Koller Craft Plastic Products, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1955

114 N.L.R.B. 990 (N.L.R.B. 1955)

990 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Koller Craft Plastic Products , Inc. and International Brother-
hood of Boilermakers , Iron Ship Builders , Blacksmiths, Forg-
ers & Helpers , Lodge 1012, AFL. Case No. 14-CA-1279. Novem-
ber 15,1955
DECISION AND ORDER
On May 6, 1955, Trial Examiner Thomas S. Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Intermedi-
ate Report attached hereto. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations, with the following additions and modifications.'
1. The Trial Examiner in some instances states that the discrimi-
natees were discharged, and in other instances states that they were
laid off. Under all the circumstances, we agree with the Respondent's
contention that the discriminatees were only laid off rather than being
discharged permanently. However, this does not affect our conclusion
that the separations were nevertheless discriminatory. A layoff as well
as an outright discharge may be discriminatory.
2. In support of his finding that the Respondent had knowledge of
Jennewein's union activity, the Trial Examiner points to the fact that
Riebold had openly sought a union authorization card in the plant for
the stated purpose of giving it to Jennewein, and concludes that it is
a fair inference that this episode was reported to the Respondent in
view of Koller's having instructed the foremen to report anything that
they might hear about the Union in the plant to him. In addition, we
note that Hensley also had openly sought a union authorization card
in the plant for the stated purpose of giving it to Jennewein, and that
this was done in the presence of Forelady Shoemaker. Thus, there is
also actual proof that the Respondent, through Forelady Shoemaker,
had knowledge of Jennewein's union activity.
3. The Trial Examiner found that the Respondent had already re-
instated Jennewein to his former position so that back pay resulting
from the discriminatory layoff of Jennewein on October 1, 1954, should
cease as of.the date of Jennewein's actual reinstatement. Nevertheless,
1 The date, September 27, is hereby corrected to September 28, in those portions of the
Intermediate Report where the Trial Examiner inadvertently refers to September 27 as
the date of the layoff of the discriminatees involved herein.
114 NLRB No. 158.
KOLLER CRAFT PLASTIC PRODUCTS, INC. 991
the Trial Examiner recommended that the Respondent offer Jenne-
wein, as well as the other discriminatees, reinstatement, with back pay
from the date of the discrimination against him to the date of such
offer of reinstatement. As Jennewein has already been reinstated to
his former position, we shall only order the Respondent to pay Jenne-
wein back pay resulting from the discrimination from October 1, 1954,
to the date of Jennewein's actual reinstatement.
4. The Trial Examiner found that the Respondent violated Section
8 (a) (1) by interrogating its employees and applicants for employ-
ment regarding their membership and interest in the Union. Although
not specified, the Trial Examiner apparently has reference to: (1)
Production Manager Boehner's inquiry of Schmidt, upon the latter's
application for employment on August 25, 1954, as to whether Schmidt
was a union member; and (2) President Koller's inquiry of Riebold
on September 29 or September 30, 1954, as to whether Riebold was
"one of the Boilermakers." 2 In view of the fact that Boehner, in his
interrogation of Schmidt, communicated as the only purpose for the
interrogation that the Respondent did not have a union, and in view of
the other unfair labor practices committed by the Respondent includ-
ing the subsequent discriminatory layoff of Schmidt herself, we find
that Boehner's interrogation of Schmidt was a violation of Section 8
(a) (1).' At the time of Koller's interrogation of Riebold, Koller also
pointed out how the Union could cut down on an employee's take-home
pay, and then stated that 2 presses were going down at the end of the
week so that 2 people would have to be laid off but that Riebold "was a
pretty good man and that he would hate to see anything happen to
him." Moreover, Riebold was discriminatorily laid off only 1 or 2 days
later. In this context, and in the context of the other unfair labor
practices committed by the Respondent, we find that Koller's interro-
gation of Riebold was a violation of Section 8 (a) (1). '
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Koller Craft
Plastic Products, Inc., Fenton, Missouri, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers,
2 Koller also interrogated Hensley , upon her application for employment on July 28,
1953, as to whether she was a member of, or active in, a union. However, as the charge
in the instant case was filed on October 6, 1954 , Section 10 (b) of the Act precludes any
possible finding that this interrogation was unlawful.
8 See Letter Manufacturing Company, 112 NLRB 843 . Cf. Blue Flash Exvress. Inc..
109 NLRB 591.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lodge 1012, AFL, by discriminating in regard to the hire and tenure
of employment of its employees, or by discriminating in any other
manner in regard to any term or condition of employment in order to
discourage membership therein.
(b) Interrogating its employees and applicants for employment
concerning their membership in, and interest in, International Broth-
erhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, Lodge 1012, AFL, or any other labor organization, in a man-
ner constituting interference, restraint, or coercion in violation of Sec-
tion 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join and assist International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers,
Lodge 1012, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing and to engage in
other concerted activities for the purposes of collective bargaining,
or other mutual aid and protection, or to refrain from any or all of
such activity except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mary Ann Schmidt, Cora Hensley, Paul Crombie,
Elmer Sievers, and Alvin Riebold immediate and full reinstatement
to his or her former or substantially equivalent position, without prej-
udice to his or her seniority and other rights and privileges, as pro-
vided under the section in the Intermediate Report entitled "The
Remedy," .and make each of them and Jerome Jennewein whole for any
loss of pay he may have suffered by reason of the discrimination
against him as herein found, in a manner provided in said section.
(b) Post in its plant at Fenton, Missouri, copies of the notice at-
tached hereto marked "Appendix A." 4 Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
upon being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered with any other material.
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
KOLLER CRAFT PLASTIC PRODUCTS, INC . 993
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
& Helpers, Lodge 1012, AFL, or in any other labor organization
of our employees, by discriminating against any employees with
respect to their hire or tenure of employment or any term or con-
dition of employment, except to the extent permitted by Section 8
(a) (3) of the Act.
WE WILL NOT interrogate our employees and applicants for em-
ployment regarding their union membership or activities, in a
manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
& Helpers, Lodge 1012, AFL, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collet-'
tive bargaining or other mutual aid or protection, or to refrain
from any or all of such activity except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to Mary Ann Schmidt, Cora Hensley, Paul
Crombie, Elmer Sievers, and Alvin Riebold immediate reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority and other rights and privileges, and make
each of them and Jerome Jennewein whole for any loss of pay he
may have suffered by reason of the discrimination against him.
All our employees are free to become, remain, or refrain from becom-
ing members of the above-named Union or any other labor organiza-
tion.
