Matai (U.S.A.) Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1986

281 N.L.R.B. 327 (N.L.R.B. 1986)

MATAI (U.S.A.) INC.
Matai (U.S.A.) Inc. and John Robert Gibbs and
Christopher A. McClanahan. Cases 9-CA-
22565 and 9-CA-22635
8 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 27 June 1986 Administrative Law Judge
Irwin Kaplan issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Matai
(U.S.A.) Inc., Springfield, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
' The General Counsel 's only exceptions urge modification of the rec-
ommended Order to include a provision for a visitatorial clause authoriz-
ing the Board, for compliance purposes , to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing this Order. Under the
circumstances of this case , we find it unnecessary to include such a
clause.
Vyrone Alex Cravanas, Esq., for the General Counsel.
Elbert G. Smith, Esq. (Smith & West), of Springfield,
Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These
consolidated cases were heard in Dayton, Ohio, on 10
and 11 February 1986. The underlying charges were
filed by John Robert Gibbs (Gibbs) on 4 November 1985
and Christopher A. McClanahan (McClanahan) on 29
November 1985 in Case 9-CA-22565 and Case 9-CA-
22635, respectively, alleging essentially that Matai
(U.S.A.) Inc. (Respondent) permanently laid them off for
reasons violative of Section 8(a)(3) and (1) of the Nation-
al Labor Relations Act (the Act).
The charge in Case 9-CA-22565 gave rise to a com-
plaint and notice of hearing dated 19 December 1985,
which complaint was subsequently consolidated with
Case 9-CA-22635 in an order consolidating cases, con-
327
solidated amended complaint, and amended notice of
hearing dated 7 January 1986. In addition to the alleged
discriminatory layoffs of Gibbs and McClanahan, in the
aforenoted consolidated amended complaint, it is also al-
leged that Respondent independently violated Section
8(a)(1) of the Act by promulgating, maintaining, and en-
forcing an overly broad no-solicitation, no-distribution
rule and threatening employees with reprisals to discour-
age them from engaging in union activities.
Respondent filed corresponding answers (amended fur-
ther at the hearing), conceding, inter alia, jurisdictional
facts and the supervisory and agency status of certain in-
dividuals, but denying that it committed any unfair labor
practices.
Based on the record as a whole, including my observa-
tion of the witnesses, and after careful consideration of
the posttrial briefs, I find as follows
FINDINGS OF FACT
I. JURISDICTION
Respondent, Matai (U.S.A.) Inc., an Ohio corporation,
at all material times has engaged in the manufacture of
woven-coated polyethlene sheeting and grid film sheet-
ing at its factory in Springfield, Ohio. During the past 12
months, in connection with the aforenoted business oper-
ations, the Respondent has derived revenue in excess of
$50,000 from the shipment and sale of its products direct-
ly to customers outside the State of Ohio. It is admitted,
the record supports, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is admitted and I find that the Glass, Pottery, Plas-
tics and Allied Workers International Union, AFL-CIO
(the Union) is now, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent is a manufacturer of reinforced plastic tarp
products. For approximately the past 8-1/2 years, Re-
spondent has owned and operated a factory in Spring-
field, Ohio, its only facility involved herein. Charging
Parties Gibbs and McClanahan were both employed by
Respondent at its Springfield facility. The employees at
that location have never been represented by a union. In
July 1984, union activities first commenced when Gibbs
contacted International Vice President Wayne King to
explore union representation and a meeting was arranged
and then held that same month at the Holiday Inn South,
in Springfield.
At the first union meeting with King, Gibbs was
joined by fellow employee Doug Martin. Gibbs and
Martin both signed union authorization cards at that
meeting and were given additional union cards and pam-
phlets to distribute to Respondent's other employees.
(See G.C. Exhs. 2(a), (b), and (c).) Following this meet-
ing, Gibbs returned to the Springfield facility, and almost
immediately began to champion the Union 's cause. In
281 NLRB No. 50
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this, Gibbs received some assistance from Martin, but
mainly by fellow Charging Party McClanahan. For the
most part, the union literature was distributed in Re-
spondent's parking lot. Gibbs also conducted several
meetings of employees at his home to discuss the Union.
Respondent at that time employed from 45 to 50 employ-
ees, which represented its normal employee complement.
In all, Gibbs collected some 15 signed union authoriza-
tion cards during 1984. However, after some initial en-
thusiasm, the Union's organizational efforts stalled until
mid-1985.
According to Gibbs, employee interest in the Union
resurfaced in 1985 because the wage increases provided
by Respondent were substantially less than in previous
years. Gibbs testified that he resumed his organizational
activities largely in response to employee inquiries
whether he was "still active in the Union." He resumed
distributing union literature and obtained some additional
signed authorization cards, with the assistance of
McClanahan and Martin. These activities were carried
out in the lunchroom, parking lot, and Gibbs' home.
While Gibbs acknowledged that he tried to conceal such
activities from management, he testified that from time to
time the subject of the Union had come up with supervi-
sors.
As testified to by Gibbs, the first reference by a super-
visor to him regarding the Union occurred in May
1985.1 Gibbs testified that on that occasion, around
lunchtime, while he and employee Tammy Hornberger
were standing at the door of the facility awaiting the ar-
rival of the lunch truck, the two of them chatted about
their displeasure over the Company's raises, to which
Gibbs assertedly opined, "If we could have a union,
maybe we could do something about that." According to
Gibbs, Supervisor Roger Lucas overheard his remark
and stated, "Right, as soon as you do [have a union],
Matai will just come in and close the place down, and
everybody will be out of a job. They'll move and every-
body will be gone. Everyone will be out of a job."
