Mackie-Lovejoy Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 2, 1953

103 N.L.R.B. 172 (N.L.R.B. 1953)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that effective distribution cannot be conducted away from such premises. I have
attempted to accommodate these conflicting considerations , each to the other,
by framing the recommended order in such a manner as to make clear that while
the Respondent may not wholly ban the distribution of union literature outside
the fenced -in grounds , it may nevertheless , by agreement with interested unions,
or otherwise , impose reasonable regulations and controls on such distribution,
provided only they are not of such a nature as to prevent full access to employees
for purposes of such distribution.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. International Chemical `Yorkers Union, AFL , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
4. The Respondent has not engaged in unfair labor practices , as alleged in the
complaint , by discriminating in regard to the hire and tenure of employment
of Richard M. Peer, by interrogating its employees concerning their and other
employes' union membership and activities, or by keeping under surveillance
its employees ' union activities.
[Recommendations omitted from publication in this volume.]
MACKIE-LOVEJOY MANUFACTURING COMPANY, TIMBER PRODUCTS
MANUFACTURING COMPANY DIVISION and UNITED FURNITURE WORK-
ERS OF AMERICA , CIO. Case No. 7-CA-708. March, 0, 1953
Decision and Order
On November 28, 1952, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices, and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the Respondent filed excep-
tions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Styles, and Peterson].
103 NLRB No. 24.
MACKIE-LOVEJOY MANUFACTURING COMPANY 173
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 Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner, with the following modifica-
tions and additions :
1. We agree with the Trial Examiner that the interrogation, threats,
and promises of benefit, by Respondent's supervisory personnel, were
in violation of Section 8 (a) (1) of the Act'
2. The Trial Examiner found that the Employer, after a layoff,
discriminated in violation of Section 8 (a) (3) against four of the
known union adherents, Paul Klaas and Richard Kerby in the sanding
department, and Wilbur Mast and John Frestick, Jr., in the woodwork
department, by offering each of them a job of night fireman and jani-
tor, and using their failure to accept such demotions as a pretext for
depriving them of their right of recall to their regular jobs. Al-
though we agree with the finding of discrimination, we do not agree
with the Trial Examiner's legal conclusion that the fireman-janitor
job offers were constructive discharges. The Respondent offered to
these four complainants a job which was clearly unsatisfactory to
them and which they rejected. The vice of the Respondent's conduct
was not in the fact that it made these job offers, but in the effect it
gave to them. As shown herein, it treated the rejection as justification
for not recalling these complainants when their regular jobs became
available, while recalling the other laid-off employees to their regular
jobs. Accordingly we are of the opinion that the discrimination found
herein occurred when their regular jobs became available and the
Respondent failed to recall them because of their union activity .3
The evidence clearly reveals that the offer in each case was part of a
plan to defeat unionization. Thus, the Respondent first offered the
fireman-janitor job, out of the order of seniority, to Paul Klaas, know-
P The Trial Examiner inadvertently stated in the Intermediate Report that Cecil
Hawkins, instead of Robert Warren , delivered the antiunion speech. We hereby correct
this error , which does not affect the Trial Examiner 's ultimate findings or our concurrence
therein.
2 However , in adopting the finding with respect to the threats of Plant Manager Worden
to employee Bernice Klaas, we do not rely on the Trial Examiner 's comment that the testi-
mony of employees Davis and Armstrong , about asking Warden if they were in the Union
after signing authorization cards, ". . . defies reasonable belief." Regarding the Trial
Examiner 's finding that the participation of Leonard Case at the second union meeting did
not constitute an 8 (a ) ( 1) violation , we agree, but for the reason that it is clear Case
was not a supervisor at the time of the meeting. We therefore find it unnecessary to
decide whether or not his remark , "This is a public meeting place , no one has to leave
if they don 't want to," would have been unlawful coercion or interference with union
activity, had he been a management representative.
3 Consequently , we do not agree with the Trial Examiner that Klaas was discriminated
against on April 5, Mast on April 8, and Kerby and Frestick on May 8 , when they were
offered fireman -janitor jobs.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that he was not physically able to do such work and would have to
refuse it. Moreover, according to the credited testimony of Mast,
when Plant Manager Worden offered Mast the same job, Worden
said "he had to offer [Mast] a job which he knew [Mast] didn't want
because [Mast] couldn't make a living at it." Furthermore, when the
regular job of union adherent Linsenmayer became available on
March 5, the Respondent recalled a nonunion employee, Weaver, who
had less seniority,4 and waited over a month until the fireman-janitor
job was open before seeking to contact Linsenmayer. And when the
regular jobs of the others were open, the Respondent admittedly
failed to check to see if any of these laid-off employees wanted to
return.,' Indeed, we find that it had already decided not to recall
them. Thus, when asked at the hearing, "21A any rate, you assumed
when they didn't want the fireman's job, that they didn't want any
job with the company," Worden answered, "I don't think I assumed
that. I think I checked that with our counsel."
