Maple City Stamping Co.

National Labor Relations Board - Board Decisions

Dec 5, 1972

200 N.L.R.B. 743 (N.L.R.B. 1972)

MAPLE CITY STAMPING CO 743
Maple City Stamping Company and International
Brotherhood of Firemen and Oilers , Local 8,
AFL-CIO and William Charlton Cases
38-CA-1347,38-CA-1421, and 38-CA-1389
December 5, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 14, 1972, Administrative Law Judge'
James V Constantine issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief and counsel for the
General Counsel filed limited exceptions, a statement
in support thereof, and a brief in support of the
Administrative Law Judge's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,2
findings, and conclusions of the Administrative Law
Judge subject to the modifications set forth below
1 We find, in agreement with the Administrative
Law Judge, that the Respondent violated Section
8(a)(1) of the Act by (a) engaging in surveillance of
union activity of its employees, (b) threatening to
close its plant or take other reprisals if its employees
chose a union to represent them, and (c) coercively
interrogating employees concerning their union
membership, sympathies, and activities
However, we find merit in the General Counsel's
exceptions 3 to the conclusions that Respondent did
not violate Section 8(a)(1) of the Act when, about the
last week of December 1971, it abolished unsche-
duled coffeebreaks, restricted employees to their
work areas, and ordered a "speed up" in work It is
clear that these changes in working conditions were
implemented and enforced by Respondent against
known union adherents in reprisal for, and in order
to discourage, their union activities and sympathies
2 We agree with, and adopt, the Administrative
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Although the Administrative Law Judge s exclusion of evidence
concerning the job classifications and duties of certain of Respondents
employees was in error we do not find this error prejudicial in view of the
overwhelming evidence summarized hereinafter that Respondent discrimi
natorily terminated the aforementioned employees for unlawful reasons
rather than as it asserts due to lack of work
3 As it would be cumulative and would not enlarge the scope of the
Order we need not pass upon the General Counsel s further exceptions to
the failure of the Administrative Law Judge to find additional 8(a)(1)
violations by allegedly unlawful interrogations and a threat involving
Law Judge's finding that Respondent violated
Section 8(a)(4) and (1) by Supervisor Patten's
discharge of employee Burress on January 8, 1972 4
We also agree with, and adopt, his findings that after
Burress had been reinstated on January 12,5 Respon-
dent violated Section 8(a)(3) and (1) by terminating
him, on January 17, for unlawful reasons, rather than
as Respondent contends because of a "run-in" with a
supervisor
3 We agree with, and adopt, the Administrative
Law Judge's finding that Respondent's motivating
cause for the layoff of Oary on January 13, and
Charlton on February 14, was their union activities,
rather than absenteeism and failing to call in when
absent as asserted by Respondent, and hence
Respondent thereby violated Section 8(a)(3) and (1)
4 We also agree with his finding that Respondent
violated Section 8(a)(3) and (1) of the Act by laying
off Lelm on December 17, 1971, Howell, Hedden,
Layton, Leggans, and Burress on January 4, and
Miller on January 14 All of these employees engaged
in union activity and Respondent had knowledge of
the union sympathies of each of them prior to his
termination We are persuaded that they were laid
off because of their union sympathies and activities
rather than for economic reasons
The undenied, uncontradicted testimony of various
witnesses was that although Respondent had previ-
ously experienced periods during which work was
slack, it had never laid off employees for this reason
Generally, during such prior periods employees were
assigned to perform maintenance duties Respondent
offered no evidence or explanation of why the
alleged lack of work at the time in issue was different
from earlier periods when there was a decrease in the
amount of available work but no employees were
laid off
Significantly, there is substantial record testimony
that the particular jobs these employees were
working on when they were laid off were not
complete, that work was not slack, that employees
regularly worked overtime after these layoffs, and
that part-time employees and employees with less
seniority than those laid off were not adversely
affected by Respondent's alleged economic cutback
In addition, Respondent hired or recalled approxi-
several of Respondent s supervisors including Meyer who we find, for the
reasons set forth in the attached Decision to be a supervisor within the
meaning of the Act However we disavow the Administrative Law Judge s
apparent view that absent the implication of reprisals, interrogation by a
supervisor of an employee concerning his union activities and sympathies is
never coercive
4 Unless otherwise indicated all events occurred in 1972
5 Burress was first laid off on January 4 discharged by Supervisor Patten
on January 8 reinstated on January 12 and finally terminated on January
17 The Administrative Law Judge concluded that all of these adverse
actions against him were unlawfully motivated but inadvertantly failed to
include those occurring on January 4 and 17 in his Conclusions of Law
200 NLRB No 108
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 13 employees between January 3 and March
31 Of the seven employees named above, only Miller
and Burress, who was subsequently discriminatorily
terminated, were recalled and Respondent offered no
explanation of its failure to recall any of the others
It is also of probative value that the Administrative
Law Judge's findings of conduct by Respondent
violative of Section 8(a)(1), which Respondent has
not excepted to, included threats by Supervisor
Patten on January 8 to lay off some employees
because of the union meeting that day and to close
the plant before allowing a union to come in Even
more telling was Patten's admission to Burress on
January 5 that he had orders "to cut back and lay off
men that had anything to do with the Union or even
was suspicious with having anything to do with the
Union [sic] "
In view of the foregoing factors and the entire
record herein, we are convinced that the primary
reason for the layoff of the aforementioned employ-
ees was Respondent's union animus
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Maple City
Stamping Company, Peoria, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as herein
modified
1 Insert the following paragraph and reletter
paragraphs 1(c), (d), (e), and (f) as 1(d), (e), (f), and
(g)
"(c) Changing conditions of employment or other-
wise discriminating against employees in reprisal for,
and in order to discourage, their union activities and
sympathies "
2 Insert the following paragraph and reletter
paragraphs 2(d) and (e) as 2(e) and (f)
"(d) Restore those conditions of employment
herein found to have been unlawfully changed "
3 Substitute the attached notice for the Adminis-
trative Law Judge's notice
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice
WE WILL NOT discourage membership in
International Brotherhood of Firemen and Oilers
Local 8, AFL-CIO, or any other labor organiza-
tion, by laying off or terminating employees or
otherwise discriminating in any manner in respect
to their tenure of employment or any term or
condition of employment
WE WILL NOT discharge or otherwise discrimi-
nate against employees because they have filed, or
are believed to have filed, charges under the
National Labor Relations Act
WE WILL NOT change conditions of employ-
ment or otherwise discriminate against employees
in reprisals for, and in order to discourage, their
union activities and sympathies
WE WILL NOT coercively interrogate employees
regarding their union membership, sympathies,
and activities
WE WILL NOT engage in surveillance of union
activity by employees
WE WILL NOT threaten to close our plant or
take other reprisals if our employees choose a
union to represent them
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed to them in Section 7 of the
National Labor Relations Act
WE WILL offer Vernon Lelm, Bruce Hedden, L
T Howell, Raymond Layton, Ernest Leggans,
William Charlton, Clifford Oary, and John
Burress each immediate and full reinstatement to
his former position or, if such position no longer
exists, to a substantially equivalent one, without
prejudice to the seniority or other rights and
privileges enjoyed by each
WE WILL compensate the employees mentioned
above, and also Robert Miller, for any loss of pay
each may have suffered by reason of his layoff or
termination, with interest thereon at the rate of 6
percent per annum
WE WILL restore the following conditions of
employment unscheduled coffeebreaks, lack of
unnecessary restrictions of employees to their
work area, and the required amount of pro-
duction to the level existing prior to its increase
All our employees are free to become, remain, or
refuse to become or remain members of said Local 8,
or any other labor organization
MAPLE CITY STAMPING
COMPANY
(Employer)
MAPLE CITY STAMPING CO 745
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Savings Center Tower, 10th Floor,
411 Hamilton Boulevard, Peoria, Illinois 61602,
Telephone 309-673-9061, Ext 282
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V CONSTANTINE, Trial Examiner This is a
consolidated case consisting of three unfair labor practice
cases In Case 38-CA-1347 a charge was filed on January
5, 1972, by International Brotherhood of Firemen and
Oilers, Local 8, AFL-CIO, herein called Local 8 or the
Union This was amended on February 7, 1972, and a
complaint issued on said charge and amended charge
against Maple City Stamping Company on February 23,
1972, by the Officer-in-Charge of Region 38, Peoria,
Illinois, on behalf of the General Counsel of the National
Labor Relations Board, herein called the Board Said
complaint alleges that Maple City Stamping, herein called
the Company or Respondent, engaged in unfair labor
practices violating Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, herein called the Act
Respondent has answered said complaint admitting some
facts contained therein but denying it committed any
unfair labor practices
Another charge was filed against said Company on
February 17, 1972, by William Charlton, an individual, in
Case 38-CA-1389 A complaint thereon, alleging that
Respondent violated Section 8(a)(1) and (3) of the Act, was
issued by said Officer-m-Charge on March 20, 1972
Respondent has answered said complaint admitting some
facts but denying it violated the Act On March 20, said
Officer-m-Charge consolidated Cases 38-CA-1347 and
1389 for the purpose of trial
Still another charge was filed against said Company by
said Local 8 on March 17, 1972 Case 38-CA-1421 It was
amended on April 21, 1972 A complaint was issued on
said charge and amended charge on April 21, 1972, by the
Acting Officer-in-Charge of said Region 38 alleging
violations of Section 8(a)(1) and (3) of the Act by said
Company Respondent answered said complaint admitting
some facts but denying it engaged in any unfair labor
practices
On April 21, 1972, said Acting Officer-in-Charge
consolidated Cases 38-CA-1347, 1389, and 1421 for the
purpose of trial At the trial the complaint in Case
38-CA-1347 was amended by the General Counsel
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me, at Peoria, Illinois, on
May 16, 17, and 18, 1972 All parties were represented at
and participated in the trial, and had full opportunity to
introduce evidence , examine and cross -examine witnesses,
file briefs, and present oral argument Briefs have been
received from the General Counsel and the Company
Upon the entire record in this consolidated case, and
from my observation of the witnesses , I make the
