to Thrasher) I cannot accept Pugh's
veracity for the same reasons I discredit Orsoy and the others
15
Blackman testified concerning his inclusion within a charge Whatever
the situation was as to him , does not mitigate Respondent 's actions as to what
Respondent actually told Goodwin and alleged discriminatees Thomas, Nee-
ly, White, and Nesmith
Pugh testified that he then discussed the Blackman matter
with President Oztekin but did not inform the latter that
Blackman had purportedly said his name was on a com-
plaint against the Company. According to Pugh, Oztekin
instructed Pugh to give such address to all employees and
Pugh testified that he did so whether or not they requested
it. Pugh also testified that the information written by him
on the slips of paper he handed out, was obtained by him
from the company office and that he wrote out the informa-
tion exactly as he received it from the office. Pugh also
testified that he had no knowledge of unfair labor charges
against Respondent at the time and that he didn't know the
significance of the aforementioned case number that he
wrote on the slips 16 Oztekin did not testify concerning these
slips or about having a conversation with Pugh regarding
Blackman
Respondent recalled Thomas from a layoff and fired him
2 days later. In my opinion there is only one explanation for
this latter action, and I accordingly find that Respondent
terminated Thomas for rejecting Pugh's request or instruc-
tion to seek withdrawal of his name from the unfair labor
practice charge.
Beverly Nesmith began working for Respondent in March
1972, being primarily employed in the fabrication depart-
ment. She quit and was rehired after a week in June 1972
and was employed continuously until a layoff of about a
week beginning on or about April 1, 1973 The April I1
charge in Case 10-CA-10091 was filed after Nesmith re-
turned from the April layoff and Respondent learned on
April 13 that the charge included her April 1 layoff among
the discriminatory acts alleged therein.
It is not denied that, upon her return from the April 1
layoff and after filing of the aforementioned charge, Fore-
man Pugh told her to call the Labor Board and have her
name removed from the charge Pugh gave her a slip of
paper reading as follows: "Beverly Nesmith, Case No. 10-
CA-10091, Kent Corp., April 11, 1973, City Federal Bldg
or Phone 325-3877." Nesmith did not comply with Pugh's
instruction to contact the Labor Board Pugh's testimony
respecting these slips is discussed above in connection with
Eddie Thomas' discharge.
Nesmith was laid off a second time for a week or so on
or about April 25, and on her return Respondent started
assigning her and other female employees to various heavy
jobs she had not done before, such as spot welding and
grinding, shipping, and paint department. Vice President
Duke and Duncan McGinnes (assistant to the company
president) discharged Nesmith on July 6, purportedly for
excessive talking after being warned and for poor produc-
tivity, and Respondent adduced the testimony of other
management representatives respecting her purported defi-
ciencies . McGinnes testified that he did not know who
made the decision to terminate Nesmith Nesmith admitted
that Foreman Pugh had warned her "about twice" as to
16 Claude E Goodwin left Respondent's employ on April 25 He had been
laid off in late March or early April and participated in the filing of the
charge on April I I alleging the layoff to be unlawful (Case lO-CA-10091)
He was recalled on April 11, and the following day Foreman Pugh gave him
a slip of paper with similar information given to Thomas Pugh advised him
that "if I was you, I'd [withdraw the charges] "
KENT CORPORATION
talking and had "turned her in" for such reason after her
April recall late from her second layoff. There is no credi-
ble showing of any other warnings.
I conclude that Respondent terminated Nesmith for her
inclusion on the unfair labor practice charge and for not
complying with Pugh's instructions in that connection.
Sherrie Neely worked for Respondent from August 1971
until she quit for personal reasons in January 1972. She was
rehired in January 1973 and was fired on or about April 11,
1973. Foreman Dick Morrison was her supervisor during
both employment periods.
Early in April an employee, James Goodwin, circulated
a petition in the plant to the effect that the signers wanted
to keep the Association and didn't want any outside unions
coming in. (It is recalled that the Boilermakers representa-
tion petition had been filed by that time.) Neely refused
Goodwin's request that she sign the petition . On or about
April 9, Vice President Duke told Neely he was transferring
her from the shipping department to the paint department
purportedly for lack of work. Neely thereupon asked Morri-
son whether the reason for the transfer was her refusal to
sign the petition circulated by Goodwin and because she
was for the Boilermakers Union. Morrison said that was not
the reason and that work in the paint line was actually easier
than her former shipping work, and Neely testified that it
was in fact easier . Neely began her new work the following
evening, and during her first shift in the paint department
she was instructed to report to Momson . She did so at the
end of the shift and Morrison told her that she had started
on a 90-day trial period, that her work had started out bad,
and that she had not shown any improvement . Morrison
accordingly discharged Neely and Respondent contends
that it discharged her because she was a "poor worker."
(Resp . Br. 143.)
Neely's termination slip says "Probationary employee for
90 days. Unsatisfactory work and no sign of improvement."
Neely testified that she had never received any complaints
about her work during her entire period of employment
beginning in 1971, and Morrison, her supervisor during that
entire period, testified to a similar effect. 17 Morrison, a Re-
spondent witness, testified that he and Superindentent Or-
soy made the decision to terminate Neely. The only reason
to which Orsoy testified was that Neely was a probationer.
Morrison at first testified that Neely was fired because she
was an unsatisfactory employee, and later he said it was
because of a "steel shortage." Morrison testified that "she
was a fair worker, I mean she did her job"; she was also
"talkative," according to Morrison , but Mornson also testi-
fied that she was not particularly more so than other em-
ployees and that this gave him no problem . Morrison
testified he transferred Neely to the paint department be-
cause of a steel shortage , and that he "initiated" her dis-
charge upon discussion with Orsoy. On cross-examination
Morrison's attention was directed to his prior testimony that
he and Orsoy had decided to terminate Neely after transfer-
n Mornson testified most positively that he neither knew nor had even
heard any rumors of any Boilermakers organizational efforts , including
handbilling until immediately before the election on May 17 This is unbe-
lievable, and as in the situations of Pugh and Orsoy , among others, a deliber-
ate misstatement,
601
ring her to the paint department . Morrison then was asked
to explain why she was transferred out of the shipping de-
partment if "you decided to fire her within a half day."
Morrison either could not or would not answer this ques-
tion; one thing is certain , he did not answer.
Superintendent Gardner and Foreman Foster , as herein-
after discussed in Glass' discharge case, participated in
circulating the petition which Neely refused to sign. Con-
sidering the circumstances of her situation, the evidence
preponderantly establishes that she was discharged for re-
fusing to sign the petition and not for the palpably baseless
reasons claimed by Respondent.
Darnel! White worked for Respondent from August 1971
until his discharge on April 20, 1973. He had been laid off
twice-in late March and again in early April 1973. After
the latter recall in April, White worked only 3 days when
Respondent discharged him.
White signed a Boilermakers card which he had received
when union literature was being distributed outside the
plant and he thereafter attended a Boilermakers meeting.
The day following the meeting, according to White's credi-
ble testimony denied by Foreman Mike Joiner, Joiner ap-
proached White at work and said he had heard of the union
meeting and he asked whether White had attended. White
replied that he had. Joiner then noticed a piece of paper in
White's pocket and inquired what it was . White said it con-
cerned seniority and the Union.
White's layoff in March was among the unfair labor prac-
tice allegations in the April 11 charge filed , with his knowl-
edge, in Case 10-CA-10091. Shortly upon White 's second
recall in April, Foreman Joiner admittedly gave him a slip
of paper which read "Case 10-CA-10091, Kent Corp. April
11, 1973. Go to National Labor Relations Board , City Fed-
eral Building, 22nd Floor, or phone 325-3877 and advise
you have reported to work at Kent Corp." Joiner testified
that the handwriting was his and that he had copied it from
something Superintendent Orsoy had. While Joiner gives a
somewhat differing version,18 I credit White's testimony
that Joiner told White that he "wanted" White "to go down
and take my name off the charge ." Joiner inquired the next
morning whether White had been down to the Labor Board,
as Joiner had instructed him, and White replied he had not.
Two or three days later Orsoy discharged White and stated
to White as reasons therefor , according to White's testimo-
ny, that "there was a steel shortage and that I was talking
too much on the break, you know, about the Union and also
, , , that I was disturbing the other workers out there."
Respondent introduced internal reports respecting White
in connection with testimony by Joiner and Orsoy . Of these
reports, two were dated December 1972 and February 1973,
respectively , one was dated April 18, one April 19, and two
April 20. Orsoy testified, in part, that White was "a good
worker, hard worker" but had "bad working habits," and
among the "bad habits" were joking, shouting one time
during working hours, singing too loud, and throwing gloves
on one occasion, etc. I have considered the entire record in
this regard and do not consider it necessary to spread out
i8 Joiner's testimony is that Orsoy told him to inquire of some employees
whether they had filed charges with the Board and that Orsoy explained to
him that the reason for the inquiry was because the Board and the Company
were trying to get the list of employees on charges "straightened out"
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this decision all the details of Orsoy's and Joiner's testi-
mony as to Respondent's claim for its discharge of White.
Respondent twice recalled White from layoff status, and
after the second recall Respondent unsuccessfully solicited
White to withdraw his name from unfair labor practice
charges. Meanwhile, Respondent created a "record" against
White tojustify White's discharge a scant 3 days after recall-
ing him to work. I conclude that Respondent discharged
White for White's pro-Boilermakers sympathies and for re-
fusing Joiner's request that he remove his name from the
unfair labor practice charge.
