Love Box Co., Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1968

170 N.L.R.B. 1195 (N.L.R.B. 1968)

LOVE BOX
Love Box Co., Inc. and International Printing Press-
men and Assistants Union of North America,
Local Union No. 147, AFL-CIO
Love Box Co., Inc. and International Printing Press-
men and Assistants Union of North America,
AFL-CIO. Cases 17-CA-2798, 17-CA-2840,
and 17-CA-2911
April 9, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On July 7, 1967, Trial Examiner George
Christensen issued his Decision in the above-enti-
tled proceeding , finding that Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action , as set forth in the at-
tached Trial Examiner 's Decision . He also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint.
Thereafter , the General Counsel , Charging Parties,
and Respondent filed exceptions to the Trial Ex-
aminer 's Decision and briefs.
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 Trial Examiner's findings, conclusions,
and recommendations , except as modified below.'
Contrary to the Trial Examiner, we find that em-
ployee Mullins was discharged in violation of Sec-
tion 8(a)(3) and ( 1) of the National Labor Rela-
tions Act , and not for cause.
Significant union activity began in November
1965 when , employee Larsh , the chief union sup-
porter, assisted by employee Mullins , contacted the
Union and commenced organizational efforts on its
behalf. Two union meetings were held on
' Chairman McCulloch would adopt the findings, conclusions, and
recommendations of the Trial Examiner in this case without change, and
for the reasons stated by the Trial Examiner would find that employee Mul-
lins was not discharged in violation of the Act
2 As noted by the Trial Examiner, Personnel Director Walters, General
Superintendent McKenney, and General Manager Rogers, and to a lesser
extent Foremen Quillen and Souter, interviewed or questioned employees
CO., INC. 1195
November 7 and 14 respectively. Shortly after the
first union meeting , management representatives in-
terviewed and interrogated Mullins and other em-
ployees about who attended the meeting and signed
cards, and further indicated they knew who at-
tended.'
Mullins ' uncontradicted and credited testimony
about remarks made by Personnel Director Walters
when he was being interrogated subsequent to the
first union meeting on November 7 was as follows:
0. Do you recall his [Walters'] exact
words?
A. [Mullins] Yes, he said, "If you don't go
out in the plant and yell out loud and clear for
the company, you have had it."
Q. What did you say to that?
A. I said, "Well, suppose I don't talk for
either side?" "Well," he said, " silence is
against the company anyway." I asked him "Is
that a threat?" He said, "No, I am not
threatening you. If you don't fight this union,
you have had it."
Q. What else was said?
A. Oh, he went ahead and he said that I
knew that Mr. Love [the owner] would close
the plant down before he would go union and
he said he talked about me and other guys
getting loans ....
Except for denying that he knew Mullins was a
union supporter until the day of the hearing (which
denial the Trial Examiner found incredible in view
of the consistent and undenied pattern of interroga-
tion followed in interviews with the employees),
Walters did not contradict or dispute Mullins'
testimony, which was credited by the Trial Ex-
aminer . Moreover, it is clear that this did not
represent merely the view of one management offi-
cial or an isolated incident , because employee
Robertson testified in a similar vein that Walters
told him that Love (the owner ) "was going to take
care of the guys that went along with the Company
and the guys that was pushing this union was going
to be in a bad fix when it was over with." Larsh, the
principal union organizer , was taken by General
Manager Rogers to the office and told, "You know
what is going to happen to you when this thing
[union activity] dies down, you are going out the
door." Moreover, Respondent later carried out this
threat, and discriminatorily discharged Larsh.
not only to learn the sources of employee discontent but also to learn the
strength of the Union and to discourage support for it The Trial Examiner
properly concluded that Respondent violated Section 8(a)(1) of the Act
by. interrogating employees about their union membership ; threatening
economic reprisal , including plant closure ; promising economic benefits;
and engaging in surveillance or giving an impression of surveillance of the
employees union activities.
170 NLRB No. 136
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite this background, the Trial Examiner con-
cluded that defective work produced by Mullins on
the night of January 20, 1966, was the motivating
cause for his discharge by Foreman Quillen the fol-
lowing day. However, the Trial Examiner failed to
give due weight to the following significant factors.
(1) Mullins' defective work was not on his regular
job or with the services of his usual helper, but was
on a "scorer" machine with a new and relatively in-
experienced helper; (2) although the "scorer"
operator was normally held responsible for the
work output, the helper was also supposed to check
the work coming off the machine and point out er-
rors to ' the operator; (3) Mullins had previously
worked this machine with his regular helper
without producing significant defective work; (4)
Pudden, the new -helper, was not shown to be a
union leader like Mullins, and received only a repri-
mand for his part in the production of the defective
work; (5) Foreman Quillen admitted that Mullins'
discharge was not for this single incident of defec-
tive work alone but because Mullins' work had
been of poor quality over the past several years,
thus giving added support to an inference that the
quality of Mullins' work became unacceptable only
after the advent of the Union; (6) Quillen, when
discharging Mullins, stated, "I can't say to you what
I would like to say but I have to let you go," and
added "I can't talk to you like I want to. You-have
been such a, good worker, I hate to have to let you
go"; (7) Quillen, admitted that he normally first
talked over individual cases of discharge with
higher management (unless, unlike here, it involved
a case of "direct insubordination"), but did not do
so in this instance, thus giving additional weight to
the inference that the,defective work was a pretext
to effectuate Respondent's previous discriminatory
threats; and (8) finally, and most significantly,
General Superintendent McKenney reassured Mul-
lins, in Decemer 1965, that despite an earlier
disciplinary, layoff for work of poor quality ". . . as
long as you,do your work like you have been doing
it . . . I don't see that we will have any trouble."
Moreover, when Mullins told McKenney that he
feared that he would be "canned" because of Wal-
ters' threat in November, as set forth above. Mc-
Kenney repeated his reassurance.
In sum, all the surrounding circumstances, in-
cluding Respondent's widespread threats to "get"
union supporters, the discharge of Union Leader
Larsh, the acceptability of Mullins' work for several
years and, until the advent of the Union, the fact
that the defective work was not Mullins' regular job
and he was- assisted by a new and inexperienced
helper, and Quillen's veiled comments, establish in
our opinion that the motivating cause for Mullins'
discharge was his union activities., We find that
Mullins' discharge violated Section 8(a)(3) and (1)
of the Act, and shall order the customary remedy of
reinstatement with backpay. In all other respects
we agree with and adopt the Trial Examiner's
findings, conclusions, and recommendations.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that Respondent, Love
Box Co., Inc., Wichita, Kansas , its officers, agents,
successors, and assigns , shall take the action -set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Substitute the following as paragraph 2(a).