following
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent , an Illinois corporation , is engaged at
Peoria, Illinois, in manufacturing conveyors and other
products for scrap yards and foundries During the year
preceding the issuance of the complaint herein , it shipped
finished products valued in excess of $50 ,000 to points
outside the State of Illinois I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over this proceeding
II THE LABOR ORGANIZATION INVOLVED
Local 8 is, and at all times material herein has been, a
labor organization as defined in Section 2(5) of the Act
III THE ISSUES
The issues in this case are (a) whether Respondent
unlawfully interrogated its employees concerning their
union membership, activities , and desires , (b) whether
Respondent threatened to discharge employees if they
engaged in union activities , (c) whether Respondent told
an employee that he and other employees were being laid
off, or discharged, or both, because of their union
membership , or activities , or both , (d) whether Respondent
engaged in surveillance of the union activities of its
employees , (e) whether Respondent discharged or laid off
Vernon Lelm, Bruce Hedden, L T Howell, Raymond
Layton, Ernest Leggans, William Charlton, Clifford Oary,
and Robert Miller because they joined the Union, or
engaged in union activities, or both , (f) whether Respon-
dent told employees they would lose certain privileges and
working conditions would become more onerous if they
joined the Union or engaged in union activity , (g) whether
Respondent informed employees that it would close its
shop if they chose a union for their representative , and (h)
whether Respondent discharged John Burress in violation
of Section 8(a)(4) of the Act
IV THE UNFAIR LABOR PRACTICES
A General Counsel 's Evidence
Jack Yancick is business representative of Local 8
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About December 12, 1971, Vernon Lelm contacted him
about organizing Respondent's employees Among other
things, Yancick arranged to have Lelm receive between 75
to 100 authorization cards of the Union on or about
December 17 On December 21 Lelm telephoned Yancick
that Lelm had been fired So Yancick arranged a meeting
with Lelm on December 27 Besides Lelm, employees
Ernest Leggans, Bruce Redden, Bill Lee, Ray Layton, and
Leroy Wilson attended it After discussing organizing
Respondent , those present agreed to meet again on
December 31
On December 30 Yancick and Lelm placed handwritten
cards on about 50 or 60 cars parked around the plant
announcing the meeting of December 31 Later that day
Yancick and Lelm obtained a signed union authorization
card from Bill Charlton At the meeting of December 31,
employees Ray Layton, Bruce Hedden, Bill Charlton, L T
Howell, Ernie Leggans, Clifford Oary, Bill Lee, Vernon
Lelm, and Byron Spencer were present More authoriza-
tion cards were distributed to those attending At this
meeting it was agreed to meet again on January 8, 1972
On the evening of January 4, 1972, Ray Layton
telephoned Yancick that Layton had been laid off As a
result Yancick met with some employees on January 5 at
the Board's office Among others, the nine employees
enumerated in the above section entitled "The Issues" were
there, including John Burress Following the meeting Local
8 filed an RC petition with the Board in Case 38-RC-1106
on January 10 (See G C Exh 4 )
Yancick again met with about 25 or 30 employees on
January 8 at Papermakers Hall He gave them union
badges and stickers Next door is located Villa Tap, a
tavern When the meeting concluded, Yancick went to
Villa Tap and sat down at a table with John Burress, Bob
Miller, Bill Charlton, Dan Stein, and Wayne Revord
However, Respondent's supervisor, Ed Patten, came to the
table and spoke to those there and asked Yancick why
John Burress had filed a charge against Patten Yancick
insisted that Burress had not done so
Then Patten left Soon he returned and told Yancick that
union business should not be conducted in a tavern, that
he, Patten, took care of the men at the plant, so that they
did not need a union "down there " Soon Patten left
Nevertheless he returned again and insisted that Burress
had filed a charge against him Thereupon Patten seized
Burress by the shoulder and said, "You're fired " At the
time Burress was scheduled to return to work for
Respondent the following Monday
After this Patten left Yet he returned still another time
On this occasion he "proceeded to rip and gouge" Yancick
as a "lousy" union representative, and accused the latter of
"bilking" employees of $5 or $6 a month for dues
Continuing, Patten asserted that he could take care of the
men "down there and he didn't need a union and that
unions were lousy "
Additional meetings were held on January 16 and 29
Employees Bill Charlton and John Burress, among others,
attended them
I Joseph Moore's testimony
Joseph Moore is manager of Respondent's conveyor
plant , where it manufactures oscillating infeed conveyors,
takeaway oscillators , throughing stackers , flat belt stackers,
metal sorters , dirt conveyors , steel belt conveyors, rotary
dryers and afterburners, power turntable units, and A-
frames With the exception of metal sorters, this equipment
is custom built Respondent 's other plant, which is called
the subcontracting or Caterpillar side , is managed by
Edward Patten There is no interchange of employees
between these two plants
According to Moore, he hired Vernon Lelm as a welder
on November 22, 1971, to work on some equipment,
including a barrel burner for General Electric Co At that
time Moore was "under pressure [from General Electric] to
get his barrel burner out," because Moore was about 2
months behind on its scheduled completion About
December 17 or 18 Moore decided to lay off Lelm Two or
three days before this Moore instructed Lelm's foreman to
lay off some employees "because of lack of future
business " Foreman Walter Bennett selected Lelm because
the latter was one of the newest employees and because
there was a shortage of welding work At the time Lelm
was working on the General Electric job In general,
seniority is followed on layoffs
Although Lelm was laid off when his work on the
General Electric job had ended , he was still working on a
barrel burner order Part of the General Electric job was
shipped the first week of January , 1972, and the remainder
within the next 10 days
The decision to lay off employees L T Howell, Bruce
Redden , Ray Layton , and Ernest Leggans was made
jointly by Moore and Foreman Bennett, shortly after
January 1, 1972, for anticipated shortage of work
However, at the time Respondent had an unfulfilled order
from Wagner Casting Company to make some oscillators
and "possibly one" for General Electric In fact Respon-
dent was behind schedule on the Wagner order, and
Leggans and Layton were still working on it when they
were laid off This order was not completed until after
Layton and Leggans were laid off , i e, about January 15,
1972 Prior to this Respondent had never laid off anyone in
the conveyor plant for lack of work Although Respondent
has since January 4, 1972, built more sorters since Howell
and Redden were laid off on January 4, 1972 , these two
employees have not been recalled Yet Howell and Hedden
were used in building this equipment in the past
Finally, on January 4, 1972, Respondent employed five
or six part-time employees , some of them welders, yet they
were not laid off In fact three of these part -time welders
also had a job with Caterpillar Tractor Co , another Peoria
employer
Howell and Hedden worked as a team on a sorter, but,
as no orders were on hand for this sorter , they were let go
together Howell had been employed by Respondent for
about 2- 1/2 years as the principal worker on sorters, and
others working thereon, including Redden, were his
helpers When Howell was laid off, employees with less
seniority were retained
Layton and Leggans , who worked as a team on
oscillators, were selected to be laid off because the
oscillator business "was also down" and a couple of men
MAPLE CITY STAMPING CO 747
senior to them "and probably more qualified" were kept to
do the remaining oscillator work
A day before Robert Miller was laid off, Moore and
Foreman Bennett decided to let him go because "we were
running completely out of work for him " He was working
on an oscillator at the time Miller was employed for 5 or 6
years by Respondent, could perform several kinds of work,
was one of its highest paid men in the shop, and "one of
our more senior employees " No previous warning was
given to Miller that he would be laid off, which was for a
period of 5 days He was then recalled because a "release"
had been obtained on "another system which created
some more oscillator work"
Foreman Bennett made the decision to discharge
Clifford Oary, but he discussed it with Moore Oary
suffered this fate because he was "absent for four days and
[hadn't] called in" However, Oary had been absent
without calling in on prior occasions in the past, but had
not been warned by Moore that this exposed him to the
risk of losing his job by reason thereof
Although Respondent effected the foregoing layoffs in
its conveyor shop, it nevertheless hired Howard Jayne on
January 6, 1972, to perform janitor work Jayne had been
out sick for a long time Also, Respondent on January 3,
1972, hired Darwin Baker This was the day before several
of the employees mentioned above were terminated Baker
was later laid off also Further, some new orders had been
received (See G C Exh 2), and overtime had been worked
in the conveyor shop since the layoffs mentioned above
(See G C Exh 3)
According to Moore, he first learned of union activity at
the plant by way of "rumors" in the latter part of
November, 1971 These "rumors" were mentioned to
Moore by Foreman Bennett
Moore also described the duties of Dorwm Meyer, who
the General Counsel contends is a supervisor under the
Act Although Meyer is in charge of research and
development, he also is paid at the same rate as Walter
Bennett, who is admittedly a supervisor, i e, $5 25 an hour
In addition, Meyer directs employees when he's "building
a special machine, like a pilot model," can recommend that
his employee helpers be transferred or discharged, and
trams employees who build such special machines Fur-
ther, when Foreman Bennett is absent or on vacation,
Meyer "takes his place "
Finally, Moore testified that he did consider absenteeism
in ascertaining whom to lay off, and that he did not plan to
recall Leggans or Layton if he could "get anyone else who
was better than they were "
2 Edward C Patten's testimony
Patten is Respondent's superintendent in charge of
production He made the decision to lay off John Burress
This action became necessary because Patten about
December 1, 1971, had been instructed by President
Mandel of Respondent to "cut the labor force," and Patten
chose Burress, on January 4, 1971, inasmuch as Burress
was a temporary employee Yet Burress was hired on
December 8, 1971, to work on installing a monorail as a
plant improvement Patten considered Burress as a
temporary employee because the latter was hired "for a
specific job, certain length of time " Nevertheless the
monorail had been but one-third completed on January 4
when Burress was terminated, and overtime was being
worked In fact that monorail had not been completed on
May 16, 1972, when Patten testified in this case , but "quite
a bit" had been done since Burress was laid off At the
same time Patten laid off Robert Means because Means
worked part-time for Respondent but held a regular job
with Caterpillar Tractor Co, another employer in Peoria
On January 12, 1972, Patten recalled Burress to work on
roll bars, and also took Means back to work Then on
January 17, 1971, Patten again laid off Burress because
Burress "had a little run-in with the second shift foreman "
Patten first learned of union activity at the plant in
December, 1971, and before Burress was laid off