Accordingly, in view of the offers to these complainants of an in-
ferior job under circumstances which Respondent could clearly have
anticipated would bring refusals; the failure to recall these complain-
ants, as it did the other laid-off employees, to their regular jobs
when they became available; the reliance of the Respondent upon the
offers as grounds for not recalling them to their regular jobs when
their jobs became available; and the prior threats of reprisal and
promises of benefit directed at those engaged in union activity at the
plant, we conclude that the offers were part of a plan to penalize these
complainants for their known union activity and to defeat unioniza-
tion at the plant.
With respect to when these employees should have been recalled,
the Respondent's counsel conceded, as the Trial Examiner found,
that in March and April all were being called back. This concession
is supported by the testimony of former Foreman Figg, who testified
that full production began in May, and by the actual production rec-
ords, which show that the May output was 44 percent higher than the
output in January, the month before the layoffs Although the Re-
spondent did not hire new employees in the sanding and woodwork
departments until the latter part of May, employees from other de-
partments worked temporarily in these departments, and employee
Rhodes was permanently transferred to the woodwork department on
May 3. In the sanding department, despite the high output in May,
* Worden testified that he followed straight seniority in the departments when recalling
the employees. Both Linsenmayer and Clara Moore had more seniority in the lacquer
department, to which Weaver was recalled.
6 Case, who was promoted to a supervisory position before the February 8 layoff,
admitted that he did not tell Frestick that if Frestick turned down the fireman -janitor
job, he would be forfeiting his rights to his regular job.
5 Furthermore , May's production was higher than production in April, June, or July.
MACKIE-LOVEJOY MANUFACTURING COMPANY 175
only 2-instead of the customary 4 or 5-employees were permanently
assigned to work there during that month? Foreman Mavraganis
conceded that more employees were needed in that department when
lie testified, "... we didn't have enough sanders" in May.
Accordingly, we concur in the finding of the Trial Examiner that
operations were fully resumed by April 30, and we find further that
Paul Klaas, Kerby, Mast, and Frestick would have been recalled by
that date, absent the Respondent's discrimination. Accordingly, we
find the date of the Respondent's discrimination against them to be
April 30.
3. We likewise adopt the Trial Examiner's finding that Bernice
Klaas was discriminatorily refused reinstatement, in violation of
Section 8 (a) (3). As justification for not recalling her, Worden
testified that he and Plant Superintendent Van Cleave "just plain
made up our minds that we were not going to call her back" because of
her overall record, "particularly the fact she was away from her
machine quite a bit." Like the Trial Examiner, we agree that there
is no merit to these asserted reasons. Indeed, Figg credibly testified
that her production was "Very good," and that "She was always
working." Likewise, we discredit a further possible reason stated by
Worden. He testified, "Now possibly that [decision] was influenced
a little bit by the fact that" Foreman "Mavraganis told me, either the
day of the layoff or the evening before . . . Mrs. Klaas had told him
that if she was laid off she wasn't ever coming back to work for
Timber Products; didn't care about it any more." Klaas, whom the
Trial Examiner found to be a credible witness, testified differently.
We credit Klaas' denial that she made such a statement, and her
testimony that what she in fact said was that if she and her husband
were both laid off, "I would know they would never call me back
because of my union activities." We therefore find for these reasons
and the reasons found by the Trial Examiner that the Respondent
failed and refused to recall her because of her union activity. Be-
cause of the restoration of full production in May, we agree with
the Trial Examiner that she would have been recalled by April 30
if the Respondent had not discriminatorily refused her reinstatement.
4. We also adopt the Trial Examiner's finding that Linsenmayer
was discriminatorily refused reinstatement. The Respondent's con-
tention that he was not recalled because he was an unsatisfactory em-
ployee is belied by the fact that his separation notice, like others,
read, "Indefinitely terminated due to curtailment of raw materials.
Seniority within department," and by the further fact that he was
one of the first laid-off employees to whom the Respondent sought to
offer the fireman-janitor job. Not being able to locate him at the
1 Except the new employee hired May 26.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, Respondent did not actually offer him that job. Yet, when
Linsenmayer later asked for his regular job back, Worden admittedly
told him that Respondent would not recall him because he, like the
others, had turned down the other job .8 Not even when corrected on
this point did Worden state anything about his work being unsatis-
factory.0 Like the Trial Examiner, we reject the Respondent's con-
tention. We find that absent the Respondent's discrimination, it
would have reinstated Linsenmayer in the order of seniority. As
he had greater seniority than Weaver,10 we accordingly find that he
would have been recalled to the lacquer department on March 5,
the date Weaver was recalled.
