L. E. Johnson Products, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1969

179 N.L.R.B. 67 (N.L.R.B. 1969)

L. E. JOHNSON PRODUCTS 67
L. E. Johnson Products , Inc. and International
Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
UAW. Case 25-CA-3297
practices other than those found by the Trial
Examiner.
TRIAL EXAMINER'S DECISION
October 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On August 1, 1969, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom, and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent had
not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed
with respect to these allegations. Thereafter,
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made 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, with the modifications set forth
below.'
ORDER
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, as
amended herein, and orders that L. E. Johnson
Products, Inc., Elkhart, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
In paragraph 1(d) of the Order and the fourth
indented paragraph of the notice, supplant the words
"like or related" with the word "other."
IT IS HEREBY FURTHER ORDERED that the
complaint be, and it hereby is, dismissed insofar as
it alleges that Respondent engaged in unfair labor
'We find merit in the General Counsel's contention that the unfair labor
practices committed by Respondent strike at the heart of the employee
rights safeguarded by the Act We shall therefor issue a broad remedial
order herein
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This
proceeding, with all parties represented, was heard on
May 13 and 14, 1969, at Goshen, Indiana, on the
complaint of the General Counsel issued on April 8, 1969,
which was amended on April 28,' and the answers of L E
Johnson Products, Inc., herein called the Respondent or
Company. The pleadings present questions whether the
Respondent violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, herein called
the Act, by (1) discharging Mary Jane Grabarek,z on
about November 7, 1968, and thereafter failing and
refusing to reinstate her because she and other employees
had joined and assisted the Union and engaged in union
or protected concerted activities, and in anticipation of the
Union's certification for the purpose of denying said
employee the rights of union certification, (2) on
November 22, 1968, telling employees the reason why it
had discharged Grabarek; (3) in late October and
November 1968, interrogating employees concerning their
own and other employees' union membership, activities
and desires, and (4) on or about November 8, 1968, giving
employees the impression that it had engaged in prior
surveillance of union meetings Briefs were filed by the
General Counsel and Respondent and have been carefully
considered by me.
Upon the entire record in the case, his resolution of
issues of credibility based upon the appearance and
demeanor of the witnesses, and the briefs, the Trial
Examiner makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and it is
hereby found, that the Respondent, an Indiana
corporation, is engaged in the manufacture, sale, and
distribution of sliding and folding door hardware and
related products at its plant in Elkhart, Indiana
During the past year, in the conduct of its business,
Respondent manufactured, sold and distributed at its
Elkhart plant products valued in excess of $50,000 which
were shipped from said facility directly to States other
than the State of Indiana During the same period,
Respondent purchased and received goods and materials
valued in excess of $50,000 directly from points outside
the State of Indiana
It is, therefore, found that Respondent is now, and at
all times material herein has been, an employer engaged
in commerce and in a business affecting commerce within
The complaint , as amended , is based on a charge filed on December 6,
1968, by International Union, United Automobile , Aerospace and
Agricultural Implement Workers of America, UAW , herein called the
Union or Charging Party, a copy of which was duly served on the
Respondent by registered mail on or about December 9, 1968 A motion
by Respondent to make Amendment to Complaint More Definite was
denied by Trial Examiner Frederick U Reel on May 8, 1969
'The General Counsel's motion to amend the complaint to correct an
error in the name of the alleged discriminatee was granted without
objection Thus , the name Mary Jane Grabarek was substituted for Mary
Ellen Grabarek wherever it appeared in these proceedings
179 NLRB No. 10
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of Section 2(6) and (7) of the Act, and the
Board ' s jurisdictional standards
iI THE LABOR ORGANIZATION INVOLVED
The Charging Party is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A. Introduction
There is no dispute, and it is found, that Leonard E
Johnson, Jr , president, and Guy Lavon Johnson,' plant
superintendent are, and at all times material have been,
supervisors within the meaning of Section 2(11) of the Act
and agents of the Respondent Further, the parties
stipulated and it is, therefore, found that June Mary
Rinehart is, and at all times material has been, a
supervisor within the meaning of the Act Leonard and
Guy Lavon are brothers and June is their sister.
