Laminating Services, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1967

167 N.L.R.B. 234 (N.L.R.B. 1967)

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laminating Services , Inc. and International Union
of Electrical , Radio and Machine Workers,
AFL-CIO. Cases 9-CA-4090 and 9-CA-4136
August 29, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On April 25, 1967, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent and the
Charging Party filed exceptions to the Decision and
supporting briefs, 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 Na-
tional 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 the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications:
Respondent, located in Louisville, Kentucky, is
a manufacturer and processor of wood and plastic
wall coverings. At the beginning of October 1966,
it had approximately 30 nonsupervisory production
and maintenance employees. On approximately Oc-
tober 10, the International Union of Electrical,
Radio and Machine Workers, AFL-CIO, began an
organizational campaign among these employees.
Employees of Respondent attended several union
meetings in October, up to and including October
21. On October 19 the Union's International
representative mailed to Respondent a list contain-
ing the names of 15 of Respondent's employees
who had been designated as the Union's in-plant or-
ganizing committee. On the same day the Interna-
tional representative mailed to Respondent a letter
claiming majority status and requesting recognition
as exclusive bargaining agent. Respondent received
these communications in due course.
' The charges involving the other two were withdrawn and con-
sequently no findings were made as to the reason for their dismissal
About October 11, Respondent began interrogat-
ing employees about the Union's activities, and on
October 21 one of its supervisors, together with an
officer of the Company, parked in an automobile
across the street from the hall in which the Union
was having a meeting of Respondent's employees.
The Trial Examiner found that the above conduct
constituted unlawful interrogation and surveillance
of employee activity in violation of Section 8(a)(1),
to which findings no exceptions were filed. In addi-
tion, two of Respondent's leadmen, during this
period, actively promoted a rival union among the
employees. The Trial Examiner found that these
leadmen were supervisors within the meaning of the
Act and that their conduct was on behalf of Re-
spondent and constituted a separate violation of
Section 8(a)(1). These findings are adequately sup-
ported by the evidence.
Between October 17 and 28 the Respondent
discharged or laid off 11 employees. Of these 11,
Respondent contends that 8 were laid off because
its production needs could no longer support them.
The Trial Examiner found that there was no
economic justification for these layoffs. He further
found that all eight were known union supporters
and that at least six were dismissed because of their
union activity.' These findings are adequately sup-
ported by the evidence, and we adopt them. The
remaining three employees, Francis Renfro,
Richard Compton, and John O'Bryan, the last hav-
ing been identified to Respondent as the union
leader, were allegedly discharged for misconduct or
poor working habits. The Trial Examiner found that
Compton and O'Bryan were discharged because of
their union activity, which finding is adequately
supported by the evidence and is hereby adopted.
A 12th employee, Nima Jecker, was discharged, al-
legedly for tardiness and absenteeism, on
December 9, 1966, some 6 weeks after the first se-
ries of dismissals but still during the Union's or-
ganizational campaign. The Trial Examiner found
that Nima Jecker and Francis Renfro of the first
group of 11, were discharged for cause and not for
their union activity. We disagree.
Renfro was allegedly discharged on October 18,
although his actual termination did not take place
until October 21, when he returned to work after 2
days' absence. The reason assigned by Respondent
for Renfro's discharge was his intoxication on Oc-
tober 18 while at work. C. L. Westray, the Respond-
ent's president, testified that on the afternoon of
October 18 he found Renfro showing signs of intox-
ication and that immediately thereafter he in-
structed one of his supervisors to discharge him.
Respondent asserts that when Westray discharged
Renfro, he had no knowledge of Renfro's alcoholic
proclivities and that he was motivated entirely by
Renfro's obvious condition of inebriation at the
time.
167 NLRB No. 31
LAMINATING SERVICES, INC. 235
However Renfro had been employed by Respond-
ent for over 2 years. His practice of drinking dur-
ing lunchtime was a matter of common knowledge,
and indeed , in so small a plant , the fact of Renfro's
drinking could hardly be concealed. It is clear that
Supervisor Rich knew of Renfro's drinking habits
and on one occasion disciplined him for his drinking
by sending him home. In the light of such facts, it is
difficult to believe that Renfro's drinking did not
come to Westray's attention, particularly, as Wes-
tray conceded, he had frequent occasions to be in
the production area, which was adjacent to his of-
fice.
The actual delay in terminating Renfro is indeed
a suspicious circumstance, but we assume that it
was Westray' s intention to have Renfro discharged
on October 18, and not on October 20, when he
learned that Renfro was 1 of the 15 employees
designated by the Union as its organizing commit-
tee. However , such assumption does not make un-
reasonable an inference that the October 18
discharge was discriminatorily motivated. Respond-
ent had reasonable grounds for knowing or believ-
ing that Renfro was supporting the Union. Renfro
had signed a prounion petition in mid -October at
the request of John O'Bryan. Respondent ap-
parently launched its antiunion campaign on Oc-
tober 11 , interrogating employees Jecker , Renfro,
Dermody, and others throughout the following
week. Renfro was interrogated by Westray on Oc-
tober 17, the day before his discharge. That
Respondent had already adopted a policy of op-
position to union organization and a determination
to frustrate it can hardly be denied. When on Oc-
tober 17, Supervisor Rich learned of O'Bryan's ac-
tivities from employee Dermody, he exclaimed,
"Well, this ... is going to stop this evening," and
O'Bryan was discharged that day.