Lucas denied making antiunion statements and denied
threatening a plant relocation if the employees unionized.
Another incident, as testified to by Gibbs, when a su-
pervisor linked reprisals to support for the Union, oc-
curred during the third week in July. Gibbs testified that
he had just finished having a discussion with employee
Mike Mayo at the lamination machine where, inter alia,
they had talked about the Union, when he and Depart-
ment Supervisor George Clouse came upon each other.
According to Gibbs, Clouse alluded to employees "start-
ing this union stuff' and cautioned them to "stop" or
"they would be in a lot of trouble." Gibbs assertedly
asked Clouse to elaborate to which the latter responded,
,You know, the unemployment lines are still kind of
long and I would hate to see anybody go in [sic] them."
Clouse denied ever saying anything to Gibbs about the
Union. However, around that time, Mitsuo Tanaka, the
new plant manager (Osamu Hayashida's successor), ad-
mittedly spoke to Gibbs about his union activities.
i All dates refer to 1985 , unless otherwise indicated.
Tanaka testified2 that sometime in July he tore up a
warning report given Gibbs because it was over a
"rather minor" matter, and in doing so, Tanaka told
Gibbs, "I have heard the rumors about the unions, if
[you are] going [to engage in] union activities, you have
[to] become a reliable worker to succeed ...."
On 16 August Gibbs was informed by his then imme-
diate supervisor, Bonnie Carlos, that he had to be laid off
because of lack of work.3 A few weeks earlier, Carlos
had requested of Plant Manager Hayashida that Gibbs be
reassigned from the lamination department to mainte-
nance because Christopher Baisden, a maintenance em-
ployee, was going on vacation. According to Carlos,
Gibbs was supposed to be laid off with other employees
at that time but because he possessed maintenance abili-
ties and on the bases of personal considerations, i.e., his
wife was pregnant and they could use the money, she
asked Hayashida to defer the layoff until Baisden re-
turned to work. According to Gibbs, the layoff came as
a complete surprise. Thus, while Gibbs confirmed that
Carlos told him that he would be covering for Baisden
over the vacation period, Gibbs also asserted that Carlos
told him that he would return to the lamination depart-
ment when Baisden returned to work.
Gibbs and Carlos are also at odds regarding what was
said by Carlos at the time she informed Gibbs of the
layoff. According to Gibbs, Carlos told him that the
layoff was temporary, only a "couple of weeks" and not
to get "upset." Carlos, on the other hand, asserted that
she told Gibbs that she did not know how long he would
be laid off and merely noted the "possibility" of recall if
production improved. Gibbs was permitted to take the
next 2 weeks as vacation time, so that the actual layoff
did not commence until about 3 September.
Gibbs testified that during the first or second week in
September he was approached by Supervisor Billy
Farley at a softball game (both played on Respondent's
softball team) and told that Respondent was unhappy
about Gibbs' union activities and alluded to the fact that
Gibbs has "a wife and a baby on the way" in cautioning
him to pull back from such activities. Farley denied ever
saying anything to Gibbs about union activities.
During Gibbs' layoff in September, he continued to
press Personnel Director Kristen Grischy about his
recall status and she in turn continued to tell him that
she had no idea . Finally, Gibbs asked Grischy for a
meeting with Tanaka to discuss his employment status
and a meeting was so arranged on 23 September.
At the aforenoted meeting, Gibbs learned that he
would not be recalled. Grischy also attended this meet-
ing and did the interpreting for Tanaka. According to
Gibbs, Grischy told him that he was not coming back
because of his union activities; however, Grischy asser-
tedly refused Gibbs' request to state this reason in writ-
2 Tanaka spoke through a Japanese interpreter both on that occasion
and in his testimony at the instant hearing
S According to employee Douglas Martin , that same month Carlos
made some negative statements about the Union and also told him that it
would be in Gibbs' best interest to "watch out what he said about the
Union " Carlos denied making any antiunion statements to Martin or that
she spoke to him about union organizing.
4
MATAI (U.S.A) INC.
ing. Gibbs testified that Grischy told him that Tanaka
told her that he had been acquainted with unions in
Japan and that Matai did not need a union . Further,
Gibbs was assertedly told that if the Company decided
to lay off the entire work force and relocate that it
would be his fault. In that same session, Gibbs was asser-
tedly told that he needed a more positive attitude and
Grischy alluded to an occasion in August when Gibbs
assertedly got "high " and stood on a table in the lunch-
room.4
Grischy provided a substantially different account of
the 23 September meeting . Thus, Grischy testified that
she told Gibbs that he was not being recalled because of
his poor work record and attitude . She denied telling
him that it had anything to do with his union activities.
Grischy testified that she reminded Gibbs, inter alia, of
"counseling session[s]" he had with former Plant Manag-
er Hayashida, his "belligerent way of talking to supervi-
sors" and "mentioned something to him about [his] talk-
ing poorly about the company ." According to Grischy,
Gibbs kept pressing her to elaborate and finally he re-
marked , "You mean-you're talking about • my talking
about the Union." To this, Grischy assertedly responded,
"John, I don 't know what you're talking about ." Grischy
testified that she told Gibbs that he was trying to get her
to admit that the Company was taking this action against
him because of his union activities when she had no such
knowledge.5 Gibbs then asked "Well, are you going to
call me back or not, to which she assertedly responded,
"Mr. Tanaka hasn't made up his mind , but it looks right
now, probably not." Grischy testified that Gibbs then
pointed at her and stated in a "very loud voice," "Then I
guarantee the Union will be here within 45 days."