3 Dorwin Meyer's testimony
Meyer's status is an issue in the case, the General
Counsel contending he is a supervisor under the Act A
summary of his testimony ensues
Meyer described himself as "research and development,"
being compensated at $5 25 an hour, the same as Foreman
Bennett He makes experimental machinery and helps
develop machines pertaining to new equipment He has
employee "helpers working under" him when making
this new equipment He "instructs them shows them
what has to be done [and] tells them what has to be
done [he] tells them the proper way to do it or if it's
not done right that they have to redo it " Although Meyer
gives men their assignments he checks with Joe Moore, his
immediate supervisor, before making them In addition,
when Foreman Bennett is absent, Meyer "takes over his
fob " Meyer also engaged in production work "two or three
times a week" under Foreman Bennett Like Foreman
Bennett, Meyer is paid for overtime and punches a
timeclock
Meyer also testified that Hedden and Howell were
working for him on an afterburner, an "unusual machine
a special job," when they were laid off He described
them as very good workers
4 The termination of John Burress
Burress originally was a foreman for Respondent in
about 1969 and left sometime in 1971 Burress was called
to work by Respondent's Superintendent Patten "the last
time" about December 8, 1971, to put up a monorail, after
he applied to Patten for work On December 31, 1971, he
signed an authorization card for the Union (See G C Exh
5) which he received from employee L T Howell
At about 3 30 p m on Monday, January 3, 1972, Burress
reported to work on the second shift The monorail on
which he was working was between one-third and one-half
completed John Williamson was his helper thereon The
next day, January 4, Patten telephoned the home of
Burress and told Mrs Burress (Burress being out at the
tune) that Burress had been laid off When Burress learned
of this shortly thereafter he telephoned Patten to ascertain
the cause thereof Patten replied that he had orders to cut
back on expenses Insisting that "we had our work planned
for that day" and the following day, Burress expressed
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surprise at the decision But Patten merely commented that
he had to take orders "just like anybody else "
So Burress went to the plant on January 5 and spoke to
Patten The latter explained that he had orders "to cut
back and lay off men that had anything to do with the
Union or even was suspicious with having anything to do
with the Union " When Burress protested, "Why me,"
Patten replied that Burress could "come back to work
Monday " Although Burress protested that he should not
"suffer for the four days," Patten expressed an inability to
do anything about it because he "was taking Orders from"
President Mandel
Burress was once approached by Bill Charlton about the
Union but Burress induced Charlton to sign a union
authorization card Burress also met with employees at the
union hall for the same purpose Further, Burress attended
the union meeting of January 8, 1972, at Papermakers Hall
and on the same day saw Supervisor Patten at the Villa
Tap Tavern next door While sitting at a table with others
at said tavern , Patten came thereto and asked why Burress
had filed a charge against him Burress denied this and was
supported by Yancick, who was present
Then Patten left only to return in a few moments This
time Patten wanted to know why Burress was after him
When Burress denied this Patten claimed that Patten's
"name was implicated " But Burress insisted it was not
Then Patten left a second time but soon returned On
this occasion he grabbed Burress by the arm and, after
some argument , told Burress that "you're fired "
The following Wednesday Patten telephoned Burress to
return to work, but this time on roll bars rather than the
monorail Shortly thereafter Burress went back to work
While at work Burress was told by President Mandel that
the Company was behind on both the roll bars and the
monorail and that a lawsuit was threatened because the
monorail had not been finished
On January 14, 1972, while Burress was working on roll
bars, Foreman Johnson told him that Patten wanted to
know if Burress was willing to go outside to load some steel
tubing Shortly thereafter Burress answered Patten in the
affirmative So Burress worked outside for about an hour
and a half in below zero weather in light clothes When he
finished loading Burress returned into the plant and stood
for a short period under a heater to get warm At about
7 30 am he told Foreman Johnson that he, Burress,
became sick from working in the extreme cold and,
therefore, was going home As Johnson had no objection,
Burress punched out and went home
Burress called on Monday, January 17, to report he
would be out because he had not yet recovered About an
hour later Patten telephoned to Burress that Burress had
been laid off because "we're cutting back " Although
Burress commented that this was "kind of funny" to him,
Patten replied that he had orders "to cut back" and that
President Mandel had told Patten that Burress "was
behind with the roll bars "
5 The termination of Vernon Lelm
Lelm began working for Respondent on November 22,
1971, as a welder When he applied for employment about
2 weeks before then, Plant Manager Moore told him that
Lelm would probably receive a raise within 2 weeks after
starting work and that "most of the men got to work as
many hours as they wanted " Actually he worked overtime
an hour each day and 5 hours on Saturdays
About a week after November 22 Lelm talked to
employees about being organized by a union He had also
engaged in union activity at his former employer's plant,
the Rendispos Corporation About December 10 Lelm
spoke to Yancick of Local 8 As a result Lelm picked up
about 75 or 100 union authorization cards on December
17 Many of these he distributed at Respondent 's plant a
few days later Some were returned to him with signatures
Lelm also signed one on December 20 (See G C Exh 6)
On December 20 Lelm, in the shop , invited employees to
attend a union meeting that evening During the day
"Foreman" Dorwin Meyer asked Lelm whether Lelm had
a card Lelm replied that he did That meeting took place
as scheduled on December 20 Lelm distributed some
union authorization cards to those who attended
On December 21 Foreman Bennett laid off Lelm
because "Work's getting kind of slow " At the time Lelm
was working on a barrel burner which had not yet been
completed Lelm continued his union activity following his
termination , and also attended union meetings on Decem-
ber 31, 1971, and January 8, 16, and 29, 1972 In addition
he solicited employees to attend these union meetings
While Lelm was at the above meeting of January 8 he
noticed Respondent's Superintendent Ed Patten nearby
6 The termination of Ernest Leggans
Leggans was hired by Respondent in March or April
1971 to work under Foreman Walter Bennett Not only did
he receive compliments about his work but also was
granted a raise in pay about a month later In early
December 1971, he obtained 15 to 20 union authorization
cards from Lelm and solicited employees in the shop to
sign such cards He also signed one of these cards himself
on December 20 (See G C Exh 7) In addition he
attended some union meetings and solicited employees to
come to them by passing out Yancick's card (See G C
Exh 8)
About a week before January 4, 1972, "Foreman"
Dorwin Meyer asked Leggans, "Have you got any more of
those petitions you want signed?" Leggans replied in the
affirmative and offered one to Meyer, but the latter refused
to accept or sign it
On January 4, 1972, Foreman Walter Bennett laid off
Leggans with the statement "work's kind of slack and I'm
going to have to let you off " Leggans replied , "It seems
funny to me you hired a guy yesterday and you're laying us
off to-day " Continuing , Leggans told Bennett, "I kind of
expected it anyway " He meant thereby that "they had
known that we were trying to get a union by this time, and
that's what I meant when I said I was expecting it " As a
matter of fact work was not slack on January 4 because
there were four oscillators being worked on in the shop and
there was work being performed as well on the other
machines
About a week before Leggans was laid off Respondent
abolished coffeebreaks at nonscheduled break periods and
forbade employees to talk to each other Prior to this
MAPLE CITY STAMPING CO 749
employees were free to "go get coffee anytime we wanted it
and bring it back to our work," and freely talked in the
shop
7 The testimony of William Lee
Lee has been a setup man, under the supervision of
Foreman Bennett, for about 5 years In early December
1971, Lelm interested Lee in joining Local 8 On December
23 Lee signed a union authorization card presented to him
by Leggans and Layton In addition Lee succeeded in
inducing other employees to sign such cards
In late December 1971, "Supervisor" Dorwin Meyer
noticed that L T Howell handed Lee a card Thereupon
Meyer asked Lee if Lee had a card which Meyer could
sign On January 8 Lee went to the Villa Tap Tavern Soon
Supervisor Patten engaged him in conversation there
Shortly thereafter Lee Joined Howell, Layton, and Leggans
at a table
Lee also noticed that, after Howell and Hedden were laid
off, their work on an afterburner was completed by
employees George Chaney and Thomas Green Yet
Chaney and Green did not normally work on afterburners
After Leggans and Layton were laid off, their work on the
oscillator was finished by Bob Miller And, after Howell
was laid off, Respondent manufactured other machines
which he was capable of working on Further, during the
period of the layoffs described herein Lee worked
overtime
Lee also testified that since said layoffs Respondent has
required employees to work faster, so that fewer employees
are doing more work This was not the "practice" prior to
such time Finally, he commented that, in the past, no
layoffs had been effected although work at times had been
slack In the past when work was slow employees were
assigned to odd jobs, including yard cleaning, and were not
laid off But he insisted that work was not slack when
Howell, Hedden, Layton, and Leggans were laid off, or
since then, so that "there is a shortage of men in the shop "
8 The termination of L T Howell
In August 1969, Howell began working for Respondent
as an assembler and welder His "supervisors" were Walter
Bennett and Dorwm Meyer Although his initial pay was
$2 75 an hour he received raises, so that when he was laid
off his hourly rate was $3 85
At the request of Hedden, an employee, Howell signed a
union authorization card on December 23, 1971 (See G C
Exh 10) Howell also solicited seven or eight employees in
the shop to join Local 8 On December 31 he attended a
union meeting where he received union cards and
literature These he passed out to employees at the plant
On January 4, 1972, Supervisor Joe Moore laid off
Howell on the ground that work was slack At the time
Howell was "especially assigned" to build small oscillators
and had a helper named Leroy Wilson However, Howell
also worked on other types of machines and did some yard
work On January 4 Howell was building an afterburner
but it had not yet been completed Also, on that day there
was other work available in the shop which Howell was
capable of doing
On January 5 Moore gave a letter of recommendation to
Howell (See G C Exh 9) In addition, President Mandel
in late November 1971 assured Howell that there was
"plenty of work you're not going to leave Maple City "
At no time in the past had Respondent laid off employees
for lack of work, according to Howell, even when work was
slack In such instances employees were assigned to do
yard work
On January 8, 1972, Howell saw supervisor Ed Patten at
the Villa Tap Tavern at the time of a union meeting there
Howell also attended two union meetings after January 8
In February Howell called Moore to ascertain when he