Evaluating the facts in connection with Renfro's
discharge in the context of Respondent 's unfair
labor practices and wholesale discriminatory
discharges , we are impelled to the conclusion that
Renfro would not have been summarily discharged
but for his known or suspected union activities.
Respondent had tolerated Renfro's drinking for
over a period of 2 years and had meted out only a
mild discipline and that on only one occasion. In-
sofar as the record shows he was a competent em-
ployee and had never been disciplined for any cause
other than his drinking , the prior lenient treatment
accorded Renfro is in sharp contrast to his summa-
ry discharge , and suggests that a lesser discipline,
if any, would have been meted out on October 18,
but for Renfro's union activities.2 We are of the
opinion, and find, contrary to the Trial Examiner,
that Respondent discharged Renfro in violation of
Section 8(a)(3) of the Act.
Likewise, we find that Respondent discharged
employee Nima Jecker because of her union activi-
ties and sympathies rather than, as the Trial Ex-
aminer found , because of excessive tardiness and
absenteeism. Jecker had been employed for more
than 2 years, and had a rather poor record for ab-
senteeism and tardiness. Tardiness , we conclude,
was not a shortcoming peculiar to Jecker, for
Respondent had a policy of docking employees one
quarter hour's pay whenever they were late more
than 5 minutes and the record does not suggest that
absenteeism was a ground for discharge. There is
no evidence of any practice of oral or written
warnings or of discipline for poor attendance. In-
deed , Respondent , as clearly appears , made exten-
sive use of part-time employees. Yet, on November
10, approximately 2 weeks after the previous series
of discharges ended and while the Union's cam-
paign was still in progress, Jecker received an oral
warning from Westray regarding her tardiness. On
November 19, Westray handed her a written warn-
ing which recited that it was a "second notice," and
that: "Unless you can put in full time, on time, it
will be necessary that we terminate your employ-
ment with us," although between the oral warning
on November 10 and the written notice, Jecker had
not been tardy at all, and had been absent only 1
day, plus one-half day on the date of the notice. Sig-
nificantly, however, when Westray delivered this
message to Jecker, he at the same time interrogated
her as to her feelings about the Union and how she
was going to vote. Following this "second notice,"
Jecker's attendance record was exemplary for 2
weeks. In the third week she was late three times,
twice by 8 minutes and once by 5 minutes, and was
discharged.
As we have observed, Jecker was interrogated by
Westray on October 11 and Jecker's name was
among the 15 names submitted by the Union to
Respondent as names of employees constituting the
Union 's organizing committee . In the light of the
Respondent's known antipathy to the organization
of its employees and the campaign of unlawful inter-
rogations and discharges designed to frustrate union
organizing among its employees , it is clear to us that
the warnings to Jecker issued not because of her
poor attendance record but because of her union ac-
tivities and that Respondent 's conduct in that re-
gard was part of a plan to harass Jecker and ulti-
mately to discharge her, a plan which because of
Jecker's known proclivities came to early fruition.
In the circumstances , we find that Jecker 's lateness
was a mere pretext for her discharge, that her
discharge was discriminatorily motivated, and that
by discharging her Respondent violated Section
8(a)(3) and (1) of the Act.3
The Trial Examiner concluded that, in the case of
2 Betts Baking Company , 155 NLRB 1313 , 1321, enfd 380 F 2d 199
(CA 10)
3 See Arkansas Grain Corporation, 166 NLRB 111.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Bryan, the Respondent was prepared to offer
reinstatement, and that O'Bryan's discharge would
have been promptly rescinded but for O'Bryan's
having found employment elsewhere. For one
thing, we do not think the evidence justifies the con-
clusion that Respondent was prepared to offer rein-
statement to O'Bryan.
O'Bryan was discharged on October 17 when
Respondent was informed in the course of its un-
lawful interrogation of employees that "O'Bryan
was the head of the Union." That evening O'Bryan
asked Westray for his job back and Westray's
answer was a noncommittal "You bring those
checks in in the morning and we'll talk about getting
your job back." This response certainly cannot be
construed as an unequivocal invitation to return to
work.4 Westray testified that he was prepared to
take back O'Bryan when the latter appeared at his
office the next morning, but, as he admitted, the
offer was to -be conditioned, for one thing, upon
receiving assurances from O'Bryan that he would
not roam around the plant and, for another, on the
undisclosed results of a "final" investigation that
Westray had to make before he could give him a
firm offer of reinstatement.5 We also observe that
Respondent was strongly opposed to the union or-
ganization of its employees and that even after the
conversation with O'Bryan on the morning of Oc-
tober 18 it persisted in its efforts to frustrate the
union activities of its employees in its unlawful in-
terrogation and surveillance of their activities and,
most significantly, as we and the Trial Examiner
have found, by discharging employees on October
21, 24, 26, and 28 and on December 9 because of
their support of the Union. In our appraisal of
Respondent's conduct, when consideration is given
to the fact that Respondent knew that O'Bryan was
"the head of the Union" and to its continued unlaw-
ful con_duct,_we cannot accept the Trial Examiner's
conclusion that Respondent was prepared to offer
O'Bryan reinstatement.