Ricky Morgan started with the Company in June 1971
and worked in the shipping department until his discharge
on March 23, 1973. About a month before his discharge,
Foreman Morrison informed Morgan he was the new lead-
man taking the place of a leadman who had quit. Superin-
tendent Orsoy denied that Morgan was a leadman;
Morrison, however, did not, nor did he deny Morgan's testi-
mony in this connection. It is recalled that Morgan was
elected vice president of the Association at that
organization's March 2 election but that Donald Moore was
thereafter elected to the office on March 9 after Respondent
President Oztekin told the newly elected officers that the
March 2 election was "illegal" and that another election
would have to be held because Morgan was too young to
hold office.
Morgan signed a Boilermakers authorization card about
mid-March, and during that organizational period, accord-
ing to Morgan's credible testimony, Morgan asked Fore-
man Morrison's opinion of the Boilermakers and Morrison
replied that he "thought that anybody thatjoined the Boil-
ermakers Union, he thought they would be discharged or
fired." It is recalled that the Boilermakers filed its represen-
tation petition on March 22.
Respondent claims that it initially selected Morgan for
layoff on March 23, but that it decided to fire him instead
for misconduct on that occasion.
On the evening of March 23, Superintendents Orsoy and
Gardner and Foreman Morrison informed Morgan he was
being laid off because of a purported steel shortage. (Morri-
son first testified that Morgan's selection for layoff was
made on a seniority basis; he later admitted on cross-exami-
nation that less senior employees were retained and he testi-
fied that he did not know why this was so. Orsoy, on the
other hand, testified that Morgan's selection for layoff was
made on a merit, rather than a seniority, basis and Orsoy
testified that Morgan was chosen for layoff because of "too
many warnings" and "too many complaints"; Morgan's
supervisor-Morrison-gave no supportive testimony as to
any warnings or complaints.) Morgan then asked Orsoy and
Morrison why less senior employees were being preferred in
a layoff situation and they finally said it was because he
talked too much. Tempers flared, according to Morgan, as
he protested what he told them was their "unfair" action in
selecting him for layoff under the circumstances.
Gardner testified that Morgan began to "curse and start-
ed swinging his hands with raised up fists and it looked like
he was going to attack Orsoy." Morgan denied making
physical threats or threatening gestures on the occasion.
Morrison testified that Morgan got mad and moved around
and raised his voice, but that Morgan was not directing his
words at anyone in particular. That is all that happened,
according to Respondent witness Morrison, when Orsoy
and Gardner "just decided to terminate Morgan." Orsoy
testified that he considered Morgan to have been disre-
spectful of his (Morgan's) plant superiors by shouting and
arguing with them, and that Morgan's conduct offended the
"authority" of management Hence, according to Orsoy,
Morgan was discharged.
A month after his designation as leadman, Morgan is
selected for "layoff" out of seniority on a supposed " merit"
basis, and when Morgan protests he is advised of his termi-
nation . The circumstances recounted above convince me
that the layoff was a completely contrived situation and that
Respondent intended getting rid of him all the while and I
find that it did discharge Morgan because it suspected his
pro-Boilermakers sympathies. Morrison did not mislead
Morgan when he told the latter that he thought discharge
would be the price for joining the Boilermakers.
Donald Moore had continuous employment with Respon-
dent from September 1971 until his discharge on or about
March 23, 1973. Except for Foreman Joiner he had the
greatest seniority in the automation department. It is re-
called that Moore was elected vice president of the Associa-
tion on March 9 and that he resigned such office about a
week later because, as he testified, he didn't like the way it
was being run. On or about March 15, according to Moore's
credible testimony, Moore was called into President
Oztekin's office on the occasion of his recent selection as an
association officer, and he had a lengthy meeting with Re-
spondent officials Oztekin and Duke. Oztekin asked what
Moore thought about unions, and Moore replied that some
were "good" and others were "bad" and that he had lost a
formerjob because of a union. Duke and Oztekin then told
Moore he was a "fine" worker and had made "real good
progress" as indicated by his interim raises and the fact that
he had been promoted to a leadman trainee job after only
9 months of employment. Moore mentioned to Oztekin dur-
ing this conversation that he was interested in becoming a
draftsman and had been visiting the drafting room, and
Oztekin said he would help with Moore's schooling and give
him "first priority" should a vacancy arise in Respondent's
drafting room. (Oztekin testified that he did not tell Moore
that Moore was welcome in the engineering office.) Oztekin
also showed Moore a cassette tape rack that the Company
was thinking about producing.
About March 13, Moore had a conversation outside the
plant gate with Hoover Wilson, a Boilermakers Internation-
al Representative . Wilson on this occasion was handing out
Boilermakers literature , and Moore told Wilson he would
help in that organizational campaign. On an occasion a few
days later , Moore and another employee were working at a
machine and talking "like most people do." This time the
conversation concerned the Boilermakers. Moore credibly
testified that his foreman, Mike Joiner, overheard the con-
versation and inquired what Moore was saying to the other
employee. Moore replied that he had been telling the other
employee that "we ought to get the Boilermakers in, even
call a legal strike or shut the plant down." Joiner comment-
ed that he didn't care what they did.
On March 23 Moore was called to the office; Vice Presi-
dents Albano and Duke, Superintendent Gardner, and
KENT CORPORATION
Foreman Joiner also were present . Gardner notified Moore
that a steel shortage made some layoffs necessary and that
seniority would be followed except in case of unsatisfactory
employees. Gardner then discharged Moore purportedly
because "a lot" of complaints had been made by fellow
employees and supervisors against him . Moore inquired
who had made the complaints , but Gardner replied he
couldn't tell Moore.
Superintendent Orsoy testified that he participated with
Albano and Joiner in the decision to terminate Moore and
that, so far as he knew , the main reason was that Moore,
without permission, visited the engineering room at lunch
periods and also during working hours. Moore was a "good
worker," according to Orsoy, but he had "bad habits,"
which Orsoy testified were Moore's mentioned visitations
and that he had observed Moore talking during working
hours "a few times." Orsoy testified , however, that he had
never cautioned or spoken to Moore about the visits. Alba-
no testified that he and Vice President Duke 19 made the
decision to fire Moore on the basis of Joiner 's reports. Join-
er identified several reports he had made concerning
Moore : one, dated December 19, 1972 , concerning a pur-
ported spreading of personal "gossip"; one, dated March 6,
1973, involving Moore's purported talking to employees
and leaving his work station during working hours; another,
dated March 12, as to Moore leaving his work station; and
another , dated March 20, about talking to other employees
during working hours.
Moore, who was a wholly ,credible witness, recalled hav-
ing received management complaints on only two occa-
sions, the first about 6 months before his discharge (which
could be the subject of Joiner 's December 12 report) and the
second on March 16 , on which occasion , according to
Moore, Duke told Moore that four or five purported com-
plaints had been turned in against Moore for talking or
being out of his department and that this was his final
warning. Duke either would not or could not tell Moore
who had made these purported complaints. Moore further
testified that his work required him to leave his department
on frequent occasions , and there is no substantial , if any,
basis for finding that he interfered with his own or other
employees' work. As for alleged unauthorized visits to the
drafting or engineering department , the company drafts-
man had told Moore he was welcome to visit anytime and
I find these visits did not occur during his own working
time . Without setting forth all the record testimony on this
matter, I also find upon consideration of all the circum-
stances of such visits that Respondent did not consider
Moore's visits to involve any breach of company security or
otherwise to violate any plant 'regulations.
Respondent fires an admittedly "good" leadman trainee
with top seniority, primarily, if Orsoy's version is accepted,
because Moore visited the drafting or engineering room
without permission even though Orsoy testified that he had
seen Moore on such occasions and hadn 't cautioned or even
spoken to Moore about it. If Albano's testimony is accept-
ed, the main complaint against Moore was talking and leav-
19 Duke first testified that he processed personnel actions , such as dis-
charges and layoffs, but did not make or participate in such decisions. Later
he testified that he does play a decisional role in such matters
603
ing his work station even though the record is lacking in
credible substantial support for such complaint. The rea-
sons offered by Respondent for discharging Moore are pre-
textual and the pretextual explanations are themselves
without substantial foundation . I conclude that Respondent
terminated Moore because of his pro-Boilermakers senti-
ments and also because of his demonstrated disaffection
with the Association.
Thomas Roberts started with Respondent in October 1970
and was discharged on or about May 18, 1973, allegedly for
unexcused absences . Foreman Arthur Pugh was his imme-
diate supervisor and Gardner was his shift superintendent.
Roberts signed a Boilermakers card in mid -March 1973
and attended the Boilermakers meeting on March 25. Rob-
erts testified that he considered Superintendent Gardner to
be his friend. At the plant the day following the March 25
meeting, according to Roberts' credible testimony denied
by Gardner, Gardner imquired whether Roberts had
signed a Boilermakers card and Roberts replied that he
had; Gardner then told Roberts that Respondent had been
"good" to Roberts and he told Roberts not to tell anyone
about this conversation. About a week before the May 17
Labor Baord election , according to Roberts' credible testi-
mony, Gardner approached Roberts in the plant and in-
quired how Roberts would vote in that. election; Roberts
said he hadn't thought much about it, whereupon Gardner
again reminded Roberts "how the Company had been
good to me and that I was a pretty good worker there at
Kent, and they thought a lot of me."
On May 2, meanwhile , Gardner and Company Vice Pres-
ident Duke came to Roberts' work station and told Roberts
how much they appreciated his work and good attendance
and that he deserved an award which they gave him at the
time. They then presented him a billfold and ruby tie clasp
and a copy,of a memorandum from Company President
Oztekin to Duke. The memorandum stated in part that
Respondent desired to "recognize " named employees, in-
cluding Roberts, for their "enviable records" of '"demon-
strated good work habits and excellent attendance."