"(a) Offer Kenneth J. Mullins and, Kenneth
Larsh immediate and full -reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority and other rights
and privileges, and make them whole in the manner
set forth in `The Remedy' section of the Trial Ex-
aminer 's Decision."
2. Substitute the following as, paragraph 2(b).
"(b) Notify Kenneth J. Mullins and Kenneth
Larsh, if presently serving in the Armed Forces of
the United States, of their right to full reinstate-
ment, 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-."
3. Substitute the following for the ninth indented
paragraph of the notice attached to the Trial Ex-
aminer 's Decision as Appendix B:
WE WILL NOT discriminate against any em-
ployee for engaging in union activity or joining
the Union or for giving information or
testimony before the National Labor Relations
Board. Since the Board has -found that we did
so when we fired Kenneth J. Mullins and Ken-
neth Larsh, WE WILL offer them immediate
reinstatement to their former or substantially
equivalent positions and pay them for any loss
they suffered because we fired them. If they
are presently in the Armed Forces of the
United States, we will notify them of their right
to reinstatement, upon application, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner: Local No.
147, International Printing Pressmen and Assistants
LOVE BOX
Union of North America, AFL-CIO (hereafter
Local 147 or the Union), on November 22, 1965,
filed charges in Case 17-CA-2798 alleging viola-
tion by Love Box Co., Inc. (hereafter Love Box or
the Respondent or the Company), of the National
Labor Relations Act, as amended (hereafter the
Act). A complaint issued on December 29, 1965,
alleging company violation of Section 8(a)(1) of
the Act. On January 8, 1966, the Company filed its
answer denying the commission of any unfair labor
practice and requesting dismissal of the complaint.
On January 31, 1966, Local 147 filed charges in
Case 17-CA-2840 alleging further company viola-
tions of the Act, and on March 10, 1966, filed an
amended charge. A complaint alleging Section
8(a)(1) and (3) violations by the Company issued
on March 11, 1966. On March 21, 1966, the Com-
pany filed its answer denying the commission of any
unfair labor practices and requesting dismissal of
the complaint.
On March 11, 1966, the Regional Director issued
an order consolidating the two cases.
On April 4, 1966, Love Box filed an amendment
to its answers raising objections on constitutional
grounds to further proceedings against it , reiterat-
ing its request for dismissal of the two complaints.
A hearing was held on the aforementioned two
cases at Wichita, Kansas, on April 7 and 8, 1966.
On May 9, 1966, International Printing Pressmen
and Assistants Union of North America, AFL-CIO
(hereafter the International or the Union), filed
charges in Case 17-CA-2911 alleging further com-
pany- violations of the Act. A complaint issued on
May 27, 1966, alleging company violation of Sec-
tions 8(a)(1), (3), and (4) of the Act. On June 8,
1966, Love Box filed its answer denying the com-
mission of any unfair labor practices, raising the
same constitutional objections, and requesting
dismissal of the complaint.' On June 29, 1966, the
Trial Examiner granted the General Counsel's mo-
tion to reopen the record in Cases 17-CA-2798
and 17-CA-2840, to consolidate those cases with
Case 17-CA-2911, and ordered further hearing.
Such hearing was conducted at Wichita , Kansas, on
September,'13 and 14, 1966.
At both hearings all parties appeared and were
afforded full opportunity to adduce evidence, ex-
amine and cross-examine witnesses , present argu-
ment, and submit briefs. Briefs were submitted by
the General Counsel and the Company.
Based upon his review of the entire record,' ob-
servation of the witnesses , and perusal of the
briefs,3 the Trial Examiner makes the following:
' The Company moved to dismiss all three complaints during the course
of the hearing. Ruling was reserved . The disposition of the motion shall be
governed by the decision appearing hereafter.
2 Motions by the General Counsel and the Company to correct the
record of the April 7 and 8 hearing were granted wilh'one exception The
CO., INC. 1197
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Love Box Co., Inc., is a-Kansas corporation with
its principal place of business at Wichita, Kansas,
where at all times pertinent it was engaged in the
manufacture and sale of corrugated' cardboard
boxes. It annually purchases, and causes to -be
transported across state lines to it from enterprises
located in States other than Kansas for use in its
business , merchandise valued in excess of $50,000.
Love Box concedes, and the Trial Examiner finds,
that Love Box at all times material was an employer
engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Both Local 147 and International exist for the
purpose of representing their members in collective
bargaining wth the employers of such members
concerning wages, hours, and conditions of employ-
ment . The Trial Examiner finds that both Local 147
and the International are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
Union organization commenced among Love
Box's employees in September or October of 1965.
Union meetings attended by the employees were
held in Wichita on two successive Sundays in
November, November 7 and 14.
Commencing the day following the first union
meeting and continuing through the week, com-
pany representatives interviewed -many of the em-
ployees. It is alleged that in the course of these in-
terviews company representatives: (1) interrogated
the employees concerning their and other em-
ployees' union membership, desires, and activities;
(2) threatened reprisals against employees who
joined, supported, or assisted the Union; (3)
threatened plant closure if the employees chose the
Union; (4) promised economic benefits if the em-
ployees refrained from union membership,
assistance, or support; and (5) maintained a surveil-
lance or created the impression of surveillance of
union meetings and activities.
On January 21, 1966, employee Kenneth J. Mul-
lins was discharged. It is alleged that he was
discharged because 'of his union support and activi-
ties.
Company motion to correct the record-of the September 13 and 14 hearing
is hereby granted with respect to all changes except No 8 which is denied
(Appendix A omitted from publication.)
' While the first company brief was filed late with the Trial Examiner, it
nevertheless has been fully considered
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was conducted on the above allega-
tions on April 7 and 8, 1966.
On May 5, 1966, employee Kenneth Larsh was
discharged . It is alleged that he was discharged for
giving testimony supporting the allegations of the
original complaint and because of his union activi-
ties.
employees on that shift signed authorization cards
for the Union).
Six of the employees Walters interviewed during
the week or 10 days following the first union meet-
ing (a second meeting was held on the following
Sunday, November 14) testified; namely, Kenneth
Larsh, Glenn Johnson, Kenneth J. Mullins James,
The Company denied voicing the threats and R . Phillips, Vernon Hitsman , and Joe Robertson.
promises, interrogation re union activities and the ,, Larsh , leader of the prounionists among the em-
surveillance or impression of surveillance alleged ployees , also was interviewed by General Superin-
above and defended the discharges as for good tendent Delbert McKenny and General Manager E.
cause.
