Kut-Kwick Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1969

176 N.L.R.B. 635 (N.L.R.B. 1969)

KUT-KWICK CORP.
Kut-Kwick Corporation and International Association
of Machinists and Aerospace Workers, AFL-CIO.
Cases 10-CA-7294 and 10-CA-7337
June 13, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On December 12, 1968 , Trial Examiner Stanley
N. Ohlbaum issued his Decision in the
above-entitled proceeding , finding that the
Respondent had engaged and was engaging in
certain unfair labor practices alleged in the
complaint , and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended dismissal of these allegations.
Thereafter , the Respondent and the General Counsel
filed exceptions to the Trial Examiner ' s Decision,
and supporting briefs, and the Respondent filed a
brief in reply to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the,
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner ' s Decision , the exceptions and briefs, and
the entire record in this case , and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner.'
'Member Jenkins would find a further 8(aX3) and ( I) violation
predicated upon the Respondent 's selection of Gerald Smith for layoff on
December 22 , 1967, and its subsequent refusal in mid - February 1968, to
rehire him. In reaching this conclusion, he would rely upon the
Respondent's knowledge of his union affiliation garnered from its unlawful
surveillance of the February union meeting; the fact that despite its
attempts to retain Smith in its employ by giving him additional
remunerative opportunities prior to the advent of the Union, it
subsequently, on December 22, 1967 , laid Smith off and retained a number
of employees who were junior to him in terms of service; and the fact that
Smith's original request for reemployment was denied pending resolution
of the "union mess" and not for lack of work. Although Smith was
ultimately offered reemployment, following his repeated applications
therefor, such job offer carried a wage scale so substantially less than he
had received prior to layoff that his refusal of the offer was considered a
virtual certainty . In these circumstances , and in view of the other unfair
labor practices found by the Trial Examiner and adopted by the majority
herein, Member Jenkins would find that Smith 's layoff and subsequent
denial of rehire was based not upon any economic considerations, as
alleged by the Respondent , but rather his union affiliation and activities in
relation thereto.
ORDER
635
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Kut-Kwick
Corporation, Brunswick, Georgia, its officers,
agents, successors, and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Trial Examiner. This
consolidated proceeding' under the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq;
"Act") was tried before me in Brunswick, Georgia, on
June 24-28 and record closed on August 2, 1968,2 with all
'On complaints of the National Labor Relations Board 's the Regional
Director (Atlanta, Georgia) issued ( 1) on May 2 , 1968, as amended at the
hearing (Case 10-CA-7294) based upon charge filed by the above Union on
March 15 and (2) on May 17 (Case 10-CA-7337 ) based upon charge filed
on May 1 . Unless otherwise specified , all dates are 1968.
'Resumption of the hearing which on June 28 was adjourned sine die
was rendered unnecessary by reason of a joint application by the parties on
July 26 (granted by my order of August 2) to close the record after the
Board 's Regional Director had declined to enter into a settlement
negotiated and drafted by Counsel for General Counsel on the fifth day of
hearing and signed by both the Respondent and the Charging Party. The
record , including Respondent ' s posthearing motion papers, adequately
reflects the circumstances . The following documents are hereby
incorporated in the record of this proceeding:-
Document Marked as
Trial Examinees
Lxhibit No. Document Description
14 Settlement agreement (with attached Notice), dated
June 28,1968
15 Telegram from Counsel for General Counsel, to
Trial Examiner , received July 5, 1968
16 Telegram from Respondent's Counsel, to Trial Ex-
aminer, received July 8,1968
17 Copy of letter from Trial Examiner to Counsel,
dated July 12, 1968
18 Telegram from Respondent 's Counsel, to Trial Ex-
aminer, received July 17, 1968
19 Telegram from Respondent 's Counsel , to Chief Trial
Examiner , received July 23, 1968
20 Copy of telegram from Associate Executive Secre-
tary of National Labor Relations Board , to 10th
Regional Director and Counsel , dated July 24, 1968
21 Copy of telegram from Trial Examiner to Coun-
sel, dated July 25, 1968
22 Telegram from Counsel for General Counsel, to
Trial Examiner, received July 26, 1968
23 Copy of telegram from Trial Examiner, to
Counsel, dated July 26,1968
24 Letter from Respondent's Counsel, to Trial Exam-
iner , dated July 26, 1968 , received July 29, 1968
(with attached envelope)
25 Letter from Counsel for General Counsel , to Trial
Examiner, dated July 29, 1968 , received July 30,
176 NLRB No. 86
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties participating throughout by counsel or other
representative. The issues are whether Respondent
Employer violated Section 8(axl), (3), and (5) of the Act
by: - (1) discriminatorily discharging (and failing to
reinstate or rehire) 14 employees (12 on December 22,
1967;' and 2' on March 7- 8, one of whom ' was again
discharged on June 13 after previous reinstatement or
rehire); (2) coercively interrogating employees regarding
union affairs (January 13-23); (3) spying on a union
meeting of employees (February 14); (4) threatening
employees with adverse economic consequences and
reprisals for union adherence (February 15-16); and (5)
failing and refusing (since around December 11 or 14,
1967) to bargain collectively with the Union as the duly
designated exclusive bargaining representative of an
appropriate unit of its production and maintenance
employees. In its answers (as supplemented or amended at
the hearing ), while generally denying these allegations,
Respondent admits the layoff on December 22 of 12
employees,' 4' of whom were subsequently rehired.
Upon the entire record' and my observation of the
witnesses, I make the following:
Respondent's employees most recently evinced interest
in unionization commencing in November, 1967. A
previous unionizational effort, in 1965, had resulted in a
31 to 5 vote by the employees, in a Board-conducted
secret-ballot election (Case 10-RC-6250), rejecting
representation by the Union which is the Charging Party
here.
Following a union petition for election filed on
December 12 (Case lO-RC-7275) and a request for
recognition received on December 16, 1967, and declined
by Respondent on January 2 with the suggestion that the
wishes of its employees would more accurately be
determined by a Board-conducted election, such an
election was held on consent on February 16, 1968,
resulting in a vote of 21 to I1 against the Union (with 5
ballots challenged, out of a total of 37 eligible voters in a
conventional production and maintenance unit). By March
5 stipulation of the parties, the results of that election
were voided and a rerun election was agreed to. The rerun
election, scheduled for March 15, was not held, the
charges in instant Case 10-CA-7294 being filed on that
day.
FINDINGS AND CONCLUSIONS
11. PARTIES ; JURISDICTION
Respondent is a Georgia corporation having its plant
and principal place of business in Brunswick, Georgia,
where it engages in the manufacture and sale of
lawnmowers. In the representative 12-month period
immediately preceding issuance of the complaints,
Respondent sold and shipped goods valued in excess of
$50,000, directly in interstate commerce to points outside
the State of Georgia. I find that, at all material times,
Respondent has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7),
and the Union a labor organization within the meaning of
Section 2(5), of the Act; and that assertion of jurisdiction
here is proper.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a manufacturer of industrial lawnmowers
in Brunswick, Georgia. Since 1965 the number of persons
employed in its machine shop and assembly shop has
ranged from around 30 to 50. During the same period, its
sales have likewise fluctuated widely. Seasonal highs, in
both sales and employment, have occurred in and around
the summer, with a lull and 1-week plant shutdown at
year-end (December).
1968, with enclosed Respondent's Exhibits 1(d)
and 23
26 Copy of telegram from Trial Examiner to Counsel,
dated August 2,1968
'Blue, Braddock , Cope, Edmond , Jones , Manning , McCormick, Perkins,
Smith, Sweat , West, and Williams.
'Christian and Goodyear.
'Goodyear.
'See fn . 3, supra
' Blue, Cope , Manning , and West.
'Hearing transcript as corrected by my November 21, 1968 , order on
notice.
B. Section 8(aXl)
1. January: interrogations
It is alleged that at various times in January employees
were interrogated in violation of Section 8(a)(1)
concerning their union affairs, by Respondent's Machine
Shop Superintendent Rowe. Former employee Goodyear
and employees Rhymes and Chakmack testified as
General Counsel's witnesses in support of these
allegations.
Goodyear is a machinist who was employed in
Respondent's machine shop for 9 years preceding his
discharges in March and June under circumstances to be
described. On Saturday morning, January 13 - following
the most recent (i.e., late 1967) manifestation of union
interest by employees at Respondent's plant, under
Goodyear's leadership - Goodyear, while recuperating at
home after a hospitalization, received a visit there from
Respondent's Machine Shop Superintendent Rowe, with
whom he had maintained a friendly social relationship. At
the conclusion of this home visit, Goodyear accepted
Rowe's invitation "to ride downtown with him [Rowe] a
little bit." Downtown, Rowe "told me [Goodyear] he
wanted to talk to me about the union .... I told him to
go ahead, that I didn't mind talking to him about the
union, so he asked me about, was I for the union, and I
told him, yes, I thought I'd like it, so he asked me what
the fellows hoped to gain out of the union and I told him
I didn't know, that I was only one and he would have to
ask them to get their opinion. And he said well, that's a
mighty small' company, you know, for a union down
there. And I told him yes, it was small and I knew it was
small. So we rode on and he talked of the company......"'
When they returned and parked in front of Goodyear's
home, "we talked about the union meeting and he [Rowe]
asked me [Goodyear], well, he said he heard that there
was going to be a walkout, a threat of a walkout down
there, and I told him that there had been some talk of it
but I didn't much believe it was going to come." The
'Emphasis supplied . The discussion which ensued , apparently in casual
and friendly vein, encompassed the recent December layoff (discussed
infra). possible sources of employee dissatisfaction , and the operation by
another employee of the machine which Goodyear had been operating
prior to his absence (also discussed Infra)
KUT-KWICK CORP. 637
Board-conducted election was held on February 16, 2 days
after a union meeting attended by Goodyear. About an
hour before the election, Rowe telephoned Goodyear at
home and, after inquiring about his health, remarked, "I
[Rowe] heard you were going to be the observer on the
Board for the union. And I [Goodyear] said, yes, I am,
and I don't think it's going to hurt anything. I don't see
anything wrong with it is the way I put it. And he said,
well, o.k., all right, and he hung up."
Respondent's machinist Rhymes, in its employ since
1961, was approached at his workplace by Rowe several
weeks before the February 16 election. Rowe "asked me
[Rhymes] had I heard anything about the union coming
in, about the boys wanting to get a union in . . . . I said,
yes sir, I had, I didn't want nothing to do with it, this side
or the other side either. I said I didn't want to hurt
neither side, and I just hadn't mentioned nothing about
it." About a week later, at the same place, Rowe "asked
me had anybody been to me and asked me anything about
signing a union card .... I told him, yes sir, they had . .
He asked me who was it, and I told him Jerry, Jerry
Smith .... I don't think nothing else was said." Rhymes,
who considers himself to be a "personal friend" of
Rowe' s, was not asked by Rowe whether he was for or
against the Union.
Respondent's machinist Chakmack, in its employ since
1957, testified that around a week before the February 16
election, "Mr. Rowe asked me what I thought about the
union and we were discussing it between each other
because I used to belong to the union up North and I told
him that this plant was too small at that time and I didn't
think the union would do any good if it belonged to
another company at that time, but that's immaterial. We
were discussing amongst each other, you know, person to
person about the union and how he thought and how I
thought the vote would come out. And I told him that I
didn't think the union would get in the plant and he also
agreed that he didn't think the union would get in the
plant either .... there was no mention of who or what or
how they were going to vote, it was how many. How
many I thought and how many he thought. . . . Not the
names ." Chakmack, whose testimony was
uncrossexamined , also swore that he was unable to recall
who started this conversation since "that's been a while
back, but Mr. Rowe and I are very good friends and we
talk to each other about certain matters."
Respondent's Machine Shop Superintendent Rowe's
version of his January 13 visit to Goodyear's home is that
he was on friendly terms with Goodyear, and that they
socialized at each other's homes and "played music
together." After discussing Goodyear's illness and chatting
with members of Goodyear's family, Rowe took Goodyear
for a drive, during which they spoke of "getting together
playing music, and how the shop was doing." Mentioning
the Union, Rowe asked Goodyear "did he [Goodyear]
know any of the grievances that any of the guys had,"
telling Goodyear that "everybody at the shop had chosen
sides. That was basically the thing that was wrong.
Somehow or other there must be some grievance that we
didn't know about that I could maybe take up with Mr.
Tresher [Respondent' s President ]. . [Goodyear
thereupon] told me [Rowe] no, the only grievance that he
knew, that he didn't think was right, it was the
hospitalization plan that we had . . . he had to wait a
year [after employment, for coverage]." Rowe promised
to take this up with Tresher and did. According to Rowe
--- and consistently with Goodyear's testimony - he did
not ask Goodyear whether he was a Union member, nor
did he inquire regarding the Union membership or views
of any other employee. Further according to Rowe -
unchallenged by Goodyear - Goodyear "even stated to
me that day [January 13] that after this deal . . . . he
didn't want any part of the union."10
Concerning the described discussion between Rhymes
and Rowe, the latter conceded that it "probably did"
occur as testified by Rhymes. At the solicitation of
Respondent's counsel, Rowe then added that "I think, the
way I remember it, he [Rhymes] started the conversation"
and that it was Rhymes who brought up "about whether
he [Rhymes] signed a union card." On cross-examination,
however, Rowe professed to be unable to recall whether
Rhymes' statement to him that fellow-employee Smith
had "tried to get him [Rhymes] to sign a union card" was
educed by Rowe from Rhymes or adduced to Rowe by
Rhymes - in Rowe's words, "It could be that he told me.
... It could be that I asked him." In this posture of the
record and comparing testimonial demeanor, I credit
Rhymes that it was Rowe who elicited the described
matters from Rhymes.
Regarding his conversation with Chakmack, while
agreeing it was substantially as described by Chakmack,
Rowe swore he was certain that it was Chakmack who
initiated the conversation and brought up the subject of
the Union. (It will be recalled that Chakmack testified he
was unable to recall who started that conversation.)