Roberts had been absent from work several days immedi-
ately before May 18 (a Friday) and he went to the plant on
May 18 ,to pick up his salary check. The office personnel
gave him a termination check instead and in effect notified
him he was discharged for three unexcused absences on
April 26, May 16, and May 17, and that such action was
purportedly pursuant to the association contract and com-
pany policy.
Roberts' credible testimony shows as follows : Roberts
became ill at work on the Tuesday night shift and he in-
formed Foreman Pugh of that fact. Pugh asked whether
Roberts might be able to complete the shift; Roberts said
he could, and he did. Roberts was ill on Wednesday night,
and did not call in-he had no telephone. The Labor Board
election was held at the plant during the daytime hours on
Thursday, and Roberts-still sick-did go to the plant to
vote. At the plant before voting that day, Roberts reported
to Pugh that he was ill, and Pugh replied that he had thought
Roberts still was sick and he told Roberts that "I don't think
you have nothing to worry about." Pugh then escorted Rob-
erts to Superintendent Gardner, and they told Roberts to
bring in a doctor 's excuse when he came to work the follow-
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing day (Friday). Roberts then voted, and after the election
he lingered in the parking lot talking for a short time with
some of his friends who were on layoff status at the time.
Gardner observed, but did not overhear, these conversa-
tions. Roberts had obtained some medication from a drug-
gist before Friday, but had not seen a doctor-Roberts had
only a dollar or two at the time. He did visit a doctor Friday
evening, but the doctor could not see him until Saturday.
Roberts had the flu, and the physician gave Roberts a note
saying so. (I sustained Respondent's objection to the
Doctor's certification to this effect, absent production of the
Doctor as a witness.)
Upon notification of his discharge on Friday, Roberts
went into Vice President Duke's office; Albano and Fore-
man Thrasher were also present. According to Roberts'
credible testimony, Duke asked whether Roberts had a
doctor's "excuse," and Roberts said he did not but that he
would get one. Duke told Roberts an excuse would not do
Roberts "any good" because he was terminated.
Duke testified that he customarily signs termination no-
tices when the papers are given him for approval and that
he thus had approved Roberts' termination slip. According
to Duke,20 decisions on such personnel actions are made by
the head supervisor or plant manager. Duke further testified
that he did not make the decision to fire Roberts and that
he was unfamiliar with the reasons for the discharge. Alba-
no testified that he had discussed Roberts' termination with
Foreman Pugh "more or less briefly" before preparing the
termination papers. Pugh testified that he has not seen or
talked with Roberts at any time since Roberts completed
the Wednesday night shift, that he has no knowledge that
Roberts returned to the plant at any time since that Wed-
nesday night, that he was not consulted about Roberts'
termination , that he made no recommendations to any
other management representative respecting the termina-
tion , and that he didn't know when Roberts was fired or
why Roberts was fired or who made the decision to fire him
However strict a disciplinarian Respondent may be-and
Respondent urges that it is very much so-I cannot accept
Respondent's claim that, in the circumstances of Roberts'
case, it terminated Roberts for unexcused absences some 2
weeks after giving him an award, in recognition for "demon-
strated good work habits and excellent attendance." I can
draw only one conclusion, and I accordingly find that Re-
spondent discharged Roberts because he signed a Boiler-
makers card and, even though ill, showed up to vote in the
Labor Board election.
Roy Glass was hired in August 1971 and fired on April 17,
1973. He was a leadman in the electrocoating department
under DeWayne Deaton, the foreman of that department.
Glass was a wholly trustworthy witness
Some 2 or 3 months after Glass entered Respondent's
employ, Deaton asked him about joining the Association.
Glass expressed some hesitancy at the time, whereupon
Deaton told him that "they practically force you into join-
ing if you want to keep your job.,, 21 Glass joined, and he
was elected to the association grievance committee in
20 See In 19
21 This incident is outside the Section 10(b) period, and is mentioned for
background purposes only
March 1973 Shortly before the second of the aforemen-
tioned March 1973 elections of the Association, Deaton
summoned Glass and told Glass he (Deaton) had heard
Calvin Wright was going to run for the president of the
Association and that Glass should tell the men under him
not to vote for Wright "because the Company was afraid he
(Wright) would speak up and cause trouble, and they want-
ed a man that's been around for a good number of years that
they could count on " 22 Glass did as he was instructed.
Wright was again elected president at the second associa-
tion election in March, as heretofor stated, and Wright was
soon terminated, as is hereinafter discussed.
The first Boilermakers organizational meeting for
Respondent's employees was held on Sunday, March 25,
and it had begun handbilling on March 23. Deaton sum-
moned Glass the day before the meeting and told Glass he
had heard that some employees were going to call a "wild-
cat" strike for Monday and he inquired whether Glass knew
anything about it or about a Boilermakers meeting the fol-
lowing day.23 Glass replied he had no information. Glass
testified that Deaton "then told me, he said, `I know you can
use more money'; he said, `how's $150 a week salary sound,'
and I didn't know what to say. I told him it sounded pretty
good, and he told me he knew I was on that grievance
committee, and I could help the Company out by going to
the Union [Boilermakers] meeting and coming back and
telling them-telling the Company what went on." Glass
responded that he was supporting the Boilermakers and he
refused Deaton's proposition. When Deaton then men-
tioned a figure of $200 a week, Glass told Deaton "they
didn't have enough money to buy me off" and Glass re-
turned to his work.
Glass attended the March 25 meeting of the Boilermak-
ers Deaton met Glass in the parking lot the next morning
and he told Glass he "got word" Glass had been at the
meeting. Glass said he had attended, and Deaton24 inquired
where and at what time the meeting was held and which
other employees were there. Glass would not divulge the
requested information, and Deaton then called Glass "a
damn liar" for having told Deaton the previous week that
he knew nothing about the mentioned meeting The conver-
sation concluded with Deaton's statement that Glass would
lose his job if he didn't cease his "involvement" with the
Boilermakers.
On or about April 4, at a time the Boilermakers was
handbilling outside the plant, Deaton told Glass to tell the
men under Glass that Superintendent Gardner would be
taking down the names of every employee who stopped to
take a leaflet or even to talk and that they would be fired
the next day. Also in April, as mentioned in connection with
22 Deaton denied Glass' testimony in this and other respects Glass was
clearly the credible witness of the two, and 1 shall not otherwise set forth-
although I have carefully considered-Deaton's conflicting versions
23 Deaton testified that his first knowledge of the Boilermakers activities
was not until May 2 when the notice of the Board's election was posted I
am unable to credit his testimony on any controverted issues of fact, not only
on the inherent implausibility of his testimony but on my demeanor observa-
tions of him as well
24 Deaton also asked John Archer about the meeting, which Archer had
attended, and also as to Archer's opinions about the Boilermakers Deaton
told Archer that "our Union [Association] is a better union" and he hinted
at a possible promotion for Archer if Archer would "use your head"
KENT CORPORATION
Sherrie Neely's discharge, Goodwin approached employees
to sign a petition in support of the Association and against
the Boilermakers. About the second week in April, employ-
ee Sam Mitchell (who was elected association president at
the third March election) asked Glass whether Glass had
signed a paper "backing" the Association, and Glasss said he
had not. Later that day Deaton sent Glass to Plant Manag-
er 25 Gardner. Gardner asked why Glass had not signed the
petition, to which Glass replied that the Boilermakers would
be a better representative. Then stating that the Association
was the better union, Gardner handed Glass the same paper
circulated by Mitchell and Gardner said that Glass should
think about it for he might be "picking up his paycheck"
that afternoon unless he signed the paper. Glass again re-
fused to sign the petition. The heading on this petition
states, in substance, that the signatory employee agree that
the Association represents all employees as bargaining rep-
resentative and that they want no outside union to interfere
with their present relationship with the Company. Gardner
also inquired of Glass on this occasion how employee Rich-
ard Holland felt about the Boilermakers.
Respondent conducted an employee meeting on Friday,
April 13, at which McGinnes, assistant to President Ozte-
kin, mentioned a steel shortage and a need for some layoffs.
Oztekin also spoke on this occasion and, in the course of his
remarks, he stated that employees with any grievances
should take up such matters with Association President Sam
Mitchell. Oztekin called for questions from the floor, and
Glass then asked whether employees should contact Sam
Mitchell or Calvin Wright as association president. Oztekin
lost his temper, according to Glass' credible account of the
meeting, and said that Mitchell was the association presi-
dent and that Glass was "going against the government !'in
suggesting otherwise 26 Glass began responding something
about "the majority of the people," and Oztekin told him to
"shut your damn mouth." Oztekin continued speaking
through the 4 o'clock whistle, and he announced that any-
one could leave who wanted to; John Sailors arose and was
the first to leave followed by Glass and other employees.
Glass was summoned by Oztekin the next morning, Sat-
urday, April 14. Oztekin told Glass he would have Glass
thrown in jail, that Glass was a "communist" and "going
against the government," and that he (Oztekin) had sworn
out a warrant for Glass' arrest 27 Oztekin then said he would
25 Employee Ada Murphree credibly testified and Superintendent Gardner
denied that early in April 1973 Gardner inquired whether she had signed a
"paper" that Mitchell was circulating to the effect "that we didn't want
anyone else outside having anything to do with our business ." Gardner told
Murphree that' everyone should sign the document . Murphree further credi-
bly testified that Foreman James Foster had also brought such paper around
I find that such "papers" were the same or substantially the same as the
Goodwin petition discussed in Sherrie Neely's case Employee Harold Acton
credibly testified that Gardner also inquired on or about April I whether
Mitchell had submitted a "paper" for his signature as to "keeping the Com-
pany Union in and the Boilermakers out" and that Gardner told Acton that
Acton's foreman would get his neck "sliced off" unless Acton signed the
paper.