But whatever Respondent's intentions might
have been, we need not speculate on this score. It
is well settled that where employees have been dis-
criminatorily separated from their jobs, the em-
ployer's intention to offer them reinstatement is no
substitute for the actual making of such an offer.6
With regard to Cecil Dermody, who was dis-
criminatorily discharged on October 28, we con-
clude, for the reasons expressed in connection with
O'Bryan, that ' Respondent had not fulfilled its
obligation under the Act to offer unconditional rein-
statement to Dermody. Again we observe that in
the context of its continued violations of the Act,
Westray's query of Dermody 1 week after the
latter's discharge (whether he "would like" or
"would want" to come back to work) is not to be
taken as evidence of an intent to offer him uncondi-
tional reinstatement. Indeed, Westray's remark to
Dermody, "Well, do you think you ought to call
your union friend, Mr. Paul Rinaldi, and ask him if
you could come back to work here?" a short time
thereafter indicates quite clearly that Westray har-
bored a continued resentment against Dermody for
his support of the Union. Nor is Dermody's reply,
"No thank you, not at this time," to Westray's
original query, to be taken, in the absence of an
unequivocal offer of reinstatement, as an unequivo-
cal rejection of employment.7 We conclude, there-
fore, that the Trial Examiner was in error in finding
that Respondent was absolved from offering rein-
statement to Dermody and O'Bryan, in failing to
recommend reinstatement for O'Bryan and
Dermody, in denying O'Bryan all backpay, and in
limiting the backpay due Dermody to the period of
I week following his discharge.
THE REMEDY
Having found that Respondent engaged in unfair
labor practices in addition to those found by the
Trial Examiner, we shall order Respondent to cease
and desist therefrom and to take the additional
affirmative action necessary to effectuate the pur-
poses of the Act.
We have found, contrary to the Trial Examiner,
that Respondent discriminatorily discharged Fran-
cis Renfro and Nima Jecker and that it was
obligated to, but did not, offer proper reinstatement
to John O'Bryan and Cecil Dermody. We shall
therefore order Respondent to offer immediate and
full reinstatement to Francis Renfro, Nima Jecker,
John O'Bryan, and Cecil Dermody, and make them
whole for any loss of earnings they may have suf-
fered by reason of the discrimination against them
by payment to each of them of a sum of money
equal to the amount the employees normally would
have earned as wages from the date of the em-
ployees' discharge to the date of offer of full rein-
statement, computed with interest at the rate of 6
percent per annum, in accordance with the formulas
set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB
716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
4 Leeding Sales Co., Inc., 155 NLRB 755, 756
S Westray testified that he told O'Bryan on the evening of his discharge
that "The only thing that is going to stand in the way of this job is I want
to check with other employees about whether or not they 'll cooperate with
you, take you back and I won 't have any morale problem in the place."
6 See Crown Handbag of California, 137 NLRB 1162, 1164; Leeding
Sales Co, Inc , supra.
' Leeding Sales Co, Inc, supra, Lipman Bros, Inc, 164 NLRB
850, Hatch Chevrolet, 136 NLRB 284, 293
LAMINATING SERVICES, INC.
ent, Laminating Services, Inc., Louisville, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
(1) Delete paragraph 2(a), and substitute the fol-
lowing:
"(a) Offer to reinstate John Biscan, Richard
Compton, Channing Leucht, James Aliff, William
Watkins, Randall Jolly, Francis Renfro, Nima
Jecker, John O'Bryan, and Cecil Dermody to their
former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings suffered by reason of the discrimination
against them, in the manner described in the section
of the Trial Examiner's Decision entitled `The
Remedy,' as modified in the section of the Board's
Decision herein entitled `The Remedy."'
(2) In paragraph 2(c), in line 2 thereof, substitute
for the words "to be furnished" the words, "on
forms provided."
(3) Delete the first indented paragraph of the
Appendix and substitute the following:
WE WILL offer John Biscan, Richard Comp-
ton, Channing Leucht, James Aliff, William
Watkins, Randall Jolly, Francis Renfro, Nima
Jecker, John O'Bryan, and Cecil Dermody
their former jobs and pay each of them for
wages he or she lost as a result of his or her
discharge.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This matter,
heard at Louisville, Kentucky, February 14 and 15,
1967, pursuant to charges filed the preceding October 26,
and December 16, and complaints issued December 29,
1966, and January 6, 1967, and consolidated by order of
the Regional Director entered January 6, 1967, presents
questions as to whether Respondent, herein called the
Company, discharged 10 employees' for activity on be-
half of the Charging Party, herein called the Union, and
engaged in other acts of interference, restraint, and coer-
cion violative of Section 8(a)(1) of the Act. Upon the en-
tire record, including my observation of the witnesses,
and after due consideration of the able briefs filed by the
Company2 and by General Counsel, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Kentucky corporation engaged at
Louisville in the processing and manufacturing of wood
and plastic wall coverings, annually ships in excess of
$50,000 worth of goods to points outside the State, and is
' The complaints name I I dischargees , but the name of one was
stncken by mutual agreement at the opening of the hearing
2 I have , however, ignored the portions of the graphs attached to the
237
engaged in "commerce" and in operations "affecting
commerce" within the meaning of Section 2(6) and (7) of
the Act. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The Union commenced organizing the Company's em-
ployees early in October 1966. The complaint alleges that
during the next 3 months Company President C. L. Wes-
tray, Company Treasurer John Tarullo, and Leadmen
Harris Rich, Edwin Olliges, and Martin Schwartz en-
gaged in various acts of interference, restraint, and coer-
cion in violation of Section 8(a)(1). The Company, in ad-
dition to denying that it committed unfair labor practices,
placed in issue the supervisory status of the leadmen, but
in its brief acknowledges that Rich is "on the manage-
ment side of the ledger" and makes no argument that he
is not a supervisor.