According to Grischy, because of Tanaka 's limited ex-
perience, he could not decide whether to recall Gibbs
and called a meeting of all supervisors on or about 26
September to get their input on this subject. At this
meeting, Grischy recommended that Gibbs not be re-
called and then she asked for a vote or show of hands
from the other supervisors . The supervisors unanimously
expressed their opposition to recalling Gibbs, who was
then deemed permanently laid off.
From June throughout the remainder of the year, Re-
spondent laid off approximately 10 to 12 employees.
Aside from Gibbs, McClanahan was the only other em-
ployee "permanently" laid off. The other laid-off em-
ployees were either recalled or had voluntarily decided
not to return . However , McClanahan 's layoff status of 2
August, which was assertedly due to a downturn in busi-
ness, was converted to a "permanent" layoff on 21
August, for the additional reason of "poor work qual-
ity." (R. Exh. 5 .) Unlike the special meeting that was
convened on 26 September to discuss Gibbs' status, there
was no such gathering , vis-a-vis, McClanahan . Grischy
acknowledged that the workload was such subsequent to
4 While Gibbs admitted getting "high" early in his employment at
Matai , he also asserted that he had long decided that it was inappropriate
and denied getting "high" at work in August and for a long time prior
thereto.
5 While the record disclosed that Grischy was told by supervisors of
reports that Gibbs was involved in union activities , she and other super-
visors assertedly dismissed these accounts as hearsay or rumors.
329
the layoffs that both Gibbs and McClanahan could have
been recalled had management been so disposed.
McClanahan testified that when Farley told him on 2
August that he was laid off, he also stated that Farley
would have kept McClanahan, but the matter was out of
his hands. While Farley did not specifically deny
McClanahan 's testimony, he testified that he had input in
the decision to lay off McClanahan and, apparently,
agreed therewith . Thus, Farley asserted that McClana-
han had not performed satisfactorily and "sooner or
later" would have recommended his discharge .° Farley
denied having any knowledge of McClanahan 's union ac-
tivities at the time of the layoff or knowing whether he
was a union sympathizer . This is somewhat in conflict
with McClanahan 's testimony as noted below.
McClanahan testified that around 1 January 1985, in
the lunchroom, a small group of employees and a few su-
pervisors including Farley discussed , informally, their
various gripes . For example , some of the employees
complained about having to cover for employees who
did not show up to work . Further , Supervisor George
Breakall assertedly complained that he had to exercise
more responsibilities than most of the other supervisors.
According to McClanahan , in response to the various
gripes that were expressed at that time, he opined, "if we
had a union, we wouldn 't have to stand for it." Breakall
and Farley assertedly made some negative comments re-
garding the Union noting that union dues would out-
weigh union benefits . Breakall assertedly stated that the
Japanese owners would not tolerate a union and would
relocate and hire new employees . McClanahan assertedly
stated that "[he] would rather pay union dues and have a
little say so in [his] work." Supervisor Carlos assertedly
spoke of the "Wickham" situation, another Springfield
company that had a union and was forced to close down.
Carlos assertedly pointed out that the Union did not save
the jobs of those employees . Basically , Farley, Breakall,
and Carlos deny the antiunion statements ascribed to
them by McClanahan.7
B. Discussion and Conclusions
1. Credibility
This case turns principally on Respondent's motivation
in permanently laying off Gibbs and McClanahan. In
finding for reasons noted below that Respondent was
motivated by unlawful considerations , I have, inter alia,
discarded a substantial portion of its defense and denials
on the basis of credibility resolutions. None of Respond-
ent's witnesses impressed me as candid or reliable. For
example, virtually all of Respondent's seven managers
and/or supervisors disclaimed initially any knowledge of
6 Farley was the supervisor in shipping and receiving . McClanahan
worked in that department and under Farley from 22 July until he was
laid off on 2 August , approximately 1 week.
4 It is also alleged that since about 4 May 1985 Respondent has pro-
mulgated , maintained, and enforced an overly broad no-distribution rule
in violation of Sec. 8(aXl). The disputed rule (rule 34) prohibits
"[d]istributing printed matter on company premises without permission."
(Jt. Exh . 1.) This allegation will be treated separately and more fully
infra.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity, only to retreat therefrom when ques-
tioned further or confronted with affidavits.
Personnel Director Grischy's testimony is a case in
point. According to Grischy, it was not until 23 Septem-
ber 1985 when she first learned of "any union activity."
(Tr. 182.) Grischy testified that at that time Gibbs threat-
ened to bring in the Union. When Grischy was ques-
tioned further about the timing of her union knowledge,
she discounted anything prior to 23 September as "some
rumors, but nothing substantial, nothing worth noting."
However, a moment or two later, Grischy acknowleged
that 4 or 5 months before her 23 September meeting
with Gibbs she was told by supervisors and employees
that "quite a few" employees (and they were named)
were involved in union activities. (Tr. 182, 187-188.) In
this connection, it is noted that while Grischy identified
a number of employees who were "mentioned" to her as
involved in union activity this list did not include Gibbs
until she was specifically asked whether his name was
also mentioned and she responded in the affirmative. (Tr.
183.) This admission is clearly inconsistent with her affi-
davit when she denied ever knowing Gibbs to be a union
sympathizer or advance anything related to that cause.
(Tr. 195.) Given my assessment of Grischy's demeanor
and total testimony, I find it more likely that this was
not merely an oversight, but rather reflected an effort to
take liberties with the truth regarding her knowledge of
Gibbs' union activity.
Similarly, I found Grischy to be elusive and less than
forthright in testifying about her knowledge of union
cards. She first denied that the subject of union cards
had been brought to her attention. (Tr. 476.) Supervisor
Carlos, however, testified that she informed Grischy in
June or July that employee Jim Mills told her that Gibbs
was passing out union cards. Grischy, when reminded of
Carlos' testimony, responded, "I'm not sure if she
[Carlos] actually told me about union cards specifically
or that there were some people trying to organize a
union." A moment later, Grischy acknowleged that
Carlos told her about union cards "probably in the
summer (1985)." (Tr. 477.)