KOLLER CRAFT PLASTIC PRODUCTS, INC.,
Employer:
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on October 6, 1954, by International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Lodge 1012, AFL,
herein called the Union, the General Counsel of the National Labor Relations Board,
hereinafter called the General Counsel 1 and the Board, respectively, by the Regional
Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated
November 30, 1954, against Koller Craft Plastic Products, Inc., herein called the
Respondent, alleging in substance that the Respondent: (1) By various enumerated
acts had interfered with, restrained, and coerced its employees, and (2) had dis-
charged and refused to reinstate six named employees because of their membership
and activities on behalf of the Union, thereby engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the
Act. Copies of the complaint, the charge, and notice of hearing thereon were duly
served upon Respondent and the Union.
Respondent duly filed its answer wherein it admitted certain allegations of the
complaint but denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held from January 19 to 22, 1955, inclusive,
at St. Louis, Missouri, before the duly designated Trial Examiner. The General
Counsel, the Union, and the Respondent were represented at the hearing by counsel
or representatives. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was afforded all parties.
Oral argument was waived but briefs were received on March 3, 1955, from both
the General Counsel and the Respondent.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Koller Craft Plastic Products, Inc., is and has been, at all times mentioned, a
corporation duly organized under and existing by virtue of the laws of the State of
Missouri, having its principal office and place of business located at Fenton, Mis-
souri, where it is engaged principally in the manufacture, sale, and distribution of
plastic products. The Respondent's sales of plastic products, which are in excess
of $500,000 per year, are sold to companies in Missouri which individually ship to
points outside the State of Missouri goods valued in excess-of $100,000. The Re-
spondent's product .which is sold to such companies becomes an integral part of
the product shipped out of the State by the companies to which the Respondent sells.
The Trial Examiner finds that the Respondent is engaged in commerce within
the meaning of the Act.
If. THE ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg-
ers & Helpers, Lodge 1012, AFL, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. The employment of the discriminatees
Sometime about November 1949, Elmer Ray Sievers applied to Alois Koller, owner
and president of the Respondent, for employment. At this interview Koller informed
Sievers that somebody had tried to organize a union among the Respondent's em-
ployees, that he had found out who the leaders of this movement were, that he laid
the leaders,off "for economical reasons," and, therefore, could not hire Sievers until
later. Koller stated that he would keep Sievers' application on file and let Sievers
know later. About February 1, 1950, Koller did telephone to Sievers and employed
him as an injection press operator at 90 cents per hour.
1This term specifically includes the counsel appearing for the General Counsel at'the
hearing. -
KOLLER CRAFT PLASTIC PRODUCTS, INC. 995
At the time of his discharge on September 27, 1954, Sievers was the highest paid
operator in the plant at $1.50 per hour, a rate which he attained through numerous
5- and 10-cent raises throughout the period of his employment. About 6 months
after being employed Sievers was offered the job of foreman in the injection de-
partment but rejected the offer because he did not want the responsibility.2 At the
time of his discharge Sievers was not only the highest paid operator but the one with
the greatest amount of seniority in the plant.
During the entrance interview with Alvin J. Riebold on June 3, 1952, General
Manager Robert Karasek mentioned that the Respondent did not have a union and
that "they thought that each individual could work together and get along a lot
better without a union." Riebold was employed and worked steadily as an injection
press operator until October 1, 1954.
When Paul O. Crombie applied for a job with the Respondent in July 1953, he
was interviewed by Karasek. Crombie inquired whether there was a union at the
plant. Karasek answered that there was not and that the Respondent could get
along without a union. Crombie's application indicated that he had just left
a plant which was organized in order to go to work for the Respondent. He was
employed and has worked steadily ever since until his discharge on September
28, 1954. Crombie worked in every department in the plant during his employ-
ment As late as early September 1954, Koller had Crombie tested for promotion
to a supervisory position.
On July 28, 1953, while Koller was interviewing Cora Hensley for employment,
he asked her if she was a member of a union or active in a union . Hensley told
Koller that she held a withdrawal card from Local No. 1, Electricians Union.
Koller then stated that "he didn't have a union, and that he hoped we could do
just as well without a union." Hensley was employed and worked steadily until
September 27, 1954.
About August 25, 1954, the Respondent telephoned to Mary Ann Schmidt who
was then permanently employed at a unionized plant, and asked her to appear
for an employment interview. The following day Schmidt was interviewed by Ralph
Boehner who told Schmidt that the job he was offering her would be a steady job
and that business was on the increase . Boehner stated that the Respondent did not
have a union and inquired if Schmidt was a union member. Schmidt stated that
she held two union cards . Boehner employed her in the finishing department at
90 cents per hour. On September 27, Boehner told her that she was to receive a
5-cent per hour raise. She was laid off the next day.
2. The May Company survey
Following the month of July 1954, when the Respondent's sales dropped to slightly
more than $21,000 for the month, which was less than 50 percent of the usual
month's sales , the Respondent sought the assistance of the George S. May Com-
pany, business engineers , to survey its business . This survey commenced on August
23, 1954, under the direction of one Ernest A. Wood, who described himself as
a "business engineer " for 17 years but holding no "professional engineer 's license."
This survey ended on September 10, 1954. As a result of the first recommendation
made by Wood , Karasek's title was changed from general manager to plant manager
so that , according to Wood, he could spend more of his time out of the plant contact-
ing customers while Ralph Bochner became the production manager in charge of all
planning and production scheduling in the plant.
Until this change was made, the Respondent had never had a salesman or contact
man as Respondent 's customers had always come to the Respondent with their orders.
Further details of this survey will be discussed subsequently in this report as it is
the Repondent 's contention that the discharges in question here resulted from the
recommendations of Wood.
9In its brief Respondent contends that the 15-cent differential between Sievers' wage
rate and that of the other operators was caused by the fact that the Respondent intended
to make him the foreman The undisputed testimony shoes that Sievers ' rate of pay
increased in jumps of 5 and 10 cents per hour . without a 15-cent per hour increase as
orally suggested by the Respondent . It is significant that the Respondent failed to pro-
duce its payroll records to prove that Sievers had ever received a 15-cent per hour in-
crease The facts here do not suppoi t the Respondent ' s contention in this regard.
387644--5 6-v of 114-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discharges on the night shift
During the whole time material here the Respondent operated a second, or night,
shift which as of September 1954, numbered approximately eight employees and
a foreman.
On September 17, 1954, Night Shift Operator Snarr was discharged by the Re-
spondent when it was discovered that he was carrying a full college educational
course under the GI bill in addition to his regular 8 hours' night shift work for the
Respondent. These two full-time occupations together with the necessary travel
time to and from Snarr's home resulted in the fact that Snarr was getting approxi-
mately 4 hours sleep per night. Believing that this lack of necessary rest created
hazards both to Snarr and to the Respondent, the Respondent discharged Snarr as
of September 17.
On September 24, the Respondent discharged Night Shift Operator Woolf when it
was discovered that for the second time in a short period of time, Woolf had shut off
his machine incorrectly at the end of his shift. As such carelessness could result in
possible damage to Respondent's machines, Woolf was given a disciplinary layoff
of 1 week at the first offense and was discharged at the second.