1. Conduct of President Westray
Employee Nima Jecker testified that about a week be-
fore she signed a union card (i.e., about October 11,
1966), Company President Westray called her and
another employee to his office where he asked Jecker if
she had received a letter from the Union, and how she
would vote. On this occasion Westray expressed the view
that the employees did not need a union in so small a
plant. Jecker further testified that on November 19 Wes-
tray, in the course of handing her a warning notice regard-
ing her attendance, asked "What do you think about the
Union?" and "How are you going to vote?" Jecker par-
ried both questions by stating that she did not know.
Employee Francis Renfro testified that on October 17
Westray called him and employee Jim To-we into the
lunchroom, where Westray asked if Renfro had heard of
any union activities or had seen the petition being circu-
lated by the Union, to both of which Renfro responded in
the negative. According to Renfro, Westray then asked
whether Renfro thought the people in the plant wanted a
union , and added that if so, Westray would get in touch
with Paul Priddy, the president of Local 89 of the Team-
sters Union, a personal friend of his, and would help get
that local in.
Westray, admitting that he talked to employees about
unions, as well as about other subjects, denied that he
ever asked Jecker if she were going to vote for or against
the Union, denied that he ever expressed a preference for
one union over another, and averred that he had met Prid-
dy, the president of Local 89, only once, and then on a so-
cial occasion some 12 to 15 years before.
I credit the testimony of Jecker and Renfro, except that
I do not find that Westray referred to Priddy as a "per-
sonal friend." In this connection it may be noted that em-
ployee Biscan attributed to Leadman Schwartz the obser-
vation that "Mr. Westray was a personal friend of Mr.
Paul Priddy's, that they grew up together." Schwartz was
not asked to and did not deny this statement, but did testi-
fy that he recalled Westray's having expressed a
preference for Local 89 over another union 5 years be-
Company's brief which purport to reflect company records prior to Au-
gust 6, 1966, as no such records are in evidence.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore. A close reading of Renfro's testimony discloses that
the reference to Priddy as a personal friend of Westray
may well have been a parenthetical comment inserted by
Renfro and not a part of the statement he attributed to
Westray. So construed, the comment, like the one Biscan
attributed to Schwartz, may have reflected nothing more
than a common misapprehension at the plant. In any
event, I find that Westray engaged in the interrogation
and offer to bring in Local 89 as testified to by Jecker and
Renfro, and that by his questions and statements to them
the Company violated Section 8(a)(1) of the Act.
2. Conduct of Harris Rich and John Tarullo
As noted above, Rich's supervisory status appears to
be conceded, and in any event is well established on this
record. According to employee Cecil Dermody, on Oc-
tober 17 Rich asked him if he had heard anything about
the Union that morning , and who Dermody thought was
the head of the Union. When Dermody replied that he
thought John O'Bryan was the head, Rich continued:
"Well, this-is going to stop this evening." O'Bryan was
discharged late that day. About a week later, according to
Dermody, Rich asked him whether he voted for the
Union in the last election.
Employee John Biscan testified that on October 18
Rich asked him if he had received a letter from the Union,
if anybody had asked him to sign a union card, if he knew
of anyone who was "asking people to sign any paper
about the Union," and how he felt about a union. Em-
ployee Randall Jolly testified that on October 21 Rich
called him back into the wood storage area, where (to
quote Jolly):
He asked me if I knew anything about the Union,
and I told him I did. He asked me if I was for or
against it , and I told him it was my business. And he
said, well, if we were wanting a Union in there, he
knew of a much better Union that we could have in
the plant. And he said at that time that the three of
us, William Watkins, Jim Aliff, and myself, were due
a raise, a 15 cent raise, but he said if the Union come
in or by having the Union activities there in the plant
there wouldn't be any chance of it. But if we didn't
vote for it, he wishes we'd talk it over with each
other, we would get our raises.
Jolly further testified that on October 25 Rich asked
again if Jolly was for the Union and when Jolly replied
that he was, Rich shook his head negatively.
Rich denied discussing "union questions" with any of
the employees, and denied knowing about O'Bryan's im-
pending discharge at the time of the alleged conversation
between Rich and Dermody. I credit the employee
testimony detailed above over Rich's general denial.
Manifestly the interrogation, threats, and promises em-
braced by that testimony establish company violations of
Section 8(a)(1).
Rich admitted that he and Company Treasurer John
Tarullo parked across the street from the union hall for 10
to 15 minutes on the night of October 21, at a time when
they knew the Union was having a meeting there of com-
pany employees. Rich testified that he recognized only
' Other acts of interference alleged with respect to Schwartz and 01-
liges are cumulative in the light of those found above as to Rich and Wes-
tray, and I therefore see no need to discuss them in connection with the
violations of Sec 8(a)(1)
one employee there, but several employees testified that
they saw Rich or recognized his car. Rich's explanation
that he hoped to find his stepson there to deliver a
message seems a bit strained, and the failure to call Tarul-
lo as a witness gives rise to an inference that his story
would not have supported that told by Rich. See W. H.
Miner, Inc. v. Peerless Equipment Co., 115 F.2d 650,
653 (C.A. 7), cert denied 312 U.S. 687; N.L.R B. v. Sam
Wallick, d/bla Wallick and Schwalm Company, 198 F.2d
477, 483 (C.A. 3), citing 2 Wigmore, Evidence § 285.