B. The Issues
The issues then are whether the Company:
1. Interrogated employees concerning their own
and other employees ' union activities;
2. Threatened reprisals against employees who
joined, supported, or assisted the Union, including
plant closure;
3. Promised economic benefits to employees if
they refrained from union membership, support, or
assistance;
4. Maintained surveillance or created the im-
pression of surveillance of union meetings and ac-
tivities;
5. Discharged Kenneth J . Mullins because of his
union membership , support , or activities or for
good cause;
6. Discharged Kenneth Larsh because of his
testimony under the Act or his union membership,
support , and activities or for good cause.
C. The Interviews
The management of the Company noted a steady
drop in production at the plant commencing in Au-
gust of 1965 , and began investigating its cause
shortly thereafter , questioned some employees in
the course of the investigation , and concluded that
the basic problem was employee attitude.
When the Company received a report that the
Union had conducted a meeting of the Company's
employees on Sunday , November 7, Plant Superin-
tendent Delbert McKenney concluded that the em-
ployees had stopped communicating with manage-
ment concerning the problems which were bother-
ing them and causing their poor work attitude. It
was decided by management to conduct a series of
intensive interviews among the employees to learn
the cause or causes for their dissatisfaction which
motivated them to seek out the Union.
Walters was the most active member of the
management team conducting interviews with the
employees , with McKenney, E. D. Rogers ( general
manager), and Foremen John Earl Quillen and Bill
Souter involved to a lesser extent.
The interviews appeared to be concentrated
among the second -shift employees (25 of the 27
D. Rogers in the week following the first union
meeting. McKenney also interviewed Mullins dur-
ing that week. Within a week or 10 days following
the first union meeting , Second-Shift Foreman John
Earl Quillen held conversations with employees
Raymond T. Parrott, Joe Robertson, and Mike C.
Sweeten , Jr. Third-Shift Foreman Bill Souter en-
gaged employee Bill Luper in conversation during
the same period.
The interviews and conversations between the
various management representatives and employees
named above assumed the same pattern ; manage-
ment sought not only to learn the sources of em-
ployee dissatisfaction but also to learn the strength
of the Union and to discourage its support.
Walters sought to learn what Larsh's gripes
against the Company were; however, he then ac-
cused Larsh of being a union " pusher ," suggested it
would be to his advantage to "come back to the
Company's side," stated that Mr. Love (the plant
owner) would never negotiate with a union, that he
could close the doors of the plant if he desired, and
asked Larsh why he wanted to put everyone out of
a job. Rogers called Larsh to his office a day or two
after Walters had spoken to him and sought to
learn what problems were troubling him, but in ad-
dition reiterated that Mr. Love would never
negotiate with the Union and that continued union
support among the employees could result in plant
closure and everyone losing his job. Rogers went a
bit further, asking Larsh if he had ever considered
himself as foreman material and, on receiving a
negative response to that and evidence from
Larsh 's responses and attitude that he continued to
support the Union, told Larsh that "when this thing
dies down , you are going out the door ." McKenney
also briefly contacted Larsh at his machine during
the period in question , but on receiving a denial of
any knowledge to his inquiry concerning what hap-
pened at the first union meeting, abandoned further
inquiry.
In his interviews with Mullins , Johnson , Phillips,
and Hitsman , Walters continued to inquire into the
sources of employee dissatisfaction with the opera-
tion of the plant , but in each instance made further
inquiry into each employee's support or nonsupport
of the Union, informed them Mr . Love was unal-
terably opposed to the Union, had sufficient means
to close the plant if the employees persisted in sup-
porting it , and undoubtedly would do so. In the
LOVE BOX
case of Johnson , Mullins , and Phillips , Walters
made it clear that he knew who had attended the
first union meeting , who had signed cards; that
despite Mullins ' denial he knew he had absented
himself from his other job on November 7 (a Sun-
day) for about 2-1/2 to 3 hours and used the time
to attend the union meeting , refusing to accept
Mullins' explanation he had merely absented him-
self for lunch. McKenney also indicated to Mullins
in an interview 2 days or so later he knew of the
union meeting the previous Sunday and sought con-
firmation that Mullins was a union supporter.
. Walters told Johnson and Phillips he knew they
had signed - union authorization cards ( manage-
ment 's knowledge concerning the union meeting of
Sunday, November 7, was also confirmed by
Rogers , who testified the report he received con-
cerning it prompted the series of employee inter-
views management initiated commencing the day
after the union meeting ). During the course of his
interview with Robertson, Walters informed him
(as he had Larsh) that it would be to his benefit to
support the Company and oppose the Union.
Again, as in the case of Larsh (who was indirectly
asked if interested in a foreman position by
Rogers ), Phillips and Robertson were advised of the
benefits, of supporting the Company and the
economic detriment which might result to them and
the other employees if they and the others sup-
ported the Union , such as loss of the company-paid
Christmas party and summer outing for employees,
and economic reprisal against the union supporters
after the Union lost. Angry at Mullins ' persistent
denials of any union activity on his part or
knowledge concerning same, Walters told Mullins
that "if you don't go out in the plant and yell out
loud and clear for the company, you have had it."
Quillen sought out Parrott , Sweeten , and Robert-
son at their machines. His conversation followed
the same pattern; inquiring into and receiving infor-
mation concerning their gripes (the employees
universally complained about the administration of
the incentive bonus system ; invariably they claimed
the standards were constantly being cut by Walters,
requiring that they work harder and harder to
maintain their earnings ), followed by an inquiry for
details concerning who had attended the union
meeting and signed union cards, whether the em-
ployees,had signed them , followed by arguments
that Mr. Love would close the plant if it were
unionized and that the Union could not improve
conditions but would worsen them . One third-shift
employee (Luper) testified to a conversation with
Foreman Souter, who unsuccessfully sought to
question him concerning his knowledge of the
union meeting (Loper denied any knowledge) and
later remarked that if the Union came in, Luper
would' have to work his tractor in order to make a
living.
Walters,, McKenney , Rogers , Quillen, and Souter
all testified . The testimony of Quillen and Souter
CO., INC. 1199
related solely to Mullins ' work and his discharge.