would be recalled to work Moore replied it would be
around March 15 So Howell called him again on March
15 but this time Moore said "there was not any work in the
shop "
9 The termination of Bruce Hedden
On June 21, 1971, Hedden began working for Respon-
dent as a laborer Later he welded and worked on
hydraulic brakes under Foremen Bennett and Dorwin
Meyer In November 1971, he received a raise in pay
In early December 1971, Vernon Lelm interested
Hedden in unionism Then on December 21 Hedden
signed a union authorization card which is erroneously
dated 12/22/71 (See G C Exh 11) In addition Lelm gave
him five or six additional cards to distribute to other
employees Hedden succeeded in inducing L T Howell to
sign one of these cards On December 21 Hedden attended
a union meeting where he received more cards to pass out
In addition Hedden talked to six or seven employees, both
in and out of the shop, favorably about the Union
Not long before January 4, 1972, "Foreman" Dorwin
Meyer asked Hedden if the latter "was part of this umon
business that was going on " Hedden avoided answering
this inquiry Later that day Hedden heard Meyer ask
employee Ernest Leggans if Leggans had any more of
those union cards Leggans "wanted signed "
Another union meeting was held on December 31
Hedden went to it While there he received additional
union cards and some union leaflets to hand to employees
While working on a reburner on January 4, 1972,
Heddens was laid off by Foreman Walter Bennett because
"they were going to start cutting back work was
getting slack" Yet the reburner had not only not been
completed at the time, but a new employee, Darwin Baker,
had been hired on January 3 to work as a laborer Further,
some oscillators, some conveyors, and some stackers were
still under construction, and a new order for another
tumbler burner was on hand, on said January 4
On January 8 Hedden saw Supervisor Ed Patten "at" a
meeting of the Union held that day at the Villa Tap
Tavern
10 The termination of Raymond Layton
Layton was hired as a welder by Respondent in
September 1970 to work under Foreman Bennett In mid-
December, 1971, Lelm talked to Layton about "organizing
a union " Although Layton then called the I A M to ask its
assistance, he was unable to contact anyone there But
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lelm was able to reach Local 8 and arrange a meeting with
it Layton and other employees attended that meeting on
December 21 At it Layton signed a union authorization
card (See G C Exh 12) He also distributed 15 or 20
similar cards to other employees at work Layton also
attended another union meeting not long after that, i e , on
December 31, where he received more cards to distribute
During the week of December 20, 1971, Layton
mentioned to "Supervisors" Walter Bennett and Dorwin
Meyer that "I think a union would probably straighten this
place out " But they walked away without commenting on
this On another occasion in December, 1971, Layton
overheard employee Jack Lee say to "Supervisor" Dorwin
Meyer, "You are going to have trouble with that guy
[pointing at Vernon Lelm] He's the one that helped
organize the Union at Rendispos " Meyer replied, "We
won't have any trouble out of him We'll fire him There's
no way we will ever hold still for a union down here "
About August 1971, Supervisor Moore told Layton that
he should come to work more regularly because "we're
behind on orders We need you to come back to work
now We've got plenty of work here to do" Foreman
Bennett later in substance repeated this statement to
Layton
Beginning about December 21, 1971, Layton discerned a
change in the attitude of supervisors towards him Thus
there "was pinching down on coffee breaks and talking to
other employees in the shop and staying in your own
working area and not moving around in the shop so
much " In fact Supervisor Ed Patten once followed Layton
when Layton left his department to obtain a bolt for a lift
truck This had never happened before, although Layton
often left his area to obtain needed materials Another
example occurred when Foreman Bennett warned Layton,
who had been talking to employee Bobby Walker, to "do
more work and quit running your mouth so much " This
was unusual as Bennett had never done this before
On January 4, 1972, Foreman Bennett laid off Layton
with the comment, "I was afraid this was going to come to
a head before Christmas " Ernest Leggans was laid off at
the same time also Bennett told both Leggans and Layton
that they were laid off because "work is slack right now "
When Leggans protested that a new man had been hired
only the day before, Bennett replied that he thought "we're
going to get him too " Notwithstanding that Layton
wanted to leave his tools there "if you think we will be
called back pretty soon," Bennett insisted that Layton take
them "along with you " Further, Layton testified that there
remained work to be done by him on four oscillators and
that, also, other machines had not been complete when he
was laid off
A few days before being laid off Layton was assigned to
train employee Raymond Meyer to work on oscillators
Further, in the past when work was slow, Respondent,
instead of laying off anyone, gave them tasks to perform in
the yard or in shop maintenance work
On January 8, 1972, Layton saw Supervisor Ed Patten
"at" a meeting held by Local 8 at Papermakers Hall
11 The termination of Clifford Oary
Oary started working for Respondent on May 17, 1966,
as a laborer On December 31, 1971, he signed a union
authorization card in the shop (See G C Exh 13 ) He also
attended union meetings on December 16 and 31, 1971,
and January 8 and 16 , 1972, and sought to interest five or
six employees in the plant in the Union He also wore a
union button on his cap
On January 13, 1972, Oary returned to work after being
out for 3 days with influenza . As soon as Oary reported to
work, Supervisor Walt Bennett told him that he was being
laid off for missing 3 days without calling in At the time
Oary was wearing a union button on his cap In the past
Oary had never called in when he was absent , although he
was out "lots of tunes ," and yet he was not warned,
criticized , reprimanded, or disciplined therefor Oary's
absences , including the last one , resulted from emphysema
and sinus trouble , and Respondent not only knew this but
tolerated it In fact Oary had never been warned about his
absenteeism
Further testifying, Oary asserted that, notwithstanding
that work in the past sometimes became slack, no one was
laid off as a result Rather than lay off anyone, the
Company "cut back on overtime" in these circumstances
This occurred "practically every fall " In fact Oary not
only worked overtime the week that Howell, Hedden,
Layton, and Leggans were laid off, but he stated there was
other work to be done during that period
Oary also testified that Dorwm Meyer directed his work
at times, showing Oary how to do certain work and also
assigning Oary to specific jobs
12 The termination of William Charlton
Charlton was hired by Respondent on November 4,
1969, at a rate of $3 per hour , to work under Foreman
Arman Roan Thereafter he received some raises so that
his rate was $3 90 an hour when he was terminated on
February 16, 1972
During a conversation with Dorwin Meyer, on about
November 17 or 18 , 1971, Charlton mentioned that Vernon
Lelm had "started the union" at the plant of Rendispos,
another employer Meyer replied that if Lehn started any
of that s-t that Lelm would no longer be with Respon-
dent
On January 6, 1972 , Charlton signed a union authoriza-
tion card at the shop at the request of Bill Lee (See G C
Exh 14), who also gave Charlton four other similar cards
to distribute He also attended a union meeting on
December 31, 1971, talked unionism to some employees at
the plant , invited about 20 of them to said meeting, and
passed out about 8 cards in the shop
About January 6, 1972, while Charlton was conversing
with employee Revord about the Union, Supervisor Arman
Roan interrupted them by saying "the Union wouldn't do
[them] a damn bit of good " About January 10, 1972, while
Charlton was again talking to employee Wayne Revord in
the shop, Supervisor Arman Roan pointed to union
stickers on the outside of Charlton 's lunch basket and
asked "what junk that was " Charlton answered that it was
not junk but union stickers When Roan asked Charlton
what he expected to gain "by this Union," Charlton replied
"better pay "
On January 8, 1972, Charlton attended a union meeting
MAPLE CITY STAMPING CO 751
at Papermakers Hall When it ended he went to the Villa
Tap, a tavern next door At Villa Tap he heard Supervisor
Patten talk to employees as recited above Patten also
asked Charlton what he was doing there and "how come
[Charlton] was at the Union meeting" At this meeting
Charlton was given union stickers and buttons, some of
which he used for himself and others of which he passed
out to fellow employees About January 17, 1972, Respon-
dent's Vice President Shghton asked about a union button
displayed on Charlton's hat And a week after that
President Mandel noticed this button on the hat and
commented, "humph " I do not regard Mandel's reaction
as illegal, and I therefore find it not to contravene the Act
Charlton also attended union meetings held on January 16
and 29, both held at the Papermakers Hall
On February 14, 1972, Charlton felt sick and obtained
permission from Foreman Arman Roan to go home early
Nevertheless he remained at work But as he was not well
on February 16 he did not work that day and called in to
report this to supervisor Patten However, Patten replied it
made no difference because Charlton had been "laid off or
fired" because of a "lot of absenteeism " Later, when
Charlton called Patten again, the latter informed Charlton
that he had been fired for "a lot of absenteeism and lack of
production "
Then Charlton went in on February 16 to pick up his
check from Vice President Shghton This time Shghton also
said that Charlton had been dismissed for absenteeism but
for 8 days less of absenteeism in the past 6 weeks than
Patten had mentioned But documentary evidence intro-
duced by the General Counsel discloses that "well over 20
employees [in the same division] who were absent six
days during a two month period and [were] not
discharged" (See GC Exh 21-43)
Charlton had been warned in January 1971, by Slighton
that Charlton risked being fired because of his absentee-
ism After that both Foreman Roan and Supervisor Patten
in January 1972 told him that Charlton would suffer "three
days off" if he did not "get in a full work week" But
Charlton never was given 3 days off for his absences
thereafter nor had ever been warned about them except as
above recited Porter McCants, another employee, has not
been working for the last month because of illness but
Respondent has done nothing about this, nor has McCants
ever been laid off for lack of work
Employee Lyle LeCompte testified that about a month
after January 4, 1972, many machines were built in the
shop An employee LeRoy Wilson testified that, in
February 1972, Foreman Bennett asked him if he wanted
to work on some machines but that ultimately another
employee, Raymond Myers, Jr, was assigned to perform
this work Yet Myers had never before worked on these
machines In fact Wilson claimed there was work to do in
the shop on the day when L T Howell, Bruce Hedden,
Ray Layton, and Ernest Leggans were laid off, and that
their work was completed by other employees Actually
Wilson enjoyed more overtime in 1972 than in 1971
Finally, Wilson insisted that in the past no one was laid off
when there was no production work to do, but, instead, in
such instances employees worked in the yard or "straight-
ened the place "
13 The termination of Robert Miller
This employee was hired by Respondent about 8 years
ago to work under Foreman Bennett Although his starting
wage was $1 50 an hour it reached $4 by a series of
increases He was the senior employee in the oscillator
shop