On September 14, Respondent employed one Wiljack as an operator on the
night shift as a replacement for Snarr. As his work proved to be unsatisfactory to
the Respondent, he was discharged on September 24
On September 21, the Respondent hired a combination injection and compression
machine operator named Phillips who has continued in the Respondent's employ
since.3
4. The discharges of September 27 and October 1
On September 27, Union Officials Gerald Wolsfelt and William H. Kincaid were
driving around the Missouri countryside looking for an unorganized plant to organize
when they chanced upon the Respondent's plant in Fenton. Arriving about lunchtime,
they waited outside the plant gate for an employee to emerge. It happened that Elmer
Sievers on his way home for lunch was the employee they encountered. They learned
from him that the plant was unorganized and thereupon handed him an organizing
leaflet with an application post card attached.
Upon his return to the plant after lunch, Sievers reported the presence of the
Union's organizers outside to the employees. This report caused considerable excite-
ment as it circulated among the Respondent's 20-odd day shift employees. This ex-
citement increased when the night shift entered the plant about 4:20 p. m. carrying with
them union literature which the union officials had distributed to them at the gate.
The organizers then passed out their material to the day shift employees as they left
the plant shortly thereafter.
About 9 p. m. that same evening Vernon Bufka, foreman of the injection depart-
ment , was working overtime setting up a new mold for immediate operation. This
mold from Admiral Company had been delayed about 10 days in delivery and had
only been received that same afternoon , personally delivered to the Respondent by
one George Anderson who as the owner of Admiral was a most important customer of
the Respondent. Koller and Karasek came down to the plant after dinner to inspect
it. As he entered about 9 p. m. Koller greeted Bufka with the joking remark: "I hear
that you have joined the Boilermakers Union" and then inquired whether Bufka
knew how or why the union handbills had been distributed that afternoon at the
gate?
About 11:30 on the morning of Tuesday, September 28, Foreman Charlotte Shoe-
maker was consulting the production schedule for the compression department in the
Respondent's main office when Koller called her into his private office and asked her
what she knew about the Union, whether she had heard anything in the plant, and
if she knew who the leaders of the union movement were. Following a noncommittal
answer by Shoemaker, Koller proceeded to name employees Cora Hensley, Elmer
Sievers, Paul Crombie, and Alvin Riebold and asked if Shoemaker had heard them
s The complaint does not allege, nor does the General Counsel contend, that these dis-
charges were discriminatory. Respondent, however, maintains that these discharges were
an integral part of its plan for a general reduction in force caused by the economic
situation.
* Originally in his testimony Koller had denied that he entered the plant on the evening
of September 27. Following Bufka's credited testimony to the effect that he set up this
Admiral mold on September 27 after his regular working hours, Koller revised his testi-
mony and acknowledged that he had been in the plant that evening and had seen Bufka,
though he continued to deny having had any conversation with him.
KOLLER CRAFT PLASTIC PRODUCTS, INC. 997
discussing the Union in the plant. This Shoemaker denied whereupon Koller re-
marked that he was certain that they had something to do with bringing the Union into
the plant. Then urging Shoemaker to report anything she might hear in the plant,
Koller dismissed her.
Either before or after this conversation with Shoemaker, Koller made his usual in-
spection of the operations of the plant with Boehner to see that operations were pro-
ceeding properly and to lay plans for future operations.
Between 1 and 2 o'clock that afternoon Koller again asked Shoemaker to step into
his office. Koller had with him the Respondent's production schedule. Koller in-
quired as to whether Shoemaker had heard any more talk of the Union which she
denied. Koller looked at the schedule and said that he "felt [Shoemaker] wouldn't
be in too bad of a shape if there was a layoff." He repeated that he was still sure that
Crombie, Hensley, Riebold, and Sievers had something to do with the union activity
around the plant. He stated that he was sure Crombie was "union minded" because of
the plants in which he had previously worked. This ended the conversation and Shoe-
maker left the office under the impression that the four individuals named were going
to be discharged.5
Just before 4 o'clock on Tuesday, September 28, 1954, Koller called Boehner to
his office, told Boehner that he was going to discharge employees Mary Ann Schmidt,
Cora Hensley, Elmer Sievers, and Paul Crombie, and instructed him to bring each of
the individuals to Koller's office to receive their notification of the discharge. This
was Production Manager Boehner's first information that anyone was to be laid off
or discharged.
Beginning about 4 o'clock and lasting until nearly 5, Boehner brought Schmidt,
Hensley, Sievers, and Crombie, individually and in that order, to Koller's office so
that Koller could inform each of them individually of the "layoff."
The four interviews were largely identical with, at most, minor variations. Koller
told each of the employees that he was afraid that he had bad news for him or her
as he was going to have to lay off the individual because of loss of orders and because
of economic conditions generally, a fact which he stressed, that he did not know
how long the layoff might last, that it might be well for the employee to seek other
employment if he or she cared to do so, and that when economic conditions war-
ranted the employee would be recalled. At the conclusion of each interview Koller
handed each of the employees 2 paychecks, 1 being for wages due to the employee for
work performed the week ending on the previous Saturday which were regularly paid
on Tuesday, and the other for the last 2 days' work performed that Monday and
Tuesday by the employee.
During Schmidt's interview she voiced amazement at having been told the evening
before by Production Manager Boehner that she was being given a 5-cent per hour
increase in pay and then the following evening learning that she was being laid off.
Schmidt also expressed resentment over being laid off after having been assured on
August 25, 1954, when she left a permanent position elsewhere to accept employment
with Respondent, that her job with Respondent would be permanent. Koller told
her that he was sorry but that due to the economic situation, he could do nothing
about it. Schmidt has never been recalled.
During her interview which followed, Hensley noted the union leaflet and appli-
cation card on Koller's desk and inquired whether her layoff had anything to do
with the Union. Koller answered "No." At the time of the mention of the union
leaflet and application card, Hensley asked where Koller got it. Koller said: "I got
friends, too." 6 Koller explained that Hensley and Schmidt were being laid off be-
s Koller admitted having had a conversation with Shoemaker on Tuesday morning about
11 o'clock but his version thereof differed from that found above, which is based upon
the credited testimony of Shoemaker. According to Koller's testimony, Shoemaker walked
into his office at that time and announced excitedly that she "had troubles--union
troubles" in the plant, that Cora Hensley and Paul Crombie were walking around the
plant talking union to everybody. He testified further that Shoemaker ended that con-
versation by saying that, if the Union succeeded in organizing the plant, she and her
husband, Raymond, would have to quit their employment due to their strong feelings
against unions . According to Koller he then reassured Shoemaker that "there is nothing
to worry about."