In short, I found Grischy's testimony inconsistent, eva-
sive, implausible, lacking in candor, and unreliable. Simi-
larly, for reasons noted below, I found Supervisor Carlos
to be an incredible and unreliable witness.
According to Carlos, the only "real talk of the Union"
was in the latter part of September 1985. She discounted
all references to union activity prior thereto on the basis
that it was "just hearsay and rumors." Thus, Carlos as-
sertedly did not deem it important that employee Jim
Mills had informed her earlier in 1985 that Gibbs was
passing out union cards and that Mills named other union
supporters. Notwithstanding this assessment, Carlos saw
fit to pass this information on to Grischy. Carlos also
denied being told that Gibbs had posted union literature.
However, when confronted with her affidavit, she admit-
ted that as early as 1984 she was told that Gibbs had dis-
tributed and posted union literature.
Further, casting doubt on Carlos' overall credibility is
her testimony regarding employee attendance. She first
asserted that employee attendance was not generally a
problem. However, when asked specifically about num-
bers, Carlos admitted that "a third" of the employees are
written up for coming in late or not showing up for
work.8 Still further, in assessing Carlos' overall credibil-
ity, it is noted that she recommended against recalling
Gibbs ostensibly because of the poor quality of his work.
Yet, approximately I month earlier Carlos had recom-
mended to Plant Manager Hayashida that Gibbs be tem-
porarily reassigned to her department to replace an em-
ployee on vacation. According to Carlos, in doing so,
she felt concern for Gibbs, whose wife was then preg-
nant and the extra money would come in handy. Howev-
er, this expression of compassion appeared to be missing
1 month later when Carlos recommended against recall-
ing Gibbs. Given Carlos' acknowledgment that Gibbs, as
a replacement, performed to her full satisfaction until he
was laid off, I find it highly unlikely that her recommen-
dation against him was predicated on poor production as
she so testified . In short, noting the inconsistencies, con-
fusion, lack of candor, conclusionary assertions, and im-
plausibility of Carlos' testimony, I find that she cannot be
credited in any material respect.
Similarly, I found the testimony of Tanaka, Farley,
Breakall, Clouse, and Lucas (Respondent's other wit-
nesses) to be seriously flawed. For the most part, I found
these witnesses vague, evasive, unresponsive, and implau-
sible. For example, Tanaka asserted that he paid little at-
tention to the Union and could recall virtually nothing
about this subject. He could not recall dates, identities,
or circumstances. I found, however, that Tanaka was
hardly forthright in so downplaying his concern about
the Union. Thus, it is noted that Tanaka belatedly re-
called that he told Gibbs that he had heard of his union
activities and cautioned him about becoming a "reliable
worker" if he wanted "to succeed." At the same meeting
Tanaka tore up a warning given to Gibbs by his supervi-
sor and stated "that as a new plant manager, I'm going
to give [you] a new chance."
As for Supervisor Farley, I found, inter alia, that his
responses when cross-examined were equivocal, uncer-
tain, and lacking in conviction. In this regard, it is noted
that Farley's voice on direct came across with no appar-
ent difficulty, but began to fade when cross-examined,
and I had to remind him to raise his voice. According to
Farley, regardless of the layoff, sooner or later, he
would have recommended McClanahan's discharge be-
cause he was a "very slow" and a "very poor" worker.9
However, Farley was somewhat unsure and equivocal
whether he spoke to McClanahan about his displeasure
with the latter's work performance. Thus, Farley when
asked, responded, "I believe-I think I might have one
time."
Supervisor Breakall also denied knowledge of union
organizing activity, although he noted that virtually ev-
eryone in his department voiced some support for the
8 This testimony is especially significant given Respondent 's assertion
that McClanahan , in part, was permanently laid off for poor attendance
and there is no probative evidence that other employees were similarly
treated
e Noting that McClanahan only worked under Farley for approximate-
ly I week, I find, without more , that this prognosis is of little probative
value
k
MATAI (U.S.A) INC.
Union. He testified that the first time he heard anything
about the Union was when McClanahan mentioned the
subject during the summer of 1985 . Breakall assertedly
treated all the union talk merely as "rumors ." I do not
credit Breakall, noting, inter alia, that other supervisors
had known that union authorization cards were passed
around ; that higher management had seen union litera-
ture at the facility; and I was unimpressed with Brea-
kall's demeanor and testimony otherwise.
For substantially the same reasons , I do not credit the
testimony of Clouse and Lucas . Clouse heard employees
talking about passing around union cards, but he "disre-
garded" such talk as "hearsay." (Tr. 393-394.) Lucas, for
his part, denied ever knowing whether Gibbs or
McClanahan were involved in union activity . (Tr. 257.)
However, Lucas also testified that as early as 1984 Gibbs
had threatened him with union reprisals for giving him a
warning report . Further, Lucas admitted that he had
learned from employee Mills and/or employee Carter
about a union meeting where employees signed union
cards. (Tr. 421-422.) He denied that Mills or Carter iden-
tified any of these employees. I find that highly unlikely,
noting particularly that Supervisor Carlos admitted that
Mills told her that Gibbs had passed around union cards
and had also identified other employees "rumored" to
have supported the Union.