Walters, McKenney , and Rogers confirmed their
participation in the interviews and conversations
detailed by the employee witnesses , but neither cor-
roborated nor denied the statements attributed to
them , with the exceptions : ( 1) Walters denied that
he knew Mullins was a union supporter , and (2)
McKenney denied that he questioned Mullins re-
garding his support or nonsupport of the Union and
denied that Mullins made any statements concern-
ing his union views . Walters' denial appears
somewhat incredible , in view of the consistent and
undenied pattern of interrogation he followed in his
interviews with Larsh , Johnson , Phillips, and
Hitsman , where in each case he questioned them
concerning their union support and activities; it
does not appear reasonable that he would desist
from similar questioning solely in the case of Mul-
lins. Similarly , McKenney did not deny that he
sought information from Larsh concerning the
union meeting ; Walters , Rogers, and McKenney
were all engaged in a joint campaign of interroga-
tion of employees for the same purposes ; neither
Walters nor Rogers denied the previous testimony
of employees they interviewed that in the course of
their questioning they interrogated the employees
they interviewed concerning their union support
and activities ; it appears likewise 'reasonable that
McKenney continued the same interrogation pat-
terns in his questioning of Mullins.
On the basis of the forgoing , the Trial Examiner
credits Mullins' testimony and discredits that of
McKenney and Walters in the two areas of conflict,
and further credits the corroborated and undenied
testimony of Larsh, Mullins, Johnson , Phillips,
Hitsman , Robertson , Parrott ,, Sweeten , and Luper
set out heretofore in the other respects enu-
merated.
Based upon the foregoing, the Trial Examiner
finds that during approximately a 2-week period
commencing November 8, 1965:
1. The Company by Walters , McKenney,
Rogers , Quillen , and'Souter interrogated employees
Larsh, Mullins , Johnson , Phillips, Hitsman, Robert-
son, Parrott , Sweeten , and Luper concerning their
and other employees ' union membership , support,
and activities;
2. The Company by Walters, Rogers, and Quil-
len threatened employees Larsh, Mullins, Phillips,
Hitsman , Robertson , and Parrott with economic
reprisal, including plant closure , for continued
union membership , support and activities;
3. The Company by Walters and' Rogers
promised employees Larsh , Phillips, and Robertson
economic benefits for refraining from union mem-
bership , support, and activity; and
4. The Company by the remarks of Walters to
employees Mullins, Johnson, and Phillips concern-
ing his knowledge of their attendance at union
meetings and signing cards for the Union, and by
the testimony of Rogers concerning his receipt of
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reports concerning the union meetings, and by
management 's questioning of employees concern-
ing their union membership , support , and activities,
maintained a surveillance of union activities among
the employees or gave such impression.
It is the further finding of the Trial Examiner that
by the acts set forth in 1 through 4, above, the
Company violated Section 8 (a)(1) of the Act.
D. The Mullins Discharge
Mullins was hired by the Company on March 21,
1961. He started out as a utility man, then a press
helper , and finally , commencing in July of 1963, as
a press operator . On January 21, 1966, he was
discharged.
Throughout his employment as a press operator,
Mullins' work was of high quantity but poor quality;
i.e., while he turned out considerable production,
he also produced considerable scrap and rework.
Approximately 2 years before his discharge, he was
given a disciplinary layoff for the poor quality of his
work, and from time to time throughout his employ
his supervisors cautioned him to be more careful
about his work . Mullins was the only operator ever
given a disciplinary layoff for poor quality produc-
tion . As noted heretofore , there was an incentive
pay system in effect based upon production and,
despite whatever amount of scrap or rework Mul-
lins produced (which was subtracted from his ac-
ceptable production ',for bonus calculation pur-
poses ), Mullins regularly earned a bonus for his
work.
On November 7, 1965, Mullins signed an
authorization card for the Union at its meeting and
worked with Larsh, the Union' s leader among the
employees, to secure cards from others. As found
heretofore, during the week of November 7, 1965,
Mullins was questioned closely about his union ac-
tivities by Walters, including his attendance at the
November 7 union meeting and his union views and
activities and was interrogated by McKenney on the
same subject shortly thereafter.
After expressing skepticism of Mullins' denial of
attendance at the November 7 union meeting and
disclosing his knowledge that Mullins had been ab-
sent from his part-time job on November 7 for
about 2-1/2 to 3 hours to attend the meeting and
sign a card, Walters grew angry at Mullins' per-
sistent denials of union activity and told him that
"If you don't go out in the plant and yell out loud
and clear for the company, you have had it." Mul-
lins then asked what would happen if he didn't talk
for either side and was told "silence is against the
company anyway." Mullins then asked if that was
a threat. to which Walters replied "No. I am not
threatening you. If you don't fight this union, you
have had it," and then went on to state that Mr.
Love would close the plant down before he would
go union.
As stated earlier , there was a continuing drop in
production at the plant commencing in August of
1965 and continuing through the balance of the
year and into 1966; management attributed this to
a negative attitude on the part of the employees,
particularly on the second shift, and urged them to
increase their production.
In early December of 1965, Mr. Love, the owner
of the plant , held a meeting of the machine opera-
tors, material handlers , etc. He stated that produc-
tion on the first and third shifts was stable, but that
the bottom had dropped out on the second shift. He
said that production had to be increased.
A few days thereafter, McKenney called a second
meeting of machine operators , helpers , material
handlers, etc. McKenney also stated that produc-
tion was down, the Company was not making
money, and it had to come back up. Shortly
thereafter, Quillen directly questioned Mullins
about his production drop. Mullins attributed it to a
series of long runs on difficult print jobs on the
second shift and went on to say that " I am afraid to
really try to get out production like we did. If I
make a mistake , I know I am going to be canned for
it." Quillen replied he didn't think so. The follow-
ing day, McKenney approached Mullins and said he
had heard Mullins was afraid for his job. Mullins
confirmed that he was, but was assured by McKen-
ney that "Well, as long as you do your work like
you have been doing it in the past , I don't see that
we will have any trouble." Mullins told McKenney
he based his fears on Walters ' statement in
November that if he didn't fight the Union, he
would be canned. McKenney repeated his earlier
reassurance and went on to say that Mullins knew
production was down , his help was needed to get it
up, and Mullins could talk to the men, which
McKenney could not , to which Mullins replied that
the only man he could talk to was his brother-in-
law.
In January of 1966, the Company normally
operated three presses and two score machines on
the second shift . Production requirements for the
second shift were normally established after con-
ference between the first and second-shift foremen.
On January 20, Foreman Quillen was instructed
to run two presses and the two score machines on
the second shift , leaving one press inactive. One of
the regular score machine operators was absent
(though his helper , Mike Pudden , was there), and a
die room employee was also absent . Quillen told
Mullins his press would not be run that evening and
assigned him to operate the score machine where
the regular operator was absent (Mullins had
operated this machine in the past ), with Pudden as
his helper . Mullins' regular press helper, Joe
Robertson, was assigned to replace the absent die
room employee.