On this aspect of the case, i.e., "interrogation," I find
that General Counsel has failed to sustain the burden of
proof and persuasion which is his, of establishing by a fair
preponderance. of the substantial credible evidence that the
described conversations between Rowe and Goodyear and
between Rowe and Chakmack were coercive or otherwise
in violation of Section 8(a)(1) of the Act as alleged. As to
Goodyear, the conversation of January 13 occurred within
the framework of a social visit between persons who-had
exchanged such visits previously, and conversation no
more than naturally veered to conditions, at the plant
during Goodyear's absence. It will be recalled that when
the subject of the union came up, according to Goodyear's
own testimony, "I [Goodyear] told him [Rowe] to go
ahead, that I didn't mind talking to him about the union."
The ensuing discussion, even according to Goodyear, was
primarily if not almost exclusively concerned with
attempting to ascertain existing grievances or
dissatisfactions which could be repaired. There is no
suggestion that the union membership or views of any of
Goodyear's fellow employees was solicited or supplied. In
the overall context of the prevailing situation, in my
opinion the described conversation between Goodyear and
Rowe on January 13 may not fairly be regarded to have
been coercive or otherwise violative of the Act. Nor in my
estimation does the casual telephone remark by Rowe to
Goodyear on February 16, after inquiring about his
health, that he had heard Goodyear was going to be an
observer at the election that day, rise to the level of
coercive interrogation or other violation of the Act. Cf.
Mel Croan Motors, Inc. v. N.L.R.B., 395 F.2d 154,
(C.A.5); N.L.R.B. v. Arkansas Grain Corporation, 392
F.2d 161, 165-166 (C.A.8); N.L.R.B. v. O.A. Fuller Super
Markets, Inc., 374 F.2d 197, 203 (C.A.5).
"Rowe also testified that Goodyear further stated that "he didn't know
anything about the Union , the way the thing was originated He said just a
handful of the men, is the way he put it." Rowe was professedly unable to
recall how or by whom this subject was brought up , while indicating "I
[Rowe] wouldn 't say he [Goodyear] volunteered" it.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insofar as the Chakmack incident is concerned,
Chakmack was unable to recall who started the described
conversation, while Rowe was positive it was Chakmack
who' initiated it and who brought up the subject of the
union . Considering the concededly friendly relationship
between the two (as Chakmack himself testified, "Mr.
Rowe and I are very good friends") and the nature of the
conversation as recounted by Chakmack, it seems evident
that the discussion was no more than an innocuous
exchange of predictions as to the election outcome. There
was no attempted elicitation of names or so much as a
suggestion of identification of Union members or
sympathizers. I therefore also am unable to regard the
conversation between Chakmack and Rowe as coercive or
otherwise violative of the Act. Cf. Mel Croan Motors and
other cases cited supra in connection with Goodyear.
The conversations between Rowe and Rhymes,
however, appear to be on a different footing. Crediting
Rhymes (as has been indicated), it is clear that this was
not just casual discussion but deliberate interrogation.
Rhymes was approached at his workplace by Rowe, who
explicitly questioned him on two separate occasions about
Union matters, including the identity of the employee who
had solicited Rhymes to join the Union. Rowe's
concession that his discussion with Rhymes "probably
did" occur as testified by Rhymes largely removes the
issue from the area of credibility choice. In view of this
concession, as well as my definite impression that Rhymes
was testifying truthfully while Rowe awkwardly attempted
to hedge until finally admitting that "It could be that I
[Rowe] asked him [Rhymes]," I find that Rowe did in
fact interrogate Rhymes on two occasions, in or about
late January - early February 1968, as to his and other
employees' Union membership, activities, and desires, in
violation of Section 8(a)(l) of the Act.
2. February: surveillance
On the evening of February 14, various employees of
Respondent attended a union meeting at Carpenters Hall
on Gloucester Street in Brunswick, Georgia. Those who
attended that meeting were kept under surveillance by
Respondent's Machine Shop Superintendent Rowe, who
utilized binoculars for that purpose as he sat in a car
parked nearby. Rowe was observed doing this by several
employees, as well as by Union Representative DeLoach.
At the hearing, Rowe admitted he did this and
Respondent conceded Rowe's presence there "observing
who was going in and out of the union hall." Rowe
conceded that he reported his actions to Respondent's
President Tresher the following morning.
In defense to what thus appears to have been a clear
violation of Section 8(a)(1) of the Act, Respondent
contends that it cannot be held responsible for Rowe's
action, which it claims was unauthorized. However,
Respondent offered ao credible proof of Rowe's lack of
authority, and Respondent's President Tresher, to whom
Rowe concededly reported the results of his surveillance,
unaccountedly did not even testify. To the employees thus
being watched, Rowe stood for their employer. The effect
of Rowe's extraneous presence at the place and time in
question, crudely spying on employees through binoculars,
cannot be dismissed as noncoercive by indulging in the
farfetched assumption that the employees thought Rowe
was merely satisfying his personal curiosity rather than
executing a business mission on behalf of the company.
And even if it be supppsed that Rowe was prompted by
excess of zeal, it was his employer, the Respondent, in
whose interest that zeal was exercised , so that Rowe's
activity may hardly be considered as frolicsome. It is
ancient learning that "servants represent the master
himself, and their acts stand on the same footing as his
own."" The fact that Rowe ' s spying was business rather
than a purely personal venture is attested by Rowe's
reconnaissance report to Tresher the following morning,
which Tresher at no time disavowed or from which he at
no time took any step to disassociate Respondent. The
coercive impact upon employees , attending a lawful
organizational meeting 2 days before a Board -conducted
election , of a highly placed supervisor of their employer
spying upon them through binoculars from an observation
post , cannot be gainsaid nor need it be minimized.
Respondent further'contends , in urging that this as well
as all other allegations of violation of Section 8(a)(l) be
dismissed , that there was an express waiver of further
proceedings involving these matters by a stipulation
entered into between the Union and Respondent , approved
by the Regional Director, to set aside the election of
February 16 (because of Respondent ' s described conduct)
and to rerun the election.
It is true that the Board ' s Tenth Regional Director's
March 6 Supplemental Decision , Order and Direction of
Second Election recites (p. 2) that "On March 5, 1968,
the parties executed a stipulation , a copy of which is
attached hereto , wherein they waived a hearing on the
[Union ' s] objections [to the February 16 election] and
further Board proceedings in connection therewith, and
agreed to the conduct of a second election " (emphasis
supplied ). Although the expression "therewith" appears to
refer to "the objections ," it is unnecessary to take so
possibly narrow a view since reference to the March 5
stipulation itself discloses no such waiver . That stipulation
(G.C. Exh. 4) merely calls for setting aside the first
election and for holding a second election , and expressly
waives a hearing on the Union ' s objections to the first
election or the right to request review of the Regional
Director ' s Supplemental Decision , Order and Direction of
Second Election . Contrary to Respondent ' s contention,
the stipulation contains no waiver on the part of the
Board or on the part of the Charging Party herein of any
"further Board proceedings in connection therewith"
(Resp . br., p. 20), including the instant proceedings. It
would therefore merely appear that the aforequoted
underscored portion of the Regional Director ' s for Region
10 March 6 document was an inaccurate or imprecise
description of the stipulation . Respondent has made no
claim in the instant proceeding that it had any
understanding on this subject with the Regional Director
or any representative of the Regional Director apart from
or in addition to the March 5 written stipulation. I
therefore reject this contention and hold that the 8(a)(1)
allegations at issue here were not waived and are not
barred by reason of the stipulation setting aside the
February 16 election or for any other demonstrated
reason.
It is accordingly found that , as alleged in the
complaint, on February 14, 1968 , Respondent , through its
Machine Shop Superintendent and representative Rowe,
in and about the vicinity of Gloucester Street , Brunswick,
Georgia, spied upon and kept under surveillance a union
meeting of its employees.
" Littledale , J., it, Laugher v. Pointer , 5 B. & C. 547, 553.
KUT-KWICK CORP. 639
3. February: economic threats
General Counsel has alleged that on or about February
15 Rowe threatened that employees would not be
considered for reemployment because of their union
affiliation , activities , and sentiments ; and that on or about
February 16 Tresher threatened employees with economic
reprisals for union activity.
a. Rowe
Respondent's machinist Smith was one of a number of
employees included in a December 22, 1967 layoff which
is to be discussed. When Smith visited the plant on the
following February 14 (2 days before the Union election)
and inquired of Rowe about getting his job back, Rowe,
after privately consulting with Tresher, told Smith that
"Mr. Tresher said for me [Smith] to come back the next
day. That his attorney would be in town and he would let
me know the next morning whether he'd hire me back or
not." Returning the following morning (i.e., the day
before the election), Rowe allegedly told Smith that "Mr.
Tresher said he couldn't even talk about hiring me
[Smith] back until this union mess was over so he
said that he would consider talking to me about it then
:112
b. Tresher
Respondent's assembly shop employee Thomas, who is
still in its employ, testified that about an hour before the
election on February 16 "Mr. Tresher came by the paint
room and he stopped by me and he said , he told me, you
better think twice before you vote because you can't hurt
me, you can only hurt yourself, and he [Tresher] walks
off."
V. ;tile General Counsel urges that each of the foregoing
statements constituted a coercive threat in violation of
Section 8(a) (1) of the Act, Respondent contends that
neither was . I am in agreement with Respondent's view
and am further of the opinion that Tresher's statement to
Thomas was well within the protected confines of Section
8(c) of the Act." Accordingly, I find that under the
circumstances shown neither of the indicated statements
comprised an economic or retailiatory threat tied to union
adherence or activity.
C. Section 8(aX3)
1. December 1967 layoff
Before any of the foregoing alleged violations of
Section 8 (a)(1), Respondent on December 22, 1967, in
accordance with its usual custom , closed its plant for a
week at year-end. At that time it laid off 6 machine shop"
and 6 assembly shop ," or a total of 12, employees , paying
them for the remainder of that year or until January 5,
1968.16
It is General Counsel 's contention that these employees
were discharged , by Respondent on December 22, 1967,
and have not since then been reinstated or rehired for
discriminatory reasons in violation of Section 8(a)(3) and
(1) of the Act; namely , because of their Union affiliation
and activity . Disputing this, Respondent claims that its
December 22 action was an economic layoff consistent
with previous year-end layoff patterns , , and more
particularly because of the substantial completion and
phasing out of certain extraordinary Government orders
received during the preceding year ; that its selections for
layoff were unconnected with union adherence ; and that
four of the laid-off employees " - all union members -
were subsequently reemployed in accordance with usual or
characteristic variations in its business cycle.
The factual data presented from books and records
maintained in the regular course of Respondent 's business
operations - as distinguished from imprecise, vague,
amorphous , equivocal, or otherwise unsatisfactory
testimonial recollections , impressions , or generalizations
of witnesses on both sides, have been collated and are set
forth in Figures 1-7 which follow.
Fig. 1: Respondent's Comparative Sales, by Month, 1963 -- April 196818
Diff., 1968 Cumulative Diff.,
Month 1963 1964 1965 1966 1967 1968 from 1967 1968 from 1967
Jan. $ 23,475 $ 25,872 $ 68,357 $ 19,369 $ 33,921 $ 46,534 $ +12,613 $ +12,613
Feb. 36,986 64,768 47,288 39,542 57,594 47,052 -10,542 + 2,071
Mar. 65,599 66,345 105,668 78,920 89,059 71,254 -17,805 -15,734
Apr. 80,226 82,696 85,136 .76,517 101,279 $1,297 -19,982 -35,716
May 81,326 108,632 99,640 94,477 76,448
Jun. 58,756 68,578 104,822 93,433 105,404
"Respondent's unchallenged records establish that ( I) there was no hire
for machine or assembly work in its plant between the December 22 layoff
and after the February 16 election, (2) employees rehired subsequent to the
Febru try 16 election included Union members, even though Smith
(discussed infra) was not among them
'Tresher 's at worst ambiguous remark cannot be regarded s necessarily
being more than an expression of his opinion that joining the union would
not be beneficial to Thomas. This is far from being a threat
"I e. B j. Cope, Jones, Mccormick, Smith, Sweat, and West
" 1 e. J M Braddock J L. Williams, Perkins, Edmono, H H Blue
and Manning
"Smith's termination notice indicates he was paid through January 5,
1968
9 e., machinists B. J Cope and Welt, and assemblers H. H. Blue and
Manning
"I e , to month preceding hearing . Amounts include governmental and
nongovernmental sales, less returns , discounts and allowanceil.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diff. 1968 Cumulative Diff.
Month 1963 1964 '1965 1966 1967 1968 from 1967 1968 from 1967
Jul. 70,749 61,169 61,354 58,887 97,625 - - - - - - - - -
Aug. 41,409 47,005 65,317 63,248 115,315 - - - - - - - - -
Sept 33,281 78,157 103,103 42,654 101,046 - - - - - - - - -
Oct 29,831 73,147 61,368 39,773 70,689 - - - - - - - - -
No\ 19,974 20,526 85,995 26,183 82,206 - - - - - - - - -
Dcc 12,795 14,789 51,320 30,109 44,741 - - - - - - - - -
TOTAL $554,407 $711,684 $939,368 $663,112 $975.327
1967
Date Amount20
.Ian 5 $ 2,282
Jan. 5 30,975
Apr. 25 as 194,600
increased
Jun. 29
May 17 as 48,168
Increased
Jun. 29
Jun. 9 800
Jun. 30 1,911
Jul. 25 1,693
Jul. 26 2,367
Aug. / 3,965
Aug. 7 3,138
Sep. 22 4,158
Oct. 17 3,760
Oct. 25 3,938
Nov. 15 2,107
Nov. 28 8,602
Dec. 14 33,621
Total $346,085
Fig. 2: Respondent 's Orders from U.S. Govt.,191967
1967
Feb.
Month(s) Order Filled21
Mar. ($16,584);
Apr. ($14,391)
Jul. ($39,269);
Aug. ($39,330);
Sep. ($35,966);
Oct. ($40,021);
Nov. ($19,836);
Dec. ($20,178)
Jun. ($7,972);
Sep. ($16,279);
Nov.