In contrast to Respondent's witnesses , I fmd that the
witnesses on behalf of the General Counsel exhibited
greater recall and were largely responsive , consistent,
and forthright. Gibbs, for example , was clearly forthright
by readily admitting on cross-examination that he had
gotten "high" at work during the early days of his em-
ployment and that Personnel Director Grischy had
knowledge thereof. However, he also testified without
contradiction that he had never been warned or disci-
plined for such misconduct . Thus, he testified candidly
about his own impropriety, notwithstanding an apparent
absence of contradictory documentation . Gibbs was also
clearly responsive and candid in testifying about his diffi-
culties in working with fellow union activist McClana-
han on the barmag machine . Thus, Gibbs admitted, with-
out hesitation , that he had gone to Supervisor Carlos to
ask her to take McClanahan off that machine.
As for McClanahan, he received substantial corrobora-
tion from Gibbs and employee Douglas Martin regarding
the nature and extent of his union activities . Further, I
find that the essence of Supervisor Breakall's testimony
in at least one critical area tends to confirm McClana-
han's assertions . Thus, McClanahan testified that he told
other employees and supervisors who had been discuss-
ing various gripes at work that they would all be better
off with a union . While Breakall denied recalling or
hearing McClanahan make such a statement, he acknowl-
edged that virtually all the employees in the department
made similar remarks . (Tr. 318, 322.)
Finally, I find that employee Martin was impressive
and straightforward as a witness and testified credibly. It
is noted, inter alia, that Martin readily acknowledged on
cross-examination that he and Gibbs are good friends.
However, in assessing Martin 's overall credibility, it is
also noted that at the time he testified he was still em-
ployed by Respondent . As such, Martin testified against
331
his self-interest, a factor not to be lightly disregarded.
See, e.g., Unarco Industries, 197 NLRB 489 , 491 (1972);
Gateway Transportation Co., 193 NLRB 47, 48 (1971);
and Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961).
In sum, based on the foregoing , the entire record, and
my assessment of demeanor factors , I credit Gibbs,
McClanahan , and Martin over Respondent's witnesses
where the testimony is in conflict.
2. Motivation
Having disposed of all material credibility factors in
dispute in favor of the General Counsel , it then follows,
and I find, that Grischy, Lucas, and Clouse, admitted su-
pervisors and agents , threatened employees with various
reprisals including discharge , plant closedown , and plant
relocation to dissuade them from engaging in union ac-
tivities . As such, I further find that Respondent coercive-
ly threatened employees in violation of Section 8(axl),
as alleged.
While the foregoing clearly revealed that Respondent
harbored antiunion hostilities , the record also disclosed
some factors tending to support Respondent 's disputed
action . For example, the record disclosed that neither
Gibbs nor McClanahan were model employees. From
time to time each of them had received warnings for vio-
lating company rules. (See G .C. Exhs. 5 and 6; R. Exh.
3.) Thus, noting the various countervailing factors bear-
ing on motivation, I find it appropriate to analyze this
case under Wright Line10 principles.
Under Wright Line, the General Counsel has the initial
burden of making a prima facie showing that Respond-
ent's actions were, at least in part, predicated on union
or other protected concerted activities . Once accom-
plished, the burden then shifts to Respondent to establish
that it would have taken the disputed action, apart from
any unlawful considerations ."' The overall burden, of
course, remains with the General Counsel to establish by
a preponderance of the evidence that Respondent has
committed the unfair labor practices , as alleged.' 2
Applying the Wright Line causation test to the instant
case, I fmd that the record clearly supports a prima facie
inference of unlawful motivation. Thus, the record con-
tains all the elements necessary to establish a prima face
case: activity, knowledge, timing, and animus.
The record disclosed that Gibbs and McClanahan
were the two most active union supporters among Re-
spondent 's employees . Gibbs, the principal union adher-
ent, inter alia, held union meetings at his home, distribut-
ed and posted union literature, and passed around and re-
ceived union cards at Respondent 's facility. McClanahan
assisted Gibbs in many of these undertakings. While
Gibbs exercised some caution in concealing his union ac-
tivities from supervisors, the conclusion is inescapable,
and I fmd, on the total state of this record, that Respond-
ent learned of these activities from other sources. Thus,
Supervisor Carlos testified that employee James Mills
told her that Gibbs "was trying to start a union in the
10 Wright Line, 251 NLRB 1083 (1980).
11 Id . at 1089.
12 Id. at 1088 fn 11.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop" and was passing out union cards. (Tr. 221.) While
Carlos also testified that she dismissed this information as
"rumor" or "hearsay," I have, for reasons noted previ-
ously, given no credence to such self-serving assertions.
In any event, it is undisputed that Carlos transmitted
Mills' information about Gibbs' union activities to
Grischy. Supervisor Lucas testified that he first learned
of Gibbs' involvement when employee Carter told him
that there was going to be a union meeting . Finally, it is
noted that Plant Manager Tanaka belatedly recalled that
in July 1985 and before he decided to permanently lay
off Gibbs he spoke to the latter about his union activities.
I also find that the record clearly supports the infer-
ence of company knowledge regarding McClanahan's
support for the Union. Thus, McClanahan, credibly testi-
fied, inter alia, that he told Supervisors Farley and Brea-
kall at an informal gripe session in the lunchroom that, in
effect, all of them (employees and supervisors) would be
better off with a union, but the supervisors disagreed and
they also made various antiunion remarks.
However, even in the absence of any direct link, an in-
ference of knowledge is appropriate given the surround-
ing circumstances . As the Board has recently noted, "[I]t
has not hesitated to infer a Respondent's knowledge of
employees ' protected activity where the circumstances
reasonably warrant such a finding." Dr. Frederick Da-
vidowitz, D.D.S., 277 NLRB 1046 (1985). I find for rea-
sons noted below, the circumstances clearly warrant
such an inference.