Organizational activity by the Union at Respondent's
plant began on or about October 17, 1968. The campaign
lasted from that time until December 10, 1968 when an
election was held among Respondent's employees on
separate petitions filed by the Union and the Employer on
November 12 and November 14, respectively.' The Union
won the election and was certified by the Board on
December 18 The campaign was characterized by union
meetings held on October 31, November 7, November 25,
December 3 and December 9 and, by solicitations of
signatures to authorization cards
Respondent became aware of its employees' desire for
union representation when the idea was still in a stage
incubation and even before formal advent of the Union
Thus, during the last week in September, employee Anna
M Doyle told Guy Lavon Johnson, herein at times called
Von, that some "people" had visited her home where they
asked her to join a union Reports of union meetings and
activities continued to flow to Von from other employees
such as Jack Klip, Dean Grabill, and Bill Valentine, from
Jack Goff, who advised that the Union had pledged to
fight for the restoration of smoking privileges, and, from
Dudley Frantz, who stated that the Union intended to
seek the reinstatement of Grabarek and Florence Jo Ann
Goff 5
As described in more detail below, the Union requested
recognition from the Respondent by letter dated
November 6 Most of the events with which we are here
concerned occurred in the period between mid-August, the
date Grabarek responded by letter to a newspaper
advertisement placed by Respondent for female machine
operators, and November 26 the date of a letter from the
Company to all employees concerning the pending
election. During this period, Respondent employed
approximately 45 employees who were engaged in the
performance of about 200 Jobs
B. Interference, Restraint , and Coercion
The complaint as amended alleges, and the answer to
the amendment denies, that the Respondent, by Guy
Lavon Johnson, (i) "on several unknown dates in late
'The name of this official appears as corrected at the hearing
'Cases 25-RC-3930 and 25-RM-268
'Goff left Respondent ' s employ voluntarily on November 8
October and November 1968 interrogated its employees
concerning their own and other employees' Union
membership, activities and desires," and (u) "on or about
November 8, 1968, gave employees the impression that
[it] had engaged in prior surveillance of Union meetings "
During the hearing, the General Counsel announced
that he relies on the testimony of Michael Penny to
sustain the allegations of interrogation and impression of
surveillance set forth heremabove.
Penny came to Respondent's employ on July 24, 1968,
and worked as a shipping clerk from that date until
October 31 or early November 6 In the performance of his
duties, Penny was required to enter Von's office several
times each day to pick up and deliver bills of ladings.
Consequently, he had developed a business friendship with
Von
Penny reported three or four conversations with Von in
the last month of his employment which, allegedly, bear
on the issues presented One took place in Von's office the
morning following the initial union meeting held at the
Labor Temple on October 31. According to Penny, Von
said, on this occasion, "Well everybody seems excited this
morning. What's going on'" Penny shrugged his shoulders
and remained mute Penny testified that most of the
employees had attended the union meeting the night
before and were then engaged in an animated discussion
about the Union. In response to a leading question from
the General Counsel, Penny amplified stating that Von
asked, "What the big doings was the night before," and
he replied, "I don't know. There was a meeting " Von
denied questioning Penny about the meeting.
I deem it unnecessary to determine exactly what Von
said to Penny the morning following the union meeting
For the purpose of this decision, it will be assumed,
without deciding, that Von made the statements attributed
to him by Penny
A discerning appraisal of what Von had to say to
Penny, when considered in total context, shows that the
remarks were nothing more than an attempt by Von to
ascertain the reason for the excitement and excessive talk
during working hours. In these circumstances, it is not
reasonable to infer that the statements and questions
created in the mind of Penny the impression that the
Respondent had engaged in prior surveillance of union
meetings Accordingly, I find no 8(a)(1) violation with
respect thereto.
Penny testified about another conversation with Von I
week later on a payday in Von's office. The exact date is
not clear from the record as Penny also testified that he
left Respondent's employ about the latter part of October
or the first of November While the witness was confused
about the date, I am nevertheless convinced that, in late
October or early November 1968, a conversation with
Von did take place at which time the matter herein after
reported was discussed On this occasion, Penny asked for
a raise and Von replied that, as the Union was coming in,
no pay increase would be given to anyone except to Bob
Smith, Penny's brother-in-law, who would receive an
automatic increase at the completion of the first 30 days
of his employment ' At some point in the conversation,
according to the credited testimony of Penny, Von asked
'The last entry in the payroll journal maintained for Penny shows that
he worked 36 hours during the period ending October 31 (G C Exh 18 )
'These findings are based on the credited and uncontroverted testimony
of Penny
The complaint does not allege that the decision to withhold pay
increases during the Union ' s organizational campaign constituted a
violation of the Act
L. E. JOHNSON PRODUCTS 69
Penny what he thought of the Union and Penny replied
that he thought it was "a good thing" and would vote for
it.' Nothing further was said by Von Penny also averred
that "within a couple of days" of this conversation, Von
asked the same question and received the same response
Further, Penny credibly testified that, on still another
occasion, presumably in the last month of his
employment, Von asked whether the employees thought
the Union was a good idea and Penny responded in the
affirmative
Penny's union feelings were not a legitimate matter of
concern to Von and he transgressed permissible limits
when he sought to induce Penny to reveal his own and
other employees' prounion sympathies. Accordingly, I
conclude and find that Von's conduct on these occasions
was violative of Section 8(a)(I) of the Act.'