6 McGinnes testified that Oztekin apparently referred in this connection
to the Labor Board hearing in the aforementioned representation case and
to the fact that Mitchell purportedly had participated in that hearing as
president of the Association.
27 Oztekin was referring to a matter involving one Ralph Wilson, as herein-
after discussed
605
tear up the warrant and forget the entire matter if Glass
would "come back to Kent's side and not mess around with
the Boilermakers anymore." Oztekin mentioned that he
knew Glass could use more money and that he would either
put Glass on a $150 weekly salary or on the clock at a higher
rate. Glass said he would not discuss changing union sides,
at which point Sam Mitchell walked in. Oztekin thereupon
told Glass that the latter could now talk union business
because his union president was present to which Glass
responded that Calvin Wright was his president, not Mit-
chell.
The following Tuesday, April 17, Glass was summoned to
Vice President Albano's office. Albano told Glass that
Glass was an exceptionally good worker and Respondent
would therefore start him off at a weekly (supervisory) sal-
ary of $150. Glass replied that he had started school and
couldn't put in the hours of salaried personnel, and that he
preferred a raise "on the clock." Oztekin entered the room
and attempted to change Glass' mind; Glass said he liked
"the clock" and that he was also involved in union activities.
Oztekin then summoned Vice President Ed Simrell who told
Glass, in effect, that the Company had gone through gov-
ernment channels for a year and a half to obtain a salary
for Glass and that there now was no way the Company
could retain Glass if Glass refused a salary. Oztekin sent
Glass back to work and admonished him not to talk to other
employees or to take a break with them because he was a
"bad influence." As Glass was clocking out that day, Alba-
no discharged him purportedly "for refusing salary and
playing games with the Company." Glass commented that
Respondent was firing him for union reasons whereupon
Superintendent Gardner told him "to get [his] damn ass out
of that plant."
Respondent adduced testimony to the effect that Glass
had been on a training program, which he had, and that by
refusing the salaried position Glass in effect had prejudiced
Respondent and that Respondent accordingly discharged
Glass for rejecting a promotion to a salaried supervisory
position. The record as to Glass is so overwhelming, that I
consider it unnecessary to recite the purported evidentiary
support for Respondent's contention, all of which I have, of
course, considered.
The General Counsel urges "that the trauma which Roy
Glass endured presents a classic and glaring example of an
8(a)(3) discharge." I agree, and I also adopt the General
Counsel's further statement that "Glass was interrogated,
threatened and bribed on numerous occasions and as a
result of his standing fast for the principles which he be-
lieved in he was ultimately discharged."
Referring to the fact that Glass has since been reinstated,
Respondent further asserts that even if Glass was improper-
ly fired, he nevertheless has forfeited any right to backpay
because "on the undisputed facts of this record, Roy Glass
was also guilty of a felony." Respondent refers in this con-
nection to testimony of one Ralph Wilson, a former employ-
ee of Respondent. Wilson pleaded guilty and apparently
was convicted of telephoning an anonymous bomb threat to
Respondent's plant. Respondent called Wilson as a witness,
and began examining him about the bomb threat and also
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about purported conversations with the Boilermakers busi-
ness representative as well as with an attorney who has
represented or may presently represent the Boilermakers. I
indicated reservations concerning Respondent counsel's ex-
amination of this witness and inquired concerning the rele-
vancy of Wilson's testimony. Counsel responded that the
purpose of Wilson's testimony was to defend against an
allegation of company surveillance. Counsel further ques-
tioned Wilson about conversations with the aforementioned
attorney, and I stopped the questioning because, in the cir-
cumstances as I explained to counsel, I thought it inappro-
priate, among other reasons, to pursue the subject in the
attorney's absence or at least without notice to him and also
because I still had questions as to relevancy. Respondent
counsel then made an offer of proof.
After all of the above, and still wondering about the
relevancy of Wilson's testimony, I had the following collo-
quy with counsel:
JUDGE WINKLER: I understand. Now we brought in this
whole subject you say because it related to surveillance.
Now you please tell me how it relates to surveillance.
MR STELZENMULLER: I think it relates to credibility of
witness.
JUDGE WINKLER: Of this witness?
MR STELZENMULLER: No, Sir.
JUDGE WINKLER: Of what witness?
MR STELZENMULLER: Of other witnesses.
JUDGE WINKLER: Very good. Anything further of this
witness?
MR DAVIS: Nothing further, Your Honor.
Counsel said nothing as to Glass.
In testifying about the bomb threat Wilson mentioned
having had a conversation at work with Glass and another
individual and "they got to talking and said we ought to call
down here and make a bomb threat, you know , just as a
joke. And after I left them up there, I got to drinking one
day and called back up there [the plant] and made a bomb
threat." The General Counsel did not recall Glass for fur-
ther examination as to Wilson's testimony, for, as shown
above, Respondent raised no such issue in that connection.
The charitable thing to say as to witness Wilson is that he
was pitiable, as to both appearance and testimony. Apart
from all of that, however, and mindful of the purpose ex-
pressed by Respondent's counsel for examining him, I must
say in all candor that I was somewhat surprised that Re-
spondent would now raise in its brief for the first time an
issue as to Glass' purported complicity in a bomb threat
claiming that Glass was guilty of a felony for "putting an
ignorant co-worker onto making the bomb threat." More on
this matter need not be said, except that I reject
Respondent's contention as to Glass' backpay.
Calvin Wright was hired in August 1970 and was laid off
on March 23, 1973. Respondent asserts that it laid off
Wright because of a steel shortage and that on April 4, 1973,
Wright refused Respondent's offer to recall him to another
job. The General Counsel contends that the circumstances
of the layoff and recall are such as to establish that Respon-
dent unlawfully discriminated against Wright.
As already indicated, Wright was elected president of the
Association at each of the first two elections held in March
1973 and Sam Mitchell was elected to that office at the third
Association election on March 31 after Wright's layoff.
Respondent's efforts in causing a rerun of the first election
and then of the second election have also been recounted,
as have Foreman Deaton's instructions that Glass should
tell employees not to vote for Wright because of Company
"fear" that Wright "would speak up and cause trouble" if
elected president and that Respondent "wanted a man
that's been around for a good number of years that they
could count on." Also related above, is President Oztekin's
reaction when Glass suggested at the April 13 meeting that
employees take up grievance matters with Wright rather
than Mitchell as president of the Association.
Wright's case thus presents, in part, the following chro-
nology: Wright is elected president on March 2 and again
on March 9; Wright is laid off on March 23; Vice President
Simrell calls Finney on March 24 urging her to call another
association election meeting and turn in at once the names
of newly elected officers; a notice from management to
employees appears on the plant bulletin board on or about
March 26 announcing a third association election on March
31.
The next chronological item occurred on April 4, when
Respondent was called back to another job by Respondent.
Before his March 23 layoff, Wright had always been em-
ployed as a janitor on the day shift. Vice President Duke
offered Wright a job on the night shift and he told Wright
that the job would require Wright to operate a forklift and
a power sweeper. Wright replied that he couldn't operate
such equipment and that he would not take "the chance of
trying to tear up something," and he also truthfully testified,
contrary to Duke, that no mention was made about training
him to use this equipment. Wright accordingly turned down
the recall offer.
Vice President Albano testified that he, Duke, and Ozte-
kin made the decision to lay off Wright on March 23 be-
cause the day janitor job was abolished as being least
productive. He testified that a night janitorial job also was
abolished at that time and that he participated in that deci-
sion as well. Albano did not explain why Respondent decid-
ed to restore the night job offered to Wright so soon after
abolishing it; he did testify that he did not know who made
the decision to restore that night job. Duke, Albano, and
Mitchell signed Wright's March 23 layoff notice. (The cir-
cumstance of Mitchell's signing is itself an interesting mat-
ter, for Mitchell was not a supervisor, but I shall not discuss
all the minutiae of the case.) Contrary to Albano's testimo-
ny, Duke testified that he (Duke) did not participate in the
decision to layoff Wright or to abolish his job and, also
contrary to Albano, Duke further testified in effect that
Albano made the decision to recall Wright, and contrary to
credible testimony and Respondent's stipulation Duke testi-
fied that Wright had worked on the night shift. Oztekin did
not testify concerning Wright's termination or, indeed con-
cerning any of the other actual discharge situations, even
though Duke testified, as stated above, that, Oztekin
"knows just about everything that goes on" and that as to
"practically all discharges, [Oztekin] knows exactly what's
going on at the time." Much more can be written about the
KENT CORPORATION
testimonies of Respondent's witnesses as to Wright, all of
which has been considered. But enough is enough for pur-
poses of this Decision.
Respondent contends that alleging only Wright's layoff
on March 23 to be discriminatory, of all the layoffs made
by Respondent on or about that date, is arbitrary as lacking
rational basis. But Respondent admittedly did discharge
other employees on that date (Morgan and Moore) and I am
satisfied that Wright's layoff was in fact a discharge, no
matter what Respondent called it. (Indeed, as appears in the
case of Thomas' admitted discharge, the termination Shp
mentions "layoff" as well as recommending his rehire.) The
record clearly establishes, in my opinion, that Respondent
wanted to be rid of Wright as,, president of the Association
and that it accomplished this feat by a "layoff." The recall,
I find, was but the second step in the termination process,
when it tendered him a job on the night shift which he was
not equipped to handle.