O According to Koller's testimony, he received this union handbill and application card
from an unidentified employee after the Hensley interview but before the Sievers' inter-
view which followed. After dropping the material on the desk, this employee departed
as silently as he had entered, according to holler. Neither Hensley nor Sievers mentioned
seeing this individual.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause they were the two newest employees in the finishing department. Hensley
was told that when business picked up she would be recalled. Hensley had not been
recalled at the time of the hearing.
During his interview Sievers objected to being laid off when he had the greatest
amount of seniority in the department and when practically euntrained operators
were being retained. Koller answered that the economic situation was such as to
require the Respondent to lay off the highest paid employees in the plant and that,
as Sievers was being paid $1.50 per hour while the other operators were only getting
$1.35 per hour, Sievers had been selected for layoff on that account. When Sievers
offered to accept a reduction in pay to $1.35 per hour in order to retain his employ-
ment, Koller stated that he was sorry but the plans had been made and could not
be changed. After Sievers informed Koller that if Koller thought that he, Sievers,
had had anything to do with the Union, he was mistaken, Koller suggested that
Sievers come back and see them the following Saturday and perhaps "the picture
would be changed by then." When Sievers suggested that he leave his personal
belongings in the plant until the Saturday interview, Koller instructed him to remove
them. Bufka, the foreman in Sievers' department, learned of Sievers' layoff when
Sievers failed to show up at his usual time before work commenced the following
day, Wednesday.
When Sievers returned on Saturday, he refused to accept a reduction in pay to
$1.35. Koller testified that he considered Sievers to be "hostile" upon his return
that Saturday and so he did not reinstate Sievers. About December 6 Koller offered,
but Sievers refused, temporary work at $1.35 per hour.
Crombie was the last employee interviewed on September 28. During this inter-
view Koller made it a point to stress the fact that the layoff was exclusively due to
economic conditions. Crombie sat, listened, said nothing, and then departed.
On Wednesday or Thursday afternoon, September 29 or September 30, Koller
approached Riebold at work and inquired if Riebold was "one of the Boilermakers."
When Riebold answered no, Koller pointed out how the Union could cut down on
an employee's take-home pay and then stated that 2 presses were going down at the
end of the week so that 2 people would have to be laid off but that Riebold "was a
pretty good man and that he would hate to see anything happen to him." 7
On October 1, Friday, Koller had interviews with employees Alvin Riebold and
Jerome Jennewein during the course of which he told each of them individually that
"some orders had been cancelled" and that Respondent "had lost a couple of molds"
lately so that there was no work for them in the injection department. He thereupon
laid each of them off and handed each his check for the week's work.
On Saturday and Sunday, October 2 and 3, four women employees including
Foreman Charlotte Shoemaker worked overtime at Koller's request "long and
quite late" in the finishing department and still could not complete the work as-
signed. Shoemaker was painting doors which was the work which Hensley had been
doing until her discharge. Other production work was done in the plant on other
subsequent Saturdays and Sundays.,
One Saturday afternoon about 2 or 3 weeks after these layoffs, Koller stated in
the presence of Charlotte and Raymond Shoemaker, Vernon Wilde, and Robert
Karasek that "they" had seen something in Schmidt's handbag which connected her
with the Union.
About 3 weeks after his layoff, Riebold met Koller at a wedding reception for
another employee of the Respondent. Koller told Riebold that he had heard that
Riebold had a job and asked if he liked it. Riebold answered that he did, to which
Koller replied "then there is no use calling you back. I was intending to call you
back in a couple of days." During this conversation the Union was mentioned and
Riebold was asked if the union men had gotten a statement from him. Koller also
stated that he did not know a thing about the union men coming in at the time
they came.
At 4:40 p. m. December 27, 1954, Respondent sent Riebold the following tele-
gram: "Please report not later than 12 noon Thursday December 30 concerning job
opening." This telegram indicates that it was received at Pevely, Missouri, Riebold's
hometown, at 9:10 a. m. on December 28. On December 27, a daughter was born
to the Riebolds in a hospital in St. Louis. Riebold was staying for that event with
an aunt in St. Louis and did not return to his home in Pevely until after December
30. He did not thereafter make any effort to contact the Respondent.
On January 5, 1955, the Respondent offered Jennewein employment which
Jennewein accepted. Jennewein has been working for the Respondent since that
time.
7 Koller denied this latter part of this conversation.
KOLLER CRAFT PLASTIC PRODUCTS , INC. 999
As of January 8 , 1955, the Respondent offered Crombie a job as preform maker
which Crombie at first accepted , agreeing to report on January 22. Preform making
is admittedly a very dirty job. At the hearing Crombie testified that , as he had
learned that his then job was a permanent one, he was taking that opportunity to
inform the Respondent that he would not report for work on January 22.
B. Contentions and conclusions
Considering the timing of the layoffs of September 28 and October 1 -and the
precipitant nature thereof, either separately or together , and without considering
other facets relating thereto, it is obvious that the General Counsel proved a prima
facie case of discrimination as to each of the six employees here involved.
To overcome this prima facie case the Respondent introduced evidence which
ultimately reduced itself to two defenses : ( 1) That Respondent had no knowledge
of any union activity at least, according to Koller, until this unidentified employee
rushed into Koller's office and placed the union leaflet and application card on the
desk before him about 4:30 p . m., September 28, between his discharge interviews
with Hensley and Sievers, and ( 2) that these discharges were all an integral part
of a long-planned general reduction in force dictated by the economic situation and
recommended by the May Company.
Either of these contentions , if proved , would overturn the prima facie case and,
therefore , merit analysis.
1. Defense of lack of knowledge
In speaking of a meeting between the Respondent 's officials and Ernest Wood
of the May Company held in the plant the Respondent 's brief states : "It is incon-
ceivable that in a plant of this size [approximately 22 employees on the day shift
and 8 on the night shift] that every employee did not know of the contents of the
meeting within 24 hours."
Just so, it is equally inconceivable that the Respondent 's officials did not learn
of the presence of the union organizers at the plant gate and of Sievers ' noon meet-
ing with them on September 27 within a very few hours, at most , following Sievers'
report to the employees of that event upon his return from lunch . If, perchance,
Respondent 's officials did fail to hear that exciting news, they were the only per-
sons in the plant that day who missed it . The excitement created by Sievers'
report was augmented with the arrival of the night shift with their copies of the
Union's leaflets and authorization cards when they entered the plant at 4:30 p. in.
In view of the excitement thus created , it is unbelievable , to the Trial Examiner,
that the Respondent 's officials could have failed to learn of the presence of the
organizers and of Sievers meeting with them.