The last reported conversation occurred about I week
before Penny terminated his employment On this
occasion, Penny was talking with some employees in the
production area when Von approached and inquired
whether Penny had taken care of orders previously
assigned to him for processing Penny replied that he had
not done so and Von asked what he was talking about To
this, Penny retorted that Von knew because everyone was
talking about the same thing. Von pressed his question
and Penny then said, "Well, the union " Penny
acknowledged that the questions were in the nature of a
reprimand for talking when he should have been working
Von's inquiries were intended to obtain information
about Penny's procrastination on the job and not about
his or other employees' union activities or sympathies
The old adage is still true working time is for working
Accordingly, I conclude that, in this conversation, Von did
not engage in interrogation violative of Section 8(a)(1) of
the Act
C. The Discriminatory Discharge of Mary Jane
Grabarek
Respondent's operations include the manufacture of
folding and sliding door hardware much of which entail
the assembly of wheels, axles, hangers and door guides
and putting nylon and rubber stops into metal parts In
making these products, Respondent utilizes, among others,
rotary dial and punch press machines with counter
attachments
In August, Mary Jane Grabarek learned, through a
newspaper advertisement, that Respondent was seeking
experienced female machine operators for employment
and, on August 14, sent a letter in reply. Shortly
thereafter, Von called Grabarek and invited her to the
plant On August 26, Grabarek appeared with a neighbor,
Florence Jo Ann Goff Both filled out applications and
were invited by Von to tour the plant During the tour,
Von showed the girls the rotary dial and other machines
and Grabarek said that she was familiar with the
operation of the dial machine At some point during the
interview, Von observed that Grabarek had indicated on
her application that she expected a starting rate of $1.70
per hour Von then told the girls that the starting rate was
'At first, Von acknowledged that he might have mentioned the Union
but later denied asking Penny anything about the Union In view of his
uncertainty and vacillation , and considering his demeanor on the stand, I
do not credit Von's denial of the credited testimony
'Springfield Garment Manufacturing Company, 152 NLRB 1043, 1046,
Armstrong Cork Company, 103 NLRB 133, 134, and 149, enfd 211 F 2d
843 (C A 5), Dan Howard Mfg Co. 158 NLRB 805, 806
$160 but that they would get a 10-cent increase
automatically at the end of the first 30 days of their
employment He went on to explain the Company's pay
policy as follows employees receive three automatic pay
increases of 10 cents each spread out over a period of 7
months - the first, after the initial 30 days, the second,
following the next 90 days, and the third after another 90
days And, in accordance with his normal practice, Von
advised the girls that new employees serve a 90-day
probationary period at the end of which time, if mutually
agreeable, they become permanent employees and receive
Blue Cross and Blue Shield coverage at no cost if they
select the individual plan, or pay the difference in cost if
the family plan is selected.'°
Either before or after the tour, Von told Grabarek and
Goff that they were hired. However, Grabarek requested
and was granted permission to report for work sometime
after Labor Day. Grabarek commenced her employment
as an assembly worker on September 911 and continued in
Respondent's employ until November 7 when her
employment was terminated under circumstances later
detailed She signed a union authorization card on
October 21 and, on that date or shortly thereafter,
reported the fact to Anna M. Doyle. She also attended the
October 31 and November 7 union meetings
Grabarek was first assigned to the rotary dial machine.