5. We further agree with the Trial Examiner that employee
Maginity was discharged discriminatorily to discourage union mem-
bership. The evidence shows that the Respondent had permitted
literature to be brought into the plant. It shows further that there
had been no rule in the plant against the distribution of literature
when, just before the discharge, Plant Manager Worden saw several
union pamphlets on the tables in the lunchroom and in the hands
of some of the employees. By ordering Maginity to remove them from
the plant, and discharging her for refusing, we find, as did the Trial
Examiner, that Respondent violated the Act by according employees
disparate treatment as to the type of printed matter permitted on the
premises, and seizing on the disobedience of the unlawful order as
a pretext for the discriminatory discharge.- As there was no rule
against the distribution of literature, and as literature was in fact
freely permitted to be brought into the plant, we find that the
Respondent's purpose in ordering the union literature removed from
the plant was to suppress union organization, and that the discharge
of Maginity for disobeying the order was illegally motivated, in
violation of Section 8 (a) (3).12
8 From this incident, we draw the inference that Linsenmayer was included in the
Respondent ' s plant to rid the company of certain known union adherents , by offering them
a demotion , and using their rejections thereof as a pretext for later refusing to reinstate
them.
"Except for the discredited testimony of Worden, the only evidence in the record that
Linsenmayer's work was not satisfactory is Mavraganis ' testimony about Linsenmayer's
production in the sanding department . The Trial Examiner's action in discrediting this
testimony is supported by the testimony of former Foreman Figg that no complaints were
raised in the foremen's meetings about Linsenmayer's work. 'Moreover, Linsenmayer was
no longer working in the sanding department when lie was laid off from the lacquer
department.
10 See paragraph 2, above.
ar The American Thread Company, 101 NLRB 1306.
12 The Trial Examiner apparently attaches some materiality to the fact that the Respond-
ent did not advance a claim or offer proof that the distribution of the union pamphlet
interfered with production or littered the plant. We find that unnecessary to a decision
in this case inasmuch as we are here dealing with a disparate application of a rule against
distribution of literature. Moreover, in situations where the rule is applied nondiscrimi-
natorily, the test is not whether the Respondent can show actual interference with pro-
duction , as the Board has held that an employer may lawfully prevent the distribution in
the interest of keeping the plant clean and orderly. Monolith Portland Cement Company,
94 NLRB 135,8, 1366.
MACKIE-LOVEJOY MANUFACTURING COMPANY
Order
177
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Mackie-Lovejoy Manu-
facturing Company, Timber Products Manufacturing Company Divi-
sion, Beulah, Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers of
America, CIO, or any other labor organization of its employees, by
discriminatorily discharging any of its employees, or by discrimi-
nating in any other manner in regard to their recall, hire, or tenure of
employment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Furniture Workers of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ruth Maginity, Paul Klaas, Bernice Klaas, Richard
Kerby, R. R. Linsenmayer, John Frestick, Jr., and Wilbur Mast
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other
rights and privileges.
(b) Make whole the above-named employees in the manner set forth
in the section of the Intermediate Report entitled "The Remedy," for
any loss of pay they may have suffered as a result of the discrimination
against them.
(c) Upon request make available to the Board or its agents for
examination and copying, all payroll records, social-security payment
records, personnel records and reports, and all other records necessary
to analyze the amount of back pay due.
(d) Post at its plant in Beulah, Michigan, copies of the notice at-
tached hereto and marked "Appendix A." 13 Copies of such notice,
to be furnished by the Regional Director for the Seventh Region, shall,
13 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof and be maintained by it for
a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by the Respondent to
ensure that such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Seventh Region in writing
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be and it hereby is dis-
missed as to alleged violations of the Act in the group layoff of Feb-
ruary 8 and in surveillance.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED FURNITURE
WORKERS OF AMERICA, CIO, or in any other labor organization of
our employees, by discriminatorily discharging or refusing to
reinstate any of our employees, or in any other manner discrimi-
nating in regard to their recall, hire, or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate our employees regarding their union
membership and activity, warn or threaten them that such mem-
bership or activity will result in loss of employment or other
reprisals, or promise them benefits to withdraw membership from
or cease activity on behalf of any labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self- organization,
to form labor organizations, to join or assist UNITED FURNITURE
WORKERS OF AMERICA, CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to Ruth Maginity, Paul Klaas, Bernice Klaas,
Richard Kerby, R. R. Linsenmayer, John Frestick, Jr., and Wil-
MACKIE-LOVEJOY MANUFACTURING COMPANY 179
bur Mast 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
for any loss of pay suffered as a result of the discrimination
against them.
All our employees are free to become or remain or to refrain from
becoming or remaining members of UNITED FURNITURE WORKERS OF
AMERICA, CIO, or any other labor organization . We will not dis-
criminate in regard to their hire and tenure of employment or any
term or condition of employment because of their membership in or
activity on behalf of any such labor organization.