During the shift , Mullins and Pudden put out 9
defective orders (out of 32 orders run during the
shift ) requiring the rework or scrap of 28,514
square feet of cardboard , for a total loss valued at
approximately $650-700.
LOVE BOX CO., INC.
McKenney was informed of the defective orders
the next day and, when Quillen came in, com-
plained to him about the work and instructed him
to see Mullins and take whatever action Quillen
deemed appropriate. Quillen stated he had never
known anyone in his entire experience to turn out
such a quantity of defective work in one shift, that
he had never seen more than two or three defective
orders at a maximum , and seldom even that many.
Neither Mullins nor anyone else had ever produced
as great a quantity of defective work on that or any
other machine.
Quillen queried Mullins about the reason for the
quantity of defective work. Mullins blamed the
helper (the operator feeds the cardboard into the
machine at one end for crimping or scoring, for
folding same into boxes, and the helper removes
and stacks the cardboard from the other side and so
is in a position to bring errors to the attention of
the operator) and alleged defective operation of the
machine (the operator adjusts the cutting blades-of
the machine for the depth and size of the crimps or
scores, according to the order specifications); Mul-
lins complained the shafts of the machine were
worn and not true and that the knives would not
cut properly.
Quillen advised Mullins that he had been called
on the carpet over the large quantity of defective
work and that he had decided to let Mullins go.
When Mullins protested his firing over this one in-
cident, Quillen stated that it was not for this in-
cident alone, but because Mullins' work had been
of poor quality over the past several years.
It was established that no complaint was made
about the alleged defective condition of the
machinery. Neither Mullins on January 20 nor the
regular operator at any previous time complained
about the operation of the score machine; the
machine maintenance man testified he regularly in-
spected the machine and made repairs when any
defects were reported or discovered, and that the
machine was in good repair at the time in question.
While Pudden did not testify, Quillen stated that
he- sought an explanation of the errors from Pudden
and was informed by Pudden that he had brought
them to Mullins' attention . It was established that
the operator and not the helper is responsible for
work produced on the machine, and that the errors
were all attributable to operator error-the knives
were improperly set and either cut through the
cardborad or did not impress deeply enough; the
cardboard was fed into the machine at an improper
angle , so the boxes could not be folded properly;
cardboard sheets were crushed, because more than
one sheet was fed into the machine at one time; etc.
While Mullins' union activities and support were
known to management in November of 1965, and
Mullins construed Walters' November 9 remark
that he had -had it if he didn't support the Company
and oppose the Union as a threat of discharge
rather than the- expression of Walters' opinion that
1201
Mullins and everyone else would be out of a job if
the Union came in because of the plant owner's op-
position to unionism , when Mullins related his ver-
sion to McKenney in December of 1965 , McKen-
ney assured Mullins that so long as he worked effi-
ciently, he need not fear discharge.
With the history of a prior disciplinary layoff for
poor quality work , subsequent warnings for similar
cause, and defective workmanship on almost one-
third of the orders he was assigned to complete on
a machine he had operated before without gross er-
ror, it cannot be said that the Company did not
have good cause to discharge Mullins on January ,
20. McKenney 's assurance was conditioned on
Mullins ' continued good work performance and
was not a blanket promise of continued employ-
ment.
The only remaining question is whether the Com-
pany would have continued Mullins in its employ
after January 20 despite having good ground to
discharge him but for his union membership, sup-
port, and activities.
Weighing all the evidence , the Trial Examiner
cannot conclude that but for his union activity the
Company would not have discharged Mullins on
January 21.
The Trial Examiner therefore finds and con-
cludes that Mullins was discharged for cause, not in
violation of Section 8(a)(3) and , ( 1) of the Act, and
recommends the portions of the complaint so alleg-
ing be dismissed.
E. The Larsh Discharge
Larsh was employed by the Company on January
17, 1959. He was discharged on May 5 , 1966. For
the last 4 years of his employment , Larsh worked
on the second shift ( 3:30 p .m.-midnight) as a
printing press operator . Immediately prior to his
discharge , he also worked at a second job, driving a
truck for Chicken Acres, Inc., delivering frozen
chickens to retail stores. He started on this job at
7:30 a .m. and ordinarily finished his deliveries
between noon and I p.m., though occasionally it
took him from- 2-2:30 p.m. to complete his
deliveries.
Larsh 's family lived in Longton , Kansas, and he
normally saw them only on weekends . During the
week he stayed at a rented house located approxi
mately 1 - 1/2 blocks from the company plant. At
the time of and for a period preceding his
discharge , he shared the house with another com=
pany employee assigned to the second shift , Aubrey
Alley. Larsh and Alley ordinarily ate their meals at
Marie 's Restaurant , located about 3 blocks from
the Company 's plant and about 1-1/2 blocks,from
their residence . Larsh usually had breakfast there
about 6:30 a .m., lunch between noon-3,p.m., and
dinner during the 9-9 : 30 p.m . break on his work
shift. -
Larsh and other employees testified at the April
7-8 hearing to Larsh 's leadership of the union sup-
350-999 0 - 71 - 77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porters among the Company's employees.' Larch
made the initial contact with the Union which led
to the first union meeting described heretofore
(November 7, 1965); and Larsh led the move to
secure union authorization cards from the Com-
pany's employees at that meeting (at which Larsh
himself executed a card). As heretofore noted, on
November 8, McKenney unsuccessfully sought to
learn from Larsh how serious the union meeting
was; on November 10, Walters interviewed Larsh,
accused him of being a union pusher, voiced vari-
ous threats, suggested the other men would follow
his lead if he ceased to push the Union, and finally
intimated it would be to Larsh's advantage to
"come back to the company's side"; on November
11 or 12, Rogers also interviewed Larsh, followed
the same line taken by Walters, intimated Larsh
might be under consideration for 'a foreman job
and, when Larsh expressed the view that he wasn't
interested in becoming a foreman at Love Box and
gave other indications of his continued support of
the Union, told Larsh that "when this thing is over,
you are going out the door."
While McKenney, Walters, and -Rogers all
testified at the April 7-8 hearing, none denied mak-
ing the remarks attributed to them by Larsh.
Neither did they deny them at the September
13-14 hearing. The Trial Examiner credits Larsh's
undenied testimony concerning the remarks of
McKenney, Walters, and Rogers.