The wheel or disc on this machine has 12 stations and the
operator is expected to keep them full at all times She
was next detailed to assembling knobs, putting assembled
knobs into bags, and sealing the bags. A knob is a two
unit component consisting of a nylon outer casing and an
aluminum anodized center piece Intially, the parts were
glued together, later they were pressed together by the use
of a small machine or were snapped into place manually
by applying pressure from the thumbs Other jobs
performed by Grabarek included assembling hinges and
nylon guides, putting rubber bumpers into nylon stops and
making top plates for hangers In all of this, June
Rinehart was Grabarek's immediate supervisor and, when
Rinehart was away on vacation from October 5 to
October 25 or 26, Von assumed the direction of her work
On or about October 9, Grabarek received the 10-cent
pay increase mentioned by Von during the interview
About 2 weeks later and on about October 23,
Grabarek and Goff went to Von's office where Goff
announced that they were quitting and were giving Von I
week's notice thereof Von asked why and Goff said that
they believed they could find work closer to their homes
that was more rewarding financially Von told the girls
that he disliked losing them and requested that they
reconsider They agreed The following Monday, Von
approached Goff at her work station and asked if she had
made up her mind Goff replied that she had not
According to the credited testimony of Goff, Von
expressed a wish that they stay adding that it would help
him in many •.,ays. Finally, sometime before lunch on
Thursday, October 31, Von again approached Goff this
time stating that he would like to know her decision
without further delay as he makes out the timecards on
Saturdays Goff then declared that she would remain. Von
inquired about Grabarek but Goff referred him to
Grabarek as she "could not speak for her" Before
leaving, Von told Goff that he was glad she had decided
"Applications for insurance coverage are filed by the Company about I
month before the end of the probationary period
"The pay journal maintained for Grabarek shows that she was employed
on September 9 (G C Exh 7 )
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to stay Von walked over to Grabarek and requested her
decision. Grabarek asked what Goff was going to do and
Von replied that she was going to stay Grabarek said she
would too 12 Supplementing the last exchange between
Von and Grabarek, Ann Doyle, who was about 3 feet
away at the time, testified credibly and without
contradiction, that Von said, "Mary I am making out the
time cards, I wish you would reconsider."
About 2 weeks before the discharge and close to the
time Goff and Grabarek gave notice of their intention to
quit, Von brought an order that Grabarek'had worked on
to employee Betty Johns. In the general conversation that
ensued, Von asked Johns, according to the credited and
uncontroverted testimony of Johns, what she thought of
"her" and told Johns the "girls" seemed to be working
out "real well " Johns, who had worked with Grabarek
and Goff, assumed Von was referring to the "new girls" .
"Mary and Ann " II In view of the foregoing, and the
entire record, I am satisfied, and I infer and find, that
Von's reference in this conversation with Johns was to
Grabarek and Goff
Grabarek did not report for work on November 6
By letter dated November 6 and sent from its office in
Mishawaka, Indiana, the Union requested the Respondent
to bargain with it as the representative of a majority of
Respondent's employees Respondent acknowledged
receipt of the request on November It. In normal course,
the Union's letter would probably have been received by
the Respondent on November 7.1°
Grabarek returned to work on November 7 with a
bandaged index finger. Because of this, she was unable to
continue with the job to which she had been assigned on
November 5. About 8 a m. that morning, Rinehart
reported Grabarek's condition to Von, told him that
Grabarek was unable to resume her normal duties and
advised that she was running out of work for Grabarek
Von and Rinehart talked it over and decided to assign
Grabarek to the job of assembling hangers This was
done Apparently, hanger assembly work was not a full
time pursuit as there were only a few orders for the
product Sometime thereafter, Von checked Grabarek's
timecards and found that she had worked only 3 full
weeks in approximately 9 weeks of employment He then
went to Leonard Johnson's office where he told Leonard
of his conversation with Rinehart and of his findings with
regard to Grabarek's attendance. Von suggested that they
let Grabarek go and Leonard agreed Von then asked
whether the discharge would have any bearing on "an
organization of a union being done at this time" and
Leonard replied, "as long as the record shows her work
wasn't satisfactory it shouldn't have any effect on it." At
the end of the workday, Von gave Grabarek two checks
and, with regrets, told her she was discharged. The
termination slip prepared for Grabarek reads, in pertinent
part, as follows "Reason for Unemployment
Unsatisfactory work accomplished during probationary
period."
D. The Events of November 22 and 26
About 10 a m on November 22, Leonard Johnson
assembled the employees in the rest area where he
delivered a campaign speech. The speech was prepared in
advance and read verbatim except for circled items on an
attachment which contained a listing of benefits conferred
by the Company during the period of its operation.' S In
his speech, Johnson, told the employees that the Union
had requested bargaining rights by letter dated November
6 and that the request was rejected by the Company on
November 11, that the Company and the Union had filed
petitions with the Board, and that they had consented to
an election to be conducted on December 10 Near the
end of the speech, Johnson admittedly declared, "We want
it made clear that we believe sincerely that you should
vote against the Union."