I find that Respondent unlawfully discharged Wright on
March 23.
John Sailors was continuously employed by Respondent
from 1964 until discharged on April 16, 1973, except for a
5-hour period in 1965. He worked in the fabrication depart-
ment under Foreman Wayne Thrasher. Respondent claims
that Sailors "had about the worst disciplinary record in the
place" (Resp. Br. 126) and that it discharged him for such
reason.
The Boilermakers, as hereinbefore stated, began hand-
billing in front of Respondent's plant in March 1973 and
continued,such activity until the May 17 election conducted
by the Labor Board. It is also recalled that in early April
Foreman Deaton had told Glass to warn employees that
Superintendent Gardner would be taking the names of any
employees who accepted any Boilermakers literature or who
even talked to the individuals distributing the literature. It
is further recalled that Sailors was the first employee who
walked out of the April 13 meeting while Oztekin was still
speaking.
Sailors signed a Boilermakers card in March and he there-
after spoke to other employees in behalf of the Boilermakers
during lunch and other break periods. Sailors accepted
union literature outside the plant gate each time it was
passed out, and he also credibly 28 testified that various
supervisors and company officers were in the vicinity on
such occasions, including Thrasher, Pete Foster, Gardner,
Duke and McGinnes.
Sometime in late March, employee Tressie Barrett was
told by a foreman that she would have to wear a hairnet for
safety reasons in the plant in compliance with a notice to
this effect. Sailors and several other employees thereupon
teased Barrett, about the matter. Barrett became upset by
this "kidding" and shortly thereafter she left Respondent's
employ. Foreman Thrasher called Sailors into the office on
or about March 26; Oztekin and McGinnes were present.
Oztekin discussed the Barrett matter, and Oztekin then be-
gan talking about various "problems" he was having, in-
cluding a "sewer" matter, and said he could move to
another state and even another country. (Oztekin denied
28 Sailors was wholly credible and trustworthy as a witness
607
this "moving" testimony.) Oztekin, during this conversa-
tion, asked Sailors' opinion on "what the trouble was in the
plant" and he asked for Sailors' suggestions. Sailors replied
that Respondent was enforcing plant rules disparately. Re-
ferring to the "hairnet" rule, Sailors then mentioned that
Superintendent Gardner's son had long hair but was not
requested to wear such article. Sailors also mentioned to
Oztekin as another instance of disparate enforcement that
Respondent had discharged one or two hourly employees
for parking in the salaried employees' more convenient
parking lot rather than in the hourly employees' parking lot
while permitting Superintendent Gardner's son, an hourly
employee, to use the salaried lot. Sailors informed Oztekin
that some of the young employees felt so strongly about the
parking matter that they might want to "beat up" on
Gardner's son, whereupon he recommended to Oztekin that
Gardner's son be required to park with the other hourly
employees. (Superintendent Gardner had had a heart attack
and his son-an hourly employee-drove his father to work
in the father's car because of the elder Gardner's heart
condition and it was for this reason of accommodating Su-
perintendent Gardner that the son parked in his father's
parking spot directly, in front of the plant.)
Thrasher called Sailors to the office the following day
(March 27); Oztekin and Vice President Duke were present.
Duke told Sailors, in effect, that Sailors "was interfering in
the Company business" and that this was his last warning.
Duke had some papers which he referred to at the time and
which Duke said had been written by Oztekin and witnessed
by McGmnes. Duke told Sailors the papers dealt with the
meeting with Oztekm the day before, but he did not let
Sailors read them. The next day, March 28, Sailors was
called into Superintendent Gardner's office, and Oztekin
came in. Oztekin mentioned Gardner's heart condition and
referred to Sailors' earlier comment that some of the youn-
ger employees might assault young Gardner. Sailors ex-
plained to Oztekin that the "young guys there might not
understand and might jump on the boy. . . that that might
bring on another heart attack for Mr. Gardner if he might
see this going on." Oztekin stated at this point that Sailors
was repeating the threats he had rhade on Superintendent
Gardner's life at the March 26 meeting, and Oztekin asked
whether Gardner wanted to swear out a warrant against
Sailors. Gardner said he had no desire to pursue the matter.
Sailors thereupon strongly denied to Oztekin that he, Sailors,
had made any threats against Gardner and that not even
Oztekin was going to tell such "damn lies." Sometime dur-
ing this meeting, Oztekin remarked to Sailors that the Com-
pany "didn't need a bigger outside organization in there"
and that Sailors was "a troublemaker and a leader" and that
Sailors had "the worst record of anybody in the plant "
Foreman Thrasher 29 gave Sailors some friendly advice
on several occasions contemporaneous with these Septem-
ber 26-29 meetings. According to Sailors', trustworthy testi-
mony, Thrasher "told me to watch what I was doing and be
careful, not to give them any reason to fire me because they
was out to get me."
Sailors was discharged on April 16, 1973, and the only
29 Thrasher was another management representative who disclaimed any
knowledge of Boilermakers activities until May 2
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation given him by Albano at the time was that "they
didn ' t need him anymore." His termination slip was signed
by Thrasher, Albano, and Duke. Duke testified that he
approved the notice and had previously discussed the mat-
ter with Oztekm but could not remember the "incident."
Duke testified that he had not made any independent deter-
mination respecting Sailors' discharge because he had given
Sailors warning "of some things" and because he was "fa-
miliar with the case" which he explained to mean "just
general plant knowledge that he 'd [Sailors ] never been a
good employee"; Duke never did explain what warnings he
had given Sailors. Thrasher testified that there were com-
plaints about Sailors during Sailors' entire employment pe-
riod since 1964 and that these complaints "started off small"
and "got worse ." Thrasher mentioned the Barrett "hairnet"
incident-which occurred a month earlierbutwhich he testi-
fied as having occurred 3 or 4 days before Sailors' dis-
charge-and then testified that the "hairnet" incident was
"all" he knew about what Sailors had done.Thrasher finally
testified that he did not make the decision to fire Sailors but
that Albano had done so because of "very poor work."
Albano testified that Sailors was terminated because of re-
peated warnings "of leaving his machine , talking with others
... and pleaded with by his foreman [Thrasher]." As ap-
pears hereinafter, Oztekm thereafter told employee England
that he fired Sailors for being a "trouble maker in the plant,"
and I find Respondent did so for union considerations.
Edward Blakley began working for Respondent in May
1971; he was either discharged or laid off in June 1972 and
recalled 2 weeks later and he remained on his job as night
janitor until laid off in the latter part of March 1973; he was
recalled early in April, and Respondent fired him 3 days
later (April 11).
The General Counsel alleges that Blakley 's discharge was
unlawfully motivated. The March layoff was included in the
aforementioned charge in Case lO -CA-10077 , but is not
now alleged as an unfair labor practice. Blakley's experience
respecting the layoff charge was similar to that of Eddie
Thomas, Wayne Neely, Beverly Nesmith, and Darnell
White , as discussed above.
Oztekin and Superintendent Orsoy called Blakley to the
office on April 9 , the first night he returned to work from
layoff. Oztekin asked whether Blakley had signed the men-
tioned Labor Board charge as to the March layoff; and
Blakley said he had . Oztekin thereupon told Blakley to go
back to the Labor Board offices and advise the Labor Board
that "you got your job back and take your name off [the
charge] ." Blakley said he would do so. Blakley was unable
to visit the Labor Board offices the next day and, because
he was afraid to report to work without having following
Oztekin 's instructions, Blakley called in sick that night,
April 10 . Before reporting for work on April 11, Blakley did
go to the Labor Board offices but decided not to withdraw
his charge . At work that night (April 11), Orsoy inquired
about Blakley 's absence the previous day and Blakley re-
plied he had been ill . Orsoy then inquired about a doctor's
excuse and Blakley replied that he had no money and was
therefore unable to visit a doctor . Orsoy fired Blakley at the
end of the shift that night . Blakley's termination slip was
signed by Foreman Pugh , Vice President Duke , Orsoy, and
McGinnes (Oztekin 's assistant).
Blakley testified that some 4 months before his March
layoff he had been admonished for going into the kitchen
to fill his cleaning bucket and that he nevertheless continued
doing so because the cook told him to do so and because
Sam Mitchell, the day Janitor and a purported leadman, also
did so and had instructed Blakley accordingly; Blakley tes-
tified that about 4 months before the March layoff he was
also told that he talked too much. He received no com-
plaints about his Job performance after returning from lay-
off.
Orsoy testified that Blakley was discharged for talking
too much and for having been frequently late and absent
before his layoff, that he did not have a doctor's excuse for
his absence on April 10, and that he talked too much and
didn't perform satisfactorily in the period following his re-
call. Foreman Arthur Pugh testified that he participated in
the decision to discharge Blakley and that Blakley was fired
for receiving "a lot of [personal] phone calls" and for "going
into the cafeteria without washing his hands " Pugh further
testified that it was on Monday and Tuesday that Blakley
received the mentioned phone calls and he testified that
three calls were on Monday and two calls on Tuesday. (It
is recalled that Blakley worked on Monday and Wednesday
and not on Tuesday.)
Respondent discharged this employee of 2 years' standing
for a purported variety of reasons, and this was 3 days after
having recalled him from layoff. One wonders why Respon-
dent recalled him if he was so unsatisfactory. I conclude
that Respondent terminated Blakley because he failed to
withdraw his name from the unfair labor practice charge.