Jun.
Aug.
Aug.
Aug.
Aug.
Aug.
Oct.
Nov.
Dec.
Dec.
($23,917)
Jan., 1968
Feb., 1968 ($11,258);
Mar., 1968 ($15,424);
Apr., 1968 ($ 6,939)
$346,085
Remarks
Covers 550 mowers, increased
to 670; required completion
dates , Dec. 21 and/or 31.
Covers 23 Model J902 36" mowers;
approx. 4-5 days' assembly work.
Covers 42 Model 8-1200 60" mowers;
approx. 8 days' assembly work,
required completion date, Apr. 20, 1968.
" I.e., Defense Supply Agency.
"Cents omitted from amounts
111967 unless otherwise specified
KUT-KWICK CORP. 641
Fig. 3: Respondent's Comparative Net Sales, Nongovernmental vs. Governmental, 1965-Jan 196822
Jan.,
1965 1966 1967 196823
Sales to Regular Dealers $576,271 $640,560 $668,471 $37,940
Sales to U.S. Govt. 370,295 24,952 304,405 8,600
Total $946,566 $665,512 $972,876 $46,540
Fig. 4: Respondent 's Comparative Inventories ,24 1965 -196725
1965 1966 1967
Finished Products and Work in Process $182,034 $200,122 $172,304
Engines and Engine Parts , Machine Parts, Raw
Materials , and Supplies
81,490 89 ,301 111,279
Total $263,524 $289,423 $283,583
Fig. 5 : Respondent 's Comparative Employment Levels, 1965-196826
Week Ending Total Machine Shop27 Total Assembly Snop28 Total Office
Jan. 7,1965 18 16 7
Jan.6,1966 23 17 7
Jan. 5,1967 15 17 9
Jan.4,1968 16 15 9
Jan.21,1965 18 16 7
Jan.20,1966 23 16 7
Jan.19,1967 15 18 9
Jan.18,1968 16 15 9
Feb.4, 1965 17 17 7
Feb.3,1966 20 16 7
Feb.2,1967 15 17 9
Feb. 1, 1968 16 15 9
Feb.18,1965 17 18 7
Feb.17,1966 19 16 7
Feb.16,1967 15 17 9
Feb.16,1968 16 15 10
Mar.4, 1965 17 19 7
Mar. 3, 1966 18 16 7
Mar.2, 1967 15 17 9
Feb.29,1968 17 17 10
Mar. 18 , 1965 17 20 7
Mar. 17, 1966 18 17 8
Mar. 16 , 1967 16 18 9
Mar. 14, 1968 17 17 10
"Apparent discrepancies (none seemingly of major importance) may be
discovered among the charts here presented . The charts are based upon
data furnished by Respondent in the record and allegedly taken from its
books of account. General Counsel has neither offered nor attempted to
controvert the enumerated data , although Respondent 's books and records
were available at as well as before the hearing for his scrutiny and analysis
It is not considered to be the Trial Examiner 's function sua sponte to call
for or undertake a discovery or accounting-type proceeding.
"Amounts are rounded off,. Although it was testified by Respondent's
Secretary-Treasurer Burke that Government orders in 1 %8 fell off sharply
through the end of April, he indicated that some additional such orders
were received subsequent thereto . However , the extent of these was neither
demonstrated nor explored by General Counsel. As of the time of the
hearing (June 27, 1968), according to Respondent' s Secretary-Treasurer
Burke , including the two Government contracts carried over from 1967
Respondent had only "half [of the amount of Government contracts] what
we had the previous year [ 1967) at that same time "
"At cost, below market.
"Source : Corporate balance sheets prepared by accountants Haskins &
Sells
" 1968 only to date of hearing herein.
"Includes (at least 1967- 1968) Supervisors Dean and Rowe, not
members of proposed bargaining unit.
"Includes (at least 1967-1968) Supervisor Harris, not a member of
proposed bargaining unit
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Week ending Total Machine Shop Total Assembly Shop Total Office
Apr. I. 1965 20 21 7
Mar.31, 1966 18 17 8
Mar.30. 1967 15 17 9
Mar. 28. 1968 17 18 10
Apr. 15, 1965 20 21 7
Apr. 14, 1966 20 18 8
Apr. 13. 1967 16 18 9
Apr. I I, 1968 19 17 I0
Apr.29. 1965 20 21 7
Apr. 28, 1966 20 19 8
Apr. 27, 1967 18 18 9
Apr. 25, 1968 20 17 10
May 13, 1965 20 21 7
May 12,1966 18 19 8
May 11, 1967 18 18 9
May 9. 1968 20 18 10
May 2 J, 1965 20 24 7
May 26, 1966 17 19 9
May 25, 1967 19 18 9
MaN 23, 1968 19 21 10
Jun. 10, 1965 23 23 9
Jun. 9, 1966 19 15 9
Jun.8, 1967 19 18 9
Jun. 6,1968 19 20 10
Jun. 24,1965 23 23 9
Jun. 23,1966 19 18 10
lun.22,1967 19 20 10
Jun. 20,1968 19 22 10
Jul. 8,1965 23 23 10
Jul. 7, 1966 20 18 11
Jul.6 1967 20 20 10
Jul. 22,1965 22 23 10
Jul. 21,1966 19 18 11
Jul. 20,1967 20 21 9
Aug. 5,1965 21 24 10
Aug. 4,1966 17 17 11
Aug. 3,1967 24 24 9
Aug. 19,1965 23 24 10
Aug. 18,1966 17 16 11
Aug. 17,1967 24 23 8
Sep. 2,1965 23 25 10
Sep. 1,1966 16 17 10
Aug. 31,1967 25 23 8
Sep. 16, 1965 23 25 10
Sep. 15,1966 16 17 10
Sep. 14,1967 22 25 8
Sep. 30,1965 23 25 8
Sep.29,1966 16 17 9
Sep.28,1967 21 25 8
Oct. 14, 1965 22 23 8
Oct. 13,1966 16 17 9
Oct. 12,1967 24 26 9
Oct. 28, 1965 22 22 7
Oct. 27,1966 16 17 9
Oct. 26,1967 23 24 9
Nov. 11 1965 22 22 7,
Nov. 10 1966 16 17 9,
Nov. 9,1967 22 23 8
KUT-KWICK CORP. 643
Week Ending Total Machine Shop Total Assembly Shop Total Office
Nov. 25, 1965 22 22 7
Nov. 24, 1966 15 17 9
Nov. 23, 1967 21 24 10
Dec. 9, 1965 22 18 7
Dec. 8, 1966 15 17 9
Dec. 7, 1967 23 23 10
Dec. 23, 1965 22 17 10
Dec. 22, 1966 15 17 9
Dec. 21. 1967 22 22 10
Fig. 6: Dates of Continuous Employment of Respondent's Unit Emplovees29 as of December 22,1967
Laid off on Rehired Sub-
Machine Assembly Continuously Employed by 12 22 67? sequent to Union Card Signer
No.30 Name Shop? Shop? Respondent Since Date Yes No 12 22 67 Yes No
M-I Barfield x
M-2 Blue, W. M. X
M -3 Chakmack x
M4 Cope, G. W. x
M-5 Goodyear x
M-6 Ogden x
M-7 Rhymes x
M-8 Scarborough x
M-9 Smith x
M-10 Christian x
M-l1 Kemp x
M-12 Head x
M-13 Gerces x
M-14 Drake x
M-15 Langford x
M-16 Sweat x
Jan. 1. 1964 or prior x x
Jan. 1, 1964 or prior x x
Jan. 1, 1964 or prior x x
Jan. 1, 1964 or prior x
Jan. 1, 1964 or prior x
x
M-17 Jones x
M-18 Cope, B. J. x
M-l9 West x
M-20 McCormick x
A-1 Braddock, C. E.
A-2 Brown
A-3 Calhoun
A-4 Cobb
A-5 Fleming
A-6 Hardee
A-7 Joyner
A-8 Nixon
A-9 Williams, L.
A-10 Woods
A-11 Brantley
A-12 Johnson
A-13 Wilkes
A-14 Thomas
A-15 Braddock, J.
A-16 Williams, J. L.
A-17 Perkins
A-18 Edmond
A-19 Blue, H. H.
A-20 Manning
TOTALS: M: 20
A: 20
x
Jan. 1, 1964 or prior x x
Jan. 1, 1964 or prior x x
Jan. 1, 1964 or prior x x
Mar., 1964 x x
Feb., 1966 x x
Mar., 1966 x x
Apr., 1966 x x
Apr., 1966 x x
May, 1966 x x
Jun., 1966 x x
(Jun., 1966 ( 1 week);
(Jul., 1966 (4 weeks); x
(Jul., 1967
x
Jul., 1967 x x
Aug., 1967 x x x
Aug., 1967 x x x
Oct., 1967 x x
x Jan. 1, 1964 or prior x x
x Jan. 1, 1964 or prior x x
x Jan. 1, 1964 or prior x x
x Jan. 1, 1964 or prior x x
x Jan . 1, 1964 or prior x x
x Jan. 1, 1964 or prior x x
x Jan . 1, 1964 or prior x x
x Jan . 1, 1964 or prior x x
x Jan . 1, 1964 or prior x x
x Jan . 1, 1964 or prior x x
x Apr.
y, ,
1964 x
x Ma 1965 x
x Jun., 1965 x
x (Jun.-Nov., 1965; x
(Mar., 1966
x (7 months, 1965;
(4 months, 1966; x
(Mar., 1967
x
x
x
x
x
x Jun., 1967 x x
x Jul., 1967 x x
x Jul., 1967 x x
x Aug., 1967 x x x
x Aug., 1967 x x x
M: 6 M: 14 M: 2
A: 6 A: 14 A: 2
M: 14-11 M: 6
A: 10 A: 10
"Machine shop and assembly shop only (i.e., 5 plant clericals not included ), "l e, for numeration purposes only. Machine shop; A: assembly shop
excluding supervisors . " l plant clerical (Capps ) was a Union card signer.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fig. 7: Respondent 's Hires After December 22, 196732
Date Started Hire Status
Name Job or Dept . Work ( 1968)33 New Rehire or Reinst Remarks
Henslee Sales Feb. 12 x
Bisdorf Shipping (Clerk) Feb. 19 x Quit Feb. 29
Tippins Shipping Feb. 21 x Quit Apr. 26
Cope, B. J. Machine Feb. 26 x Quit Mar. 21
Johnson , J. P. Shipping (Clerk) Mar. 4 x Quit Mar. 28
West, J. Machine Mar. 4 x
Roberson Machine Mar. 4 x
Googe Machine Mar. 4 x
Murray Machine Mar. 4 x Quit May 9
Patterson Assembly Mar. 25 x
(Painter)
Ray Machine Apr. 2 x Quit Apr. 11
Thomas Assembly Apr. 15 x
(Cleaner)
12/22/67-4/ 15/68 Total Hires ........ . .. . ....... ................................. 1234
12/ 22/67-4/ 15/68 Net Total Hires (i.e., hires less quits) ................................. 634
12/ 22/ 67-4/ 15/68 Net Total Hires (i.e., hires less quits) of
Machinists and Assemblers ........................................ 5
Salient facts which may be gleaned from the objective
data established by or flowing from these charts are:
(I) Respondent ' s business is characterized by a decline
toward the end of the calendar year, with a consistent low
in December-January;75 (2) Respondent's 1968 business to
the date of hearing was substantially below that in 1967;
(3) Respondent enjoyed extremely substantial orders from
the Government in 1967," which were (a) practically
completed by the end of 1967" and (b) not in any sense
comparably forthcoming in 1968 to the date of hearing;"
(4) notwithstanding vastly reduced Government orders at
the beginning of 1968, Resoonaeut had on hand
substantial inventories comoarabie re. Those of prior years."
(5) Respondent 'b employment levels in December 1967,
both in its machine shop and in its assembly shop, were
aribstantially proportionately higher in 1967 than in 1966
(20-25 percent);" (6) except for machinist Smith (to be
discussed below), the other 5 machinists laid off on
December 22, 1967, and all 6 assemblers laid off on that
day, were lowest in seniority of all employees in the
respective shops, and practically all had been hired during
"Through April 15, 1968.
"Not date of hire.
"Includes I employee in sales
'Respondent 's Secretary-Treasurer and General Manager Burke, in
Respondent 's employ for 22 years , testified that Respondent 's sales are
"very highly seasonal," peaking in late spring-early summer, and by
December "practically nil " General Counsel witness Goodyear , discharge(
by Respondent under circumstances detailed below , agreed that during his
9 years of employment with Respondent the business has been a "seasonal
business" with "high employment in the summertime and low in the
wintertime to a certain extent," with seasonal layoffs in the
wintertime
"In view of these , Respondent 's Machine Shop Superintendent Rowe
(according to his testimony) "had hired five new men [for the machine
shop alone] to work on the Government contract in the summer .
Tommy Sweat, Tommy Jones, Benny Cope, Jackie West and James R.
McCormick ," cautioning them when hired "that this is more or less
temporary.... I told them that whenever we get a lot of sales and orders
we need people, so we hire people . But then we 're a manufacturing
concern , and whenever our sales drop , our employment drops. . . I told
them that it would be temporary , it would only be, you know , maybe a
month or two's work ." Rowe 's foregoing testimony was corroborated by
employee West.
"According to Respondent 's long-time executive and office manager
Burke, who is in charge of its books and records , with a workforce of 15
men the assembly shop should turn out a minimum of 5 mowers per day
regardless of model or size. Since at the end of December , 1967 the 2
incompleted Government orders on hand comprised a total of only 61
mowers, there were thus on hand at that time Government orders requiring
only 13- 15 days of assembly work for 15 men . (There was, of course, also
on hand some nongovernmental work to be done.)