Although only noncircled items were mentioned in his
recitation of benefits bestowed, Johnson testified that all
were true including the circled items.16
After the speech, Johnson invited questions from the
group. Betty Johns responded asking, "Why the girls had
been let go when the week before they had been asked to
remain " Leonard Johnson answered first, stating that
Grabarek's work performance was not satisfactory and
her attendance record was poor After this Von stepped
forward and said he would amplify on Leonard's response
A sharp dispute arose at the trial concerning Von's reply
to Johns' question. The General Counsel called six
witnesses to testify on this factual issue, four of whom
were former employees of Respondent " Johns testified
that Von said, ". this was before they knew about the
union and that he wanted to, that they just, Mary just
wasn't working out, she had missed a lot of work with
illness, and that they had had to let her go " John's
testimony was corroborated, in major particulars, by five
other witnesses all of whom averred, generally, that Von
said, with the Union coming in he felt he had to let
Grabarek go.
Respondent, on the other hand, introduced testimony of
nine witnesses , five of whom were management
representatives or relatives of management 18 Von testified
that he responded to the question as follows. Grabarek
had completed only 3 full weeks in 9 weeks of
employment, the Company had tried her on many jobs
but she didn't work out, only one applicant in a hundred
is selected and retained, and it is not fair to the group to
keep an employee who works a little slower than others
At one point, Von categorically denied making any
reference to the Union, at another testified that he did not
recall using the word union and, still later, averred that he
"could have mentioned union in some way." Called in
general support, Leonard Johnson, Rinehart, union
steward Margaret Arter, Koporc and Larry Johnson flatly
denied that Von used the word union in his reply to the
question or that he said Grabarek was let go because the
Union was coming in Arter and Koporc also denied,
Rinehart denied then could not recall, and Charles E
"The findings of fact regarding these conversations are based on a
synthesis of the testimony of Von, Goff, and Grabarek
"The Trial Examiner clarifies his ruling on Respondent ' s objection to
that portion of Johns ' testimony wherein the witness declared that she
assumed Von ' s reference was to Mary and Ann (Tr p 139, 1 25, p 140,
I I, 12-13) He now overrules the objection and permits the answer to
stand
"The record does not show the actual date of receipt
"G C Exh 2
"In this group were the following (12) Gave time off whenever anyone
wanted it No questions asked (4) We never pushed for more production,
but we rewarded those who produced more ( 15) If you didn ' t like certain
jobs, we did not force you to do it We changed jobs for you
"Johns, Mildred Waggoner, Robert L Smith and Vivian Evans
"Leonard E Johnson , Jr, Guy Lavon Johnson, June Mary Rinehart,
Rudy Koporc, Jr - assistant sales manager and son of the general sales
manager, and Larry Johnson - Leonard's son
L. E. JOHNSON PRODUCTS 71
Harrington denied, the admitted and established testimony
of Leonard Johnson to the effect that he told the
employees to vote against the Union Other witnesses
offered by the Respondent - Murry Dale De Camp
(Johns' step-brother), Thomas Crowder and Harrington -
testified generally that they could not recall whether Von
used the word union And, George Arthur Ludlow,
another witness for the Respondent, after testifying as to
Von's reply and stating that he had no present recollection
of Von having mentioned the word union, finally
announced that he could not remember Von's reply
It is to be noted that, in the two foregoing versions of
Von's response, Johns' testimony was supported, in basic
essentials, by the testimony of Waggoner, Smith and
Evans. And, although these witnesses had quit
Respondent's employ, there is no evidence of ill feeling on
the part of any of them toward the Respondent and I do
not believe any part of their testimony was contrived or is
the product of imagination Accordingly, I credit Johns'
testimony and the mutually corroborative testimony of
Eugene Ives, Hazel Syson,19 Waggoner, Smith and Evans
and find that Von spoke on the occasion set forth in the
testimony as Johns said on the stand.