Mary Nell Dyer started employment with Respondent in
September 1969 and, with exception of a 6-day voluntary
quit in 1969 and another voluntary quit of approximately a
month in 1972, she was continuously employed until she
was laid off on April 3, 1973, purportedly because of a steel
shortage . She was recalled on April 18 , and laid off again
on April 25, again purportedly for a steel shortage; she was
recalled on May 1, and laid off a third time on or about May
6; she returned on May 15, and quit at the end of the June
19 shift. The General Counsel alleges that the June 19 termi-
nation was a constructive discharge unlawful under the Act.
Until her first layoff, Dyer had worked on the day shift as
a leadwoman trainee in the automation department; upon
returning on April 18 she was assigned to the night shift
under Foreman Mike Joiner.
Dyer signed a Boilermakers card in March and distribut-
ed such cards to fellow employees , and Oztekin and other
management personnel were present when she appeared in
behalf of the Boilermakers at the Labor Board representa-
tion case hearing in mid-April. On the basis of her April
layoff, Dyer was included as a discriminatee in the first
amended charge filed in Case 10-CA-10091, and Respon-
dent received notice of such charge on May 4.
President Oztekm came through the plant on Friday,
June 15 , and went over to Dyer and had a long conversation
with her . Oztekin opened the conversation , according to
Dyer's credible account of the incident, by inquiring why
she wanted "to get messed up with a union." Oztekin asked
"why if we as employees wanted a Union why didn't we
come to him , that he would have helped us to get a Union,
or he would have gotten one for us; that we didn 't have to
KENT CORPORATION 609
get messed up with the Boilermakers." Oztekin told Dyer
that he "had" more on her in her personnel file than he
"had" on any other employee and he accused Dyer at the
time of harassing other employees by calling and threaten-
ing them with their jobs if they didn't vote for the Boiler-
makers 30 Oztekm named two employees, Liz Goodwin and
Ruth Weeks, whom Dyer had purportedly so threatened.
The next morning at work, Saturday, June 16, Oztekin
called Dyer to the plant area where Weeks and Goodwin
were employed, and Oztekin began speaking to them about
Dyer's calls. Dyer had called these individuals but she de-
nied to Oztekin that she had made threats and she asked
Weeks and Goodwin to confirm this. (The record does not
establish or even suggest any harassing calls by Dyer.)
Meanwhile, another employee, Ben Mullins, came by, and
Oztekm called Mullins to the group. Oztekin asked Mullins
to tell Dyer that Oztekin had in fact asked the older em-
ployees several years ago whether they wanted a union.
Oztekin also prompted Mullins to tell Dyer that Mullins
had been told by Oztekin at the beginning of the Boiler-
makers campaign that Mullins could not clean-and
would have to say out of-Oztekin's office if Mullins be-
came a Boilermaker.
Oztekin again approached Dyer at work on Monday,
June 18, and once more engaged her in lengthy conversation
throughout the shift. Oztekin asked whether she had attend-
ed a Boilermakers meeting the previous meeting and, when
she said she had not, he called over employees Lane Coving-
ton and Steve Staley to tell her about that meeting. These
employees then told her in Oztekin's presence, according to
Dyer's credible account, that "the employees were saying
let's fight fire with fire, clubs, and all that sort of thing, and
that Mr. Wilson didn't try to stop them, and that when Mr.
Wilson introduced Calvin Wright to the group he called him
Brother Wright, and after that they laughed and called each
other Brother Wright or Brother." Oztekin on this occasion
also asked Dyer about various employees, including Lee
England and Beverly Nesmith (both of whom are alleged
discrimmatees in this case), and he told Dyer that Nesmith
"was trouble" and Dyer should stay away from her. Dyer
became ill at work that night and Oztekin offered to have
her retransferred to the day shift because this was the sec-
ond time she had been ill on the job because of heat and lack
of sleep.
The next day, June 19, Oztekin called to Dyer as she was
reporting for work and told her to sign but not to read a
paper he handed her, which paper he said related to her
retransfer to the day shift. Oztekin came "back and forth"
to Dyer's machine the entire shift that night, as he had the
previous two work shifts, and he called various individuals
to tell Dyer "things," as Dyer testified, "that he thought I
should know." The first such individuals he called were
Foremen Pete Foster and Mike Joiner, and in their presence
he inquired of Dyer, according to her credible testimony
denied by Oztekin, whether she knew if either was involved
with the Boilermakers. Oztekin said, according to Dyer's
completely trustworthy testimony, that "all that I had to do
was just to say that they were, and he would fire them. I told
him, no, that I didn't know of any supervisor that was
30 Oztekinn testified that he had no knowledge of any harassing phone calls
by Dyer and he denied saying anything to her about such calls
involved." (Neither Foster nor Joiner denied or otherwise
testified concerning this incident.) Oztekin remarked that
employees should come to him if they want a union. Oztekin
repeated the "Brother Calvin business" and once again he
told Dyer that he had more on her than on other employees
in personnel files and that she would be unable to obtain
other employment because he would not give her a recom-
mendation; Oztekin then told her that he would "clear" her
personnel file if she "behaved" herself for some 6 months
while working for Respondent. Oztekin mentioned to Dyer
that she was "the best lady employee" he had and that he
"hated" that she "had gotten mixed up with the [Boilermak-
ers] Union." Oztekin also told her that Mazel Finney was
her only friend in the plant 31
Dyer went home that night and testified that she couldn't
sleep and that she knew she could not continue working for
the Company and "put up" with the "interrogations and the
harassments that he [Oztekin] was dishing out to me." She
did return to the plant on Friday, June 22, but only to pick
up her check. Dyer saw Duke at the plant that Friday night
and asked her whether she was afraid of being fired. She
told him she wasn't, because she had quit because she
"couldn't take anymore." "I just quit," Dyer testified, "I
couldn't take any more."
Respondent claims that Dyer quit in order "to be paid for
not working," and it denies that there was anything, even on
the basis of her own version of Oztekin's conversations with
her, that was abusive or could force anyone's resignation.
Referring to an occasional use of vulgarisms and to a re-
mark she made to Duke on June 22 that she hadn't been
afraid of being fired, Respondent asserts that Dyer was in
effect a hardy individual to whom Oztekin's discourse
"must have sounded straight out of Emily Post." Respon-
dent further refers to Oztekin's solicitude toward her in
suggesting a return to the day shift and it also refers to
testimony of Dyer that she had fainted in the plant in April
as a result of exhaustion caused by working at night and that
she had a young child and a sick husband.
Respondent was aware of Dyer's union sympathies and
that a charge had in fact been filed by the Boilermakers
respecting her layoff. And the record makes manifestly clear
in my opinion that during the 3 or 4 last days of her employ-
ment Oztekin sought to change her union position by a
never ending barrage of interrogation and harassment. Dyer
had been ill, and Oztekm was aware of it, and she was
therefore particularly vulnerable to these constant pres-
sures. Dyer was finally beaten down and she quit, and this
was to be reasonably foreseen. I conclude that Dyer was
constructively discharged and therefore unlawfully termi-
nated because of her Boilermakers sympathies and for the
filing of the charge respecting her layoff.
Mary Lee England was employed by Respondent from
September 1971 until June 15, 1973, mainly in the fabrica-
tion department under Foreman Wayne Thrasher. Twice in
April 1973 she was laid off for purported economic reasons,
2 weeks the first time and 3 days the second. England knew
that her first layoff was included among the unfair labor
practice allegations in Case 10-CA-10091. The General
31 Oztekin testified that he had had several long conversations with Dyer
but he denied the substance of the matters attributed to him by Dyer on those
occasions Dyer's testimony, as I have already indicated, was trustworthy.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel contends that Respondent unlawfully terminated
England on June 15; Respondent claims that England quit
rather than be fired for violating a rule against socializing
with supervisors.
England had joined the Association in 1971, and in April
1972 she told Sam Mitchell-the association president at
the time-that she wanted to withdraw from the organiza-
tion. She thereafter discussed the matter with Thrasher who
advised her to remain in the organization because, as he told
her, according to her credible testimony, "they had a list in
the office of people who had tried to get out of the Union,
and he was afraid that . . . Mr Oztekin is going to fire
everybody on the list." 32 England signed a Boilermakers
card in March or early April 1973 and attended the Boiler-
makers meeting on March 25. She also accepted union liter-
ature distributed at the plant entrance, and she testified that
various management personnel were present at various
times observing the distribution-Gardner, McGinnes,
Thrasher, Foster, and Duke.
The night of her return from her first April layoff, Fore-
man Pugh gave her a slip of paper with a telephone number
on it and told her without further explanation to call the
number and that he would check with her the next day
concerning the matter. She did call the number-it was the
Labor Board's local office-and they asked what she want-
ed and whether she wanted to drop any charges. She replied,
in effect, that she didn't know why she was calling but that
she would come down and testify in support of the charge.
The record does not show any further conversation between
Pugh and England concerning this matter.
Upon returning from her 3-day layoff England was called
to the office and notified by Albano and Gardner that there
was going to be another layoff but that Respondent would
transfer her to another department instead of laying her off.
England was thereafter assigned work "all over the plant."
One occasion during this period she was called into
Oztekin's office. Oztekin showed her the plant's closed-cir-
cuit television equipment by which, as he explained, he
"could watch people and see if they was doing their work."
He asked her whether she had any complaints against the
Company, and she said she had none because she was work-
ing. England credibly testified:
Q. Okay, now. What else did he say, directing your
attention on anything that he might have said concern-
ing the Union?