"According to Respondent 's Secretary-Treasurer Burke , commencing
July 1, i961 ( U.S Government i'iscal Year 1968) there was an economy
retrenchment in Governmental spending , resulting in a marked reduction in
Governmental lawnmower orders. As of December -end (1967), "there was
nothing in the foreseeable future , we had these two small ones [i e ,
Government contracts ] which appeared to be the end of the line as far as
Government buying was concerned, and that was our thinking at the time
this was our best judgment .... As we go down here on our Government
contracts going out they 're all completed but two at the end of the year
[19671. As a matter of fact, December 12th [1967] was when the [1967
Governmental contract ] work was completed . There was nothing coming
out of Columbus (Governmental order procurement installation],
invitations to bid , or elsewhere And having but two [Government.
contracts ] here and it looked here . that business may not be bad but it
won't be anything like the previous year ." Burke consequently prophesied
"a downhill trend in .... orders or sales ," which turned out to be cu, rect.
"Respondent manufactures some, but not all , parts for its mowers It makei
no motors or motor parts , and additionally purchases some other parts
Parts and subassemblies, but not completed mowers, are carried in inventory
or against orders in process . According to Respondent 's Secretary-Treasurer
Burke , the machine shop maintains a lead time , of I to 2 years in advance of
the assembly shop in inventories of parts for anticipated or predicted orders,
there is, however , no relationship between the number of assembly shop and
machine shop employees . According to Burke , at 1967 year-end,
Respondent 's inventories, although about 10 per cent lower than at 1966
year-end, remained high even without comparable prospects for
Government orders in 1968.
"See In . 36, supra General Counsel witness Goodyear conceded that during
his 9 years with Respondent, seasonal layoffs have normally taken place
approximately "from September to .... November ," with the workforce
at its lowest ebb by the beginning of December , and that , unlike previous
years , in 1967 Company employment was at a "high" point at the beginning
of December , the usual seasonal layoffs not yet having occurred by then in
1967
KUT-KWICK CORP. 645
the preceding summer peak 1967 production period at the
height of the Government orders; (7) although the 6
machinists laid off on December 22, 1967, were all union
card signers , out of a total of 20 machinists there were an
additional 8 who also signed union cards but were not laid
off; (8 ) although the 6 assemblers laid off on December
22, 1967, were union card signers , out of a total of 20
assemblers there were an additional 5 who also signed
union cards but were not laid off;" (9) of 4 laid-off
employees rehired subsequent to December 22,42 all were
union card signers ; ( 10) as of mid-April, 1968, the net
total of all machinist and assembly hires, including
rehires. was only 5.
As has already been pointed out, it is further to be
observed that despite the foregoing showing , General
Counsel - who of course carries the burden of proof here
- failed to make a countervailing showing through an
analysis of Respondent 's records or otherwise,
notwithstanding opportunity at the hearing (as well as by
prehearing preparation ) to do so.
We have been reminded that a discriminatory
motivation for employee discharge " is not lightly to be
inferred ."" An employer is, of course , not in violation of
the Act if for economic reasons - regardless of the
accuracy of his business prognostications - he lays off, or
even out-of-hand discharges , employees , so long as his real
reason is not antiorganizational or otherwise contrary to
the Act's mandate .44 Nor does union membership or
activity insulate against layoff or discharge for any reason
nonviolative of the Act.45
Under the indicated circumstances , to conclude in the,
face of the foregoing showing that the December 22, 1967,
layoff was other than economically motivated would be
speculative and not firmly pinioned on the substantial
credible evidentiary proof which the Administrative
Procedure Act46 requires.
It is accordingly found that General Counsel has failed
to sustain his burden of proof and persuasion by
substantial credible evidence to establish that
Respondent 's described layoff of 12 employees on
December 22, 1967, was for union affiliation or activity as
alleged.
Smith
Although Smith is encompassed in the foregoing
finding, the fact that he was senior to some other
machinists (all union card signers ) not included in the
December 22 layoff merits separate comment.
To begin with , although Smith was a union card signer,
no less than eight other machinist union card signers were
not laid off. Concerning Smith, Machine Shop
Superintendent Rowe testified , in essence, that he was
included in the December 22 layoff because of a
combination of circumstances and reasons - some more
or less conceded by Smith - which cannot be rejected as
contrary to fact or stamped as devoid of plausibility.
Smith first entered Respondent 's employ in 1964.
Around the latter part of July, 1967, he returned to work
following an absence of over a month for a herniorrhaphy.
"General Counsel witness Thomas testified that although he actively
solicited on behalf of the Union , he was not laid off Likewise, for auumono,
example , Christian was not included in the December 22 layoff , although
by his own account he was a leader, if not the initiator , of the 1967
unionization movement
°1 e., machinists B. J Cope and West, and assemblers H. H. Blue and
Manning Accoraing to testimony of General Counsel witness Thomas,
who was not among those laid off on December 22, there was no overtime
worked at the plant in the interim between then and the rehirings around
the end of February or early March.
Before Smith returned , George Cope had been assigned to
operation of the screw machine , which Smith had
previously operated and was physically unable upon his
return to manage . Since work was required on the
automatic chucker ("AC"), Smith was assigned to learn
to operate that device at night , on second shift overtime,
with West (who had recently been hired and was "doing
various other jobs, running drill press and what have
you") to do any heavy lifting . After Smith had been back
only about a week , however , he threatended "to quit"
unless given more money . (According to Smith's own
testimony, in early September he told Rowe that if he was
not granted a raise or overtime he would look for another
job and to "consider this .... as my week 's notice, that I
would be leaving .") After taking the matter up with
Tresher, Rowe entered into an arrangement permitting
Smith to supplement his pay by doing "extra work,"
which , according to Rowe, Smith abandoned before
completion . Apparently a difference of viewpoint arose
between Smith and Respondent concerning the nature of
the added compensation Smith was to receive for this
work . (It appears that the matter was eventually resolved
by the Wages and Hours Division of the Department of
Labor after Smith 's employment ended .) The night shift,
on which Smith had been working since his return to the
factory at the end of July, was discontinued' around the
beginning of December . At that time , Smith (as well as
West) was placed on the day shift , but Rowe "didn't have
any other machine to put him [Smith ] on. I [Rowe]
wouldn 't put him back on the screw machine because
George Cope , he'd been over there for about four months
then , and George was doing a good job, in fact , he did a
better job than Jerry [Smith] did.... George Cope is still
on this screw machine ." So far as Smith was concerned,
,.we used him [Smith ] all around various places after that,
on drill presses and stuff like that . And so that 's really all,
I was just making work then ." Smith conceded at the
hearing that when he was returned to the day shift in
December shortly prior to the December 22 layoff, he
"just done whatever Pete [Rowe] had for me to do .... I
run a drill press all that [final ] week . . . ." Smith's pay
rate was $2 . 35 as against Respondent 's standard pay rate
of $1.70 for drillpress operators . Rowe had also had
problems with Smith ' s coming to work late , although
Smith was by no means unique in that respect nor does it
seem that that alone would have resulted in his layoff.
Respondent's employee Scarborough testified that a few
days before the Union election Smith threatened to "beat
hell out of [you ]." Although this episode was subsequent
to his layoff and was, to be sure , disputed by Smith,
nevertheless by his own admission Smith has been
"N L R.B v McGahey, 233 F 2d 406 , 413 (C A. 5),
"N L R.B. v. Great Dane Trailers , 388 U.S. 26, 32- 35; American Ship
Building Company v. N. L. R. B., 380 U .S. 300, 311; N.L R. B. v. Waterman
S.S. Corp., 309 U.S. 206 , 218-219 ; Barnwell Garment Company, Inc. v
N L R.B.. 398 F .2d 777, 778-779 (C.A. 6); N.L.R.B. v. Redwing Carriers,
Inc, 284 F 2d 397 (C A. 5); N.L R B v. McGahey, 233 F 2d 406 (C.A 5);
Dieckbrader Express, Inc., 168 NLRB No. 113, Kayser-Roth Hosiery Co.,
Inc., 166 NLRB No. 56 ; Eldo-Craft Boat Co ., 166 NLRB No. 52;
Lindsey's, 156 NLRB 1114, 1115; Guyon Machinery Company, 155
NLRB 591. 592
" NLRB. v. Bangor Plastics. Inc, 392 F .2d 772, 777 (C.A 6),
N L.R.B. v. Ogle Protection Service , Inc., 375 F.2d 497, 505-507 (C A. 6),
cert . denied 389 U.S. 843 ; N L.R.B. v. Soft Water Laundry, Inc.. 346
F.2d 930, 934 (C.A. 5). "Clearly, a company may curtail its work force for
economic reasons, notwithstanding the plant employees' union
representation of organizing efforts ." Barnwell Garment Company, Inc , v
N.L.R.B. supra, In. 44 , at 778.
"5 U S.C . Sec. 556 (d). Cf. N. L.R.B v Billen Shoe Co., Inc., 397 F.2d
801 (C A I)
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in pnysical fights: - "Well, I[Smith]'ll tell you,
I'm not above one, if that 's what you're talking about. I
have been in fights during the time I worked at
Kut-Kwick and I showed a mark one time . I still show
it." Smith 's repeatedly expressed dissatisfaction with his
pay and his failure and refusal to complete the extra work
which he had wanted and had started , according to Rowe,
"all came into the decision that Jerry [Smith] be one of
them [to be included in the December 22 layoff]."
Although according to Goodyear it was Smith and
Christian who approached him in November 1967
regarding the possibility of unionizing , even if true this
circumstance alone would be insufficient to alter the
foregoing. For one thing, there is no showing that
Respondent was aware of this alleged fact. Moreover,
according to Goodyear the initial employees ' meeting with
the union representative was by no means limited to
Smith, Christian, and Goodyear, but included, among
others, Gerces and Langford, who were not included in
the December 22 layoff. Neither was Christian or
Goodyear.
With regard to rehire, reinstatement or recall, the
substantial credible evidence does not establish the
existence of any firm policy by Respondent with regard
thereto, nor, in any event, any discrimination touching
Smith in that regard. According to Smith's own
testimony, when, in the spring of 1968 he inquired about
returning and it appeared there were or might be openings
in punchpress work, "I [Smith] didn't volunteer to come
back and work in the punch press department for less that
what I was making when I left Kut-Kwick." The hourly
rate of pay for punchpress work ($1.70) was substantially
lower than the rate ($2.45 at flight and $2.35 at day)
which Smith had been receiving at the time of the layoff'
the previous December 22, prior to which he had been on
different jobs including operating the automatic chucker
("AC") on night shift after having operated the Cone
automatic screw machine for some years, as explained
above.
All circumstances considered, therefore, in my opinion
it cannot fairly be held that General Counsel has sustained
his burden of proof of establishing by a fair
preponderance of substantial credible evidence, as
distinguished from surmise and conjecture, that
Respondent 's selection of Smith for inclusion in the
December 22, 1967, layoff was for Union affiliation or
activity as alleged.
2. March and June 1968: Christian and Goodyear
It is alleged that, in further violation of Section 8(a)(3)
and (1) of the Act, Respondent in March (and, in the case
of Goodyear , again in June), 1968 discharged its
employees Christian and Goodyear because of their Union
membership and activities.
a. Christian
The circumstances surrounding the termination of
Christian's employment on March 8 are as follows.
Christian , a machinist , entered Respondent 's employ in
February 1966. Christian claims that it was he who,
together with Goodyear and Smith , started the
unionization movement in Respondent 's plant in
November 1967. Nevertheless, he was not included in the
December 22, 1967, layoff which has been described.
According to Christian' s own testimony , he resigned his
job on February 28, 1968 (Wednesday), stating to
Machine Shop Superintendent Rowe that he would be
leaving a week from that Friday (March 1), that is to say
on Friday, March 8." When, however, prospective other
employment thereafter -failed to materialize as expected,
he returned to Rowe 2 days later, on March I (Friday)
and "told him [Rowe] I [Christian] wanted to withdraw
my resignation because I hadn't found the job I was
looking fore . . . . And I would like to stay on. He told
me, he said , you can 't, we've made other arrangements.
He said they had three new men coming in on March 4th
[Monday]."09 According to Christian, on March 4
(Monday), in fact four new men actually reported for
work; and when, at the end of that week, on March 8
(Friday) he received his paycheck with the notation "final
wages" and told Rowe, "I hadn't quit. I told him I felt
that I had withdrawn my resignation in plenty of time,"
Rowe replied, "I'm sorry but this will be your last day.'
When he subsequently (around the end of March or
beginning of April) inquired of Rowe "if they were hiring
again , that I would like to have a job back," Rowe replied
that although they had hired the previous week , there were
no openings then . Christian said he would appreciate a
call in a case of a vacancy, but had not been called - nor
had he again inquired - as of the date of hearing."'Y'
Respondent 's Machine Shop Superintendent Rowe
testified that he hired a replacement for Christian (who
had told him on Wednesday, February 28, that he was
leaving on Friday, March 8) on Friday morning, March 1,
and that he told this to Christian when the latter informed
him about 2:30 in the afternoon (about an hour before
3:30 quitting time that Friday afternoon) that he was
going for a job interview that evening and that , since there
was another applicant for the job, "could he withdraw his
[Christian's] resignation if he didn't get the job. I [Rowe]
told him [Christian], I say, no Ray [Christian], I've
already made other arrangements. Now I had hired Jackie
West and Carl Googe and Benny Cope. . . . for Monday
morning [March 4]. And so Ray [Christian] didn't say
anything else to me, he went back to his machine." On
the following Friday, March 8, according to Rowe. when
he gave Christian his paycheck, Christian said, "Oh, t ve
been fired? And I [Rowel told him, I said, no. Ray, you
"Christian testified on direct examination that he quit because of his
dissatisfaction over a changed job assignment which , however, he
copcededly did not discuss with management.
'"In contrast to this testimony at the hearing , Christian had said in his
pretrial statement that on March 1 he asked Rowe whether he "could
.vork on until I [Christian] found out about [the other fob]" (emphasis
;applied).