On January 8, 1972 , Miller attended a union meeting
When it ended he visited the Villa Tap Tavern next door
where he heard Supervisor Patten make the statements
described above In addition Miller heard Patten tell
employee Revord that Revord did not need a "mediator"
as Patten was Revord 's mediator Shortly thereafter Miller
volunteered to Patten , while they were talking about the
Union, that Miller had signed a union authonzation card
Before coming to this union meeting Miller signed an
authorization card on January 3, 1972 (See G C Exh 15 )
During the week preceding his layoff Miller worked
"regular" overtime , 1 e, 1 hour a day over his usual 8 On
January 14, 1972, Foreman Bennett laid off Miller, but
when Miller asked why , Bennett replied that he did not
know Thereupon Miller asked Plant Manager Moore for
the reason behind his layoff Moore replied that it resulted
from a lack of work When Miller protested he had
seniority over others still working, Moore stated that
President Mandel "couldn't have a $400 an hour man
sweeping the floor with a broom " Even at that , Miller had
not completed his tasks on the oscillator on which he was
working
Miller was later recalled to work At that time he
resumed working on the very same oscillators from which
he was taken off He was recalled by a message relayed to
him by employee Byron Spencer , transmitted by Supervi-
sor Moore, that Miller was to return to his old job
However, when Miller telephoned Moore to confirm this,
Moore claimed he knew nothing about Miller's coming
back to work That evening Miller told Spencer about
Moore's lack of knowledge So Spencer promised to look
into it
On Monday, January 17, 1972, Miller reported to work
but Spencer told him that Moore had said nothing could
be done until President Mandel got back from out of town
because it was Mandel's idea to release Miller However,
Spencer that evening told Miller to come to work the next
day Miller on January 18 reported to Dorwm Meyer, who
assigned him to work on the A-frame In the past
Respondent cut out overtime when work was slow but did
not resort to laying off employees , according to Miller
Hence Miller had never before been laid off for lack of
work
Robert Means, a supervisor for Respondent , testified
that in early January 1972 no lack of work existed in the
shop and that Respondent was not then ahead of
production On the question of lack of work, the General
Counsel introduced documentary evidence indicating that
overtime was worked in January , February , March, and
April 1972 (See G C Exh 16), and that new employees
were hired during this period or old ones were called back
(See G C Exh 18)
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14 Section 8(a)(1) violations
Some of the foregoing testimony discloses conduct
alleged to violate Section 8(a)(1) of the Act Additional
testimony on this branch of the case follows below
Employee Wayne Revord was present at the Villa Tap
when Supervisor Patten fired Burress Later that day
Patten told Revord that "if this stuff was to continue he
[Patten] would discontinue the use of the phone" by
employees In addition, Patten asked Revord what the
latter thought of the Union and what it would do for
Revord I find this is not coercive and, therefore , does not
contravene Section 8(a)(1)
On another occasion Supervisor Arman Roan asked
Revord and employee Charlton, "What' s that junk on [the
table] there?" When Revord replied that it was union
stickers , Roan retorted , "What good is that going to do for
your" I find this does not violate Section 8(a)(1) of the Act
In February, 1972, according to Revord, Respondent
required employees to call in when they were absent,
contrary to past practices In fact Revord was suspended
for 3 days for not so calling in, although such suspensions
had not been imposed , nor had he been criticized,
reprimanded , or warned , prior to this when he did not call
in Since this is a management prerogative its exercise does
not contravene the Act
On January 8, 1972, Morgan, then an employee of
Respondent , heard Supervisor Ed Patten tell a group of
employees , one of whom was Morgan, at the Villa Tap
Tavern that "there was going to be some lay offs because
of the union meeting and [Patten ] would probably end up
quitting the second shift altogether and [Patten] would
close the plant down before he would let a union in the
plant down there " Patten added that he would stop letting
employees use his telephone at the plant
Employee Danny Still testified corroborating Morgan
In the middle of January, 1972, employee Lyle Le-
Compte overheard Supervisor Patten tell other employees
that Patten was "supposed to lay off anybody that looks
suspicious " I find this does not violate the Act
In the last week of December , 1971, employee LeRoy
Wilson heard "Foreman" Dorwin Meyer ask employee Lee
if he had a union authorization card and, if so, Meyer
would like to sign one Wilson also claimed that after
about January 4, 1972, Respondent required employees to
work "faster than what we usually do "
Robert G Means worked for Respondent as a supervisor
until early January, 1972, when he was laid off Shortly
before this Superintendent Patten telephoned him that
Means was being laid off because of a shortage of work
and that Means had been selected for such action because
he worked part time Within a day Means telephoned
Patten to protest that Means was a full-time employee
Patten replied that since Means also worked for Caterpillar
Tractor Company Patten "figured" that Means "was part-
time "
Then Means personally called on Patten at the latter's
office At the close of the conversation Means asked "if the
Union deal didn't have something to do with my layoff,"
and Patten replied , "Yes, it had a great bearing on it
[Manager ] Slighton didn't want a union in the shop "
Continuing , Patten mentioned that the "main source"
leading to the layoff of Means was "due to the fact that
[SlightonI thought that [Means ] was instigating [a union] "
When Means was called back about a week later he was
demoted to doing welding work Actually , Means was not
active in the Union at the time None of this constitutes a
violation of the Act as Means was a supervisor at the time
However, it demonstrates a strong antipathy to unions, and
I so find
While Means was a supervisor , Patten, in November,
1971, told him that Respondent did not want a union in the
shop because it was too small a shop and a union would
"dust create problems ," and that President Mandel not only
did not want a union in the shop but would "close the
doors before he would see it " Means passed on this
information to the majority of the 19 or 20 employees
working under him The statement to Means, a supervisor,
does not violate the Act However, his repeating it to the
employees does amount to a violation of the Act
Employee Ricky Birdsell on January 8, 1972, attended
the union meeting at Papermakers Hall When it ended he
went next door to the Villa Tap Tavern , where he observed
Superintendent Patten talking to some employees Among
other things, Patten told them , "I've been nice to you guys
and I'm going to start cracking down " Some time before
this Birdsell noticed a union leaflet on the windshield of
Patten's car informing employees of the above meeting of
January 8
B Respondent 's Defense
An abridgment of the evidence adduced on behalf of the
Respondent discloses the following, as set forth below
William Charlton's employee work record for the period
from June 5, 1971, to February 19, 1972 , is delineated in
his timecards (See Resp Exh 2) Charlton's supervisor,
day shift Foreman Arman Roan, insisted that "generally"
Charlton's attendance was "poor " Accordingly, Charlton
was discharged for "missing too much work absentee-
ism " The decision to dismiss Charlton was made by
Slighton, Patten, and Roan And Roan had previously
"warned Mr Charlton concerning his absenteeism" once
or twice about a month and a half or two before this
Respondent's foreman on the "conveyor side" is Walter
Bennett He serves under Plant Manager Joseph Moore
One of those working under Bennett was Clifford Oary
Some time in January, 1972, Oary was terminated for
"being absent [3 consecutive days ] without calling in High
absenteeism Lack of work was also the main reason,"
according to Bennett Prior to this Bennett had "once or
twice" warned Oary "about not calling in " But Oary had
been an employee of Respondent for "quite some time"
and "was absent many, many times over that period of
time "
Bennett further testified that he had supervised Dorwin
Meyer and has on occasion assigned Meyer to load or
unload trucks by means of a forklift But Meyer does not
supervise anyone although employees help him in his
research and development work Such helpers, however,
are assigned to Meyer by Bennett "on a frequent basis "
Bennett also supervises welder assemblers , including
Layton and Leggans About 2 or 3 weeks before Layton
MAPLE CITY STAMPING CO 753
and Leggans were laid off Bennett warned each of them
about "standing around "
Kenneth F Slighton is manager of Respondent's
subcontract department He supervises Superintendent
Patten, among others About February 15, 1972, Slighton
reviewed the work records of William Charlton for the
preceding 6-week period after he found Charlton missing
from work When Shghton then inquired of Patten whether
Charlton had come in, Patten answered that "Charlton's
off again to-day as usual " Thereupon Slighton prepared a
document analyzing Charlton's work record from Decem-
ber 26, 1971, to February 5, 1972 (See Resp Exh 1),
although he had never prepared such an instrument before
this in discharging employees
About a year before Charlton was discharged Shghton
talked to Charlton about the latter's absenteeism But this
was the only time he discussed this subject with Charlton
However, Slighton also, about February 15, 1972, handed
Respondent's Exhibit 1 to Patten and directed Patten to
"either straighten [Charlton] out or let's get rid of him"
But Patten replied that he thought that Charlton could not
be straightened out Nevertheless Patten took up the
problem with Foreman Arman Roan Then Roan, in the
presence of Patten, communicated to Slighton, "I think we
should get rid of" Charlton So Charlton was discharged
because of a "more or less standing rule that three days [of
absence] in one month is enough to warrant such discharge
from the Company" However, employees Melvin Mosier
and Joe Shockley, who missed "quite a bit of time" in I
month , were not discharged for absenteeism
Respondent's superintendent of its subcontracting shop
is Edward Patten Among others, he supervised William
Charlton, a welder On "numerous occasions" Patten
spoke to Charlton about the latter's absenteeism, the first
occurring about 2 weeks before Charlton's discharge
Patten again told Charlton on February 16, 1972, that
Shghton had recommended that Charlton be discharged
for absenteeism and that Patten fully agreed Thereupon
Patten discharged Charlton Previously Patten had dis-
cussed Charlton's absenteeism with Foreman Roan
Patten further testified that, after employee Burress was
recalled following a layoff, Burress was discharged for
having a "run-in" with James Johnson, the foreman of
Burress Patten derived this information from what
Johnson told him, and, when Johnson recommended said
discharge, Patten concurred therein Continuing his testi-
mony, Patten asserted that he patronized the Villa Tap
Tavern "almost every week-end " And he admitted going
there on January 8, 1972
Joseph Moore is Respondent's plant manager of its
conveyor side On January 4, 1972, according to him,
employees L T Howell, Bruce Hedden, Raymond Layton,
and Ernest Leggans were laid off Howell and Hedden
worked as one team and Leggans and Layton as another
team Immediately prior to said January 4, work for
Wagner Casting Company and General Electric Company
"was in the conveyor fab shop to be performed" (See
Resp Exhs 3 and 5 ) Some of this work was incomplete, so