MACKIE-LOVEJOY MANUFACTURING COMPANY,
TIMBER PRODUCTS MANUFACTURING COMPANY DIVISION,
Employer.
Dated-------------------- By---------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of
hearing thereon having been issued and served by the General Counsel of the
National Labor Relations Board, and an answer having been filed by the above-
named Respondent Company, a hearing involving allegations of unfair labor
practices in violation of Section 8 (a) (1) and (3) of the National Labor Rela-
tions Act, as amended. 61 Stat. 136, herein called the Act, was held in Frankfort,
Michigan, on October 20, 21, 22, and 23, 1952, before the undersigned Trial
Examiner.
In substance the complaint alleges and the answer denies that the Respondent :
(1) On February 8, 1952, discriminatorily laid off because of their union activi-
ties 14 named employees; (2) after February 8 discriminatorily refused to re-
instate 7 named employees for the same reason; (3) on February 8 discrimina-
torily discharged employee Ruth Maginity because of her union activities; (4)
beginning in November 1951, interrogated its employees concerning their union
membership and sympathies, uttered threats and voiced promises of benefit to
discourage union membership, engaged in surveillance, and gave disparate treat-
ment during the union organizational campaign ; and by this conduct interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
Section 7 of the Act.
At the hearing all parties were represented, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence perti-
nent to the issues, to argue orally upon the record, and to file briefs and proposed
findings and conclusions. Arguments v eie waived ; both General Counsel and
the Respondent have filed briefs with the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Timber Products Manufacturing Company, with which this proceeding is con-
cerned, is a division of Mackie-Lovejoy Manufacturing Company, an Illinois
corporation. It operates a plant in Beulah, Michigan, and is engaged in the
manufacture of garment hangers. It purchases materials annually valued at
more than $50,000, of which more than 50 percent is shipped to the Beulah
plant from points outside the State of Michigan. It annually manufactures and
sells finished products valued at more than $150,000, of which more than 50 per-
cent is shipped outside the State of Michigan.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, CIO, is a labor organization ad-
mitting to membership employees of the Respondent at the Beulah plant.
III. THE UNFAIR LABOR PRACTICES
A. Relevant events and issues
All major issues of this case arise from an effort on the part of the Union begun
early in November 1951 to organize the Respondent's employees, numbering
about 60.
The first organizational meeting was held on November 9 at a local cafe.
Notice of the meeting appeared on a company bulletin board. W. G. Worden,
then production manager, as a witness admitted that he urged employees to
attend. Present at the meeting was at least one representative of management,
Clyde Rhodes. Worden described him as an assistant foreman who "ran" the
lacquer department and who "had the whole supervisory capacity, authority."
General Counsel claims that in "urging" employees to attend this and subsequent
meetings the Employer violated the Act.
On the occasion of a union meeting Worden drove by the gathering place, and
General Counsel claims surveillance. Between November 9, 1951, and February
8, 1952, Worden and other management representatives made statements to
employees, described below, which General Counsel claims to have been coercive.
Immediately after the first meeting of November 9, when a number of em-
ployees signed application cards, the Union telegraphed to the Respondent,
claiming majority representation and seeking negotiations. On November 13 the
Respondent, in effect, refused to recognize the Union as the majority representa-
tive of its employees and on the same day the Union filed with the Board a peti-
tion for certification (Case No. 7-RC-1603). On December 20 the Respondent
declined to consent to an election, and on February 1, 1952, the Board notified the
parties that a hearing on the representation case would be held on February 15.
On February 8, despite the fact that before then the Respondent had permitted
one of its retiring officials, on company time and to employees summoned to
attend, to give an antiunion speech, and despite the fact that at all times it has
permitted distribution in the plant of various chamber of commerce and other
pamphlets, Worden discharged Ruth Maginity, employee leader of the Union,
because she declined to remove from the premises copies of a union pamphlet.
Her discharge is in issue.
On the same day, February 8, the Respondent indefinitely laid off a group of
its production employees. General Counsel contends that the group layoff was
MACKIE-LOVEJOY MANUFACTURING COMPANY 181
for the purpose of discouraging union membership, in the face of an impending
election.' The Respondent denies the claim, and introduced evidence tending
to show that the layoff was required by economic circumstances beyond its
control, and that the employees were laid off according to seniority.
Although the Respondent, during the hearing, conceded that by the end of
April its production was resumed, it failed to reinstate seven employees laid off
on February 8. General Counsel claims that they were refused recall because
of their union adherence.
B. Coercion by Worden and other management representatives'
On the workday following the first union meeting and shortly after manage-
ment had received the Union's claim of majority representation, Worden engaged
a number of employees in discussion upon their return from their rest period.