"According to Christian , he then told Rowe that the resignation notice
which he had given him 2 days before (i.e., on Wednesday , February 281
was "supposed to start " on Friday , March 1 , and that he therefore "felt 1
had withdrawn it in plenty of time " Christian expressed no opinion as to
what time on March I his February 28 resignation was allegedly
"supposed to start ." As is shown below , by the time Christian told this to
Rowe on Friday , March 1 , Rowe had already hired a replacement
Moreover , there is nothing in Christian 's testimony to indicate that the
notice which he had given to Rowe on Wednesday , February 28, was
conditional or subject to withdrawal or modification; or that it was to be
held in escrow , so to speak , until March 1 , or otherwise not to take effect
before March 1 or before the the close of business of March I, as
zlistmguished from merely being calculated as a week from March 1
(Friday , the end of the workweek when the notice was given). According to
Christian , Rowe "told me he was sorry but they had done made other
arrangements.... he said he hired three new men."
"Christian testified that he never did anything about the notation "quit'
on his termination slip, and that he never applied for unemployment
insurance since when he "went down there .... it was crowded."
"Respondent 's records appear to indicate that the only hire after this
was a cleaner in the assembly shoo - hardly a iob for Christian.
KUT-KWICK CORP. 647
quit. I says I told you Friday before that we had already
made other arrangements . And he says well, says I must
be fired. And I said no, you've quit."
Respondent's corporate records corroborate Rowe's
testimony that West (who had been included in the
December 22 layoff) and several other machinists
commenced work for Respondent on Monday, March 4.
Under the circumstances , I credit Rowe's testimon-.' that
in view of Christian' s resignation on Wednesday, February
28, he hired machinist West as a replacement for
Christian on Friday morning , March l (before Christian
attempted, an hour before quitting time that Friday
afternoon, to withdraw his resignation ), to report for work
on Monday morning , March 4, which West did."
Whether Christian' s version or Rowe's slightly varying
version of the circumstances of Christian' s resignation and
its attempted withdrawal be credited, it is clear that
Christian was replaced at his job by West on March 1
before Christian sought to withdraw his resignation, and
that when Christian made the latter move there was no
longer a milling machine job open. In the absence of
discriminatory motivation, an employer is not obliged.
under the Act, to discharge a newly hired employee or -
with possible legal liability on the employer's part - to
rescind his hiring of such an employee to report for work
Monday morning, because a resigned employee attempts
on late Friday afternoon to change his mind about, or to
defer, his resignation. Cf. Sidles Company, 156 NLRB
457, 465, 466.
The case is thus unlike the situation presented in
N.L.R.B. v. Wigwam Mills, Inc., 351 F.2d 591 (C.A.7),
where discriminatorily discharged Union leader EngI had
not been replaced before she withdrew her resignation; her
employer's refusal to permit the withdrawal under the
circumstances there described being clearly
discriminatorily and coercively motivated. Here, Christian
was replaced before he attempted to withdraw his
resignation ; and it has not been demonstrated that he was
thereafter discriminatorily denied equivalent available
employment.
Under the circumstances , there is no warrant for
assuming that Christian's termination on March 8 in
accordance with his previous resignation was the result of
his union membership or activity as alleged. As has
already been pointed out, numerous others ( including, for
example, Thomas, who concededly actively solicited for
the Union) affiliated with the unionization attempt have
not been terminated, and of those who have some have
been rehired. Cf. N.L.R.B. v. Billen Shoe Co., Inc., 397
F.2d 801 (C.A.1).
I find that it has not been established by a fair
preponderance of substantial credible evidence that
Respondent discharged Christian on March 8, 1968,
because of union membership and activity as alleged.
b. Goodyear
Goodyear, a machinist, entered Respondent 's employ in
`=According to Rowe ' s testimony , at the time Christian attempted to
withdraw his resignation , that is on Friday afternoon . March I , there was
a punchpress ion open, which he tilled the following week when he hirea
Murray as a punchpress operator . However, Christian had been operating
the milling machine at a rate of $1.85 per hour , and Murray was hired for
punchpress operation ( with which Murray was unfamiliar and which
Christian had preformed only once ) at only $ 1.70 per hour . Apparently
Christian manifested no interest in such a job on March I or at any time
during the following week.
"The punchpress is used to make lawnmower shrouds , and the chucker
to make bearing cuts, on Respondent 's premises . Completed shrouds go to
assemblers for welding and assembly
March , 1959. Since then , except for a layoff from
September of that year until January , 1960, he workeu
steadily for Respondent until his termination in 1968
under circumstances to be described . During those 9 years
of employment , Goodyear operated Respondent 's punch
and drill presses , a sander , a gear hob , a milling machine,
and for some 3 years immediately prior to his termination
an automatic chucker ("AC")."
In early November 1967, at the behest of several
colleagues , Goodyear undertook the mission of organizing
Respondent 's employees for collective bargaining. Among
other things this involved his arranging for initial
organizational meetings with union representatives,
eventuating in the signing of Union cards by a majority of
the contemplated bargaining unit of production ana
maintenance employees (consisting primarily of machinists
and assemblers). The clear indications are that Goodyear
was the kingpin of the fall 1967 - Spring 1968
unionization effort at Respondent 's plant.
Goodyear was not included in Respondent 's described
December 22, 1967, layoff . During the weekend of
January 6-7, 1968 (he had worked a full 40 hours during
the preceding week ), Goodyear suffered bleeding from a
gastric ulcer and, after a brief hospitalization for that and
complicating conditions , he was advised by his physician
to remain away from work for awhile . Adopting this
advice , he filled out disability insurance applications
secured from Respondent and began receiving disability
insurance oavments.
As has been indicatea in another connection , during
convalescence Goodyear was visited at home by
Respondent's Machine Shop Superintendent Rowe. In the
course of the ensuing automobile ride on which he was
invited by Rowe , Goodyear mentioned having heard that
he had been taken off the "AC" (automatic chucker) jot
(which he had been handling for 3 years ). Denying this,
Rowe reassured Goodyear that another employee had
been assigned to that machine only temporarily during'
Goodyear ' s absence and so as to learn its operation in
case of future necessity should Goodyear become
incapacitated again. Goodyear made it clear , with Rowe's
demurrer , that he expected to be placed back on the
" AC" upon his return to the plant.
It has also been previousiy mentioned that about an
hour before the Union election on February 16, Rowe
telephoned Goodyear at home and indicated he had
learned that Goodyear was slated to serve as an election
observer on behalf of the Union , which Goodyear
confirmed . Goodyear thereafter did so , while still on sick
status away from work.
On March 4 Goodyear was still at home recuperating.
On that day, in consequence of a conversation between his
wife and Respondent 's office employee Mrs. Powell,
Goodyear telephoned Rowe at the plant and told him that
earlier that day "my [i.e., Goodyear's] wife had called for
my [disability or sickness benefit ] check and Mrs . Powell
had told my wife that my insurance was going to be
cancelled and I had quit .... That Mrs. Powell told that
she had orders to cancel my insurance , that I had quit
... What's going on '? ... they tell me my insurance is being
cancelled and I had quit . . . . He [Rowe] said, yes, that's
right. Mr. Tresher [ Respondent's president ] and the lawyer
decided you 'd quit because you'd had your tool box
removed . . . from the plant . . . I said, no, I hadn't quit,
Pete [Rowe ]. I had my tool box brought home because I
didn 't want it messed up and tore up. I'd paid too much
money for that box to have it destroyed .'4 . . . He [Rowe]
"Goodyear had purchased a new toolbox during the previous year. It
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, well , that's the way it is. You' ll have to call Mr.
Tresher and talk to him. So I said, O. K., well, I'll do it then
... He [Rowe] said he knew I hadn 't said anything to him
about quitting , and I said , that 's right , I'd be the first one
to tell you if I'd quit . And I told him I hadn 't quit and
wasn ' t going to quit."
On the following day, March 5, Goodyear inquired on
the phone if his insurance check had arrived, and
Respondent 's office clerk Mrs. Powell "said , yes, but Mr.
Tresher wants to see you." When Goodyear sent his wife
over for the check, she was told by Tresher that Goodyear
"would have to come personally to get that check." On
March 7 Goodyear retained local counsel to accompany
him to the plant office, where , when Tresher gave
Goodyear the check , Goodyear's counsel again
emphasized to Tresher that Goodyear had not quit, while
Tresher insisted that "he's quit all right . He don't have
any job at Kut-Kwick . . The attorney said that I
[Goodyear] hadn 't quit, I was merely out and under the
Doctor trying my best to get well enough to return to the
plant . He [Tresher ] said that I 'd quit all right,
because I had moved my tool box off the premises of
Kut-Kwick and didn 't tell nobody." Tresher offered no
basis other than the removal of Goodyear 's personal
toolbox to support his insistance that Goodyear had "quit
all right," and Tresher persisted in this contention despite
the consistent protestations by Goodyear and his counsel
to the contrary. That same evening (March 7), Goodyear
wrote Tresher:
Please be advised that I want you to definitely
understand that I have not resigned nor quit my
position with the company but have merely been waiting
for the doctor to release me to return to work. I saw
Doctor Inman today and he tells me that I am still
unable to work. As soon as he tells me I am able to
work I plan to report to you and hope to be able to do
this in the near future . The reason I had my toolbox
removed from the company premises was because the
doctor told me that I would probably be out for several
weeks and I was afraid some of my tools would get
lost, misplaced or stolen and these tools are very
valuable to me.
Goodyear received no response to this letter. However,
in the early part of April he received a "Separation
Notice" from Respondent dated April 1 and signed by
Tresher , stating that he had "quit " and that the last day
he had worked had been January 5, 1968 . At the time he
received this form, he was still under medical care and
unable to return to work. It was not until April 15 that
his physician indicated he could return to work, in a
medical certificate stating that Goodyear had been
"continuously totally disabled (Unable to work)" from
contained tools - including micrometers , caliper, and scales - which, as
well as the box, were Goodyear's personal property . Fearing for the safety
of this equipment because of his extended absence from the plant,
Goodyear had asked Christian to bring it home for him . As Christian was
leaving the plant with the box early in February , he explained to Rowe
that "I [Christian] was afraid it [the toolbox] would get tore up and his
[Goodyear 's) tools may be lost .... He [Rowe] told me that he thought it
was a good idea that I took it home to Mr . Goodyear.... [Rowe ] said he
would keep [ a key whicn Goodyear bad given to Rowe , to Goodyear's
toolbox ] until Mr . Goodyear came back." Goodyear was not the only
employee who took his personal toolbox home , although this was
apparently the first time he had done it. The toolbox key which Goodyear
had entrusted to Rowe (arid which Rowe concededly informed Tresher he
still had) has never been returned by Rowe , Tresher, or Respondent,
notwithstanding further contacts with Goodyear as described below and the
fact that Goodyear 's home is only a block and a half from Respondent's
plant
January 7 through April 15, 1968, by reason of a
combination of impairments including bleeding duodenal
ulcer , diabetes, etc.
Under these circumstances , on April 15 Goodyear went
to work as manager of an automobile gas or service
station , while at the same time endeavoring to be
permitted to resume his job with Respondent . On April 18
he phoned Rowe, informing him that he had been
medically released for return to work and inquiring if he
could resume his job with Respondent . Rowe replied that
"as far as I know, Billy [Goodyear], it still stands the way
that it was . I [Goodyear] said you mean I still have no
job, Pete? And he said , no, you quit. And I said, now
Pete, we've been through that one time already, I did not
quit , I'm not going to quit. I was merely under the Doctor
trying my best to get well and he let me go, I would
return to work . So I'm calling you in good faith and
asking you for my job back. And he said it still stood the
way that it was, that I had quit and had no job at
Kut-Kwick. So, he said , the best thing I know for you to
do is call Mr . Tresher and I said, well, I'll do so."
Goodyear thereupon immediately telephoned Tresher but
was told to call him later, which he did, indicating that he
had been referred to Tresher by Rowe and that " I'm [i.e.,
Goodyear] calling you and asking for my job back. And
he [Tresher ] said , well, you don 't have any job over here.
He said , you quit . Hollering at me on the phone. And I
said, no sir , Mr. Tresher , I hadn 't quit , you might be fired
me, but I was merely under the Doctor trying my best to
get well enough to return to work. Now I'm trying to get
you to give me my job back. And he said, no, I
[Goodyear] quit . . . . He said , you don't have any job over
here but maybe you and your friends can figure out
something for you. I said , Mr. Tresher, what do you mean
by me and my friends, I don 't understand you. I said, tell
me in plain English where I can understand you. And he
said , you know what I mean , you know what you've been
doing to me . I said , no sir , I don 't. So then .... he was
hollering at me on the phone ."" Thereafter, around April
21 or 22, Tresher visited Goodyear at the service station
where he was working and asked him if he wished to
retain his insurance coverage which he had through
Respondent . When Goodyear replied that he did , Tresher
told him he (Goodyear) would have to see the insurance
company agent.
On May 2, the Regional Director issued the complaint
herein containing an allegation as to Respondent's
discharge of Goodyear in violation of the Act (based upon
charge filed on March 15). On May 17, the Regional
Director issued a second complaint involving Respondent's
alleged violation of Section 8(a)(5) of the Act for failing
and refusing to bargain with the Union (based upon
charge filed on May 1).
Around the end of May, Respondent's assembly shop
foreman Harris visited Goodyear at home and asked him
if he wanted his job back . When Goodyear replied that he
did, Harris suggested that Goodyear inquire at this time
from Tresher since Harris had "been talking to him to see
if I couldn 't get him to give you your job back."
Accordingly, on the following day, around May 28 or 29,
Goodyear, this time accompanied by Union
Representative DeLoach, went to the plant and spoke with
Tresher . Although Tresher offered to take Goodyear back
at the same rate of pay, he declined to reinstate him to his
former job of "AC" operator , because "you've been sick
too much , I can 't depend on you," indicating that he
"Since Tresher unexplainedly failed to testify , these and other statements
credibly attributed to him by Goodyear stand undisputed
KUT-KWICK CORP. 649
apparently was satisfactory , the Company physician so
reporting.
When Goodyear reported to work on June 10
(Monday ), he was not placed back on the "AC" machine,
which he had been operating for 3 years prior to January."