That this conclusion was justified became apparent when, about 9 p. in. that
same evening of September 27, Koller greeted Foreman Bufka with the joking
remark: "I hear you have joined the Boilermakers ' union " Originally Koller denied
that he had even been in the plant at that time but admitted his error after his
memory had been refreshed by Bufka's testimony , which Koller acknowledged was
correct, that Bufka had worked overtime that evening setting up a long overdue
mold from the Admiral Company which was so important to both parties that it had
been delivered late that afternoon by the owner of Admiral in person . With his
memory thus refreshed , Koller admitted that he and Karasek had come to the plant
that evening to see that particular mold and had seen Bufka setting it up. How-
ever, Koller could not recall having had any conversation with Bufka at that time
and place. However, in view of the fact that the sole purpose of the visit of Koller
and Karasek to the plant that evening was to see that this particular mold was
set up so that samples could be made from it the following day, the Trial Examiner
has no hesitancy in finding that Bufka and Koller did have the conversation at that
time and place as testified to by Bufka who , in addition , gave all the appearance of
being an honest and forthright witness worthy of full credit.
Furthermore , in order to sustain this claimed lack of knowledge, the Trial Ex-
aminer would have to discredit not only the testimony of Foreman Charlotte Shoe-
maker regarding her two conversations with Koller at approximately 11 a. m.
and 1 p . m., respectively , on September 28 during which Koller asked her for in-
formation about the Union and then listed Hensley, Crombie , Sievers, and Riebold
as being the employees Koller considered to be the leaders in bringing in the Union,
but would also have to disregard Koller's own partially corroborative testimony
to the effect that about 11 : 30 a m . Shoemaker reported to him in his office at the
plant that she "had union trouble" in the plant because Crombie and Hensley were
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking to employees all over the plant about the Union. Thus Koller's own testi-
mony tends to disprove the defense.
Koller did attempt to conform his testimony to the defense by testifying that he
paid "no attention" to Shoemaker's report because she was a very excitable person
prone to voice complaints, most of which he considered imaginary. This descrip-
tion of Foreman Shoemaker is directly contrary to the opinion of her formed by
the Trial Examiner during her testimony on the stand as well as contrary to Shoe-
maker's own employment history with the Respondent which showed 7 years of
steady employment with the Respondent of which the last 3 had been in a super-
visory capacity as foreman' of one of the Respondent's main divisions. It hardly
need be said that it is most unlikely that Koller would have promoted to, and re-
tained for 3 years as, foreman a person of the type he described. Shoemaker was
a calm, careful, conscientious, and forthright witness on the witness stand whose
testimony was neither impeached nor shaken during cross-examination and whose
testimony is entitled to full credence. Furthermore, Shoemaker was testifying con-
trary to instructions given her previously by Koller that she "get our dates straight
that we never talked or discussed the union before the afternoon of the 28th" and
in face of Koller's threat that he "knew [Shoemaker] wouldn't say anything be-
cause [she] would get herself into trouble." 8
Hensley, Crombie, Riebold, Jennewein, and Sievers had all executed union au-
thorization cards and mailed them to the Union prior to their discharges while
Schmidt executed and mailed hers the evening of September 28 after she had al-
ready been laid off. There is, as the Respondent claims, no evidence to prove
knowledge of these facts by the Respondent.
However, the size of the plant, the excitement Sievers' news created in the plant,
the openness of the union talk as well as the credited testimony of Foremen Shoe-
maker and Bufka, and indeed even the admission of Koller, make it abundantly
clear, despite Respondent's claim, that Koller had knowledge of the union activity
at least by 8:30 or 9 p. m., September 27, and further that he personally believed
that Hensley, Crombie, Sievers, and Riebold were the leaders of the move to bring
the Union into the plant. The Trial Examiner so finds.
There was no contradiction of Shoemaker's credited testimony that about two
Saturdays after the discharges of September 28 and October 1, Koller stated, in
the presence of Foreman Shoemaker and her husband Raymond, Vernon Wilde,
and Robert Karasek, none of whom were even interrogated upon this subject, that
"they" had seen something in Mary Ann Schmidt's purse which indicated that she
had something to do with the Union. Schmidt had been carrying the union leaflet
and authorization card given her in the open pocket of her purse at the plant. So
it is also clear that Koller had knowledge prior to 4 p. m. on September 28 that led
him to believe that Schmidt had something to do with the Union.
Jennewein was a close, personal friend of Riebold who had openly sought a
union authorization card in the plant for the stated purpose of giving it to Jennewein.
Although there is no actual proof that the Respondent knew of this episode regard-
ing Jennewein, it is a fair inference that it was reported to Respondent in view of
Koller's having instructed the foremen, at least, to report anything that they might
hear about the Union in the plant to him.
Hence the Respondent's first contention must fail as not being in conformity with
the facts.
2. The defense of the economic situation
It is true that Koller stressed the fact at each of the exit interviews that the
separations were caused exclusively by reason of "cancellation of orders," " the loss
of a couple of molds," and the economic situation.
Some 5 years previously Koller had also blamed the economic situation publicly
for his having to separate certain employees while telling Sievers privately that as
these persons had been the leaders of the then attempt to bring a union into the
plant, he 'had discharged them .9
The figures of the Respondent's sales for the fiscal years 1953 and 1954 (Respond-
ent's fiscal year ends on September 30) prove that the Respondent's business did
8 Although Koller specifically denied making these two statements, the Trial Examiner
credits the testimony of Shoemaker for the reasons stated above and because of the num-
ber of inaccuracies contained in Koller's testimony.
U Koller did not specifically deny having this conversation with Sievers 5 years before
although he testified that 3 of those dismissed at that time were dismissed for fighting.
At that time 6 or 7 employees had been discharged so that the' explanation given by
Koller was, at best, only partial. The Trial Examiner credits the testimony of Sievers.
KOLLER CRAFT PLASTIC PRODUCTS, IN C. 1001
slump in fiscal year 1954, the figures being $608,663.13 for fiscal 1953 as against
$469,833.14 for fiscal 1954. In fact these figures show that in fiscal 1954 the
Respondent only had 3 months when its business was better than in the corresponding
months of 1953; October, April, and September.
The Respondent's business hit its low mark in July 1954 when sales only totaled
$21,000, approximately 40 percent of its usual monthly business. It was shortly
after this that the George S. May Company was called in to survey the Respondent's
business.
These same figures also prove that beginning with the month of September 1954
and continuing through the month of December 1954, the last month for which
the Respondent gave the monthly figures, each month showed an increase of from
$9,000 to $13,500 over the business done in the corresponding months of the pre-
vious fiscal year except for the month of October when the increase was only $200.
September 1954 showed an increase of $4,000 in sales over that for August 1954
and nearly $13,500 over the previous September. Hence it cannot be disputed that
beginning in September 1954, the month in question here, the Respondent's business
was on the increase and improving. Hence hindsight, at least, proves that September
1954 was not the time for the Respondent to begin reducing its work force.