Respondent's witnesses denied generally the statements
attributed to Von by Johns but I do not consider these
denials worthy of reliance for the following reasons. To
begin with, Von vacillated and was uncertain in his denial
of the credited testimony of Johns Secondly, the
testimony of Leonard Johnson, Rinehart, Koporc and
Larry Johnson must be weighed in light of their status,
personal bias and interest in the outcome of this
controversy and their interpretation of what Von said was
obviously influenced by their own predilections More
specifically, Rinehart contradicted the established record
testimony of Leonard Johnson then vacillated, and
Koporc, Harrington and Arter contradicted this
testimony Finally, De Camp, Harrington and Crowder
were uncertain as to Von's reply and Ludlow repudiated
his earlier testimony In light of this contradiction,
vacillation, uncertainty and repudiation, as well as
demeanor, I do not regard the testimony of these
witnesses as reliable as I do not credit them
Later, the same day, Von went up to Johns at her work
station and, according to the credited and uncontroverted
testimony of Johns, said the girls "seemed to work out
pretty well but when June came back from vacation
. she . found that Mary's work just wasn't
satisfactory "
In a campaign letter to the employees dated November
26, Leonard Johnson reminded them of the Company's
"liberal personal leave programs "
E. Concluding Findings
The General Counsel argues that Grabarek was
discharged because of her own and other employees' union
activity and, alternatively, that the discharge was made in
anticipation of the Union's certification and for the
purpose of denying Grabarek the rights of union
representation For its part, Respondent contends that (1)
there is no direct evidence that it had any knowledge or
suspicion of Grabarek's union activity and (2) Grabarek
was discharged for valid, nondiscriminatory reasons
Grabarek was a probationary employee, having
commenced her employment on September 9. At the time
"Ives and Syson were employed by Respondent as of the date of the
trial
of her discharge on November 7, Grabarek had completed
nearly 60 days of the probationary period with only about
30 days remaining before she would have acquired
permanent status.
On or about October 9, Grabarek received a pay
increase Timecards and/or termination slips were
introduced into evidence by Respondent to show that, in
the period from January I, 1967, to the date of the trial,
other employees were discharged for the same reason as
Grabarek However, it is not without significance, that, of
the 18 employees in this group, only 520 were employed
more than 30 days and only Grabarek was shown to have
been discharged after having received a pay increase
When, on or about October 23, Goff and Grabarek
gave notice of their intention to quit, Von asked them to
reconsider And, when they delayed in their response, he
pressed for an answer Finally, on October 31, before
announcing her decision to remain, Von again asked
Grabarek to reconsider It further appears from the record
that, at or about the time Goff and Grabarek notified Von
they were quitting, Von told Johns the girls, meaning Goff
and Grabarek, were working out "real well "
Grabarek signed a union card on October 21 and
attended the first union meeting on October 31 While
Grabarek did not tell any of Respondent's managerial
officials or supervisors that she was a union member or
that she had attended a union meeting she did relate the
fact of her union membership to Ann Doyle, a conduit of
information to Von.
It is readily apparent from the record that Respondent
had knowledge of union activity in the plant from its very
inception and even before the formal advent of the Union.
Respondent categorically denies, however, any knowledge
of Grabarek's participation in the union effort at any time
prior to her discharge It is true, of course, that
knowledge of union activity is an essential element of the
General Counsel's case and that the burden of proving
this, as well as other essential elements, rests upon him
However, knowledge may be established by
circumstantial, as well as direct evidence, if there is
substantial evidence warranting an inference of knowlege
Here, there is undisputed direct evidence of company
knowledge of union activity at the plant in the reports
received by Von, starting in late September 1968, from
Doyle and other employees, in the interrogation of Penny
in late October and early November, and in the fact of
pervasive union talk in the plant the morning following
the union meeting on October 31 Thus, the evidence is
sufficient, I believe, to justify an inference of company
knowledge of Grabarek's involvement in the known union
activity.