The record disclosed that McClanahan attended union
meetings , made prounion statements to employees and
supervisors , and distributed union cards and literature to
employees at Respondent's facility. While Respondent's
supervisors denied that they were expressly told about
McClanahan's union activities, they admit being told by
employees that union cards were passed around and that
union supporters were identified.
Moreover, having previously discredited Respondent's
supervisors and noting that McClanahan's union activi-
ties were ongoing and extensive, I find no cogent basis to
accept the supervisors' denials, particularly, when, as
here, employees Mills and Carter informed them of
Gibbs' union activities and also identified other union
supporters.) a
As for the "timing" of Respondent's disputed action, it
is noted that the decision to permanently lay off Gibbs
and McClanahan came soon after renewed employee in-
terest in the Union. As noted previously, the Union's or-
ganizational drive that commenced in mid-1984, after
some initial enthusiasm, stalled that same year. However,
the record also disclosed that in June or July 1985 inter-
est in the Union revived, largely because of employee
dissatisfaction with the amount of the wage increases
they had received. Gibbs, with McClanahan' s assistance,
resumed his organizational efforts distributing union liter-
ature and passing out union cards. The credited testimo-
is In finding that the surrounding circumstances clearly warrant an in-
ference of company knowledge, vis-a-vis, McClanahan, I find it unneces-
sary to also rely on the small-plant doctrine set forth in Wiese Plow Weld-
ing Co., 123 NLRB 616 (1959), and its progeny It is noted, however, that
Respondent 's normal employee complement consisted of 45 to 50 em-
ployees
ny disclosed that , during the latter part of July, Supervi-
sor Clouse tried to restrain those activities , warning
Gibbs that those responsible for "starting this union
stuff ' will be in a "lot of trouble ." Tanaka belatedly ac-
knowledged that he made reference to Gibbs ' union ac-
tivities at a counseling session sometime in July.
McClanahan was laid off on 2 August . According to
Carlos , Gibbs was supposed to be laid off around that
time, but because she needed someone to replace em-
ployee Baisden temporarily, Gibbs' layoff was deferred
for 2 weeks . In the circumstances of this case, I am per-
suaded that the timing of the layoffs was related to
Gibbs' and McClanahan's stepped -up union activities,
and tends to further support the inference of unlawful
motivation.14
Finally , in assessing Respondent's motivation, I must
give considerable weight to my previous findings of co-
ercive statements by various supervisors . By variously
linking union representation to plant shutdown and loss
of jobs; by underscoring the cost of union dues; and by
pointing out the impotency of unions , i.e., "Wickham"
situation , ) 5 these supervisors clearly conveyed their an-
tiunion sentiments . While it is not alleged that Plant
Manager Tanaka made coercive statements , it is noted,
inter alia , that he left the decision whether to recall
Gibbs in the hands of the supervisors who have engaged
in violative conduct. Is
On the basis of the foregoing and the strength of the
entire General Counsel's case , I find that the General
Counsel has clearly established a prima facie showing of
unlawful motivation . This being so , and as noted previ-
ously , under Wright Line , the burden now shifts to Re-
spondent to show that it would have taken the disputed
action , notwithstanding the union activities.
Respondent , in its brief, denies that the union activities
of Gibbs and McClanahan were factors in their layoffs
"in that the Company was unaware of any union activi-
ty." As noted previously , the weight of the credible evi-
dence clearly belies Respondent 's denial of knowledge of
such activities . Accordingly , this position is totally un-
tenable and is rejected.
According to Respondent it laid off Gibbs and
McClanahan , essentially , on the basis of economics (due
to poor sales) and also because both employees had poor
records for job performance.
Regarding economic considerations , the record dis-
closed that Respondent 's sales for July 1985 was
$388,025 , and substantially below sales for July 1984,
which amounted to $506,754. (G.C. Exh. 7.) The differ-
ential in August , for the same 2 years , is even greater:
$291,966 (1985) to $564, 159 (1984). On the other hand,
the record disclosed little probative evidence tending to
14 It is noted that Gibbs was not told of any impending layoff until 16
August Moreover, while other employees were laid off, they were all
shortly recalled or had the opportunity to return Gibbs and McClanahan
were the only employees permanently laid off
13 The credible testimony disclosed that Supervisor Carlos pointed out
to employees that the Union forced the Company in "Wickham" to close
down and was unable to save the jobs of any of those employees
16 It is also noted that Tanaka admittedly told Gibbs that if he was
going to engage in union activity he had better "become a reliable
worker to succeed "
MATAI (U.S.A) INC.
support Respondent's assertions that layoffs regularly
occur as a concomitant to downturns in sales . For exam-
ple, Respondent's sales in September 1984 were approxi-
mately $140,000 less than in the previous month, with no
probative showing on this record that any employee was
laid off as a result thereof. Id.1 7
The record disclosed that Respondent laid off approxi-
mately nine employees in August 1985 (Tr. 170-172).
These layoffs were all of brief duration (generally 1
week), and except for Gibbs and McClanahan, all of
them were recalled by 3 September. t s Clearly, Respond-
ent's decision not to recall Gibbs and McClanahan was
not related to sales or other ecomonic factors as even
Grischy acknowledged, that "there probably would have
been work for them to do." (Tr. 181.) Given the vague,
undocumented, unreliable, and conclusionary nature of
Respondent's evidence, I find that Respondent has not
satisfied its burden relative to economic factors. Still to
be decided is whether Respondent's decision to lay off
Gibbs and McClanahan and its refusal to recall them was
based on their "poor records for job performance,"
absent their union activities.