However, the Respondent claimed that business was so bad that, acting upon the
recommendations of the May Company, they decided to have a general reduction
in force and, in furtherance of this purpose, began by discharging the three men
from the evening shift. The fact of this matter of the evening shift is that each of
those 3 men were discharged for cause, respectively: (1) Danger to person and
property from lack of sleep; (2) carelessness in handling the machinery endanger-
ing property; and (3) incompetence on the part of 1 individual employee. None of
these employees were laid off, as were the later six, for lack of work. In fact on
September 14 a new employee was hired so that the reduction in force, if any, was
at most 1 man for I of the 3 discharged had only recently been hired as a replace-
ment for the planned release of the man who was getting insufficient sleep. It
was a well-known fact throughout the plant long before these 3 discharges actually
occurred that these 3 were to be discharged for cause. It was also admitted that
the night shift at the time of these discharges numbered 8 or 9 whereas the
Respondent' s usual night shift had only been 6 or 7. These differences add up to
the fact that these discharges on the evening shift were not part and parcel of any
planned general reduction in force. .
Koller and Karasek then testified that, having started the general reduction with
the evening shift, they began considering how many to reduce on the day shift on
Saturday, September 18, and made their final determination and selection on Saturday,
September 25, after a careful consideration of the Respondent's orders. Very pecul-
iarly because it was his duty to plan and schedule production, a duty requiring daily,
intimate knowledge of the size of the working force, Production Manager Boehner
was not consulted, or informed, of this alleged planned reduction in force. In fact,
he first learned of the "layoff" of September 28 and October 1 when he was ordered
to bring the individuals selected by Koller to the office so that Koller could inform
them of their layoff just minutes prior to the interviews. Koller attempted to explain
this peculiarity by stating that Boehner was new at his job-which was true-and
that it was necessary to keep discharges "top secret" until merely minutes before
notification in order to prevent the employees from damaging Respondent's valuable
machinery. This explanation seems strange, both in view of Boehner's position and
in view of the fact that on Monday, September 27, about noon, Koller allegedly
instructed the Respondent's bookkeeper that the four were to be "laid off" the fol-
lowing day without so much as mentioning to her the necessity for top secrecy about
the impending "layoffs."
Mrs. Schmalz, Respondent's bookkeeper, testified in corroboration of the testimony
of Koller that about noon on Monday, September 27, he ordered her to make out
checks for a total of 16 hours work covering work on both Monday and Tuesday
for Hensley, Schmidt, Crombie, and Sievers in addition to the regular weekly
paychecks for the previous week's work which were regularly made out on Monday
and distributed to the employees on Tuesday. Mrs. Schmalz testified that she made
out the regular paychecks for the previous week's work on Monday as was her
customary procedure. She testified that on this particular Monday, September 27,
she also made out the extra checks as ordered for the selected four. It seems strange
that on Monday, Schmalz would be ordered to make out checks covering work
which was to be performed on Tuesday, which had not been performed and which
might never be performed. Mrs. Schmalz so preferred to testify in generalities
about her "regular procedures" that it was next to impossible to force her to restrict
her testimony to the particular events of September 27 and 28. It also was obvious
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she had not even looked at the Company's checkbooks in preparation for her
generalized testimony. Nor did the Respondent produce these checkbooks which
could have proved conclusive on whether the checks were made out on September
27, as claimed, or on September 28. It is a fair assumption from the Respondent's
failure to produce these checkbooks that they would have proved unfavorable to the
Respondent's contention. In view of this, and in view of the completely generalized,
indefinite, and unconfirmed testimony of Mrs. Schmalz, the Trial Examiner finds that
the order for these four checks was not given on Monday, September 27.
Nor is Koller's claim or insinuation that Wood, May Company representative,
recommended a reduction in force borne out by Wood's oral testimony wherein
he disclaimed having made any such recommendation as well as by Wood's written
progress reports. These progress reports show that, on the contrary, Wood in fact
recommended the employment of 2 new employees, 1 to form and staple cartons
and distribute same to the finishing department and the other, an unskilled manual
laborer, to relieve Foreman Bufka of the injection department so that Bufka could
spend more of his time fixing the machines and thus reduce what Wood described
as the "ridiculous" amount of "down time" (unproductive time) of the machines
in his department. It is important to note that Wood recommended 1 of these
new employees for the finishing department and 1 for the injection department,
for it was from these 2 departments that 5 of the 6 employees were subsequently
laid off on September 28 and October 1. Unless Wood's oral statements completely
contradicted his written reports, it must be clear that he did not recommend a layoff,
particularly not in the finishing and injection departments.
Wood did recommend that, when replacements became necessary, the Respondent
adopt a policy of employing what Wood chose to call "flexible employees," i. e., indi-
viduals who could do more than one job or operation. According to Koller, this pol-
icy was in fact adopted. Yet on September 28, Koller laid off Paul Crombie, the
most "flexible" employee in the plant who had operated so well in every division of
the plant that just prior to September 10, Koller in person had recommended him to
Wood as supervisory material.
Throughout his testimony and at the exit interviews with the laid-off employees on
September 28 and October 1, Koller kept talking in generalizations about "cancella-
tion of orders" and "loss of molds." Yet when Wood began his survey of the Re-
spondent's plant on August 23, he was "shocked" to find only enough orders for 3
weeks' work in the plant. But, according to Koller, there were still 3 weeks' orders
ahead when the 6 were discharged. At the time of Wood's survey it was undisputed
that all five machines were operating in the injection department, that there was so
much work there that Wood recommended the employment of a helper to relieve
Foreman Bufka. Respondent recognized the justification of Bufka's request and
Wood's recommendation because it hired the unskilled workman recommended on
September 7, 1954, and has retained him in his employ ever since. In this record there
is not one single specific instance of a cancellation of an order or a loss of a mold to
corroborate the above generalization and no books or records were offered in proof
thereof.
The record abounds in proof that orders Koller thought "were completed" at the
time of the layoffs were not in fact completed. The Grove Quinine order on which
Schmidt was working was not completed as of September 28. This was a recurring or
continuing order. Wood's progress report, dated September 3, shows that he had
just "rearranged and improved" the work area for that particular order in order to
expedite its production. Such rearrangement would not have been undertaken just
to complete 'one small order. Wood also undertook to rearrange the finishing de-
partment in order to expedite production on the Admiral order upon which Hensley
was doing the painting. If this order were to run out as of September 28, as Koller
testified, it is highly doubtful that Wood would have taken this amount of trouble at
that time. On this Admiral order, however, the admitted evidence proves that, at
Koller's request, four women worked "very hard and quite late" on the Saturday and
the Sunday following the separation of Schmidt and Hensley without getting the work
caught up. One of these women was Foreman Charlotte Shoemaker who spent those
days painting Admiral doors which Hensley formerly did. Nor was this the only
time after the layoffs that production work was done on Saturdays and Sundays there-
after, although Koller testified that performing production work on Saturdays and
Sundays was done only on those "rare occasions" "if our schedule is behind" or "if
some special thing comes up that must be gotten out by Monday or we are in a very
big hurry." It is clear from the immediacy with which overtime work in the finishing
department began after the layoffs that this department was not overstaffed at the
time of the layoffs on September 28 and that Wood was correct in recommending
-the employment of another person in that department.