As previously indicated, I do not regard Rich as a credible
witness Under all the circumstances, I find that Rich and
Tarullo were engaging in surveillance of the union meet-
ing place, and that the Company thereby violated Section
8(a)(1).
3. Martin Schwartz and Edwin Olliges
Both Schwartz and Olliges actively sought to have em-
ployees sign a petition in favor of Local 89 of the Team-
sters Union. Such conduct is manifestly violative of Sec-
tion 8(a)(1) if engaged in by a member of management.3
The issue here, therefore, is whether either of them is a
supervisor within the meaning of the Act.
In a representation proceeding in 1962 the Regional
Director found that Olliges, Schwartz, and Rich were not
supervisors. He reached the opposite conclusion as to all
three men in a representation proceeding in 1966. The
testimony taken in the latter proceeding was introduced
into the instant record, which also contains further
testimony on the subject. Although the matter is not free
from doubt, and although I do not agree with the Regional
Director's statement that the duties of Olliges and
Schwartz are the same or similar to those of Rich,4 I find
on the entire record that Olliges and Schwartz had super-
visory status. In this connection I note that they were
paid over 50 percent more than the next highest paid em-
ployee; they together with Rich and the company officers
distributed paychecks; President Westray would tell
them to relay instructions to an employee that he or she
was fired; they and Rich assisted company officials in the
assignment of work to employees; employees off sick
would report to Rich, Schwartz, or Olliges; employees
leaving work because of illness would do the same; an
employee who forgets to punch his timecard may go to
one of those three or to a company official to have his
timecard validated; and Westray looks to them "as to the
progress of the work."
Accordingly, I find that by having supervisors circulate
a petition on behalf of a labor organization, the Company
violated Section 8(a)(1) of the Act.
B. The Discharges
I John O'Bryan
O'Bryan played a leading role in the Union's efforts to
organize the Company's employees, a campaign which
began about October 10, 1966, only a week before
O'Bryan's discharge. O'Bryan's prominence in the Union
" See Decision and Direction of Election in Case 9-RC-7026, fn 1, in
evidence in this case as G C Exh 5
LAMINATING SERVICES, INC.
was no secret . On October 17, the day O ' Bryan was
discharged , Harris Rich (whose supervisory status is now
conceded and is established on this record) asked em-
ployee Cecil Dermody who was the head of the Union.
Dermody replied that he thought O'Bryan was the head.
At the time , Rich continued , "Well, this -is going to stop
this evening."
O'Bryan was in fact discharged that evening, when
Rich , acting on orders from Company President Westray,
gave O ' Bryan two final paychecks and told him he was
discharged . O'Bryan testified that Rich said the Company
was "going to go to all women " and that when O'Bryan
asked if his union activity had anything to do with his
discharge , Rich mumbled something which O'Bryan
could not distinguish . According to Rich , he had had no
word of this impending action until that afternoon, and
Westray testified that he decided to let O 'Bryan go that
day after twice discovering that O 'Bryan was not attend-
ing to his work . There is considerable evidence in the
record that O'Bryan had a proclivity for wandering about
the plant away from his job. But there is also evidence
that he was no more guilty of this offense than many other
employees . Moreover , O'Bryan expressly contradicted
the testimony of Westray as to the two most recent in-
stances which allegedly "triggered" the discharge, and I
credit O ' Bryan in this respect , noting in passing that the
Company failed to call as a witness one Hudson who
Westray alleged was a witness to the final episode.
According to O'Bryan' s own testimony , however, in
the evening of the day he was discharged he telephoned
Westray in an effort to get his job back. Westray told him
to come to the office the following morning . O'Bryan's
testimony about the telephone conversation continued:
He asked me if I got the checks, and I said yes, I
still have them , and I hadn 't cashed them yet. And
Mr. Westray laughed over the phone and says,
"Well, that 's good ." And he said , "You bring those
checks in in the morning and we 'll talk about getting
your job back."
The following morning O'Bryan came to the office, but
there is some conflict in the testimony over what ensued.
According to Westray, he was prepared to take O'Bryan
back upon receiving the latter's assurances that he would
no longer roam about the plant , but O' Bryan when he
came in thanked Westray for giving him the opportunity
to return and said he had obtained a job at the REA.
O'Bryan testified that he said nothing about returning to
work for the Company (apparently he had changed his in-
tentions in this respect over night ) and that he merely
asked for a recommendation to the REA where he had
already inquired and thought he had a chance of
employment.
In sum , the case of O'Bryan comes to this: he is known
and identified as the union leader, and as soon as this
identification is made , Rich announces that a stop will be
put to the union drive that night . That afternoon O'Bryan
is discharged , and I find that the assigned grounds are
pretextuous . But Westray was ready to reconsider and to
reemploy O'Bryan , when the latter made a special plea
for his job. It may well be that Westray believed that the
now humbled O'Bryan would no longer press his or-
ganizational activity. Be that as it may, I find that O'Bryan
was discharged for union activity, but that the dis-
charge would have been promptly rescinded but for his
having found employment elsewhere. I shall therefore
recommend no affirmative relief in O'Bryan's case.
2. Francis Renfro
239
Renfro worked at the Company from the fall of 1964
until late October 1966 . His last full day of work was
Tuesday, October 18 , 1966. He was out sick on October
19 and 20, and was discharged when he arrived at work
on October 21. The sequence of dates just recited as-
sumes some significance as Renfro 's name was included
on a list of the Union's organizing committee which the
Union mailed to the Company on October 19 and which
was delivered (according to the receipt introduced in
evidence) to the Company on October 20.