Instead , he was assigned to a large turret lathe. which
he had no time operated during his 9 years of employment
in the plant . Although he tried his best to operate this
should be prepared to be shifted from job to job. When,
under these circumstances , Goodyear assented, he was
rehired , subject to a physical examination which
lathe on June 10, he experienced difficulty because of his
small size , light weight , and evidently inadequate
physique. Goodyear explained that "It takes a pretty good
size man to lock the collet on those [large turret lathe]
machines . . in order to lock those collets, it takes
weight. If you don't have it, then you have to struggle and
wrestle with the machine to work it." The collet holds the
metal being turned or cut. As described by Goodyear,
the large turret lathe to which he was assigned when
allowed to return to work on June 10 and which he had
never before operated has a handle perhaps 2 feet in
length at a height of 3 /-4 feet; through sheer
mechanical pushing force of the operator, the collet is
locked in place with a thrusting motion with one hand,
while the lathe is grasped with the other "if you're too
light so it don't kick it backwards, . . In^order to get that
collet to pass over locking position you've got to jump at
it to make it lock, if you don't have weight enough to
reach over and shove it over." Goodyear, wno is 34, is
5'S" in height and weighs about 113 pounds. For 3 years
continuously prior to January 1968 (when he was
hospitalized) Goodyear had been operating the automatic
chucker ("AC"), which requires no comparable exertion
and involved no difficulties arising from his size , shape,
physique, or muscularity.
By the end of the first day (June 10) of attempting to
operate the large turret lathe, Goodyear found his hands
"awful red and angry and swollen." He reported to Rowe
that his "hands are so sore I can 't hardly close them now
and my left hand is swollen from locking the collet. And
he [Rowe] said he couldn't help it." The following
morning he told Rowe that his hands were so sore and
swollen he could "hardly shut them" and "how am I
going to possibly run that machine today when I won't
hardly be able to lock the collets.... He said he couldn't
help it, and I asked him , I said , do you have anything else
I might could do until my hands got better. And he said,
not a thing." Goodyear then returned to the large turret
lathe and resumed operating it that day. The following
day (June 12) he again explained to Rowe his difficulties
with the machine, pointing out that his hands, were swollen
and worse than the day before. Rowe assigned him to the
small- turret lathe . (Small turret lathe operator Langford
was odt sick that day.)
In an apparent attempt to establish that it is possible
for small men (like Goodyear) to operate its large turret
lathe, Respondent produced its employees Drake and
Scarborough, who have operated that machine. Drake,
who is 3 '/z inches taller and about 10 pounds heavier
"When Goodyear returned to work on June 10, the "AC" - the only
one in Respondent 's plant - was being operated by West, who had been
hired about 3 months prior to the December 22 group layoff, had been laid
off on December 22, and then rehired on March 1 . In the interim between
Goodyear's original date of disability in early January and shortly before
West's rehire on March 1 , Christian had been assigned to the "AC."
(Christian had been operating the milling machine full-time . However,
according to Christian, that machine was in "very little" use from January
5 to February 20.)
than Goodyear, and is right-handed, explained that the
lever on the large turret lathe is thrown or pushed, from
left to right, by a right-handed person, with the left hand
while grasping something with the right hand to stabilize
himself; and that if the operator does not succeed in
executing the maneuver properly, so that the lever fails to
engage or lock the collet, it springs back at the operator
with "quite a little force." Asked by Respondent's counsel
whether (even with his height and weight advantage over
Goodyear) he had "ever experienced any difficulty in
operating the turret lathe due to your size," Drake
replied, on direct examination, "Yes, sir, sometimes I do.
It's quite a job to throw that lever over. . . . [that] locks
the collet, locks the stock. Sometimes it gets pretty rough
. being small like I am, I have to learn to do tricks to
throw it over there." Although, according to Drake, he
has "learned those tricks.... most of them," nevertheless
"I know when I first started it was an awful job for me to
try to throw that lever over." Further according to Drake
(a plainspoken, forthright witness), fellow-employee
Gerces - about 5'8 1/2" and somewnat heavier than
Drake - nad to be relieved from turret lathe operation in
view of a sore hand or wrist resulting from his, operation
of that lathe because of "the terrific strain on them," an
experience shared by still another employee, Sweat.
According to Drake, "it takes quite some time to get
them to where they can really operate it [the large turret
lathe]. The biggest problem we have is throwing that lever
over. They have to learn how to do that . . . . it would
take at least a month or better."
Drake testified that with Goodyear's return in June,
Drake, who had been operating the large turret lathe, was
assigned to the engine lathe, which has no lever of the
type described and is easier to operate. Subsequent to
Goodyear's termination on June 13, the large turret lathe
was operated by Langford, estimated by Drake to weigh
around 200 pounds.
Respondent's other large turret lathe operator of bodily
size superficially resembling that of Goodyear -
Scarborough, currently only S pounds heavier than
Goodyear, but visibly of wiry build -- testified that he
operated this very same turret lathe for 8 or 9 years
commencing in 1950, some 18 years ago, without
difficulty at that time "because of . . . size," while
conceding, however, that he "could have" experienced a
"sore arm" from it "when I first started . . . . just [like
from any other physical exercise." and agreeing that the
lever would come back at him "if I didn't watch it ....
You have to keep a steady pressure on it. You can't just
push at it." Goodyear's testimony that Scarborough's
production on the terret lathe was "bad" was unrefuted.
The record indicates that apart from Drake and
Scarborough, the operators of Respondent's large turret
lathe have been bigger men, such as Langford and Head.
The trial examiner also observed West - who, according
to`Respondent, was hired on March 1 to replace Christian
on the milling machine (which Goodyear was also
experienced on); and who (West) had operated drillpresses
and had done "various other jobs" - to be a seemingly
sturdy young man of vigorous physique.
Quite aside from the foregoing, it is common
experience that not all "small " men have equal physique
or strength, or bodily configurations and characteristics
appropriate to all tasks . It is also evident that on his
return to Respondent's employ in June, Goodyear was not
restored to the job which he had performed for 3 years
previously ("AC" operator) or to any equivalent position.
although he seemingly could have been - particularly
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with an already trained stand-in or ready replacement for
him on the "AC" machine in case of possible future
illness.
On June 12, Goodyear had occasion ' to visit the dentist.
At around 2 p.m. (about an hour and a half before 3:30
quitting time), in the absence of Rowe he sought out Shop
Superintendent Dean - who had on previous occasions
authorized early departures - and obtained permission to
leave . Goodyear thereupon punched out and left shortly
thereafter . After stopping by at home and discovering that
his wife had neglected to make the necessary ap intment,
he nevertheless proceeded to the dentist 's office on the
chance of receiving attention . Since he encountered other
patients waiting there , he decided to arrange a definite
appointment before returning . Being off, he thereupon
drove on to Peck 's machine shop in Sterling , Georgia - a
further distance of about 12 miles - arriving there, by his
estimation , around 3:30, and inquired about an opening
(he had applied for work there about 3 weeks previously).
He was told there was none at that time."
On June 13, Goodyear reported to work as usual and
proceeded to the small turret lathe . Rowe called him to
the office , where fellow-employees Gerces and Head were
silently present throughout the ensuing scene . Rowe asked
Goodyear where he had been the previous day. Goodyear
replied that he had gone to the doctor . Rowe thereupon
stated that he had " information .... that you [Goodyear]
were out at R. L. Peck 's at 3 : 15." Goodyear denied this,
stating he didn 't remember where he was "at that
particular minute." When Rowe asked Goodyear the
doctor 's name , Goodyear supplied it. Goodyear told Rowe
"he was discriminating against me .... Because of union
activity, and he [Rowe] made the reply, call it anything
you like." When Goodyear asked Rowe whether he was
"going to let me go to work ," Rowe replied , "No, I'm
going to let you go to work , you're going to stay right
here ." Goodyear responded that "if you 're not going to let
me go to work there 's no use in me staying here . I'll just
go home . He [Rowe] said , well, I'm not going to let you
go to work . I [Goodyear ] said , well, I'll just punch out
then and go on home , so J did so. I punched out and
left." Before leaving , however , Goodyear asked Rowe,
"why did you plant those two witnesses [i.e., Gerces and
Head ] against me," to which Rowe replied, "Why did you
bring that damn [Union Representative ] Gene DeLoach
up here with you?" If I 'd been the Old Man [i .e., Tresher]
I wouldn 't even have talked to you or hired you back or
nothing."
On June 14 , Goodyear received by mail it "Separation
Notice" from Respondent dated that day (June 14 ), signed
"At the hearing, Goodyear explained that he had visited Peck's because
of his difficulties after being allowed to return to work by Respondent on
June 10 in attempting to operate the large turret lathe under the close
observation of Rowe "hiding behind machines awatching me. . . . I
personally got the idea, they didn 't want me back down there (at
Kut-Kwickl from the way he was treating me. So I just wanted to go out
there [to Peck 's] to see if I could , get me a job to keep from causing any
more trouble whatsoever. I'd go out there and try to work where maybe I
was wanted instead of unwanted ." Goodyear had also, after receiving the
"Separation Notice" from Tresher in April, sought or inquired about the
possibility of employment elsewhere.
"It will be recalled that Goodyear had brought DeLoach with him when,
at the end of May - after the filing of charges and issuance of the
complaints herein - he went to see Tresher in connection with being
allowed to return to work at the plant.
"When Rowe spoke to Goodyear on June 13 , the subject of leaving
"without permission" was not even mentioned . Goodyear had in fact
received permission from Superintendent Dean in the absence - of Rowe;
Goodyear's testimony to this effect was undenied by Dean, who
unexplainedly failed to testify.
by Tresher, stating he "has been discharged," after last
working on June 12, because "On June 12, 1968, Left
work early without permission . Went to another machine
shop looking for job; lied about his whereabouts when
later confronted.""
Although deeply implicated in the circumstances of
each of Goodyear's terminations (March as well as June
13), Respondent 's President Tresher did not testify, nor
was any reason aavancea tor this failure . Respondent's
Machine Shop Superintendent Rowe , however, testified in
regard to both episodes.
With respect to the earlier (i.e., March ) termination
(according to Rowe , a generally less than testimonially
impressive witness in view of his manifold equivocations,
conveniently deficient powers of recall , and patent
partiality), Rowe conceded on cross-examination that
employees other than Goodyear had removed their
toolboxes from the plant and that he had not "considered
that they quit when they took their tool box out." Rowe
further conceded that Goodyear at no time told him that
he was quitting . According to Rowe, subsequent to the
toolbox removal , Goodyear "called me up and told me
that he understood that we had cancelled his insurance
.... I told him that, yean, I had heard Mr. Tresher say
something about it and that there was going - he'a have
to come down and talk to Mr. Tresher about it. That he
had quit.... I told him that we assumed he quit.... He
[Goodyear] told me then that he hadn 't quit. . . . I said,
well, we assumed by you taking the [tool] box that you
had quit.... he said ... he didn 't, he hadn 't." (Emphasis
supplied.) On cross-examination , however, Rowe
acknowledged that he either did not say or could not
recall whether he did "say anything [to Goodyear] about
the tool box then"; and that he told Goodyear during their
telephone conversation on March 4 "that he [Goodyear]
had never told [me, Rowe] that he was quitting." From
the hearing transcript: -
TRIAL EXAMINER: He [Goodyear] told you that he
had not quit but you told him that he had quit, is that
the way it wound up?
THE WITNESS [Rowe] : Basically, yes, sir.
TRIAL EXAMINER: Would it be a fair statement to say
that Goodyear at all times took the position that he
had not quit?
THE WITNESS [ Rowe ]: Yes, Sir.
TRIAL EXAMINER Does Respondent rest its position
in regard to Goodyear on the fact that he removed his
[tool] box , under the circumstances as described?
MR. KELSO [Respondent 's counsel ]: Yes, Your
Honor.
TRIAL EXAMINER: Well, but Goodyear told the
employer that he was not resigning and that he had not
quit.
With regard to Goodyear's short-lived June
"reinstatement ," Rowe's testimony indicates that although
he "run[s] the [machine] shop" and normally does the
hiring, it was Tresher who hired Goodyear back in June;
but that it was Rowe who discharged Goodyear on June
13 after discussing it with Tresher, when Goodyear
allegedly (according to Rowe) denied having gone to
Peck 's "or" said he had gone to the doctor the previous
day - although (also according to Rowe) it was Tresher
who had ascertained that Goodyear had visited Peck's the
previous day.°° Goodyear' s testimony that he had
'Respondent also seemingly makes much of the fact that , according to
testimony of its witness Wood , Peck 's Shop Superintendent, it was before
and not after I o'clock that Goodyear arrived there , from which it is
KUT-KWICK CORP.
Superintendent Dean 's permission to punch out early the
preceding afternoon is undisputed.
The described circumstances are in my view persuasive
that Respondent 's double discharge of Goodyear stands on
an entirely different footing from its December 22
economic layoffs and the March 8 termination of
Christian following his resignation and replacement. In
the case of Employer-resented union leader Goodyear, in
my opinion Respondent 's explanation for his discharge on
June 13 after his brief tenure of "reinstatement" to a
different job which Respondent knew he could not
perform61 following issuance of a complaint by the Board's
Regional Director upon charges filed by him with the
Board after his discharge based on Respondent 's frivolous
insistence that he had ' quit," in the face of his consistent
protestations that he had done no such thing, is
trumped-up, pretextuous , and simply does not "stand
under scrutiny" N.L.R.B. v. Dent , 207 F.2d 165, 167 (C.
A. 9), when all of the facts are considered. In my opinion,
General Counsel has amply sustained his burden of proof
of establishing by a fair preponderance of substantial
credible evidence that Respondent 's discharges of
Goodyear on or about March 4 and again on June 13,
1968, and each of them , were for discriminatory reasons,
because of his Union adherence and leadership.
Accordingly, I so find.