KOLLER CRAFT PLASTIC PRODUCTS, INC. 1003
Nor do the facts prove that the economic situation in the injection department re-
quired the layoff there of Sievers, Riebold, and Jennewein as contended by Koller.
As noted heretofore, all five machines in that department had been operating during
the May Company survey so that Wood had recommended, and the Respondent
agreed to, the employment of an unskilled worker to relieve Foreman Bufka so that
he could attempt to reduce the downtime of the machines. There is no indication of
any letup in the injection department between then and September 28. In fact, on the
afternoon of Monday, September 28,10 a new Admiral mold arrived at the Respond-
ent's plant. This was the mold which was so important that it had been personally
delivered at the plant by the owner of Admiral. Foreman Bufka worked overtime
that night until midnight setting it up so that samples could be made from it on
Tuesday when Karasek left for Admiral in Chicago to confer on a "large and im-
portant order" from Admiral. As this mold was so important to both the Respond-
ent and to Admiral and as the mold was at least 10 days late in its delivery when it
finally arrived, presumably Respondent took it into consideration when allegedly
planning the reduction in force. Yet the fact is that business was such in the injection
department that Bufka, instead of being freed to attempt to reduce the downtime in
that department as recommended by the May Company, was in fact forced by the
lack of personnel in that department after the layoff to operate a machine in order to
get out production, exactly the opposite result from that recommended by the May
Company. He began operating a machine immediately after the layoffs and was still
so operating at the time of the hearing despite the reinstatement of Jennewein on
January 5, 1955. It appears significant that on the question of the economic necessity
for the layoffs that these layoffs occurred the very day after the receipt of this
important mold. Hence hindsight was not required in order to determine that lay-
offs were not necessary in either the finishing or the injection departments.
That the injection department was in fact understaffed after the layoffs was fur-
ther proved by the fact, about 3 weeks after the layoffs, Koller himself testified that
the Respondent had determined to increase the number of injection machine opera-
tors at the plant. At that time after learning at a wedding reception which both men
attended that Riebold had steady employment elsewhere, Koller expressed regret that
there was "no use" in offering the opening to Riebold. About November 6, also,
Koller offered "temporary" employment in the injection department to Sievers, who
rejected the job because it was temporary and also because it required him to take a
15-cent per hour cut. Although the Respondent actually did not fill these positions
at this time, it is clear that the Respondent recognized that it was understaffed
throughout this period in the injection department.
Furthermore Koller himself testified that Respondent could never tell from day to
day whether the injection department was going to be busy or slow. However, with
this "large and important order" coming up from Admiral from this newly set up
mold, it is quite clear that the Respondent was due for a busy time in both the injec-
tion and the finishing departments. The facts so prove and the Trial Examiner so
finds.
The above admitted and proven facts prove that both in the finishing department
and in the injection department there was no economic justification for the layoffs
as Koller had testified. Facts speak more strongly than Koller's uncorroborated gen-
eralizations. Therefore, in accordance with the facts, the Trial Examiner must find
that the layoffs of September 28 and October 1 were not caused by, or a result of, the
economic situation confronting the Respondent.
3. Other reasons advanced
The other explanations given by Koller for the discharges at the exit interviews
and at the hearing are equally contradictory and unconvincing. He told Schmidt
and Hensley that they were being laid off because they had the least seniority in
the finishing department-which was true-but on the other hand he discharged
the man with the greatest seniority in the injection department, Sievers, and he also
discharged Riebold and Jennewein despite the fact that they were trained operators
with considerable seniority over certain other operators, Floyd Hill in particular,
retained. Hill, according to Koller, had not even worked long enough as an op-
erator for the Respondent to have evaluated his work. Both Hensley and Schmidt
had just received wage increases, Schmidt's having been announced to her only
I day before her layoff. In addition, the fact that Schmidt had just been hired on
30 Originally Koller testified that this mold arrived on the following Wednesday or
Thursday after the layoffs but subsequently acknowledged the correctness of this date
of delivery.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 3 as a replacement for an , inefficient employee on the recommendation
of Wood and with assurances from the Respondent that her employment would be
permanent also militates against the alleged economic necessity for these layoffs.
Sievers allegedly was laid off, according to Koller, because the economic situa-
tion was such as to require that the highest paid employees be dismissed. Obviously
this 15-cent per hour differential in wage rates was not the actual reason Koller
wanted to be rid of Sievers because, if it had been, Sievers' prompt offer to accept
a 15-cent per hour reduction in pay would have been accepted. Instead of that,
however, Sievers had become "hostile," to use Koller's expression, by the time of
his Saturday return visit to the plant. Nor could the alleged physical handicaps
of Sievers, Riebold, and Jennewein have played any part in their selection for lay-
off because Koller admitted that the work of all three had been satisfactory during
all the time they had worked for the Respondent. Sievers had been so satisfactory,
in fact, that he had been offered the foremanship of the department. Obviously
the contradictory reasons assigned by Koller for the selection of the above em-
ployees were not the real reasons that he had selected them for layoff.
In view of the adoption of the May Company recommendation that only "flexible
employees" be hired as replacements, when necessary, the selection of Crombie for
layoff is one of the strangest of the selections. Crombie was a "flexible" employee
as he had worked in every department of the Respondent's plant so successfully
that Koller had personally recommended Crombie to Wood as "supervisory ma-
terial" during the May Company survey when supposedly Wood was recommend-
ing a general layoff. It is true that Crombie had been working in the fiberglass
department and had been offered the foremanship thereof when it became busy.
For about 2 weeks before the layoff Crombie had been transferred from fiberglass
to the compression department because fiberglass was very slow. However, he had,
also worked in the injection department where Koller chose to retain unevaluated
newcomers in preference to Crombie. Crombie also enjoyed seniority rights over
at least nine operators. Obviously Koller's selection of Crombie for layoff was
in violation of everything he had told the others he had selected for layoff as well
as the May Company's employment policy which the Respondent had adopted.