He asked them what they expected to get from the Union that they were not
already getting. He said that with the Union "around" they would have so many
stewards and bosses they would not know which ones to take "word" from,
"because we won't even be considerate about you or how you feel." He told
them they would have less hours and would have no overtime, because with the
Union the company could not afford to pay it, and the plant would shut down'
Somewhat later Worden called employee Ruth Maginity to the office. During
the conversation, he asked her why she was "for the Union" and what she ex-
pected to gain from it. He said the company did not have to keep the plant open,
they could close it down or sell out. Wallace Van Cleave, superintendent, who
was also present, told Maginity she was "lucky to have a job," and Worden
added that they had a waiting list of applicants
1 No election was held. The Regional Director withdrew the notice of hearing in the
representation case upon the filing of unfair labor practice charges in this proceeding
2 General Counsel claims that the presence of Cecil Rhodes, established by Worden's
testimony as a supervisor within the meaning of the Act , and of 2 other individuals,
Ernest Forrester and Leonard Case, at 1 or both of the first 2 union meetings, constituted
a violation of Section 8 (a) (1) of the Act The Respondent denies that either of the
latter 2 were , at the time, supervisors . Under the circumstances the Trial Examiner
considers it unnecessary to resolve the evidentiary conflict concerning their supervisory
positions . The evidence is insufficient here, in the opinion of the Trial Examiner , to war-
rant a finding that mere presence of a management representative was coercive or restrain-
ing It appears that both meetings were held in public places, one a cafe and the other
the local courthouse , and that the notice to attend was not restrictive. Beulah is a small
town , the plant employs but comparatively few persons . There is no showing that
Rhodes or the others attempted to spy upon the meeting , or that they were asked to leave,
although their presence was plainly observed. The 1 item of participation attributed to
any 1 of the 3 was a remark by Case, made at the second meeting. After the employees,
in a close vote , decided against organizing , the union representative said, "You people who
,don't want a union , we are not talking to you," whereupon Case said, "This is a public
meeting place , no one has to leave if they don' t want to." The Trial Examiner does nor
consider this remark to have been coercive, even if made by a management representative.
As will be noted hereinafter , however, the attendance of Rhodes and Case , who shortly
afterwards became a representative of management , at these meetings bears upon company
knowledge of individuals favoring the Union , a point arising on the issue of the Respondent's
refusal to recall certain employees following the layoff of February 81.
2 The findings as to this incident rest upon the credible testimony of Bernice Klaas.
Worden denied making the coercive statements, although when first called as a witness he
admitted the occasion but said that although he could not recall any "comment" he might
have made some . Davis and Armstrong , two of the employees also present , when called as
witnesses by the Respondent denied that Worden made the statements quoted above. The
denials are not credible As found more particularly hereinafter , Worden was an unreliable
witness The testimony of Davis and Armstrong , who had signed authorization cards tl>,e
night before, that they had approached Worden to ask him if they were in the Union
defies reasonable belief
257965-54 -vol 103-13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the beginning of the union campaign Cecil Hawkins,' then plant
superintendent, met employee Wilbur Mast at a nearby tourist camp, invited him
into his car, and promised to make it "worth" his "while" to try to suppress the
union activity.'
Sometime before the February 8 layoff, Peter Mavraganis, supervisor' of the
sanding department, approached Bernice Klaas at her machine and told her
that if the Union came in the company would take the bonus away, there would
be no more overtime, and that eventually, probably, the employees "wouldn't even
have a place to work."
The Trial Examiner concludes and finds that the above-quoted interrogation,
threats, and promises of benefit, by Worden, Van Cleave, Hawkins, and Mavra-
ganis, constituted interference, restraint, and coercion.
C. The discriminatory discharge of Ruth Maginity
Maginity , well known by Worden to have been the employee leader of the
Union, was summarily discharged by him on February 8 immediately after
she had distributed to employees during their rest period , in their own cafeteria,
several copies of a union pamphlet. He assembled all employees and de-
manded to know who had brought the pamphlets into the plant . Maginity ad-
mitted that she had. He ordered her to remove them from the plant, or be
"fired right on the spot ." She declined , pointing out that she had given them
out during the employees ' rest period . He promptly discharged her, and told
all assembled that he had told foremen to "fire anyone seen talking in groups
about the union if it could be proved they were talking about the union."
Although Worden claimed that he discharged Maginity because she refused
to "perform a certain duty" and to "carry out an order ," he admitted that he
gave this order because he did not want any union literature on the premises.