A. Well, he asked me if-well, he asked me if I
had-what complaint I had against the Company, and
I told him right then I was working and didn't have one.
And he said that the Boilermakers thought that the
people thought that the Boilermakers could get their
jobs back for them, but that the National Labor Rela-
tions Board was just an agent of the government and
could not give them their job back. And he asked me
if I went to the meeting that the Boilermakers had, and
I told him yes And he asked me what was said at the
meeting, and I told him that I could not tell him be-
II This is outside the 10(b) period, and is recounted for background pur-
poses only.
cause I didn't recollect what it was. And he asked me
what the Boilermakers had promied me, and I told him
they hadn't promised me anything. And then he started
telling me about the steel shortage and played a re-
cording to me which was supposed to have been from
a man at Republic Steel, but I don't remember his
name.
Oztekin then mentioned John Sailors to her, and he told
England he had to fire Sailors for being a "trouble-maker
in the plant."
The following night England was again summoned to
Oztekin's office. England's credible testimony of this inci-
dent is as follows:
A Well, I was working in automation, and Mike
Joiner told me that I had a personal telephone call in
the front office, and I told him that I didn't, that I
didn't believe that I had one, but he said as far as he
knew and as far as he was concerned I had a telephone
call in the front office. So nobody went in with me. I
went on through, and when I got there Mr. Oztekin was
standing in the conference room door, and he told me
to come on in and sit down. And whenever I went in
he told me if he had known the people wanted a bar-
gaining agent that he would have went out and hired
a bargaining agent, that we didn't need to get the Boil-
ermakers in there because we didn't make boilers, and
that they had no part in our plant. And he asked me
when had I first heard about the Boilermakers, and I
told him that the only time that I first heard about it
was when they passed out their literature.
That same night, Foreman Pugh also questioned England
about the Boilermakers and he also inquired whether Mazel
Finney or Mary Dyer had anything to do with bringing the
Boilermakers in the plant.
England was working in the plant on May 16, the night
before the Labor Board election. Oztekin approached Eng-
land and one or two other employees at "break" time. Eng-
land credibly testified that:
.. . Mr: Oztekin came back there and walked up with
us. And he said he was allowed to campaign the night
before the election and wanted to know if I was going
to vote for him, and I told him I would make up my
own mind, that I had already told him I would make
up my own mind on who I was going to vote for. And
he said-about that time we had got to the break area,
and there was other people sitting there, and he started
talking about there might be a strike if the Boilermak-
ers got in there, that if they couldn't reach an agree-
ment on a contract that there might be a strike, and that
he would just go on a vacation and leave the country.
On four or five occasions after the election, Oztekin ap-
proached England on the plant floor and conversed with
her. He told her, among other things, that the Boilermakers
had job classification clauses in their contracts and that
KENT CORPORATION 611
women machine operators would either lose their jobs or be
demoted for lack of experience if the Boilermakers came
in.33
Sometime following the election, England was assigned
more physically arduous work (see Nesmith's case in this
connection) and about 2 weeks before her termination she
was transferred back to her former fabrication work. On
June 15, England was escorted to the office; Duke, Albano,
Oztekin, Simrell, and McGinnes were present. They in-
formed her that Foreman Thrasher had helped her move a
television set and some dishes to her new house and that she
had thereby broken a company rule that prohibited off-duty
socializing between hourly employees and salaried employ-
ees. Thrasher was a friend of hers and he had helped her
move some household items, but she protested to this as-
semblage of corporate officers that-she had ever heard of
such rule. Later that day Duke advised England that she
could quit or be fired. Duke handed England her termina-
tion checks, and she left.
England openly supported the Boilermakers and Oztekin
apparently considered it important to him to continue the
pressures on her, even after the Labor Board election, to
persuade her to his point of view. (It is recalled that that
election is still unresolved.) Whether there is a rule against
fraternizing, England had never been informed of it, and I
conclude that Respondent used such purported rule as a
pretext to rid itself of a Boilermakers supporter in whose
behalf a charge was filed. Her discharge was discriminatory.
Charles Archer started working for Respondent in 1965,
and he remained in the shipping department until Respon-
dent had directed Archer's transfer from the day shift to the
night shift. (Archer had been on the night shift until about
1970 when, at his request, he was moved to the day shift.)
Archer refused the transfer to the night shift and his em-
ployment was thus ended. The General Counsel contends in
effect that Respondent's insistence on transferring Archer
was unlawfully motivated, and that the effect and purpose
of such insistence was to remove Archer from Respondent's
employment because it knew he would not accept the trans-
fer. Except for Sailors, Archer had more seniority than any
of the other discharged employees involved herein.
It is recalled in connection with the then upcoming
March 9 election of the Association, that Archer had reject-
ed Superintendent Gardner's suggestion that Archer and
other "old hands should get together and decide who you
want into office." And about the same time, as is also re-
counted above, Archer told Foreman Deaton that he would
have no part of Deaton's suggestion that Archer run for
president of the Association with Deaton's assurance of his
election. Archer signed a Boilermakers card and Gardner
and Foreman Thrasher saw him accept Boilermakers litera-
ture openly distributed at the plant gate. The day after the
Boilermakers first meeting on March 25, Gardner inquired
whether Archer had been notified by telephone to attend
the meeting. Archer replied he had attended the meeting,
but had not received a telephone call, and Gardner then
asked whether Archer had signed a union card. Archer said
33
Oztekm denied having having asked England to vote for him or having
told her that women employees would get less money if the Boilermakers
were elected.
he had, and Gardner shrugged his shoulders and walked
away.
On April 19, McGinnes and Gardner came out to ship-
ping department and spoke with Foreman, Speegle. Archer
was Speegle's leadman. A few minutes later, McGinnes in-
formed Archer he was being transferred as leadman on the
night shift and then asked whether Archer would accept the
transfer. McGinnes testified that he did not participate in
making the transfer decision. Archer does not like night
work and he said he would not transfer on seniority grounds
and he told McGinnes he was the senior man in the shipping
department on both day and night shifts; he also explained
at the time that such transfer would require him to drop out
of a school which he was attending 3 nights a week and that
James Goodwin was as qualified as he was to operate the
night shift. The record establishes on the basis of Archer's
completely credible testimony that Duke, Albano, and
Speegle knew long before the events under consideration
that Archer was attending school to become an electronics
technician. The record further shows that there would have
been two leadmen, he and Goodwin, on the night shift had
he taken the transfer.
Duke 34 testified that Archer had been leadman on the
night shift some 3 years earlier and that that was the reason
"we wanted to transfer him to the night because he was
familiar with the operation." Duke testified that James
Goodwin, is the present leadman on the night shift, but
wasn't the "ideal" man for lack of leadership qualities.
Goodwin had in fact worked alongside Archer at the time
Archer had been on the night shift as leadman and Good-
win replaced Archer, as leadman when Archer transferred to
the day shift 3 years earlier. Goodwin has thus been night
leadman for 3 years. John Morris, presently a foreman on
the electrocoating line, was foreman of night shipping for 2
years, having begun in that position sometime after Archer
had transferred to the day shift. Moms testified that Good-
win was his leadman during this 2-year period and that
Goodwin was a "capable" leadman with "good" work per-
formance.
Archer chose to leave Respondent's employ rather than
take a transfer to the night shift, itnd the record preponder-
antly establishes, in my opinion, that that was precisely the
way Respondent planned and foresaw the situation. The
issue is not whether, as Respondent claims, the association
contract permits Respondent to transfer regardless of se-
niority. Rather the question is why Respondent insisted on
that action when it was aware of Archer's dislike of night
work and that he was taking electronics courses at night and
when it therefore had every reason to believe, ^ and then
actually to know, that Archer would not acceptthe transfer.
It means only that Respondent sought to be rid of Archer,
a senior leadman, because of Archer's Boilermakers senti-
ments, as outlined above, and I so find.
C. Further Comments
This record establishes that Respondent has engaged in
a massive assault on the rights of employees under the Act
34 Duke's testimony generally, and on the Archer matter in particular, is
evasive, hardly candid, and not credited.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of keeping the Association in and the Boil-
ermakers out. The record further establishes that
Respondent's conduct respecting the Association went even
further as it sought to intrude and did in fact intrude in the
internal affairs of that organization. The complaint alleges
assistance to and interference in the internal affairs of the
Association, but it does not allege domination of that orga-
nization . Interference may add up to domination, depend-
ing on the quality and degree of the conduct. Yet parties are
entitled to fair notice on the matter, and while I vacillated
a bit at the hearing, I finally did advise all parties that I did
not consider the complaint to encompass allegations that
could result in a disestablishment order. The parties are
entitled to rely on that statement to them. For this and other
procedural circumstances unnecessary to relate here, and
also for reasons as to Section 10(b) of the Act, and mindful
of a difference between domination and interference in the
language of the Act, I say again that this case involves
interference and assistance under Section 8(a)(2) of the Act,
and not domination, and that it was tried on such basis.
A usual format of these decisions is to identify, in a final
summation , the evidentiary items in support of each ulti-
mate conclusion of law. I do not believe such collation of
evidence or incidents is necessary in this case , for there is
nothing novel in the unfair labor practices alleged and each
such conclusion is amply supported.
One further item. The General Counsel adduced a fair
amount of testimony respecting alleged surveillance at the
plant entrance and also with respect to the alleged use of
television equipment in this regard. In the context of this
case, I consider it unnecessary to consider and therefore do
not resolve this matter, for, in any event, there is substantial
evidence to support a finding of "giving the impression of
surveillance."