Clearly then we must look farther than the reasons advanced by Koller to ex-
plain the selection of all six of the dischargees in order to discover the real reason
why they were laid off. That there was one real, consistent thread connecting all
six of the individuals laid off becomes clear when it is recalled that Koller knew
that Hensley and Crombie were talking union all over the shop, that Sievers had
been the first person to meet with the union organizers, that Schmidt had carried
something in her bag connecting her with the Union, that they had all, except Rie-
bold and Jennewein, worked previously in union shops which, in Crombie's case,
caused Koller to express the belief that Crombie was "union minded" and when it
is a fair inference from his interrogation of Riebold about the Union that Koller
suspected that Riebold was also "union minded" and had heard of the fact that
Riebold was seeking another union application card for his friend Jennewein. This
suspected interest of the employees selected for layoff in the Union is the 1 consistent
threat which runs through the selection of all of the 6; and the Trial Examiner so
finds.
4. Concluding findings
The testimony of Koller indicated that after several weeks of careful planning,
the final selection of those to be laid off was made by himself and Karasek on
Saturday, September 25. Karasek's testimony tended to corroborate this. The in-
tent of the testimony of Mrs. Schmalz was to corroborate this also. If this testi-
mony is true, then, of course, the Union could have had nothing to do with the lay-
offs.
Facts, however, contradict the above oral testimony. Production Manager
Boehner had been put in charge of all planning and scheduling of production. As
proper and efficient production scheduling requires a minute and accurate knowledge
of both the outstanding orders and the size of the work force, it appears only
logical that Boehner would be consulted regarding each and every layoff in the work-
ing force. But, in this instance, Boehner not only was not consulted, he was not
even informed of this allegedly Long-planned general layoff until 15 minutes before
it went into effect. If this layoff was the result of long and careful planning, then
this unnatural and unbusinesslike reticence as far as production manager is con-
cerned becomes so illogical as to make the testimony unbelievable. Neither of the
foremen whose departments were affected were consulted. Foreman Bufka learned
of Sievers' separation only through the fact that Sievers failed to appear for work
as usual the next day. Foreman Shoemaker did hear Koller remark about 2
hours before the discharges that her department was not in "too bad of a shape
KOLLER CRAFT PLASTIC PRODUCTS, INC . 1005
if there was a layoff ," which could hardly be considered a definite announcement,
though it did give Shoemaker the impression that those employees whom Koller
believed were union minded were to be terminated.
- The results of the layoff prove that, if there was any previous planning at all,
it was almost unbelievably bad. In the finishing department the facts prove that
in order to partially catch up on the very work the laid-off employees had been doing
in that department , the Respondent was required to work four girls overtime on both
the Saturday and the Sunday following the Tuesday layoff "long and quite late" and
still the work had not been completed. Nor was this the only Saturday and Sun-
day overtime work necessitated by the layoffs of Schmidt and Hensley. Such
egregious errors indicate (1) a dearth of planning; (2) that there was plenty of
work in the department ; and (3 ) the department was not overstaffed prior to the
layoff.
In the injection department where Koller acknowledged that the department
could change from slack to busy "over night," Sievers was discharged on the very
day after the receipt of the new Admiral mold for which Karasek left the very
day of the layoff to negotiate a "big and important" order. In addition, Foreman
Bufka immediately after the layoff was forced to tie himself down to operating
1 machine although only 3 weeks before the Respondent had hired an unskilled
manual laborer in order to relieve Bufka so that he could devote his time to remedy-
ing the "ridiculous" amount of "down time" caused by reason of the excessive num-
ber of duties even then resting on his shoulders. This layoff, therefore, caused a
complete reversal of policy as to Bufka. Three weeks later the Respondent had
again reversed itself and was allegedly looking for more operators for the injec-
tion department. This again shows that in the injection department (1) there was
little, if any, previous planning; (2) there was an abundance of work with more
arriving on the very day of the layoff; and (3) the department was not overstaffed
even before the layoff.
Thus, the absence of prior planning, the fallaciousness of the reasons advanced by
the Respondent for the layoff , and the proof that the Respondent suspected, and
objected to, the fact that all six employees laid off were interested in the Union
lead irresistibly to the conclusion that on September 28 and October 1, 1954, the
Respondent through Koller precipitously laid off or discharged Mary Ann Schmidt,
Cora Hensley, Paul Crombie, Elmer Sievers, Alvin Riebold, and Jerome Jennewein
for the reason that Koller knew , or suspected , that each of the employees was "union
minded" and interested in the Union. The Trial Examiner so finds.
5. Offers of employment
Although not strictly germane at this time, the General Counsel raised the question
of the sufficiency of the offers of employment made by Respondent to Crombie,
Sievers, Jennewein , and Riebold as offers of reinstatement.
In the case of Jennewein Respondent made, and Jennewein accepted , reinstatement
to his former position so that back pay resulting from the discrimination of October
1, 1954, should cease as of the date of Jennewein's actual reinstatement.
The Trial Examiner finds that there was no bona fide offer of reinstatement made
to any of the other discriminatees. As to Riebold, the testimony shows that Koller
did not actually make any offer of reinstatement but restricted himself to being
"sorry" that there was "no use" in offering a position to Riebold subsequently. Nor
could the telegram of December 27, 1954, be considered an offer of reinstatement
because not communicated to Riebold until after the alleged offer had expired by
its own terms . It is incumbent upon the offerer to bring his offer to the attention
of the employee while the offer is still open. This Respondent failed to do.
As the offer made to Sievers was for "temporary" work at reduced wages, the
offer was not of the same or substantially equivalent employment and hence does
not qualify as an offer of reinstatement.
The offer made to Crombie suffers the same defect as preform work is admittedly
much dirtier work than operating in either the compression, the injection, or the
fiberglas€ departments.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Mary Ann Schmidt, Cora Hensley, Paul Crombie, Elmer
Sievers, Alvin Riebold, and Jerome Jennewein by laying off or discharging them on
September 28 or October 1, 1954, the Trial Examiner will recommend that the
Respondent offer each of them immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of pay which he may
have suffered by reason of the discrimination as to him by payment to him of a
sum of money equal to that which he would have earned as wages from the date of
the discrimination against him to the date of the offer of reinstatement less his net
earnings during such period, in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife, which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon the entire record, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. The International Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers & Helpers, Lodge 1012, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By laying off or discharging Mary Ann Schmidt, Cora Hensley, Paul Crombie,
Elmer Sievers, Alvin Riebold, and Jerome Jennewein on September 28 or October
1, 1954, thus discriminating in regard to the hire and tenure of employment of said
employees and thereby discouraging membership in International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Lodge 1012,
AFL, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
3. By interrogating its employees and applicants for employment regarding their
membership and interest in the Union thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
William J . Tillman , Katherine Tillman , and William C. Tillman,
a Partnership, d/b/a Tillman Furniture Company and Retail
Furniture and Appliance Salesmen 's Union, Local No. 981,
Retail Clerks International Association , AFL. Case No. 9-CA-
895. November 16,1955
DECISION AND ORDER
On August 19, 1955, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
114 NLRB No. 166.