Respondent noted that Gibbs and McClanahan had re-
ceived written warnings and on one occasion both had
been suspended for leaving the barmag machine unat-
tended. Further, Respondent alluded to certain attend-
ance problems, particularly McClanahan's tardiness, as
factors bearing on their poor work performance and in
Respondent's decision to permanently lay off Gibbs and
McClanahan.
In assessing the aforenoted factors, as well as the total
state of the record, I am persuaded and find that Re-
spondent merely seized upon them as a pretext for taking
the disputed action. First, it is noted that while Respond-
ent drew attention to written warnings there is no show-
ing that such warnings involved misconduct peculiar to
them and not other employees; or, that they received
more warnings than other employees. In the circum-
stances of this case, it was incumbent for Respondent to
do so, particularly as the record tends to show that Re-
spondent issued written warnings frequently, and only on
the rarest of occasions has anyone been discharged.
As for the written warnings given to Gibbs and
McClanahan, Respondent's references thereto appear to
be grossly inflated. For example, it appears that Gibbs
did not receive his first written warning until 25 March
1984, some 20 months after he started working for Re-
spondent. On that occasion, Gibbs received a warning
17 Grischy testified that no employee was laid off in August or Sep-
tember 1984 . The only record evidence tending to show that any em-
ployee was laid off in 1984 came from Gibbs, who testified that "maybe
one or two persons" were laid off, and he was uncertain if and when
such layoffs occurred. While Supervisor Carlos testified that sales gener-
ally drop during April, May, and June, Respondent did not produce any
records for those months for 1984, or for any year prior thereto. Nor
does the record otherwise disclose whether any employees were laid off
in 1984 because of lower sales . In these circumstances , I find that the
record falls far short of establishing any layoff pattern.
18 The volume of company sales in September 1985, was almost
$550,000 and reached $750,000 the following month. (G.C. Exh. 7.)
These figures raise some questions of whether any layoff in 1985 was
necessary . However , as the layoff of employees generally was not alleged
to be unlawful nor was that subject fully litigated , I am precluded from
making any such finding.
333
for an "attendance" violation. The document disclosed
that he was unable to report for work because he had
been drinking. (G.C. Exh. 6.) Gibbs received two other
warnings that year for leaving his machine unattended,
the second such time (October 1984), having resulted in
a 3-day suspension. (G.C. Exh. 5.) As for 1985, the only
"Employee Warning Report" in Gibbs' file is dated 2
August (G.C. Exh. 3), and he denied knowing anything
about it nor is his signature affixed thereto. As Grischy
testified that an employee faces discharge for refusing to
sign such a warning report, but offered no explanation
why Gibbs' signature is omitted, I find that this docu-
ment is largely self-serving and of questionable probative
value. 19
The record clearly disclosed that Gibbs was a desira-
ble employee, although there was an occasional lapse rel-
ative to some company rule. I am persuaded for example
that Supervisor Carlos requested Gibbs to replace em-
ployee Baisden because she knew that he had the capac-
ity to do virtually any job and she could reasonably rely
on good performance. In that connection, it is noted that
Carlos acknowledged that she did not have any com-
plaints in the manner in which Gibbs filled in for Bais-
den.
As for McClanahan, while Respondent asserted that it
transferred McClanahan from department to department
for poor job performance, there is little probative docu-
mentary evidence tending to support this position. The
only employee warning report McClanahan received was
in October 1984 when he and Gibbs left a machine unat-
tended. (G.C. Exh. 5.) On 4 April 1985 McClanahan re-
ceived a so-called verbal warning for excessive tardiness.
He was late a total of seven times in March and on four
of those occasions for periods of less than 2 minutes and
never more than 10 minutes and that happened only
once.
Clearly, Respondent seized upon this tardiness factor
as a pretext in permanently laying off McClanahan. For
example, employee Doug Martin was tardy on 19 occa-
sions during a 1-month period. Martin also received a
written warning for lateness and in early 1985, was sus-
pended for 3 days for continued tardiness. Yet, Respond-
ent recalled Martin and permanently laid off McClana-
han. Compare Sealectro Corp., 280 NLRB No. 15, JD slip
op. at 16-18 (May 30, 1986). Even more revealing is Su-
pervisor Carlos' testimony that approximately a third of
Respondent's employees are written up for coming in
late or not showing up for work. In these circumstances,
I am persuaded and find that the one attendance warning
Gibbs received as well as McClanahan's "verbal warn-
ing" for "excessive tardiness" were merely factors seized
upon by Respondent as a pretext for its action. See Keller
Mfg. Co., 237 NLRB 712, 717 (1978). (A pretextual
reason, of course, supports an inference of an unlawful
one.)
Finally, in assessing Respondent's decision to perma-
nently lay off Gibbs and McClanahan , it is noted that
Respondent had never permanently laid off any other
19 The time of this warning is also strongly suspect , dated the same
day McClanahan was laid off.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee. I am persuaded and find that Respondent
treated them disparately because of antiunion consider-
ations. Accordingly, I find that Respondent has not satis-
fied its burden that it selected Gibbs and McClanahan for
layoffs or that it would have permanently laid them off
absent their union activities.
In sum, I find that Respondent permanently laid off
John Gibbs and Christopher McClanahan in violation of
Section 8(a)(3) and (1) as alleged.
3. No-distribution rule
It is undisputed that, at all material times, Respondent
has promulgated and maintained the following rule for
its employees at its Springfield, Ohio facility:
The breaking of the following rule by employees
will result in discipline up to and including dis-
charge: ... Rule No. 34, distributing matter on
company premises without permission.
It is noted, inter alia, that rule 34 does not delineate
working areas from nonworking areas; nor, does it distin-
guish working time from nonworking time. In other
words, the rule, unambiguously, is a blanket prohibition
against any distribution of literature (implicitly including
union literature) on company premises without permis-
sion. Clearly such a rule is overly broad, at least facially,
and tends to inhibit union and other protected concerted
activities. See Republic Station Corp. v. NLRB, 324 U.S.