Renfro had signed a prounion petition at the request of
John O ' Bryan in mid -October , and on the night of Oc-
tober 18 signed a union card and agreed to serve on the
organizing committee . As found above , on the afternoon
of October 17 Company President Westray spoke to
Renfro about the Union . According to Westray, he
discovered on the afternoon of October 18 that Renfro
was drunk, and ordered his immediate discharge , but the
people who prepared the paychecks had already left, so
Westray arranged to have Renfro paid off the following
morning. Rich corroborated Westray's version of
Renfro 's termination.
Renfro testified that he had nothing more to drink dur-
ing the workday of October 18 than his customary two
beers at lunch . He admitted that on one occasion many
months earlier Rich had sent him home because he was
too intoxicated to work. Although this occasion seemed
to stand out in the memory of several witnesses , it is clear
that Renfro ' s tendency to overindulge in alcoholic
beverages was well known to his fellow employees. In-
deed , General Counsel seeks to turn this to his ad-
vantage, arguing that as Westray was often on the plant
floor , he must have known of Renfro 's tendency in this
respect, but tolerated it until Renfro deceived Westray by
concealing his support of the Union . This theory has at
least a coincidence of time to support it, for it will be re-
membered that the O ' Bryan episode , described above,
occurred October 17 and 18, and the latter date was also
the last day Renfro was at work. It may be that the reason
Renfro 's check was awaiting him when he arrived at work
on October 21 was that Westray learned on October 20
of Renfro 's union activity , and seized upon his well
known tendency to overimbibe as a ground for discharg-
ing him.
On the record before me, however , this proposed anal-
ysis remains suspicion rather than proof . I am inclined to
credit Westray that he found that Renfro was showing
signs of intoxication on October 18, and discharged him
for that reason.
3. Richard Compton
Compton started work for the Company on Thursday,
Octoberl3 , 1966, and was discharged when he reported
for work on Monday, October 24. Compton was a high
school student, whose school days ended at 3 p.m. and
whose hours at the Company were intended to run from
3 until the last employees left work , which would range
from 4 p . m. the regular quitting time, until the overtime
workers left, often about 6 p . m. When Rich explained
Compton 's prospective hours to him , Rich indicated that
later in the fall the working hours could be expected to
run even later in the evening. During his brief tenure,
Compton worked the afternoons of October 13 and 14,
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the morning of Saturday , October 15 , and the afternoons
of October 17, 20, and 21 . He missed the afternoon of
October 18 , but worked all day on October 19 as he was
out of school that day.
On Friday evening , October 21 , Compton attended the
union meeting ; he saw Rich in the vicinity of the meeting
that night . Compton ' s next workday was Monday, Oc-
tober 24 . When he arrived at the plant and went to punch
his timecard , Rich told him , "There 's no need to look for
it," and handed Compton his final paycheck , adding: "We
won't be needing you any more ." According to Compton,
Rich gave Compton no explanation ; according to Rich,
he told Compton work was too slow and the Company
did not need him.
Westray testified that he employed Compton purely
out of charity , and let him go because of the irregularity
of the boy ' s hours, noting that on occasion "he didn't
show up at all" and one day he came in the morning and
wanted to work all day . Westray testified that he was
unaware of Compton ' s union "affiliations or associa-
tions," and Rich testified that he recognized only one em-
ployee , Cathy Judd, coming out of the union hall on the
night of October 21.
I note a contradiction between Rich and Westray as to
the reasons for letting Compton go , as one attributed the
dismissal to the boy ' s irregular hours and the other to an
impending economic layoff . Assuming that the Company
did not desire Compton 's attendance on a full day, it
would seem that he could have been apprised of this fact
in some less dramatic fashion than a summary discharge.
Also, his failure to report on one afternoon , and his work-
ing all day the following day, preceded his termination by
several days , but he was not even cautioned or reproved
for these offenses during the intervening period. For
reasons developed more fully infra, I do not credit the
Company 's explanation that economic circumstances dic-
tated a layoff at the end of October , but even if a cutback
had been in order , one may well wonder whether it would
have affected Compton , who worked approximately 10
hours a week.
As I view Compton 's case , the Company did indeed
employ him , as Westray testified, in a spirit of kindness
and charity . But when the object of this favor turned and
threatened to bite the feeding hand by supporting the
Union, the Company promptly fired him . In short, here
as in N.L.R.B. v . Condenser Corporation of America,
128 F.2d 67, 75 (C.A. 3), "There is considerably more
than coincidental connection between [his] attendance
at the meeting on one night and [his] discharge the fol-
lowing [working morning]." I therefore find that the
Company by discharging Compton for union activity vio-
lated Section 8(a)(3) and (1) of the Act.
4. Randall Jolly, William Watkins, and James Aliff
These three employees were all students at an elec-
tronics school and worked mornings at the Company.
They arrived for work and left together. Watkins and
Jolly were hired early in June 1966, and Aliff was hired in
late August. They all signed union cards on October 19.
Jolly's testimony as to his October 21 conversation with
Rich has been quoted above, as has Jolly's further
testimony that Rich on October 25 responded with a
negative shake of the head on hearing of Jolly's continued
support of the Union.
On Wednesday morning, October 26, Rich discharged
the three men (Watkins was absent at a funeral but
learned of his discharge later that day), stating that "work
slacked off and there wasn't enough" for them. Westray
on the witness stand affirmed that the three were laid off
for lack of work. On November 11, only 2 weeks after
their discharge, and 9 days after the filing of an unfair
labor practice charge in their behalf, the Company wrote
each of the three offering full-time employment, but each
rejected the offer because he had to spend half a day in
school.