D. Section 8(aXS)
It remains to consider the allegation - based upon a
charge filed on May 1 - that Respondent also violated
Section 8(a)(5) of the Act by declining since the previous
December 11 to recognize and bargain with the Union as
duly designated exclusive bargaining representative of its
production and maintenance (and some other ) employees,
strenuously prgea that Goodyear must have gone there directly. Even
assuming that he did - and it is by no means established that he did, or
that he could not have stopped off at home (a block and a half from the
plant) and looked in at the dentist 's before deciding to go on to Peck's -
this is not to say that Goodyear had no right to do so on his own
uncompensated time after he was expressly granted permission by
Respondent to leave (cf. Dumas , Inc., d/ b/a Sterling Manufacturing
Company, 169 NLRB No. 126); nor that this patently flimsy excuse was
the real reason for his precipitate discharge by Respondent the next day
after 9 years of satisfactory employment.
"'It is settled that, in order to be valid , reinstatement of a
discriminatorily discharged employee must be made in good faith (Earl I
Sifers, d/b/a Sifers Candy Company, 92 NLRB 1220, enfd ., 171 F.2d 63
[C.A.10]) to employment the same as or equivalent to that formerly
enjoyed (Starlite Manufacturing Company, 172 NLRB No. 2; Thomas J.
Aycock, Jr., d/b/a Vita Foods, 154 NLRB 1716, enfd. as modified, 377
F 2d 81 IC.A. 51; N.L.R.B. v. Monroe Auto Equipment Company, 392
F.2d 559 [C.A. 5]). Under the indicated circumstances, Respondent's
"reinstatement" or "rehiring" of Goodyear on June 10 - on the nets of
the institution of a Board proceeding to redress his discharge upon the
specious insistence that he had "quit " In the face of his protestations to the
contrary - was transparently purposed so as to gain a more plausible
'justification " for redischarging him. It is clear that not only was
Goodyear not validly reinstated to his former job, which he had
satisfactorily performed for 3 years, but that Respondent deliberately
instead assigned him to the large turret lathe , on which he was totally
inexperienced and which it knew he was physically incapable of operating,
in order to force his resignation or discharge , realizing that it was poised
on thin ice in its position that Goodyear had "quit ." No reason appears,
for example , why Drake , experienced at and actually engaged in operating
the large turret lathe , was removed from that job in order to be assigned to
a simpler job on the occasion of the June 10 "reinstatement" and
assignment of Goodyear to the large turret lathe; nor why other
experienced large turret lathe operators could not have been assigned to
that task, if Respondent was in earnest about having it efficiently
performed ; nor why West, a seemingly sturdy young man with very little
seniority (in contrast to Goodyear's 9 years), could not have been taken off
the "AC" operation (Goodyear 's former job) and moved to the large turret
lathe so as to allow Goodyear to resume his former job.
651
appointed such by a majority of their designation cards in
its possession.
Such a violation , where predicated upon failure to
recognize and bargain upon the basis of proffered union
bargaining agent designation "cards" signed by
employees , requires a finding that the failure to recognize
and bargain was in bad faith" with the burden on General
Counsel to establish that bad faith ." It is within this
frame of reference that the underlying facts must be
assessed.
The proof amply establishes , and n is accordingly
found , that on November 28, 1967 the Union held
authorizations unambiguously designating it as bargaining
representative, intended as such and signed by 24 or 2564
of Respondent 's 4565 employees in a conventional and
appropriate production and maintenance bargaining unit"
and that, based on those designations , which the Union
offered to submit for impartial substantiation, on
December 16 Respondent received from the Union a
written recognitional and bargaining request, which
Respondent on January 2 declined , stating that:
As stated in a telephone conversation with you on
.... December 14 , 1967 , the Company doubts tnat you
represent an uncoerced majority of employees in any
appropriate unit and declines to recognize your union
until certified . We feel that the interests of all parties
would best be served by an election conducted under
the auspices of the National Labor Relations Board.
We have received a copy of your petition in Case
10-RC-7275 , filed December 12, 1967 , and have also
received notice of the representation hearing , scheduled
for 10:00 January 4, 196[8] , in the Federal Building,
Brunswick , Georgia. From these we assume you are
pursuing the election route.67
"Aaron Brothers Company of California, 158 NLRB 1077, 1078; Ben
Duthler, Inc., 157 NLRB 69, 71-72, modified 395 F.2d 28 (C.A.6), Strydel
Incorporated, 156 NLRB 11$5, 1186-87; John P. Serpa , Inc., 155 NLRB
99, 100- 101, reversed sub nom. Retail Clerks Union , Local No. 1179 v.
N.L.R.B., 376 F.2d 186 (C.A.9), Board decision on remittitur 166 NLRB
No. 66.
"John P. Serpa, Inc., supra, in. 62, at 100
"The testimony of Respondent's employee and witness West , if credited,
would ' require the voiding of his designation card for counting purposes
here, since he swore that when fellow -employee Smith solicited his
signature he "told me .... that the purpose was to get enough signatures
on those cards to get started in the progress of an election," and that he
thereupon signed the card. Although a degree of doubt was engendered as
to his veracity by his insistence that he read only a line or two of the card,
despite the obvious necessity to do more in order to be able to write proper
information into the blank spaces as he did , it is unnecessary to resolve
this doubt or his credibility in this aspect , since even without his card the
Union enjoyed a clear majority (24/45).
"It was stipulated at the hearing that this unit contained a total of 45
employees at all times in December 1967 to at least December 16.
"Consisting essentially of Respondent 's machine shop and assembly
shop, aggregating approximately 40, employees.
"Union Representative DeLoach testified that he telephoned
Respondent 's plant on December It, 1967, and spoke to Respondent's
Secretary-Treasurer Burke in the absence of its President Tresher,
requesting recognition and bargaining upon the basis of majority
authorization designation cards it was willing to submit for corroboration;
and that Burke told DeLoach he would have to speak to Tresher, which
DeLoach said he would do . According to DeLoach, although he thereupon
the same day (December 11 ) prepared a recognition -bargaining request in
letter form, "it was sent two or three days later, that I actually mailed it."
The parties stipulated at the hearing that this letter was received by
Respondent on December 16, 1967 . Notwithstanding the foregoing, the
Union 's election petition , filed at the Board 's Regional Office on the
morning of December 12 states that no request for recognition had been
made by the Union . The Union's election petition was signed by its Grand
Lodge Representative in Atlanta . According to Respondent's
Secretary-Treasurer Burke, a copy of it was received from the Regional
Director on December 14. It is finally noted that Respondent 's January 2
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent . 7s Appropriate provision shall be made in
the Recommended Order and posted notice to employees
for notification to the discriminatorily discharged
employee if he is now in the Armed Forces of the United
States of his right to full reinstatement to his former
position upon application after discharge from the Armed
Forces in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended. Backpay and interest are to be computed in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716. Respondent shall be required to
make available necessary records for computation of
backpay, overtime , holiday and vacation pay, insurance,
and all other benefits and emoluments lost, denied,
cancelled , withdrawn , avoided , discontinued, or
interrupted.
In view of the nature of the unfair labor practices
found, especially the singling out for discriminatory
termination on two occasions of an employee of 9 years'
satisfactory service and seniority because he sought to
exercise rights guaranteed to employees by Congress - I
consider it appropriate to include in the Recommended
Order a requirement that Respondent cease and desist
from infringing in any manner upon employees' rights
guaranteed in Section 7 of the Act.
General Counsel presses for a bargaining order in view
of the 8(a)(1) and (3) violations . At the threshold of
consideration of this request , it is essential to distinguish
the violations found from the violations alleged but not
established . Thus, only relatively insubstantial
interrogation has been found , together with an instance of
avowed surveillance , as well as Respondent 's double
attempt to unsaddle itself of Goodyear because of his
union activities . It is true that at times unfair labor
practices other than direct Section 8(a)(5) violation may
evidence bad faith in an employer 's failure or refusal to
recognize or bargain following a bargaining demand
founded solely on union designation cards, and thereby
warrant a bargaining order. It is also true that under
certain other circumstances an employer 's insistence on an
election as a precondition to bargaining may be overriden
and a bargaining order issued upon the basis of an
established clear majority of validly signed union
designation cards; such as where the employer has
engaged in conduct unmistakably demonstrating rejection
of the collective-bargaining principle or where he has
engaged in so ruthless, provocative or pervasive a program
of unfair labor practices as to densely contaminate the
relatively pure air which is the ideal in Board -sponsored
elections , the results of which are stamped with the
Governmental imprimatur and which are therefore
properly regardable as models of rectitude and propriety.
On balance it would seem , however , that the practices
found here were not of such magnitude , scope, or
irreparability as to frustrate a fair contest by secret
election, such as the Employer stipulated to upon exposure
of the misconduct of its perhaps overzealous servitor
Rowe in crudely spying upon a union meeting as has been
described . Although it is true that since then Goodyear
has suffered improper discharge , when that situation is
remedied and Respondent 's derelictions in that (and other)
regard made known to the employees with the posting of
the Notice here recommended , there appears to be no
reason why the employees ' true representation desires
101,1. 4raber Manufacturing Company, Inc. 158 NLRB 244, 256, 257,
enfd . 382 F 2d 990 (C A 7).
cannot accurately be registered in a Board -conducted
secret election.
Under the indicated circumstances , in my opinion the
policies and purposes of the Act would best be served by
permitting the question of representation status to be
determined by what the Board regards as the "normally
more satisfactory means of determininit employees'
wishes" (Aaron Brothers Company of California, 158
NLRB 1077, 1078), of its secret-election process.
For these reasons, 1 deny General Counsel 's application
for a bargaining order based upon the violations here
found."
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I make the following:
RECOMMENDED ORDER
It is hereby ordered that the Respondent Kut-icwick
Corporation, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating in violation of the Act any employee
as to his or other employee 's union membership,
affiliation , activity, sympathy, or desire.
(b) Spying upon or maintaining under surveillance, in
violation of the Act, any union or lawful organizational
meeting or assemblage of or participated in by its
employees.
(c) Discriminating or threatening to discriminate
against any employee because of his union membership,
affiliation , activity, support, or sympathy, by discharging,
terminating the employment of, or refusing or failing to
reinstate or rehire any such employee, or by threatening
so to do; or by taking or threatening to take other
discriminatory action in violation of the Act against any
employee in regard to hire , tenure , or any term or
condition of employment, or for exercise or attempted
exercise of any right under the Act.
(d) Discouraging membership in or any lawful activity
on behalf of or support to International Association of
Machinists and Aerospace Workers, AFL-CIO, or other
union or labor organization of its employees, by
discharging , terminating the employment of, or refusing or
failing to reinstate or rehire , any employee , in violation of
the Act, or by threatening so to do.
(e) In any manner interfering with, restraining, or
coercing any employee in the exercise of any right under
Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act :
(a) Offer to Billy O. Goodyear immediate, full
reinstatement to his former position as automatic chucker
(AC) operator, or substantially equivalent position,
"Cf. N.L.R.B. v. Breaker Confections, Inc., 402 h.2d 499 (C A 4);
N.L R B v. Flomatic Corporation , 347 F.2d 74 , 78-80 (C.A 2); J C
Penney Company , Inc, 172 NLRB No. 82, Orchard Corp . of America,
170 NLRB No. 141, Eldo-Craft Boat Co ., 166 NLRB No 52: Union
Carbide Corporation, Olefins Division, 166 NLRB No. 39 , 20th Century
Glove Company , Inc., 165 NLRB No 122 Hercules Packing Corp, 163
NLRB No. 35, petition dismissed 386 F 2d 790 (C A.2), Wagner Industrial
Products Co., 162 NLRB No. 114; modifying , 386 F.2d 981 (C.A D.C).
Aaron Brothers Company of California, 158 NLRB 1077, 1078-80; Strydel
Incorporated , 156 NLRB 1185, 1187 : Clermont's, Inc ., 154 NLRB 1397,
1400-01 ; Hammond d: Irving, Incorporated, 154 NLRB 1071, 1072-73.
Cameo Lingerie, Inc, 148 NLRB 535, 538
KUT-KWICK CORP.
a labor organization within the meaning of Section 2(5) of
the Act.
3. Assertion of jurisdiction herein is proper.
4. On two occasions in or about late January-early
February 1968, Respondent through its Machine Shop
Superintendent J.P. Rowe interrogated its employee
Arthur Rhymes concerning his and other employees'
union membership , activities , and desires, in violation of
Section 8 (a)(l) of the Act.
5. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
interrogated any other employee in violation of the Act at
any time as alleged in the complaint.
6. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
threatened any employee by reason of his Union
membership , activities , or desires.
7. On February 14, 1968 , in Brunswick, Georgia,
Respondent , through its Machine Shop Superintendent
J.P. Rowe , spied upon and kept under surveillance a
union meeting of Respondent 's employees , in violation of
Section 8(a)(1) of the Act.
8. On or about March 4, 1968 , in violation of Section
8(a)(3) and ( 1) of the Act , Respondent discharged and
terminated the employment of its employee Billy O.
Goodyear, and thereafter failed and refused to reinstate or
rehire him , because of his union membership and
activities , and because he had engaged in concerted
activities with other employees for the purposes of
collective bargaining and other mutual aid and protection;
thereby discriminating against Goodyear in the hire and
tenure of his employment , and discouraging union
membership and activities and the exercise of other rights
under the Act on his part and on the part of other
employees.
9. On June 13 , 1968, in violation of Section 8(a)(3) and
(I) of the Act, Respondent discharged and terminated the
employment of its employee Billy O. Goodyear, and
thereafter failed and refused to reinstate or rehire him,
because of his union membership and activities, and
because he had engaged in concerted activities with other
employees for the purposes of collective bargaining and
other mutual aid and protection ; thereby discriminating
against Goodyear in the hire and tenure of his
employment , and discouraging union membership and
activities and the exercise of other rights under the Act on
his part and on the part of other employees.
10. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent
discharged its following employees , or any of them, on
December 22, 1967, or thereafter failed or refused to
reinstate or rehire them or any of them , in violation of
Section 8 (a)(3) or ( 1) of the Act , as alleged in the
complaint herein , because of their union membership or
activities , or for engaging in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection: Henry Hill Blue, Johnny Braddock , Benny Joe
Cope, John J. Edmond, Tommy Jones, Zack Manning,
Ronnie (James R.) McCormick , Kelly Perkins, Jerry
(Lee) Smith , Tommy (A.) Sweat , Jack (Jackie A .) West,
James L. Williams.
11. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent
discharged and terminated the employment of its
employee Ray (Cleveland Ray) Christian on or about
March 8 , 1968, or thereafter failed or refused to reinstate
or rehire him, in violation of Section 8(a)(3) or ( 1) of the
653
Act, as alleged in the complaint , because of his Union
membership or activities, or for engaging in concerted
activities for the purposes of collective bargaining of other
mutual aid or protection.
12. On and at all times since December 11, 1967, the
following was and has been a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of
Respondent at its Brunswick, Georgia, plant , including
the part-time janitress and plant clerical employees, but
excluding the cost system and quality control employee,
office clerical employees , professional employees,
guards and supervisors as defined in the Act.
13. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
on or at any time since December 11, 1967, in violation of
Section 8 (a)(5) or ( 1) of the Act failed or refused to
recognize or bargain in good faith with the Union as the
duly and lawfully designated exclusive representative of
the employees in the aforesaid bargaining unit , in respect
to rates of pay, wages , hours of employment , or other
terms and conditions of employment of said employees or
any of them.
14. The unfair labor practices and each of them
referred to in Conclusions of Law numbered 4, 7, 8, and 9
affect commerce within the meaning of Section 2(6) and
(7) of the Act.
15. It is not having been established by a fair
preponderance of the substantial credible evidence that
Respondent has engaged in the unfair labor practices or
any of them referred to in Conclusions of Law 5, 6, 10,
11, and 13, the complaints herein should in those respects
be dismissed.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. Having found that Respondent in violation of the
Act terminated the employment of its employee
Goodyear , I shall recommend that Respondent be
required to offer him immediate and full reinstatement to
his former position of automatic chucker (AC) operator
or substantially equivalent position, without prejudice to
his seniority , insurance , or other rights and privileges, and
to make him whole for any loss of earnings and benefits
(including overtime, holidays and vacations , and insurance
benefits) he may have suffered by reason thereof, by
payment to him of sums of money equal to those which he
normally would have earned as wages or received as
benefits (including overtime , holiday pay, vacations or
vacation pay, and insurance benefits ) from the dates of
such unlawful discriminations to the date of a valid and
proper offer of reinstatement by Respondent, together
with interest thereon , less his net earnings if any during
such periods ." I shall further recommend that
Respondent 's personnel actions, records or notations
pertaining to Goodyear be corrected so as to reflect that
he did not quit his employment with Respondent in or
about January-April, 1968 as claimed , noted , and reported
"In this calculation , among other factors to be taken into account,
proper consideration should be given to the fact that Goodyear's physician
has indicated (G.C. Exh 35) that he was "continuously totally disabled
(Unable to work)" from January 7 through April 15, 1968.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has already been indicated , in the election which
ensued on February 16 , of 37 eligible voters , excluding 5
challenged ballots , 21 votes were cast against and 11 for
the Union ; that election being subsequently voided by
stipulation , following Union objections , calling for a rerun
election , which has not been held in view of Union charges
filed on May 1.61
Respondent assigns as a basis for doubting the Union's
claims , its prior experiences with the same Union , dating
as far back as 1951 , when the Union lost a
Board-conducted election by a vote of 14-8 . In 1955,
Respondent entered into a collective agreement with the'
Union , without an election , following compliance with a
Board Trial Examiner's recommended order that it
bargain with the Union (then representing its machine
shop employees only), in view of violations of Section
8(axl) and (5). At that time, Rowe as shop steward
participated in contract negotiations with Tresher.
However , according to undisputed testimony of Rowe, by
1957 employee interest in the Union had lagged to the
point of disappearance .'9 Once more in 1965 the Union
filed a petition for election (Case 10-RC-6250) based upon
alleged recognitional requests earlier in 1965 which
Respondent had declined . Afain on April 27, 1965 the
Union lost the election , this time by a vote of 31-5 out of
39 eligibles.
Without going into the question of the significance of
Respondent's experiences in 1951-1957, certainly the
justifiability of the impact upon it of the Union's 31-5
defeat at the polls as recently as 1965 cannot be gainsaid.
Such experience is a factor properly to be taken into
account in weighing an employer's motivation in declining
recognition to -a -Union upon the mere basis of designation
"cards," and therefore the employer 's alleged good faith
in entertaining doubt as to the Union's true status as
bargaining representative of his employees , who have
previously rejected the union by that "secret ballot [which]
is normally a more satisfactory means of determining
employees' wishes" (Aaron Brothers Company of
Cal(ornia, supra, 158 NLRB 1077, 1078 )." Superadded
here is the fact that Respondent was willing to submit to
an immediate election , which the Board has characterized
as "very strong evidence of good faith." (A. L. Gilbert
letter to the Union , acknowledging receipt of the Union's letter dated
December II - which "confirm [s] my [i .e.. DeLoach 's] telephone
conversation with Mr. Burke in the early morning of this date" - does
not dispute any alleged conversation between De Loath and Burke on
December 11 , although denied by Burke at the bearing as " 100 percent
wrong."
"Involving essentially the facts constituting the Union's objections to the
February 16 election . Under the Board 's current policy, these charges and
the resulting complaint , here for determination, are not barred by the
objections resulting in the Regional Director 's order for •a rerun election.
Bernel Foam Products Co. Inc.. 146 NLRB 1277, explained in Irving Air
Chute Company, Inc.. 149 NLRB 627, enfd. 350 F.2d 176 (C.A.2)
Whether the Union' s entry into a stipulation with Respondent on March 5
expressly calling for a rerun election likewise did not operate as such a bar
is less clear , but need not be decided in view of the disposition reached
herein.
"Respondent 's motion , upon which decision was reserved at the hearing,
that these two Board proceedings (Cases 10-RC- 1187 and 10-CA-2057) be
officially noticed , is granted, and General Counsel's objection to receipt of
Reap . Exh. 16 for identification (communication dated June 21, 1968, from
the Board 's Director of Information Thomas W. Miller, Jr., summarizing
those proceedings ) is overruled and that exhibit is received in evidence.
"N L.R B v Fashion Farr, Inc., 399 F 2d 764, 768 (C.A.6); N L.R.B. v.
Gissel Packing Company, Inc., 398 F.2d 336 (C.A 4); Peoples Service
Drug Stores v. N.L.j7.B., 375 F.2d 551, 557 (C.A.6); N L.R.B. v.
Johnnie's Poultry Co.. 344 F 2d 617, 620 (C.A.8); Orchprd Corp. of
America, 170 NLRB No. 141; Super X Drugs of West Virginia, Inc., 169
NLRB No. 42, Nalco Chemical Company, 163 NLRB No. 19.
"To the same effect , see Super X Drugs of West Virginia, Inc., 169
Company, 110 NLRB 2067. 2070.1"
Absent an affirmative showing of bad faith, an
employer, presented with a majority card showing and
a bargaining request , will not be held to have violated
his bargaining obligation under the law simply because
he refuses -to rely upon cards, rather than an election,
as the method for determining the union 's majority."
Is this not the more true where the employer has within
less than 3 years witnessed a resounding union defeat at a
secret election following a request for recognition and
bargaining upon the basis of signed Union designation
cards?
Looking back at the circumstances here, other than the
discharges of Goodyear in March and June 1968, there is
no showing of unfair labor practices by Respondent so
substantial or cumulatively pervasive as to require a
finding of bad faith by Respondent, under all of the
circumstances, in "refus[ing ] to rely upon cards, rather
than an election , as the method for determining the
union 's majority" (Aaron Brothers, supra); nor is there a
showing by substantial credible evidence that Respondent
rejected the collective-bargaining principle or otherwise
flouted the national policies declared or bargaining
obligations imposed by the Act. As has been shown,
Respondent at one time entered into a collective
agreement with the Union; and it far from discharged all
union adherents in its December 22 economic layoff,
wherein (with the single exception of Smith, for reasons
which have been described ) it applied strict seniority. All
of the violations here found occurred substantially
subsequent to the refusal to bargain , and do not establish
a design to disrupt the orderly processes of a Board
election . Since Goodyear 's discharges occurred long after
the election , they can hardly be considered to have
affected its results ; nor are they deemed , alone or in
conjunction with the other violations found, to have closed
off the determination of the true representation wishes of
Respondent 's employees by secret election held under
Board auspices at such time as the Regional Director
believes is warranted.
Upon the record as a whole , it is found that General
Counsel has failed to sustain his burden of establishing by
a fair preponderance of substantial credible evidence that
Respondent's failure to recognize and bargain with the
Union pursuant to the latter's demand dated December
11, 1967 was in rejection of the collective-bargaining
principle, or to gain time to dissipate the Union's
representative status, or otherwise in bad faith; or that it
was for any reason other than Respondent's desire to
ascertain its employees ' representation desires through a
Board-conducted election rather than through
union-proffered cards."
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Kut-Kwick Corporation , Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, Charging Party herein, is
NLRB No. 42; Superex Drugs , Inc., 150 NLRB 972, 978
"Aaron Brothers Company of California , 158 NLRB 1077, 1078. To the
same effect , see, e .g., Clermont 's, Inc., 154 NLRB 1397, 1400-01,
Hammond & Irving. Incorporated , 154 NLRB 1071, 1072-73; Cameo
Lingerie, Inc., 148 NLRB 535, 538.
"Cf. cases cited supra , fn. 62, 63, 70, 71, and in related text , and 72.
KUT-KWICK CORP.
without prejudice to his seniority and other rights,
privileges , benefits and emoluments , and make him whole
for any loss of pay ( including overtime, holiday and
vacation pay, and insurance benefits ), in the manner set
forth in "The Remedy" section of this Decision. In the
event Goodyear is presently serving in the Armed Forces
of the United States , notify him of his right to such full
reinstatement upon application after discharge from the
Armed Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service Act
of 1948, as amended.
(b) Expunge or correct any personnel or other record,
entry or report indicating that Billy O . Goodyear quit the
employ of Respondent at any time in or about
January-April, 1968 as asserted by Respondent herein.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, overtime records, social security payment
records, timecards , holiday and vacation schedules , and all
other records necessary to analyze the amount of backpay
and extent of benefits (including overtime , holiday and
vacation pay, insurance benefits , and all other benefits or
emoluments lost, denied , cancelled, withdrawn , avoided,
discontinued , or interrupted) due under the terms of this
Decision.
(d) Post in its factory at Brunswick, Georgia, copies of
the attached notice marked "Appendix."" Copies of said
notice , on forms provided by the Board 's Regional
Director for Region 10, shall , after being duly signed by
Respondent 's authorized representative , be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(e) Notify said Regional Director , in writing , within 20
days from receipt of this Decision , what steps have been
taken to comply therewith."
Insofar as it alleges other violations of the Act not
herein found , the complaints and each of them are hereby
dismissed.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by decree of a United States
Court of Appeals, the words, "a decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, an
agency of the United States Government.
After a trial at which all sides had the chance to give
evidence , it has been decided that we, Kut-Kwick
Corporation , violated the National Labor Relations Act,
and we have been ordered to post this notice.
The National Labor Relations Act gives you, as an
employee, these rights:
655
To engage in self-organization
To form , join , or help unions
To bargain collectively through a representative of
your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection; and
If you wish , not to do any of these things.
Accordingly , we give you these assurances:
WE WILL NOT do anything which interferes with any
of your rights listed above.
WE WILL NOT question you in violation of the
National Labor Relations Act as to your (or any other
employee 's) Union membership, affiliation , activities,
sympathies, or desires.
WE WILL NOT Spy upon or keep under observation
your Union meetings or gatherings in order to find out
who attends, or what goes on there , or-when, or where,
or why.
WE WILL NOT discharge or threaten to discharge, or
refuse or fail to reinstate or rehire , any of you for
joining or being a member of any union , or for any
union affiliation , activity , support, or sympathy; and
WE WILL NOT in any other way discriminate or threaten
to discriminate against any of you because of your
union membership , affiliation , activity , support or
sympathy, or because you want or try to bargain with
us collectively as a group, or because you want or try
to do anything else you have the right to do under the
National Labor Relations Act.
WE WILL NOT discourage you from joining or from
any lawful activity on behalf of or in support of
International Association of Machinists and Aerospace
Workers, AFL-CIO , or any other union of your choice,
by discharging or threatening to discharge, or by
refusing or failing to reinstate or rehire, any of you
because you belong or want to belong to a union, or
because you support or sympathize with a union, or
because you are active in the union.
WE WILL NOT in any way interfere with , restrain, or
coerce you in the exercise of any of your rights under
the National Labor Relations Act.
WE WILL offer immediate , full reinstatement to Billy
0. Goodyear to his former job as automatic chucker
("AC") operator (or substantially equivalent position),
and grant him full seniority and all other rights and
privileges which he lost or missed since we discharged
him around March 4 and again on June 13, 1968; and
WE WILL pay him , with interest, for any wages and
other moneys, benefits , and advantages lost by him
because of those discharges . And WE WILL also have
his personnel records corrected to show that he did not
quit his job with us.
We assure all of you that you are free to join or not to
join International Association of Machinists and
Aerospace Workers, AFL-CIO , or any other union, as
you see fit in your own judgment , without any interference
from us in any way, snape , or form.
Dated By
KUT-KWICK CORPORATION
(Employer)
(Representative ) (Title)
Note : Notify the above employee if presently serving in
the Armed Forces of the United States we shall notify
him of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
655A DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after discharge from the Armed Forces. If employees have any question concerning this notice
or compliance with its provisions, they may communicate
This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, Room 701, 730
from the date of posting and must not be altered , defaced , Peachtree Street, NE., Atlanta, Georgia 30308, Telephone
or covered by any other material. 404-526-5741.