CONCLUSIONS OF LAW
1. Respondent is an employer within Section 2(6) and (7)
of the Act.
2. Boilermakers and the Association are labor organiza-
tions within Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) and (3) by
discharging the following employees: Wayne Neely, Eddie
Thomas, Beverly Nesmith, Sherrie Neely, Darnell White,
Ricky Morgan, Donald Moore, Thomas Roberts, Roy
Glass, Calvin Wright, John Sailors, Edward Blakley, Mary
Nell Dyer, Mary Lee England, and Charles Archer.
4. Respondent has violated Section 8(a)(4), as well, by
discharging Blakley, Dyer, Thomas, England, Wayne Nee-
ly, and Nesmith.
5. Respondent has violated Section 8(a)(2) of the Act by:
(a) Interfering with the internal affairs and administra-
tion of the Association by, among other things, seeking to
influence or control the selection of association officers,
including checking off the names of employees attending
election meetings, and by interfering with admissions to
membership in the Association.
(b) Assisting the Association in vanous respects enu-
merated under Conclusion 6, below 35
35 1 do not consider , and therefore do not find , that it was unalwful to
6. Respondent has further violated Section 8(a)(1) of the
Act in the following respects:
(a) Interrogating employees concerning their own, and
other employees', membership, sympathies, and activities in
behalf of the Boilermakers, and also interrogating employ-
ees how they would vote in Board-conducted elections.
(b) Soliciting employees to report back concerning mat-
ters relating to Boilermakers meetings and activities.
(c) Soliciting employees, by petition and otherwise, to
support the Association and to keep out the Boilermakers
and threatening employees with discharge and other eco-
nomic reprisal unless they complied with such solicitation.
(d) Threatening employees with discharge and other eco-
nomic reprisal for engaging in protected concerted activi-
ties, including their sympathies for and in behalf of the
Boilermakers, and in the event Boilermakers succeed in
organizing the plant.
(e) Promising benefits to employees to withdraw their
support from the Boilermakers and to support the Associa-
tion.
(f) Soliciting and instructing employees to withdraw their
names from unfair labor practice charges.
(g) Creating the impression of-if not actually engaging
in-surveillance by telling employees it knew of their atten-
dance at union meetings and by telling them their names
would be recorded by Respondent should they accept Boil-
ermakers literature outside the plant.
7. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1), (2), (3), and (4) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action including reinstating and making whole the afore-
named 15 discriminatees, in order to effectuate the policies
of the Act. All backpay computations shall be in accordance
with F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The
Order provides that reinstatement be offered, in the first
instance, to the discriminatees' former jobs. This means to
his janitorial job on the day shift as to Wright, to his job on
the day shift as to Archer, and to his hourly rated job as to
Glass-for these are the jobs from which they were unlaw-
fully discharged. Respondent asserted at the hearing that all
discriminatees have been offered reinstatement. If it has
done so fully in the terms of reinstatement as prescribed in
the Order, Respondent will not be required to repeat such
offer. If any questions arise in regard and if Board interces-
sion is necessary, such matters can be determined at a com-
pliance stage of this proceeding.
The unfair labor practices in this case were widespread,
pervasive, and aggravated. Even though reinstated, it is rea-
sonable to believe that the employees discriminated against
might be apprehensive of retribution from Respondent, par-
ticularly in a situation where layoffs and discharges have
permit the Association to conduct organizational meetings on plant premises
However , I shall deal with a future aspect of this matter in the Remedy
section
KENT CORPORATION 613
been made on a wholesale basis. I am mindful, of course,
that the various layoffs have not been alleged as violations
of the Act and I therefore presume them to be lawful. None-
theless, in the context of this case and to remedy the dis-
crimination suffered by them , I believe the discriminatees
are entitled to a further measure of security from a repeti-
tion of Respondent's conduct in regard to their organiza-
tional rights . I shall therefore require that for a period of a
year from the start of compliance the Respondent advise in
writing the Regional Office in Atlanta or, if the Regional
Office prefers , the Resident Office in Birmingham and the
Boilermakers (the Charging Party) of any adverse personnel
actions taken as to the returned discriminatees , such as
layoff or discharges.
Respecting the 8 (a)(2) aspect of the case , the Respondent
will be required to withdraw all recognition from the Associ-
ation upon termination of the current contract on March 1,
1974, and not to again recognize the Association as bargain-
ing representative of its employees until and unless the As-
sociation be certified by the Board as the statutory
bargaining representative. Moreover , because of Re-
spondent 's conduct vis a vis the Association , and, to pre-
serve the rights of employees in securing the independence
of that organization , it will also be required that Respondent
not make available to that organization the use of plant
facilities for meeting purposes unless and until such time as
the Association be certified as bargaining representative by
the Board.
In view of the gross interference with employees ' organi-
zational rights in this case, it will also be required that
Respondent mail copies of the notice in this case to all of
its employees , and that for a period of a year it provide the
Boilermakers with reasonable access to plant bulletin
boards for the posting of union notice , bulletins, and other
organization literature . Cf. Heck's Inc., 191 NLRB 886
(1971), and cases cited therein ; enfd . sub nom. Food Store
Employees Union, Local No. 347, Amalgamated Meat Cutters
v. N.LR.B., 476 F.2d 546 (C.A.D.C., 1973), enfd . 414 U.S.
1062 (1973).
Upon the foregoing findings, conclusions , and the entire
record , and pursuant to Section 10(c) of the Act , I hereby
issue the following recommended:
ORDER36
Respondent Kent Corporation, Pinson Valley, Alabama,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, threatening to discharge, or otherwise
discriminating against employees because of their sympa-
thies or activities on behalf of International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, or any other union.
(b) Discharging or otherwise discriminating against em-
36 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
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.
ployees because of the filing of unfair labor practice charges
or for refusing to withdraw from such charges.
(c) Soliciting and instructing employees to withdraw, un-
fair labor practice charges.
(d) Soliciting employees to support Employees Associa-
tion of Kent-Supermatic and threatening to discharge or
otherwise to discriminate against employees for refusing
such support.
(e) Granting any assistance to the Association and inter-
fering in any respect in the affairs of the Association or any
other labor organization.
(f) Coercively interrogating employees concerning their
own, or other employees', union or other protected concert-
ed activities.
(g) Creating the impression of, or engaging in, surveil-
lance of employees' union activities, and requesting employ-
ees to report on such activities.
(h) Recognizing beyond March 1, 1974, the Association
as a bargaining representative of employees and permitting
the Association the use of plant facilities for meeting pur-
poses, unless and until such time as the Association may be
certified as the bargaining representative in an election con-
ducted by the National Labor Relations Board.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer the following employees immediate reinstate-
ment to their former jobs or, if these jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole as set forth in "The Remedy" section above, for any
loss of earning suffered as a result of the discrimination
against them:
Wayne Neely Roy Glass
Eddie Thomas Calvin Wright
Beverly Nesmith John Sailors
Sherrie Neely Edward Blakley
Darnell White Mary Nell Dyer
Ricky Morgan Mary Lee England
Donald Moore Charles Archer
Thomas Roberts
(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, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due and the right of rein-
statement under the terms of this Order.
(c) Advise Regional Office 10 of the Board (or the Resi-
dent Office in Birmingham if the Regional Office so indi-
cates) and the Boilermakers for a period of I year from date
of reinstatement of any adverse personnel action respecting
any of the aforenamed employees.
(d) Withdraw recognition from the Association on
March 1, 1974, and withhold recognition of the Association
as a bargaining representative unless and until the Associa-
tion be certified in an election conducted under Board aus-
pices.
(e) Grant to the Boilermakers and its representatives,
upon Boilermakers request, reasonable access for a 1-year
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period to its bulletin boards and all places where notices to
employees are customarily posted.
(f) Post at its plant in Pinson Valley, Jefferson County,
Alabama, copies of the attached notice marked "Appen-
dix," 37 and mail a copy thereof to each of its employees.
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by Respon-
dent, shall be posted by it immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including, all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the receipt of this Order, what steps
have been taken to comply herewith.
37 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
join or assist the Boilermakers or any other union, and
that our employees have a right to solicit or discuss
union matters on plant premises during lunch and
break periods, and at any other time they are not actu-
ally working.
WE WILL NOT discharge, threaten to discharge, or take
any other discriminatory or retaliatory action against
employees for filing unfair labor practice charges or for
joining or assisting or supporting the Boilermakers or
any other union.
WE WILL NOT solicit employees to sign petitions to
keep the Association in and the Boilermakers out.
WE WILL NOT interrogate employees or ask them to
report on other employees or spy on them or indicate
we have spied on them regarding union membership or
meetings or any other union activity.
WE WILL NOT interfere in any way in the affairs of the
Association or of any other union, and WE WILL NOT
assist the Association in any respect.
WE WILL NOT recognize or deal with the Association
as a union or representative of our employees and WE
ALSO WILL NOT permit the Association to hold meetings
at the plant, unless the Association wins a Labor Board
election.
Dated By
WE WILL reinstate the following employees and make
them whole for earnings lost since their discharges:
Wayne Neely, Eddie Thomas, Beverly Nesmith, Sher-
rie Neely, Darnell White, Ricky Morgan, Donald
Moore, Thomas Roberts, Roy Glass, Calvin Wright,
John Sailors, Edward Blakley, Mary Nell Dyer, Mary
Lee England, and Charles Archer.
WE WILL permit the Boilermakers to use plant bulle-
tin boards for union notices.
WE ADVISE our employees that they have a right to
KENT CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone
404-526-5760.