The circumstances surrounding Grabarek's discharge,
moreover, themselves lend further support to the inference
that Respondent was aware of Grabarek's role in the
union campaign For almost 2 months, Grabarek had
been a satisfactory employee and such satisfaction was
expressed in a pay raise and in an earnest appeal to her to
reconsider a decision to quit Indeed, Von and Rinehart
admitted that Grabarek was a quality worker adding,
however, the observation that she lacked speed
Respondent's position, therefore, rests upon its
contention that Grabarek was discharged for
unsatisfactory work performance during her probationary
period. I find the contention lacking in merit for the
"Grabarek, Carolyn Cannon, Donald H Shoemaker, Charles Parks, and
William Hamilton Parks and Hamilton received increases but there is no
evidence whether they quit or were discharged
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons set forth below
In a pretrial statement Von assigned poor attendance as
the primary reason for the discharge At the trial,
however, he testified that poor attendance and
unsatisfactory work were both factors with major
consideration given to the latter
With respect to her work, the only evidence of any
criticism was the complaint voiced by Rinehart the
morning of November 7 But this was not so much a
criticism of Grabarek's work performance as it was of her
inability to perform due to a physical handicap At the
hearing, Von and Rinehart testified that Grabarek was
among the "slowest" employees presumably because of a
lack of dexterity in the use of her hands Neither,
however, was able to name any other employee in the
slow group And, although certain machines operated by
Grabarek were equipped with counters, individual
production records were not introduced assertedly because
such records are not maintained The evidence as to
Grabarek's alleged unsatisfactory work performance is,
therefore, quite inconclusive
Considering now the poor attendance contention, the
evidence shows that, in almost 9 weeks of employment,
Grabarek worked 3 full weeks, I hour short of completing
another full week and, overall, averaged 34 hours per
week By contrast, Penny, who worked about 15 weeks
and also averaged 34 hours per week, completed only 2
full weeks in the first 9 weeks of his employment and 3
full weeks overall Similarly, Robert Smith worked 10
weeks, averaged 34.8 hours per week, and had 3 full
weeks of work Both Penny and Smith quit Respondent's
employ It is also significant, as the General Counsel
points out, that William Ellis was rehired on April 4,
1969, after notice of "unsatisfactory attendance and
punctuality record accomplished during probationary
period "
When there is considered, in addition to the foregoing,
Leonard Johnson's statement in his November 26 letter
about the Company's "liberal personal leave program"
and his admission of the truth of circled items 12, 14, and
15 in his November 22 speech, it becomes clearly evident
that neither production nor attendance were matters of
primary concern to the Respondent in deciding whether to
retain or rehire an employee Accordingly, I find that
Grabarek's work performance and attendance records
were not substantial factors in Repsondent's decision to
discharge her.
Moving to the question of knowledge of Grabarek's
involvement in union activity at the time of her discharge,
while there is no direct evidence that Respondent was
aware of her participation therein, it is well settled that
knowledge or suspicion of union activity may reasonably
be inferred from the circumstances surrounding the
discharge." Such an inference is warranted here from
Respondent's admitted knowledge of widespread
organizational activity in the plant, as early as the end of
September 1968, when Doyle told Von that some people
had asked her to join the Union, and continuing through
October, when employees Klip, Grabill, Valentine, Goff,
and Frantz reported to Von on union activity and
meetings, the evidence regarding the interrogation of
Penny in late October and early November; the probable
receipt of the Union's bargaining request on the day of
the discharge; the precipitate nature of the discharge, the
fact that the discharge was made on the 59th day of
Grabarek's employment or one day prior to the date the
Respondent would have filed an application for insurance
coverage for Grabarek under its normal practice and
procedure, Von's inquiry of Leonard at the time the
decision to discharge was being made as to whether it
would have any effect on the organization that was going
on indicating thereby that union considerations were a
factor in the decision, the pretextuous nature of the
reasons assigned for the discharge, the relatively small size
of Respondent's facility and work complement, and the
totality of those factors. Whether or not Respondent
assumed Grabarek to be a leader in the union effort or
whether she actually played a prominent role in the
campaign is immaterial Respondent obviously decided
that Grabarek was most vulnerable to discharge because
of her probationary status and allegedly unsatisfactory
work performance and attendance records The discharge
was therefore sufficient to serve Respondent's purpose of
discouraging union affiliation
That Grabarek's union affiliation or activity was the
motivating reason for the discharge is clearly evident from
Von's November 22 statement to the employees. It will be
recalled that, in response to a question from Johns, Von,
on this occasion, declared that Grabarek was asked to
remain "before they knew about the union." Since
Respondent was aware of the organizational effort of its
employees from about late September the statement could
only have meant that Grabarek was asked to stay before
Respondent knew of her involvement in the Union
I find, therefore, on the basis of the foregoing and upon
the entire record and the resolution of the issues of
credibility that Respondent knew of or suspected
Grabarek's membership in the Union and discriminatorily
discharged her on November 7, 1968, to discourage
membership of its employees in said Union 2I
I further find that, by Von's interrogation of Penny in
October and November 1968 as to his own and other
employees' union sympathies and by his statement to the
employees on November 22 as to the reason why he had
discharged Grabarek, Respondent interfered with,
restrained or coerced employees in the exercise of rights
guaranteed in Section 7 of the Act.
Even if this could be considered a mixed motivation
case the result would be the same as I am convinced that
"a substantial or motivating reason" for the discharge was
Grabarek's union activity or affiliation. NLRB v.