The data which the Company submitted at the hearing
falls far short of establishing any need for a layoff. These
men were laid off in the week ending October 28. In that
week the amount of "orders booked" was the third
highest of any full week in September or October and the
second highest of the last 6 weeks. The same relative
figures hold true for "orders shipped" that week, and
although shipments dropped in the next 3 weeks, they
were no lower than for a 3-week period in August or a 2-
week period in September. The "backlog" at the end of
that week was slightly reduced from the two preceding
weeks, but exceeded that of 3 weeks before. And the
Company had already lost 2 full-time factory employees
at that time, O'Bryan and Renfro, out of a total of 12 full-
time factory employees. Even assuming some dropoff in
work (one employee, Leucht, testified to a slackening of
work in the shipping department), the Company's own
statistics furnish no explanation for the numerous separa-
tions in this weeks I therefore find that the Company
discharged Jolly, Watkins, and Aliff because Rich had
ascertained that Jolly was a union supporter, and cor-
rectly rersoned that his schoolmates, with whom he went
to and from work, were similarly inclined.
5. John Biscan , Cecil Dermody , and Channing Leucht
These three men, together with part-time employees
Reinhardt and Weaver, were discharged October 28 by
Westray with the explanation that work was slack. All
five were known union supporters as their names were in-
cluded in the list of the organizing committee which the
Union sent the Company a week before. We are not con-
cerned here, however, with Reinhardt and Weaver as the
charge filed in their behalf was withdrawn and they were
not named in the complaint.
Biscan was a comparatively new employee, having
been hired early in July. There is evidence that his at-
tendance record was none too satisfactory; this was not
urged as a ground for his discharge, but is put forward as
the reason the Company does not want to reemploy him.
Leucht was a temporary employee, who had been
scheduled to return to school in September (the month
before his discharge) but had postponed this event for
several months because of eye trouble. He did in fact
' The Company's defense of lack of work is further weakened by its hir-
ing of four employees within the next 2 weeks Moreover , it should be
noted that the Company had never before laid off an employee for lack of
work The Company's claim that its backlog had substantially decreased
is also ill-founded, as the backlog remained relatively constant for the 7
weeks preceding the layoff, and the shipments for the past 6 weeks had ex-
ceeded the orders by only a small amount . Even if some layoff might have
been justified, the figures fall far short of suggesting a curtailment of staff
even remotely resembling that which the Company undertook here As
shown infra, out of 12 full-time and 8 part-time factory employees, the
Company between October 17 and 28 lost all but 6 full-time men
LAMINATING SERVICES, INC.
return to school in January 1967. Cecil Dermody, who
had been hired in October 1961, quit May 23, 1966, but
was reemployed July 6. The testimony of Dermody and
Westray is in sharp conflict as to whether Westray on
rehiring Dermody agreed to restore his seniority status.
Dermody testified that Westray upon reemploying him
said he would receive his seniority , but that when Wes-
tray laid him off and Dermody asked about his seniority,
Westray replied , " I can 't change records ." Westray on
the witness stand recalled that Dermody had mentioned
his seniority rights at the time he returned , but testified
that the Company "did not give him his seniority ." I find
that Westray at the time of rehiring Dermody gave the
latter reason to believe that his seniority was being
restored.
As already noted , I find that the statistics furnished by
the Company fall far short of establishing that the Com-
pany 's actions in the last week of October had their gene-
sis in any loss of business . The record establishes that
between October 17 and 28 the Company lost 6 of its 12
full-time factory employees and all 8 of its part-time fac-
tory employees . 6 In every week following the Labor Day
holiday Dermody worked overtime . I simply cannot
credit the Company's explanation that on top of all the
previous discharges in that period , it included Dermody,
Biscan , and Leucht because it no longer needed them; the
figures the Company supplied will not support such a mo-
tive . I find that the real reason for their discharge was
their avowed support of the Union . Cf. Shattuck Denn
Mining Corporation v. N.L.R.B., 362 F.2d 466, 470
(C. A. 9).7
On November 3, 1 week after Dermody 's discharge he
returned to the company plant to see his brother . On this
occasion Westray asked him whether he would come
back to work , or whether he wanted his job back, to
which Dermody (who was about to start work at General
Electric) responded : "No, thank you . Not at this time."
On November 11, the Company wrote letters to the part-
time employees offering them full-time jobs , which they
refused . On November 18, Dermody , who had been laid
off at General Electric asked Westray if he had work for
Dermody until General Electric recalled him . Westray
said , "Well, do you think you ought to call your union
friend , Mr. Paul Rinaldi , and ask him if you could come
back to work here ?" Westray then said he would let
Dermody know through Dermody 's brother the next day,
and the word when it came was negative.
6. NimaJecker
Jecker, whose name appeared on the list of the union
organizing committee, was discharged December 9,
1966, allegedly for continued and habitual tardiness.
Jecker had been orally warned for tardiness early in
November and received a written warning from Westray
for that offense on November 19. The letter reads in part
as follows:
I spoke to you about this condition on Thursday,
November 10. At that time, I reminded you that you
were either late or absent every day during the
6 In addition to the discharges described above, employees Cobble,
Adams, and Stone quit or were discharged during the period. See G C
Exh 7
' Of the 10 men whose names were given the Company on October 20,
1966, as members of the Union's organizing committee, only 2 were still
employed after October 28 The five women on the list remained un-
241
preceding week. I also discussed with you your
failure to put in a full week during the preceding 11
weeks.