Following the McKenney November 9, 1965,
conversation and the November 10-12, 1965, Wal-
ters and Rogers interviews, Larsh attended the
November 14 union meeting and continued
thereafter to lead the Union's campaign to secure
union authorization cards from the Company's em-
ployees. On November 22, 1965, the Union filed its
charges in Case 17-CA-2798; on January 31, 1966,
the Union filed its charges in Case 17-CA-2840; on
March 10, it filed an amended charge in the latter
case; on March 11, the complaint issued; on April
7-8, a hearing was held on the complaint in those
two cases; and on May 5 (less than I month after
that hearing), Larsh was discharged.
On the Friday preceding his discharge (April 29),
Larsh worked at Chicken Acres in the morning but,
not feeling well, called the company plant about 3
p.m., was connected to McKenney, and reported
that he would not be in to work; McKenney asked
him when he would be back to work and he said he
would be back on the following Monday (May 2),
at which McKenney said "OK" and the conversa-
tion ended. Larsh did not give any reason for his
absence but simply reported he would not be in .5
Foreman- Perry, as was his custom, left the plant
during the dinner break that evening to pick up
sandwiches for himself and Foreman Souter. He
drove past Marie's Restaurant and observed Larsh
and his roomate, Aubrey Alley, sitting in a booth
there. When he returned to the plant, Perry told
Souter, what he had observed, commented that
Larsh and Alley had "called in sick,"6 and stated
that he and Souter decided to "let it pass, we
figured a man had to eat if he was sick." Perry
stated that he had received word from McKenney's
office that Alley would not be in (Perry was Alley's
foreman; Souter was Larsh's foreman). Larsh
testified without contradiction that he had a runny
nose, cough , nausea , diarrhea, felt weak and dizzy,
and believed he was coming down with flu; that he
went to bed early that evening, was awakened after
midnight when Alley, Art Koob (another second-
shift employee of the Company), and two girls
came to the house and did some drinking; and that
while he arose and joined them for awhile, he did
not do any drinking.
The following Monday (May 2), Larsh, still feel-
ing poorly, did not work for Chicken Acres in the
morning, but reported for work on his regular shift
at the Company and worked through the shift. He
followed the same practice on Tuesday, May 3. Fol-
lowing completion of the shift, he socialized with
several friends at a nightclub before retiring.
On Wednesday, May 4, again he did not work at
Chicken Acres. He arose about noon, with the
same symptoms which caused him not to report for
work at the Company the preceding Friday. He
went to Marie's Restaurant about noon-12:30
p.m., and drank some coffee; about 1 p.m. he went
to the Bonanza Club and consumed four beers
there; at about 3 p.m., he returned to Marie's
Restaurant. His symptoms were apparent to- the
waitress on duty there, Judy Lewis, who gave -him
some penicillin tablets she had. -
On his return to Marie's 'Restaurant, harsh
telephoned the Company, gave his name to the
switchboard operator, and told her he would not be
in to work that evening; the operator stated she
would notify the appropriate person.' It was
established that while the operators had instruc-
tions to connect any employee reporting an
absence with supervision , they did relay messages
to that effect without connecting the, employee and
there was no published rule or instruction to the
Supervisors Perry and Souter conceded their knowledge of Larch's
union activities and leadership at and prior to the time he was discharged.
s Larch's testimony to this effect is uncontradicted. The testimony of
Larsh and other employees that they oftentimes did not give a reason when
they telephoned the Company to report an absence is uncontradicted.
Their testimony is likewise uncontradicted that oftentimes they did not
make any report to the Company of an absence and were not penalized
therefor.
8 This was an assumption on Perry's part; Larsh did not give a reason for
his absence to McKenney . The evidence does not disclose what, Alley re-
ported, if anything
7 Larsh testified the operator so advised him and the connection was then
broken by the operator; the operator testified she did not break the con-
nection, but that it was broken after Larch gave his name and said he would
not be in, and she assumed he had hung up. In any event,-she then notified
McKenney's office Larsh would not be in and that office passed the mfor
matron on to Foreman Souter. The Trial Examiner finds it unnecessary to
resolve the differences between testimony of the operator and Larsh for
reasons which shall hereafter appear.
LOVE BOX
employees requiring they report absences to super-
vision , nor an established practice of so reporting.
Larsh remained at Marie's Restaurant until about
5 p.m., eating a meal there, but continued to feel
ill. About 5 p.m., the waitress , Judy Lewis, drove
him to his home . On arrival at his home , however,
he requested Miss Lewis to drive him back to the
restaurant because he was worried over leaving his
pickup truck there , since he had some valuable
tools in it. She drove him back , he drove his truck
home , went in, and went to sleep.
At about 7:30 p .m., he awoke and drove back to
Marie 's Restaurant . Not feeling well, he stretched
out in the seat of his truck before going in. Art
Koob came by, asked if he was all right, and sug-
gested he go in and have some coffee. Larsh ac-
ceded and they entered the restaurant.
At about 9 p.m., Foreman Perry came in the
restaurant to purchase some sandwiches. He did
not come anywhere near Larsh but sat at the
counter while the waitress prepared his sandwiches.
Koob left Larsh , went over and sat with Perry.
Perry testified that Koob sought to explain the
reason for his absence from work and presence at
Marie 's and further informed him that Larsh was
drunk and he (Koob ) was trying to sober him up
before taking him home .' Perry made no effort to
verify Koob 's statements concerning Larsh and at
no time went near Larsh or engaged him in conver-
sation . Neither did he ,investigate the reason for the
absence of Larsh 's roommate , Alley, from work
that evening (he had received a message Alley
would not be in).
On his return to the plant, Perry immediately re-
ported to Souter and McKenney that he had seen
Larsh at the restaurant , that Larsh had called in
sick,' and that Koob had informed him Larsh was
drunk . Neither Souter nor McKenney sought to
question Koob nor to question Larsh.
Souter stated he decided that night to discharge
Larsh and the next day , before the second shift
started , asked McKenney to prepare the necessary
papers for the discharge.
Thus on Thursday , May 5, when Larsh reported
for work , he was called aside by Souter and in-
formed that Souter had a press that he needed to
run the previous evening and that he couldn 't run it
because Larsh was absent ; that Larsh was seen in a
drunken condition when - he should have been in
running the press . Larsh stated he had called to re-
port he would not be in . Souter stated Larsh had
failed to give a reason for his' absence . Larsh said
he couldn't do so, he was disconnected . Souter
stated Larsh had to give a reason. Larsh said he had
tried to do so. Souter then pointed to-some papers1°
R Koob was not called to the stand by any of the parties. The Trial Ex-
aminer credits Perry's testimony that this is what Koob told Perry but not
that Knob's statement concerning Larsh 's condition was true.