that on the afterburner 4 or 5 hours work plus "cleaning
and painting after that" remained to be done But such
cleaning and painting customarily was performed by Mike
Vesko and not by any of those laid off
In addition, a rotary dryer had not been completed by
said January 4, there being about 1 more day's work to be
done thereon And on the Wagner Casting job about 120
hours of work remained to finish it But Howell , Hedden,
Layton, and Leggans were working on these machines
And work remained to be done on an order from I Bork &
Sons
On January 4, 1972, there were employees in the plant
who were senior to Hedden and Leggans, according to
Moore However, seniority was not the only criteria used in
laying off employees In fact some who were retained on
January 4 had less seniority than those laid off Moore also
asserted that in January 1972 Respondent received some
"new business "(See G C Exh 2 )
Respondent's president and owner is Harold R Mandel
A conspectus of his testimony follows About the first of
December 1971, he told Plant Manager Joseph Moore that
the accountants had reviewed operations "with reference
to the giving of Christmas bonuses," but that the figures
they gave him "showed that the prognosis of our
immediate future was very bad and that during this last
quarter of 1971 we hadn 't received any new business
whatsoever " Accordingly, he announced to Moore that
"drastic layoffs" had become necessary But he admon-
ished Moore to "take it very easy about laying off people
right before Christmas [but] to hit it hard as he could
after the holidays, because it didn 't look like we were going
to have any new business "
C Concluding Findings and Discussion
In arriving at the ultimate findings narrated below, I
have been guided by and applied certain elementary
principles of law which may succinctly be restated here
The first is that the burden of proof is upon the General
Counsel to establish the allegations of the complaint, and
that no onus is imposed on Respondent to disprove those
allegations Hawkins v N L R B, 358 F 2d 281 , 283-284
(C A 7) Secondly, the General Counsel must prove his
case by affirmative evidence and reasonable inferences
drawn therefrom , and that rejecting or not crediting any
portion of Respondent 's evidence does not constitute
affirmative evidence capable of sustaining the General
Counsel's case Council of Bagel and Bialy Bakeries, 175
NLRB 902, 903 , N L R B v Berggren & Sons, Inc, 406
F 2d 239, 246 (C A 8) "The mere disbelief of testimony
establishes nothing " N L R B v Joseph Antell, Inc, 358
F 2d 880, 883 (CA 1) "Negative evidence above cannot
supply the proof which must underlie the [Board's ] order if
it is to stand " Portable Electric Tools v N L R B, 309 F 2d
423, 426 (C A 7), N L R B v Audio Industries, Inc, 313
F 2d 858, 863 (C A 7) I do not regard N L R B v Walter
Manufacturing Co, 369 U S 404, 408, as requiring a
contrary result
In addition , I find that because of the smallness of
Respondent's plant , it is reasonable to infer and I do so
that Respondent was aware of the union activity occurring
at its plant and had knowledge as to who engaged in such
conduct N L R B v Abingdon Nursing Center, 80 LRRM
3232 (C A 7, 1972), Angwell Curtain Company, Inc v
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N L R B, 192 F 2d 899, 903, (C A 7), American Grinding &
Machine Co, 150 NLRB 1357, 1358
At this point it is desirable to mention that I am
conscious of, and have followed, the principle that union
membership or activity neither confers immunity, nor is a
guarantee, against being terminated for cause (Hawkins v
NLRB, 358 F 2d 281, 283-284 (CA 7), Whitcraft
Houseboat Division, 195 NLRB No 189), and that the
Board may not "substitute its judgment for the Respon-
dent's business judgment" in dismissing an employee
Thurston Motor Lines, Inc, 149 NLRB 1368, Portable
Electric Tools v N L R B, 309 F 2d 423, 426 (C A 7)
Notwithstanding the foregoing principles, I find as a fact
that under "all the circumstances surrounding [the termi-
nations described herein], particularly [their precipitate
nature and] the timing" indicate that such terminations
were "a power display to discourage union activity" (Rosen
Sanitary Co, 154 NLRB 1185, 1187 fn 2) Such termina-
tions demonstrate "a hostile reaction to information
[Respondent] had just received concerning incipient union
organizational activity of its employees and was calculated
to chill such activity [Respondent] would not have
instituted any reduction in force but for such activity, and
its [termination] of employees thereby discriminated
against all of them as a group " Lloyd's Ornamental
Fabricators, Inc, 197 NLRB No 71 See D H Farms Co,
197 NLRB No 47 I do not regard Tarrant Manufacturing
Company, 196 NLRB No 119, as requiring a different
result
Accordingly, I find that all of said terminations were
motivated by discriminatory motives and that the reasons
advanced by the Respondent to justify them are pretexts to
disguise the real motive I proceed briefly to discuss each
termination separately to show that it infringed upon the
protections safeguarded by the Act
1 The termination of John Burress
In arriving at the findings made in this subsection I have
credited the General Counsel's evidence and have not
credited Respondent's evidence inconsistent therewith I
find that Burress was laid off on January 4, 1972, because
of his union activity and that the reason given him, i e ,
that a layoff was necessary, even if true, was a pretext For
I find that Respondent selected union adherents for such
layoff Thus I credit Burress that Patten laid off Burress
because Patten had been instructed to "lay off men that
had anything to do with the Union or even was suspicious
with having anything to do with the Union" even though a
layoff had been ordered
In addition, again crediting Burress, I find that Patten
fired him on January 8, 1972, for allegedly filing a charge
against Patten Such conduct transgresses Section 8(a)(4)
of the Act N L R B v Scrivner, 40 U S, Law Week 4203
The fact, which I find, that Burress had not filed such a
charge does not require a different result
Although Respondent recalled Burress on January 12,
1972, Burress was again laid off on January 17 assertedly
for lack of work and because he had a run-in with his
foreman, Johnson I find the real reason was his union
activity and that such lack of work and run-in, even if true,
was a pretext, because
(a) Burress was abruptly laid off without prior notice or
announcement This has probative value to show union
animus Harper & Row, 196 NLRB No 50
(b) Some work still remained to be done, so that the
layoff was not immediately necessary Further, Respon-
dent did not lay off according to seniority In addition,
Respondent had not laid off employees in the past when
work was slow but assigned them to yard work or
maintenance work
(c) Although I have not placed much reliance thereon, I
find that the abruptness of the layoff indicates that his
union activity was known to Respondent Texas Industries,
Inc, 156 NLRB 423, 425-526
(d) Direct evidence of a purpose to discriminate is rarely
disclosed in such cases, especially as employers acquire
some sophistication about the rights of employees under
the Act But absence of direct evidence is not fatal, as such
purpose may be established by circumstantial evidence
Corrie Corporation v NLRB, 375 F 2d 149,152 (C A 4)
"Nowadays it is usually a case of more subtlety "
"NLRB v Neuhoff Bros, 375 F 2d 372, 374 (C A 5)
Consequently it is not unusual for an employer to state that
he is terminating an employee for cause when in fact
antiumon motives prompted such action On this aspect of
the case the record is devoid of evidence that Respondent
sought to obtain the version of Burress about said run-in
Failure to ask an employee's account of an incident
resulting in disciplining him is evidence of a discriminatory
intent Service Technology Corporation, 196 NLRB No 160,
Norfolk Tallow Co Inc, 154 NLRB 1052, 1059
(e) The abruptness of the layoff, especially when made
contemporaneously with a union organizing campaign, has
probative value It is true that such abruptness does not
prevent a layoff from being genuinely effected for cause
Cf Miller Electric Mfg Co v N L KB, 265 F 2d 225,
226-227 (C A 7), Whttcraft Houseboat Division, 195 NLRB
No 189 But it may be evaluated along with other factors
in ascertaining the actual reason behind the layoff Cf
NLRB v Symons Mfg Co, 328 F 2d 835, 837 (C A 7)
(f) Respondent entertained union animus and committed
unfair labor practices as found elsewhere herein
(g) Finally, in order to find that a discriminatory intent
induced the layoff of Burress it is not necessary to find that
his union activity be the only motivation responsible for his
termination His layoff will be found to be unlawful if his
union activity was a substantial ground therefor notwith-
standing that a valid ground also existed for it
Sinclair Glass Company v NLRB, 465 F2 d 209
(C A 7, 1972), N L R B v Symons Manufacturing Co, 328
F 2d 835, 837 (C A 7), N L R B v Whttin Machine Works,
204 F 2d 883, 885 (C A 1) I expressly find that the union
activity of Burress was a substantial-but not necessarily
the only-ground for releasing him
2 The termination of Vernon Lelm
In my opinion Lelm was laid off for engaging in union
activity and the reason given for his lay off, r e, "work's
getting kind of slow," is a pretext I so find In making said
finding I have credited the pertinent evidence of the
General Counsel and have not credited Respondent's
evidence not consonant therewith
MAPLE CITY STAMPING CO 755
In general the reasons above assigned for finding that
Burress was discrumnatorily laid off on January 17, 1972,
are applicable to Lelm's layoff, and I so find But there are
additional reasons why I find that Lelm's layoff was
discriminatory They are delineated below
(a) If, as President Mandel testified, he told Moore not to
lay off anyone "right before Christmas," then it is difficult
to understand why Lelm was disnussed practically on
Christmas eve, i e , December 21, 1971 It is reasonable to
infer-and I do so-that Lelm's being an outstanding
union advocate contributed materially to the decision not
only to lay him off, but also to do so abruptly Thus the
fact that he was singled out to be released just before
Christmas, in spite of Mandel's apparent concern not to
lay off anyone before Christmas, convinces me, and I find,
that , under all the circumstances , including the abruptness
of the action taken without prior notice or announcement,
and the contemporaneousness of the union movement,
Lelm was released because he was a vigorous protagonist
of the Union
(b) Lelm was an active leader in espousing the Union at
the plant This alone does not immunize or shield him from
being laid off for legitimate reasons N L R B v McGahey,
233 F 2d 406, 413 (C A 5), Hawkins v NLRB , 358 F 2d
281, 283-284 (C A 7) Nevertheless the elimination of a
leading union advocate tends to discourage other employ-
ees from manifesting interest in a union's organizational
campaign Lelm's dismissal "could constitute an effective
weapon against the union , since it occurred during the
height of the organizational campaign in which he played a
key role Obviously the [release] of a leading union
advocate is a most effective method of undermining a
union organizational effort" N L RB v Longhorn Trans-
fer Service, 346 F 2d 1003, 1006 (C A 5) This factor may
be evaluated in arriving at the actual reason inspiring a
termination N L R B v Georgia Rug Mz14 308 F 2d 89, 91
(C A 5), Maphis Chapman Corp v N L R B, 368 F 2d 298,
304 (CA 5)
3 The termination of Ernest Leggans
I find that Leggans was terminated on January 4, 1972,
because he engaged in activity on behalf of the Union, and
that the reason given to him therefor , m e, that work was
slack, is a pretext As in the case of the layoff of John
Burress on January 17, 1972, I find that identical reasons
lead me to the foregoing conclusion In arriving at this