This is a second notice concerning your work record.
Unless you can put in full time , on time , it will be
necessary that we terminate your employment with
us.
Company records show that between the dates of the oral
and written warnings, however, Jecker had not been tardy
at all, and had been absent only I day, November 15. She
was also absent one-half day on November 18, the date
of the letter. Her attendance record was exemplary for
the 2 weeks following the written warning, but in the next
week she was tardy 3 days out of 5, twice by 8 minutes
and once by 5. At the end of that week she was
discharged.
General Counsel argues that the Company was seeking
to build a case against Jecker because of her union activi-
ty. It is true that prior to Jecker's support of the Union
her frequent absences and tardiness provoked no
warnings, that her record between the first and second
warnings was not such as to call for a second rebuke, and
that the second warning was accompanied by Westray's
inquiries into what she thought about the Union and
whether she would vote for it. On the other hand, when
an employee already warned for tardiness arrives for
work late three times in a 5-day week, the burden of
showing that her discharge was not for the stated reason
is indeed a heavy one. Jecker testified that when she came
for her final paycheck, Schwartz told her in the presence
of the office girl that he had warned her "that union was
going to mess you up." Schwartz and the office girl deny
that any such statement was made. Even if Jecker's ver-
sion be credited, it adds little to her case as Schwartz had
nothing to do with her discharge and would have been ex-
pressing only his own opinion of the cause of her termina-
tion. In any event, I have no basis for crediting Jecker
over the two denials.
Although the matter is by no means free from doubt, I
find that General Counsel failed to establish that Jecker's
discharge was for union activity.
CONCLUSIONS OF LAW
1. By interrogating employees as to their union views
and those of fellow employees, by keeping a union meet-
ing place under surveillance, by circulating a petition on
behalf of a competing labor organization, and by telling
employees that their wage increases depended upon their
opposing the Union, the Company engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging John O'Bryan, Cecil Dermody,
Richard Compton, James Aliff, Randall Jolly, William
Watkins, John Biscan, and Channing Leucht for union
membership or activity, the Company engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
scathed until Jecker 's discharge in December, discussed below "The
mere fact that all union members or supporters are not discharged does
not disprove the fact that an employee 's discharge is based upon an unlaw-
ful discriminatory motive " N L R B v Challenge-Cook Brothers, 374
F 2d 147 (C A 6), citing Nachman Corp v N L R B, 337 F 2d 421,424
(C A 7)
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
I shall recommend the customary cease-and-desist
order, together with the conventional reinstatement and
backpay order for the dischargees, except that O'Bryan
and Dermody have in effect already declined reinstate-
ment, so that no backpay is due O'Bryan, and only I
week's pay is due Dermody. The remedy in O'Bryan's
case is discussed above. As to Dermody, I would only
note that by his own testimony, Westray asked him on
November 3 if he would "like to" or "want to" come
back, that he told Westray, "No, thanks not at this time,"
and that on November 18 he asked Westray only for
work until Dermody "was called back" at General Elec-
tric. The part-time employees are entitled to reinstate-
ment to part-time jobs; the offer to them of a full-time job
was not under the circumstances the offer of a compara-
ble position. Backpay due under the order should be com-
puted in accordance with the formulas set forth in F. W
Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case , I recommend,
pursuant to Section 10(c) of the Act, issuance of the fol-
lowing:
ORDER
Respondent , Laminating Services, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee because of membership or activity in Inter-
national Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, or any other labor organization.
(b) Coercively interrogating employees as to their
union activity or that of fellow employees , keeping union
meetings under surveillance , circulating a petition on be-
half of a competing labor organization , telling employees
that their wage increases depend upon their opposing a
union , or in any other manner interfering with, restrain-
ing, or coercing any employee in the exercise of his right
to join or assist a labor organization.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to reinstate John Biscan, Richard Compton,
Charming Leucht, James Aliff, William Watkins, and
Randall Jolly to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them and Cecil Dermody
whole in the manner described in the portion of the Trial
Examiner's Decision entitled "The Remedy" for any loss
of earnings suffered by reason of the discrimination
against them.
(b) Notify any of the above-named employees if
presently serving in the Armed Forces of the United
States of their 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.
(c) Post at its plant at Louisville, Kentucky, copies of
the attached notice marked "Appendix."8 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 9, after being duly signed by Respondent's
authorized representative, shall be posted by it, im-
mediately upon receipt thereof , and be maintained for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.9
" 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 a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
9 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 Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL offer John Biscan , Richard Compton,
Charming Leucht , James Aliff, William Watkins and
Randall Jolly, their former jobs and pay each of them
and Cecil Dermody for wages he lost as a result of
his discharge . We have previously offered to reem-
ploy John O ' Bryan and Cecil Dermody.
WE WILL NOT take or threaten to take any action
against them for engaging in union activity , coercive-
ly question them as to their union activity or that of
fellow employees , keep union meetings under sur-
veillance , circulate a petition in support of a compet-
ing labor organization , or in any other manner inter-
fere with , restrain , or coerce them in their exercise of
their rights under the Act.
All our employees have the right to join or assist Inter-
national Union of Electrical , Radio and Machine Wor-
kers, AFL-CIO, or any other union . They also have the
right not to join or assist any union.
LAMINATING SERVICES,
INC
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United
States of their 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.
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, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686