It is clear , therefore , from Worden's own testimony , that the discharge was
discriminatory and to discourage union membership .' No claim was advanced
or proof offered that distribution of the pamphlet interfered with production or
littered the plant . As noted above , other pamphlets , in large numbers and
issued by the local chamber of commerce and the National Association of
Manufacturers , were freely permitted and distributed in the plant. Cecil
Hawkins, upon retiring, delivered an antiunion speech before all employees
assembled before the close of a workday. Thus the discharge , the disparate
treatment accorded to employees as to the type of printed matter permitted
on the premises , and Worden 's announcement that he had told the foremen that
they could fire grouped employees if they were talking about the Union, all con-
4 Although it is undisputed that Hawkins told a group of employees that he felt that
"every one should go" to the second union meeting, the Trial Examiner is unable to find
anything coercive in the remark
8 Mast's credible testimony is the basis for the findings. Hawkins admitted the occasion,
said he had asked the employee how he felt about the Union and told him it "would be
good to keep the plant like one big family," but denied that he had asked him to suppress
the Union. The denial is not credited as true.
6 The Respondent claims that Mavraganis was not a supervisor within the meaning of
the Act. The preponderance of credible evidence is to the contrary. Worden testified that
Mavraganis had the same authority as Cecil Rhodes, and the latter had "the whole super-
visory capacity , authority."
7 In his brief counsel for the Respondent states : "even if Maginity was convinced that
Worden 's 'request ' or 'order ' was a violation of her rights under the Act, it was her
obligation to comply and not to defy." The contention is without merit. To hold with
this principle would permit employers to nullify a congressional act, by permitting them
to discharge employees when they disobeyed an order to withdraw membership from a
labor organization.
MACKIE-LOVEJOY MANUFACTURING COMPANY 183
stitute interference , restraint , and coercion of employees in the exercise of rights
guaranteed by the Act.
D. The reduction in force on February 8
Later during the day on February 8 the Respondent laid off 17 production
employees.8 On the preceding day Worden had posted a notice stating that a
curtailment in raw material must result in a decrease in production. The notice
said that management could reduce the workweek for all employees or could
lay off some indefinitely in order that they might receive unemployment com-
pensation, and had decided upon the latter course. The notice further said
that the length of such a layoff would be uncertain and that announcement as
to those to be affected would soon be made.
It is General Counsel's claim, in effect, that the layoff was for the purpose of
discouraging union membership. In support of his position he points to the
undisputed fact that an election was pending in a plant where management had
clearly manifested, by overt acts, its antipathy towards the Union. He makes
no claim, and adduced insufficient evidence to show, that only employees known
to be union adherents were selected for the layoff.
It is true that an election was pending, that the Respondent had clearly in-
dicated by illegal acts that it intended to deprive its employees of their right
to select the Union as their bargaining representative, and that some of the em-
ployees laid off were active union adherents. These circumstances arouse rea-
sonable suspicion. The suspicion is strengthened, moreover, by the conclusion
set forth in the following section that in recalling employees the Respondent
plainly discriminated against known union sympathizers. And the suspicion
warrants the speculative probability that, possessing alternative courses of
action to meet a problem posed by reduced raw materials, the Respondent may
have chosen the one which would permit, on recalling employees, less apparent
discrimination. The Trial Examiner is of the opinion, however, that a specu-
lative probability falls short of a conclusion which should be drawn from a
preponderance of credible evidence.
In his brief, it appears that General Counsel relies mainly in his claim of a
discriminatory layoff, upon what he considers to be an inadequacy of proof ad-
duced by the Respondent to establish beyond doubt that lack of raw materials
made the layoff an economic necessity.
As to this point, undisputed records show that the allocation of steel by the
National Production Authority to the parent company, Mackie-Lovejoy,' had
been cut in August 1951 from a requested amount of 72 tons per quarter to 42
tons. This was long before any union activity occurred at the Beulah plant, and
was to cover the 4 periods from the fourth quarter of 1951 through the third
quarter of 1952. There is no dispute that Mackie-Lovejoy took measures, such
as reducing the size of wire used in hangers, in an attempt to meet the situation,
also before the union campaign began.
In December, according to unchallenged testimony, NPA finally permitted
refiling of applications for the second quarter of 1952, and on December 26
Mackie-Lovejoy requested an increase of 30 tons over the 42 tons already allo-
cated. Robert Riddell, vice president of Mackie-Lovejoy, testified that follow-
ing the December refiling he tried, at the Chicago office of NPA to have the allo-
cation increased, but was informed that it would probably be decreased instead.
8 The complaint lists but 13 of the production employees laid off, and 1 nonproduction
employee.
9 Mackie-Lovejoy's plant in Chicago purchases steel and fabricates it for use at the
Beulah plant.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He therefore instructed the Beulah plant to cut its February production to 169,-
000 units, as compared with 245,000 units in January and 263,000 In December.
On February 12 Mackie-Lovejoy in fact had its steel allocation reduced by an-
other 6 tons for the second quarter, bringing the tonnage allowed to one-half that
requested in December and in the preceding August.
On the basis of the production order received from Riddell the first of Feb-
ruary, Worden took action to reduce the production force. Upon advice from
the Respondent's counsel it was decided, in view of the pending representation
hearing and possible involvement in unfair labor practice charges, to select in-
dividuals for layoff by seniority.