Whitin Machine Works, 204 F 2d 883, 885 (C A 1) See
also N L R B v Elias Bros Big Boy, Inc, 325 F 2d 360,
366 (C A. 6), N L R B v. Barberton Plastics Products,
Inc , 354 F.2d 66 (C.A 6).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and ( 3) of the Act. It will, therefore, be
"See, e g N L R B v Lawson Printers, Inc. 408 F 2d 1004 (C A 6),
enfg 159 NLRB 771
"N L R B v Link-Belt Co . 311 U S 584, 602
L. E. JOHNSON PRODUCTS 73
recommended that Respondent cease and desist from such
unfair labor practices, and take such affirmative action as
may be required to effectuate the policies of the Act It
has been found that Respondent discriminatorily
discharged Mary Jane Grabarek, on November 7, 1968,
and thereafter failed and refused to reinstate her to her
former position it will, therefore, be recommended that
Respondent offer her immediate and full reinstatement to
her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of pay suffered by her as
a result of the discrimination against her, from the date of
the discrimination to the date of offer of reinstatement
Loss of pay shall be computed as prescribed in F W
Woolworth Company, 90 NLRB 289, and interest on such
backpay shall be computed at 6 percent per annum, in
accordance with Isis Plumbing & Heating Co , 138
NLRB 716 Respondent shall make available to the
Board, upon request, payroll and other records necessary
to facilitate the determination of backpay due.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, the Trial Examiner
makes the following
CONCLUSIONS OF LAW
1. L E Johnson Products, Inc , Respondent herein, is,
and at all times material herein has been, an employer
engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and the jurisdictional standards of the Board
2 International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW,
is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the
Act
3. By discharging Mary Jane Grabarek, on November
7, 1968, and thereafter failing and refusing to reinstate her
because of her membership in the Union, Respondent has
discriminatorily discharged said employee to discourage
membership in a labor organization, thereby engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4 By interrogating Michael Penny, in October and
November 1968, as to his own and other employees' union
sympathies and by telling the employees, on November
22, 1968, why it discharged Mary Jane Grabarek, thereby
interfering with, restraining and coercing employees in the
exercise of rights guaranteed in Section 7, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
employees because of their union affiliation or activity
(b) Interrogating employees concerning their own and
other employees' union sympathies
(c) Telling employees that it discharged Mary Jane
Grabarek, because of her union affiliation or activity.
(d) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
right to self-organization, to form, join, or assist
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities
2 Take the following affirmative action which, it is
found, will effectuate the policies of the Act
(a) Offer Mary Jane Grabarek immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of
earnings which she may have suffered by reason of the
discrimination against her in the manner set forth in "The
Remedy."
(b) Notify Mary Jane Grabarek if she is presently
serving in the Armed Forces of the United States of her
full right to reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze and compute the amount of
backpay due under the terms of this Recommended
Order
(d) Post at its place of business in Elkhart, Indiana,
copies of the attached notice marked "Appendix "I"
Copies of this notice, on forms to be furnished by the
Regional Director for Region 25, shall, after being duly
signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 14
IT IS FURTHER RECOMMENDED that all allegations of the
complaint not specifically found to be in violation of the
Act be dismissed
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record, it is hereby
recommended that Respondent, L E Johnson Products,
Inc , of Elkhart, Indiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from.
(a) Discouraging membership in International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or in any other
labor organization, by discriminating in regard to the hire
or tenure or terms and conditions of employment of its
"In the event that this Recommended Order is adopted b) 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 a 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 the Regional Director for
Region 25, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discourage membership in
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, or any other labor organization, by
discriminating in regard to the hire or tenure or terms
and conditions of employment of our employees
because of their union affiliation or activity, except as
authorized in Section 8(a)(3) of the Act
WE WILL NOT interrogate employees concerning their
own and other employees' union sympathies
WE WILL NOT tell employees that we discharged an
employee because of her union affiliation or activity
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
the right to self-organization, to form, join or assist the
above-named Union, or any other labor organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activites for the
purpose of mutual aid or protection, or to refrain from
any and all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, in conformity with Section 8(a)(3) of the
Act
WE WILL offer Mary Jane Grabarek immediate and
full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority
and other rights and privileges, and make her whole for
any loss of pay she may have suffered by reason of the
discrimination against her
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States, of her right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
L E. JOHNSON
PRODUCTS, INC
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921