ultimate finding I have credited the General Counsel's
evidence and have not credited Respondent's evidence not
congruous therewith
But there are two additional reasons why I find that
Leggans was discriminatorily laid off They are briefly set
out below
(a) If work was as slack as Respondent claims, then it has
not been satisfactorily explained why a new employee was
hired the day before Leggans was terminated While not
conclusive, this fact, when appraised in conjunction with
other facts found in connection with the layoff of Leggans,
convinces me that lack of work was not the motive behind
his dismissal but, rather, that he was released because of
his union activity
(b) No satisfactory reason has been advanced why some
notice or announcement of the impending layoff was not
given to Leggans I am unable to accept as satisfactory the
contention of President Mandel that he did not desire to
inform employees of such misfortune until after Christmas
But in at least one instance , i e , the layoff of Lelm, a layoff
occurred on December 21, 1971, thus exposing as not
convincing the so-called wish to withhold such knowledge
from employees till after Christmas
Further, the mere announcement of a coming layoff, as
distinguished from actually effectuating it, before Christ-
mas is not so harsh , for then an employee is alerted to the
fact that he should seek employment elsewhere But the
abrupt declaration, not of a layoff to come , but of an
immediate layoff is much more severely rigorous Hence I
am convinced , and find, that Mandel's spirit of generosity
is clouded by the fact that no notice was given immediately
after Christmas, so that employees could look for work
elsewhere , and also by the abruptness of the layoff of
January 4 It is reasonable to expect some advance notice
of a layoff, and the failure to give such notice undermines
the alleged reason given by Mandel for postponing the
layoffs
Such abruptness , along with other facts found herein,
persuades me to find that the layoffs of January 4, 1972,
were substantially motivated by antiunion hostility
4 The termination of L T Howell
In my opinion Howell was laid off because of Respon-
dent's antiumon hostility and the reason given to him, i e,
that work was slack, is a pretext I so find
The reasons set out above which led me to find that
Burress was unlawfully laid off on January 17, 1972, are
equally applicable to Howell's termination, and I so find
They need not be repeated here In making said finding
concerning Howell, I have credited the General Counsel's
evidence and have not credited Respondent's evidence to
the extent it is contrary thereto
An additional reason for finding that Howell was
discriminatorily terminated is that, in late November, 1971,
he was assured by President Mandel that there was "plenty
of work you're not going to leave Maple City"
Patently this assurance was not intended to last for but 5 or
6 weeks Surely Mandel would not have uttered this
statement if work was on the verge of being slack
Further, according to Mandel, in early December
accountants expressed a dim view as to the immediate
outlook for Respondent's business If this is true it is
difficult to understand why Mandel, who gave a different
version to Howell, did not correct such version after the
accountants reported to hum In any event I find that
Mandel's statement to Howell cannot be ignored, and I
have assessed it, along with other facts found herein, in
determining the actual reason for laying off Howell
precipitately on January 4, 1972
Also, employee Lee, whom I credit , asserted (1) that the
job Howell was working on was completed by Chaney and
Green, neither of whom normally worked on this type of
job, (2) Respondent continued to manufacture other
machines which Howell was able to work on, and (3) Lee
worked overtime during the period of Howell's being
unemployed by Respondent Manifestly this tends to
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrate, and I find, that Howell was not laid off for
lack of work
5 The termination of Bruce Hedden
The facts surrounding Hedden's layoff are practically
indistinguishable from those leading to the layoff of
Burress on January 17, 1972, and I so find Accordingly, I
further find that Heddens was laid off on January 4, 1972,
for his union activity, and that the alleged reason for his
dismissal, i e, "work was getting slack ," is a pretext
An additional reason which supports this finding is that
Respondent hired a new employee, Darwin Baker, on
January 3, 1972, to work as a laborer Since it was
Respondent's policy to assign its regular employees to
laboring work during slack periods, it was incumbent upon
Respondent to account for the fact that Hedden was not,
pursuant to past practice, assigned to the laboring work
performed by the newly hired Baker No such explanation
appears in the record
In arriving at the above findings I have credited the
General Counsel's evidence and have not credited Respon-
dent's evidence to the extent it does not correspond
therewith
6 The termination of Raymond Layton
For the reasons set out more fully in connection with the
layoff of employee Burress on January 17, 1972, I find that
Layton was laid off on January 4, 1972, because of his
union activity and that advising him he was dismissed
because work was slack was a pretext to disguise the actual
reason An additional reason pursuading me that the
foregoing finding is warranted is the fact, which I find, that
a new employee was hired on January 3, 1972, and that
Layton complained about this to Foreman Bennett Hiring
a new employee only the day before Layton was laid off
destroys the contention that work was unavailable the very
next day, and I so find
It is true, and I find, that Layton was twice informed,
once by Moore and once by Bennett, that he should come
to work more regularly This occurred in about August,
1971 But I find that , assuming that this was a warning, his
irregular work habits were overlooked or condoned In any
event, I find that he was not laid off because of his
irregularity in coming to work
In arriving at the foregoing findings, I have credited the
pertinent evidence of the General Counsel and have not
credited that part Respondent's evidence not harmonious
therewith
7 The termination of Clifford Oary
On the record unfolded in this case I conclude, and find,
that Oary was laid off on January 13, 1972, because of his
union activity, and that the reason given to him for taking
this action, i e, missing 3 consecutive days of work without
calling in, is a pretext While this ultimate finding is based
on the entire record, it is also derived from the following
subsidiary findings , which I hereby find as facts
(a) Oary was a union member and engaged in some
union activity Respondent had knowledge thereof not
only because the small number of Respondent 's employees
makes operative the small plant rule, but also because Oary
displayed a union button on his hat
(b) Respondent entertained hostility towards unions
(c) Oary was hastily laid off contemporaneously with the
union organizational campaign "The abruptness of a
[termination ] and its timing are pursuasive evidence as to
motivation " N L RB v Montgomery Ward and Company,
242 F 2d 497, 502 (C A 2), cert denied 355 US 829
Accord Arkansas-Louisiana Gas Company, 142 NLRB
1083, 1085-1086 Of course I recognize that abruptness of a
layoff during a union campaign will not save an employee
from being terminated for cause But in Oary's case I find
that the summary manner of his layoff , when appraised
together with the other facts found herein , points to the
conclusion that he would not have been laid off if he had
not engaged in union activity Cf N L R B v Symons Mfg
Co, 328 F 2d 835, 837 (C A 7)
(d) At no time had Oary been alerted to the fact that his
absenteeism exposed him to the risk of losing his job In
fact at no time was he reprimanded for absenteeism
Failure to warn, under the circumstances, not only
constitutes condonation of his conduct , but indicates that a
discriminatory motive prompted his layoff E Anthony
Sons, Inc v NLRB , 163 F 2d 22, 26-27 (C A D C ),
NLRB v Melrose Co, 351 F 2d 693, 699 (C A 8)
(e) Other employees with absentee records as bad as or
worse than Oary's were not laid off This disparate
treatment of Oary tends to confirm the inference and I
draw it that it was not his absenteeism which displeased
Respondent but, rather , his unionism
(f) Finally, it is sufficient to support the finding that
Oary was unlawfully terminated if his unionism was a
substantial cause therefor I so find Hence it is no defense
that another, but legitimate, cause also existed for laying
him off
In arriving at the above findings I have credited the
General Counsel 's evidence and have not credited so much
of Respondent's evidence in conflict therewith
8 The termination of William Charlton
On the record developed in this case I find that Charlton
was terminated on February 14, 1972, because he engaged
in union activity, and that the reason given him for such
action, i e , "a lot of absenteeism and lack of production" is
a pretext To the extent that he was fired because of a lack
of production , I find, as shown elsewhere herein, that
Respondent used this, if true, as a pretext Those reasons
need not be repeated here
Insofar as Charlton was fired because of a lot of
absenteeism I also find that this is a pretext and that the
true reason was his union activity This finding is based on
the entire record and the following subsidiary findings,
which I hereby find as facts
(a) Respondent was cognizant of Charlton's union
activity not only because of the small plant rule but also
because supervisors observed him wearing a union button
and Charlton had union stickers on his lunch basket
(b) Respondent manifested opposition to unions and
committed unfair labor practices as found elsewhere
herein
(c) Others with absentee records equal to or exceeding
MAPLE CITY STAMPING CO 757
Charlton's were retained (See G C Exh 21-43) This
disparate treatment of Charlton warrants the inference and
I draw it that conduct other than absenteeism accounted
for his discharge I find that such other conduct is his
union activity
(d) Although Charlton had been warned that his
absenteeism would result in disciplinary action taken
against him if he persisted in it, nothing was done about it
notwithstanding that he repeated this type of dereliction
Hence I find that his absenteeism had been overlooked or
condoned by Respondent
(e) Charlton was discharged during the Union's cam-
paign Timing is thus significant evidence as to the
motivation of Respondent in dismissing Charlton Such
motivation was "a hostile reaction to information [Respon-
dent] had received concerning incipient union
organizational activity of its employees and was calculated
to chill such activity " Lloyd's Ornamental and Steel
Fabricators, Inc, 197 NLRB No 71 See D H Farms Co,
197 NLRB No 47
(f) Even if Charlton's absenteeism contributed to the
decision to discharge him, such termination is nevertheless
unlawfully imposed if a substantial reason for such action
was his union activity I find that such substantial cause
was his union activity Accordingly, I find his discharge
was unlawful "The mere existence of valid grounds for a
discharge is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity " N L R B v Symons Manufacturing Co, 328 F 2d
835, 837 (C A 7)
The foregoing findings as to Charlton are based on
evidence of the General Counsel which I have credited
Respondent's evidence inconsistent therewith is not credit-
ed
9 The termination of Robert Miller
I find that Miller's layoff from January 14 to January 18,
1972, was prompted by his being a member of the Union
and not because of a lack of work This finding is based on
the entire record and also the findings made in conjunction
with the layoff of Burress However, the following
additional findings relating to Miller also support the fact
that his layoff was discriminatory and that the asserted