There is no doubt that NPA curtailed steel allocations to Mackie-Lovejoy,
which processed steel for the Beulah plant. A production problem was created-
not by the Respondent, but by a Government agency. That the Respondent chose
to cut production of its regular units and its production force at Beulah instead
of further reducing its wire gauge to that of piano wire, thus increasing the
number of units possible per ton of steel, cannot be said to have been an unrea-
sonable solution of its problem.
In any event, the Trial Examiner concludes and finds that the evidence
is insufficient to establish that the February 8 layoff of the 17 individuals was
discriminatory and to discourage union membership.
Nor is the evidence sufficient to establish discrimination in the selection of
individuals laid off. The records reveal but one instance of possible failure to
follow a reasonable pattern of seniority. One man was kept on out of seniority,
according to one interpretation of the departmental setup, for the claimed rea-
son that he had been having trouble with his hands.
E. The discrimination in recalling employees from the layoff
Following protests, on February 21 Mackie-Lovejoy received from NPA an
increase in quarterly allocation to 60 tons, and on March 26 to the originally
requested 72 tons. Consequently Riddell ordered March production at the
Beulah plant increased to about 292,000 units and the April production to about
280,000 units. From these facts, in addition to counsel's statement at the hear-
ing "that everybody was being called back in March or April," it follows and
the Trial Examiner finds that by April 30 operations at Beulah were fully
resumed.
As to six employees10 laid off on February 8, it is General Counsel's claim
that they were discriminatorily refused recall to discourage union membership.
Wilbur Mast, Paul Klaus, Richard Kerby and John Frestick, Jr.: Each of these
four employees was laid off on February 8. Each was known by management
to be an active union adherent. All attended the early union meetings at which
Rhodes and Case were present. Mast was promised benefits by Hawkins if he
would try to suppress union activities. Klaas made his union interest known to
Mavraganis before the layoff At a foremen's meeting Mast, Kerby, and Klaas
were discussed by management representatives as attending meetings held at
Maginity's home. On April 5 Klaas, on April 8 Mast, and on May 9 Kerby and
Frestick were offered, and declined, a job as night fireman and janitor. This
job was for 7 days a week instead of their regular 5, and paid about 50 cents an
hour less than they made in their regular position. In offering it to Mast,
Worden told him, in effect, he did not think he could afford to accept it.
10 Paul Klaas, Bernice Klaas, Richard Kerby, R R. Linsenmayer, John Frestick, Jr , and
Wilbur Mast The complaint also named a seventh, Roger Stillwell, but he was not
called as a witness and upon motion by the Respondent the complaint was dismissed as
to him.
MACKIE-LOVEJOY MANUFACTURING COMPANY 185
In its answer, signed by Riddell, the Respondent claimed that all four were
recalled but refused The evidence deprives the claim of merit. The offers
plainly fell far short of recall to the same or substantially equivalent positions.
Worden said that he refused to recall Mast to his regular job for a number
of reasons. His testimony in general was so evasive, rambling," confused, and
contradictory as to cast doubt upon the validity of any of the reasons. Early in
the hearing, while Mast was a witness, the Respondent conceded that Mast'%
ability as a workman was not questioned, and "it certainly did not enter in any
way into our consideration" in recall. Two days later, however, Worden said
that he decided not to recall Mast because sometime after the layoff he found
that Mast's productiveness before the layoff had been unsatisfactory. The claim
not only flies in the face of the pleading and of counsel's concession, but is incon-
sistent with the testimony of Mast's own foreman that he requested Worden to
recall him, but Worden refused. It appears unnecessary to discuss, here, other
i easons advanced by Worden which are unsupported by records, documents, or
credible evidence.
As to Kerby and Frestick, Case claimed that when he offered them the fireman's
job, each told him he would not come back to the plant on any job. Kerby spe-
cifically and credibly denied making this statement. Frestick, although not ques-
tioned directly on the point, gave a version of his interview with Case which
contains an implied denial. In turning down the fireman's job he asked Case if
there were not an "opening for an inside job" and Case said "no." Nor do the
surrounding circumstances support Case's testimony. Charges of refusal to
reinstate were thereafter filed as to both Kerby and Frestick. The Trial Exami-
ner specifically finds that neither employee refused to come back to work at
any job.
As to Klaas, it appears that the Respondent rests its defense upon his mere
refusal to return to work at far less pay, with more hours, and at a job which,
as Worden well knew, was injurious to his health."