9Again this is an assumption on Perry's part. The operator corroborated
Larsh 's testimony that when Larsh reported his absence , he did not state
that he was ill but merely that he would not be in.
CO., INC. 1203
he had before him and said , "Well, there it is."
Larsh grew angry , said Souter of all people should
not be doing this", and that he knew this wasn't the
real reason for his discharge.
On May 12 , 1966 , Larsh applied for unemploy-
ment compensation . He stated in his application
that he was discharged for being absent the previ-
ous day and not notifying the Company of the
reason for his absence prior to the shift ; that he had
notified the switchboard operator he would be ab-
sent without stating a reason ; that he was 'unaware
of any rule specifying how absences were to be re-
ported ; that he had only been absent about 2 days
in the preceding 2 months and had notified the
Company prior to each absence ; that he had been
absent ( though infrequently) in the past and had
never been directed to report in any certain way or
had any complaints about his absenteeism. Larsh
further stated that he believed the reason for his
discharge was his union activity.
No hearing was held on the claim, but on May
16, 1966 , a representative of the Commission con-
tacted ( by telephone ) the Company 's acting super-
visor , who stated that the Company had a rule
requiring that every absence be reported to the ab-
sentee's foreman , and not to the switchboard
operator; that Larsh 's May 3 absence and failure to
properly notify the Company of his absence was
"not occasional ' ; that he had been absent 6 days
within the previous 2 months and , the absences
were not reported correctly; that Larsh was absent
without leave and was terminated for drinking; that
his union activity and testimony was not the reason
for his discharge; that in the last 6 days he was em-
ployed he was absent 3 of them and called in to the
switchboard operator and told her he was going to
be absent ; that he didn't want to talk to the
foreman ; that he didn't want his call transferred,
and hung up.
On May 19, 1966 , the Commission found, on the
basis of the Company's statement , that Larsh was
discharged for excessive absenteeism and inten-
tional disregard of company rules for reporting
absences , that this constituted discharge for
misconduct connected with employment within the
meaning of the Kansas unemployment statute, and
disqualified Larsh from unemployment compensa-
tion for a 7-week period.
In Respondent 's May 23 reply to the Regional
Office 's request for its position, its counsel stated
that Larsh was terminated because:
He did not ask for nor receive permission to be
absent .... Instead , he called the switchboard
and told them he would not be in . During the
time he was supposed to have been at work, he
1O A check , insurance papers, and retirement fund papers, filled out and
only requiring Larsh's signature for release.
" Souter testified he had been discharged several years previous for ex-
cessive absence due to drunkenness , after the Company made extensive ef-
forts to rehabilitate and retain him
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparently decided to drink rather than work.
When the Company became aware of this fact,
it terminated him, as it would have done with
any other employee. This is in accord with its
past practice 'and was not involved with union
activity or giving testimony.
In his September 13 opening statement, counsel
for the, Respondent stated that Larsh was
discharged because:
He had -advised the Company he was gone
from work because he was ill, and the Com-
pany then found out he was not ill, and instead
he was down at a corner restaurant, he had
been ' drinking, the company admits (sic-con-
tends?) he was drunk and there is'a question
he followed the normal procedure of when he
called in, followed ' the procedure he should
have followed.
Before the Unemployment Commission on May
16 the Company contended in effect that because
Larsh had a record of excess absenteeism within
the 2 months preceding his discharge, had failed to
comply- with a company rule requiring reporting an
anticipated absence from- work to supervision and
securing- permission therefor with regard to his
April 29 and May 4 absences, and was drunk and
absent from work without permission on the latter
date, Larsh was discharged for cause on May 5.
Responding to the Board on May-23, the Com-
pany apparently dropped ' any reliance upon al-
legedly excessive absenteeism as good cause for
Larsh's discharge,-but continued its reliance upon
Larsh's alleged failure to follow proper procedure
and- to seek and secure permission to be absent and
alleged false representation of the reason for his
unexcused absence (illness) when he was in' fact
drunk.
By the date of the hearing (September 13,), the
Company's -case had shifted to reliance upon the
latter (misrepresentation) as the sole good cause
for discharge, with a "question" as to Whether the
discharge may have been warranted by a failure to
follow proper absence. reporting procedures.
Certainly, the discharge was not based upon any
misrepresentation by Larsh to the Company; Larsh
did not state any reason for his May 4 absence,
simply that he would not be in. As far as failing to
follow "proper procedure," all the employee wit-
nesses testified they' had never been informed of
any required "procedure" for , reporting absences
and no management witness testified to the con-
trary. 'While there was a procedure management
preferred -its employees to follow, clearly it was not
mandatory for" Larsh, and many other witnesses
testified without contradiction that sometimes they
reported their anticipated absences and sometimes
they did not; sometimes when they did, report they
gave reasons and sometimes they did not; 'some-
times when they did report they spoke only to the
switchboard operator and sometimes they spoke to
supervision; sometimes management approved the
absence and sometimes- it did not. One thing is
abundantly clear-no employee was disciplined
whether or not he reported; whether or not (when
he, did report) he gave a reason; whether or not he
spoke to a supervisor. Obviously if there was no- en-
forced rule regarding- reporting, giving reasons, re-
porting to supervision,- there was no enforced rule
requiring company permission to -be absent (com-
pany acceptance of whatever reasons might be ad-
vanced) in order to avoid discipline for an absence-.
As to discharge for drunkenness, the record dis-
closes Larsh was given several chances before his
discharge.
Yet in Larsh's case,-not only was his discharge
precipitate, it was made without any attempt, to
verify a single, hearsay report that he was drunk
and without giving Larsh any opportunity to ex-
plain; it is also clear that Larsh did not -falsely
represent himself to be ill, for he made no represen-
tations at all when he telephoned; he merely stated
he would not be in.
It is, clear from the record that employees, includ-
ing Larsh, have been absent from work without 'any
pnor notice -to the Company and for, various per-
sonal reasons (such as to study for school exams,
etc.) without discipline." Other unreported and
unexcused absences'-may have been for frivolous
reasons-perhaps even because an employee who
felt ill due to an excessive consumption of liquor
believed he could not perform his job efficiently-
but no discipline, took place.