reason, i e , lack of work, is a pretext
(a) Respondent had actual knowledge of Miller's union
membership as he informed Superintendent Patten of it
(b) When Miller asked Foreman Bennett why the former
was being laid off Bennett replied that he did not know
Failure to give a reason for a layoff "supports an inference
that the layoff was discriminatory " N L R B v Griggs
Equipment, Inc, 307 F 2d 275, 278 (C A 5), N L R B v
Plant City Steel Corp, 331 F 2d 511, 515 (C A 5), NL R B
v American Casting Service, 365 F 2d 168, 174 (CA 7) It
is true that Plant Manager Moore, when later asked by
Miller, stated that the layoff resulted from a lack of work
But this does not alter the crucial fact that Foreman
Bennett, who laid off Miller, was unable to announce a
reason therefor
(c) Miller enjoyed seniority over those retained in
preference to him When asked why those junior to him
were retained, Miller was informed that it cost less to keep
them employed But I do not credit this reason as the
actual one, especially since in the past employees were
given other work during slack times and were not laid off
N L R B v American Casting Service, 365 F 2d 168, 174
(C A 7) Cf Bogart Sportswear, 196 NLRB No 1, where
the employer laid off the lowest paid employees first in a
reduction in force and the Board found that this showed no
union animus
In making the above findings I have credited the General
Counsel's evidence and have not credited Respondent's
evidence inconsistent therewith
10 The Section 8(a)(1) violations
On January 8, 1972, Patten made some antiumon
remarks to Yancick and Burress in the presence of
employees at the Villa Tap While such utterances may be
looked upon as intemperate, I find that none of them,
except that discharging Burress, is coercive and, therefore,
none of them collides with Section 8(a)(1) of the Act On
this occasion Patten also fired Burress As found below,
this violates Section 8(a)(4) of the Act I further find that
derivatively it contravenes Section 8(a)(1)
Patten on this occasion also told employees at the Villa
Tap that there would be some layoffs because of the union
meeting and that he could close the plant before he would
allow a union to come in Since this is a threat of reprisals,
it violates Section 8(a)(1) of the Act Additionally I find
that Patten's presence on this day at the Villa Tap amounts
to unlawful surveillance
About December 20, 1971, Dorwin Meyer, whom I have
found to be supervisor under the Act elsewhere herein,
asked Lelm if the latter had a card Even assuming this
alluded to a union card, I find this interrogation not to be
coercive A few days later Meyer asked Leggans whether
the latter had any more petitions which Leggans wanted
signed This, too, is not coercive, and I so find In
December 1971, Meyer also asked employee Lee if Lee had
a card which Meyer could sign I find this is not unlawful
interrogation as it is not coercive
Shortly before January 4, 1972, Meyer asked Hedden if
Hedden was part of the union business going on I find
that this is not coercive interrogation as it does not contain
an implication of reprisals On another occasion Meyer
told Lee that Respondent would fire Lelm if Lelm tried to
organize the plant Patently this runs afoul of said Section
8(a)(1), and I so find Meyer said about the same words to
employee Charlton This also violates the said Section of
the Act
At about the last week of December 1971, Respondent
abolished unscheduled coffeebreaks, i e, breaks taken at
will by employees (as distinguished from scheduled
coffeebreaks, which were still retained) and the leaving of
an employee's work area to talk to employees in other work
areas, and ordered a "speed up" in work I consider this
action to be within the sphere of management's prerogative
invoked to expedite production and, therefore, find that it
does not violate Section 8(a)(1) of the Act This is because I
find that "working time is for work" (Republic Aviation
Corp v NLRB , 324 U S 793, 803 fn 10), and that an
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer may lawfully insist that employees perform their
duties on company time
About January 6, 1972, Foreman Roan told employees
Charlton and Revord that a union would do them no good
Since this was not accompanied by a threat of reprisal I
find it does not violate Section 8(a)(1) of the Act Roan
also referred to Charlton's union stickers as junk and asked
what Charlton expected to gain from the Union I find this
is not coercive and, therefore, is protected by Section 8(c)
of the Act And Vice President Slighton once asked
Charlton about a union button on the latter's hat This is
not coercive, and I so find Cf Birdsall Construction Co,
198 NLRB No 20
In making the findings here and elsewhere herein on the
issue of whether Respondent violated Section 8(a)(1) of the
Act I have credited the General Counsel's evidence and
only that part of Respondent's evidence consistent there-
with
11 The status of Dorwin Meyer
I am of the opinion, and find, that even on the
Respondent's evidence, Meyer is vested with authority to
responsibly direct employees and to effectively recommend
that employees working under hurt be transferred or
discharged Accordingly, I find that he is a supervisor
within the meaning of Section 2(11) of the Act, and that
Respondent is accountable for his statements uttered to
employees
earnings suffered by each by reason of his being terminat-
ed
In making whole the nine aforesaid employees Respon-
dent shall pay to each a sum of money equal to that which
he would have earned as wages from the date he was
terminated to the date of reinstatement or a proper offer of
reinstatement, as the case may be, less his net earnings
during such period Such backpay, if any, is to be
computed on a quarterly basis in the manner established in
F W Woolworth Co, 90 NLRB 289, with interest thereon
at 6 percent per annum calculated according to the
formula promulgated in Isis Plumbing & Heating Co, 138
NLRB 716 It will also be recommended that Respondent
preserve and make available to the Board or its agents,
upon reasonable request, all pertinent records and data
necessary to aid in analyzing and ascertaining whatever
backpay may be due Finally, it will be recommended that
Respondent post appropriate notices
The above discriminatory terminations go "to the very
heart of the Act" NLRB v Entwistle Manufacturing
Company, 120 F 2d 532, 536 (CA 4) Accordingly, the
Board's Order should be comprehensive enough to prevent
further infraction of the Act in any manner by the
Respondent, and I shall so recommend Cf R & R Screen
Engraving, Inc, 151 NLRB 1579, 1587
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with its operations 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
VI THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices I shall recommend that it be
ordered to cease and desist therefrom and that it take
specific action, as set forth below, designed to effectuate
the policies of the Act
In view of the fact that Respondent unlawfully terminat-
ed Lelm, Hedden, Howell, Layton, Leggans, Charlton,
Oary, Miller, and Burress, it will be recommended that
Respondent be ordered to offer to each (except Miller, who
has already been recalled to work) immediate and full
reinstatement to his former position or, if such is not
available, one which is substantially equivalent thereto,
without prejudice to the seniority and other rights and
privileges of each It will further be recommended that
each (including Miller) be compensated for any loss of
1 The Union is a labor organization within the
meaning of Section 2(5) of the Act
2 Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act
3 By engaging in threats of reprisals, coercive interro-
gations, and surveillance, as found above, Respondent
committed unfair labor practices forbidden by Section
8(a)(1) of the Act
4 By discriminating in regard to the tenure of
employment of Lelm, Hedden, Howell, Layton, Leggans,
Charlton, Oary, and Miller, thereby discouraging member-
ship in the Union, a labor organization, Respondent has
engaged in unfair labor practices condemned by Section
8(a)(3) and (1) of the Act
5 By discharging Burress for allegedly filing a charge
against one of its supervisors, Respondent has engaged in
an unfair labor practice proscribed by Section 8(a)(4) and
(1) of the Act
6 The above-described unfair labor practices affect
commerce within the contemplation of Section 2(6) and (7)
of the Act
7 Respondent has not committed any other unfair
labor practices as alleged in the complaint
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issued the following recommend-
ed i
1 In the event no exceptions are filed as provided by Sec 102 46 of the said Rules and Regulations be adopted by the Board and become its
Board s Rules and Regulations the findings conclusions recommenda- findings, conclusions and Order and all objections thereto shall be deemed
lions and recommended Order herein shall, as provided in Sec 102 48 of waived for all purposes
MAPLE CITY STAMPING CO 759
ORDER
Respondent, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discouraging membership in the Union, by laying off
or terminating employees or otherwise discriminating in
any manner in respect to their tenure of employment or
any term or condition of employment
(b) Discharging or otherwise discriminating against
employees who have or are believed to have filed charges
under the Act
(c) Coercively interrogating employees concerning their
union membership, activities, and desires
(d) Threatening to close its plant or take other reprisals if
its employees chose a collective-bargaining representative
(e) Engaging in surveillance of the union activities of its
employees
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer Lelm, Hedden, Howell, Layton, Leggans,
Charlton, Oary, and Burress immediate and full reinstate-
ment each to his former position, or, if such no longer
exists, to a substantially equivalent one, without prejudice
to the seniority and other rights and privileges previously
enjoyed by each, and make each, together with Miller,
whole for any loss of pay he may have suffered by reason
of Respondent's discrimination against him, with interest
at the rate of 6 percent, as provided in the section above
entitled "The Remedy "
(b) Notify said Lelm, Hedden, Howell, Layton, Leggans,
Charlton, Oary, and Burress, if presently serving in the
Armed Forces of the United States , each of his right to
reinstatement upon application after discharge from the
Armed Forces in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended
(c) Preserve and, upon reasonable request, make availa-
ble to the Board or its agents, for examining and copying,
all payroll records and reports and all other records
necessary to ascertain and compute the amount, if any, of
backpay due under the terms of this recommended Order
(d) Post at its premises at Peoria, Illinois, copies of the
notice marked "Appendix "2 Copies of said notice, to be
furnished by the Officer-in-Charge for Sub-Region 38,
after being signed by a duly authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material
(e) Notify the Officer-in-Charge for Sub-Region 38, in
writing, within 20 days from receipt of this Decision, what
steps have been taken to comply herewith 3
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein
2 In the event the Board s Order is enforced by a Judgment of a United 3 In the event this recommended Order is adopted by the Board after
States Court of Appeals, the words in the notice reading Posted by Order exceptions have been filed this provision shall be modified to read Notify
of the National Labor Relations Board shall be changed to read Posted the Officer in Charge for Sub-Region 38, in writing within 20 days from the
pursuant to a Judgment of the United States Court of Appeals enforcing an date of this Order what steps Respondent has taken to comply herewith
Order of the National Labor Relations Board