The Trial Examiner concludes and finds that the four known union employees
above named were offered a job which management believed they would decline,
and that their failure to accept what amounted to a demotion was used as a
pretext to deprive them of their right to recall to their regular jobs, as had been
the custom in previous layoffs." Under these circumstances, it is concluded
and found that the offers were, in effect, constructive and discriminatory dis-
charges, and that the discrimination became effective as of the dates the offers
were made.1° Such discrimination, for the purpose of discouraging union mem-
bership, interfered with, restrained, and coerced employees in the exercise of
rights guaranteed in the Act
Bernice Klaas: This employee, hired in 1949, had been previously laid off in
seasonal reductions in force, but until 1952 had always been recalled when normal
operations resumed.
Management well knew of her union activity, as has been established above.
The Respondent concedes that she was not recalled. The reasons advanced
by Worden fail to withstand scrutiny, as in the case of Mast. Despite the testi-
l' On this point, at least 11 times during Worden's testimony as a witness for the
Respondent his own counsel cautioned him
1' During a previous layoff Klaas, at management request, had relieved firemen on their
vacation. The severe temperature changes affected his sciatic condition, which he reported
to Worden , resulting in his transfer back into the plant.
13 Further support for this conclusion is the fact that employee Fuller, who had never
attended a union meeting or signed a card, was recalled to a job he wanted without being
required to accept or reject the fireman's job.
11 The Russell Manufacturing Co , Incorporated, 82 NLRB 1081.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of two supervisors, 11lavraganis and Figg, that Klaas did satisfactory
work, and despite the fact that in previous years she had always been recalled,
Worden declared in a long, rambling, and sometimes almost incoherent disserta-
tion that he and Van Cleave "just plain made up our minds that we were not
going to call her back," because of "her over all record and attendance and
production and cooperation." Van Cleave was not a witness. Worden later
admitted that she was never absent without permission. Her supervisor voiced
no criticism of her production and on the contrary said she was "pretty good."
And as to her cooperation or "attitude," as he expressed it, on cross-examination
he nullified his original claim by stating, "I can't say we didn't like her attitude."
The Trial Examiner finds no merit in the Respondent's contentions as to its
failure to recall this employee.
The preponderance of credible evidence makes clear, and the Trial Examiner
finds, that on or about April 3016 Bernice Klaas was discriminatorily refused re-
instatement in order to discourage union membership and that this refusal inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act.
Russell R. Linsenmayer: This employee, Dorden said, "was never offered
recall" because "we didn't intend to recall him. We considered him an unde-
sirable employee " He made this surprising claim despite the fact that his
own records establish that in previous layoffs, when not seniority but factors of
ability governed the selection, Linsenmayer had always been kept on. In fact
it appears that during Van Cleave's absence, Linsenmayer had been assigned
many of the supervisor's duties, by Worden himself. Worden's claim that his
work was unsatisfactory lacks the support of any credible evidence and is without
merit.
That Linsenmayer was "undesirable" to Worden is without doubt true. But
the undesirability stemmed from his activity on behalf of the Union, which was
well known to management. But the Act was designed to protect employees from
discrimination resulting from this type of undesirability to an employer.
As in the case of Bernice Klaas, it is found that Linsenmayer was discrimina-
torily refused reinstatement on April 30, to discourage union membership and
thereby interfering with, restraining, and coercing employees in the exercise
of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in and is engaging in unfair
labor practices affecting commerce. It will be recommended that it cease and
desist therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
It has been found that the Respondent discriminatorily discharged and/or
refused to reinstate seven employees. It will be recommended that the Re-
15 Since the record does not provide sufficient information as to what date, absent dis-
crimination, Klaas would have been recalled, the date of April 30 is fixed on the basis of
the concession by counsel for the Respondent, when protesting against producing more
records, that in March or April all were being called back.
CAPITAL LUMBER COMPANY, IDiC. 187
spondent offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions,"B without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay they may have
suffered by reason of the discrimination by payment to each of them of a sum
of money equal to that which he or she would normally have earned less net
earnings,17 which sum shall be computed on a quarterly basis during the period
from the discrimination to the date of a proper offer of reinstatement." It will
also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of
back pay due.
The discrimination found herein indicates a purpose to limit the lawful
organizing rights of the Respondent's employees. Such purpose is related to
other unfair labor practices, and it is found that the danger of their commission
is reasonably to be apprehended. It will therefore be recommended that the
Respondent cease and desist from in any manner interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed by the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Ruth
Maginity, Paul Klaas, Bernice Klaas, Richard Kerby, R. R. Linsenmayer, John
Frestick, Jr., and Wilbur Mast, thereby discouraging membership in a labor
organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed by Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
1e The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
17 Crossett Lumber Company, 8 NLRB 440.
18 F. W. Woolworth Company, 90 NLRB 289.
CAPITAL LUMBER COMPANY, INC. and INTERNATIONAL WOODWORKERS
OF AMERICA, CIO. Case No. 20-CA-740. March 2, 1953
Decision and Order
On January 13, 1952, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
103 NLRB No. 32.