With this history, it would'require a great strain
upon the Trial Examiner's credulity' to find that the
Company precipitately discharged a -7-year em-
ployee of undisputed efficiency _ on a, single, hearsay
report' "that an assumed reason for absence from
work was false (and one could be jas "ill" -and
unable to work due to drinking as justor' any -other ill-
ness, assuming a report had been made), particu-
larly when, as here, others had been given a chance
to redeem themselves and when no investigation
was undertaken to -determine whether the hearsay
report had any foundation.,
These factors and the shifting positions -of' the
Company lead the Trial Examiner to conclude that
the varying reasons advanced by the-Company were
pretexts, mere masks, for its real purpose to rid it-
, self, of the union _leader among 'its employees-as,it
had threatened to do. This, coupled with the ac-
tions described in section III, C, above, were, in the
judgment of the Trial Examiner, calculated to -in-
hibit continued support of the Union, and the Trial
Examiner so finds. '
12 It is noted that Aubrey Alley , Larsh's roommate , was off work both on
April 29 and May 4 without permission or reason given-and ' was not
disciplined.
LOVE BOX CO., INC.
The Trial Examiner therefore finds and con-
cludes that the Company discharged Kenneth Larsh
for having given testimony under the Act and
because of his =union membership , support, and ac-
tivities , thereby violating Section 8 (a)(1), (3), and
(4) of the Act.-
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section
III, above, occurring in connection with the Com-
pany's operations described in section I, above,
have a close, intimate, and substantial relationship
to trade, traffic, and- commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
V. THE REMEDY13
Having found that the Company engaged in un-
fair labor ,practices, it will be recommended that it
cease and desist therefrom and take affirmative ac-
tion designed to effectuate the policies of the Act.
It has been found that the _Company violated the
Act by its discharge of Kenneth Larsh on May 5,
1966. Accordingly, it will be recommended that the
Company offer Larsh immediate and -full reinstate-
ment to his former or a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges, and make him whole for
any loss of earnings he-may have suffered by reason
of his discriminatory discharge by payment to him
of a sum of money equal to that which he would
have earned as wages from the date of his discharge
to the date of his reinstatement, less his net
earnings during such period, in accordance with the
formula prescribed in F. W. Woolworth Company,
90 NLRB 289, together with interest on such sum,
such interest to be computed in accordance with
the formula prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Because the Company violated fundamental em-
ployee rights guaranteed by Section 7 of the Act
and there appears from the nature and manner of
commission of those acts a disposition to commit
other unfair labor practices, the Trial Examiner
shall recommend that the Company cease and de-
sist'from committing these specific acts as well as
genenerally desist from in any other manner in-
fringing upon its employees' Section 7 rights.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
"The Company moved to dismiss the complaint on the ground any
failure to comply with a remedial order issued under Section 10(c) of the
Act in this case would expose its owner to deprivation of liberty and prop-
erty without due process of law, abridge his freedom of speech, inflict
cruel and unusual punishment upon him, and deny him equal protection
1205
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discouraging union membership, support,
and activities and discriminating in employment for
giving testimony under the Act and interfering with,
restraining , and coercing its employees in the exer-
cise of their rights under the Act, as found above,
the Company has engaged in and is engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (4 ) and Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c)
.of the Act, the Trial Examiner recommends that
Love Box., Inc ., of Wichita, Kansas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International
Printing Pressmen and Assistants Union of North
America,,AFL-CIO, and its Local Union No. 147,
or in any other labor organization of.its employees,
by discharging, laying off, or refusing to reinstate
any of its employees because of their concerted or
union, activities or their testimony under the Act, or
in any other manner discriminating in regard to
their hire or tenure of employment or any term or
condition of employment;
(b) Interrogating employees concerning their or
others' union membership, support, or activities;
(c) Attempting to discourage, or discouraging
union membership, support, , or activities by
promise of benefit, threat of reprisal (including
threat of plant closure), surveillance of union ac-
tivities, and creating the impression of surveillance
of union activities;
(d) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer Kenneth Larsh immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to - his
seniority and other rights and privileges and make
him whole in the manner set forth in "The
Remedy" section of this Decision.
(b) Notify Kenneth Larsh if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in ac-
cordance 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
under the laws, in violation of the First, Fifth, Eighth, Ninth, and Tenth
Amendments to the U.S. Constitution. The Trial Examiner shall not ex-
press any judgment on this matter inasmuch as the Trial Examiner must as-
sume the constitutionality of the Act which he administers in all its parts
until and unless the courts decide to the contrary
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the
amount of backpay due under the terms of this
Recommended-Order.
(d) Post at its place of business in Wichita, Kan-
sas, and all of its other business locations and
exchanges copies -of the attached notice marked
"Appendix B." 14 Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by Company's representa-
tive, shall be posted by the Company immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including places where notices to em-
ployees are customarily posted . Reasonable steps
shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) 'Notify the Regional Director for Region 17
in writing within 20 days from the receipt of this
Recommended Order what steps the Company `has
taken to comply herewith.15
" 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."
15 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX B
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
After a Trial in which both sides had the oppor-
tunity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this Notice and to keep
our word about what we say in this Notice.
WE WILL NOT question you in any way over
the Union.
WE WILL NOT threaten to fire you, or to'close
the plant or to take away benefits if you sup-
port the Union.
WE WILL NOT threaten you in any other way
over the Union.
WE WILL NOT promise .you promotions or
wa#e increases if you cease to' support the
Union.
WE WILL NOT promise you benefits to cease
your support of the Union_
WE WILL NOT spy on your union activities or
create the impression we are spying on your
union activities.
WE WILL NOT discourage union activity, sup-
port, or membership in the International Print-
ing Pressmen and Assistants Union of North
America, AFL-CIO, or its affiliated Local 147,
or any other labor union, by disciminating
against you if you choose' to engage in, union
activity or support or join the International
Printing Pressmen and Assistants Union of
North America, AFL-CIO, or its Local 147, or
any other union.
WE WILL NOT discriminate against any em-
ployee for engaging in union activity or sup-
port or joining the Union or for giving informa-
tion or testimony before the National Labor
Relations Board. Since the' Board has found
that we did so when we fired Kenneth Larsh,
WE WILL pay him for any loss he suffered
because we fired him. If he is presently'in the
Armed Forces of the United States, we will
notify him of his right to full -reinstatement
upon application after discharge from the
Armed Forces.
WE WILL respect the rights of our employees
to self-organization, to form, join, or assist any
labor union, or to bargain collectively 'in
respect to terms or conditions of employment
through such union, or any representative of
their choice, or to refrain from such activity,
and WE WILL NOT interfere with,' restrain, or
-coerce our employees in the, exercise of these
rights.
You and all our employees are free to become
members of any labor union or to refrain from
doing so.
LOVE Box Co., INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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, 610 East 12th Street, Kansas City, Missouri
64106, Telephone FR 4-7000.