793 (1945); Campbell Soup Co., 225 NLRB 222, 227
(1976); and Stoddard-Quirk Mfg. Co., 138 NLRB 66
(1962). See also Our Way, Inc., 268 NLRB 394 (1983).
According to Respondent, "Rule 34 was prompted by
obscene matter being posted in the Grid Film Depart-
ment in 1979." The evidence in support thereof was sup-
plied mainly by Supervisor Breakall, who testified that
some employees had posted nude pictures on rafters in
the grid film department. Breakall's testimony on this
subject was vague, largely uncorroborated, and limited
(one incident of posting and no reference to distribution
of literature). Noting that I have found Breakall other-
wise to be an unreliable witness, I find little reason to
give credence to his account of the factors leading to
rule 34. In any event, I find that Breakall's testimony,
even if credited, does not provide justification to deny
employees free access to distribute union literature on
their own time in nonworking areas at Respondent's
Springfield facility. Having found that the rule is pre-
sumptively invalid, and that Respondent has failed to es-
tablish any business justification for the existence thereof,
a fortiori, I find that its promulgation and maintenance
violated Section 8(a)(1), as alleged.20
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
20 Respondent's denial that the rule was enforced is not controverted
by record evidence. Accordingly, I shall recommend dismissal of the
complaint only insofar as it alleges enforcement See, e g., Headquarters
Plaza Hotel, 276 NLRB 925, 927 fn 12 (1985)
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By telling employees to stop their union activities or
face trouble; by threatening employees with a cessation
of operations, elimination of all jobs, and a plant shut-
down if they selected the Union; and by threatening em-
ployees with plant relocation if they selected the Union,
Respondent engaged in conduct in violation of Section
8(a)(1) of the Act.
4. By permanently laying off John Gibbs and Christo-
pher A. McClanahan because of their activities on behalf
of the Union, Respondent violated Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has not established by a pre-
ponderance of credible evidence that Respondent has en-
forced rule 34.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent permanently laid off
Gibbs and McClanahan21 in violation of Section 8(a)(3)
and (1) of the Act, I shall recommend that Respondent
be ordered to offer them full and immediate reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges.
I shall also recommend that Respondent be ordered to
make them whole for any loss of earnings suffered as a
result of the discrimination against them , by payment of
a sum equal to that which each would have earned,
absent the discrimination, with the backpay and interest
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950); and Florida Steel Corp., 231 NLRB
651 (1977); see generally Isis Plumbing Co., 138 NLRB
716 (1962). In addition, I shall also recommend that any
reference to their terminations be removed from the em-
ployees' employment records.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
The Respondent, Matai (U.S.A.) Inc., Springfield,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
21 It is alleged that McClanahan and Gibbs were permanently laid off
about 2 August and 23 September 1985, respectively. Although I have
found ment to these allegations, it should be noted that Gibbs' layoff ac-
tually began a few weeks earlier , but he elected to take vacation time In
any event, this matter can be dealt with effectively at the compliance
stage of this proceeding.
22 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
MATAI (U.S.A) INC.
(a) Discouraging membership in, or activities on behalf
of, a labor organization by permanently laying off em-
ployees, or otherwise discriminating regarding hire and
tenure of employment , or regarding any term or condi-
tion of employment.
(b) Telling employees to stop engaging in union activi-
ties or face trouble.
(c) Threatening employees with a cessation of oper-
ations, elimination of all jobs, and a plant shutdown if
they selected the Union.
(d) Threatening employees with a plant relocation if
they selected the Union.
(e) Promulgating and maintaining an overly broad no-
distribution rule, which prohibits the distribution of
printed matter on company premises without permission.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately reinstate John Robert Gibbs and
Christopher A. McClanahan to the same or substantially
equivalent positions , without prejudice to their seniority
or any other rights and benefits previously enjoyed, dis-
missing their replacements if necessary and make them
whole for any loss of earnings suffered as a result of the
discrimination against them , in a manner provided for in
the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility at Springfield, Ohio, copies of
the attached notice marked "Appendix ."2 3 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent 's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employes are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
335
IT IS FURTHER ORDERED that the complaint is dis-
missed regarding alleged violations of the Act not found
in this decision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in, or activities
on behalf of, Glass Pottery , Plastics and Allied Workers
International Union , AFL-CIO, or any other labor orga-
nization by permanently laying off employees , or other-
wise discriminating regarding to hire and tenure of em-
ployment, or any term or condition of employment.
WE WILL NOT tell you to stop engaging in union ac-
tivities or face trouble.
WE WILL NOT threaten you with a cessation of oper-
ations, elimination of all jobs and a plant shutdown if
you selected the Union.
WE WILL NOT threaten you with a plant relocation if
you selected the Union.
WE WILL NOT promulgate or maintain an overly broad
no-distribution rule, which prohibits the distribution of
printed matter on company premises without permission.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer John Robert Gibbs and Christopher A.
McClanahan immediate and full reinstatement to their
former jobs or, if those jobs no longer exist , to substan-
tially equivalent positions without prejudice to their se-
niority or any other rights and benefits previously en-
joyed, dismissing their replacements if necessary.
WE WILL make John Robert Gibbs and Christopher
A. McClanahan whole for any loss of earnings or other
benefits they may have suffered as a result of the dis-
crimination against them.
WE WILL notify John Robert Gibbs and Christopher
A. McClanahan that we have removed from our files
any reference to their discharges and that the discharges
will not be used against them in any way.
MATAI (U.S.A.) INC.
23 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."